Monday, March 16, 2015

Rajmohan Gandhi: AAP must come together, not apart // Kejriwal's desperate appointment of 21 'backdoor' ministers

Kejriwal cannot bring about the revolution he wants on his own or with the aid only of people he is comfortable with. Occasionally, he’ll need the comradeship of those whom he might find difficult but who may have valuable ideas

The people of India are masters, not servants. But human beings, especially one’s close colleagues, are often difficult. AAP’s ability to identify with the first truth gave the young party its dizzying momentum. Its inexperience in coping with the second truth has brought the AAP story to a sudden, loud and seemingly ugly halt.

Though I was not one of AAP’s founder-members, the party was good enough, a year ago, to give me a prized Lok Sabha ticket from Delhi. Hundreds of volunteers worked night and day for my victory, but there was a Modi wave and I lost. Later, I was generously invited to join the party’s national executive (NE). When, on February 26, I attended the NE’s 10-hour meeting in Kapashera, my reaction during the first hours of frank sharing was of surprise and admiration.

There was sharp two-way criticism, but throughout the long day those at the receiving end listened with attention and respect. There were very few interruptions. Having long been an advocate (even a practitioner, I thought) of dialogue and listening, I said to myself in Kapashera that here I was being taught those skills by persons some of whom were young enough to be my grandchildren. When his turn to speak came, another NE member, seasoned in politics, said he had never witnessed such attentive listening in his experience.

However, it soon became obvious that something unhealthy too was present in Kapashera: suspicion. Nonetheless, it was moving to hear a gifted young speaker say, in respect of a senior colleague he was sharply criticising, that until the other day a single word of approval from that person had been enough to lift his spirits. I reminded myself that these disputants are people who have lately trusted, respected and loved one another. 

For all the headlines they have made, even the intra-AAP ‘stings’ and ‘exposures’ of recent days have lacked the dynamite of real political war. People who belong to the same side have been separated by hasty misinterpretations that were natural in the aftermath of a tense election season when tickets were given or denied and friction was inevitable.

Take, for instance, the much-discussed belief that one or two senior leaders were hesitant to campaign in some seats or even wished that winning 24 seats in Delhi was preferable to winning 30 seats, apparently reckoning that the latter result could invite the temptation of unsavoury deals. At a time when the eventual result of 67 out of 70 was in no one’s imagination, expressing such a preference was perfectly human and even reasonable. Yet to minds that had fallen prey to suspicion, it was proof of an anti-party heart.

Likewise, there was nothing unusual or evil in Arvind Kejriwal’s alleged wish, unaccompanied by any inducement, that some or all of the eight Congress MLAs in the previous legislature would back AAP in denying the BJP’s (alleged) plan to form a ministry with the aid of the said Congress MLAs. These allegations and counter-allegations hardly constitute the stuff of scandal or of ‘low’ or ‘treacherous’ politics.

If surprise was in order, and even shock, it came from AAP’s eagerness — on the very morrow of a historic triumph — to spend its time on blame and counter-blame, rather than on how to discharge in Delhi the ‘scary’ responsibility, to recall Kejriwal’s phrase, that was triggered by ‘67 out of 70’.

For all his extraordinary gifts and feats, Kejriwal too is human and can only do or take so much. He must be given space and time to regain his health, to do what Delhi’s voters have authorised him to do, and also to enhance AAP’s appeal in the rest of India. He should not be subjected to argumentation all the time.

But Arvind cannot bring about the revolution he wants on his own, or with the aid only of people he is comfortable with. Not round the clock, not every day, but at least occasionally, he will need the comradeship of ‘difficult’ and questioning human beings who may have valuable ideas, talents and perspectives, and whose commitment has earned the trust of a large number of  Indians, including many AAP volunteers. Persons, in other words, like Yogendra Yadav and Prashant Bhushan. And Arvind must insulate his large bold heart against suspicion towards true colleagues.

I, for one, have considerable expectations from Arvind’s days of treatment and reflection in Bengaluru. He needs all the perspective, inspiration and strategies he can find for two huge tasks. One is to meet the hopes of Delhi’s voters. The other is to regain the hopes — lost by the wordy disputes of nearly three weeks — of so many in the nation who expected from AAP not only transparency and a fight against corruption, but also a demonstration of teamwork from persons of diverse temperaments.

The “bhaichara” of which Arvind boldly sang at the oath-taking ceremony in Delhi, and of which India is always in need, has to be shown inside AAP as well. Who expected that a political party standing for the rights of the “aam aadmi” and “aurat”, for transparency, and against the power of money, a party that refuses to build itself on caste, community, tribe or language and identifies itself with all the ordinary people of India, would so quickly emerge as at least an imaginable national alternative to the BJP and the INC?

True, even such a precious party has in recent days revealed its fallibility, revealed it in painful ways that have wounded the very people in whose name the party was born and who carried it to a triumphant milestone on February 10. But I suggest that even during these days of hurtful flaws, the party has shown an encouraging sign or two, such as the apparent willingness of many on both sides of the divide to cease making fresh public criticisms, and the apparent abandonment of the plan to collect signatures for the removal of a few.

Arvind Kejriwal clearly needs space and a free hand to do what he has been mandated to do, and also in choosing his core counsellors. But if Delhi is to be his chief focus for the coming years, he and the party must give a free hand to others to develop the party organisation elsewhere in India.

Kejriwal has earned the right to influence the choice of those who should be given the latter task, but once given that task they should receive complete trust and freedom. For Indians want AAP’s forest to spread across India, and that forest needs numerous strong trees. No matter how brave and compelling, a single tree will not suffice.

Kejriwal's desperate appointment of 21 'backdoor' ministers may face a legal challenge
The beleaguered Aam Aadmi Party (AAP) government in Delhi, facing some serious rebellion between different camps, has made a desperate move to keep its MLAs as happy as possible. In an unprecedented move in Delhi politics, the government issued an order to appoint as many as 21 MLAs as parliamentary secretaries (PS) to its grand total of six ministers. It is not clear if anyone has been appointed PS to Chief Minister Arvind Kejriwal, who does not hold any portfolio.

Under Article 239AA of the Indian Constitution, the number of ministers in the Delhi Government cannot be more than 10 percent of the total number of members in the Legislative Assembly. This effectively means that the size of the cabinet cannot be more than seven, given that the Delhi Assembly has 70 members. Therefore, the option of increasing the size of the cabinet wasn't available to the Kejriwal government.

What then was the solution to placate as many existing MLAs as possible so that internal rebellion is quelled? Find a way around the law with a move that reeks more of political compromise than the avowed goal of appointing "helping hands" that will increase efficacy in governance. Although these 21 parliamentary secretaries will not be receiving any remuneration or perks from the government, according to this report in The Hindu - Deputy CM Manish Sisodia is quoted as saying this is a "totally non-profit arrangement" - these secretaries will get ministerial status, transport for official purposes and space in the minister's office.

The opposition party - the Bharatiya Janata Party - as well as the Congress have criticised the move. BJP MLA Vijender Gupta in fact, called the appointments "lollipops" and wrote to the Lt Governor asking him to oppose the move. So, what is the legality of such appointments? Two high courts have so far categorically ruled on appointment of parliamentary secretaries in the absence of a specific state law - the Bombay High Court (Goa Bench) and the Himachal Pradesh High Court.

It is useful to state here that Delhi does not have any specific law which stipulates the appointment of parliamentary secretaries. States such as Karnataka, Assam and West Bengal, on the other hand, have a specific law. In the May 2007 elections in Goa, which saw a fractured mandate, the Congress formed a government with allies. After forming the cabinet with the maximum number of ministers possible under the Constitution, the then Congress Chief Minister Digambar Kamat hurriedly appointed and swore-in three parliamentary secretaries with Cabinet rank.

The Bombay High Court (Goa Bench) quashed these appointments, terming them as violative of the Constitution on several grounds. It held that the restriction on the size of the Council of Ministers (as laid out in the Constitution) could not be unsettled by any indirect method when it was directly impermissible. Merely being named 'parliamentary secretaries' did not mean they were not similar to ministers. Parliamentary secretaries, it further noted, have access to government records and files. They are de facto (as a matter of fact) ministers even if not ministers de jure (as a matter of law). While the High Court noted that the Chief Minister had wide executive powers under the scheme of our Constitution, (s)he could not make decisions that frustrated the clear constitutional mandate on the size of the cabinet.

The High Court noted that this decision appeared to been made in "undue haste to accomplish a political wish". It was intended to create "political stability by accommodating" MLAs in violation of the Constitution, one serving no public utility or public interest. This decision by Digambar Kamat was a circumvention which deserved to be struck down.

In the Himachal Pradesh example, the High Court, in addition to examining the constitutional provisions, took umbrage at the fact that it was the Chief Minister who administered the oath of office and secrecy to people appointed as parliamentary secretaries. In a scathing judgment, it asked: "Under which law does he (Chief Minister) have the power to administer oath of office and secrecy to these persons?" and "under which law and based on whose authority did these persons subscribe to the oath of office and secrecy before the Chief Minister?" The High Court was categorical that a Chief Minister did not have the powers to administer such an oath.

Indeed, to be sure, the practice of appointing parliamentary secretaries isn't unique to the Kejriwal government. Many governments across the political spectrum have done so earlier. However, the sheer number of parliamentary secretaries appointed by the Kejriwal government (effectively, three de facto junior ministers for each de jure minister) betrays the desperation that the Kejriwal group in the Aam Aadmi Party is facing.
As the Goa Bench of the Bombay High Court described it, this "undue haste" is clearly intended to create "political stability" by accommodating MLAs so that further rebellion is avoided. The legality of this mammoth order is highly suspect, one that deserves a review by the Delhi High Court.