Across the Aisle: Go back, Viceroy of Delhi

Democracy is government of the people, by the people and for the people, said Abraham Lincoln. That remains the simplest and most comprehensive definition of democracy. At the centre of the government are the people. Representative democracy is only a matter of convenience when the numbers are large.

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India is a federal state. Delhi is the National Capital of India. It is acknowledged that the government of Delhi has to be different from the governments of states; yet, if that government must be a democratic government, it must put the people at the centre of the government.

The Supreme Court, as the final interpreter and arbiter of the Constitution, said in State (NCT of Dehi) v Union of India: (2018) 8 SCC 501: “The exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status.” The Court quoted with approval Jaganmohan Reddy J who had said in Kesavananda Bharati that democratic form of government is part of the basic structure of the Constitution.

Constituent Power

The powers and functions of the Delhi government were finally settled by the exercise of the constituent power of Parliament. The Constitution of India was amended in 1991 and Article 239AA was inserted to provide “Special provisions with respect to Delhi”. The Statement of Objects and Reasons made it clear that “Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man.”

Article 239AA used words and phrases that had acquired a meaning in every democratic country. Among them were ‘direct election from territorial constituencies’, ‘the Legislative Assembly shall have the power to make laws… with respect to any of the matters enumerated in the State List or in the Concurrent List’ and, most importantly, ‘There shall be a Council of Ministers …with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions….’ The Government of the National Territory Act, 1991, was made under Article 239AA to give effect to the provisions contained in that Article.

The Dog and the Tail
In the last 20 years, there were instances when the tail (LG) tried to wag the dog (the council of ministers), but such attempts were put down with a firm hand. Attitudes changed after 2014. The BJP government in Delhi could not tolerate a non-BJP government in Delhi. In particular, the Prime Minister could not tolerate a Chief Minister sharing the political space in Delhi. Hence, a determined effort was made to resurrect the long-buried controversy of who exactly has the real power in the Delhi government.

The attempt was thwarted by the Supreme Court, in State (NCT of Delhi) v Union of India. On July 4, 2018, the Supreme Court declared that the “meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of the NCT of Delhi is bound by the aid and advice of the Council of Ministers”.

Mr Modi is a man of considerable ego (as I suspect all prime ministers are) and does not give up his pursuit of wrong goals. He bided his time and chose to strike when the country was focused on crucial elections in four states and one Union Territory. He could not touch Article 239AA because the NDA does not have a two-thirds majority in both Houses of Parliament; so, he chose the lesser option of amending the Government of the National Capital Territory Act, 1991. Mocking the Supreme Court, the Statement of Objects and Reasons said that the amendment Bill was brought forward “in order to give effect to the interpretation made by the Hon’ble Supreme Court”! In truth, the Bill is a clumsy attempt to overrule the judgement of the Supreme Court.

Patently Unconstitutional
The Bill amends the law by stipulating that the expression ‘Government’ shall mean the Lieutenant Governor. Thus, by definition, the tail is the dog and the dog is the tail! The Bill also provides that “before taking any executive action… to exercise powers of Government… the opinion of the Lieutenant Governor shall be obtained on all such matters as may be specified….” By legislative legerdemain, the Modi government has installed its Viceroy in Delhi!

Mr Arvind Kejriwal and his ministers have been reduced to footmen to fetch and carry for the Viceroy.
Mr Kejriwal should have known that this day was coming when, in another constitutional coup, Jammu & Kashmir was dismembered and reduced to two Union Territories. Yet, Mr Kejriwal supported that assault on democracy in the name of ‘nationalism’. Today, it is his day of reckoning and humiliation. Nevertheless, my sympathies are with him if he chooses to fight the Modi government.

Democracy in India is diminished every day. The world has taken note of the fact that India is only ‘partly free’. The goal of the BJP is to establish one-party rule, an over-sized and rubber-stamping Parliament, a compliant judiciary, an officially sponsored media, obedient corporates, and a subservient people who will be happy with material progress. That India will be no different from China. It is deja vu 1935, the Government of India Act, 1935, and ‘Go Back Simon’.