The many analyses explaining the Aam Aadmi Party’s poll debacle in Delhi are missing one important player – the Supreme Court.
After a decade in power, Arvind Kejriwal’s party lost Delhi to the Bharatiya Janata Party by around 2% vote share. Analysts have since picked apart the reasons – poor sanitation, water supply issues, crumbling civic infrastructure, unemployment and the failure to retain swing voters, among others. While AAP had made strides in education and the power sector, it is now clear that voters expected more.
It’s not that AAP has never delivered on its promises; Delhi’s health and education landscape, for instance, saw the changes the party brought in. It is for this reason that it secured 62 out of 70 seats in the 2020 assembly election and won the most seats in the Municipal Corporation of Delhi (MCD) election in December 2022. The real question then is: was it unwilling to continue to make good on its promises, or did circumstances and other players make this impossible?
The trouble began long before the liquor policy case that eventually ensnared AAP’s top leadership. Bit by bit, the elected Delhi government’s powers to govern had been taken away by the Union government, and the judiciary allowed this to happen.
A long fight over controlling the services
The elected Delhi government had been in a constant state of battle with its own bureaucracy since May 2015, when the Union Ministry of Home Affairs issued a circular granting the Lieutenant Governor (LG) total control over services. Bureaucrats follow power, and whoever holds the authority to transfer, appoint or punish them is the real boss. Stripped of this power completely, Kejriwal’s government rushed to challenge the circular in court.
After a year and half, the Delhi high court ruled in the LG’s favour. When the matter was appealed at the Supreme Court, the court took another two years to deliver a verdict distinguishing between the LG’s role and that of the elected cabinet. This July 2018 five-judge Constitution Bench judgment was a partial victory for the AAP – it held that the LG had “no independent decision-making power” and was “bound by the advice of the elected government”. However, the crucial question of who controls the services was referred back to a two-judge bench, which, after seven months, delivered a split verdict. What followed was judicial abdication at its most consequential. Instead of promptly constituting a larger bench, the Supreme Court left it in cold storage for four years.
While the courts dilly-dallied, governance suffered. In 2015, the Anti-Corruption Bureau was taken away from the elected government’s control, crippling AAP’s promise to prosecute the corrupt. Officers refused to follow ministerial orders, safe in the knowledge that they reported to the LG. No one took responsibility when the chikungunya outbreak paralysed parts of the city in 2016. In 2017, Kejriwal and his cabinet staged a sit-in at the LG’s residence over allegations that he was sitting on files related to AAP’s flagship Mohalla Clinic scheme.
In February 2018, the crisis reached boiling point. Delhi chief secretary Anshu Prakash accused AAP leaders of assaulting him at Kejriwal’s residence. What followed was a full-blown administrative revolt: officers boycotted meetings and governance ground to a halt. The elected government’s hands were tied – but from the front, allowing it some space to move and storm back to power in 2020.
In May 2023, after four years, a five-judge Constitution Bench led by Chief Justice of India D.Y. Chandrachud finally ruled in the elected government’s favour, affirming that control over services must rest with the elected government. The judgment was emphatic in its defence of representative democracy: “If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant… A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform.”
It was a cause for celebration for AAP leaders. Following the judgment, panic set in among officers in the Delhi Secretariat. Those who had once been defiant – some even openly rude to their ministers – suddenly changed tack. Officers who had previously ignored ministerial directives now loitered outside their minister’s office for hours, hoping for a brief audience, a casual greeting, anything to signal their loyalty. The shift was almost comical – body language once marked by defiance softened into submission.
A very brief win
AAP’s celebration was short-lived. Within a week, the Modi government promulgated an ordinance reversing the court’s verdict, restoring the LG’s control over services. By August 2023, Parliament had ratified it as law. The court’s judgment itself contained the seeds of its own undoing.
Paragraphs 6, 95, and 164(f), as quoted by Union home minister Amit Shah himself while debating the Bill in parliament, left just enough space for the Centre to waltz in and reverse the ruling. “However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law,” the court held in Para 95.
Given the court’s deep institutional experience, it is difficult to believe that the judges, and author of the judgment CJI Chandrachud, were unaware of the consequences of their phrasing. Judicial foresight is not just about interpreting the law – it is about anticipating its implications and, sometimes, pre-empting them. The CJI’s judgment, affirmed by the other four judges, effectively handed the Centre a loophole on a silver platter.
When AAP challenged the new Delhi Services Act 2023 in the Supreme Court, Chief Justice Chandrachud – who, as the Master of the Roster, controls case listings – referred the challenge to a constitution bench but never listed it despite multiple requests by Delhi government’s lawyers. A year and half later, he retired without taking up the case. His successor, Chief Justice Sanjiv Khanna, has shown the same lack of interest in the matter.
While parliament may legislate on matters concerning Delhi, does it have the power to do so in a manner that takes away the basis of a representative democracy? If legislative interventions systematically strip an elected government of its powers, rendering it functionally subordinate to an unelected administrator, then what remains of democratic representation? The Supreme Court is yet to decide.
This constitutional crisis has lingered under the watch of five successive Chief Justices of India – Ranjan Gogoi starting 2019, Sharad Bobde, N.V. Ramana, D.Y. Chandrachud (partially) and Sanjiv Khanna. Only Chief Justice U.U. Lalit (Ramana’s successor), despite a mere 73-day tenure, demonstrated urgency, ensuring that a Constitution Bench heard the case. This near-total inertia from the highest court raises serious questions.
On the ground, the Union government turned its focus to AAP’s revamped 2021-22 excise policy, and the LG ordered an investigation into what he called “brazen and blatant corruption” in the awarding of liquor licences. The CBI and Enforcement Directorate (ED) jumped in. As the investigation expanded, the arrests began – one after another, AAP’s top leaders, including Kejriwal himself, were taken down. Bail became impossible, partly because of the stringent bail provisions of the Prevention of Money Laundering Act 2002.
In a highly centralised system like India’s, a government is only as strong as its leadership. Once its cabinet crumbles, the entire edifice collapses. The arrests achieved two things. First, they severely hampered governance, as most of AAP’s cabinet was behind bars. The first two years of its tenure – 2020 and 2021 – had already been washed away by the pandemic. Second, they planted a seed of suspicion in the public imagination, which was enough to tarnish AAP’s once-spotless corruption-free image. The ‘Sheesh Mahal’ controversy only reinforced this perception, lending credibility to the doubts in people’s minds.
The final nail in the coffin
While the AAP fought in this arena, the Supreme Court played yet another move – this time in the MCD. A month after the AAP unseated the BJP in the December 2022 MCD election, a controversy erupted over the LG nominating 10 aldermen (who have to be subject experts) – all BJP members – to the MCD. Although the law allows the LG to do so, the dispute was whether he could do this independently or on the elected government’s advice, as was the long-standing convention. The stakes were high. The BJP, in minority, used the nominated aldermen to influence the balance of power in the MCD’s all-important ‘Standing Committee’ that approves budgets and policies.
While hearing the case in May 2023, Chief Justice Chandrachud orally observed: “By giving this power to the LG, he can effectively destabilise the democratically elected MCD.” Yet, when the verdict was finally delivered 15 months later, it handed the power to the LG. Merits aside, just the delay ended up weakening the Delhi government – 27 pages of legal reasoning had taken over a year to write. But timing, as always, was everything. By the time the ruling came, the damage had been done. Civic issues piled up, local governance ground to a halt, and public frustration mounted.
People wondered – now that power had shifted to AAP, which had long argued that civic issues stemmed from the BJP-ruled MCD, why was there no visible improvement? AAP should have been able to deliver. But what the public did not realise was that the levers of power had not truly changed hands. Judicial delay ensured that the elected MCD remained hamstrung and without the very important Standing Committee.
Now that a “double-engine BJP sarkar” governs Delhi, the fate of the challenge to the 2023 Delhi Services Act is anyone’s guess.
Would the AAP government have been able to deliver if it had control over services? Maybe. Maybe not. But at the very least, the accountability would have been clear – success or failure would have rested squarely on its shoulders and only because the Supreme Court would have created a level playing field.
Saurav Das is an investigative journalist who writes on law, judiciary and policy.
