In 1803, the blind Mughal king, Shah Alam, sat in a balcony of the Red Fort in Delhi, awaiting the result of the battle between the Marathas and the British East India Company at Patparganj across the Yamuna. The British won, and Delhi came under their control. A British Resident was appointed, who effectively became the de facto ruler of the city. The king was made a pensioner, a prisoner in his own palace, with an annual income of Rs 11.5 lakhs a year. The clever citizens of Delhi, coined a saying that summed up this asymmetry of power: Az Dilli te Palam, Badshahat-e-Shah Alam: From Delhi to Palam, is the kingdom of Shah Alam.
Something of the same kind has happened to the elected government of Delhi. I am not a member of the Aam Aadmi Party (AAP), nor supportive of all its actions. But I do know that the chief minister, Arvind Kejriwal, won two democratic elections. In 2015, his party won an unprecedented 67 of the 70 seats in the state Assembly; in 2020 it won 62 of the 70 seats. But clearly, the BJP government at the Centre has not accepted this situation. Its consistent and hostile attempt has been to use an unelected lieutenant governor (L-G) appointed by it to usurp the powers of the elected government, or obstruct its governance agenda.
It is true that Delhi is not a full state. Considering that it is the capital of the Republic, the L-G appointed by the Centre, has control over three specific matters: land, public order and police. But in all other respects the democratically elected government is in charge. However, in May 2015, just months after the AAP had won a resounding majority in the February Assembly elections, the Union home ministry, issued a notification that put, in addition to land, public order and police, services under the control of the L-G. In other words, the elected chief minister lost control, by an executive order, of the transfer and postings of officers serving under him, and vested these in the L-G.
Understandably, the AAP government challenged this move. After eight long years, the matter finally came up before a five-judge Constitution Bench of the Supreme Court (SC), presided over by the Chief Justice of India. On May 11, 2023, the court passed a landmark judgement restoring the department of services to the elected Delhi government. While recognising that Delhi enjoys a special status, and is not a full state, the court stressed the principles of federalism as enshrined in the Constitution, and said that that the L-G’s purview is strictly limited to the three issues of land, public order and police. On other matters he must act on the advice of the council of ministers of the elected government. It further said that the L-G, even in a special state like Delhi, should play a cooperative and not an adversarial role, allowing for the implementation of the legitimate governance agenda of the government which the people had voted to power.
The democratic choice of the people of Delhi is not an unimportant matter. In 1803, when the British Resident usurped the powers to run Delhi, the population of the city was around one lakh; in 1947, it was around seven lakhs; in 2023, the population of the Delhi metro area is estimated to be in the vicinity of 3.3 crores or 33 million! This is larger than most medium-sized countries in the world. In 2020, the number of eligible voters was 1.46 crores (14.6 million), out of which 62.2 per cent cast their vote. In percentage terms this was 2.2 per cent higher than the voter turn-out in the 2019 general elections. Such a large number of citizens who voted in the Delhi Assembly elections, want the government they electedto fulfil its promises. But a government, that has no control over its own officers, or has the LG ranged against it, is seriously handicapped in doing so.
The Central government’s decision to overrule the majesty of the Constitution Bench judgement of the SC through an ordinance is a blatantly undemocratic move, and a direct contempt of the Constitution Bench of the SC. It is becoming more than apparent that the BJP is acrimoniously unreconciled to losing electoral battles, and is willing to tinker with even the Constitution and the SC to ensure its political primacy. There are several unsavory precedents in the past, where in states that it has lost elections, it has cobbled together a government which, prima facie, appears to be both unethical and a subversion of the mandate of the people. The use of BJP-appointed governors to facilitate this role has become rampant. The SC itself has, most recently in the political developments in Maharashtra, commented adversely on the role of the governor. Bills of non-BJP elected governments are held up indefinitely by governors whose partisanship is transparent. States such as Tamil Nadu have been constrained to pass a resolution in the Assembly against the governor inordinately delaying assent to Bills. In fact, the whole argument, much touted by the BJP, of a ‘double engine sarkar’, is suspect if its real intention is to be supportive of a state government only if it elects a BJP government.
The BJP and AAP may be political opponents, but the way to settle scores is the ballot box, not an arbitrary ordinance. Such a move insults the democratic choice of the people of Delhi, impacts the federal structure of our polity, ignores the considered opinion of the SC, and is reminiscent of the misuse of powers by governors during Congress rule in the 1970s and 80s, which the BJP itself used to oppose.
All Opposition parties, in their own self-interest, must come together to oppose this ordinance when it comes up for ratification in Parliament. Otherwise, the only hope, as always, will be with the SC, to protect the Constitution, in letter and spirit.