'The law is an ass', according to the 17th century dramatist George Chapman, but 'the law is as you like it' is the real drama in the absurd theatre of Indian democracy. The current furore over The Government of National Capital Territory of Delhi (Amendment) Act, 2021, (GNCTD) passed by Parliament last week has revived the age-old conflict between the letter of the law and its spirit.
The BJP-led Centre claims to be correcting the distortion in the definition of the government in Delhi. AAP, which has been ruling the Union Territory for the past six years, has charged its all-weather archenemy with maiming a duly elected government.
AAP accuses saffron sultans of slaying the spirit of genuine democracy to give overriding powers to the unelected Lt Governor over elected Chief Minister Arvind Kejriwal. So far, the confrontation has been confined to files and the courts.
Delhi exemplifies the classical case of confrontation between the letter of the law and its spirit. Elected rulers swear by the written text of the Constitution but often ignore its spirit. The spirit lies in building a social, political and moral consensus around the interpretation of the letter. However, the spirit is willing but the fleshing out is weak.
By no legal parameter can a Delhi Chief Minister enjoy powers, which his or her counterparts wield in other states. It is the spirit of the law relating to a Union Territory. According to BJP, Kejriwal is habituated to stepping on the LG's powers by ignoring him on important matters.
The turf war reached the Supreme Court which ruled in the chief minister’s favour, stating that the LG does not enjoy separate powers except over allocated subjects. It clarified that the decisions of the Council of Ministers must be communicated to the LG, but prior approval is not mandatory.
Under the new Act, the Delhi government cannot act without consulting the LG in advance. This war for supremacy would land in court again. Since Delhi’s administrative structure is to be settled even after 50 years, the hostility is unlikely to end soon since at stake is politics, not better governance.
Both parties are pretending to restore the balance between the law and the spirit. As they confront each other in the courts and on the streets, Delhiites suffer.
With over 15 million people living on 1,484 sq kms, Delhi is India’s largest city. Its per capita is the second highest. It is also one of the most polluted metropolises globally. It lacks specific character and culture.
Two thirds of its population lives in unauthorised colonies and slums without proper water or hygiene. Multiplicity of authorities has orphaned the city in the absence of legally defined parents. Three Municipal Corporations handle civic administration.
Law and order is under the Home Ministry through the LG. Land is managed by the DDA, which is controlled by the Union Ministry for Urban Development - DDA takes forty years to implement 20 per cent of its 20-year plan. NDMC manages Lutyen’s powerscape where the Prime Minister, ministers, top babus and the rich and famous live.
One of the richest civic bodies in the country, NDMC keeps its puissant residents happy by spending liberally on digging and filling holes and roads. Delhi definitely requires an accountable and transparent governance model. New and different scenarios can strike a judicious balance between the law and the spirit.
Scenario One: Let the Centre take a calculated risk by granting total statehood to Delhi with the Chief Minister in complete control. The state government should have full powers over land, the police and All India Services; IAS and IPS officers in charge of crucial departments are not accountable to the CM.
Federal autonomy would ensure that the state government cannot blame anyone else for its failures. The Delhi government cannot open a new hospital, a college or even a school unless the DDA gives it land. The Centre can build a Central Vista at huge cost but the state government cannot even lay a new road to decongest the city.
If giving the state government control of the police is deemed a security risk, it should control at least traffic and land management. It should enjoy the powers of its peers if Delhi is to develop as a worldclass capital city like Tokyo, Washington, London etc. The Centre can always use the Governor to check any recalcitrant government. If the state administration fails to perform, the people would reject it.
Scenario Two: Rather than paralysing an elected government, the Centre could run Delhi directly and abolish the Assembly, the municipal corporations and NDMC, which are hotbeds of corruption. The Home Ministry can appoint a full-fledged administrator to minimise red tape, define and allocate responsibilities, abolish multiple authorities and ensure accountability and pellucidity.
An added advantage is liberal financial support by the Centre that would convert an unsafe, unclean, and unwieldy Capital into a smart city with an identity of its own. Finally, it would draw the curtain on Delhi’s trishanku status.
A section of the BJP feels that a centrally controlled structure is beneficial in the short run, but Delhi would be deprived of a participatory role in governance in the long run. Currently, they favour a central government takeover because their party is incapable of toppling or trouncing AAP in the near future.
Even after BJP won all seven Lok Sabha seats in 2014 elections, a year later it captured barely three of the 70 Assembly seats - AAP won the remaining 67 with over 54 per cent votes. The BJP repeated its act in 2019 but beat AAP only in eight Assembly seats in 2020. Modi decisively trounced Kejriwal when people were asked to choose a prime minister.
AAP sees a conspiracy to cripple its government so that it fails to perform during the next four years. But the quality of the local BJP leadership is too tacky to give even a symbolic fight to a wounded Kejriwal.
Instead of leaving Kejriwal to demolish himself and concentrating on leadership building, the BJP has embarked on a negative course. It should woo Delhi with a credible alternative leadership, which it once had, and a democratic institutional framework that strictly follows the lively spirit of the law.
Laying down the law without imbibing its spirit is equivalent to giving license to kill with a gun without bullets, shaken or stirred. An elected government can’t be subservient to an unelected civil servant.
(The writer can be reached at prabhuchawla@newindianexpress.com. He can be followed on Twitter: @PrabhuChawla)