AAP sets up fresh Parliament flashpoint: Urges Dhankhar to prevent Bill replacing Delhi ordinance

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New Delhi, July 23

The Aam Aadmi Party on Sunday opposed any potential introduction of a bill in Rajya Sabha to replace the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 saying the ordinance, promulgated on May 19, seeks to undermine the democratic and popularly accountable model of government in Delhi.

Did you know that the introduction of the Delhi Ordinance in the Rajya Sabha is impermissible?

I explain the three reasons and more in this conversation. pic.twitter.com/Jf9N9gJCBR

— Raghav Chadha (@raghav_chadha) July 23, 2023

The bill proposed by the Centre, aims to extend the provisions of the ordinance into a full-fledged legislation.

Opposing any move to bring the bill in RS, AAP leader and house MP Raghav Chadha today wrote to Chairman Jagdeep Dhankar urging him to prevent the introduction of this Bill and direct the government to withdraw it in order to safeguard the Constitution and uphold the principles of democratic governance in Delhi.

“On 11 May 2023, a Constitution Bench of the Supreme Court unanimously held that as a matter of constitutional requirement, the civil servants serving in the Government of NCT of Delhi are answerable to the elected arm of the government, i.e. the elected Council of Ministers presided over by the Chief Minister. This link of accountability was held to be crucial to a democratic and popularly accountable model of government,” says the letter.

It adds that the Ordinance has undone this model of accountability by seizing control again from the duly elected Government of Delhi and vesting it in the hands of the unelected LG.

“The Ordinance seeks to strip the Government of NCT of Delhi down to only its elected arm – enjoying the mandate of the people of Delhi, but bereft of the governing apparatus necessary for meeting that mandate. This has left the GNCTD in a crisis of administration, put day-to-day governance in jeopardy, and has led the civil service to stall, disobey, and contradict the elected Government’s orders,” Chadha’s letter says.

He cited three reasons why the proposed Bill was unconstitutional — the first being move to nullify Supreme Court’s decision.

“This Ordinance and a Bill seek to undo the position laid down by the SC without amending the Constitution from which this position flows. This is on the face of it impermissible and unconstitutional. By seeking to take away control over Services from the Delhi Government, contrary to the SC decision, the Ordinance has lost its legal validity because no law can be made to nullify the court’s decision without changing the basis of that decision. The Ordinance does not change the basis of the Supreme Court’s decision, which is the Constitution itself,” Chadha argued.

Secondly, he said the ordinance and a bill replacing it would violate Article 239AA of the Constitution whose Section 7 clause a empowers the Parliament to make a law to “give effect to” or to “supplement” the provisions contained in Article 239AA.

“Under the scheme of Article 239AA, control over ‘Services’ lies with the Delhi Government. A Bill in line with the Ordinance is, therefore, not a Bill to give effect to or supplement Article 239AA but a Bill to damage and destroy Article 239AA, which is impermissible,” the AAP MP said.

Thirdly, he said the Ordinance is under challenge in the Supreme Court, which on July 20 referred the question of whether an Act of Parliament (and not just an Ordinance) can violate the substantive requirements of Article 239AA, to a Constitution Bench.

“As the constitutionality of any Act that may be passed by the Parliament is already before a Constitution Bench of the Supreme Court, it will only be proper to await the outcome of the decision before introducing the Bill,” Chadha wrote to Dhankhar concluding that the proposed Bill lacked legislative competence.

AAP has rallied the broad opposition against the Bill should it be brought and introduced in Rajya Sabha. All constituents of the newly formed opposition INDIA alliance have vowed to oppose the bill replacing ordinance even though the government is sure of numbers should the bill be put to vote in the council of states.