AAP vs Centre: The SC judgment is fair to India’s Constitution

The fact remains that the powers and responsibilities of both, the government and the LG, remain vast and have to be determined by the law as well as situations as they emerge

On Thursday, the verdict of the two-judge bench of the Supreme Court on the Aam Aadmi Party vs Centre settled the dust on significant issues that have been a source of conflict between the Centre and the elected Delhi government for some time now. While the views on this judgment seem to have stirred another debate on the control that the elected Aam Aadmi Party (AAP) government has on the capital city, it is a judgment that is, in fact, fair to the Constitution. [Part VIII of the Constitution deals with Union Territories (UT) and Article 239AA therein provides the special provisions to Delhi, which, are not on all fours with Puducherry which too has an elected government.] The Act nowhere refers to Services and the judgment is reported to have left that to a larger bench to decide.

Arvind Kejriwal (centre) felt the mandate supported an expectation for an unprecedented shift in the process of governance raising the hackles of the bureaucrats (Sushil Kumar/HT PHOTO)

The public perception is that current chief minister (CM) Arvind Kejriwal does not have the authority that Sheila Dikshit did, when her government was in power. This is true. Dikshit had the benefit of the Lieutenant Governor’s (LG) cooperation with regard to issues related to services which included all but the most senior officers in the government on which a joint view was taken- usually accepted by both. The extant Transaction of Business Rules gave the CM a role which even then was circumscribed. Because of a modification in the Transaction of Business Rules in 2015, this is something that the AAP leader, Kejriwal, doesn’t have. It continues to be a reason for confrontation as officers will go by what is decided by the ministry of home affairs which indeed has final authority working through the LG.

Kejriwal, who has the benefit of being elected with a thumping majority, felt the mandate supported an expectation for an unprecedented shift in the process of governance. This raised the hackles of the bureaucrats unaccustomed to anything other than previous precedents and systems. What must be understood is that however large the mandate may be, the elected government cannot alter systems and processes which are the foundation of governance. The Transaction of Business Rules (TBR), 1993, set out the processes to be followed by the chief minister, the council of ministers and officers while transacting government business and those had not changed. Bureaucrats would only follow these systems unless changed legally.

Coming to the judgment: There is complete clarity on issues that, until now, were said to be ambiguous. The apex court has upheld that transferred subjects, such as electricity, are within the purview of the Delhi government.This, and similar subjects are what about 80% of Delhi’s population are concerned with. It puts enormous power in the hands of the elected government and the ability to work independently but still bound by the checks and balances in the Transaction of Business Rules.

On the other hand, the Anti-Corruption Bureau (ACB) and the Commission of Enquiry, which are powerful entities, have been rightly assigned to the Centre. Ultimately, the fact remains that the powers and responsibilities of both, the government and the LG, remain vast and have to be determined by the law as well as situations as they emerge and most important of all – the public interest. Understandably, the AAP government believes that it has been treated unfairly but actually it has been supported on what matters most through this judgment – administration of what affects the public the most.

The fact that transferred subjects would be under the elected representatives is amply borne out by this judgment and is a continuum of the earlier judgment of the apex court. Delhi being a special status Union Territory, the role of the LG remains prominent – and cannot be wished away. However, both the LG and the government, if they function collaboratively, are in a position to give the governance the city needs.

Shailaja Chandra is former chief secretary, Delhi

The views expressed are personal