Rallying behind Arvind Kejriwal's Delhi government is Congress' chance to show it cares for federalism

The Opposition's quest for unity to challenge the Bharatiya Janata Party (BJP) in 2019 is self-avowedly based on the principles of saving the Constitution and democracy from subversion, boosting federalism, and fostering social harmony. Most people find it hard to tell whether the Opposition is merely invoking the triple principles to camouflage their insatiable appetite for power.

To persuade the people of their intent, the disparate Opposition parties, wishing to unite on a common platform, should rally behind Delhi's Aam Aadmi Party government in its bruising battle against the Lieutenant Governor, who’s the Centre's representative in the city-state. There can be no denying that at stake in their confrontation are the principles of federalism and Constitutionalism.

The choice to support AAP is essentially for the Congress to make, for Delhi's is a triangular battle involving India’s grand old party, the BJP and AAP. Other Opposition parties are not players in the city-state. This choice is a difficult one for the Congress, which has no love lost for AAP leaders, to whom it has lost a chunk of its support base in Delhi.

Yet, the Congress can’t be seen to be silent or indifferent to the central government's motivated reading of Constitutional provisions relating to the arrangement of governance in Delhi. Indeed, differences over provisions of the Constitution are nothing new. But the reasons that Lt. Governor Anil Baijal has cited to nix or delay more than 30 proposals of the Delhi government suggest a deliberate attempt to prevent it from functioning smoothly. Some of these reasons border on pettiness and suggest political vendetta.

Take AAP's proposal to provide doorstep delivery of public services, such as caste or domicile certificates citizens require. Instead of them coming to government offices, AAP suggested it would send "mobile sahayaks" to provide these services to people at their homes. But Baijal declined approval on the ground that mobile sahayaks would increase traffic congestion and hence cause air pollution. Ultimately, though, under media pressure he relented.

File image of Delhi chief minister Arvind Kejriwal. Image: Twitter/@AamAadmiParty

File image of Delhi chief minister Arvind Kejriwal. Image: Twitter/@AamAadmiParty

Much has been written on how the Lt. Governor slowed the opening up of mohalla clinics. But even this pales in comparison to Kejriwal’s instruction to the health department to hire recruits on contract, particularly pharmacists, to ease the pressure on the staff of government hospitals. The health department drew up a proposal, but refused to show the file to Kejriwal on the orders of the Lt. Governor.

Pending is also the Delhi government’s decision, taken in September 2016, to pay Rs 1 crore posthumously to army personnel belonging to Delhi dying in line of duty. Of the same order is the AAP government’s decision to make an exception to the rules governing ex-gratia payment to announce a payment of Rs 1 crore to the family of Subedar Ram Krishen Grewal, who committed suicide during the protests of over One Rank One Pension in Delhi.

There was a series of objections against payment to Grewal from the Lt Governor and, ultimately, after the Council of Ministers reiterated its earlier decision, the matter was referred to the President in July 2017. The reference to the President was made under Clause 4 of Article 239AA of the Constitution, which says that in the case of difference between the Lt Governor and his ministers, the former can forward it to the President for decision.

But Article 239AA does not empower the Lt Governor to return files to his ministers, seek repeated clarifications, recommend alternative policies, and nudge it into prolonged consultations with the departments of the Delhi government. These are precisely the tactics the Lt. Governor has adopted to stall the AAP government.

Under Article 239AA the Delhi Assembly can legislate on all subjects other than those pertaining to police, land, and public order. Barring these three, the chief minister is supposed to “aid and advise” the Lt Governor on all subjects over which the Delhi Assembly has power to legislate. The phrase aid and advise constitutionally implies its binding nature.

In Delhi, however, the Lt Governor began to acquire the air of supremacy over his ministers from 21 May, 2015. Then the Centre issued a notification superseding an earlier one of 1998, under which the Lt Governor in the exercise of his functions pertaining to “public order, police and services [deployment of bureaucrats]” was required to consult the chief minister. The May 21 notification effectively meant that the Delhi government was not to have even a semblance of control over bureaucrats.

The AAP government appealed against the 21 May notification in the high court. It was here that the next twist in the confrontation between the chief minister and the Lt Governor came – the then Delhi Chief Justice G Rohini and Justice Jayant Nath upheld the 21 May notification. But they also went beyond what had been appealed against – they ruled that even on matters other than public order, land, police and services, the Lt Governor was not bound to act on the aid and the advice of the Council of Ministers. Incidentally, after her superannuation, G Rohini was appointed as head of the Commission on the Sub-categorisation of the Other Backward Classes.

The AAP government went in appeal to the Supreme Court, which completed the final hearing in the case in December 2017. Six months have elapsed since then, but the five-member Constitution bench, headed by Chief Justice Dipak Misra, has not found time to deliver the judgement.

No wonder then, that with every passing day, the political battle in Delhi has continued to intensify, ultimately goading Kejriwal and his party into voicing the demand for grant of complete statehood to Delhi.

For both, the BJP and the Congress, it will be hypocritical to oppose the demand for statehood for Delhi. For instance, the 1998 notification making it mandatory for the Lt Governor to consult the chief minister on reserved subjects, including services, was issued when BJP’s Atal Bihari Vajpayee was the prime minister. Seventeen years later, yet another BJP government at the Centre took to singing a different tune on the issue.

The 106th report of the Parliamentary Standing Committee on Home Affairs, submitted to Parliament in December 2003, provided a vivid background to the demand for statehood for Delhi. In 1998, the central government prepared a draft Delhi Reorganisation Bill, which envisaged separating the area largely corresponding to Lutyens’ Delhi from those parts of the city that were to be “granted full Statehood.”

In September 2002, the 106th report noted, Delhi’s chief minister forwarded a Delhi Assembly resolution to the Central government requesting full statehood for Delhi. The resolution said such a step would provide governance befitting the national Capital. The chief minister in 2002 was Congress leader Sheila Dikshit.

The report says Dikshit also discussed the issue of statehood with the Central government and requested for a special status for Delhi under Art 371. On Aug 18, 2003, then Deputy Prime Minister LK Advani introduced the State of Delhi Bill. It sought to create the new State of Delhi covering the entire National Capital Territory of Delhi.

However, the Bill proposed to insert Art 371J, under which Parliament was conferred exclusive powers to make laws with respect to public order and police for the entire state of Delhi, and for land and local government in relation to New Delhi, essentially the area under New Delhi Municipal Council. Likewise, the executive power regarding police and public order for the entire state, and for land and local government for New Delhi, was to be exercised by the President through the Governor of Delhi.

The Bill, however, was also criticised for one of its clause that stated, “The President shall have executive power to give direction to the State of Delhi for good governance and proper development of the State and to require that the master plan prepared for the State shall not be implemented without his previous approval. The directions of the President will be binding on the government of the State of Delhi.”

But the parliamentary standing committee found that expressions like good governance and proper development were not only ambiguous but also variable concepts. “It was apprehended that such overriding and sweeping powers may be used by the Union Government as a ploy to destabilize the elected Government of Delhi,” the report cautioned.

The Parliamentary Standing Committee, chaired by Pranab Mukherjee, submitted its report on 5 December, 2003, a day after the Congress dashed the BJP’s hope of winning the Delhi Assembly election. It is incomprehensible why Dikshit did not raise the demand for full statehood for Delhi after the Congress-led coalition came to power at the Centre in 2004. Perhaps she did not feel the need for greater autonomy of action because a friendly government at the Centre was willing to listen to her.

Indeed, in supporting the demand for full statehood for Delhi both the BJP and the Congress have nothing to lose but their hypocrisy. In addition, Rahul Gandhi has everything to gain by backing AAP’s demand. He will have proved to the nation that the principle of federalism is dear to him even in states where the Congress is not in power.


Updated Date: Jun 11, 2018 10:51 AM

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