Kejriwal vs Jung: States’ authority is a central concern
Though the Centre is the elder brother in a federal power structure, states must be allowed to function in their spheres.
An ugly spat between the Centre and the government of Delhi has been going on for a while. The Union home ministry has debarred the state government from taking action against a Delhi policeman as the police are under the direct control of the Centre. Also, the lieutenant governor (L-G) had overruled the chief minister’s choice of the chief secretary.
The Centre has said the L-G was right in doing so.
In Delhi’s case, the relevant Article of the Constitution (239AA) is somewhat confusing. It says that the state government will be fully accountable to the Delhi assembly. But the L-G has full powers to override the state government.
In democratic jurisprudence, the rule of ‘harmonious construction’ prevails. Every interpretation has to be in harmony with the ‘basic structure’ of the Constitution, as interpreted by the Supreme Court in the Kesavananda Bharati case (1973).
Two features of the ‘basic structure’ are ‘parliamentary democracy’ and ‘federalism’. The first implies that the State cannot violate the basic norms of democracy. Just as there can be no authority without accountability, there can be no accountability (of the elected government) to the state assembly without authority.
The L-G, an unelected authority, is not accountable to the state legislature. Undeniably, in the case of a difference of opinion with the state government, he can, theoretically, reserve the matter for a decision by the central government. But surely, this provision cannot be stretched to veto routine transfers and postings of officials by the chief minister.
The home ministry’s interpretation of the ‘police’ is not valid. The Supreme Court has ruled that “entries in the three Lists (of the Constitution) do not give powers to the government but only define fields of legislation”.
The state government can take legal steps against a police official posted in Delhi. It has nothing to do with the distribution of powers between the Union and the states.
Assuming that the authority to take action against such delinquent public servants is a grey area, an interpretation that favours the state government would alone be in consonance with the constitutional scheme on federalism.
HM Seervai, the foremost constitutional authority, says: “Where two interpretations are possible, that interpretation must be preferred which would confer power under the List to the State than to a residuary power to the Union.”
The second relevant feature of the ‘basic structure’ is federalism. The clear-cut division of powers between the Union and the states is its very basis. The bone of contention between the Centre and the state government has been the posting of senior officials. These officers belong to all-India services, recruited and trained by the Centre.
Thereafter, they are ‘placed’ at the disposal of the states. It does not ‘post’ them, a prerogative of the elected governments answerable to the respective state legislatures.
Though the Centre is the elder brother in ‘cooperative federalism’ the states must be allowed to function in their respective spheres.
Ashok Kapur is a retired IAS officer. The views expressed are personal.