A bad day and two lessons for BJP

Aam Aadmi Party in Delhi and the Uddhav Thackeray faction of Shiv Sena scored “moral victories” in two constitutional bench verdicts delivered by the Supreme Court on Thursday. However, it is far from clear that the verdicts will change the ground situation in the two states concerned, Delhi and Maharashtra, immediately.The big message from the highest court is that a state governor cannot whimsically decide when to order a floor test in the legislative assembly, and a lieutenant governor cannot control the administrative services of his Union Territory when there is an elected legislative assembly in place.In the first case, where AAP had challenged the right of the Centre to control administrative services in Delhi, a five-judge bench headed by Chief Justice DY Chandrachud emphasised the simple federal principle of power and responsibility going together. If an elected government cannot control its own administrative officers, it would be a negation of its own powers under the Constitution. This means control of the bureaucracy now reverts to the Arvind Kejriwal government, and LG cannot take an independent call on their appointments or transfers. However, this administrative control does not extend to the three subjects the Delhi government cannot legislate on, which are public order, land and police. So, in effect, what the court has said is that Delhi will have two separate governments running the show, and LG does not have supremacy in matters allocated to the elected legislature.If BJP wants to overturn this, it will have to specifically legislate a new law in Parliament to supersede any law enacted by Delhi. Article 239 AA of the Constitution, which enabled the creation of a legislative assembly for the National Capital Territory, says in sub-clause (3)(b): “Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof.” It is worth noting that even in the US, Washington DC, the territory carved out of two states (Maryland and Virginia) to create a separate national capital, does not enjoy the powers of regular states. Residents of DC do not have the same voting rights as other states in the federation. While they can vote in presidential elections, they do not have the right to elect their own nominees to Congress.In Delhi, citizens can elect representatives to the municipality, the state assembly and Parliament, which means that no citizenship rights are circumscribed. What was left ambiguous was the question of who, the elected Delhi government or the Union government, held primacy. The answer now is: both are legitimate, but in different areas.The issue is partly political, and partly about the principle of whether a national capital should be subservient to the Centre in all matters, or whether it should have some leeway to meet the aspirations of the people who elect its government.If BJP wants to reduce Delhi to a regular UT where the Centre’s will always prevails, it will have to amend the law in Parliament. It cannot use LG to undermine the elected government. The court verdict is crystal clear on that.The Maharashtra verdict is more complicated, for the constitutional bench made several observations while passing one issue up to a larger bench. First, it said the governor’s decision to ask the Uddhav government to seek a vote of confidence in June 2022 based on dissent within Shiv Sena was wrong and not based on objective criteria. At that point, no Shiv Sena legislator had formally indicated that he or she was leaving the party or planning to defy its whip.Second, the court rejected the idea that the Eknath Shinde faction could appoint its own whip through a vote in the legislature party. That right belonged to the political party, and not its legislators.However, the bench stopped short of restoring the Uddhav government as the latter made the strategic mistake of resigning before the trust vote. The court indicated that if that had not been the case, it could have restored the government. Curiously, it did not make any pronouncement on the Election Commission’s decision to recognise the Shinde faction as the real Shiv Sena.That case may bubble up separately to the apex court. The court’s negative references on the roles of Delhi LG and Maharashtra governor will leave red faces in BJP, but then politicians are often unfazed by legal embarrassments. Where this leaves the ultimate fate of the Shinde government is unclear. SC rightly decided that it will leave the decision on disqualification of MLAs belonging to the Shinde faction to the speaker.Since the speaker, Rahul Narwekar, belongs to BJP, one must presume that he will not deliver any verdict that will rock the Shinde-BJP boat in the legislative assembly. The question of moral legitimacy will depend on whether voters see the Shinde rebellion as legitimate or not. Another question, about whether a speaker facing a vote of no-confidence can decide on disqualification petitions, is now being referred to a bigger bench. This bench will have to re- examine the 2016 SC verdict in the Nabam Rebia case where the Arunachal Pradesh speaker had disqualified some MLAs when some of them had moved a motion of no-confidence against him.The court held that disqualification cannot be done if a motion against the speaker himself is pending.The lessons for BJP are clear: there is a limit to how far governors can be pushed to further a party agenda. Secondly, if it does not want an empowered Delhi government, it must amend the law in Parliament, and not use the LG to decide on matters that are now in the remit of the Delhi legislature.The writer is Editorial Director, Swarajya magazine