Delhi back to square one: ‘Justice’ Jaitley overrules SC

Supreme Court judgments are not normally subjected to the kind of hysterical cherry-picking that the spin doctors of both the BJP and the Aam Admi Party are indulging in. Both sides are selectively choosing portions of the verdict that suit them best and trying to obfuscate the core principles laid down by the five wise men of the constitution bench.

However, try as they might, the BJP cannot conceal the fact that the apex court has rapped the Modi government on the knuckles rather severely for attempting to undermine the legitimacy of the duly-elected government in Delhi. And however loudly the Aam Admi Party government claims victory, the reality is that the limits of its jurisdiction have been clearly and almost pitilessly marked out.

SC tweaks ears of Modi, Kejriwal

There is really nothing much to crow about for either Modi or Kejriwal. Both have had their wings clipped and their ears tweaked.

The central government has been told in no uncertain terms that real power in the National Capital Region of Delhi – even though it is not a full-fledged State - has to be vested in the hands of those who have been elected by the People. These powers cannot be “usurped” by anyone appointed by the Centre as an Administrator. Nor does any such appointed and non-elected Administrator have the right to “obstruct” the functioning of a duly-elected government comprising of elected representatives of the People.

This is the essence of the conclusion reached by the Supreme Court on Wednesday. Even though it is no more than a reiteration of the known constitutional position, it is nevertheless an emphatic reminder, made necessary by the reckless and reprehensible actions and antics witnessed during the past three years. In both a legal and political sense, therefore, it is a text-book lesson about the meaning of genuine Federalism in a Democracy.

Apex court uses strong words

What is new in the judicial pronouncement is the usage of such strong words like “usurp”, “obstruct” and “interfere” – which are clearly deliberate. It reflects the no-nonsense approach of the five judges, two of whom also gave separate but concurring judgments. It is intended to bring to an end the farce that was being played out ever since the Kejriwal government was elected to power in National Capital Territory of Delhi.

Equally in-your-face was the deprecation of “absolutism and anarchy”, expressions that the judges themselves refrained from elaborating upon but even the lay public recognises as references to the dictatorial Modi mindset and the chaotic Kejriwal mode of governance.

The key portions of the judgment are cryptic and unambiguous - a) the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor; b) the LG cannot interfere in each and every decision of the Delhi Government; c) Although decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters; d) The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President; e) the over-arching consideration is that real power and accountability is vested in the elected representatives of the people; f) The “aid and advice” given by Council of Ministers is binding on the LG unless he decides to make a reference to the President; g) The Legislative Assembly of NCTD represents the views of elected representatives, and therefore their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President; h) however, the power given to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration; i) the LG has to be kept informed of all proposals, agendas and decisions taken but the purpose of communication of all decisions is to keep him posted with the administration of Delhi.

In short, the LG is an administrative head in the limited sense, and is not a Governor. He is bound by the aid and advise of NCT Government in areas other than those exempted. The constitution bench has thus delineated the boundaries of power between the Lieutenant-Governor and Delhi Government by stating that the LG cannot interfere in each and every decision of the Delhi Government, and that the LG is bound by the aid and advise of the council of ministers of Delhi Government, except in matters of land, police and public order.

Unfortunately, within 24 hours of such a judicious verdict delivered by Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, it looks very much as if the ground situation is back to square one. Instead of putting to rest the power tussle between the Delhi government, with Chief Minister Arvind Kejriwal at its helm, and the Centre, wielding authority through the Lieutenant Governor and other players like the higher bureaucracy led by the IAS officers association, the verdict has led to a variety of conflicting interpretations and fresh controversy.

Kejriwal proposes, Jaitley disposes

In what can only be viewed as a strategic move aimed at boosting the morale of BJP spokespersons, all of whom were shell-shocked and tongue-tied by the severity of the apex court judgment, no less a personage that Arun Jaitley, Minister-at-large and pre-eminent legal brain of the ruling dispensation, wrote an opinion article on Thursday, characterising the verdict as of no great significance, except as a vindication of the Centre’s stand and a stricture on the Kejriwal government.

According to Jaitley, whereas the judgment “does not add to the powers of the State Government or the Central Government nor does it in any way dilute the same", it underlines that the Delhi government is subservient to the Central Government because Delhi just a Union Territory and not a full-fledged State.

He adds, rather provocatively, that the judges have left several issues open for interpretation – his argument is that "unless issues of importance are flagged, discussed and a specific opinion is rendered, none can assume that silence implies an opinion in favour of one or the other".

The implications of this line of thinking are obvious, but Jaitley spells them out in his own way - "Firstly, if Delhi has no police powers, it cannot set up investigative agency to investigate crimes as had been done in the past. Secondly, the Supreme Court has held categorically that Delhi cannot compare itself at par with other States and, therefore, any presumption that the administration of the UT cadre of services has been decided in favour of the Delhi Government would be wholly erroneous."

The operative part of the Jaitley thesis is that whatever Chief Minister Kejriwal chooses to do, the Central government has the power to undo. Here is the quote: "The elected State Government will have the executive and the legislative authority in relation to these powers. But the Central Government simultaneously will also have the authority to legislate in relation to these powers. If there is an exercise of power by the Central legislature in relation to these powers, it will override the authority of the State legislature".

Kejriwal living in a fool’s paradise?

As regards the Lieutenant Governor, Jaitley concedes that he enjoys no independent power to overrule the Delhi State Cabinet, but "if he has good and cogent reasons supported by material to disagree, he can record the same in writing and refer the same to the President (i.e. the Central Government), which will resolve the difference of opinion between the State Government and the Lieutenant Governor."

In other words, Arvind Kejriwal is living in a fool’s paradise if he considers the apex court verdict as a license to take decisions and implement his policy ideas. The Centre is supreme and will call the shots.

Already, the message has been brought home forcefully to the Aam Admi leadership – their bid to wrest control of bureaucratic appointments, postings and other service matters has been stone-walled by the officers lobby. It looks very much as if the original stalemate has not been resolved. Supreme Court verdict notwithstanding, it’s still status quo in Delhi State.