The judgment of the constitutional bench has been greeted with general approval by all political parties and with great euphoria by the Aam Admi Party (AAP). What emanates from three separate judgments delivered by the Chief Justice of the Supreme Court and his two brother judges is, first, a veritable history of the administration of Delhi. The labyrinthine route that was traversed over several decades of administering the Capital has been captured in copious detail. It is hoped that it would bring some sobriety into the grandstanding by a host of actors.
The Supreme Court’s Wednesday verdict has made three very important deviations from the Delhi High Court judgment of August 2016. It has dispelled the idea that the elected government has to wait to implement its decisions until the lieutenant governor (LG) acquiesces. More specifically, the advice given by the council of ministers is binding on the LG. But only as long as the LG does not exercise his constitutional power to differ and refer the matter to the President for a decision. Although it has been emphasised that this power is not to be exercised mechanically, anything that has sensitivity or can cast a financial burden which is beyond the government’s capacity or cause political problems with the Centre or other states will fall in this area. This actually covers a lot of area.
What does all this mean for Delhi’s citizens? First, as long as every decision has been taken within the ambit of the Transaction of Business Rules 1993 ,which mandates informing the LG of decisions taken by the council of ministers or even by an individual minister, implementation of decisions can start without awaiting approvals. But the Rules also have two important sub-chapters which refer to examination and concurrence by the finance and the law departments. This means a host of proposals can be called to question. Just a note of dissent given by the departmental secretary will give a handle to the LG to differ and withhold further action.
That there ought to be discussion, dialogue and a genuine effort to solve problems is inbuilt in the rules, and has been reiterated strongly by the three judgments. For example, embargoes on vehicles converging on Delhi’s roads or placing restrictions on hospitals or educational institutions by the council of ministers would have implications for the governance of the Capital — it belongs to the whole country. So, restrictions cannot be imposed without the LG having had an opportunity to discuss the pros and cons and return the matter for reconsideration. In Delhi’s case, the LG can differ, ask for reconsideration and make a reference to the Centre. Till a decision comes, the LG’s orders would prevail. So, it is not all plain sailing.
Under the Transaction of Business Rules, consultation with the finance and law departments is mandatory and the chief secretary — the secretary of the cabinet — has to ensure that the cabinet note has followed the process very elaborately spelt out in the 1993 rules. These have been alluded to by the apex court at numerous places in the judgments. In other words, getting advisers and consultants to prepare cabinet notes and clearing them with a simple nod will not work. Haranguing officers and imputing motives to them will not result in either compliance or implementation. At the end of the day, the proof of the pudding will be in the delivery of promised services — not in a display of strongman tactics to impress constituencies.
On the face of it, it may seem as though the Delhi government will now have the authority to make laws on all subjects, excluding those which fall directly under the LG’s authority. But that is actually not so. For instance, the Jan Lokpal Bill and the mohalla committee strategy. Both have been points of confrontation, resulting even in the resignation of the chief minister in his first term. Nothing has changed with all the judgments of the Supreme Court. The apex court has reiterated that any law which is repugnant to a law made by Parliament cannot be passed by the legislative assembly. And indeed these bills or concepts would even now run into repugnancy issues and will be negated as Parliament’s laws do not envisage such deviations being made to the existing central acts.
If the spirit of the judgments is to be read, all postings and transfers of officers should return to as it was in the Sheila Dikshit era, with only the postings of principal secretaries needing the acquiescence of the LG because that makes for better management with the Centre which controls the cadre. However the selection and posting of the chief secretary, the home secretary and secretary lands needs the specific approval of the LG as per the Transaction of Business Rules, which have now been accorded a new sanctity.
The judges have explained that the administrator as per rules has to be apprised of each decision taken by a minister or council of ministers and difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance. “The element of trust is an imperative between constitutional functionaries” so that their governments “can work in accordance with constitutional norms”.
Last but not least it is curtains for the idea of statehood. As long as Delhi is the national capital, it is everyone’s capital and the voice of non-Delhi citizens have to be heard through the central government acting on the decisions of Parliament. AAP’s hopes were misplaced and should not be resurrected afresh.
The writer is former chief secretary, Delhi.
Guests: Shailaja Chandra, Former Chief Secretary, Govt of Delhi ; P D T Achary, Former Secretary General, Lok Sabha and Constitutional Expert ; Sanjay Hegde, Sr. Advocate, Supreme Court ; Sachidananda Murthy, Resident Editor, The Week magazine.
Anchor: Girish Nikam
Air date: Aug 31, 2016
Experts talk about the successes and failures of Kejiwal’s AAP government after as it completes a year.
Guests: Shailaja Chandra (Former Secretary, Delhi Govt.) ; S. Mukherjee (Congress) ; Nalin Kohli (BJP Leader); Badshah Sen (Sr. Journalist) ;Ashish Khetan (AAP) and Anchor: Karan Thapar, Consulting Editor.
Amid the blame game and confrontation between the Aam Aadmi Party-led Delhi government and the Bharatiya Janata Party-led municipal corporations, the indefinite strike of the civic body employees entered its tenth day on Friday. Despite the Delhi High Court’s intervention and a stern warning by commissioners of North and East MCDs to employees to call off the strike and resume duties with “immediate effect or face action”, the striking doctors, paramedical staff, engineers, teachers and sanitation workers are not ready to bow down. They are demanding a “permanent solution” to their salary problem.
Firstpost spoke to former Delhi Chief Secretary Shailaja Chandra and sought to know from her the origin of the present crisis. She said every year the commissioners of the corporation – during her time it was a single entity – would plead for a grant or a soft loan to clear the salaries of the employees, citing reasons why the corporation had run short of funds. Invariably, the lament from the corporation even then was that the finance and urban development departments had not taken important factors into account and omitted making provisions for supporting MCD.
“It was a regular feature and had happened during my tenure as chief secretary as well. But it used to be resolved with some give and take on both sides. The effort being to harmonise the points of view of the finance department and the municipal corporation. Politics never came into the picture. If the impasse continued, the discussions were raised at the level of the chief minister and there would invariably get resolved.
“In no case did the differences reach the media and certainly not the streets by allowing mounds of garbage to accumulate everywhere. The bottom line was very simple: a solution had to be found and citizens should not be harassed, come what may. It was an unwritten understanding and the political executive and officers from the government and the MCD understood this,” she said.
“This dispute is an annual feature and is something that can be resolved. If there are anomalies caused by trifurcation, these have to be addressed and solutions found. The answer does not lie in blaming each other and stopping salaries,” she said.
Asked how the issues used to be resolved earlier, she explained, “There was always disagreement. Either the finance secretary or the chief secretary would take a call. Or if that did not work, the corporation commissioner would raise the level by meeting the chief minister (CM) or the lieutenant governor (LG) and seek their intervention because the matter was not receiving due attention at the official level. Despite the NCT government and the central government being from different and opposing political parties, the CM or the LG always used to give a hearing and take an administrative decision.”
Why is the same not happening now?
Because unfortunately, according to the former bureaucrat, it has become a subject for political grandstanding in full public view. Also worrying is the fact that officers do not seem to be exerting themselves perhaps because their advice is not heeded. “Officers find solutions when they are asked to do it. But if they are told to stay away, why will they give any suggestion and how will anything ever get done? After all, you may have any number of advisers but if you don’t rely on precedents and the institutional memory available confusion will take over,” she added.
Moreover no one, said Chandra, is exerting themselves to raise revenue. “If some drastic improvement is promised through taxation, public will go along but first they must see a tangible benefit which will come in a time-bound manner. If such an approach is adopted, the government may also not mind doing some temporary hand-holding. But one does not find that vision in the corporations,” she said.
The former chief secretary is not convinced that funds of the order claimed have been denied by the Delhi government “because from the figures put out in the press, which have not been contradicted by anybody, it is apparent that the government has been incrementally raising the amount of money given every year. And in no way has it gone down this year”.
It means, according to Chandra, the corporations – particularly the North and the East – have failed to raise property taxes, which is very irresponsible.
When the unit area method of tax calculation was introduced, the understanding was that a Municipal Valuation Committee would be set up every two years which would recommend raising house tax proportionately. There are A to F category colonies and the number of dwelling units is known.
“In such a legislation, one can tax the colonies having more facilities at a higher rate and reduce it as one moves downwards to less affluent areas. But you cannot maintain status quo for more than 12 years, which is what they have done from 2003 (when the Act came into effect). Definitely if the scope of revenue collection is skewed in favour of South MCD (which is considered rich), it has to be set right through discussion and if that fails through legislation. But first the anomalies and the reasons for it have to be pinpointed leaving no room for claims and counter-claims as is happening now,” she said.
Of course, she said, South MCD is the newer part of the city with large organised residential colonies, expensive properties. But always saying that they are rich and we are poor is not a “tenable argument” because it is just a statement.
“Nobody so far has actually given the exact number of properties within the tax net in all the three corporations and the numbers that have been ignored either because of apathy or connivance. For any financial decision, one must have a figure on the number of dwelling units falling in categories A to H and how many dwellers are actually paying you taxes. Whole of the Walled City in North Delhi is also very congested and raising taxes there may not be easy or practical,” she said.
“Another argument is that East DMC has less income because it has too many unauthorised colonies but what proportion of their populace resides in these colonies? Are the regularised ones paying taxes? East DMC must declare the number of the taxable properties lying in its jurisdiction which are not being taxed. If they are in so much in the red, they should think of innovative measures to raise money,” she said and suggested few measures:
Why are people being permitted to park their vehicles on the roads at night? All the three civic bodies can independently or collectively frame policies to charge people heavily for using public space for private use. The same goes for cars and sentry boxes parked on pavements. As for those who display merchandise on the market pavements, they should be liable to be fined heavily or rent taken if they are being permitted to display or sell goods from public spaces.
It needs regulation and enforcement – but neither is being done. In all markets in the city, the pavements have completely been encroached upon. The fine is too low. Why? What steps are the Delhi government and the MCDs taking to increase income?
“I think that there may be a little truth in the fact that when it was a unified MCD, it was easier to take money from one pocket and put it into another and have some sort of equity. But it cannot become a lifetime excuse,” she added.
Asked why the Fourth Finance Commission, as demanded by the BJP, was not implemented and how legal is the Delhi government’s response that it would accept it only if the panel’s recommendation for handing over the DDA is accepted by the Centre, she replied “The recommendations of the Finance Commission could have been considered and implemented during President’s rule but perhaps being a complex and contentious matter, it was left for an elected government to take a view.”
She added: “When the government took over, it took the approach that the Finance Commission’s recommendations should be implemented fully. Along with the devolution of a percentage of the Delhi government’s resources on the MCDs, it has been stated by AAP spokesmen on TV channels that there were recommendations relating to handing over DDA to the Delhi government. But so far, no one has belled the cat. On a broader plane, if the report has indeed made recommendations relating to the DDA (I have not read the report ) but if it is correct, it is totally outside the purview of the Finance Commission. DDA deals with land, which is not constitutionally under the Delhi government. So, in a way, the AAP government is asking for a constitutional amendment while highlighting the narrow recommendation relating to the DDA. Therefore, it is not implementable and the whole matter has remained up in the clouds.”
Speaking from Bengaluru, where he is undergoing naturopathy treatment, Chief Minister Kejriwal on Wednesday announced a bailout package of Rs 693 crore in a bid to woo the agitating workers of the municipal corporations. He also said, “You cannot tell us to give the money and not give us DDA which is our due and integral to the Finance Commission’s recommendation.”