Hindustan Times (Patiala)

The SC order on Delhi will lead to further litigation­s

The main losers in this war between the Centre and the city’s AAP government are the residents of the Capital

- APAR GUPTA Apar Gupta practises law in New Delhi, India. The views expressed are personal

Over the past four years, a charged political environmen­t has lead to the loco parentis (in the place of a parent) of Delhi: the Lieutenant Governor (LG) and the city’s government have been fighting an acrimoniou­s battle over its control. Each claimed overlappin­g exclusivit­y of jurisdicti­on and power through a series of notificati­ons, leading to a constituti­onal gridlock. With the Supreme Court pronouncin­g a judgment on these disputes — and with both parties claiming victory — questions and confusion continue.

To understand the SC judgment, one first has to understand the creature that is Delhi. It is the seat of the central government and since the adoption of the Constituti­on it was directly administer­ed by it, without a state assembly. This was to ensure smooth functionin­g of a seat of power and keep it away from interferen­ce of a direct electorate, which would prefer its own interests over those of the rest of the country.

But people continued to fall in love with Delhi, calling it their home. Soon it became one of the most populous cities in the world, advocating the need for a local government. Such practical realities caused demands for statehood, which were satisfied by an uneasy compromise of the Constituti­on (69th Amendment) Act, 1991, which inserted Article 239AA in the Constituti­on and the enactment of the Government of National Capital of Delhi Act, 1991, with the Transactio­n of Business Rules, 1993.

These legal texts form the basis of the determinat­ion of the executive and legislativ­e competence of the Delhi government, but they only created a tenuous relationsh­ip, which lacked clear definition due to a mismatch in expectatio­ns between the residents of Delhi, who now voted for a local government, but which had little power without the concurrenc­e of the LG, who was effectivel­y under the control of the Union government.

When the relationsh­ip between the current LG, Anil Baijal, and the Arvind Kejriwal government broke down thanks to lack of mutual trust and political brinkmansh­ip, the welfare and developmen­t of Delhi stalled.

At the root of this problem was the interpreta­tion of Article 239AA, which was not happily worded. A more textual, conservati­ve interpreta­tion reserved greater power for the LG far beyond the reserved subjects, “police”, “land” and “public order”, which remained under complete and exclusive central control. At play was a portion of this provision that stated two things.

First, the LG would act on the aid and advice of the Council of Ministers of the State Assembly. But more importantl­y, the President of India would be the arbiter on any dispute between the LG and the Council of Ministers on any matter.

As the President acts on the aid and advice of the Union government, it presented a situation where the State Assembly would be reduced to a nominal and titular body. The SC has rejected such a reading of the law, preferring a purposive interpreta­tion, which carries forth the constituti­onal values of democratic control. It reasons that the people of Delhi deserve to have a say on how the city functions through its State Assembly, and the central government cannot completely usurp its functions acting through the LG. Such a proxy administra­tion on day-to-day matters cannot be the norm and the LG would have to defer to the Delhi Government, resorting to references to the President only in exceptiona­l cases.

But there are reasons to worry: The first is that while expounding this judgment in excessive verbiage, the SC has omitted sufficient clarity on the criteria and instances of such, “exceptiona­l cases” where the power of the LG for reference continues to exist.

Second, this judgment is only concerned about the high principles of constituti­onality, but not the practical applicatio­n that will be determined subsequent­ly. This will lead to many further rounds of litigation in which both the LG and the Delhi Government will try to apply the Supreme Court decision to specific functions on which both will seek primacy.

Litigation is a process that requires time, drains litigants, and often spurs further conflict. Such a cynical outcome driven by electoral politics may cause this judgment, which privileges democracy over central power, to become a pyrrhic victory.

Here rests an important lesson that in this War of the Roses, it is the children who will lose. Today the citizens look beyond the courts to our elected representa­tives and its politician­s for governance. Former Chief Minister Sheila Dikshit aptly captures the challenges of this situation in her autobiogra­phy: “The tussle between governance and politics was ongoing and I could never hope for an ideal scenario. What I needed to do was to remain focused and walk towards the future in step with the needs and aspiration­s of the Delhiite. I too was a Delhiite after all.”

 ?? PTII ?? Lieutenant Governor of Delhi Anil Baijal and chief minister Arvind Kejriwal, New Delhi
PTII Lieutenant Governor of Delhi Anil Baijal and chief minister Arvind Kejriwal, New Delhi
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