The concern expressed by the Supreme Court on the current impasse in the formation of the Delhi government is legitimate and well founded. Since February, the legislative assembly has been in suspended animation. Its members are drawing their salary and enjoying other perks of membership without performing any legislative duties. Besides, they preside over the spending of crores of public money, earmarked for the so-called local area development schemes. It is only fair that government is formed and the legislative assembly resumes work, or fresh elections are called after dissolving the assembly. But, going by the Constitution, the latter should be the last option.
For obvious reasons, none of the present MLAs, irrespective of the party he or she belongs to, wants to take the risk of fresh elections. But, as the Constitution bench lamented, one party says it does not have the numbers to form government, the other has no desire to do so and the third is not in a position to stake a claim.
The National Capital Territory of Delhi is a Union Territory administered through a lieutenant governor (LG). There is an elected legislative assembly, somewhat comparable to those in the states, except its legislative powers do not extend to matters concerning public order, police and land. The Constitution also provides for a council of ministers headed by a chief minister (CM). The CM “shall be appointed by the president”. The use of “shall” implies a definite obligation to appoint a CM.
Under Article 86(2), the president can send a message to either House of Parliament and under Article 175(2), the governor can send a message to a House of the state legislature. In each case, the House concerned must “with all convenient dispatch consider any matter required by the message to be taken into consideration”. The government of the National Capital Territory Act contains a similar provision on the LG sending a message to the legislative assembly.
In a situation where it is difficult to decide who commands the confidence of the legislative assembly of Delhi, the LG could send a message to the House, asking it to elect a leader who can then be recommended to the president for appointment as CM. This would keep the LG and the president above controversy, as the leader would be picked by the members themselves on the floor of the House. Since the CM would have been elected by the assembly, it would not be necessary for him or her to seek the confidence of the House after appointment. The scope for horse trading would be minimal. If the election were by secret ballot, there would be no risk of anyone being disqualified from membership under the continued…
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