The verdict tells voters that choosing a local government is of no use, and that the lieutenant governor is the ruler of Delhi.
Most people’s reaction to the Delhi high court judgment is clouded by their hate and contempt towards Arvind Kejriwal. They end up hailing it as one of those few instances when Kejriwal is in the dock and they are enjoying it. For politicians to do that is nothing short of an expected norm, but it gets dangerous for the country when common people follow their lead.
One needs to go beyond this narrow perspective and look at the judgment in the larger frame of democracy. You may disagree with Kejriwal, dislike him and even despise him, but that should not come in the way of forming an opinion on a judgment that goes much beyond him. Additionally, it needs to be made clear once and for all that this verdict has nothing to do with the statehood of Delhi. It is a verdict clarifying demarcation of the existing constitutional position in the eyes of Delhi high court.
Let us decode the judgment and its implications. The Delhi high court judgment says:
- Delhi “continues” to be a union territory and the lieutenant governor (LG) is the administrative head.
- Article 239 continues to be applicable to the National Capital Territory of Delhi and insertion of Article 239AA has not diluted its application in any manner.
- The LG of Delhi is not bound to act in accordance with the aid and advice of the council of ministers.
- Prior approval of the LG is required for every decision taken by the council of ministers, failing which any such notification issued will be rendered illegal.
- Appointment of a special public prosecutor by the LG, without seeking the aid and advice of the council of ministers, is declared invalid.
- The anti-corruption bureau does not have the jurisdiction to act against the central government officials.
- The May 21, 2015 notification that brought services under the central government is held valid by citing the reason that Delhi lacks its own services cadre. Thus the appointment, transfer and posting of officials of any cadre working in the Delhi government rests with the Centre, which is delegated to the LG.
Except for the appointment of a special public prosecutor by the LG, the high court has agreed with every contention of the Union government.
Article 239 “continues” to apply to Delhi
The Indian constitution has the mention of two types of provinces – “States” run by a state government that is chosen via an assembly election and “Union Territory” governed by the Union government, that is chosen via a national election.
There is no explicit terminology for a half-state or a limited state like Delhi or Puducherry. After reading the constitution one will agree with the Delhi high court that Delhi is a union territory. But constitutional provisions are never read literally.
The larger context of the intent and motives behind making those provisions are later tested against the basic principles of democracy. If Delhi is still a union territory and if Article 239 applies to it irrespective of Article 239AA being inserted in the 69th constitutional amendment, then a genuine question arises: what is the difference between Chandigarh being a union territory and Delhi being a union territory with its own assembly?
If Article 239 still applies to Delhi, what is the relevance and purpose of Article 239AA, which was inserted specifically for Delhi? The 69th constitutional amendment created Article 239AA and called for the formation of an assembly and a council of ministers. Powers were transferred and the assembly was conferred with executive and legislative powers on all state subjects barring three – law and order, police and land.
If the intention was indeed to keep Delhi as a Centre-ruled territory, why was Article 239AA brought in and these powers delegated in the first place? The very fact that parliament legislated to delegate these powers to Delhi is a testimony to the clear and unambiguous will of parliament to stop treating Delhi as a centrally-ruled territory; hence it created a provision for election of a local government.
The moment this will is expressed by parliament, Delhi ceases to be a union territory. The only rationale behind not removing Delhi from the list of union territories, along with this amendment, appears to be the fact that it can’t be put in the states list, as it does not have three subjects under its purview which all states do, and no third category exists in the constitutional terminology.
If at all it is necessary to explicitly proclaim this intention, Delhi should have been removed from the list of union territories; the presence of Delhi in that list became constitutionally flawed after Article 239AA was put in place. You may call Delhi a limited state or an expanded union territory, but it stopped being a union territory the moment this amendment came into force. The Delhi high court, in its verdict, has discarded this will of parliament and has reduced Delhi to the status of union territories like Chandigarh, hence diluting the entire purpose of the amendment.
The Delhi high court declared that the LG is not bound by the aid and advice of the council of ministers and his prior approval is necessary for any policy decision. If that happens, what purpose will remain to be served by the assembly and the council of ministers?
The cabinet will formulate a policy and send it to the LG for prior approval, and going by the high court order, the LG will be completely in his rights to discard it without a second look. This makes the whole electoral process, when people of Delhi come out to vote and choose a local government, nothing but a farcical exercise devoid of meaning.
One needs to understand that unlike those of other union territories, the people of Delhi get to vote twice. When the people of Chandigarh go out to vote in national elections, they are well aware that they are going to vote to select a government that will govern them locally.
Compare that to the people of Delhi, who go to vote in national elections to select a government for the country and participate in assembly elections, thinking that they are choosing a government to govern them locally. The Delhi high court verdict is a slap on the face of the people of Delhi. It basically tells them that no matter what you choose in assembly elections, it is of no worth as the LG (or the central government) is the ruler of Delhi. Nothing moves in Delhi without his prior sanction. If the people are supreme in a democracy, isn’t making their vote worthless a mockery of democracy itself?
The judgment has reduced the entire Delhi government – chosen through a process of election – to a mere department of the central government, one that needs to take approval prior to any decisions, and whose opinion can be discarded at any time. Is that the worth of the vote of the people of Delhi? Have they exercised their power to select a department in the name of government and a head of department in the name of chief minister?
Isn’t this verdict validating the rule of the unelected and discarding the elected? If the LG continues to be the head, even when a democratically elected government is in force, how does the will of the people that came out in assembly elections get reflected?
Forget about Kejriwal, forget about AAP, think for a moment and realise the implications of the judgment. It can have catastrophic repercussions and it is in complete contravention to the basic foundations of our constitution that is based on democracy and that considers people and their will to be supreme.
The verdict makes it clear that since Delhi does not have a separate service cadre, the services of the national capital territory of Delhi are necessarily the services of the Union.
This, in simple words, mean that the appointment, transfer and posting of any officer working in the national capital territory of Delhi rests with the central government and is delegated to the LG. The message is conveyed to the officers working in the national capital territory that it is not the government that they report to. Isn’t that a perfect example of a parallel government? Why would the officers listen to Delhi government ministers when they know that they are not the ones they report to? Why would they not listen to the LG (or the central government) and act on his tunes, when it is clear that he is the boss and controls everything related to their careers?
Political implications of the verdict
The political implications of the judgment are even more grave in nature.
The Modi government is working on the tactic of snatching the scissors from the barber and then accusing him of not cutting hair.
It did the same with the ACB by unilaterally appointing M. K. Meena as its chief, snatching it from the Delhi government and rendering it useless, while simultaneously accusing the Kejriwal government of not delivering on his promise of curbing corruption.
Many analysts like Yashwant Deshmukh, the founder of CVoter, have said that Sheila Dikshit managed to achieve a lot despite the hurdles that were presented to her by the BJP government at the Centre (before 2004), thereby making the point that Kejriwal is unable to do the same.
The facts, however, tell us there were crucial differences. Sheila Dikshit freely constituted a commission to probe into instances of alleged child sexual abuse at the Arya Orphanage and no one raised an eyebrow. The ACB was solely under the Delhi government and no one bothered to oppose it. Many bills were passed in the assembly and were only later sent to the LG for approval as a mere formality. Compare these three illustrations with the present situation and you will see how the present is a different ball game altogether.
If political analysts like Deshmukh fail to see the contradiction, it is foolish to expect laypersons to do so and that is what the BJP and the Congress are taking advantage of. The onus thus lies with the media to bring out these contradictions and question both Dikshit and the present central government.
I see the media running to get her opinion and reaction on every controversy related to the Kejriwal government, but I have never found any journalist asking Dikshit her opinion on the jurisdiction of the Delhi government to form a commission of enquiry.
Similarly, no one is asking the central government that if the ACB was with the Delhi government all these years, what was the need to defy previous norms by bringing it under the Centre now.
The Centre is taking over the departments of the Delhi government, hounding and threatening its officers and all of this is done right in the heart of the country and in the presence of media and no one seems bothered.
Just because there is a popular government in Delhi that may threaten your future electoral prospects, and just because the media is eager to let you go unquestioned, does not in any way justify the treatment meted out to an elected government.
I am an ardent believer in the power of parliament to make and amend constitutional provisions. If parliament feels that Delhi should be a union territory, then it should go ahead with its prerogative and retract the 69th amendment. But until that is done, and until there is an assembly in place in Delhi, stop making a mockery out of the democratic process by declaring Delhi a union territory and rendering the assembly and the council of ministers meaningless.
Courts have the power to revisit constitutional provisions and scrap them if they don’t fall in line with the basic principles of constitution. There are many such examples in history, the most recent being the removal of section 66A of the IT Act and terming of the NJAC Act as unconstitutional and void.
If the court feels that the 69th amendment is unconstitutional, since Delhi is still in the list of union territories, then go ahead and scrap it. Scrap the assembly and remove the farcical exercise of assembly elections.
Or if it feels that going by the letter and spirit of the 69th amendment Delhi should not be in list of union territories, then go ahead and delete its name. But you cannot validate both and disregard the will of the people.
Prateek Rawal is a software engineer at a multinational corporation in Noida.