Editorial: Tinkering with federal spirit

A late-night ordinance, issued on May 19, nullifies the apex court’s decision to give the Delhi government powers over administrative services in the national capital

Never in the recent past the threat to federalism was as serious as it is now under the NDA regime. There is a clear and blatant discrimination against some States even in the legitimate functions assigned to them in the Constitution. By systematically usurping the rights of the States and taking unilateral and arbitrary decisions, the Centre has been striking at the roots of federalism that is the bedrock of the Constitution. The latest instance has been provided by an ordinance that blatantly negates the Supreme Court’s verdict and seeks to clip the wings of the Arvind Kejriwal government in Delhi. A late-night ordinance, issued on May 19, nullifies the apex court’s decision to give the Delhi government powers over administrative services in the national capital —essentially the power to transfer and appoint bureaucrats posted to Delhi. The central ordinance virtually allows two bureaucrats to veto the Chief Minister. According to the ordinance, a National Capital Civil Service Authority will be set up with the Chief Minister, Chief Secretary and Principal Home Secretary to be members to decide on postings and transfers. If the two bureaucrats appointed by the Centre get together, they can stall the Chief Minister’s choice in a voting. The Centre’s latest move raises several questions pertaining to the rights of the States. Eight days after the SC gave the AAP-led Delhi government powers to appoint and transfer bureaucrats other than those related to public order, police and land, the NDA government notified an ordinance that virtually overturns the court ruling.

Not surprisingly, the AAP has termed the ordinance as “unconstitutional” and an attempt to “snatch” power given to its government by the apex court. The Centre deliberately chose to bring the ordinance at a time when the court has closed for summer vacation. On every issue with federal ramifications, the Modi government has been quite insensitive while pushing its agenda instead of taking the consensus route and trying to get the States on board. Its oft-repeated claim of ‘Team India’ spirit flies in its face as the constitutional positions have been turned into political tools to target the non-BJP governments. The cooperative federalism model is sought to be undermined through vengefulness and non-cooperation. Parliament alone has powers to undo the effect of a judgement of the court by a legislative Act. However, the law cannot simply be contradictory to the Supreme Court judgement, it must address the underlying reasoning of the court. The SC judgement, delivered on May 5, involves the interpretation of Article 239AA of the Constitution that deals with the governance structure of the national capital. The ruling places three constitutional principles – representative democracy, federalism and accountability – to an elected government within the interpretation of Article 239AA. It recognised the principles of democracy and federalism to be part of the basic structure of the Constitution.

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