At some of the most crucial junctures in our democratic history, courts have interpreted our constitution to incarnate our founders’ ideals and aspirations to the present generation. In the Kesavananda Bharati case, the Supreme Court (SC) invented the Doctrine of Basic Structure, preventing the basic features of our Constitution from being mutilated by elected despots. In ‘Maneka Gandhi vs Union of India’, the SC gave the widest possible interpretation of the right to life and personal liberty and expanded the horizons of free speech. In the P.J. Thomas case, Justice S.H. Kapadia laid out the doctrine of institutional integrity. Most recently, in the NJAC case, the Supreme Court preserved the independence of the judiciary and admitted the need to improve the collegium system.
But there are also judgements where the courts, by resorting to a literal and narrow interpretation, have endangered the spirit of democracy and basic constitutional values. In the infamous Habeas Corpus case, in a 4:1 majority verdict, the SC ruled that even fundamental rights like the right to life and liberty stood abrogated during Emergency. Thursday’s high court verdict declaring the LG as administrative head of the National Territory of Delhi falls in the latter category.
In 1937, when the Government of India Act, 1935 came into force, the Congress party commanded a majority in six provincial legislatures. It agreed to assume office in these provinces only after it received an assurance from the viceroy that the governors would not obstruct the work of the elected governments. The high court verdict has created a situation similar to the one that prevailed under British Raj. Both the people of Delhi and their representatives will now start questioning the purpose of holding elections for the city’s legislative assembly. If the Centre-appointed LG will command all the powers and authority without ever being answerable to the two-crore electorate, is it worth casting a vote?
In para 150, page 171 of the recent Arunachal Pradesh judgment, the SC says that “the Constitution is founded on the principle of ministerial responsibility”. But the high court verdict has turned the principle of parliamentary democracy on its head in Delhi. The question is can Article 239AA be interpreted as an exception to the cabinet form of government which is a feature of the basic structure of our Constitution?
Delhi was already a half state-half union territory, with three important subjects — public order, police and land — reserved with the Centre. The new order says that even in unreserved subjects, the LG’s will now be final. The sweeping discretionary powers that the verdict vests the LG with endanger democracy and responsible government.
A system of multiple agencies and diffused responsibilities has always been recognised by all political parties as a major hindrance to Delhi’s progress. Most crucial agencies in the city report to faceless and unelected mandarins sitting in North Block.
There are 725 urban slums in Delhi where more than 18 lakh people live under the most wretched conditions. Half of Delhi is without sewers, with human excreta and domestic waste flowing into open drains. Twenty per cent of the city doesn’t have access to piped water. Though solid waste management in the city is the responsibility of four municipal corporations and the cantonment board, whose combined annual budget is Rs 6,200 crore, Delhi will easily qualify as one of the filthiest capital cities in the world. Over 60 matters related to municipal governance cannot be administered without the Centre’s consent. In 68 years, governments had managed to create just 10,000 beds in government hospitals and 1000-odd government schools run by Delhi government, woefully short for a population of 20 million. The oft-cited reason for the lack of social infrastructure was DDA’s reluctance to part with land whether it was for schools, hospitals or bus depots. The recommendation of the second administrative reforms commission that DDA should report to the CM went unheeded. Policing and law and order remain the sole preserve of the Centre.
A report by the Central Vigilance Commissioner in 2011 said that Delhi Police extorts Rs 40 crore per week from vendors and hawkers alone. The Anti-Corruption Bureau (ACB), in existence in the city since 1978, was an unknown and defunct entity. Until 2015, the common man had virtually no forum to complain against corruption or bribery against any Delhi government, police or DDA official. The AAP government, sworn in after the 2015 elections, resuscitated the ACB, launched an anti-corruption helpline, made 45 arrests and registered 14 cases in a period of two-and-a-half months before the agency was taken over by the Centre in July 2015.
It would be a mistake to see the unprecedented 2015 election mandate as the victory of a political outfit. It was a mandate for change. The hawkers on the street — who you may have seen cowering in fear before a police constable, or people living in squalor — don’t have the means to petition a court. All they have is a vote, through which they express their anger, their hope, their aspirations. Thursday’s verdict has blunted this crucial right.
In case after case, the SC has ruled that the constitution should be read as a logical whole, of which each provision is an integral part. The high court verdict goes against the well-established principles of our constitution. It seeks to usher in a system which is neither presidential nor parliamentary, but viceregal in nature.