Shailaja Chandra writes on Delhi ordinance: Capital ebb and flow
Centre’s Delhi Ordinance raises a complex constitutional question. SC must clarify
Written by Shailaja Chandra
Updated: July 15, 2023 09:22 IST
As a child of the 50s, I watched Delhi develop from a quiet enclave of tree-lined roads and white-washed bungalows into the world’s second most populated city. Never in my wildest dreams could I imagine how much the city’s population would grow and how politics would shape its destiny.
A little history is fitting. When the States Reorganisation Act was passed in 1956, Delhi was classified as a Union territory to be governed by a Chief Commissioner (CC) appointed by the President. The capital was administered until 1992 by bureaucrats reporting to the chief commissioner and then to the Lieutenant Governor, under the watchful eye of the North Block — this includes the Emergency years and the period when it witnessed the anti-Sikh riots.
From the once peaceful colonies in New Delhi, housing mostly government servants and refugees from Pakistan, to Old Delhi’s Civil Lines, Chandni Chowk and Subzi Mandi — home to the original “Delhiwallahs,” — the city has expanded beyond recognition. Today, it is Asia’s fastest-growing city and the largest wholesale market for fruit, vegetables, and spices. For decades, it has been a magnet for education, trade, and commerce. With the highest per capita income in the country, it presents a constant lure for in-migration. And, politics is in its DNA.
In the 80s and 90s, elections to the Lok Sabha and Municipal Corporation were largely fought with the upper castes voting for BJP and the OBCs and Dalits voting for the Congress. This continued right up to 1998 when Chief Minister Sheila Dikshit, while assiduously nursing the city’s poor, also saw the potential of Delhi’s organised middle class. Educated and highly opinionated, they were undependable as voters, calling the exercise “pointless”. It was Dikshit’s citizen-government partnership, Bhagidari, which gave this constituency of some 10 million people relevance. The campaign gave her three consecutive electoral victories until 2014 when the new Aam Aadmi Party pulled the rug. That bears telling.
From the mid-90s, vast tracts of agricultural land were being stealthily acquired and built up without undergoing land-use change. Thousands of unauthorised tenements sprang up in areas that were once fields of grains and plots of vegetables. Today, seven million people inhabit some 1,079 colonies.
Without town planning, roads, drainage or sewerage, such habitations present problems. The Delhi High Court once remarked, “Peter should not be robbed to pay Paul” — a reference to honest taxpayers being deprived at the cost of those who broke the law. Today, almost a third of Delhi lives in such colonies.
Two decades ago, while still in his NGO activist avatar, Arvind Kejriwal used the Delhi Right to Information Act 2001 to expose corruption, play advocate for the slum dwellers and demand piped water for unauthorised colonies. Though his new party was rewarded handsomely in the 2015 and 2020 assembly elections, the colonies continued to be “unauthorised.” In 2021, the BJP passed a Parliamentary Act “regularising” all unauthorised colonies. How these inhabitants see their future will decide how they vote in the Delhi assembly elections in 2025.
The story of the political decentralisation of Delhi started in the 1980s, when the central government set up a commission, headed by Justice Sarkaria, to examine the balance of power and suggest changes within the framework of the Constitution of India. The commission submitted its report in 1988, but it was PM Narasimha Rao who ensured that the 69th constitutional amendment was passed. This gave legislative and political representation to Delhi. The new Article 239AA empowered the Union Territory of Delhi to function virtually as a full-fledged state with three exceptions — on matters relating to land, police, and public order.
The history of the passage of the constitutional amendment becomes relevant today. The original draft had Clause 7(a) and (b). At the time of tabling, in 1991, sub-clause 7 (b) was deleted because it would have required ratification by half the state legislatures and, therefore, delayed the establishment of a legislative assembly for Delhi. Only when the 70th Constitutional (Amendment) was tabled in 1992, did Clause 7(b) get inserted. Clause 7, therefore, reads:
“(a) Parliament may, by law, make provisions for giving effect to, or supplementing provisions contained in the foregoing clauses and for all matter incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.”
The Centre used Clause 7(b) to bring in an Ordinance on May 19. It probably inferred that the Ordinance’s provisions would not tantamount to an amendment of the Constitution. Today, Clause 7 holds the key.
Thirty-one years after the 69th constitutional amendment was passed and became law, on May 11 this year, a five-judge Constitutional Bench interpreted a yet unresolved part of Article 239AA. The judgment gave the elected Delhi government control over services — officer’s postings, transfers, and disciplinary matters. Chief Justice D Y Chandrachud, who headed the bench, said “If a democratically elected government is not given the power to control the officers, the principle of accountability will be redundant… If the officers stop reporting to the ministers or do not abide by their directions, the principle of collective responsibility is affected.”
The euphoria of the AAP cadres after the SC’s verdict was, however, short-lived. The Ordinance promulgated on May 19 scythed through the apex court’s decision by using Clause 7(b). It stripped the Delhi government of control over its officers. The Ordinance is expected to become law soon.
The moot point is not of morality but the application of Clause 7(a) and (b). On a simple reading, it looks like the Centre has an advantage. But until the issue is settled by the court, the question remains: How far is the Ordinance supplemental or incidental to Article 239AA of the Constitution? That is the issue another bench of the SC will now have to decide.
The writer is a former Health Secretary and former Chief Secretary of Delhi
The writer is a former Health Secretary and former Chief Secretary of Delhi
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