Supreme Court to appoint DERC chairperson: What is the Delhi govt, L-G tussle over the post

The post of DERC chairperson fell vacant in January this year when Shabihul Hasnain retired. The Delhi government then recommended the name of Rajeev Kumar Srivastava, a retired judge from the Madhya Pradesh High Court for the post and sent the file to L-G VK Saxena.

Saxena’s office returned the file asking that a legal opinion on the appointment be sought from the Delhi High Court Chief Justice. The Delhi government, however, went to court against the delay. The apex court ruled in its favour and said that the Lieutenant Governor “cannot stultify a government like this” and asked that the new chief be appointed in two weeks’ time.

Justice Srivastava, however, after waiting for clarity on the appointment for five months, citing personal reasons, said he would no longer be able to take charge.

The Centre also promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance in late May, which, among other things, said that appointments of chiefs of autonomous commissions and boards will be done by the President. This power is usually delegated to the L-G as the administrator.

After Justice Srivastava expressed his inability to join, Chief Minister Arvind Kejriwal recommended the name of retired judge Sangeet Lodha for the position. The President, however, appointed Justice Umesh Kumar (retd) to the post. The AAP government challenged this decision in court, calling the appointment “illegal and unconstitutional”.

It said that since power was a transferred subject falling under the jurisdiction of the elected government of a state or a Union territory, the Centre did not have the right to make an appointment. Justice Kumar’s appointment was delayed as power minister Atishi, who was to administer the oath to him, fell ill.

The matter was then heard by the Supreme Court, which stayed his swearing-in and asked the CM and L-G to rise above “political bickering” and finalise a name.

The Delhi government sent a list of names to the L-G for consideration and a meeting was held last week, where both did not come to a consensus on the name.

What is happening now?

Since the Delhi government and L-G have not been able to suggest a common candidate, the Supreme Court has decided to make an appointment as an “ad-hoc” measure.

“We will appoint somebody for an ad-hoc basis…pending the disposal of the matter. Just give us a little time so that we can do our little homework…”, Chief Justice of India D Y Chandrachud presiding over a three-judge bench said.

The court will hear the matter next on August 4.

The government as well as discoms have pointed out that the important tariff fixation exercise is pending since the commission has been without a head since January.

Why is this such a big point of contention?

The Aam Aadmi Party government’s insistence that the DERC chief be a person they have picked is both an issue related to the immediate issue at hand — the power tariff fixation and extension of subsidy — as well as the larger issue of Delhi’s governance.

The AAP has long alleged that BJP wants to put an end to Delhi’s power subsidy scheme, which is one of its flagship projects.

Inaugurating the Bundelkhand Expressway last year, Prime Minister Narendra Modi hit out at the opposition for propagating a “revdi” culture. While he did not name any party or leader, he said the culture was dangerous because parties feel that “by distributing free revdis to people, they can buy them”.

AAP hit back and said that the government spending on subsidies was a way for the taxpayer’s money to find its way back to people. AAP chief Kejriwal also pointed to facilities such as free housing and travel allowances provided to ministers and asked them to give them up instead of attacking subsidies for people.

The AAP government, however, brought in a change to its power subsidy policy, making it optional and asking for people to fill up their preference.

Then, in October last year, the office of the L-G asked the Chief Secretary for an enquiry report into the electricity subsidy scheme and asked why an “order” passed by DERC in 2018 to pay electricity subsidy through Direct Benefit Transfer (DBT) was not followed.

The Delhi government said that the DERC can only make suggestions on policy matters and not pass orders.

When AAP came to power in Delhi in 2015, among the first promises it made and fulfilled was that of providing 20 kiloliters of water per household for free. It then started working on a far more ambitious power subsidy policy. It was only in 2019 that the policy was ready for implementation as the government was buoyed by the 2018 Supreme Court decision that the Lieutenant-Governor was bound by the aid and advice of ministers in matters other than land, law & order and policing.

For AAP, any changes that it is forced to make to the power subsidy model will hit at its core promise of providing baseline services such as free water, free baseline power and free bus rides for women. AAP has described these as services that every person, irrespective of their financial status, should be entitled to. While in Delhi the baseline power consumption has been capped at 200 units, in Punjab, which also has an AAP government, this is 300 units.

The AAP fears that if there is a Centre-appointed DERC chairperson, the government may be pushed into a corner regarding the modalities of the subsidy scheme, since the office of the L-G has, in the past, asked officers to explore whether there can be a cap on the number of people who are eligible for subsidies based on the sanctioned load.

The government has also taken a stand against DBT, raising concern that since the money is transferred into the accounts of people, instead of them receiving zero bills, there is a high chance that it will be used for things other than what it is meant for. “This could result in people failing to pay power bills and their connections being cut,” said an official.

Officials said a similar reasoning for preferring to give rations, school books and uniforms to beneficiaries instead of transfers to the bank account in the past.

“Most of the time, it is men that control bank accounts and women who handle day-to-day expenditure. In such a situation, it may become difficult for them to manage the budget as there is a chance the money will be used for something else,” she said.

What is AAP’s free power scheme and its contours?

Till last year, anyone who used less than 200 units per month would not get free power. For people using between 200 and 400 units of power, a 50% subsidy is offered capped at Rs 850.

After the government made the subsidy optional, people were asked to fill up a form indicating whether they want to continue getting the subsidy.

In Delhi, 48 lakh households have already applied for the subsidy. There are over 58 lakh domestic power connections in the city.