Delhi Services Act and AAP’s battle for federalism

As the Act tightens the Centre’s hold on Delhi’s administration, a constitutional clash erupts between the BJP and AAP.

Delhi Chief Minister Arvind Kejriwal (left) and Lieutenant Governor Vinai Kumar Saxena inaugurate the redeveloped Shaheedi Park in New Delhi on August 8 | Photo Credit: Manvender Vashist Lav/PTI

On August 7, when debating the Government of National Capital Territory of Delhi (Amendment) Bill, 2023 (also known as the Delhi Services Bill), Aam Aadmi Party (AAP) MP Raghav Chadha hoped that poetry would help uphold the constitutional principles of democracy and federalism. Chadha quoted Urdu poet Rahat Indori when warning other State governments that they too could share Delhi’s fate: “Lagegi aag to aayenge ghar kai zad me; yahan pe sirf humara makaan thodi hai.” (Many houses will burn if there is a fire; ours is not the only home here.) Chadha’s efforts, sadly, could not halt the Bill’s progress. The Delhi Services Bill was signed into law by President Droupadi Murmu on August 12.

Even though he never mentioned Jammu and Kashmir, one thinks Chadha’s party must have regretted supporting the Centre’s 2019 decision to split the State into two Union Territories. Reminding Home Minister Amit Shah of how Atal Bihari Vajpayee and L.K. Advani had once demanded full Statehood for Delhi, Chadha waved old BJP election manifestos in the Upper House.

After Sanjay Singh was suspended from the Upper House in July, Chadha became the second AAP Rajya Sabha MP to be suspended during the monsoon session on August 11.

The Delhi Services Act brings into existence the National Capital Civil Service Authority (NCCSA) that comprises Delhi’s Chief Secretary, its Principal Home Secretary, and the Chief Minister. The NCCSA will make recommendations to Delhi’s Lieutenant Governor on matters relating to the appointment, transfer, and posting of all Grade A bureaucrats in the Delhi government. According to political experts, the Centre-appointed LG will also be able to create and abolish bureaucratic posts in the Delhi government. As the final arbiter in administrative matters, the LG will have the power to approve NCCSA’s recommendations.

While the AAP still has not finalised its strategy to counter the Centre’s move, constitutional experts feel that after parliamentary clearance, the Supreme Court will now have to ascertain if the Act violates the Constitution’s basic structure. On May 11, a Constitution Bench headed by Chief Justice D.Y. Chandrachud ruled that the Delhi government had legislative and executive power over administrative services. It stressed that an elected government needed to have control over administration. Overriding this order of the apex court, the Modi government sought to take control of Delhi’s administration by promulgating an ordinance on May 19, one that was later replaced by legislation.

A political tug-of-war

It was through a constitutional amendment in 1992 that Article 239AA established the Delhi Legislative Assembly. BJP Chief Ministers from 1993 to 1998—Madan Lal Khurana, Sahib Singh Verma, Sushma Swaraj—and the Congress’ Sheila Dikshit, Chief Minister from 1998 to 2013, never complained of any friction between the office of the Chief Minister and that of the Lieutenant Governor.

But ever since AAP came to power in Delhi on December 28, 2013, the party has been at loggerheads with a succession of LGs. A number of political watchers remember how in January 2014, days after coming to office with the Congress’ support, Chief Minister Arvind Kejriwal lay under a quilt on a street near Parliament House, protesting against the UPA government’s administrative control of the Delhi Police. Since the BJP came to power in 2014, AAP has often accused it of using the LG’s office to control the functioning of Delhi’s elected government and the Municipal Corporation of Delhi.

The political rivalry between AAP and the BJP has peaked. Speaking outside Parliament, Raghav Chadha said the Delhi Services Bill was the BJP’s way of grabbing power: “In 25 years, the BJP lost six State elections. They know they can’t win an election in the next 25 years.” In 2019, the BJP had won all of Delhi’s seven Lok Sabha seats, but in December last year, AAP ended the BJP’s 15-year MCD reign. With a general election around the corner, we can expect this political tug-of-war to crescendo in the coming months.

Speaking in the Rajya Sabha, Amit Shah said the Delhi Services Act was brought in to “curb abuse of power” in Delhi. Shah claimed that after the Supreme Court’s May 11 order, the AAP government had transferred officers in the vigilance department. These officers, alleged Shah, were in possession of files relating to the liquor scam. Delhi’s now-scrapped liquor sales policy has already cost the AAP dearly. Senior party leaders Manish Sisodia, Satyendar Jain, and Vijay Nair are in jail because of alleged irregularities in Delhi’s excise policy.

Home Minister Amit Shah and BJP national president J.P. Nadda leave Parliament after the Rajya Sabha passed the Delhi Services Bill on August 7. | Photo Credit: Jitender Gupta/ANI

Election in mind

For Arvind Kejriwal, August 7, the day the Rajya Sabha passed the Delhi Services Bill, was a “black day” in the history of Indian democracy. Drawing parallels with the 1935 Government of India Act, a law the British had imposed on Indians, Kejriwal said, “After Independence, our Constitution ensured that an elected government would have all powers to work for the welfare of people. Prime Minister Modi has snatched that freedom from the people of Delhi.”

Party insiders say that AAP is going to drum up the Delhi Services Act to gain public sympathy and boost its Lok Sabha tally in 2024. In the run-up to next year, the party is set to expose the “authoritarian” functioning of the Modi government and redouble its efforts to serve Delhi residents through the MCD. AAP wants to tell the people that the Delhi Services Act will only “enslave” them. Kejriwal said in a video address, “I want to set up schools, but [the BJP-led Central government] does not allow me to do so. When I raise a voice, they call me ‘quarrelsome’. They got my mohalla clinics demolished. When I ensure the free distribution of medicines and electricity, they call it the politics of freebies.”

Highlights

• The Delhi Service Act was signed into law on August 12, giving Delhi’s Lieutenant Governor the power to appoint and transfer all Grade A bureaucrats.
• AAP has accused the BJP of using the LG’s office to control the functioning of Delhi’s elected government and the Municipal Corporation of Delhi.
• On May 11, a Constitution bench ruled that the Delhi government had legislative and executive power over administrative services.

Setting the stage for the 2024 Lok Sabha election, Kejriwal described the new law as an assault on people’s right to vote: “Neither does the elected government of Delhi nor do the votes of Delhi’s people have any relevance now.” He added, “The people of Delhi like me. I must have been doing something right for them to elect me four consecutive times.” Kejriwal also reminded Amit Shah and BJP president J.P. Nadda of how they had gone from door to door, distributing pamphlets during the 2020 Assembly election: “The people of Delhi rejected you, and Amit Shah ji, you are now punishing them.”

All eyes on the Supreme Court

Referring to the Supreme Court’s May 11 judgment, Arvind Kejriwal said in his video address, “This new law has made it clear that Modi ji will rule Delhi through the LG, irrespective of the government elected by Delhi’s residents. The Prime Minister has made it clear that he doesn’t abide by the Supreme Court.” On May 11, the Supreme Court had given the AAP government control of all administrative services in Delhi except police, public order and land. Furthermore, in response to AAP’s writ petition against the Modi government’s May 19 ordinance, the SC has referred the matter to a Constitution Bench.

AAP leaders are hopeful the Supreme Court will revoke the Delhi Services Act. Saurabh Bharadwaj, AAP’s Health Minister in Delhi, recently told reporters, “In the past, governments have formulated laws that went against the fundamental principles of the Constitution. They were overturned by the Supreme Court. The Constitution stipulates that the government shall be administered by the people, through their elected representatives. The Delhi Services Act is, similarly, at odds with the fundamental spirit of the Constitution.” Making the case that the new legislation will not stand judicial scrutiny, Bharadwaj warned, “Until that stage, there is a risk of chaos and disruption in the progress of public works.” The gloves, we see, are off.