Time to resolve Delhi’s governance muddle

K Sujatha Rao

Former Union Health Secretary

THE May 19 ordinance issued by the Centre regarding the system of governance in the Government of the National Capital Territory of Delhi (GNCTD) has once again brought to the fore the issues of governance, accountability and the role of the bureaucracy. Much has been written about the legal validity of the ordinance and the May 11 Supreme Court judgment that triggered it. Even as the apex court has now issued a notice to the Centre on the Delhi government’s plea challenging the ordinance’s constitutionality, the impact of the ordinance on accountability to the people of Delhi, insofar as it concerns addressing their aspirations and needs, must be assessed.

Issues related to separation of powers and responsibilities, functions and duties in the governance model of GNCTD have a controversial history. The Capital’s governance-related issues go beyond the immediate concerns of a local government, such as, for example, in matters related to law and order, police and land. For this reason, the Union government has jurisdiction over land and public order, leaving the remaining subjects to be administered by the elected government of the GNCTD, though not without caveats on its autonomy as a UT with an elected legislature.

The dispute between the Centre and the GNCTD is, however, regarding ‘services’ — not so much about recruitment, but rather pertaining to postings and interdepartmental transfers once the officers are recruited and deployed in the UT. The officers of the GNCTD are a combined cadre administered by the Union government for purposes of recruitment, allotment and inter-UT transfers.

Balancing this dual control has always been problematic, calling for understanding and mutual respect. The sharp polarisation, with adversarial political parties ruling the Centre and the state, has sharpened the conflict for control, resulting in the GNCTD approaching the Supreme Court for clarity. The SC, in its elaborate order, had concluded that the GNCTD must enjoy full supervisory powers over the bureaucracy once they are allotted to Delhi UT, triggering a sharp response from the Centre by way of the ordinance.

The ordinance has three critical aspects that are causing concern to the elected leadership of the GNCTD: (i) It takes away all powers of appointment and placement of officers and their interdepartmental transfers from the Chief Minister and vests them in a recommendatory body called the National Capital Civil Services Authority headed by the CM and consisting of the Chief Secretary (CS) and the Secretary, Home, with decisions based on the majority opinion; (ii) It empowers the bureaucracy to veto any order or instruction issued by the political executive on the grounds of legality, with any difference of opinion adjudicated by the Lt Governor, whose decision will be final; (iii) It empowers the CS to veto the agenda and papers to be placed before the Cabinet, and allows the CS and LG to veto any Cabinet decision.

Simply put, the ordinance severely curtails the powers of the Chief Minister and his Cabinet to formulate policies and makes his functioning subservient to a bureaucracy that is directly controlled by the Union government. The wording of the ordinance leaves little room for manoeuvre or negotiation, compromising the elected government’s capacity to govern.

Public policy has two dimensions — formulation and execution. While it is for the political executive to articulate the policy, laying down its aims, objectives and broad contours, it is the bureaucracy that is responsible for its implementation under the supervision of the political executive, which in the ultimate analysis is accountable to the people. This is the broad framework of governance irrespective of the nature of the political architecture — democracy, autocracy, elected autocracy or dictatorship.

If articulating a clear policy is one challenge, the bigger one is executing and administrating it well. This calls for the political leader to not only have a nuanced understanding of how the system works but also an uncanny ability to place the right person in the right job — an ability that is actually quite rare, as most postings are done based on extraneous reasons rather than suitability, often adversely impacting outcomes.

Besides, bureaucracies are organised systems which cannot work effectively with too many authorities and power centres — a fact amply illustrated by the manner in which the Covid pandemic was handled in, say, Mumbai and Delhi. Thus, the power to appoint, remove, monitor and control officers implementing policies is one that must be enjoyed in an absolute sense by that entity which is also held directly accountable for the outcomes.

This principle of accountability that is a fundamental characteristic of governance is compromised by the ordinance as it introduces an asymmetry of power balance — the responsibility to deliver is that of the CM, but the levers of power over the instruments for delivery are with the Union government, which has no responsibility in this regard. In this scheme of things, officers get caught in between — damned if you do, damned if you don’t. A more serious side-effect of such systems of dual authority is the indiscipline and arrogance that it breeds among the officers which, in many instances, also damage their careers. The ultimate losers in these power games are the people.

The ordinance does not set a good precedent. Going by the manner in which the Centre has exercised its powers unchecked, whether in partitioning Andhra Pradesh or converting a state into a UT or now appropriating powers of GNCTD, without due consultation, should be of concern as it threatens not just federalism but also the principle of accountability. If the Union government desires and seeks to control the administrative machinery, it should also be held accountable for the implementation of the policies and their outcomes.

It is hoped that a clear view based on principles and the basic structure of the Constitution will be taken to settle the matter once and for all. Ambiguity and lack of clarity have already done a lot of harm by denying the people their right to good governance.

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