By Ravi Boolchandani, Amity Law School, Delhi.
The main reason for discord in this controversy was, who has the power to appoint and transfer the bureaucrats in Delhi? Whether the power resides with the Lt. Governor or the CM?
Both Kejriwal and Jung accused each other of exceeding their respective authorities but in order to decide the question of veracity, we have to delve into the constitutional rights granted to both the Chief Minister and the Lieutenant Governor of Delhi.
The legal wrangle started when the Chief Secretary, K.K. Sharma went to the U.S. on a personal visit due to which the government had to appoint an interim Chief Secretary. Ergo, Mr. Jung appointed an IAS officer, Ms Shakuntala Gamlin as the acting the Chief Secretary. This was stiffly opposed by Mr. Kejriwal on the grounds that it fell beyond the scope of the Lieutenant Governor’s power to do so without the aid and advice of the Council of Ministers and the Chief Minster. Mr. Kejriwal also expressed his dissatisfaction on the unscrupulous practices of Ms Gamlin and alleged that she had close links with BSES discoms.
Laws taken into consideration-
The laws which are pertinent to understand the powers given to the Lieutenant Governor and the Chief Minister of Delhi are Article 239AA of the Constitution, Section 41 of the Government of National Capital Territory of Delhi Act, 1991 (GNCT Act), “Transaction of Business Rules” and a few other relevant judicial pronouncements.
Delhi: Whether a State or a UT?
Among the seven UTs, Delhi and Puducherry have a very peculiar nature, they are neither UTs nor full-fledged States.
Clause 1 of Article 239 of the Constitution states that “every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him”.
However, Article 239, which deals with Union Territories, is of no use to Delhi. Instead of Article 239, Delhi is governed by Articles 239AA and 239AB (69th amendment, 1991).
Clause 1 of Article 239AA of the Constitution states:
Administrator appointed under Article 239 shall be
designated as the Lieutenant Governor.
- Article 239AA(4) states: “There shall be a Council of Ministers…in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.”
After reading the above provisions, two deductions can be made:
- Lieutenant Governor can take decisions only after seeking the “aid and advice” of the Chief Minister in exercise of all matters on which the Legislative Assembly has power to make laws. Clause 3(a) of Article 239AA states that the Legislative Assembly of the NCT of Delhi “shall have power to make laws for the whole or any part of the NCT with respect to any of the matters enumerated in the State List [Except matters with respect to Entries 1 (Public Order), 2 (Police) and 18 (Land)] or in the Concurrent List in so far as any such matter is applicable to Union Territories”
This amendment did not provide full statehood to Delhi.
- The Lieutenant Governor can act on his own discretion only when there is any specific law conferring such power on him. Section 41 of the Government of National Capital Territory Act, 1991 deals with the discretionary powers of the Lieutenant Governor. There is no such law which confers such discretion on him.
According to the first deduction, the Lt. Governor is correct. However, according to the second deduction, the Lt. Gov. blatantly exceeded his authority.
Some more clarifications:
- In Shamsher Singh vs. State of Punjab, a seven Judge bench of the Supreme Court interpreted the phrase “aid and advice” of Article 239AA and explained that the power given to the Council of Ministers and the Chief Minister to aid and advice the Governor is binding on the Lt. governor. These powers are not only advisory in nature but also carry a substantial weightage.
- When the Parliament was passing this 69th constitutional amendment (Article 239AA), the mindset of parliamentarians at that time was inclined towards a representative govt. Unlike Puducherry, which also has the same status as Delhi, the latter has a large population and to govern such a large population in a democratic setup, the people deserve a representative government which is accountable to the needs of the people. Because of the large population, Delhi acts more as a state than as a UT. Like other states, the CM of Delhi should also have a say in appointing its Chief Secretaries.
Article 163(1) (which relates to states) and Article 239AA (1) (which relates to Delhi) both look similar, while provisions relating to Delhi and provisions relating to UTs read different. That is why Delhi is more inclined towards other states in comparison to UTs in terms of functioning. Just like other States where the Supreme Court has declared that the Chief Secretary appointments have to be made at the discretion of the Chief Minister, Delhi is no exception. In Delhi as well, it is the Chief Minister who has the power to appoint the Chief Secretary, by “aiding and advising” the Lieutenant Governor.
- Owing to the fact that Delhi has a large population, if everything runs at the command of the Lieutenant Governor, it would be a blatant disrespect of the voters and a blow to representative democracy as the Lt. Governor is not democratically elected. So, the CM should have a say in substantial matters. Autocracy has no space in a Democratic setup.
- The act done by the Lieutenant Governor of cancelling or staying the orders of the Chief Minister seems to be illegitimate and excessive. In Transaction of Business Rules, Rule 23 states that all relevant proposals of the Delhi Government “have to be submitted” to the Lieutenant Governor through the Chief Secretary. It does not state anywhere that the Lieutenant Governor can reject or cancel such orders.
- The Ministry of Home Affairs issued a notification regarding the Union Territory’s administration; it stated that the LG has jurisdiction over matters of services, public order, police and land.
- The tussle with the Home Ministry notification was that at times it concocted Delhi as a Union Territory when it comes to appointments by the Public Service Commission. This is clearly ultra vires of Article 239AA which gives the Legislative Assembly of Delhi power on all matters under the State List, and Entry 41 of the State List includes State Public Service Commissions., while at other times it treated Delhi as a State. (Refer, Article 239AA (3));
- The Home Ministry notification became moot since it was outside the scope of Article 239AA in Toto.
Both parties took their grievances to the President-
Both, the Lt. Gov. and the CM met the President and put forth their issues. Article 239AA (4) supports such procedure.
More Constitutional than Political-
- Many people asserted that the controversy was mainly triggered because of dirty political motives.
- Albeit the dispute was badly tainted with the narrowly concerned interests of political parties nevertheless the issue was more a matter of constitutional and statutory interpretations than mere vote-bank politics.
The whole matter was very complicated so it was perhaps very difficult to judge that who went wrong and how? There were some legal moot points in this issue. Kejriwal seems correct because he is democratically elected whereas the Lt. Gov. isn’t. He is entitled to at least have a binding opinion in appointing his bureaucrats. This power advocates the idea of representative government.
After considering many authorities we can say that, there is no such law which provides any sort of discretionary power to the Lt. Gov. to appoint the Chief Secretary and other Bureaucrats on his own. The Lt. Gov. certainly exceeded his lawful authority and acted autocratically.
But clause 4 of Article 239AA further says:
In case of difference in opinions of the CM and Lt. Gov., the Lt. Gov. has a final say in solving it and referring that matter to the President.
This was the clause Najeeb Jung relied upon when he appointed an acting Chief Secretary for Delhi without Kejriwal’s consent.
The above clause clearly says that Jung can act on his own when there is a difference of opinions, in which he can consult the President (meaning the Central Government, since the President does not have discretion in this matter at the centre). The Lt Governor can thus act on his own, or in consultation with the Centre, when he “deems (it) necessary”.
Because of this controversy, Kejriwal’s demand for “Statehood to Delhi” is galloping at a great speed.
But providing statehood to Delhi is not an ultimate solution to this problem.
The LG existed & worked with the govt. in the past also. It’s not a new concept. Ultimately governance is all about managing & working with the resources you have. A humble cooperation is needed.
To provide efficacious governance in Delhi, the three bodies, i.e., the Lieutenant Governor, the Delhi Government and the Centre need to work with utmost cooperation and coherence. People should not be grinded between the tussle of these three institutions. They should not suffer at any cost.
A clear interpretation of such legal technicalities must be made in future to provide smooth governance to Delhi.
 Reliance Energy, formally known as “Bombay Suburban Electric Supply”
 Shamsher Singh vs. State of Punjab A.I.R. 1974 S.C.2192