The Modi juggernaut brooks no opposition. The history of India has seldom witnessed such a deliberate dismantling of democratic structures along with silencing voices of dissent as seen under this dispensation. Even worse is the manner in which elected representatives in Union Territories are sought to be paralysed by means that are legally suspect and morally bankrupt.
While we can debate the near abrogation of Article 370 of the Constitution, converting the state of Jammu & Kashmir (J&K) into two Union Territories (2019), what is of great concern is that even after one-and-a-half years, statehood has not been restored. The assurance in this regard made by the Union home minister was subject to a caveat: When the situation in J&K gets normal. That statehood hasn’t been restored is an admission that the normalcy is yet to return.
The home minister, on 13 February 2021, when replying to a discussion in the Lok Sabha on the J&K Reorganization (Amendment) Bill, 2021, said that statehood to J&K will be accorded at an appropriate time. The expression ‘appropriate’ suggests that such status will be granted as and when the home minister so chooses. This may not happen in the near future till such time the BJP becomes a force to reckon with in J&K through means that are not entirely ‘kosher’. Till that time, people’s aspirations cannot be expressed through their elected representatives in the legislative Assembly.
The underlying democratic principle is that the fate of millions of people in Union Territories be left to their elected representatives and not in the hands of a Lt Governor or an Administrator acting at the behest of the Union. Goa, once a Union Territory, was granted statehood in 1987. Delhi remained a Union Territory without a legislature till 1993. That democratic principle is being reversed and this government now wishes to impose the newly crafted Delhi model on J&K.
We now know what that Delhi model will be. The brazen manner in which the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 got legislative sanction is evidence of its flavour. Both the powers of the government in Delhi and of its legislative Assembly have been stymied, paralysing their legitimate functioning. A government duly elected has been supplanted by an unelected Lt Governor. He is now the government and the duly elected government his supplicants.
The law now provides that the term ‘government’ referred to in any law made by the Delhi Legislative Assembly will mean the Lt Governor. In many instances, the law provides that the opinion of the Lt Governor be obtained before taking any executive action on the decision of the minister or even the council of ministers. In a democratic polity, it is unthinkable that a nominee of the Union will decide whether or not the decisions of a duly elected government will be acted upon.
What is even worse is that the rules of procedure of the Assembly by virtue of amendment to Section 33 of the principal Act mandate that such rules be consistent with the rules of procedure and conduct of business in the Lok Sabha. This destroys the autonomy of the Assembly to frame its own rules of procedure, anathema to any democratic set-up. In fact, the amended law prohibits the legislative Assembly or its committees to consider matters of day-to-day administration of the NCT of Delhi and disentitles them to conduct any enquiry in relation to the administrative decisions taken. Any existing rules providing for such enquiry are to be declared void.
Clearly, the elected government has, through a process of law, become an adjunct of the Lt Governor, who symbolises the government. Now, the Lt. Governor’s opinion is mandatory on certain matters before taking any executive action under any law enforced in the NCT of Delhi. Thus, the Lt Governor’s opinion would be needed before any decision by the Delhi Cabinet on certain matters is implemented. The amended law is in the teeth of the decision of the Constitution Bench of the Supreme Court that, in interpreting the proviso to Art. 239(AA) (4), held that the Lt Governor will act under it only in exceptional circumstances.
We saw a similar pattern in the case of Puducherry (2016), where the Lt Governor was routinely overturning administrative orders, bypassing the government and directly communicating with the bureaucrats on WhatsApp. The then Lt Governor violated every established norm and tradition to swear-in three defeated BJP candidates in the dead of night on 4 July 2017, who despite having lost their deposits, were nominated by the Union as MLAs. These nominations were engineered to help destabilise and bring down the government.
The Lt Governor also interfered with the decision of the government to increase rice allocations under the Universal Rice Supply Scheme. Several other people-centric decisions were not allowed to be implemented with the intent to thwart the legitimate activities of an elected government. Though on 16 February 2021, the Lt Governor was removed and replaced, the BJP had achieved its objective of throwing out the Congress-DMK government. The message is clear: Break the backbone of democratic institutions, devise all means, fair or foul, to make governments fall in opposition-ruled states.
The manner in which elected representatives in Union Territories have been reduced to ciphers is evident from the manner in which the Union government has interfered both in Delhi and Puducherry. In the state of Jammu & Kashmir, there is little hope for the people to be represented and their voices heard. Converting Jammu & Kashmir and Ladakh into Union Territories was accomplished by a sleight of hand. To get statehood back appears to be a dream that may not be realised for long. From laws targeting ‘love jihad’ in BJP-ruled states to so-called ‘land jihad’ in Assam, it is ‘undemocratic jihad’ in the rest of India that is worrisome.
KAPIL SIBAL
(Tweets @KapilSibal)
Senior lawyer, Congress leader and member of Rajya Sabha