The Supreme Court had cited “Constitutional Morality” in its clarification on the separation of powers between the Delhi government and LG

The Supreme Court is expected to pronounce its verdict later this week on a bunch of petitions that had sought a clarification on its July 2018 judgment which had spelt out the powers of the elected government of Delhi and the Lieutenant Governor of the national capital.

Justice AK Sikri, whose bench had reserved its verdict on the petitions on November 1 last year, had, on February 7, said in open court that the clarification sought on the July 2018 judgment delivered by a five-judge constitution bench headed by then Chief Justice Dipak Misra, would be pronounced in the coming week.

Justice Sikri’s statement came after senior advocate Indira Jaising informed the court that despite the July 2018 verdict ambiguities in dealing with administrative matters in the national capital remained. Justice Sikri had said that the matter lay with his brother judge, Justice Ashok Bhushan, and that the judgment would be pronounced soon.

The bench of Justices Sikri and Bhushan had, on November 1, concluded hearing the petitions challenging the notifications issued by the Delhi Government following the July 2018 verdict which dealt with the elected regime’s control over services, powers to set up a Commission of Inquiry and its control over the anti-corruption bureau.

Over three months have passed in the agonizing wait for the bench to author a judgment that only seeks a clarification on an otherwise lucid and elaborate verdict delivered by a five-judge bench. While Delhiites continue to suffer from the administrative deadlock on an issue as critical as the government’s control over the bureaucracy and on providing essential services, like the promised doorstep delivery of services, to its electorate, elected representatives too remain in suspense on whether, despite being voted to power by the people, they actually have any role in matters of governing the city-state.

Meanwhile, the turf battle between the Centre, its handpicked ‘regent’ of the national capital, the Lieutenant Governor, and the Arvind Kejriwal-led Aam Aadmi Party government has continued, waxing and waning with every politically sensitive decision taken by each of these players.

The twain of political grandstanding and judicial verdicts seldom meets a common ground. The Supreme Court’s July 4, 2018 verdict in the case regarding the separation of powers of the Lieutenant Governor from those of the Delhi government and the euphoria it triggered within the AAP was a reminder of this reality.

WHAT THE CONSTITUTION BENCH HAD RULED

On July 4, the Supreme Court’s constitution bench headed by then Chief Justice Dipak Misra had pronounced its long reserved verdict in the “power tussle” case, stating unambiguously that Delhi’s Lieutenant Governor (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 had spelt out the role of the LG 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.

But then, as is the case with all judicial pronouncements, the devil lay in the details of the 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 and possibly – albeit wrongly – interpreting it as an endorsement by the top court of his government’s supremacy in taking Executive decisions, Sisodia issued an order withdrawing all powers of transfer and posting of IAS officers and other employees from the LG, 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 at the time had 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 LG owing to a notification passed by the centre in 2015, has been a bone of contention with Kejriwal for the past three years. It is primarily on this point that the Supreme Court has to clarify now.

The jolt had forced Kejriwal and AAP members to return to the text and interpretation of the SC verdict.

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 three years ago.

Arun Jaitley, a Union minister without portfolio but one who remains crucial to Prime Minister Narendra Modi’s political spin doctoring, had spelt out how the BJP viewed the July 2018 verdict – which in the saffron party’s scheme means this is not Jaitley’s interpretation of the order but is the absolute truth.

Jaitley had said: “In the larger interest of democracy and federal politics, the LG 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. Thus hereto the opinion of the Centre is overriding.”

Further, he added: “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 investigative agency to investigate crimes as had been done in the past. Secondly, the SC has held categorically that Delhi cannot compare 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.”

Despite the period it took in the making and its voluminous observations, the July 2018 verdict, seen through the prism of electoral brinkmanship, did not simplify governance in Delhi. Let’s hope the eagerly awaited clarification from Justices Sikri and Bhushan does.

—India Legal Bureau