The one-upmanship tussle between Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor Najeeb Jung is not likely to end soon. What is also unlikely to end soon is the ambiguity over the powers of the state government — Delhi is not a full-fledged state, and as per Schedule I of the Constitution continues to be a Union Territory — vis-à-vis those of the LG.
But amendments to the Constitution have ensured that Delhi (and Puducherry) enjoys a special status among UTs. So, while in other UTs, the will of Parliament is supreme, in the case of Delhi, which has its elected Assembly, the state Assembly has the right to legislate on all subjects except some such as law and order and land. However, in case of a conflict between a law enacted by the Delhi Assembly and one enacted by Parliament, the latter prevails.
Since Kejriwal is not heading the government of a state in the full sense of the word, his government’s powers are limited. In the light of the ongoing controversy, two specific questions arise.
Can the Chief Minister insist on appointing an officer of his choice to be chief secretary for a few days? And can he direct departments under his government to route files pertaining to police, public order and land only through Delhi ministers, so as not to “bother the LG”?
The answers to these questions lie in Article 239AA, a little-known provision in our Constitution. The article, which was inserted by the 69th Amendment, and came into force in 1992, is worded in such a way that, read along with the Government of National Capital Territory of Delhi Act, 1992, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, leaves room for vagueness in the powers of the CM and LG.
The last time Article 239AA hit the headlines was when Kejriwal clashed with Jung during the 49-day government over seeking the Centre’s approval to introduce the Jan Lokpal Bill in the Delhi Assembly.
The Transaction of Business Rules have been interpreted by each side to suit its argument. The Rules give vast powers to the LG, but also make it mandatory for the LG to consult the Council of Ministers in case of a difference of opinion between the LG and a Minister.
Thus, the LG “may call for papers relating to any proposal or matter in any Department, and such requisition shall be complied with by the Secretary to the Department concerned”.
However, while obeying the LG’s directive, the Secretary of the Department is also duty-bound to “simultaneously inform the Minister-in-Charge of the Department of the action taken by him”.
Again, the LG has the power to seek information about any matter “which is likely to bring the Government of the Capital into controversy with the Central Government or with any State Government”.
But in matters for which there is no specific provision, the LG has to consult the central government “before exercising his powers or discharging his functions in respect of that matter”. In the ongoing tussle, it remains unclear if, and when, the LG consulted the union Ministry of Home.
Rule 45, which deals with the LG’s “Executive Functions”, allows the LG to exercise his powers in matters connected to ‘public order’, ‘police’ and ‘land’ “in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution”.
Rule 46 says that with “respect to persons serving in connection with the administration of the NCTD”, the LG shall “exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239…”
Another clause, related to when an issue can be referred to the central government, says that in case of a difference of opinion between the LG and a Minister, the LG must first try to settle the issue through “discussion”. In case the difference of opinion persists, the LG can “direct that the matter be referred to the Council of Ministers”. If, however, there is difference of opinion between the LG and the Council of Ministers, the LG must refer it to the central government for “the decision of the President”, and is bound to abide by it.
In case a matter has been referred to the President through the central government, the LG can direct that action on the matter “be suspended pending the decision of the President”. In case the matter demands urgent action, the LG can direct that a particular action be taken, which the Minister must obey without question.
Under Clause 55 (2), subject to instructions issued by the central government, the LG is bound to make a “prior reference” to the Centre with regard to proposals for the “appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands)”.
This is something that Jung may not have followed in letter and spirit.
The next clause (56) lays down the procedure to be followed in case a matter referred by the LG to the Centre is under consideration. In such cases, “further action thereon shall not be taken except in accordance with the decision of the Central Government”.
Incidentally, Constitution expert Soli Sorabjee has on a earlier occasion underlined that Rule 55 suffers from “serious legal infirmities”, and may be unconstitutional. Retired Justice Mukul Mudgal too had advised the previous Kejriwal government to challenge in court the constitutionality of the clause.
Now that Kejriwal is back in power with an unprecedented mandate, it remains to be seen if his government does approach the courts in this matter.