Once the dust on the ugly controversy involving Delhi’s elected government and its chief secretary settles down, it will be pertinent to return to the core issue underlying the current tangle: The capital’s asymmetric division of powers between the elected and the selected. In practical terms, it vests the LG with absolute powers without corresponding accountability and leaves the elected chief minister faced with complete responsibility but without requisite powers. The system worked, argue the status quoists, for 15 years under Congress Chief Minister Sheila Dikshit. So why can’t the AAP function under the existing arrangement?
The answer lies in a series of orders issued by the present central government after the inauguration of the AAP government in February 2015.
The basic principle of parliamentary democracy is that the elected executive decides policies and programmes while the bureaucracy executes them. There can be occasional friction. But overall, the two arms of the executive work in tandem, as a single, cohesive branch. In the eyes of the law, the actions of secretaries are actions of ministers. On occasions when secretaries disagree with their ministers, the latter either agree with or overrule the babus. Chief ministers handpick their chief secretaries. It is upon a CS that a CM is dependent for governance and delivery. Even Sheila Dikshit had, by and large, a free hand in picking the CS and heads of departments. Not only did the UPA give her this privilege, L K Advani, too, as home minister, allowed her this authority.
But within three months of the AAP coming to power, the MHA, vide a notification dated May 21, 2015, added a fourth subject, “Services”, to the existing list of three subjects of Public Order, Police and Land which were already reserved with the Centre. Through a judgment on August 4, 2016, the Delhi High Court upheld the notification, ruling that “Services” was outside the domain of Delhi government. Hence, the elected executive in Delhi doesn’t have even a modicum of control or authority over government employees. From a peon to the chief secretary, the transfer, posting, appointment, creation of posts, service conditions, vigilance matters, leave sanction — everything was taken away from the elected government by the LG.
On November 23, the DoPT transferred the incumbent chief secretary, Kewal Kumar Sharma, to the ministry of HRD. The chief minister got to know of the transfer from media reports. On November 29, 2016, GOI appointed M M Kutty as the new chief secretary. Again, the council of ministers got the news from the press. On November 28, 2017, Deputy CM Manish Sisodia was scheduled to carry out the second quarterly review of the Outcome Budget in conjunction with key officials including the finance secretary and chief secretary. Kutty was present in the first session where targets of the department of environment and forests, and food and civil supplies were reviewed. The post-lunch session was meant for the review of the departments of social welfare and SC/ST. However, Sisodia and minister Rajendra Gautam kept waiting but Kutty didn’t show up. At 2:30 pm, they got the news from the media that the Centre had transferred Kutty to the Union ministry of finance. The appointment of the present CS, Anshu Prakash, was similarly done.
As former Delhi CS Shailaja Chandra wrote in these pages, “The CS is not an ordinary bureaucrat. He is the head of the civil administration.” She is right. The CS provides leadership to departments, monitors the progress of key projects and schemes, holds heads of departments accountable and ensures that deadlines are kept. The Delhi CS also coordinates with multiple authorities and agencies outside the Delhi Government. The performance of a CM is thus incumbent upon the performance of his CS and the secretaries of other departments with the CS at the top. But the Delhi CM can’t even pick a deputy secretary, leave aside his CS and secretaries. They are appointed by the LG without consulting either the chief minister or minister concerned.
The high court also ruled that the “aid and advice” of the council of ministers is not binding on the LG. By vesting the LG with “Services” and the veto power on every aspect of governance, the Centre has made him the primary decision-making authority even with respect to transferred subjects like health, education, water, electricity, ration distribution, slum rehabilitation, roads, environment and transport. He convenes and chairs meetings on these subjects, where the chief minister and other ministers may or may not be invited.
Cabinet decisions remain pending for long periods at the LG’s office. For example, the policy decision to establish 1,000 Mohalla Clinics was approved by the cabinet in November 2015 but the LG raised queries on multiple occasions and the project remained stalled for two years. While granting approval on September 5, 2017, the LG imposed conditions of his own.
Similarly, the education department had prepared a budget plan and proposal to hire teachers for five new schools of excellence. But the CS directed the removal of the teacher hiring plan as it fell under “Services” and a new proposal was drafted which sought budgetary approval from the education minister but stated that the hiring of teachers will be dealt with directly by the LG. The minister contended that he could not create a school of excellence without determining the quality of teachers. His plea was rejected. Government decisions to increase the posts of standing counsels to protect its legal interests, notifying of street vending rules to recognise thousands of hawkers, setting up of a central procurement system for medicines, have been pending for want of the LG’s approval. Cabinet decisions notifying a new slum rehabilitation policy and an increase in the minimum wage were approved by the LG after a year. Countless other files keep shuttling back and forth between the Secretariat and LG’s office.
The Delhi government’s petition challenging the Centre’s notifications was heard by a Constitution Bench of the Supreme Court in December 2017. The order is since reserved. The very concept of parliamentary democracy is at stake. The current imbroglio is only a manifestation of a deep-rooted malaise. Now, when the accused MLAs have been arrested, serving ministers have been assaulted in their offices by stenographers and under secretaries, and IAS and allied services have stopped attending meetings called by ministers and the chief minister, it is time to address the structural malaise afflicting Delhi’s body politic.