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Who rules Delhi?

Delhi throne

Khichdi – Risotto if you prefer the Italian version – is a traditional palliative for Delhi belly. But Delhi’s khichdi style political governance systems are guaranteed to give anybody the runs. So bad is the mess that it is difficult to find out who rules Delhi. The Delhi Government, a contender, appealed against orders of the Union Government to clarify its constitutional mandate.

Supreme Court clarifies the law

The Supreme Court, in its July 4, five judge bench, judgement, patiently re-explained the law, without venturing to drill down to the crux of the dispute between the Aam Admi Party (AAP) government and the BJP ruled Union government – who controls the public servants in the government of Delhi? The dispute closely resembles a Saas -Bahu quarrel – principally, who gets to jangle the house keys and run the house.

Judicial decisions unlikely to resolve political power stand-off

The AAP came to power by promising to the good but poor, people of Delhi, to set right the tyrannical, corrupt Delhi bureaucrats and other elites. The AAP found, to its dismay, that they had less real powers than the Municipal Commissioner of Mumbai. Being a glorified Municipal Commissioner was of no use in leveraging the AAP onto the national level and that too within months of coming to power. AAP chose the path of open, tactically public confrontation with the Union government in a David versus Goliath stand-off.

To be sure, the BJP run Union government’s intention were hardly kosher either. It tried to swat the AAP at every opportunity. The previous Lieutenant Governor (LG), Najeeb Jung – appointed by the Congress, called an end to his stressed innings in December 2016.

Will the Supreme Court verdict change things? India is peculiarly American in its belief that good laws and sound judgements can set things right. There is little evidence to support this belief. Laws, which are out of sync with reality and judgements which are legally correct but practically iffy are not the stuff that good governance is made of.

Expectations build reality. Delhi is often described as “closely resembling a State government”. Delhi is as much a state government as we are a “federal” country – another slipshod simplification used for the essentially unitary form of our polity albeit with some federal characteristics.

How it all began

Delhi government is a “special” child of the Indian National Congress, which was in power in the Delhi Metropolitan Council uninterruptedly from 1972 till 1990. In 1991 the INC decided to embellish their jagir with a totem of statehood- possibly to appease citizens with a magic bullet which would solve all their problems. In 1992 the 69th Amendment to the constitution – prescribed a special status for Delhi. It became a hybrid between a Union Territory, like Puducherry and a State government, like Goa.

But no matter how many new, white Toyota Innova’s Mr Kejriwal adds to his cavalcade, he will remain a Chief Minister in name only and Delhi’s Legislative Assembly a caricature of democracy. This is not because Mr Kejriwal or the legislators are wanting on merits. But the constitutional arrangements militate against them having a free hand in providing good governance.

Kejriwal

The proximate cause of the constitutional spat is that the Union government claims the Delhi government has no independent powers of managing their employees. It must do so only with the concurrence of the Union government. Municipalities face a similar constraint versus the State governments, which sit on their heads. The Supreme Court (SC) has not dealt explicitly with this critical issue. But reading between the lines, two implicit messages emerge.

SC judgement implies Delhi Government competent to legislate and execute on Public services

First, the SC has specifically stated that all matters in the State list, other than the three exempted subjects of Public order, Police and Land are within the legislative authority and hence also the executive authority of the Delhi government. State public services are one such subject at entry 41 of Schedule 7, List II of the State List of the constitution. A plain reading of the SC order indicates that this subject is within the mandate of the Delhi government.

But Delhi does not have its own cadre of IAS officers allocated to it or Provincial Service Officers appointed by it, unlike other states. It is staffed by IAS and DANICS (Delhi, Andaman and Nicobar Islands) officers, made available to it by the Union government, which is the cadre control authority.

Union government’s view on services too expansive

It is unclear where the Union government’s powers to manage these cadres end. Allocation of specific officers to Delhi, training, promotion and disciplinary action are powers intrinsic to cadre management. But must the Union government also approve their posting to or transfer from one position to another within the Delhi government? These are routine decisions which affect individual officers but do not impinge on cadre management.

LG only an “engaged watcher” on all matters except Public order, Police and Land

Second, the SC drew a useful distinction between the right of the LG to be informed of all decisions of the Delhi government and his specific power to reserve a matter for the orders of the President. It was careful to emphasise that the latter is to be used only in exceptional cases. This indicates that the Supreme Court veers towards a rational and harmonious sharing of personnel management powers between the Union and the Delhi government.

The sprawling Delhi bureaucracy prefers the Union government as “Mai-Bap”

A May 21, 2015 notification of the Union Home Ministry espoused the view that the Delhi government has no powers with respect to management of public services on the specious grounds that it has no public services or State Public Service Commission of their own.

The Union government’s unorthodox viewpoint draws support from the all-powerful IAS/DANICS cadre which fear loss of prime status, versus the uniformed services, if they are subjected to control of the Delhi government whilst the police remain directly managed by the Union government. The Delhi High Court will now rule on this sensitive issue.

Dharna

Delhi’s bloated administrative architecture wastes public money. It creates a clash of political egos and a surfeit of elected authorities all elbowing for space in just 700 square km of urban space. Delhi should revert to the 1956 arrangements – Union Territory with an Administrator overseeing the existing four civilian municipalities. But each must be headed by a directly elected Mayor. If the experiment works, India’s metros could finally join the world in participatory local governance.

Delhi babus – between a rock & a hard place

delhi strike

The breakdown of a working relationship between the Aam Aadmi Party (AAP) government of the National Capital Region and its officers is a seminal moment. On February 19, AAP legislators heckled, abused and allegedly assaulted Chief Secretary Anshu Prakash, the Delhi government’s topmost bureaucrat, at the residence of the Chief Minister (CM). Both CM Arvind Kejriwal and deputy chief minister Manish Sisodia were present.

The legislators allege that the chief secretary (CS) used intemperate language in the shouting match between them. Cross-first information reports have been lodged by the two rival parties with the police. Further investigations would reveal the facts.

Chief Secretary’s complaint is, primae facie, more credible

But the circumstantial evidence favours the chief secretary’s case. He was summoned to the CM’s house for discussions at around midnight. He found a group of 11 legislators and/or partymen — notably all male — assembled. He was made to sit on a sofa, sandwiched between two legislators, who subsequently assaulted him. The bone of contention, according to the CS, was that the legislators were outraged that TV advertisements on the completion of three years of the AAP government in Delhi were not approved in time. The CS avers the advertisements violate the Supreme Court guidelines for government advertisements. The AAP contends that holding up the advertisement, churlishly, is yet another instance of how the Central government uses the office of the lieutenant-governor (L-G) to shackle the state government.

The state government-level staff and officer unions have demonstrated and resorted to work-to-rule tactics against the criminal assault on a government servant while on duty — which attracts severe punishment under the Indian Penal Code. Two legislators — the alleged assailants — have been arrested. The Delhi government is in turmoil.

Partial devolution creates potential for conflict in operations 

Beyond the inter-personal behaviour issues, which may have sparked the conflict, a larger problem looms. Are institutional arrangements for governance in Delhi so fraught that they breed conflict between politicians and the hapless bureaucrats, who have to play to the tune of two masters?

Long-term observers would say that no, that is not true. After all, for over two and half decades since 1993 — when elections were first held for the Government of the National Capital Region — this is the first instance of violent conflict.

Delhi is just a “half-state government” — to twist Chetan Bhagat’s evocative phrase. The management of land, the police and the civil service remains with the Union government, represented by the L-G. If the same party is in power at the Centre and in the state government, any conflict can be resolved internally. This safety valve is taken away when different parties are in power.

In the past – guile, maturity and sagacity avoided a breakdown of governance

However, this is hardly the first time that different parties have been in power. In 1993-98 the BJP under Madan Lal Khurana ruled the state, while the Congress under Prime Minister P.V. Narasimha Rao ruled the Union government till 1996. In 1999-2004 the tables were reversed with Prime Minister Atal Behari Vajpayee of the BJP heading the National Democratic Alliance government at the Centre and chief minister Sheila Dikshit, of the Congress, at the state level. So why the open conflict this time?

One difference is, that on the previous occasions, when power was split in Delhi between two parties, both were national parties with mature leaders, well versed and socialised in working within the constitutional constraints of the separation of powers. Put simply, ever since Independence in 1947, a “Lutyens’ political set” has evolved, which often seems to have more in common with each other than their own party brethren from out of town. This is not unlike the Washington “Beltway” syndrome in the United States.

Its different now – the Lutyens consensus is shattered

Since 2014, this “Lutyens’ consensus” lies shattered. Prime Minister Narendra Modi shuns the airy, closeted politics of the Lutyens kind. He draws power directly from the masses. Arvind Kejriwal, chief minister of Delhi, is cast in a similar mould. He exults in being “common” — preferring sweaters to jackets even in Delhi’s winter, with a trademark muffler around his head to keep the wind at bay and is usually clad in sandals rather than shoes. His partymen emulate his casual dress style.

PM Modi and CM Kejriwal are zero-sum people

Mr Modi and Mr Kejriwal are both visceral men. Every election is a zero-sum game which must be won. Compromise is akin to defeat. This strategy has worked for both of them. Neither is likely to change.

Delhi has become the battleground for Goliath Modi to slug it out with David Kejriwal. When elephants fight, the bureaucratic grass is bound to get trampled. Anshu Prakash, the incumbent chief secretary, finds himself between a rock and a hard place. A mild-mannered old-school bureaucrat, he has none of the Machiavellian skills needed to become a trusted adviser, simultaneously, to two implacable political adversaries.

Poor devolution impacts all municipalities in India

Is this sorry state of governance an outlier? Unfortunately, no. Till 1993, Delhi was a Metropolitan Council working under the Union government. In the states, municipalities work under state governments. There is inevitably a potential for conflict, or at the very least neglect (as in Calcutta through the long years of communist rule in West Bengal), if different political parties are in power in the state government and the municipality. Delhi municipalities are currently ruled by the BJP. Their staff have demonstrated in favour of the Chief Secretary. They face symmetric harassment too.  Fuzzy separation of powers and functions and inadequate devolution of finance make local bodies dependent on state governments. This stops cities from becoming the fulcrum of participative democracy and keeps them from becoming vibrant growth centers.

Delhi is a tinder box for igniting urban class-conflict – restraint is advised

Delhi violence

More immediately, in Delhi, we need a truce. The AAP would relish being dismissed by the President of India on the charge of a breakdown in the constitutional machinery. Even as traditional Communist parties remain immersed in obscure, internal ideological battles, it is the AAP which has succeeded in igniting a genuine class war in Delhi, between the “haves” and the “have-nots”. Alas, there are too many of the latter. In this classic struggle, it is the establishment — the bureaucracy and the police — which bear the brunt of public frustration. A dangerous trend, which could be a tipping point, in urban governance.

Adapted from the author’s opinion piece in The Asian Age, February 24, 2018 http://www.asianage.com/opinion/columnists/240218/trouble-in-lutyens-land-babus-as-political-fodder.html

Supreme Court – between a rock & a hard place

supreme-court

Chief Justice of India Dipak Misra and the four judges who went public  Justices N. Chelameswar; Ranjan Gogoi; Madan B. Lokur and Joseph Kurian.  Photo courtesy Freepressjournal.in 

 

………will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgement perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.

The Oath of Affirmation for Supreme Court Justices 

The Supreme Court is a solemn place, as if in mute recognition, of the enormous faith reposed by 1.3 billion Indians in it’s 25 Justices to safeguard democracy.

But last week it was thrown into a tizzy, as four senior-most Justices of the Court, adopted Gandhiji’s tactics of “direct action” and went straight to the people of India with their anguish. So deep was their despair that they bared their anguish in public at a press conference and released a letter they had addressed to the CJI, adding that they had tried to settle the matter internally, by talking to the CJI, who apparently gave them short shrift. The cause of their worry is that the Chief Justice was using his traditional discretion in allocating cases amongst judges, to direct “politically sensitive” cases to judges who could be expected to rule in favour of the government.

Prising open the clannish Supreme Court of India

Indian Supreme Court is notoriously clannish. A “collegium” of the CJI and four senior-most judges, recommend new judges for appointment to the higher judiciary. The process is opaque. The President of India -ergo the government of the day – must formally approve the appointment. This provides an opportunity to the Government to hold up an appointment. But it cannot appoint a judge by itself. This system dates back two decades when the Supreme Court ruled, in 1993, that the power of appointing a judge was inherent to its ability to safeguard the basic structure of the Constitution – its key mandate.

Failed attempts to democratise the appointments process

The earlier UPA government and subsequently the Modi government sought to substitute the “collegium” with a Judicial Appointments Commission comprising the CJI and two judges of the Supreme Court, the Law Minister of India and two eminent persons appointed by a committee consisting of the CJI, the Prime Minister and the Leader of the opposition in the Lok Sabha. The act was approved in both houses of the Parliament and by a majority of state legislatures, as is required for a constitutional amendment and notified as the National Judicial Commissions Act 2014.  However, a five-member bench of the Supreme court struck down this amendment to the constitution on October 16, 2015, thereby restoring the “collegial” appointments” system.

Justice J.S Kehar who led the bench striking down the Act went on the become the Chief Justice of India under the Modi government, as observers hailed the victory of the rule of law, constitutionality and the preservation of the fundamental principle of separation of powers in a democracy. The Modi government silently licked its wounds. But recompense was not long in coming.

The “collegium” system is not fail-safe

CJI Kehar retired on in September 2017 and the senior most Justice Dipak Misra was sworn in as the CJI on August 28, 2017 per precedent in the “collegium” system. On Friday last, the earlier supporters of the collegial system of judicial appointment were on their feet again, this time praising the four judges, who had saved democracy and lauded them for their courage and resoluteness in coming out in the open against the CJI chosen by the very same collegial system.

This just doesn’t square. So, lets assume, for arguments sake, that the CJI was sending “sensitive” cases to judges, whom he felt would decide them in a particular manner. What were the possible options available to the four judges?

Hierarchy and faux seniority rules the Supreme Court, rather than genuine collegiality

Clearly the first was to have a chat with the CJI and apprise him that they took a dim view of what he was doing. The judges say they did do that. But when nothing changed they decided to go public with the amorphous charges.

It is pertinent to ask, why they never sought to rally around them, their brother judges. There are 25 Judges in the Supreme Court. Why could they not convince the 18, or so, other “uncommitted” judges, that something needed to be done? Surely, if the four judges had managed to get an additional 10 judges around to their point of view and had they put up a common viewpoint to the CJI, the outcomes could have been different.

Why did only one, of the five Justices, who, are slated on seniority, to become CJIs till 2024, speak up?

One of the four judges, who went public, is Justice Ranjan Gogoi, who is set to take over as CJI, once the present CJI retires, in October 2018. Why did they not similarly try and get the four other Justices who can become the CJI all the way till 2024 converted to their cause? Sharad Arvind Bobde – due to become CJI in November 2019; N.V. Ramana – due in April 2021; Uday Umesh Lalit – due in August 2022 and D.Y. Chandrachud – due to become CJI in November 2022. Was it because these judges did not feel similarly oppressed? If this be the case, it significantly takes away from the bite of the allegations voiced by the four judges.

Justice Gogoi- a profile of passionate courage or a lightning rod of deep dissent?

Justice Ranjan Gogoi has certainly put his neck on the line by disrupting the placid exterior of the Supreme Court. He has also certainly riled the government. Readers may recollect that Justice Khehar, the previous CJI had also riled the government, by heading the five-judge Justice bench which totalled the NJAC Act. He became CJI nevertheless. The Judiciary and the Bar have aligned view-points which are penetrable only by insiders.

It is unlikely, that, Justice Gogoi would have gone public without consulting with and getting the support of his brother judges and the Bar. Even Supreme Court Justices are human and are allowed a touch of self-preservation. More important they are expected to be rational, sans emotion, with their heads ruling their hearts.

Does this imply that dissatisfaction, with the administration of the Supreme Court, runs deep within the brotherhood? Also does this not show that the judiciary needs to change with the times?

Good governance is about narrowing discretion, even in the Judiciary

Specifying the procedure for case allocation narrowly, rather than leaving it to the discretion of the CJI, would be a good start. Cases can be randomly allocated, using a specially designed algorithm, since all the Supreme Court judges have the same status and come to the court after years of experience. Most importantly, if the “collegial” system is not fool proof in selecting judges true to their salt, why not try the collaborative approach of the NJAC. After all, Justice N. Chelameswar, one of the four judges, wrote the dissenting judgement supporting the NJAC. No one arm of the State has a monopoly on virtue.

 

Also available at TOI blogs January 18, 2018 https://blogs.timesofindia.indiatimes.com/opinion-india/the-supreme-court-between-a-rock-and-a-hard-place/

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