A five-judge bench headed by Chief Justice of India DY Chandrachud has removed a major anomaly in the governance of India. It has ruled that it is the elected legislature in a State that has control over bureaucrats, not the central government. Delhi Chief Minister Arvind Kejriwal had been complaining ever since he was elected in 2014 that he didn’t have any control over his officials. The Court has now given him (and other chief ministers similarly placed) the power he had been seeking.
It has said that “Article 239A establishes the legislative assembly for the National Capital Territory of Delhi. Members of the legislative assembly are elected by Delhi electorate. Art 239A must be interpreted so as to further the representative democracy.” This is a good thing because of two reasons. Firstly, it finally abolishes the principle governing dyarchy that, while the ‘natives’ could be elected, they would not control the governing apparatus which was primarily British. That was in 1919. It was carried forward into the governance of Union Territories and later into the governance of the National Capital Territory of Delhi. Secondly, it also takes a giant step towards correcting a legal fiction that India was a unitary state with federal features. Actually, India is a federation with a central government. The Constitution’s three lists of jurisdiction — central, state and concurrent and many schedules — make that abundantly clear. With respect to Delhi, the apex court has said that public order, police and land will remain with the Centre.
This judgment, however appropriate, is going to create a series of problems for the civil servants who make up the administrative apparatus of Union Territories. The postings of these officers are decided by the Home Ministry. But if a chief minister wants the services of officers serving places other than his or her own, what will happen? It’s not like the IAS where a State can ask for its officers to return from deputation. Most members of Danics would like to serve in Delhi. This could deprive the other UTs of personnel.
But the biggest problem will arise over the control of the police in Delhi. Fortunately, the Supreme Court has left that with the Home Ministry. Delhi, as the capital, has its own peculiarities and special needs that can’t afford to have a running confrontation between the State and Centre. Yet, a chief minister without control over the police is like a batsman without a bat. Perhaps like Washington DC there can be another police force restricted to a small area. Going forward much will depend on Kejriwal who might start chafing in a few months once again. According to reports, Kejriwal has already accused the Centre of going against the Supreme Court order. Both sides should act responsibly on this score.
