PREM SHANKAR JHA | 21 MAY, 2015
Lt Governor Najeeb Jung and Delhi Chief Minister Arvind Kejriwal: Nothing to smile about
NEW DELHI: Delhi’s establishment is treating the spat between the new state government and Governor Najeeb Jung as a continuation of the theatre they witnessed during the Aam Aadmi Party’s 49 days in office in 2014. They could not be more wrong. Sixteen months ago AAP was a minority party that knew from the outset that it did not have the legislative power to implement any of the reforms it had promised the voters, and was therefore torn from the beginning between trying to make a go of it in Delhi and trying for a wider mandate by fighting the parliamentary election. Many of its accusations and promises could have been dismissed as grandstanding to attract support.
Today Arvind Kejriwal heads a government in a territory that is larger than 11 Indian states that enjoy full autonomy under the Indian constitution. He heads a party that has secured an unprecedented 54 percent of the vote -- the highest won by any party in any election during India’s 67 years of freedom – and 96 percent of the seats in the state assembly. But he is being prevented from taking decisions that he and his ministers feel are necessary to enable them “to deal with matters of concern to the common man” by an unelected appointee of a central government that was wiped out in the very same election that brought the AAP to power.
To anyone with no axe to grind in the conflict this is a travesty of democracy. It would have been a travesty had it occurred in Mizoram or Arunachal Pradesh. It would have been a travesty even in Puducherry, the only other union territory that also has its own legislature and judiciary. But in Delhi the conflict also has a profound political and moral dimension that is turning it into a potent threat to the future of Indian democracy.
The 69th constitutional amendment, which created the National Capital Territory of Delhi, gave the elected assembly and government the power to pass laws and implement them in all but three subjects that fall under the states’ list in the Constitution. These are public order, police and land, all of which remain the exclusive preserve of the central government. The amendment also provides for the automatic supremacy of any law passed by parliament over a law passed by the Delhi assembly on the same subject, and gives the governor the right to refer any difference of opinion he has with the government to the President for decision.
The wisdom of these exclusions, particularly of the police, has been questioned by Kejriwal’s predecessors, for it has deprived the NCT government of the coercive power that any State must have to secure compliance with law. But the clash between Governor Jung and Kejriwal has not arisen out of these three exclusions. It has arisen out of Jung’s refusal to allow the chief minister and his cabinet the freedom to choose the officials they will work with. If Jung is allowed to prevail it will set a precedent that will deprive future elected governments in Delhi of control over the bureaucracy as well. The Delhi state assembly and its government will then be left with about as much real power as gram panchayats enjoyed before the 73rd amendment . It should not be surprising, therefore, that nowhere in the entire 69th amendment is there any whiff of qualification to the state government’s right to choose its own officers.
The Governor, and his backers in the central government are relying upon a part of a single clause in the 69th amendment to deprive the state government of this right : “…. it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary” .
But the first half of the same clause makes it clear that he enjoys this right only if he has first referred the disagreement to the President , not the chief minister, and it is the President who has not yet given his decision. Jung did not take this matter to the President till Tuesday May 19, i.e four days after he had forced Shakuntatala Gamlin’s appointment upon the chief minister.
Arvind Kejriwal is therefore absolutely right to be aghast at Jung’s violation of the constitution. What Jung is trying to engineer is nothing less than a coup d’etat by administrative paralysis against a government put in power by nine million people in Delhi who gave their votes to AAP in the belief that it will curb the relentless extortion and oppression they suffer at the hands of Delhi’s police and petty bureaucrats. What is more, this drama is being watched by hundreds of million others who will also conclude that India’s power elite will not let the poor have a hand in determining their future through democracy. Many will conclude that the only way left open to them is through violence.
Kejriwal has been subjected to a barrage of criticism in the media for refusing to appoint a lady from the north –east (implying gender and ethnic bias) and spreading unfounded allegations against her, thereby damaging her reputation. But the same media have conveniently overlooked the fact that none of this would have happened if the Governor had not first summarily rejected Kejriwal’s choice of S.P Yadav, an officer noted for his integrity, as Sharma’s temporary replacement, on the grounds that he is ‘too junior’.
Kejriwal, who had, at the request of the Governor, approached two other senior officers to take up the post, but been turned down, would have accepted Gamlin had his power minister not warned him that she was in the midst of a controversy that had arisen out of her insistence that three Power distribution companies (discoms), to whom the government had refused to give loan guarantees on loans amounting to Rs 11,000 crores, should be given “ letters of Comfort” instead.
Upon inquiring from experts and from the Union Power ministry, his power minister had found that a “letter of Comfort” is a guarantee in a different guise. He therefore advised the chief minister not to appoint Gamlin till his doubts concerning her motives had been cleared. Kejriwal’s decision is therefore entirely justified for it goes to the core of the issue of confidence in the bureaucracy.
It is difficult to judge how much Kejriwal’s somewhat intemperate attack on Jung for being a tool of Reliance Industries during his previous 49 day stint in office, is responsible for personalizing the conflict between them today. But that might explain why Jung has thrown caution to the winds in trying to render the AAP government impotent, even if he fails to force it out of power. For his actions have raised questions about his own motives that should never have been allowed to surface. Chief of this is his own connection to Reliance industries.
In 1994 Jung was the joint secretary (Exploration and Development) in the ministry of Petroleum when ONGC’s Panna Mukta oilfields were sold to a Reliance-Enron consortium in which Indian oil also held a 30 percent share. The deal attracted such an unfavourable report from the Comptroller and Auditor-General that the Narasimha Rao government opened a CBI inquiry into it. The Investigating Officer concluded that large sums of money had passed hands in the deal, but the CBI took no further action and in 1997 when a PIL case was filed against Reliance, claimed that the IO’s notes had been destroyed. The case therefore died on insufficient evidence , but the CBI drew severe strictures from the Supreme court for ‘losing’ the IO’s notes.
Jung had in the meantime taken leave from the IAS to serve the first of two stints, totaling eight years, at the Asian Development Bank. Between 1999, when he resigned from the IAS, and 2008 when he returned to India, he also spent two three-year spells at the Oxford Institute of Energy studies. During the second of these he was a consultant to Reliance Europe, and to the well known Observer Research Foundation, which is also funded by Reliance Industries. When he returned to India in 2008, he joined the ORF as its director, energy research, and also served as a consultant to another Reliance company, named the Reliance Global Management Services. RGMS is a mysterious company. Bloomberg’s company Overview page failed to list a single key executive, a single executive committee member or a single ‘company insider’ whom prospective clients could, presumably, contact. Strangest of all, Jung’s biography on his official web page fails to mention any of his connections with either these Reliance companies or the ORF. Today two of the three power ‘Discoms’ for whom Gamlin was attempting to secure a government loan guarantee belong to the Reliance ADAG group of companies.
It is possible to read too much into these connections, for which there can be a dozen perfectly innocent explanations. But given both Reliance groups’ public image, and the commitment to fight corruption and bureaucratic extortion that brought AAP to power, no one can blame Kejriwal for wanting to steer clear of appointments that can later rear up and bite him in the face. Quite apart from respecting the chief minister’s prerogative to choose his own key civil servants, Governor Najib Jung should have understood his reservations even if he did not share them.
Today, as I write, it is up to President Pranab Mukherjee to recognize the danger in which these intemperate actions have put Indian democracy and compel the protagonists to back off. Governbor Jung has gone much too far, and Kejriwal too has not shown the respect for his sensibilities that he merits. It is time both were made to back off and bring the dispute back to a level where its resolution will strengthen Indian democracy instead of hurting it.