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Thursday, 25 May 2023 | BISWARAJ PATNAIK | Bhubaneswar

Arvind Kejriwal’s AAP Government in Delhi is most certainly doing a commendable job. If it were not so, his party would have bitten dust by now given the invasive tactics of the saffron brigade.
 Delhi, the capital of India, became a state in 1992 under the National Capital Territory Act. Under this system of diarchy, the elected Government is given wide powers except in public order, police and land matters that remain with the Central Government. Thus, the Delhi Government has immense powers to govern with ease and dignity. 
However, the once popular BJP outfit in Delhi, running the country rather haughtily, has been constantly feeling shamefully crushed under the AAP’s aggressive style of running Delhi where even the civic bodies have grabbed most seats in successive elections. The apparently invincible Modi-Shah duo has gone berserk due to constant beating by the AAP team. The suffocated saffron biggies have eventually pitted the Lieutenant Governor to play spoilsport by creating all kinds of unheard of hurdles by citing the extra-jurisdictional powers as not enshrined in the Constitution. The AAP didn’t care a fig for the LG and moved the Supreme Court to pass a final verdict as to how much trouble the LG could create for the State Government and get away. The long battle ended recently with a court ruling that in a democratic setup, the elected representatives are supreme in authority as they mirror the real public will. The details of trouble-mongering by Modi-Shah's enslaved LG are common knowledge. The Chief Minster was deprived of the basic authority to even shuffle or reshuffle bureaucrats as per  demand and desire.
The moment the Supreme Court ruled that people’s representatives are the masters and the LG their slave, all hell broke loose in the BJP bastion. BJP bosses lost sanity and forced the Central Government to promulgate an ordinance to have the apex court order nullified. Indeed, there is a provision for overturning Supreme Court rulings in highly-sensitive cases involving core interests of the larger public like it had happened when nationalisation of banks or abolition of the privy purse for heads of the princely states were prime motives.
But when the Delhi Government is enjoying unprecedented public love and trust, the BJP messing up with law has turned out to be a very costly move for the once-upon-a-time-popular BJP. The saffron gang, for having been hammered nonstop by the AAP quite in its own den, has evidently gone crazy; hence, the ordinance in mad haste.
Now it is clear that a battle between the executive and the judiciary has begun likely to end in the crushing defeat of the former. 
The team Modi is showing up such tragic flaws as will result in BJP's conclusive fall in more States in the 2024 elections. They were ruling 22 States; now, they have only 15. After the ordinance fiasco, even more States would kick out the saffron creatures from seats of power.
Furthermore, the BJP-led national government has proven to be a vindictive one. Amidst Rahul Gandhi’s attempts at pulling down the BJP biggies for their blunders, the Government threw him out of the official bungalow in mad hurry the moment he was disqualified as an MP. Similarly the CBI, ED and Income Tax hawks have kept pouncing on almost all non-BJP characters for slightest of blunders which are routinely brushed aside as matters of no substance.
In contrast, the other gigantic democracy called the USA has a beautifully-drafted Constitution. It makes the Supreme Court the last and final master, whose verdicts are binding in all matters. No ordinance like nonsense can happen in that great country. All this is to avoid a never-ending war between the executive and the judiciary. In most perfect nation states, the judiciary takes the last call and assertively, so that cannot be overturned by any other critical organ of the state. The arrangement justifies the name ‘supreme'.
As the final arbiter of law, the US Supreme Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functioning as the true guardian and interpreter of the Constitution. The US Supreme Court is real supremo over all, the people, the legislature as well the executive. The top judiciary has the last word. The Constitution is crystal clear on that to make sure the executive does not embark upon any never-ending ping-pong battle. No promulgation of any ordinance can happen in America. 
Interestingly, the whole hierarchy of judiciary is considered as one organ. Even the American Supreme Court cannot overturn or nullify the verdicts of the State courts unless the issues involve federal interest. A more imposing judicial power has never been constituted by any other people on the living planet. The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and the Constitutional government.
Thus brazen and ominous, the Centre’s Delhi ordinance defies the Supreme Court, spells only ill for federal democracy. The Government is of course cocking a snook at the Supreme Court. The ill-advised Government has intentionally created a full-blown Constitutional crisis.
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 big Constitutional crisis.
If the Supreme Court 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, in a few weeks’ time. 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 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 respectable principle. It is supposed that the courts and the political system have conspired to produce such an equilibrium.
The judiciary has got a golden opportunity to fix erring executives for good. Though not explicit like in the American Constitution, the Supreme Court is in letter and spirit the supreme organ to call the final shots. Hopefully, the Supreme Court will take the executive head-on and rule supreme as always, particularly in an evidently defiant matter of grave public concern. The top court trashed the NJAC with gay abandon. Crushing a grossly erring executive is a much lighter task.

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