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Will Supreme Court’s Pill for Delhi Work?
On current evidence, it seems unlikely that the Supreme Court order will improve the capital’s governance.
19 May, 2023
Arvind Kejriwal (Illustration: Saurabh Singh)
THE EFFECTS OF the Supreme Court’s order granting the Delhi government control over “services”, or postings of officials, including those belonging to all-India cadres, were entirely predictable and did not take long to manifest. Within days of the ruling, the Aam Aadmi Party (AAP) government withdrew all work from an official who was overseeing sensitive records, including those relating to the excise policy scam, violation of guidelines on advertising spending, and renovation of Chief Minister Arvind Kejriwal’s residence. The official concerned, perturbed by the developments, expressed his apprehensions about the safety and sanctity of the records. Quite unsurprisingly, the AAP government in turn accused the official of corruption.
Any expectations that the Supreme Court ruling would restore order to the functioning of the Delhi government and clarify its powers as regards the Centre have been swiftly shattered. It did not require any degree of clairvoyance to anticipate the turn of events. The Delhi government moved with alacrity to reorder the vigilance department and take charge of files relating to issues that have caused it considerable embarrassment. After the initial order, the transferred official handed over several files but retained about a dozen dealing with particularly sensitive investigations. He later complained that his room showed signs of unauthorised entry and that there was a possibility of certain files being copied. Meanwhile, the NGO that was said to have made allegations of corruption against the vigilance official clarified that it had not done so, further miring the Delhi government’s move in controversy.
The vigilance department episode is, while thoroughly anticipated, unlikely to be the last. AAP’s differences and bad blood with the Centre and its own officials are not going to subside anytime soon. The power over postings will give rise to a fresh set of demands and expectations, not the least those aired by AAP legislators and functionaries who respond to the needs of their constituents. Though the lieutenant governor’s role has been curtailed with regard to services, the office retains the power to call for files and seek progress reports on vigilance cases and anti-corruption investigations. Given the bitter political rivalry between AAP and BJP, there is no scope for even the barest of functional relations between them, and allegations and counter-charges will remain the order of the day. Having got its teeth into what it sees as substantial cases of corruption against top AAP leaders, BJP is not likely to relent and this is bound to see the former accuse the Centre of vindictive action in shriller tones.
In placing services in the Delhi government’s basket, the Supreme Court has considered the need to match legislative and executive powers and the broadly understood precept that lieutenant governors and governors must act on the “aid and advice” of the council of ministers. This dictum establishes the primacy of the political executive in decision-making and governance. Yet, even in states with full powers, the governor has considerable discretion. Discord between the National Democratic Alliance (NDA)-appointed governors and opposition governments has risen in recent years, and at least some instances are a case of overreach by the Raj Bhavans. Differences between governors and opposition-ruled states are, however, not a recent development. The relevant point is that governors are representatives of the Centre and this is how their role has been envisaged by the Constitution. They are intended to act as a check on actions that might be illegal or downright imprudent. The Tamil Nadu government’s Bill seeking exclusion from the national-level National Eligibility cum Entrance Test (NEET) is principally motivated by politics and has been rightfully held back by the governor. In more extreme instances, where a breakdown of constitutional machinery is feared, the governor can recommend Central rule.
The actions of governors have come under increasing scrutiny of the courts, particularly in the context of government formation and trust votes. The discussion about gubernatorial powers, however, is not entirely applicable to Delhi. The Supreme Court notes that the Delhi model is sui generis, setting it apart from other Union territories. While the court does go on to state that the Delhi government cannot be excluded from legislative powers over the State and Concurrent Lists, it also notes that Parliament has legislative competence on all matters on both lists. The fact is that Delhi cannot be equated to any other territory as it is the national capital. The rules governing its administration are bound to be different, and exclusive arrangements for national capitals can be seen in many parts of the world. A state of permanent warfare between the city government and the Centre was not anticipated when Delhi was granted limited statehood. The developments since the AAP government assumed office in 2015 after winning a big majority would deter the most enthusiastic supporter of “full statehood” for Delhi. The question is not about the state government’s “autonomy” but rather the nature of its actions and consequences. Theoretically, such concerns can be raised about other states, too, but the matter becomes more urgent in the context of the situation in Delhi where bickering has reached such levels that the AAP government refused to fully devolve funds to municipal corporations when they were under BJP control.
Any expectations that the Supreme Court ruling would restore order to the functioning of the Delhi government and clarify its powers as regards the Centre have been swiftly shattered. The Delhi government moved with alacrity to reorder the vigilance department and take charge of files relating to issues that have caused it considerable embarrassment
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Any law is as good as the entities that implement it. And the character of governments is determined by the actions of those in office. Even prior to the Supreme Court order, the Delhi government had considerable powers and a large budget. It has the capacity and means to deliver meaningful change in the capital, developing its infrastructure and services. Since it assumed office, AAP has regularly made headlines for claiming that the city government is being prevented from functioning by the Centre. The party’s spokespersons and ministers spend considerable time accusing the Centre and the lieutenant governor of various wrongdoings. Kejriwal uses the floor of the Assembly to launch a personal diatribe against the prime minister and it is no surprise that BJP leaders respond in kind. After its success in the Punjab elections, AAP has made greater efforts to expand its presence in other states with limited success. Yet, this has occupied the time of its leaders and requires resources.
A CAG (Comptroller and Auditor General of India) report in 2022 on Delhi’s schemes for potable water and sewerage in unauthorised colonies contains the following observations: “Grants-in-aid received for development of capital assets were irregularly diverted and utilised for other purposes… In the absence of a strategic plan to provide piped water supply to all 1,797 unauthorised colonies by December 2018, as envisaged by Government of National Capital Territory of Delhi, only 353 unauthorised colonies were provided piped water supply during 2013-18 and as of March 2018, 567 unauthorised colonies were still dependent on tube-wells/hand-pumps and water supplied through water tankers.” The CAG further noted: “Out of 34 works of Phase-I of Sewerage Master Plan for Delhi—2031, to be completed by 2016, only 11 works were completed by July 2018…Out of 1,797 unauthorised colonies, 1,573 unauthorised colonies (88 per cent) were not provided with sewerage facilities as of March 2018 and sewage generated by these 1,573 unauthorised colonies flowed into storm water drains and eventually into River Yamuna in its untreated form.” On current evidence, it seems unlikely that the Supreme Court order will improve the capital’s governance.
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