Capital War: The Battle for Delhi

AS SOON AS THE SUPREME Court pronounced bail con­ditions on Aam Aadmi Party (AAP) convenor Arvind Kejriwal similar to those imposed in the Directorate of Enforcement (ED) case against him, it was evident that the leader could not continue as Delhi chief minister. Though AAP functionaries hailed his release from jail al­most six months after his arrest by ED and argued that the Supreme Court order does not prevent him from being chief minister, the odds were stacked against Kejriwal. The nitpicking over just which files he could sign—the court said only those that needed the approval of Lt Governor Vinai Kumar Saxena—was a distraction. Barred from entering the Delhi secretariat or convening a meeting of the cabinet, Kejriwal’s functioning as chief minister was untenable. Yet, given the tenaciousness with which he had resisted calls to step down, including hints from the courts, it was only on Sunday, September 15, when he an­nounced his resignation did the suspense end.

Kejriwal’s resignation was a signal moment, a likely turning point in a bitter war between AAP and Bharatiya Janata Party (BJP) over corruption cases filed against Delhi government ministers in the excise policy case, with investigating agen­cies alleging that the profit margin of liquor wholesalers was tweaked to generate windfall gains. A cartel of liquor suppliers, referred to as the South Group was hand-in-glove with AAP leaders in siphoning off illegal profits, a large slice of which was used to fund the party’s campaign in the 2021-22 Goa elections. Kejriwal sought to flip this narrative, announcing he would not become chief minister again until vindicated in a popular election which he said should be held at the earliest. The decision to name a woman, AAP leader Atishi, an articulate Oxford-educated loyalist, as his replacement was an acknowl­edgement of a lack of options. But the relief over the grant of bail, and the bid to take his case to the ‘people’s court’, could not disguise the plain fact that Kejriwal had to step down despite his reluctance to heed ‘moral’ arguments. An electoral battle that will test both parties is on the cards, but rival BJP has drawn first blood. Though one of the two judges who pronounced the order held Kejriwal’s arrest to be motivated, both upheld stern bail conditions. “Though I have serious reservations on clauses (b) and (c) which debars the appellant from entering the office of the Chief Minister and the Delhi Secretariat as well as from signing files, having regard to judicial discipline, I would refrain from further expressing my views thereon at this stage since those conditions have been imposed in the separate ED case by a two-judge bench of this Court,” said Justice Ujjal Bhuyan, sealing Keirwal’s fate.

Kejriwal’s resignation and Atishi’s elevation have set the stage for an epic battle for Delhi. In normal course, elections to the Delhi Assembly are due in February 2025. Kejriwal called for early elec­tions when he announced his decision to step down. This might need careful consideration. The first step towards earlier-than-scheduled polls would require the new cabinet to recommend dissolution of the Assembly to the lieutenant governor (LG). This itself is not sufficient for scheduling elections. Even if the LG recommends the same to the Centre, the AAP government will be reduced to caretaker status, unable to take policy decisions. The LG, whose powers have been significantly enhanced by the National Capital Territory of Delhi (Amendment) Act, 2023, would be even more firmly in the saddle. It is up to the Election Commission of India (EC) to schedule elections and reports sug­gest it might not be possible to club elections in Delhi with the Maharashtra and Jharkhand polls likely in November as the electoral roll in the national capital is being revised. This process is expected to be complete by early 2025 which will bring the likely poll dates close to the February timeline. This dilemma will weigh on the AAP leadership as it considers decisions it needs to take ahead of elections. Though the list of pending legislation and policy measures is long, a key measure to be rolled out is a `1,000 monthly payout for women under certain eligibility con­ditions. Announced in the Delhi budget in March, the scheme is yet to be implemented, the cause for the delay possibly being the political distractions AAP has been enmeshed in since the arrest of Kejriwal on March 21, shortly after the budget was presented. Despite AAP ministers regularly issuing statements about direc­tions given to officials to deal with issues like water logging, it is unclear whether they had the authority to do so. In the past months, ministers have directed the chief secretary to undertake several measures but directions to the top bureaucrat need to be channelled through the chief minister’s office. Since Kejriwal did not, going by public record, issue any instructions to the chief secretary, it is hardly surprising that policy announcements have remained on paper.

The electoral battle will be a high-stakes contest, perhaps the most significant election before the next Lok Sabha polls, much more than Delhi’s status as a ‘semi-state’ with an Assembly and executive with limited powers warrants. The BJP versus AAP battle has deep ideological overtones as Kejriwal is a mascot for the anti-BJP commentariat that is particularly vocal in Delhi’s institutional area. Since the decline of Congress nationally in 2014 and in the capital since the 2013 Assembly elections, AAP is the preferred choice for voters opposed to BJP and political activists who do not agree with the saffron party’s cultural agenda. The progress of the Delhi excise policy case where AAP leaders were defended by a battery of eminent lawyers reflected this divide, with the discussion often more about the likely politics behind the action of ED and the Central Bureau of Investigation (CBI) than the circumstances and facts of the case. In India’s polarised politics, AAP against BJP is an epic grudge match. Apart from the political fault line, it is a clash of governance philosophies as AAP relies heavily on a range of freebie schemes. The Delhi govern­ment has issued advertisements stating that a majority of power consumers do not pay bills. The ‘free’ phenomenon is com­plemented by a network of party activists and supporters who help AAP reach vari­ous voter segments, including the large number of slum and jhuggi dwellers.

Prime Minister Narendra Modi has dubbed freebies as “revadi” (sesame, jaggery and sugar sweets) as against fa­cilities like gas connections, toilets and housing that empower people. AAP’s populist approach has paid dividends with the party first reducing Congress to eight seats in 2013 and then winning con­secutive elections in 2015 and 2020. While BJP has won all of Delhi’s seven seats in the Lok Sabha elections since 2014, a sec­tion of voters that backs it chooses AAP for Delhi. This, along with a collapse of Congress votes, has seen AAP get the bet­ter of BJP.

BJP sees the prospects of a changed scenario in the light of Kejriwal’s resignation and corruption cases that the party feels have diminished AAP’s appeal. “The law will catch up with Kejriwal and stepping down and ap­pointing someone else will not help. The people will demand answers to the lack of governance in the city and culpability for scams,” Delhi BJP chief Virendra Sachdeva told Open. He says problems like flooding during the monsoon and the contrasting woes of lack of drinking water have disil­lusioned citizens, particularly those living in JJ (jhuggi-jhopri) colonies and tempo­rary housing. This is the voter segment attracted by AAP’s prom­ise of free utilities but which seem to have lost some of their allure.

“The cases of corruption against Kejriwal continue to pile up. In addition there has been zero governance in the last six months when he was in jail,” says Leader of Opposition Vijender Gupta. A comparison between Lok Sabha and Assembly elections has its limitations as the Modi factor has heavily influenced out­comes in the national voting. Yet, in the 2024 General Election, the AAP-Congress alliance strongly consolidated anti-BJP votes, particularly Muslims who rallied behind the partners, but could not prevent BJP from sweeping yet again. The vote in the capital indicated that Modi remained the choice of middle-class colonies as also important voting blocs like Purvanchalis, broadly seen to hail from eastern Uttar Pradesh (UP) and Bihar, who make up much of Delhi’s working class. BJP’s vote dipped slightly from the 56.8 per cent it recorded in 2019, but it was still well above the 50 per cent mark. Though yet to be put to test in an Assembly election, AAP seems to have lost its standing with the middle-class that it enjoyed in the Delhi polls. There were indications of this in the 2023 municipal elections, which can be considered a barometer for public sentiment on local issues. The expecta­tion that BJP would be ousted after two middling terms in office failed to fructify even though AAP won 134 of 250 corporator seats. BJP showed surprising resilience in retaining 104 seats in a losing cause. The result could be partly explained by Congress contesting the Municipal Corporation of Delhi (MCD) polls se­riously and denting AAP in a few segments, winning Muslim support in some seats.

AAP’S DECISION TO name Atishi as chief minister is intended to take the heat off Kejriwal in light of the limita­tions imposed by the court. In contrast to the order pertain­ing to Kejriwal, the regular bail granted to Jharkhand Chief Minister Hemant Soren in June does not entail any comparable restriction. The High Court of Jharkhand observed that there is no reason to believe Soren is guilty of money laundering. There is no such observation in the Apex court’s order on Kejriwal’s bail plea and the cases against him and others will proceed in the trial court. The decision to name Atishi as chief minister has its downsides, with BJP and rightwing social media handles highlighting the activism of her academic parents Vijay Singh and Tripta Wahi. The couple was well-known in Delhi University circles and espoused a strong leftist agenda, mobilising opinion in favour of 2001 Parliament attack convict Afzal Guru and describing India as an occupier in Kashmir. They were part of the Communist Inter­national movement and Singh visited Albania and was a staunch supporter of Enver Hoxha’s com­munist regime. A seminar in defence of Stalinism in Moscow in November 1994 praised Singh for his “profound and striking” contributions to the discus­sion on the continued struggle for the Marx-Engels- Lenin-Stalin cause. The association of her par­ents with Left activism, in particular the defence of Kashmiri separatists, was a likely reason why Atishi dropped her middle name Marlena—a com­bination of Marx and Lenin—ahead of the 2019 Lok Sabha election from East Delhi which she lost to for­mer cricketer Gautam Gambhir by a large margin. Her declaration that she will work with the sole goal of making Kejriwal chief minister again strikes the right note of loyalty, but it saw BJP asking whether she can address public grievances and provide account­ability about the corruption allegations dogging almost every department of the Delhi government.

Although one member of the two-judge Bench that granted Kejriwal bail has faulted CBI for acting in a motivated manner, with the intention of keeping him in jail after the leader’s regular bail plea was upheld by the special judge in the ED inves­tigation, the case and the allegations are unlikely to fade. Justice Bhuyan’s criticism is based on the view that CBI’s reasoning that Kejriwal’s arrest was needed as he was being evasive and conceal­ing facts related to the excise scam investigation and is not con­vincing. He said that CBI became active only after bail was granted and Kejriwal was not named even when he was arrested. It was only in the latest chargesheet filed on July 29 that the former chief minister was named. “It cannot be the proposition that only when an accused answers the questions put to him by the investigation agency in the manner in which the investigating agency would like the accused to answer, would mean that the accused is coop­erating with the investigation. Further, the respondent cannot justify arrest and continued detention citing evasive reply,” he said.

It remains to be seen how much this view weighs with a sepa­rate Bench of the Supreme Court that is hearing the broader issue in the context of the need and necessity to arrest. It is neither CBI’s nor ED’s case that evasive response is the primary reason for ar­rest even though failure to provide clear and convincing answers can require custodial interrogation that includes confronting the suspect with other accused in the case and other evidence of crime.

The evidence against Kejriwal and others in the excise policy case, such as former Deputy Chief Minister Manish Sisodia, has been evaluated at length by the High Court of Delhi and the Supreme Court. In its order that rejected Kejriwal’s bail plea— now overturned by the apex court—the high court had noted that material gathered by the investigative agencies shows Kejriwal allegedly conspired in the formulation of the flawed poli­cy, and was allegedly involved in the offence of money laundering in his personal capacity and as convenor of AAP. The courts have clearly stated that the evidence is not solely centred round state­ments of accused-turned-approvers and includes statements of hawala operators and AAP survey workers and area and assembly managers. The movements of hawala operators and transport of cash have been tracked through triangulation of mobile phones used by the conduits. In his order upholding the legality of Kejriwal’s arrest, the other judge on the Bench, Justice Surya Kant, said that issuance of notice to the former chief minister is not a rel­evant consideration. “The provision (procedure to arrest), however, does not outline any express procedure to be undertaken where the individual in question is already incarcerated. It is to be remem­bered that the Court is, in a way, the guardian of an undertrial, while he is in judicial custody. That being so, there could possibly be no other way to secure the Appellant’s physical presence for the pur­pose of further investigation, except to seek prior permission of the Trial Court for his interrogation,” he said. This is an important ob­servation as the court’s permission is in fact a safeguard that protects an undertrial who might be arrested on merely the jail authorities being served a notice by the arresting agency.

Even before Kejriwal’s arrest, governance in Delhi was in near-limbo due to the incessant hostility between AAP and the Centre and LG. The situation deteriorated with his arrest as no one in the government had the authority to take decisions. The cabinet could not meet and there were no instructions to the chief secretary how requests and directions from ministers were to be carried out. Kejriwal insisted his decision not to step down was to defy a po­litical conspiracy by BJP, but the vacuum created by his absence meant there was a price to pay. In keeping the chief minister’s seat vacant, there was a risk of incurring popular disaffection as day-to-day civic services were badly hit due to lack of direction and oversight. The electoral battle though has several imponderables. Despite having contested the Lok Sabha polls as allies, Delhi Congress leaders have slammed Kejriwal’s decision to resign, say­ing his hand was forced due to the court’s decision. “AAP is exposed on all fronts. If he wanted to resign on moral grounds, he should have done so long ago. Now that the court has imposed restric­tions, he says the people will decide,” said Delhi Congress chief Devendra Yadav. If Congress does contest the elections on its own, it will add to AAP’s woes despite the party being a depleted force. Delhi’s Assembly seats are quite small and there is an inevitable play of local issues even though AAP has succeeded in making Kejriwal the main factor since 2013. In close elections, voters op­posed to BJP may not be able to clearly identify whether AAP or Congress presents the best bet. In the 2020 Assembly elections, AAP polled 53.5 per cent votes and won 62 seats in the 70-member House. Despite a 6.2 per cent gain in votes over the 2015 election, BJP won just eight seats and Congress, with 4.2 per cent votes, got none. If AAP’s graph has slipped and Congress finds space among voters disillusioned with Kejriwal and unwilling to vote for BJP, the electoral dynamic will change again.

The scenarios for BJP are challenging too. The par­ty will find the going tough in about a dozen constitu­encies where Muslim votes can play a decisive role. There are about half-a-dozen seats where the Sikh vote matters and the community has had an off-on relationship with the party in recent years. The BJP unit in Delhi has been riven with differences and no state chief has found the going easy. As has been the case in the past, the BJP leadership can be expected to depute senior leaders to manage electoral prepared­ness. In 2020, Union Home Minister Amit Shah had substantially overseen the campaign. Delhi BJP leaders acknowledge that AAP’s appeal among the beneficiaries of freebie policies cannot be disregarded and requires attention, but add that the party will not reduce or take away any benefits segments of vot­ers are receiving. “Our focus is that the schemes like free ration from the state were never implemented and those like mohalla clinics did not deliver and are riddled with corruption,” said a leader. The AAP strat­egy, on the other hand, aims to capitalise on presenting Kejriwal and other leaders as victims of political vendetta and sharpening the party’s pro-poor agenda. Catering to the lowest denominator has, however, extracted a cost as mushrooming encroachments have choked roads and swamped residential areas where taxpay­ing residents find themselves boxed in by expanding slums. For a start-up, AAP has had a great run since it contested the 2013 Delhi polls, even forming a government in Punjab in 2022. Now a make-or-break moment is at hand. For BJP, it has been a long, and so far unsuccessful, struggle to regain its lost fief of Delhi. This might be its best chance.

AAPAmit ShahArvind KejriwalAtishiBJPcorruptionDelhi government