Jung v/s Kejriwal: Delhi HC verdict has erroneously turned back the constitutional clock

The recent verdict by the Delhi High Court declaring that the National Capital Territory of Delhi continues to be a Union Territory and the Lieutenant Governor is its administrative head must make each one of us, irrespective of our political affiliations, sit up and take notice of the larger adverse implications it will have on the constitutional narrative not just in Delhi but across India, unless rectified by the apex court. This issue cannot be one where we seek to score a few convenient political brownie points over a much larger principle that we all must commit ourselves to in a democracy - namely the primacy of an elected government of the people, by the people and for the people over any sort of disingenuous, almost tyrannical form of government exclusively of the LG (or a Governor ) , run only by the LG (or a Governor) and presumably for the political masters at the Centre at whose behest the LG (or a Governor) acts. 

With utmost respect to the Delhi High Court and even as we await the decision of the Supreme Court, which I believe, would for strong legal and constitutional reasons, strike down this perplexing judgment, I would strongly urge members of my tribe to not turn back the constitutional clock to the British era by justifying the rule of an unelected (and perhaps unelectable) LG/administrator over a government that has been voted into power by the people of Delhi only because we relish the "jung" that ensues between them. Not only would we be guilty of putting politics before principles but we would also be buying into serious long term losses for some short term gains. Let me explain.

V R Krishna Iyer in his opinion piece on the role of governors had written this years ago "The Supreme court, in the Shamsher Singh case (1974), laid down that the Indian administrative system is substantially based on the Westminster system where the Queen is bound to follow the Cabinet’s advice except in rare exceptions in which the Cabinet decision is irrational or arbitrary or perverse or plainly and blatantly biased or mala fide. In such an instance, the Governor may have discretion. The rule democracy implies is that the Governor is the ceremonial head and real power of administration remains with the Council of Ministers. To assume, that the Governor has the free and indiscriminate discretion to substitute his judgment for that of the Cabinet is a grave outrage. Can a Governor assume all executive power and refuse to sign legislation passed by the legislature and negative judicial decisions? Then, our Constitution will be reduced to paper tyranny. The implications of the Governor being treated as vested with absolute power is dangerous. Imagine the President of the country acting as the sole ruler, not accountable to anyone except his conscience. Swaraj then becomes a mirage and an absurdity." 

Call it sheer co-incidence or an irony of sorts that on the very same day Delhi HC gave the verdict in question that virtually legitimised the LG acting as a super CM of sorts, the Upper House of Parliament was also discussing the misadventures of Governors in states like Arunachal Pradesh where the elected government of the Congress party had been destabilised by the unconstitutional actions of a pliant Governor, presumably at the behest of his political masters in the Central government! And the positions taken by the members of the Congress party in the Rajya Sabha echoed pretty much the sentiment expressed by V R Krishna Iyer or that of the Aam Admi Party on that day. Initiating the debate senior leader Anand Sharma questioned the role of governors and said he or she is “not supposed to interfere in the day-to-day functioning." Governors taking unilateral decisions, in his opinion was an “insult to people’s mandate.” He further added "Governors are willingly becoming tools and agents to execute the nefarious agenda of the ruling party."

On the other hand, some Delhi based leaders whose questionable political acumen earned them all of 0 seats out of 70, eager to score petty brownie points, scored a self-goal by supporting a verdict that favoured the Modi government even though it completely contradicted and undermined the stand taken by senior Congress leaders in Rajya Sabha. That in a sense also legitimised the nefarious agenda of the Modi government to misuse Governors as agents. Some including a former advisor to ex-Delhi Chief Minister tried to rationalise this illogical stand. The sum and substance of his argument was that one could take two stands on the same issue-one at Delhi level and the other at a national level- on the role of the governor vis-a-vis an elected government! His justification was rather bizarre. Hair-splitting on the fact that Delhi's constitutional status wasn't the same as Arunachal Pradesh's. On a lighter note, during our brief twitter exchange on the subject, I hoped the former political advisor wouldn't end up saying something bizarre that would imply the vote of a voter in Delhi carried less weight than the vote of a voter in Arunachal Pradesh! He suggested that Delhi's status as a UT wasn't the same as Arunachal Pradesh which is a full-fledged state. That's only partly true. 

Perhaps, the advisor and my friends in Delhi would have been well "advised" to take a leaf out of senior Congress leader Vivek Tankha's book on the subject. Much like me senior advocate Vivek Tankha, who has been recently elected to the Rajya Sabha on a Congress party ticket, has nothing to gain by siding with the Arvind Kejriwal government in Delhi. Tankha did not let his political preferences come in the way of an objective legal opinion/principle when he categorically (and correctly) stated in his article written in 2015 that "the NCT, though called a UT, was conceptualised as a virtual state, minus the three important subjects (land, police and public order)." The Union Territories, he further explains, "which include the National Capital Territory (NCT) of Delhi, have less administrative autonomy than the states. But Article 239AA is a special provision conferring a degree of autonomy for the governance of Delhi."

Indeed, Tankha's legal perspective is bolstered by a plain and simple reading of the Statement of Objects and Reasons appended to the Constitution (Sixty-ninth Amendment) Act, 1991 which inserted articles 239AA and 239AB after Article 239A of the Constitution which states as follows:  

"The question  of re-organisation of the Administrative set-up in  theUnion  territory  of  Delhi has been under the  consideration  of   the Government  for  some  time.   The Government  of  India   appointed  on 24-12-1987  a  Committee to go into the various issues connected  with the  administration of Delhi and to recommend measures inter alia  for the  streamlining  of the administrative set-up....After such detailed inquiry  and examination,  it recommended that Delhi should continue to be a  Union territory  and  provided with a Legislative Assembly and a Council  of Ministers responsible to such Assembly with appropriate powers to deal with  matters  of  concern  to the common  man.   The  Committee  also recommended  that  with a view to ensure stability and permanence  the arrangements  should  be incorporated in the Constitution to give  the National Capital a special status among the Union territories." 

239AA (4) clearly states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise  the Lieutenant  Governor  in the exercise of his functions in relation  to matters  with  respect to which the Legislative Assembly has power  to make laws, except in so far as he is, by or under any law, required to act in his discretion.

The Delhi HC verdict which says that the LG is not bound by the aid and advise of the CoM is in essence saying that a) there is no difference between a union territory directly under control of the central government eg Andaman and Nicobar Island and one that has an elected legislature, eg: Delhi and b) real power vests with the Governor and not the cabinet/council of ministers which is contrary to the Basic Structure of the constitution. Can we be told what happens to the "special status" of Delhi explicitly granted to it by 69th Amendment? Why and with what legislative intent was 239AA inserted at all vide the 69th Amendment? Why this expensive farce of holding an election and electing a CM and a legislative assembly? Why not continue with Delhi as a Union Territory under the administration of the President of India which it was from 1956 onwards? Why  was the Delhi Assembly re-established in the year of 1993, after the Constitution (Sixty-ninth Amendment) Act, 1991 came into force, followed by the Government of National Capital Territory of Delhi Act, 1991? And if this verdict holds true for Delhi, does it also hold true for Pondicherry where the elected government would have an unelected dictator in the form of former IPS officer & BJP leader Kiran Bedi running the show reducing the CM and his Council of Ministers to mere puppets? 

What a hilarious situation indeed! AAP in Delhi and Congress in Pondicherry would have to get elected and would thereby be held accountable for all actions of Najeeb Jung and Kiran Bedi - two of the most unelectable persons in the country? And these two would enjoy all the power without any accountability towards the people of Delhi and Pondicherry and would do as the Centre commands them to, usually to play political spoilsport and create trouble for the elected governments in Delhi and Pondicherry? Does this make any sense - political or constitutional?

Tankha has further settled one more pressing controversy with respect to civil servants and who regulates their postings in the Delhi government. According to him "Under Section 3 of the All Indian Services Act, 1951, the Centre, in consultation with the state governments concerned and by notification in the official gazette, can lay down rules to regulate the recruitment and conditions of service of the persons appointed. The All India Administrative Service Cadre Rule, 1954, defines “state” as “a state specified in the First Schedule to the Constitution and includes a UT”. It says that the Centre, in consultation with the state government (or UT), shall determine the strength and composition of the cadre, as well as the allocation of officers. Most importantly, it lays down that cadre postings are the prerogative of the state government, which may be read as the government of the NCT of Delhi." 

Congress general secretary in-charge for Delhi and former MP PC Chacko has gone on the record to say that - "We are for complete statehood because in its absence Delhi is only a glorified municipality. If the central government is hostile to the government of the day in Delhi, the latter simply can not function". Leaders of the BJP in Delhi too have advocated full statehood for Delhi at different points of time. The principle can't change merely because somebody else happens to be in power in this case Kejriwal. We cannot do such a U-turn, right from full statehood to denying Delhi its current arrangement of having a Special status amongst UTs! Not only is it opportunistic but extremely myopic and politically unwise. Delhi is a state where the Congress party may return to power. Does it want to go through what AAP government is in case there is a hostile government at the Centre? And if we all are going to accept that the LG is indeed the boss of Delhi how are political parties then going to say that AAP must be held responsible for unfulfilled promises? And are we going to start telling people of Delhi to approach the LG to get their work done instead of approaching the CM?

Hopefully, the Supreme Court will set things right again in Delhi but let us not lose sight of the larger nefarious design of the Modi government to misuse governors as "agents" as Anand Sharma rightly pointed out. It is happening in Delhi just as it will happen in Pondicherry and has happened in Arunachal Pradesh. 

The author is he youngest Secretary of the Maharashtra Pradesh Congress Committee and has been the youngest Addl Private secretary to MoPA, Govt of India . He can be reached at @Shehzad_Ind