The Modi Government is Trying to Create a Constitutional Crisis

Arvind Kejriwal during the India Against Corruption movement. His cap reads 'I want full freedom'. Credit: Wikimedia Commons

Arvind Kejriwal during the India Against Corruption movement. His cap reads ‘I want full freedom’. Credit: Wikimedia Commons

Having tried to crush AAP’s government over its powers over the appointment of the Chief Secretary, the appointment of Inquiry officers and the Anti-corruption Bureau’s jurisdiction, the Central Government has now decided to paralyze the working of the Delhi Government altogether.

As a consequence of a Notification of May 21, 2015, the Central Government has decided to wholly take over control of all employees of Delhi Government and make them answerable to the Central Government through Lieutenant Governor (LG) Najeeb Jung. It is clear that LG Jung is playing poodle to Modi’s government. If he was a self respecting officer with integrity, he would have exercised his own independent opinion and told the Central Government that what they were doing was morally, legally and constitutionally wrong. But, perhaps, Jung does not have the courage to confront his independence or lacks the capacity to be independent, being happy to rise and fall with the Modi government.

The argument underlying this latest Notification is that “services” falls within the domain of the Central government to give the latter total control of all employees of the Delhi government. In other words if Chief Minister (CM) says “do this” to the employee, and the LG says “Don’t do this”, the LG’s word would be decisive. If Kejriwal wants to transfer an officer to work in a specific department, he cannot do so. From a peon to the Chief Secretary control lies with Modi’s Home Ministry through the LG. Presumably every transfer of an officer or any decision pertaining to the Civil Service will have to be cleared by the LG in advance. No State government or Union Territory with an elected Assembly can work with this kind of restriction. CM Kejriwal is responsible to the people through the Assembly not to the Central government through the LG. The LG solution is the death of democracy and electoral governance.

Silly interpretation

But such an interpretation, that services fall under the Central government, is both forced and silly. The Constitution (Article 239AA) clearly says that the Central government has powers only over Public order, Police and Land (List II, Entry 1, 2 and 18) and incidental matters related to them, as indicated by the Constitution (List II E 64-66). There is no mention of services as falling to the Central Government. Delhi’s government retains power over “State Public Services, State Public Services Commission.” It remains to be seen by what black magic this power was available to the Central government if it belongs exclusively to the Delhi government. The logic is strained. The Notification says that the Central government created the DANICS and DANIPS for the Union Territories of Daman and Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands and Lakshadweep. But Delhi is not Daman and Diu. It is constitutionally distinct from other Union Territories with special provisions. It has an Assembly and a Chief Minister. It has special provisions saying that only public order, police and land is reserved to the Central Government. The Delhi government has legislative and executive powers over all other areas.

The justification for the Central government expropriating the power over Delhi government employees is that the Union Territories are run by the Indian Administration Service (IAS), Indian Police Service (IPS) and special services like DANICS and DANIPS and that it is “clear that the National Capital Territory does not have its own State Public Services”. This argument is fallacious for several reasons. First, IAS and IPS officers serving in the States may have been recruited by the Centre but are answerable to the elected government of the States not the Governor. The same logic applies to those working in Delhi’s government. Second DANICS AND DANIPS are created not under some power of the State but by the Centre under List I E 70. Their existence under Union Law does not mean that the power of the Delhi government over “services” is taken away from them. When they serve in Daman and Diu, they are answerable to the Administrator or LG there. But when they are placed in the Delhi government, operational control has to be with the elected government of Delhi. The difference between the two Union Territories is obvious. If it were otherwise, the democratically elected government would be a ‘make believe’ government with no executive power over its own staff. There is one further fallacy. Just because Delhi’s legislative and executive has not legislated on services or created a State Public Service Commission, this does not mean that they lose its power to do so to the Central Government by default. There is no such anti-federal Doctrine of Lapse in the Indian Constitution.

But the Notification is bad for yet another reason. As long as the Constitution has limited Delhi’s powers only in relation to public order, police and land, no notification can change this state of affairs. The Constitution itself says that changes to this list and other matters can only be done by Parliament by law. (Article 239AA (3) (b) and other provisions, Article 239AA (3)(c) second proviso). Nothing could be moreclear even to the most dim-witted constitutionalist. No notification can change this division of power between the Centre and the Delhi governments. It can only be done by a duly enacted law passed by both houses of the Union Parliament.

Central government’s motivations

I came across a glimpse of this justificatory argument advanced in the Notification before May 21 in an e-mail sent by Shanti Bhushan. In that correspondence, I found that an argument similar to that of the Central government was also present in a note/article written by his brilliant grandson, Prashant’s son. I congratulated Shantibhai on his grandson’s brilliance – especially as he was a student. What baffled me was the Central government used exactly the same Bhushan argument. Must have been a huge coincidence, I suppose. But although the argument is inventive, it does not follow that it is correct and will pass constitutional muster. In the present case, the constitutional dispensation can only be changed by the enacted law of Parliament.

It is clear that the Central Government has two inter-locking intentions: The first is to render the Delhi government non-functional – prodding Kejriwal to resign or suffer rising discontent for the failure to deliver the promised mandate. The second is to create a constitutional crisis. The Modi government fears that Kejriwal who was galloping ahead to fulfill his agenda would actually succeed. Since any change can only be made by Parliament, the other parties, CPI, CPM, Congress, Trinamool, Janata, Samajwadi and others in Opposition must make their angry voices heard along with those of AAP. The people of Delhi must also rise to protest the centre’s attempt to paralyze the Delhi government they elected – giving it the thumping majority of 67 seats out of 70. This unconstitutional legicide of parliament democracy and murder of responsible federalism must stop. These must demand for the withdrawal of the Notification May 21, and for the removal of LG Jung. It is all very well for Modi’s over-active bureaucracy to devise spurious solutions to stifle Delhi’s democracy. But the people must be informed of the sneaky and illegal way in which Modi is trying to obstruct and defeat the people’s mandate. Ultimately the people must tell Modi that his government cannot do this.