The Supreme Court's verdict on the turf war between the Delhi government and the Centre has been a dampener for the former. While there is some validity to the AAP government's argument that an elected government must be allowed additional powers, it falls flat in the face of the constitutional provisions guiding the relationship between the two governments. Is the present apex court ruling the final word on the debate? The split verdict indicates that the last word is to be uttered yet. The Delhi government may still hope for a better deal.
Firstpost spoke to constitutional expert SK Sharma to get clarity on the subject. Sharma is a former secretary of the Delhi Assembly besides being the former secretary in Lok Sabha and author of nine books, including Inside Delhi Assembly and Polity and Governance in Delhi.
Here are excerpts from the interview:
The turf of each government is clearly defined. On what basis did the AAP government feel it could have a different outcome, while criticising the Supreme Court verdict?
Unfortunately, AAP feels that it forms a full-fledged state government, which it does not. The Delhi government's powers under the constitutional scheme are not unlimited. Two important checks on its powers are – first, it can’t legislate on certain subjects like land, police, public order and services. Second, when it passes a bill on any subject having financial implication or needing extra expenditure from consolidated fund of Delhi, it’s mandatory that it refers such a bill to the central government through the L-G. The bill can only be passed by the Assembly, after getting Centre’s nod.
During the tenure of four former chief ministers from 1993 onwards, in all, 202 bills were passed and in each case, this procedure was followed. But, when AAP formed the government for the first time in 2013, it refused to follow these checks. As a result, the government fell in 49 days. Delhi chief minister Arvind Kejriwal had refused to follow the Transaction of Business Rules and refer his Jan Lokpal Bill to the Centre.
Even in the past, AAP MLAs have goofed up in the House, provided incorrect information. It resulted in the suspension of 21 MLAs in the incident of parliamentary secretaries.
The court's job is to interpret the law. The law itself needs to be changed if Delhi wants more power and it’s the job of the Parliament. Should the Delhi government not have approached the court on the issue?
Yes, the AAP government should not have gone to court because ours is a written Constitution – the lengthiest and bulkiest in the world. Constitutional provisions are further supplemented by a parliamentary law called GNCT Act and Transaction of Business Rules. Everything has been clearly laid down and operated upon by previous incumbents from 1993 onwards. The fact remains that unlike any other state such as Uttar Pradesh, Madhya Pradesh or West Bengal, Delhi is not a state but a territory of the Union of India.
The Delhi chief minister has also criticized the Supreme Court’s order that the Anti-Corruption Branch (ACB) will be under Centre’s jurisdiction and not under the elected government…
ACB, in fact, is a police station and police doesn’t come under Delhi government. It’s a reserve subject with the L-G. According to the fundamental principle of the Constitution, legislative power co-exists with executive power. As Delhi Assembly doesn’t have the power to legislate on police, it doesn’t have executive power on this subject. This approves the decision of the Supreme Court.
Let me cite an example – in 1994, the ACB’s office used to be inside Delhi Assembly, next to mine and it was headed by an IPS officer of the rank of assistant commissioner of police.
Why can’t Delhi government constitute an inquiry commission?
Under the Commission of Inquiry Act, an appropriate government can constitute an inquiry commission on a matter of general public interest; but in the case of Delhi, the appropriate government is central government and not the government of National Capital Territory (previously Union Territory). The state governments have the power to constitute an inquiry commission, but not UTs.
As you had charted the rules of Delhi Assembly, what’s your opinion on AAP government’s demand to grant statehood to Delhi?
There’s no chance of Delhi becoming a state. This demand had been raised several times in the past and discussed in several committees and commissions. Delhi is the headquarters of the federal government.
Who’ll grant statehood to Delhi? The president, prime minister and Supreme Court can’t. It can only be done through a constitutional amendment and only Parliament can do it with two-thirds majority. Neither the UPA government had it nor does the present NDA have it.
The AAP government wants Delhi to be a state, so that cash-rich and prime departments like police, Delhi Development Authority, New Delhi Municipal Corporation and land come under them, and their MPs and MLAs can get richer and become ‘baahubalis (powerful)'. But, how is it going to benefit the common man? They are already enjoying all the facilities in Delhi. If Delhi becomes a state, Rashtrapati Bhawan, Parliament, Supreme Court, high commissions, embassies, headquarters of three defence services, airports, etc – all will be under the state government. Will the central government become a tenant of Delhi government?
As you said, the AAP MLAs violated rules in the case of 21 parliamentary secretaries, but the high court revoked the suspension and restored them as MLAs. Now, where does the fault lie?
The 21 MLAs, who were parliamentary secretaries, moved the high court with a plea that they weren’t given a hearing by the Election Commission. The high court felt that natural justice warrants these MLAs be heard and it asked the Election Commission to hear them. So, the disqualification order was revoked and their status was changed from ex-MLAs to MLAs.
It’s a matter of time that these 21 MLAs are disqualified.
The Election Commission is now hearing these MLAs one by one. As there’s no new evidence in this case, the EC is not likely to change its previous decision which was based on the evidence provided to it by these legislators. They will eventually be disqualified; it’s only a matter of time.
What evidence are you referring to that would lead to the disqualification of 21 MLAs?
According to the Supreme Court, if you are entitled to certain facilities, but even if you haven’t used them, it legally amounts to holding ‘office of profit’. It happened in the case of Samajwadi Party MP Jaya Bachchan. Though she didn’t use the facilities, it amounted to ‘office of profit’ and she was disqualified as Rajya Sabha MP.
In the case of 21 MLAs, they were given office rooms, furniture worth Rs 14 lakh was purchased, etc, which the Speaker had admitted to in a reply to an RTI application. The Speaker admitted the same, when asked by the L-G office. But, when the Election Commission asked the chief secretary about the facilities given to these parliamentary secretaries, the latter said no facilities were provided.
The hearing before the Election Commission is a judicial proceeding and providing wrong information by telling lies and misleading the Election Commission amounts to punishment under law.
What will happen, if it is proved the Election Commission was misled?
It is a case of perjury. By furnishing false evidence, a crime has been committed. According to Section 193 of the Indian Penal Code, whosoever intentionally furnishes false evidence for use of official proceedings shall be punished with imprisonment for a maximum period of seven years and fine.
If the Election Commission, petitioner or interveners (Congress and BJP) having locus standi in the matter, move court under Section 340 of Code of Criminal Procedure, these legislators may be in deep trouble. The Election Commission has already commented in paragraph 38 of its inquiry findings to the President of India that Delhi Assembly Speaker took one stand in the RTI reply and before the L-G, and just the opposite before itself.
The offence, being criminal in nature, is not time-barred. Prosecution in this case is possible even when they cease to be legislators.
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Updated Date: Feb 16, 2019 20:47:33 IST