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The apex court verdict paves the way for an aggressive political slugfest between the AAP and the BJP in the run-up to the 2019 polls; the Congress will now need to bite the Kejriwal bullet

~By Puneet Nicholas Yadav

The twain of political grand­standing and judicial verdicts seldom meets a common ground. The Supreme Court’s verdict in the case regarding the separation of powers of the Lieutenant Go­vernor of Delhi from those of its government and the euphoria it triggered within the Arvind Kejriwal-led Aam Aadmi Party is a reminder of this reality.

On July 4, the Supreme Court’s constitution bench headed by Chief Justice Dipak Misra finally pronounced its long-reserved verdict in the “power tussle” case, stating unambiguously that Delhi’s Lieutenant Governor (currently Anil Baijal) cannot be an “obstructionist” and must act on “the aid and advice” of the council of ministers of the National Capital Territory of Delhi. The verdict spelt out the role of the L-G as being one of an “administrator” sans any decision making powers and expressly barred him from “mechanically” referring every decision taken by the Delhi government to the president.

The verdict was promptly hailed by Kejriwal and his aides and supporters as well as several non-BJP parties as a “victory for democracy”.

But then, the devil lies in the details of the present judgment and its interpretation. Kejriwal and his deputy chief minister, Manish Sisodia, only had to wait for a few hours to find this out.

Predictably ecstatic over the verdict, Sisodia issued an order withdrawing all powers of transfer and posting of IAS officers and other employees from the L-G, the chief secretary and heads of departments. This was the first file moved by Sisodia, who is also Delhi’s minister for services (the bureaucratic cadre), after the judgment. Sisodia thought that the SC verdict gave him these powers. Unfortunately for him, the Delhi bureaucracy, which for weeks has been on a non-cooperation protest against Kejriwal’s council of ministers in response to the alleged assault of chief secretary Anshu Prakash by AAP legislators, refused to comply with Sisodia’s order, reportedly dubbing it as “legally incorrect”. Power to effect transfers and postings of Delhi’s bureaucratic cadre, currently with the L-G owing to a notification passed by the centre in 2015, has been a bone of contention with Kejriwal for the past three years.

The jolt forced Kejriwal and AAP members to return to the text and interpretation of the verdict. A day after the judgment, Kejriwal declared that he has sought time from L-G Anil Baijal “to seek his support and cooperation in the implementation of the order”.

AAP sources told India Legal that Kejriwal’s move was essentially aimed at telling Baijal to “fall in line”.

With general elections due within a year, Kejriwal wants to ensure AAP’s victory in Delhi’s seven Lok Sabha seats. Crucial to this design is Kejriwal’s plan of offering doorstep delivery of rations and other services, installation of CCTVs across the national capital and implementing several other poll promises he made to the Delhi electorate.

AAP leaders feel that the right publicity of the SC verdict will help build a belief that any poll promises made by AAP that remained unfulfilled were because of the three years of hostility it faced from the L-G (first Najeeb Jung and now Baijal), who they maintain were acting as per the Modi-led centre’s whims. AAP’s social media managers are already building the argument that there should be a move to initiate prosecution of Baijal on grounds of illegally stalling welfare works of an elected government. This is unlikely to actually happen. But, any hurdles created by Baijal in Kejriwal’s governance will meet wild protests by AAP cadres and calls for his resignation—all aimed at building up the political narrative for the 2019 polls, of which a running theme could be the BJP’s lack of faith in federalism.

The BJP is, however, not going to let Kejriwal sprint away with a sense of vindication. Arun Jaitley, currently a Union minister without portfolio but one who remains crucial to Modi’s political spin-doctoring, has spelt out how the BJP views the verdict—which in the saffron party’s scheme means this is not Jaitley’s interpretation of the order but is the absolute truth.

Jaitley has said: “In the larger interest of democracy and federal politics, the L-G should accept the exercise of power by the State. But, if it has good and cogent reasons supported by material to disagree, he can record the same in writing and refer the same to the president (i.e. the central government), which will resolve the difference of opinion between the state government and the lieutenant governor. The decision of the central government will be binding both on the lieutenant governor and the elected state government.”

Further, he claims: “There are several issues which had directly not been commented upon but by implication there is some indication of those issues… There are two obvious indications. Firstly, if Delhi has no police powers, it cannot set up an investigative agency to investigate crimes. Secondly, the SC has held categorically that Delhi cannot put itself at par with other states and, therefore, any presumption that the administration of the UT cadre of services has been decided in favour of the Delhi government would be wholly erroneous.”

Jaitley’s interpretation about the Delhi government’s power—rather the lack of it—over administration of the bureaucratic cadres is likely to be cited by Baijal when Kejriwal discusses the issue of transfers and posting of babus with him. Other contentions made by Jaitley are also likely to be extensively used by Baijal for stalling decisions of the AAP regime.

A less talked about, albeit hard to ignore, fallout of the verdict is the unenviable position it puts the Congress party in. The Congress, under Sheila Dikshit, ruled Delhi for 15 years before the AAP stormed to power. In those 15 years, Dikshit often red-flagged the issue of the Delhi chief minister being no more than a glorified mayor as all crucial powers for governance rested with the L-G and the centre. However, it was Kejriwal and not Dikshit or her Congress party that challenged this dichotomy in the Supreme Court. The SC verdict has robbed the Congress, now relegated to the lowest spot in Delhi’s electoral matrix, of the chance to claim that her government couldn’t perform because of an obstructionist L-G.

The verdict should force the Cong­ress to rethink its aversion towards Kejriwal and the inclusion of his party in the quest for a united Opposition to take on the Modi-Shah duo in the 2019 Lok Sabha polls. Congress party’s big brother attitude towards regional parties, an affliction it now shares with the BJP, would further push AAP towards the Third Front that Bengal chief minister Mamata Banerjee is trying to cobble together with a clear agenda of dwarfing the Grand Old Party in national politics.

The SC verdict, seen through the prism of electoral brinkmanship, may not simplify governance in Delhi but it sure is expected to make politics in the coming days far more exciting, and polarising, than it already is.

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