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Pratap Bhanu Mehta writes: Brazen and ominous, Centre’s Delhi ordinance defies the Supreme Court, bodes ill for federal democracy

The Government of India’s ordinance to take over control of “services” in Delhi is an act of breathtaking brazenness. It bodes ill for the future of democracy. Suspend your partisan allegiances for a moment, and think beyond the technicalities of the case.

As early as 2015, the government tried to take over the control of services in Delhi. This was an attempt to control Delhi that went way beyond the power of the Union government as currently specified in the law. The Union government has legitimate interests in the governance of Delhi. But provisions for protecting these interests already exist. Instead, the Union government, much against the spirit of democracy, and long settled practice in Delhi, seeks to place all administrative officers under its own control.

The case was litigated for eight years. Much political drama followed. The Supreme Court first evaded the question, then gave bizarrely contradictory rulings. The case was finally decided by a five-judge Constitution Bench. According to the Court’s well-argued judgment, the law, as it currently exists, allows Delhi government to control the administration of services except in specified areas pertaining to public order etc. What does the Union government do? Within days of the judgment, and the onset of the Supreme Court vacation, it passes an ordinance, again wresting control of services in Delhi. This is subversion of law, of constitutionalism, of democracy, of federalism. It is, more ominously, a sign that the Union government will not relinquish power under any circumstances whatsoever.

Technically, the Constitution Bench in the NCT case had left room open for changing the governance of Delhi. If Parliament were to pass a law, changing the governance of Delhi, and bringing all services under the control of the Union government, such a law might stand the test of legality, even if it were unwise. But by taking the ordinance route, the government has intentionally created a full-blown constitutional crisis.

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Admittedly, governments in the past have used the ordinance route to hand Parliament a fait accompli. But by taking that route, the government is cocking a snook at the Supreme Court. It is in effect saying: “We are using the purely technical possibility to negate everything you said about preserving the powers of an elected government in Delhi.”

The Supreme Court will be damned if it does and damned if it does not. If it does not react to the use of this ordinance, it will send two signals. It will have failed to check the abuse of ordinance power of the Union government. There is no justification for bringing in an ordinance, when the government could have easily proposed legislation (however ill-advised it might be) in a few weeks’ time. Second, it will have put its seal on the disenfranchisement of millions of Delhi citizens. This ordinance is, without saying it, following the precedent of what it did in Jammu and Kashmir: Change the legal status of a state without any accountability whatsoever. The silence of the Court and all other political parties on Kashmir is coming home to roost. Whatever one’s views on Article 370, the unilateral downgrading of a state to a Union Territory should have occasioned judicial scrutiny and political opposition. “Federalism for me, but not for thee” is not a principle. The courts and the political system have conspired to produce this equilibrium.

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On the other hand, if the Court strikes down the ordinance, you have a full-blown war between the executive and judiciary. The executive will claim the mandate of the popular national will to delegitimise the judiciary. It might be the case that the purpose of this ordinance is not to urgently wrest control of Delhi. It may be to engage in price discovery about how much the government can put judicial power in its place, and get away with it. Either way, we are facing a constitutional crisis that could spiral out of control.

That this ordinance portends a crisis of federalism goes without saying. The ordinance, and the denial of representative government to the citizens of Delhi, are about as centralising measures as you can imagine. This is particularly the case in light of the fact that the idea of giving statehood to Delhi was to give it a measure of self-governance. The AAP-led Delhi government, whatever its limitations, is a genuinely popular government. It has won despite the Union government using all its powers to subvert governance in Delhi.

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But beyond the issue of Delhi, there is a larger crisis of democracy looming. One of the great risks to democracy is losers not accepting the verdict and doing their damndest to subvert it. Often this subversion can take a legal form, but one that betrays the spirit of democracy. A government might use state power to put pressure on certain factions and break opposition political parties. Sometimes these measures can be legal, even if they are being used in a manner that is blatantly partisan. Government functionaries might abuse their office to help the ruling dispensation. Even the Supreme Court acknowledged that this is exactly what the governor and speaker did in Maharashtra: They betrayed their constitutional offices to engineer the downfall of a legitimate government. They might be helped along by a judiciary that unfairly disqualified a leader of the Opposition. Or they might do what the Union government is doing in Delhi: Use the powers of the ordinance, and an ambiguity in the law, to subvert the overall purpose of the law. The Delhi case must be seen as part of a larger pattern of the BJP’s determination to shrink the space for the Opposition, to make it difficult for non-BJP parties to govern and compete.

Now ask yourself this question very honestly. The BJP has shown that it cannot tolerate another political party ruling in Delhi. It uses every trick in the book to subvert the government of Delhi. Is such a political party, when faced with the prospect of an imminent defeat, likely to relinquish power smoothly and easily?

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What happened to Kashmir was a canary in the mine for federalism more generally. What is happening in Delhi is a canary in the mine for Indian democracy in general. We have a party in power at the Centre that will not respect law, constitutionalism, sensible administrative practice, and the fair rules of electoral politics. Its brazenness is a sign that it will hold onto power at all costs.

The writer is contributing editor, The Indian Express

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