On May 19 this year, the Union government promulgated an ordinance to amend the Government of National Capital Territory of Delhi (NCTD) Act, 1991 that effectively nullified the Supreme Court judgment of May 11 on the powers over bureaucratic appointments in Delhi. After an eight-year long protracted legal battle, a five-judge Constitution Bench led by the Chief Justice of India D.Y. Chandrachud had unanimously held that the elected government of Delhi had legislative and administrative powers over “services”.
The ordinance removes Entry 41 (services) of the State List from the Delhi government’s control and creates a National Capital Civil Service Authority, consisting of the Chief Minister, Chief Secretary and Principal Secretary-Home, to decide on service matters in Delhi. Decisions of the Authority will be made through majority voting, which means that two Union-appointed bureaucrats could overrule the Chief Minister. Further, the ordinance provides that if a disagreement arises between the Authority and the Lieutenant Governor (LG), the decision of the LG shall prevail. The ordinance raises multiple legal and political questions regarding federalism, democracy, bureaucratic accountability, executive law-making, and judicial review. Several Opposition parties, barring the Congress, have supported the Aam Aadmi Party (AAP) government in its opposition to the ordinance. Congress leader Ajay Maken said that “cooperative federalism principles don’t fit” Delhi since it is the “National Capital”. In this context, it is important to examine how the ideas of federalism fit in unique contexts such as Delhi.
