Drawing a new red line on allocation of powers within the Delhi government, the city’s Law Secretary has opined that it is “clear as cloudless sky” that the elected government cannot implement decisions without taking the Lt-Governor’s opinion, violating which would amount to “consciously creating road blocks and hurdles” for him.
Law Secretary Sanjay Kumar Aggarwal has rendered his opinion, which goes against his immediate predecessor Sanjay Garg’s views, to Lt-Governor Anil Baijal, Law Minister Kailash Gahlot and Chief Secretary Vijay Kumar Dev.
The Indian Express has learnt that Aggarwal, in a 24-page note, has categorically conveyed that the Supreme Court Constitution bench judgment of July 2018 — which had held that the L-G’s concurrence is not required on issues other than police, public order and land — does not mean that the elected government can inform the L-G of decisions only after implementing them.
“Therefore, this is clear as cloudless sky that information to the L-G can’t be taken to mean that he is simply required to be informed about the decision of council of ministers or that the notification can be issued without his views under Article 239-AA of the Constitution. As per last two lines of para 277(XXI) of the majority judgment 2018, the file is required to be put up before him so as to enable him to exercise powers under Article 239-AA(4) and the proviso thereof,” Aggarwal has stated.
He was responding to Law Minister Gahlot’s note which said that a notification appointing Additional Solicitor General Sanjay Jain as the chairperson of Advocates Welfare Fund Trustee Committee of Delhi be issued without sending the file concerned to the L-G first.
Aggarwal stated that there is no disputing the fact that the L-G’s concurrence is not required for matters which fall within the legislative competence of the Delhi Assembly, which can make laws under Article 239 of the Constitution.
“However, the word ‘concurrence is not required’ as highlighted by the Hon’ble Minister in his note in para 218 cannot be taken to mean that the L-G is simply required to be informed about the decision taken by the executive. By not placing the file before the L-G, we shall be deemed to be consciously creating road blocks and hurdles in the exercise of powers vested unto him under Article 239-AA(4) and its proviso and consequently also the powers of His Excellency the President of India,” Aggarwal wrote.
Aggarwal’s predecessor Sanjay Garg, who was repatriated to his parent cadre within two months of his appointment, had, in a separate opinion, upheld the primacy of the elected government. In June, the government used that opinion in getting a string of proposals cleared, including hike in auto fares, notification of a draft parking policy and appointment of additional public prosecutors.
A government spokesperson said the matter is in court. When contacted, Aggarwal refused to comment.