Kejriwal opens up Pandora’s box

Is Delhi Chief Minister Arvind Kejriwal chasing a pipe dream by trying to seek a referendum on full statehood for Delhi? Should Delhi have a referendum on this issue or will it open up Pandora’s box? 

Whether he succeeds or not, Kejriwal has indeed started a debate when he tweeted after the Great Britain’s exit from the European Union last week "After UK referendum, Delhi will soon have a referendum on full statehood.”

A full statehood to Delhi has been a long pending demand. Interestingly, Kejriwal's predecessors had also been seeking it as they felt their hands tied with current limited powers. Kejriwal’s predecessor Shiela Dixit had made it abundantly clear that with the police not in her hands, she could not have done much when the Nirbhaya rape rocked the capital.

 She was opposed to the multiplicity of agencies ruling Delhi. The BJP, too, before AAP came to power, had made a similar demand.

The unprecedented success in last year’s Assembly poll has emboldened AAP to pursue the demand for full statehood. Last month Kejriwal had released online the Delhi government's draft bill on full statehood. 

The draft retains control of areas under NDMC with the Centre and seeks to include subjects like policing, law and order, land and services, currently outside its purview under the Delhi government. The official period for public feedback ends on June 30.

Historically, soon after the 1975-77 Emergency, the Janata Party government tried to introduce a provision for referendums through the Constitution (44th Amendment) Bill, 1978, but this did not materialise. The only instance of state-sanctioned direct democracy was in Goa.

 Sanctioned by a law enacted for the purpose, it was called the Goa Opinion Poll, 1967, to decide the future of the Union Territory of Goa, Daman, and Diu within the Indian Union. Goa finally became a state in 1987 during the Rajiv Gandhi era following persistent demands including a resolution for full statehood in the Goa Assembly in 1976.

Those who are supporting the idea include former AAP leaders like Yogendra Yadav. They argue that just because the Constitution does not provide for it, the subject cannot be barred. Also, granting statehood to Delhi is also in line with the idea that sovereignty lies with people and elected representatives by people of Delhi could deal subjects affecting Delhi residents wholly.

Those who oppose argue that Delhi has specific characteristics as vital institutions such as Parliament, Supreme Court, and foreign embassies are located in the capital. Secondly, most new capitals around the world are administered as a Federal territory distinct from states. Beijing, Canberra, Washington DC, Ottawa, and many other major capitals are examples of this pattern. Also holding a referendum might open up the Pandora’s Box.

 Since there is no provision in the Constitution, which legal provision will govern this intended process? Kejriwal is not clear how it could be conducted. Will it be the Election Commission or any other state or Central agency is not very clear?

Experts say that in the absence of a Constitutional provision, there should be an informed debate on the issue and Kejriwal simply cannot impose a referendum on the people of Delhi without due consideration. Where is the guarantee that such an emotive issue would not result in law and order problem?

Secondly, it might lead to other Union Territories making such demand. Delhi is only one of seven Union territories (UT) as listed in Schedule I of the Constitution. The Union Home Ministry through the Lt Governor administers them.  Delhi, being the capital of India the Union Government is reluctant to hand over the police and land power to the state government. 

There is a historic reason for this. In 1911, when India’s capital was shifted from Calcutta to Delhi, the British Government did not bring Delhi under any state, but it was given the status of capital of British India. The father of Indian Constitution, Dr. BR Ambedkar, who as chairman of the Constitution Drafting Committee, after studying the federal structure of government in the US, Australia, Canada, etc noted that the national capital can’t be under a state or a local government. 

The States Reorganisation Act, 1956, didn’t merge Delhi with any other state and left it as a national capital. In 1989 when Parliament passed The Government of National Capital Territory of Delhi Act, 1991 granting full statehood to Delhi was not agreed to. Delhi Assembly was given the powers to govern and make laws on all but three subjects – public order, police, and land.

Thirdly, while many including some European countries follow the referendum route on crucial issues, India, though the largest democracy, is not yet mature enough to do so and the exercise will involve huge costs.

So why is Kejriwal harping on the referendum idea? Is it because he wants to divert attention from controversies surrounding his government and the party? Or is it because he wants to divert attention from the fate of 21 of his MLAs who might lose their membership on the office of profit issue? 

How does he propose to make sure that the Parliament will vote for the amendment to the Constitution that would require a two-thirds majority to enable Delhi has its referendum? He has just three MPs. The simple answer is that he believes in confrontational politics and this is his way of dealing with issues.