India’s federalism takes a hit as Delhi officials defy Supreme Court

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Delhi Chief Minister Arvind Kejriwal (right) with his deputy Manish Sisodia. Photo: Courtesy Aam Aadmi Party

A day after the Supreme Court judgment stated that the elected government in Delhi must get primacy, bureaucrats hit back by saying they would continue to report to the central government. A new dispute between the Arvind Kejriwal-led Delhi government and the Narendra Modi-led central government erupted even before the ink on the apex court’s order could dry.

At the core of the issue is the question of whether the elected Delhi government, run by the maverick Aam Aadmi Party and led by Chief Minister Kejriwal, can appoint officials or must leave that to the central government’s prerogative. The bureaucrats have already made it clear that they will not follow the directions of the state government and sent a letter through the chief secretary to the chief minister hours after the Supreme Court judgment.

The central government rules Delhi through an official appointed as the lieutenant-governor. This is a unique feature specifically created for Delhi, since it is the national capital of India. But the flip side to this constitutional arrangement is that it deprives citizens direct access to the corridors of power through elections. Instead, a political appointee, the lieutenant-governor, gets to decide on all programs.

This was clearly limited by the Supreme Court, which stated that henceforth, the lieutenant-governor can only decide on matters related to land, police, and law and order. Barring these three issues he will have to go by the “advice” of the state’s Council of Ministers.

At the heart of the political fight between Kejriwal and Modi is the essence of India’s federal spirit. While the central government has primacy on a few issues such as defense, foreign relations and finance, the constitution ensures that state governments have a fair degree of autonomy to rule themselves. This has ensured a deeper democracy for citizens with access to their elected representatives for local issues. However, Delhi, being the national capital, came largely under the federal government and is the only “state” that has such an arrangement.

It is only in Delhi where the federal government also has to manage the working of the sewers, distribution of land and its use, and myriad other local functions. Most other national capitals such as Washington, London and Canberra don’t follow such an arrangement. The primacy of the local elected representatives, usually the mayor, is maintained through a constitutional scheme.

While Modi in his earlier stint as the chief minister of Gujarat pressed for greater federalism, once he became the prime minister, he quickly abandoned that position. Ironically, his Bharatiya Janata Party has routinely promised full statehood for Delhi, but has never been serious about it. Kejriwal knows that and uses it to embarrass the BJP frequently.

The deputy chief minister of Delhi, Manish Sisodia, has interpreted the Supreme Court judgment to claim that this power is no longer the prerogative of the federal Ministry of Home Affairs, but is vested in the Delhi government.

However, the Services Department has contested this claim, pointing out that the Ministry of Home Affairs’ Notification No SO 1368 (E) makes it abundantly clear that since Delhi does not have its own State Public Service Commission or a specific and separate cadre of bureaucracy, officers from All India Services, such as the Indian Administrative Service and the Indian Police Service, are allocated state cadres.

Only those serving in Delhi belong to a cadre where they are eligible to be posted in Delhi, Goa, Andaman and Nicobar islands, Arunachal Pradesh and Mizoram. The federal government argues that since this covers the “Union Territories,” therefore Delhi will also be treated as one, despite being a part-state with a directly elected government.

Interestingly, the Supreme Court disagreed with this position. Justice Dhananjaya Y Chandrachud in his separate opinion pointed out that even though Delhi is not a full state, that definition cannot be set in stone. His opinion was that in a democracy, the powers of an elected state government must be accorded a greater latitude. In  paragraphs 128-130 of his judgment, he noted that the use of the word “state” throughout the constitution was not dispositive; where appropriate according to context, “state” would include “Union Territories.”

The chief justice of India, Dipak Misra, also expressed a similar opinion and even went further to limit specifically the powers of the appointed lieutenant-governor. Citing this, the Delhi government has made it clear that there is no scope for further additions to the lieutenant-governor’s powers after the Supreme Court has mandated a limitation.

A senior Delhi government official concurred with this view. “The state government appealed against a Delhi High Court order, which had set these limitations based on the notification issued by the federal government. The Supreme Court has given an unambiguous ruling.”

Kejriwal issued a stern warning: “All officers [should] respect and obey [the Supreme Court] order. Open defiance of [the] order shall invite serious consequences.”

Shadan Farasat, one of the lawyers who represented the Delhi government before the Supreme Court, told Asia Times that he would strongly rely on what the majority judges held. He asserted that when the majority of the constitution bench has given such a resolutely clear holding, he wonders if the bureaucrats’ lobby, despite all their bluster before the media, would dare to argue in court that just because the 2015 notification has not been explicitly struck down, they are still under the administration and control of the lieutenant-governor.

Finance Minister Arun Jaitley, also a senior advocate and former law minister, has argued in a Facebook post that “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 Union Territory cadre of services has been decided in favor of the Delhi government would be wholly erroneous.”

In a tweet, Raghav Chadha, Aam Aadmi Party spokesman, has slammed the Services Department’s move as contempt of court, but there are no clear answers unless the apex court itself steps in to clarify.

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