While three concurrent judgments by five judges on a Constitution bench of the Supreme Court had on July 3 laid down the contours of the unique status of National Capital Territory of Delhi, they had left it to a regular bench to separately take up the various issues which have proved to be bones of contention between the Centre and the Lieutenant Governor (LG) on one side and the elected Arvind Kejriwal government on the other.
In his order, Chief Justice Dipak Misra had, with respect to the validity of the two notifications issued by the Ministry of Home Affairs (MHA) and the Delhi government, as also regarding policy decisions pertaining to the setting up of probes into the CNG fitness scam and alleged malpractices in the Delhi and District Cricket Association (DDCA) noted that the “matters be placed before the appropriate regular bench.”
No end to tussle in sight as key issues remain pending in court
With the two groups are still at loggerheads over nine pending issues, the initial euphoria in the Kejriwal government over the verdict has quickly given way to a realisation that the Centre may still use the long-drawn legal process to thwart the functioning of the elected government.
Already, a tussle has broken out between the elected government and the MHA over the issue of service matters, which both the sides claim are within their domain. Likewise, the Kejriwal government has objected to LG Anil Baijal pushing for implementing the CCTV project under the purview of the Delhi Police, which reports to him.
Finally, even in the matter of the doorstep delivery of ration scheme, Kejriwal has directed the food department to implement the scheme overlooking the objections. The objections had come from the LG who had demanded that it be sent to the Centre to see if it conforms to the National Food Security Act. It has been learnt that the food department officials are posing a similar question at this point.
Aam Aadmi Party MLA and party spokesperson Saurabh Bharadwaj charged that the Central government is still objecting as it does not want the AAP government to function despite the apex court ruling: “This Supreme Court order has said that the Cabinet decisions are binding on LG on all subjects other than three – land, police and law and order. That means the LG has no independent view, it is the Cabinet which will take a view on this and he has to accept it. In exceptional circumstances, he can send it to the President but he still cannot have an independent view.”
As for the contentious issue related to services, he said; “Services have always been under the Delhi government, be it when Madan Lal Khurana, Sahib Singh Verma, Sushma Swaraj or Sheila Dikshit were chief ministers. The Centre had through the Ministry of Home Affairs issued a notification in 2015 taking away the powers of transfer and posting from the elected government. Recently, the Supreme Court made it clear that there is no fourth subject of services under the Centre’s purview.”
Bharadwaj said while the Supreme Court has interpreted the Constitution, these powers pertaining to services had been well defined in Delhi for the last 20 years under different chief ministers. “The Narendra Modi government brought a new interpretation to usurp the power of services. But now when the Supreme Court has set the record straight, one thing is clear – that it cannot reject decisions of the elected government at least in the projects which do not come under the three specified heads.”
‘Order has paved way for work to start’
The AAP leader said, following the apex court order, the elected government is taking steps to set into motion various schemes which have been stalled. “This is why the chief minister has now ordered that tenders be immediately issued for the CCTV project. The Cabinet has also issued directions for implementing the doorstep delivery of ration scheme. Work had stopped in unauthorised colonies, but today, the chief minister has gone there and ensured that work has restarted,” he said.
‘LG only wants to waste the time of the elected government’
But while the judiciary has settled the vexing issue of defining powers, he said “the LG is saying that only when the Centre quashes its old orders would he accept the changed situation. This is just a ploy for wasting the time of the elected government. After wasting three-and-a-half years, they want to waste a few more months. The court has clearly laid down the principles now, yet they want us to move the court against each and every illegal and unconstitutional order that the MHA or LG had passed.”
Noting that nine matters are still pending before the Supreme Court, Bharadwaj said the Centre now wants the Kejriwal government to approach the apex court for getting each of their unconstitutional orders quashed. “In a way, the apex court has taken a decision covering all of them, but the Centre wants arguments to take place on each so that more time is wasted in the process,” he charged.
Nine crucial issues still pending before apex court
Incidentally, these nine issues pertain to the MHA’s notification of May 21, 2015 that said the LG shall in respect of matters connected with “services” exercise the powers and discharges the functions of the Central government; the MHA’s July 7, 2014 notification that the anti-corruption branch of the Delhi shall not take any cognisance of offences against officers, employees and functionaries of the Centre; the August 11, 2015 notification appointing a commission of inquiry for inquiring into all aspects of the award of work related to grant of CNG fitness certificates in the transport department; and the December 22, 2015 notification appointing a commission of inquiry to probe the allegations of irregularities in the DDCA declared illegal by the HC.
The other pending issues are the Delhi government’s decision to appoint nominee directors on the board of the power distribution companies based on the chief minister’s recommendations; its direction to the Delhi Electricity Regulatory Commission regarding disruption of electricity supply to consumers; its notification via the revenue department of revising minimum rates for charging stamp duty on instruments related to the sale or transfer of agriculture land; and its decision on appointment of special public prosecutors for arguing sensitive cases.
‘Centre wants Kejriwal government to remain embroiled in legal matters’
Bharadwaj said while the Kejriwal government was elected for five years, three-and-a-half years have already been wasted because of these unconstitutional orders of the Centre, “They know that due to Model Code of Conduct for around four-five months around Lok Sabha elections and a couple of months before the next assembly elections, no work would happen. So that leaves less than a year for this elected government and now they want us to spend this time litigating these cases.”
‘Centre should have withdrawn unconstitutional orders’
The AAP leader said if there was any morality left with the Centre, it would have taken cognisance of the fact that the Supreme Court has pronounced that it has no right to interfere in certain matters and therefore, withdrawn those orders.
Bharadwaj said the legal process itself will prove time-consuming. The recent Supreme Court order had come on a Delhi high court ruling of August 2016. It came after nearly two years. It took seven months to get the matter listed and for another seven months, the order was kept reserved. At this rate it would take at least two or three years to get judgments on all these issues.
So, he said, it was only a way of not letting the elected government work. “First they did not allow us to work using these strong-arm tactics and now they are coaxing us to get on with the work.”
‘LG playing dirty’
On the issue of installation of the CCTV system (for which a committee had been constituted under principal secretary (home)), which recommended that Delhi police should be the custodian of all CCTV cameras in public spaces in the Capital, Bharadwaj charged that “the LG is playing dirty. He wants to keep this system under the control of police and through that, wants to stay in the picture as the police are under his purview.”
In the case of doorstep delivery of ration scheme, he said that it was unlikely that there would be any hurdles.
CCTV and service matters are the only ones which the elected government feels will face problems. “We think the LG will not act directly, but would try and pose obstacles through the officers. The officers have started reporting for work, but they are still interfering with the files.”
‘AAP government resorting to drama, does not want to work’
Leader of BJP in Delhi assembly Vijender Gupta, however, insists that the AAP government is not serious about working and only wants to use the sympathy and agitation cards to impress the electorate.
“All the files did not go to the LG earlier too. Be it for making rooms in schools, elevated roads, hospitals or undertaking cleaning of drains and other works, there was no need for them to take permission from the LG. They could just start the projects as per the budgetary provisions,” he said.
‘Out of 650 files, difference of opinion in only three’
Noting how Additional Solicitor General Maninder Singh had argued that “out of 650 files received by the LG in the last three years, there was a difference of opinion in only three cases” and therefore the working of the elected government was never hampered, Gupta said, “the issue is of adherence to rules. If rules are not followed, then the proposals would either be objected to by the officers, the LG, or the matter would go to court and get stalled.”
“The problem with Kejriwal government,” he claimed, was that “it believes in taking short-cuts and not following the rules. In the case of creating parliamentary secretaries too, they brought the Bill after making the appointments, leading to the stand-off.”
‘Kejriwal government should move SC for contempt of court’
For the last three days, he said, the AAP government has been crying hoarse over the service matters issue. “Why don’t they file a contempt petition? Everything is in writing and they can approach the court – but they will not do so because they know where the power in the matter lies.”
The matter, he said, was still pending before another bench of the apex court. “The high court had also upheld the 2015 notification and the order has not been quashed as yet. These were powers of the LG which had been delegated to the elected government earlier. These powers were later withdrawn because the AAP government began misusing them.”
‘AAP destroyed mutual understanding, abused delegation of power’
Earlier, the BJP leader said, things were happening with “mutual understanding” and through “delegation of power”, but when the AAP government began challenging various authorities, they also responded by reclaiming their original powers. On May 21, 2015, the Centre and the LG clarified these powers through the notification.
On the ongoing tussle, Gupta said Kejriwal may have lauded the apex court order as a victory, but in effect is not happy with the judgment as it has stated that Delhi is not a full state and shown him his place. “They do not want to work and just keep claiming that we are not letting them work. The fact is, in Delhi, all departments work in tandem and have to take permissions from each other. So, when NBCC had to cut trees for redevelopment of government colonies, it approached the forest department of Delhi government. So also, the Delhi government obtains land for its schools and hospitals from Delhi Development Authority, which comes under the Centre.”
Problems, he said, arise when this coordination stops due to absence of mutual understanding and respect. “If you have to administer, you cannot allow politics to come in every time.”
In an arrangement with The Wire