Kejriwal's campaign has been boosted by the High Court order that the ACB could act against Central government officers
In the early days of the Aam Aadmi Party, when its founders were mulling over how and when to take the electoral plunge, Delhi was not their first option. They seriously considered Himachal Pradesh as the party’s first electoral stop. However, as the AAP weighed the pros and cons of fighting an election in the hill state, an opinion gathered support that it would be easier for the party to launch its political activities in a state like Delhi, which did not enjoy police powers, rather than a full state like Himachal. The argument was that the party in power in a full state would use the police to suppress the AAP, while the Delhi government would be hamstrung without police.
Ironically, what the AAP government in Delhi is now demanding is a change in that condition. In fact, the first clash between Chief Minister Arvind Kejriwal and the Centre during the AAP's earlier tenure was over the Delhi Police, which saw him sitting on a dharna near Rajpath seeking action against policemen accused of dereliction of duty in a drugs and sex trafficking case.
The current confrontation between Kejriwal and Lieutenant Governor Najeeb Jung has its roots in the movement of files of transfer and posting of police personnel. As per rule number 25 of the Transaction and Business Rules, the files ought to go through the chief minister, even though his advice is not binding on the lieutenant governor. However, the lieutenant governor's office said there was no such convention.
Unlike the earlier clashes Kejriwal had with Jung, this one turned into a full-blown turf war, with the appointment of IAS officer Shakuntala Gamlin as acting chief secretary for ten days. AAP leader Ashutosh said Gamlin’s name was on a list prepared on the basis of seniority, which was given to the lieutenant governor for consideration. However, the state government made it clear to the lieutenant governor that it had serious reservations about her and preferred former New Delhi Municipal Council chairperson Parimal Rai, who was also on the list. “Before Gamlin and Rai, three other names had been discussed and there could be no consensus on those names. If the LG had no issues with the rejection of those names, why did he have a problem with the state government saying no to Gamlin?” asked Ashutosh.
A letter war ensued between Kejriwal and Jung over the appointment and transfer of officers. Kejriwal even approached President Pranab Mukherjee and wrote to Prime Minister Narendra Modi. The Centre, however, threw its weight behind the lieutenant governor and issued a notification on May 22 saying that services, public order, police and land fell under the lieutenant governor, who might consult the chief minister on services using his discretion.
A combative Kejriwal took the dramatic decision of calling an emergency session of the assembly to debate the notification. A resolution was passed, rejecting the notification as “unconstitutional and invalid in the opinion of the house” and seeking the intervention of the President to refer the matter to the Supreme Court. “The LG did not ask me about the situation of electricity in the city even once. However, he is showing an unbelievable amount of interest in the transfers and posting of government officials,” Kejriwal said in the assembly before the resolution was passed by voice vote. He accused the Centre of trying to destabilise the government through the lieutenant governor.
Kejriwal's campaign for more power has been boosted by the Delhi High Court order that the Anti Corruption Bureau of the Delhi government could act against Central government officers. The High Court also said that in issues pertaining to criminal law and criminal procedure, the lieutenant governor was “bound to act upon the aid and advice of the council of ministers”. It further termed the Union home ministry’s notification as “suspect”. Now, while the Delhi government has moved the High Court against the notification, the Centre has gone in appeal to the Supreme Court against the High Court order on the ACB.
Experts are divided on Kejriwal's fight with Jung, especially on transfer and posting of officers. Those who support Kejriwal say an elected chief minister should have a say in his choice of officers. “What we are asking for is that whatever is already available to us, legally and constitutionally, should be restored to us,” said Ashutosh.
Lawyer Sanjay Hegde is of the opinion that no appointed official, even a governor, should be able to overrule an elected chief minister. He said the Centre’s notification amounted to “usurpation of powers” and was an “unhealthy trend”.
Kejriwal's detractors, however, say he is merely spoiling for a fight and the lieutenant governor is legally correct in deciding on matters related to services. Constitutional expert Subhash Kashyap said Jung took the correct stance in the territorial war. “The basic thing to remember is that Delhi is not a state; it is not even half a state. The Constitution makes it amply clear that it is a Union territory. A Union territory, by definition, is administered by the Union. The president administers it through the administrator, who is the lieutenant governor,” he said.
Delhi BJP chief Satish Upadhyay said Kejriwal had a predisposition to confrontation. “After coming to power in Delhi, there has been no politics of coordination; only of confrontation,” he said. “He has also demeaned the bureaucracy by locking horns with the LG over a routine appointment.”
Seasoned observers, however, say there is nothing new in the current situation. Former bureaucrat Shakti Sinha, who was finance and power secretary in the Delhi government, said that chief ministers Madan Lal Khurana and Sheila Dikshit had problems with the lieutenant governors. Sinha recalled how Khurana had run-ins with the Congress government at the Centre and Dikshit with the NDA-appointed Vijai Kapoor and even with Tejinder Khanna, who was appointed by the UPA. “But never before did the differences lead to a crisis,” he said. When Dikshit had differences with Khanna over the construction of a flyover, she approached the Union home ministry, which, headed by P. Chidambaram, took her side.
Congress leader Ajay Maken, who was a member of the first legislative assembly of Delhi and a minister in Dikshit's cabinet, said there was a time when both the lieutenant governor and the chief secretary were antagonistic towards the state government. “The LG and the chief secretary would help dissident legislators who were opposed to Dikshit,” he said.
According to Maken, now there is not even one-tenth of the interference that the Congress governments experienced. The current situation, he said, could have been avoided by the chief minister and the lieutenant governor and there was no need for the Centre to issue the notification or the state government to convene the special session. “Tact is the need of the hour,” he said.
With neither side relenting and no tactical resolution in sight, now it is for the court to demarcate their turfs.