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Yes, democracy is back in Delhi

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Rajeev Dhavan
Rajeev DhavanJul 09, 2018 | 10:59

Yes, democracy is back in Delhi

It is only in President’s Rule that happens because there is no elected government.

The Supreme Court did not just restore Delhi’s democracy but the principles underlying the Constitution’s democratic texts. The AAP government won 67 out of 70 Assembly seats. Within the constitution, it had power to fulfil the peoples’ mandate.

The only reason why that didn’t happen was that the BJP government at the Union used its Lt Governors (LG) Jung and Baijal to stymie the operation of the AAP government. The use of its Delhi LGs is part of a pattern as evident from the use of Governors in Arunachal, Uttarakhand, Goa, Meghalaya and Tripura.

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The Supreme Court’s judgment rests on the principle of a "purposive" interpretation of the Constitution to achieve its objectives and purposes. The Constitution rests on five principles: democracy, liberties, secularism, federalism and the rule of law (in its expansive sense).

In the Delhi case, democracy and federalism were put in peril by the Union government’s LGs.

delhi_inside_070918105302.jpg
No government can survive if the Civil Service that serves it does not listen to it

India’s quest for democracy, goes back to the freedom movement which demanded not just “representative” but also “responsible” government. Representative governance by itself does not make the government responsible to the people through the Assembly.

Eventually, responsible government was achieved for Indians by the Constitution. The challenge for Delhi as the capital city was to combine democracy and the national interest. In 1951 and 1956 it was centrally administered.

In 1966 when representative elements came in, the Union controlled through the Chief Commissioner (later LG).

The year 1992 brought a sea change to Delhi’s governance. Delhi now derived its democracy not from a parliamentary statute but the Constitution itself. It introduced three important principles of democracy

(i) elected representatives

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(ii) the Cabinet being collectively “responsible” to the Assembly representing the people.

(iii) The LG was to act on the “aid and advice” of the Cabinet. The term ‘aid and advice’ in India’s Constitution means it is binding on the President, Governor and the LG. The Supreme Court has ensured that no democratically unrepresentative LG could insist that his ‘concurrence’ was required for the elected government’s decisions. He had a right to be informed – as do President’s and Governors, but he could not peremtorily insist on covertly sending files back, disagreeing and imposing his will. Delhi, though not a state, has a democracy like other States.

Since Delhi is the capital city, the nation’s interest had to be safeguarded. This was done three ways.

(i) The Constitution placed three areas outside the Delhi’s government’s domain: public order, police and land. Exclusions without disturbing democracy is a part of Indian federalism

(ii) Parliament’s democratic law could restrict Delhi’s jurisdiction.

Power play

But until there is a law no power inheres to the LG simply because of Parliament potential power to enact further exceptions

(iii) The LG could objectively refer a "matter" to the Union. During the interregnum his decisions will prevail until the Union decides. But the LG only has the power to refer. He has no extra power till the reference is made. No reference was made by Jung and Baijal. Two references were made earlier. So in the absence of a Reference no extra power inures in the LG. The Court cautioned he should resolve matters by discussion and as part of cooperative federalism.

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A "Reference" would be in the public domain. I do not entirely agree with the SC. It should have restricted this "Reference" power to matters outside the Delhi government’s remit namely public order, police and land or matters specifically excluded by Parliament.

But the Court has left it to the good sense of the LG by enlightened procedure consistent with cooperative federalism. Trigger-happy LGs are past tense. The question of services is another aspect of federalism.

The All India Services include IAS; and in Delhi’s case (DANICS) for Union Territories. When IAS or centrally appointed officers operate in the States they cannot turn around to State Government that because they are appointed by the Union they are not answerable to elected governments. This would collapse democratic federalism. The LG says they are "his" Civil servants. This has undermined Delhi’s democracy. If the SC’s judgment on democracy and federalism is followed, this issue would be easily resolved.

"Civil" service

But the Delhi High Court’s ruling of August 4, 2016, specifically upheld the Union’s notifications of May 21, 2015, that the LG shall discharge the Union’s “functions... in respect of Services.”

BJP politicians say that this decision of the Delhi High Court has still to be specifically overruled. Technically true. But on first principles, no government can survive if the Civil Service that serves it does not listen to it. This principle is fundamental to democracy.

It is only in President’s Rule that happens because there is no elected government. What is the solution? That Union’s employees come under its control but this does not undermine democratic federalism because Union appointed civil services operate in every state as well as Delhi. The answer is in a distinction between "appointment" and "operational control".

As the Constitution puts it “the recruitment conditions of services” of IAS officers shall lie with the Union as will tenure, dismissal or reduction in rank (Article 309-11) but "operational" control, including transfer and suspension, must be with elected governments, whether of any state or Delhi. On operational questions, Delhi’s Civil servants must respond the elected government’s operations. This can be resolved now, unless the BJP at the Union defies the principles underlying the judgment.

(Courtesy of Mail Today)

Last updated: July 10, 2018 | 14:11
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