Chief Minister Arvind Kejriwal’s decision to call an emergency session of the Assembly came after senior jurists gave their assessment of the Home Ministry notification issued on Friday. Two of them — Gopal Subramanium and Indira Jaising — also questioned the constitutional validity of the MHA notification.
In their opinions sent to the Delhi government, jurists were scathing in their assessment of the notification which said that Lieutenant-Governor Najeeb Jung was the “administrative head” of Delhi and that “services” were out of the purview of the government.
It is these legal opinions that the AAP government is set to use both in an emergency sitting of the Assembly and also in case it seeks a legal recourse to end the present face-off.
In his opinion “restricted to that part of the notification dealing with delegation of powers on the Lieutenant Governor in regard to services”, K K Venugopal said, “If a democratically elected government has been brought to power, the ‘public services’ of the state should be controlled by the government. Undoubtedly, the chief secretary is the linchpin of executive governance. He is to have the confidence of the chief minister and the council of ministers…”
Citing several judgements, Venugopal wrote, “…even though no law was passed by the Legislative Assembly of the NCT of Delhi, nevertheless, both the legislative power as well as the executive power… remain intact and inviolable. The Home Ministry could not have transferred “Services”… to take a place along with “Public Order”, “Police” and “Land”. The statement in the notification to the effect is wholly misplaced.”
Subramanium raised “concerns” on the processes followed during the issuing of the notification . “It is very hard to believe that this notification has the requisite presidential approval. Under the circumstances, the GNCT must bring the notification to the attention of the President, who knows that all instruments of delegation which are issued either under Article 356 or other cognate provisions of the Constitution to a Governor or to any other authority… including a Lt-Governor, must always be approved and signed by him on file. If that has not happened, there is a clear breach of the Constitution…,” he said.
Subramanium also wrote, “In so far as the control over such officers is concerned, the only authority which ought to exercise control would be the chief minister and the Cabinet… It is not possible that any of the officers who are appointed to serve directly under the chief minister, as well as the department ministers, bypass them and report to an extraneous authority — the L-G — to whom no such power is conferred either by the Constitution or the GNCT Act, 1991.”
Senior advocate Indira Jaising also called the notification issued by the MHA “ex facie unconstitutional.”
Jaising said, “In my opinion, there is lack of competence on the part of the Central government to issue such a notification, in as much as this amounts to removal of power to legislate on “Services” from the State List and has the effect of deleting Entry 41 from the State List… It is axiomatic that no provision of the Constitution can be deleted, except by an amendment to the Constitution itself. The fact that there is no state cadre for Delhi cannot lead to the conclusion that there is no power to legislate in the Government of Delhi under Entry 41. The existence of power is one thing, while the exercise of power is another.”
Jaising, in conclusion, said, “The GNCT, Delhi, has the power to make transfer and postings among various departments and the Lieutenant-Governor of NCT Delhi has no such power, to make laws or take executive decisions. I have already said that the notification is ex facie unconstitutional… In light of Rule 23(va) of the Transaction of Business Rules, all files sent to the LG will have to be sent through the Chief Minister by the Chief Secretary.”