The curious case of Delhi

By Deepshi, Gujarat National Law University, Gandhinagar.

It all started after Chief Secretary of Delhi, Mr K.K Sharma went on a leave for 10 days on may 13^th 2013; little known Shakuntala Gamlin was suddenly in the news. A 1984 batch IAS officer, she was given the charge of Chief Secretary by the LG Najeeb Jung. Following her appointment, the AAP government slammed this decision by the LG stating that he acted against the “Constitution, GNCT Act of Delhi and the Transaction of Business Rules”. Even after Arvind Kejriwal expressed his displeasure at her appointment alleging her proximity to BSES discoms also laying accusations on her for lobbying for power companies, hence asked her very specifically not to take charge, Gamlin vehemently denied the request and assumed charge of the same. In retaliation, Kejriwal removed Anindo Majumdar, the principal secretary who had issued the appointment letter to her after receiving instructions of the same from Jung. CM’s secretary Rajendra Kumar was appointed the principal secretary, which was further rejected by the LG stating that the transfer was “void” since it was sans his approval. The appointment of Gamlin was further brought under the scanner as, leading newspaper Daily Pioneer, Gamlin “managed” to stay with the Delhi government for 20 years avoiding tough transfers and securing a central deputation hereby returning to the central administration at all possible instances.

As far as the appointment of Chief Secretary is concerned in the States of India it is the responsibility of the Chief Minister and the Council of Ministers. In the landmark case of E.P Royappa v. State of Tamil Nadu ¹ it was held that “ The post of Chief Secretary is a highly sensitive post as he is the lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Ministers. Similarly in the case of State of Punjab v. Salil Sablok ² it was held that, it may be necessary for the Chief Minister of a State to appoint a ‘suitable’ person as the Chief Secretary or the Director General of police because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and the requirement of the State.

In Delhi, the relevant laws governing the relation between the Governor and Chief Minister in Delhi, Article 239AA of the Constitution, The Governor of National Capital Territory of Delhi Act, 1991 (The GNCT Act), the rules formulated under Transaction of business rules and other relevant judicial pronouncements.

However when the dispute arose in this regard, a notification by the Home Ministry, which gave the governor, undisputed powers to act in this regard which was regarded as a “suspect” by a Single Judge bench of the Delhi High Court. Now the question is, whether this discretionary power of the governor are subject to the “aid and advice of the council of minister”.

Article 161 of the Constitution discusses the same.

Council of Ministers to aid and advice Governor: –

1. There shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution requires to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

3. The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any Court.

In the case of Sardari Lal v Union of India³ it was held that the President as well as the governor is the constitutional head or formal head and exercises their powers and functions conferred under the Constitution on the aid and advice of his council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. This was over-ruled in Shamsher Singh v State of Punjab⁴ where it was stated that neither the President nor the Governor is to exercise the executive functions personally.

Subsequently it was held in Maru Ram v Union of India⁵ that the power under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.

Further the same was elaborated that Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and not under Article 161, the Governor being bound by that advice.

In B.R Kapoor v. State of Tamil Nadu⁶ it was held that in the scheme of Constitutional provisions the Governor is to act with the aid and advise of the Council of Ministers headed by the Chief Minister. However there are other functions in which the Governor acts in his own discretion. He cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise.

The problem with Delhi

Since Delhi is neither a state nor a Union territory, article 239 which applies to states and Union territories does not extent to Delhi, rather it is governed by the Articles 239AA and 239 AB which were introduced by a constitutional amendment in 1991.

Here the Article 239 AA(4) states :

There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to 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.

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary

On one hand There are certain matters on which the aid and advise of the COM is deemed to be necessary for the governor and on the other hand the matters on which the government is empowered to exercise discretion (when a specific law is present regarding the same) is governed by section 41 of GNCT.

Now the question here is in which category does the appointment of Chief Justice by the governor fall? Also the issue that the notification issued by the Central government which sides with the government on the pretext that it amount to giving autocratic and dictatorial powers to the government in a nation which is guided by principals of democracy and the power of the people is reposed in the elected dignitaries to the parliament who are empowered to take decisions on their behalf.

The transaction of business rules prescribes for peaceful discussion between the governor and the Chief minister in case of a dispute prior to referring it to the president. But defying the same both of them under Article 239 AA(4) rushed to meet the president in this regard. The simultaneous hearing in the High Court and the Supreme Court against this decision as a form of appeal created another history for the nation. One of the questions the Centre wants the Supreme Court to authoritatively answer is whether the Delhi Assembly has unfettered powers under Article 239AA. If so, does such power to a State government “derogate” the power of Parliament under the Constitution to make laws with respect to any matter for a Union Territory under Article 246(4)?

In conclusion it can be said that this issue apart from exposing the political loop-holes and highlighting the conflict between Bhartiya Janta Party and the Aam aadmi Party is ultimately an attack on the ideals of a representative government. The constitutional clarity over the separation of powers still lies very much in confusion.