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THE BIG FIGHT : Who’s right, who’s wrong?

Posted on: January 10, 2016

It’s no secret that the Centre and the Delhi government are locked in an eyeball-to-eyeball confrontation. But as the issues pile up, the big question is: which of the two is legally on a weak wicket? Sonia Sarkar finds out.

January 2016: The Union home ministry describes as “illegal” a Delhi government probe into the Delhi & District Cricket Association (DDCA). Chief minister Arvind Kejriwal says that the probe will continue.

January 2016: Delhi home minister Satyendar Jain asks deputy secretaries and additional secretaries to report directly to him and not to home secretary S.N. Sahai, appointed by the Centre.
December 2015: The Aam Aadmi Party (AAP) government suspends two bureaucrats belonging to the Delhi, Andaman and Nicobar Islands Civil Service (Danics) cadre. The Union home ministry overturns the decision.

April 2015: The Delhi government appoints Surender Singh Yadav as head of its Anti-Corruption Branch (ACB). In June, Lieutenant Governor (LG) Najeeb Jung appoints the joint commissioner of the Delhi police, Mukesh Kumar Meena, as the ACB chief.

June 2015: The Delhi government replaces home secretary Dharam Pal with senior IAS officer Rajendra Kumar. The home ministry revokes the decision and later appoints Sahai.

*****

The last 11 months have witnessed a never-ending drama in Delhi starring chief minister Arvind Kejriwal and LG Najeeb Jung. One proposes, the other disposes.Who’s at fault? Under the law, it is Kejriwal.

He, however, believes that hurdles are deliberately being put in his way because the Bharatiya Janata Party (BJP) cannot accept AAP’s victory and the BJP’s defeat in Delhi. “Ever since we formed the government, the Centre has been determined to give us a hard time. We pass an order and they say your order is null and void,” Kejriwal recently told the press.

 

 

AAP believes that attempts are on to show Kejriwal – who has taken on Prime Minister Narendra Modi on different forums – as politically inexperienced. “The Centre wants to say that we don’t understand governance,” Kejriwal aide Ashutosh fumes.

The BJP scoffs at this. “Kejriwal is not interested in governing Delhi; he only wants to pick fights,” BJP leader Sanjay Kaul counters. “And, above all, he doesn’t understand that the chief minister has to work under the legal arrangement prescribed for Delhi.”

The arrangement, indeed, is peculiar. Once a Union Territory (UT), Delhi got a Legislative Assembly with the enactment of the National Capital Territory Act of 1991. Delhi, however, is not a full-fledged state. The 69th amendment to the Constitution states that the elected government in Delhi enjoys the powers and privileges offered to all other states in India barring subjects such as public order, police and land.

The land powers lie with the Delhi Development Authority (DDA), run by the Centre’s urban development ministry, and the police and law and order departments are with the Delhi police, which reports indirectly to the Centre.

The Delhi police commissioner doesn’t report to the elected chief minister, but to the LG, appointed by the Centre. For posting IAS officers, signatures are needed from the home ministry. Further, Parliament can legislate on any subject relating to Delhi’s governance under article 239AA(3)(b) of the Constitution. Under the law, the government in Delhi has to share powers with the “administrator”, the LG.

“Unlike the governor of any other state, the LG is the real power centre in Delhi,” holds Niranjan Sahoo, senior fellow, Observer Research Foundation and co-author of a recent paper, Statehood or Autonomy: Rethinking Governance in India’s Capital.

Kejriwal, he argues, has crossed the line in every case. “In all these cases – the suspension of Danics officers, the ACB chief’s appointment and replacing the home secretary – Kejriwal is exercising powers that are not his,” Sahoo states.

Under the law, only the LG has the right to appoint the ACB chief. The Delhi government replaced home secretary Dharam Pal with Rajendra Kumar (now the principal secretary) because the former had notified the appointment of Mukesh Kumar Meena as the ACB chief, which was done on Jung’s orders. The home ministry revoked the decision on Kumar and later appointed Sahai. The LG, under the law, has the right to appoint the home secretary in consultation with the Union home ministry.

Kejriwal, again, was wrong when he bypassed the LG’s office while appointing Arvind Ray as principal secretary (general administration). This decision requires the LG’s nod. The state government was also wrong in suspending two Danics bureaucrats because only the LG has the power to do so.

“Going by the rules, these appointments made by Kejriwal are all wrong. He is not authorised to execute these,” Sanjay Kumar, professor, Centre for the Study of Developing Societies (CSDS), a New Delhi-based research institute in social sciences. But these are matters that could have been solved amicably.

“The chief minister and the LG could have dissolved differences without taking issues to the media,” says a political expert in a Delhi think tank. “Now, it is a show of strength for the two.”

The Shakuntala Gamlin issue is a case in point. Last May, the LG proposed the name of the senior bureaucrat for the post of acting chief secretary. Kejriwal opposed the move, but the LG went ahead and appointed Gamlin – which he has the right to do.

Yet there is a growing belief that the Centre is thrusting its decisions on the state. Usually, such appointments are decided after informal consultations. “There is a lot of back and forth that happens,” the think tank member points out. In this instance, there was none.

That wasn’t the case in 2007, when then chief minister Sheila Dikshit told the home ministry that she wanted Rakesh Mehta as the chief secretary. The government – a Congress-led one, like the one in the state – complied. “Mehta superseded 11 seniors but Dikshit had her way,” a former bureaucrat says.

Negotiations and consultations, Dikshit stresses, are crucial in running a government. And while having the Congress at the Centre helped on many occasions, Dikshit points out she faced no major problems even during the National Democratic Alliance (NDA) regime.

She refers to the NDA time when construction for the Metro rail started and some colonies in east Delhi had to be relocated. “We negotiated for land with the urban development ministry and rehabilitated the people,” she says.

On the other hand, when her government wanted to authorise some illegal colonies, she couldn’t do so because the DDA, then under the Congress-led United Progressive Alliance, did not give its consent. “Some hurdles will always remain but one has to keep negotiating,” she says.

At the crux of the battle, perhaps, is Kejriwal’s demand for full statehood – which has been the chief minister’s slogan from day one.

“Since Kejriwal is the face of the government, he should have all powers,” an AAP leader says. “The people who gave us 67 seats in the 70-seat Assembly want us to have all the powers of Delhi.”

A BJP leader retorts: “Chief minister of Delhi is a cosmetic title.”

The title may be cosmetic, but the battle is purely political. And Kejriwal’s target, some analysts believe, is not Jung but Prime Minister Modi, whom Kejriwal recently called a “psychopath”.

“Modi should get the message that there is someone to take him on,” the AAP leader says, pointing to the fact that Kejriwal has trained his guns on Modi’s finance minister Arun Jaitley.

Last month, the Central Bureau of Investigation (CBI) raided the office of principal secretary Kumar. The CBI said it was related to corruption charges against Kumar. Kejriwal countered that the raid had to do with irregularities in the DDCA, which Jaitley once headed.

“Modi targeted our principal secretary, so we got his most powerful man,” the AAP leader says.

The DDCA fracas has been kicking up a storm. The state government’s decision to set up a body for a probe has been called “illegal” by the LG’s office. However, the Union ministry of youth affairs and sports had asked the Delhi government to look into the matter in July.

Political observers point out that strained Centre-Delhi ties are not new. Dikshit’s relationship with then LG Tejendra Khanna was often stormy.

A Congress leader refers to the case of a 42-acre plot in southwest Delhi. The home ministry and the LG decided to give only 10 acres of this to the Delhi government, but Dikshit wanted more and turned down the offer. “The land remains in dispute till date,” the Congress leader says.

Such tussles are common today. But the AAP camp believes the fight has been thrust on the party. It points out that Kejriwal had earlier offered an olive branch to Modi. He has also sought an appointment with the Prime Minister, but is still to hear from him.

“Kejriwal formally met Modi on two occasions – once to seek his ashirwad(blessings) after assuming office and then to tell him he was facing problems with Jung,” a senior AAP leader says. “We told him that to serve Delhi, we needed his help. But he said: ‘Yeh toh humne suna hai, maine toh socha tha aap kuchh naya idea leke aaoge (I have heard about these things. I thought you’d come with new ideas)’,” he says.

AAP leaders, he points out, get along well with other BJP leaders such as Sushma Swaraj and Rajnath Singh. Modi, he stresses, is the hurdle. “But people know that we want to work and the Centre is creating problems,” he adds.

Perhaps, as the Kejriwal government celebrates its first year in office next month, there will be a ceasefire. “The chief minister of Delhi has to understand his or her own limitations and the rights of the Centre,” Dikshit sums up. “It took me more than a year to understand the dynamics of Delhi.”


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