The Delhi Imbroglio – A Referendum Is The Only Way Out

The spate of notifications, clarifications and press statements issued by the BJP govt. at the centre over the last week to emasculate the elected govt. in Delhi only validates what one had instinctively felt when that party had been routed in the February elections: that, having lost the war, Mr. Modi would go to any lengths to win the peace. And he has been doing precisely this through the MHA( Ministry of Home Affairs) and a supine Lieutenant Governor ever since, unconcerned about the fact that with each memorandum he is driving Delhi closer to a state of anarchy and chaos. His ultimate goal is now becoming clearer every day: declare a constitutional breakdown in Delhi, dismiss the Kejriwal govt. and rule through the same LG who kept Kejriwal at bay for ten months in 2014 by refusing to hold elections in Delhi.

First, the Central govt. refused to give Kejriwal the officers he wanted and the Delhi police refused to fill up the vacancies in the ACB( Anti Corruption Branch), which is the spearhead of the AAP govt’s campaign against corruption. It then issued a notification limiting the ACB’s jurisdiction to only employees of the Delhi govt.- effectively giving a licence for wrong doing to all other public servants: central ministers, all-India services. central govt. employees, PSU employees. Municipal employees etc. The notification defies all logic-will the MHA now issue similar instructions to all state police forces too, viz. that crimes committed by the above categories of public servants cannot be taken cognizance of by local state police, and that only the CBI has powers to do so? Is this some perverted version of diplomatic immunity?

The Delhi police has been deliberately let loose on the AAP govt. and party. It has registered dubious cases against seven AAP MLAs, refused to cooperate in an inquiry conducted by the District Magistrate of New Delhi under the CRPC into the suicide of a farmer, even filed an FIR in the same incident against AAP volunteers when its own personnel were even more negligent in failing to prevent the suicide.

Delhi’s pending application with UNESCO for World Heritage City status has been suddenly and mysteriously withdrawn by the Urban Development Ministry at the eleventh hour, even though all the documentation has been completed and the case was to come up for inscription in September this year.
The intent is clear: do not allow the AAP govt. to function, deprive it of any possible credit for good work done, put legal and constitutional hurdles in its attempt to fulfill its election promises, discredit and harass it at every turn by ruthless employment of the police.

The fig leaf of the Constitution behind which the BJP is trying to conceal its naked lust for power is tattered and shrivelled. Granted that Article 239AA of the Constitution that gave Delhi a legislative assembly kept out of the purview of the Chief Minister the three subjects of land, public order and police and assigned them to the LG. But it did not mention anything about ” Services”-that is, the transfer and postings of govt. employees. That has been added to the excluded list by a mischievous ” interpretation” of the Constitution by the MHA on 21.5.2015, obviously in furtherance of the grand design to reduce Kejriwal to a Wajid Ali Shah in an Oudh administered by the Resident, Colonel Outram, who now goes by the name of Najeeb Jung. ( Kejriwal was not too far off the metaphorical mark when he recently likened the Centre to London and the LG to the Viceroy !)

Even more important, however, is the spirit of the Constitution. The text of a law, or the Constitution, only gives the INTENT of a particular provision. How that intent is to be implemented depends on the larger understanding of the political and administrative ecology, and, in a democracy, on an appreciation of the people’s desires and wishes. It is in this respect that Mr.Modi’s govt. comes across as unscrupulous. power hungry and vindictive in its approach to the present Delhi govt. Let me explain.

One of Mr. Modi’s hubris-induced drawbacks is that he does not accept that there was any history before him- India’s history begins only with I AD ( After Damodardas): this is evident in his approach to foreign relations, economic policies, reforms, social programmes etc. With regard to Delhi as a state too he has this blind spot. He overlooked, or deliberately disregarded, the fact that in 1998 the then Home Minister Mr. LK Advani had issued a notification making it mandatory for the Lieutenant Governor to consult the Chief Minister of Delhi on even the three excluded subjects mentioned above, and to record in writing the reasons if he felt that he should not do so. This order had the mark of a statesman and a democrat. And it is this order that Mr. Modi has caused to be withdrawn and revoked by the notification of 21.5. 2015. No greater contempt could be shown for the people of Delhi and for the values of democracy and federalism.

Full statehood for Delhi is not a new demand- it has been raised by all Chief Ministers and parties in Delhi, and resolutions to that effect have been passed by Assemblies in the past also. It was one of the main planks on which AAP fought the last elections. It was, therefore, a legitimate democratic right of Kejriwal to have pursued this goal, even while insisting on full consultations by the LG with him on the excluded subjects in the interim.

There is merit in the demand for statehood. The population of Delhi is more than the combined population of all the other Union territories put together; put another way, it is more than twice the population of Himachal Pradesh. It has more Parliamentary seats than HP, Jammu and Kashmir, and Uttarakhand, to mention just its neighbours. Its annual budget is three times the size of HP’s budget if we include the three Municipal Corporations also. It has among the highest crime rates in the country and yet the police are not accountable to the elected govt. or the Chief Minister. The argument is often trotted out by apologists of all govts, past and present, who are loath to give up control over this rich and vibrant city, that Washington DC too is under the federal govt and is not a separate state, so how is Delhi any different? This would be a good time to correct this wrong impression.

Firstly, Washington DC and Delhi are just not comparable. The former has an area of only 68.30 sq. miles and a population of 658000 whereas Delhi ( not NCR) has an area of 1400 sq. kms and a population in excess of 15 million ! Such large areas and numbers of people simply cannot go unrepresented. Secondly, Washington DC is not administered by the federal govt. but by an elected 13 member Council headed by a Mayor-in other words, elected representatives of the District govern the District, not nominated Lieutenant Governors or Ministers of the central govt. or bureaucrats who have no accountability. It is Congress which retains exclusive law making jurisdiction over the District and approves its budget, but that is all. The administrative and political model of Delhi is as far removed from that of Washington DC as fish is from fowl, not that Mr. Rajnath Singh would recognise it, being a strict vegetarian. But, most important of all, the people of Delhi want statehood and an accountable bureaucracy. By winning 54% of the popular vote and 67 of the 70 seats Kejriwal has an overwhelming endorsement and support for this demand. Not only has the Modi govt. refused to acknowledge this, but by issuing the notification of 21.4.2015 it has signalled that it is not even prepared to take on board the views of the Chief Minister on the four excluded subjects, that it will treat him as a political mannequin, that it will not even discuss this issue.

This is a big mistake and a grave political miscalculation . It ignores the wishes of 15 million citizens of Delhi. It ignores the first principle of any democracy-accountability of the bureaucracy and police to the elected representatives. It ignores the changing expectations of peoples, which in other countries have resulted in Arab springs, “insurgent” political parties like UKIP in the UK, the Tea Parties in the USA, the Front National of Marine la Penn in France-outfits which are side-lining mainstream political parties (a phenomenon already proved in Delhi with the complete decimation of both the Congress and the BJP in February).

The biggest mistake which Modi is making, however, is in underestimating Kejriwal and in denying him any space for negotiations on the issue of statehood. Kejriwal has mastered the art of ” protest” and ” agitational” politics and has proved this time and again as an RTI activist and in the IAC movement. He is at his most effective when he is fighting the ” status quo” and he will not fight by the rules Mr. Modi is comfortable with- the lifeless text of the Constitution amended to suit the status quoists from time to time, retrograde notifications issued by a faceless bureaucrat, imposition of Section 144 to curb protests, filing of FIRs by a compliant police force which has its own scores to settle with Kejriwal. Mr. Modi may have stepped into a ring to take on this master activist with his hand chosen referees and a copy of the Queensbury rules, but Kejriwal will make his own rules as he goes along. His core strength comes from the fact that he is a street fighter who derives his power from his connect with the people- not the people in the salons and drawing rooms of south Delhi but the voters in the polling booths. (A recent poll by a media group indicates that 61% of Delhi’s voters back him in his fight against the Centre on the issue of statehood). He was prepared to fight in the ring but Modi has denied him even this right and so nowKejriwal will fight in the streets, where he makes the rules, after all.

Mr. Modi and the BJP have painted themselves into a corner, as Mr. Shinde had once done to his government. Out of Kejriwal’s last struggles had emerged the Lokpal and a more comprehensive legal understanding of police accountability. Out of the impending one will emerge, if not full statehood, a substantially more effective and powerful state government in Delhi in keeping with the wishes of its citizens. The only way out for Modi now, if he wishes to save face and prevent Delhi from slipping into chaos and disorder, is to hold a referendum on the subject and let the people decide. This is the civilized and democratic way of settling contentious issues.

The question, however, is: how much of a democrat is Mr. Modi?


Comment (29.5.2014)

Voices are now being raised (in the media and the intelligentsia) that Kejriwal should go to court and obtain a judicial imprimatur on this subject. He may, but on the limited subject of powers to post officers in his govt. (He has already won the first round when the Delhi High Court ruled that the ACB (Anti corruption Bureau) should be under the control of the CM and NOT the LG). But my gut feeling is that he is unlikely to take the statehood issue to the Supreme Court, and for a number of reasons. First. the judiciary is likely to go by the strict wording of the laws (the Constitution and the Delhi ACT) which does not favour him. (One must not forget that Kejriwal’s fight is to change these ossified laws which suit mainstream, status-quoist parties, who refuse to see that societal changes and expectations have made these laws irrelevant. The IAC campaign resulted in a new law on the Lokpal, the Nirbhaya agitation resulted in a complete overhauling of the laws on sexual violence). Kejriwal has grasped instinctively the truth about our moribund republic – that change will never come about through a reasonable process but only through mass agitations – even our courts are generally loath to disturb the status quo because it suits them too. Which brings me to my second reason: statehood is a political issue, not a legal issue, just as creation of new states was. And political issues have to be fought out on the streets since our government, Parliament and political parties (the institutions meant to arbitrate on political issues) are all non functional and rarely reflect or respond to the will of the citizens, except during election time. So, like I said, Kejriwal will not fight by the Queensbury rules because they are loaded against him – he will go to the people (as he has in the past), Modi will go to the police and Delhi will go to the dogs.

Kejriwal should tweak his strategy a bit. Instead of unilaterally demanding statehood as an agenda of his party he should demand a referendum on the issue. This would take the wind out of the sails of the BJP and even parties like the Congress who are trying to ride two horses at the same time. Even the media will have to shut up. The demand for a referendum would show up Kejriwal in a much more reasonable. constitutionally compliant and non-dogmatic light: after all. what possible objection could there be to the demand that the wishes of the citizens of Delhi be ascertained thru a lawful and constitutional process? This would check-mate the increasingly arrogant Mr. Modi: if he accepts it he will have handed over Delhi to Kejriwal, for there is no way that the latter can lose the vote; if, on the other hand, Modi refuses to hold a referendum he will be exposed as an an autocrat and, worse, as backing away from a fight with Kejriwal. To show any weakness in any jungle – and Delhi is nothing but a primeval jungle, believe me! – is fatal. Modi must surely have learnt that from his Gir lions!

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