A most bizarre drama is un-folding in the capital of India. A government, elected with one of the most over-whelming mandates in recent history, is being deliberately paralysed by a nominated lieutenant-governor backed by a cynical Central government. The situation has now escalated into much more than a power struggle between the L-G and the chief minister. It is also no longer merely a question of political one-up-manship. Nor is it only a symptom of the tran-sient political adver-sities, which are commonplace in the world’s largest democracy. Bluntly put, the situation has now developed into one that has serious consequences for the smooth and efficient functioning of the federal structure of India.
Let us look at the facts. Firstly, it is true that Delhi does not have full statehood. To my mind, that in itself is an anomaly. In a state with more people than the combined population of countries like Hungary, Greece, Bhutan and Cyprus, it is dysfunctional that a popularly elected chief minister does not have full powers to implement the promises on which the electorate has elected him. Every successive chief minister, be he or she from the Bharatiya Janata Party or the Congress, has argued the case, on purely functional and democratic grounds, for full statehood for Delhi, and the BJP has probably been the most strident on this, even going so far as to make it a part of their manifesto in the parliamentary elections. But let us, for the moment, leave this apart.
Even as a Union Terr-itory, what are the powers that the Constitution confers on the nominated, unelected L-G? Article 239AA Clause 4 lays down that he will function on the aid and advice of the Council of Ministers on all matters on which the Legislative Assembly has the power to make laws. According to Article 239AA Clause (3)(a), the Legislative Assembly of Delhi has the powers to make laws on all matters mentioned in the State List or the Concurrent List of the Constitution, except land, public order and the police. Thus, these three exceptions are the only areas where in a Union Territory, the L-G has extra powers compared to that of governors in other states.
In conformity with this explicit legal situation, the mandate of the L-G is to facilitate the functioning of the democratically elected government, and not amplify his restricted powers to obstruct the mandate of the people. It is precisely here that my good friend Najeeb Jung, for whom I have otherwise great affection, has erred rather inexcusably. To overrule the chief minister’s choice for chief secretary, or to coun-termand other administrative appointments made by the Delhi gov-ernment, is tantamount, in my view, to reducing the duly elected chief minister to a cipher.
The real issue is that, whatever the legal situation, there are certain conventions and precedents regarding the interaction between the President and the Prime Minister, and governors and chief ministers. These conventions provide an informal but institutionalised forum for quiet consultations and in-camera discussions, even on issues on which there are differences. The purpose is to never convey the impression that the governor is seeking to browbeat a democratically elected leader. The importance of this convention, which also has constitutional guarantees, must prevail even if the governor is an appointee of a party, which is different to or opposed to the democratically elected political party.
What we are seeing in Delhi is diametrically opposite. The impression is rapidly gaining ground that the L-G is acting in a deliberately adversarial role to the mandate given by the people to his chief minister. In many ways, this development is, for Delhi, quite unprecedented. There have been in the past BJP chief ministers with L-Gs appointed by the Congress, and Congress chief ministers under L-Gs who are BJP appointees. But this kind of unseemly fracas has never happened in the past.
Moreover, it is evident that the Bharatiya Janata Party government at the Centre is using the post of the L-G to embarrass the Aam Aadmi Party government. If this is not the case, what can explain the manner in which the Central government has amended Article 368 of the Constitution by a mere notification? The powers to amend the Constitution (as has been argued by eminent lawyers like K.T.S. Tulsi and others) lie exclusively with Parliament. But, through its notification of May 21, the Central government has unconstitutionally amended the Constitution by adding a fourth power to the three already given to the lieutenant-governor. This fourth power, termed as “services”, has been unilaterally added to Clause 3 of Article 239AA by the stroke of a “notification”. This is, as Mr Tulsi says, “autocratic, dictatorial and undemocratic”.
The opposition by the L-G to the deputation of some police officers from Bihar to the Anti-Corruption Bureau (ACB) of the Delhi government is also quite inexplicable. The Delhi police may be under the home ministry, and, therefore, by extension, under the L-G, but the ACB is explicitly under the charge of the chief minister, and, to my understanding, this position has been categorically upheld by a very recent judegment of the high court. Why should the lieutenant-governor then veto a move by the chief minister to strengthen a unit legitimately under him with the laudable purpose to rein in corruption?
To my mind, the National Democratic Alliance government at the Centre should be very, very careful in trying to use the L-G to hobble or embarrass the democratically elected chief minister of Delhi. Who knows, tomorrow the shoe can be on the other foot, with a BJP chief minister and a L-G from another political party. Would the BJP like to be treated in the same manner in which they are colluding to harass Arvind Kejriwal?
What is happening in Delhi should alert all political parties on the perils of derailing democracy through the misuse of the office of the nominated governor or L-G. Certainly, the people of Delhi, who gave the AAP a massive mandate, will not accept this cynical game being played out at their cost. Perhaps, the time has come for Hon’ble Rashtrapatiji to intervene in his gentle but firm manner.
Author-diplomat Pavan K. Varma is a Rajya Sabha member
