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Delhi in disarray

Instead of getting caught in a battle to appoint or transfer officers, Kejriwal’s government should focus on providing services to the citizens and improving the city’s infrastructure

Right through May and early June, the confrontation between Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Najeeb Jung held centrestage. Editorials, prime-time TV discussions, even dinner-table disagreements revolved around who was right or wrong. TV anchors, panning across English and Hindi channels, editors and opinionmakers, were of the unanimous view that the Central government must not crush the legitimate authority of an elected Chief Minister.

IAS officers themselves, including a former Cabinet Secretary, have questioned the circumscription of a Chief Minister’s authority, terming it undemocratic and ridiculous. Constitutional lawyers like Rajeev Dhawan and Indira Jaising, have, while interpreting the plethora of legal provisions governing Delhi, supported this view. A former Supreme Court judge, Markanday Katju (although equally famous for labelling 90 per cent Indians as idiots), is clearly on Kejriwal’s side. The common thread that runs through the majority thinking is that, in a democracy, the Chief Minister and the political executive must be allowed to function without hindrance. Even unconventional methods must be indulged and the sooner the Central government, through the Ministry of Home Affairs (MHA), understands this, the better for governance.

Even more than the intelligentsia, it is the “masses”, Kejriwal’s core support base comprising lakhs of unsanctioned colony dwellers, together with those living in urban villages and slums—thousands of guards, drivers, shopkeepers, electricians, carpenters, plumbers and domestic workers—who have remained faithful to their Robin Hood Chief Minister. “Usko kaam nahin karne de rahen hain (they are not letting him work),” is the common lament one hears from his core constituency. The Kejriwal ‘Jai Ho’ advertisement echoes the same sentiment. Serious allegations of forgery and wife-beating raised against two law ministers of the AAP government, past and present, have not led to public remonstrance—a sign of how indulgent his support base continues to be. Alongside, there is a strong conviction that day-to-day corruption has indeed reduced and the CM is personally dead honest—more than can be said about those who have ruled Delhi in the past; this despite the promised Jan Lokpal Bill having disappeared from public discourse.

In a small minority stand people like me who, while not grudging AAP’s sweeping victory, cannot supplant what should be with what actually subsists in the law and in practice for 23 long years. Constitutional or unconstitutional, arbitrary or rational, what has been approved by the competent authority has perforce to prevail, until it is either upheld, modified or set aside by Parliament or the courts. “Not all the waters in the rough sea,” to quote Shakespeare, “can wash the balm off the anointed king.” In Delhi, fortunately or unfortunately, Delhi’s king is not the CM but the Central government operating through its constitutional representative, the Lieutenant Governor. The entire population of Delhi can decry the Constitution, the NCT Act and the Transaction of Business (ToB) Rules for being undemocratic, but until those are altered, officers are not free to interpret or modify, any rule, howsoever absurd it might look or sound.

The fact that the LG can intercede, give interim directions to the government and, in case of difference of opinion, refer the matter to the President, is cast in stone. Everyone knows that the President means the central Council of Ministers and, in this case, it means the Union Home Minister. The notifications giving the LG final authority over postings of officers, control over anti-corruption bureau and independence in deciding police matters are all within the Centre’s constitutional authority and the Home Ministry will inevitably have the final say, until, and only if, its authority is struck down by courts or amended by law. Until then the ToB Rules and appurtenant notifications issued by the Home Ministry, right or wrong, will also prevail.

Constitutional or unconstitutional, arbitrary or rational, what has been approved by the competent authority has perforce to prevail, until it is either upheld, modified or set aside by Parliament or the courts

And it is not as though Delhi is an island by itself. Chandigarh is the capital of both Punjab and Haryana and the Punjab Governor exercises authority over all matters, including land, police and officers serving the Union Territory. Neither Punjab nor Haryana chief ministers have any say. In Hyderabad, now the shared capital of Andhra Pradesh and the new state of Telangana, the Reorganisation Act 2014 entrusts the Governor with special responsibility for the security of life, liberty and property of those residing in the city.

In Delhi, the first point of conflict was on a matter which could have been finished with a phone call. The appointment of an officiating Chief Secretary for just six working days, when the regular incumbent went on a short leave abroad, was a small matter. Was it necessary to have foisted the Chief Minister with Shakuntala Gamlin, someone Kejriwal had expressed reservations about, question his supporters? Why should her complaint to the LG about being asked to offer to step aside be given overriding consideration by the LG, compared to the wishes of an elected Chief Minister, they ask. And, could the LG not have tried to talk things over with the Chief Minister before inflicting Gamlin on the government? Probably, he could, even should have done so, but for reasons we do not know, chose not to. Disingenuous, perhaps, but certainly not illegal.

In retaliation, Gamlin’s name was sullied in public (before a gathering of autorickshaw drivers), making grave assertions against her integrity which had not even been inquired into. While the commotion over the appointment was seen as a sign of highhandedness, a bigger occurrence has stayed under wraps. Kejriwal’s choice of KK Sharma as his regular Chief Secretary was agreed to by the MHA and the officer was prematurely transferred to Delhi from Goa (where his innings as Chief Secretary had only just begun), to accommodate the CM’s wish. The fact that Sharma continues to be the government’s Chief Secretary is never mentioned, whereas the ruckus over being “denied the Chief Secretary of his choice” for six days continues to be cited even today. And, the public has not understood the difference.

Given the climate of suspicion and mistrust, none of the present set of IAS officers is likely to push new proposals with zest. Their eyes are fixed on the first opportunity to escape to the quietude of other states and UTs

The next big row hinged on routing of posting and transfer files of high-ranking IAS officers. Anindo Majumdar and Dharmpal—functioning at the senior levels of Additional Secretary and Joint Secretary, respectively—became pariahs for the AAP government immediately after they issued orders as directed by the LG. To be fair, the Chief Minister was justified in expecting that he would be kept informed. But the officers consciously chose to first issue the orders as the Central government had amply clarified that the LG’s orders were final on service and police matters. In Delhi, the LG (unlike Governors of states) also writes his assessment of the officer after the CM and has the last word. The cadre authority, unlike in the states, is headed by the Union Home Secretary and officers know this only too well. This position prevails only in the UTs but the AAP government has not understood it.

Early days of bonhomie between Arvind Kejriwal (left) and Rajnath Singh (right)

When the two officers issued the LG’s written orders (remember those orders had finality until assailed by a superior authority), Majumdar, then the Principal Secretary, Services, found himself locked outside his room to be bundled off to a posting usually reserved for the incompetent or inconvenient. The second officer, Dharmpal, who until then was seen as a favourite, was divested of his appointment as Home Secretary and, like his senior colleague, Majumdar, was also banished. The LG, however, stayed Dharmpal’s transfer, leading to a piquant situation when a posse of policemen now protects Delhi’s Home Secretary within the very secretariat where the CM reigns. Files relating to the Home Department continue to go to the LG directly, as always. The position of the elected Chief Minister appears to have been reduced to that of having to endure an unwanted tenant who refuses to vacate. In this drama, while most onlookers outside the government are on the CM’s side, no one is aware that the appointment of the Home Secretary of the Delhi Government does require the approval of the MHA because police and public order are reserved subjects under the Constitution. It may sound unfair, even foolish, but it cannot be altered by anyone except the authority that issued the order, not even by the LG. Only the MHA can change it. And no such thing has happened.

The Anti-Corruption Bureau (ACB) has been yet another cause for irritation, something that has since blown up into such a big fight that it has landed in the High Court at the behest of Delhi’s elected government. This has never happened before. Here too, Kejriwal has people’s sympathy—“How can an elected CM, who made anti-corruption an election plank, be foisted with an unwanted police officer to boss the government’s hand-picked officer?” they ask. Fair or unfair, the ACB is a police station; the investigations are under the Prevention of Corruption Act and the exercise of powers to investigate a crime involving corruption, arrest and filing of charges emanates from the authority vested by the Act and the CrPC. The government has no role, it being a police matter. The LG’s direction to appoint an officer to head the bureau, howsoever irksome, cannot be assailed unless the MHA overrules it. He seems to be receiving MHA support, which, in fact, unambiguously excluded Central government servants from the ACB’s jurisdiction. That matter too is before the High Court.

Much as people feel that the AAP government’s freedom is fettered, will such stories sustain their sympathy much longer? As potholes on flyovers and major roads maintained not just by the municipal bodies but Delhi’s PWD too, get deeper; as new DTC buses do not arrive as expected; as auto-rickshaws refuse to ply by the meter (despite the recent TV advertisement giving kudos to Kejriwal for checking the menace); signs of irritability are beginning to show.

The recent AAP budget has no doubt made some welcome allocations for the health and education sectors, besides more buses and better last-mile connectivity. But, it is unclear whether officers will implement all these promises unless they are assured of freedom and a supportive environment. Recruiting 20,000 teachers in the next nine months is one of the most welcome promises that the AAP budget made. But, the agency entrusted with the responsibility of recruitment would need to conduct examinations, interviews, make reservations for SCs, OBCs, and do it with a swiftness hitherto unseen. In the past, teachers’ recruitment has provided fertile ground for complaints and counter-complaints. Forged certificates are no longer an exception. It is unclear whether the pitfalls have been anticipated while making the announcements. Suffice it to say, officers will only stick their necks out to devise solutions if they are sure of being backed all the way.

Implementation of complex infrastructure projects need continuity of key officers and freedom for them to function. The Delhi Jal Board has already seen three CEOs in 18 months—two removed for reasons unknown. The renovation of some of the oldest water works are being supported by JICA and ADB. Public-Private Partnership (PPP) projects are also underway and because their evaluation will provide lessons on the cost-effectiveness of different models, speed is essential. If all these highly challenging projects, involving international and private sector players, are to make headway, officers need to be surefooted about getting government backing when they take strong decisions. Complaints are always a sequel to decisionmaking, but peremptory transfers demoralise not just those who get moved, but also breed negativism throughout the organisation. Fear breeds suspicion and that is the worst enemy of progress.

Currently, DTC owns around 5,000 buses whereas London, with a third of Delhi’s population, runs 10,000 buses. The AAP budget has promised 10,000 more buses. For the last few months, a decision as to whether to buy the buses outright or to make the supplier responsible for operation and maintenance has not been taken. Suppliers are adept at playing ducks and drakes, making promises only to break them. Unless the government clinches the purchase policy, all talk about encouraging public transport by providing new buses might just stay there. Issues like parking (DDA will possibly suggest Narela as an option) will lead to hundreds of kilometres of dead mileage and avoidable wear and tear. One wonders how far all this has been factored into the announcements.

Let us come to power. Until 2012, the issues of theft, transmission losses and growth in power demand in Delhi were almost history. The sale of stabilisers, inverters and diesel generators had fallen. There was agreement that investment in transformers, towers, cables and distribution lines was unavoidable if load fluctuations and sudden shocks have to be withstood. That is because Delhi buys power from 30 suppliers around the country. Additional investment, spread over a two-year period, could build the resilience. But, it has to be supported by DERC, which for all its independence and statutory backing, appears unable to counter the wishes of the elected government. Discretion being the better part of valour, it is unlikely that even what is critically needed will get approved for fear of even a minimal fallout on power tariff. The result is that the system will not be strengthened and the consumer will pay the price. Erratic power supply must not become the norm in any capital city. But will DERC listen?

The budget did not mention the future of a Bill which was ready months ago, aimed at increasing fines for dumping construction debris all over the city. While entertainment and eating out will cost more post-AAP’s budget, there was no mention of generating resources. If Hong Kong can charge up to HK$6,000—about `12,000—for the first car and double and triple that for the second and third car parked all day and night on city roads, should not the Delhi government initiate similar proposals?

AAP continues to fight for full statehood in Delhi, which is not easy to grant

Given the climate of suspicion and mistrust, none of the present set of IAS officers is likely to push new proposals with zest. Their eyes are fixed on the first opportunity to escape to the quietude of other states and UTs and, God willing, the ultimate Mecca—the Government of India. Even for the sake of argument, if the High Court, which is hearing the matter relating to the ToB Rules and subsequent MHA notifications, decides to question—even set aside some amendments—nothing of material significance will ensue. This is because the Constitution and the NCT Act will remain intact. In the present climate, it is impossible that MHA, and much less Parliament, would introduce or support legislation to devolve greater authority on the city government. Debates about Delhi’s democracy will continue but whatever steam is generated, it will not surface in Sansad Bhavan.

The AAP would be well advised to pick up the reins of governance and direct officers to address the most pressing public needs without further delay! Much as we decry the bureaucracy, in the present dispensation the only way to function is through civil servants. The rigmarole surrounding the LG’s and CM’s powers may get visibility and public support, but the next election is too far away for the views to matter. The capital of the country should be a shining example of the best that the country is capable of, certainly not the worst!

The writer is former Chief Secretary, Delhi Government

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