As far as Parliament is concerned, the bill depriving the elected government of the National Capital Territory of Delhi of most of its control over the administrative executive is done and dusted. It was no more than what was expected and only served to showcase rare unity in the new opposition alliance, despite murmurs from individual members of the Congress. It also showed that YSRCP was brought to heel and that BJD is entirely Odisha-bound. Overall, a victory for the government and not an unsatisfactory result for the opposition parties.
However, the issue still hangs in the balance. The Supreme Court is still to rule on the constitutional propriety of the Delhi Services Act, which it will take up after the case on the abrogation of Article 370 is decided. In a sense, there is a similarity between the two Articles under which Parliament acted in J&K and Delhi. Both have inbuilt provisions to alter their provisions. The provision under Article 370 has a much wider ambit.
Under 370(3), “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.” Thus, the Article can be rendered inoperative, albeit after consultation with the Constituent Assembly, whose role was appropriated by the Legislative Assembly or even the Governor on numerous occasions.
The corresponding provision about the Delhi government is more restrictive. Article 239AA(7) gives Parliament powers to “make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.” It also says that such provisions do not require amendment under Article 368. The question arises as to whether the structure of governance can be materially altered under a provision that allows only parliamentary action to supplement the provisions of the Article and for matters incidental to such supplementation.
Prima facie, the Supreme Court seems to hold a different view. In its last judgment, it said that the elected members had been chosen by the voters to “act in their stead”; that in a democracy, officers report to their ministers, who report to Parliament or the Legislature, which, in turn, is accountable to the people that elected it; and that ideally, the Government of the National Capital Territory of Delhi “ought to have control over Services”.
By using Article 239AA(7), effective control over Services has now been taken away from the elected government. Does this amount to supplementation or amendment under Article 368, which can happen only if the government secures a two-thirds majority in both Houses?
To me, the more important issue is how the present situation will affect the administration as a whole and civil service in particular. Officers are of various kinds. Some are professional, straightforward and honest, and are placed in a dilemma because they are no longer clear about the chain of command. They do not want a risk either way as uncertainty looms large. Their normal reaction would be to go into their shells; thus, we have the phenomenon of “policy paralysis”. Others love to exercise power. They will blossom in conditions where accountability to the people is unclear or diluted. Their immediate response would be to exercise ruthless power merrily.
In the past few years, we have witnessed extreme action by governments and civil servants. We recall the violence unleashed in some northern states against those who protested the Citizenship Amendment Act. The farmers of Punjab were ignored for a long time without attempts to solve their issues until the elections in UP were around the corner. Democracy flounders when governments and their instruments, the civil servants, act with anger and brutality.
The Prevention of Money Laundering Rules were drafted and promulgated when I was in the Central Government as revenue secretary. At that time, the Rules were confined to a few pieces of legislation, and sufficient safeguards were provided to prevent misuse. Since then, the Rules were repeatedly amended by the UPA and the NDA governments to become the leviathan it is today. It is said that it is being used against the opposition selectively. I cannot comment on this because I do not know the facts. I have, however, come across cases of unbridled authority misuse in the bureaucracy’s lower rungs and growing corruption. Once a monster is let loose, it can no longer be restrained.
When I initially took charge as revenue secretary, I considered the CBI a friend, an organisation that would help me curb corruption in revenue services. The practice then was that the file for grant of permission to the CBI to act further would pass through the secretary to the minister. I naively used to pass all such cases to the minister under the mistaken impression that the CBI would have submitted only those cases on which they were sure of the facts. Until I found that an officer, generally considered honest, had to face the humiliation of a CBI raid on his house, apparently instigated by a CBI officer with some difference of opinion. After this incident, I was exceptionally careful, studying each file and calling CBI officers for personal discussions before passing it on to the minister.
However, all these instances of mischief at the lower levels pale into insignificance in comparison with the wanton use of bulldozers by district officers to pull down houses and shops. It takes time, effort and resources to build a house or a livelihood, but bringing it down in moments is so easy. It is also possible that some of our civil servants enjoy the surge of power they get, throwing people, including women and children, out of their houses and depriving many of their means of subsistence. Uncontrolled communal conflict in Manipur, in which local police and civil servants also participate, is another instance of a balance breakdown at multiple government levels. Encounter killing is another instance of the rule of law gone berserk.
The British Raj needed the so-called “steel frame”, but the Constitution and democracy now supplant it. I fear our actions are now rebuilding a steel frame of horrific dimensions.
There are critical issues, therefore, riding on the Supreme Court’s decision on the Delhi Services Act.
K M Chandrasekhar
Former Cabinet Secretary and author of As Good as My Word: A Memoir
(Views are personal)