Kejriwal vs. Jung: The Constitutional Power Tussle in Delhi

28th May 2015 Political-Affairs

Since the 16th of May, newly reelected Chief Minister of Delhi, Arvind Kejriwal and Lt. Governor, Najeeb Jung have been at loggerheads over the appointment of Shakuntala Gamlin as the interim Chief Secretary of Delhi. Kejriwal claims that as Chief Minister, he should have the final say on service appointments andfor decades, the appointment of the Chief Secretary has been the prerogative of the Chief Minister. However, Jung alleges that the LG’s orders take precedence over the CM because of Delhi’s peculiar administrative setup. Who is right?

To understand both sides, one must first look at the distribution of power in Delhi. Uniquely, Delhi is neither a fully-fledged State, nor is it a Union Territory – its status falls somewhere in between. Unlike other Union Territories, it was given a popularly elected Assembly and Chief Minister via the National Capital Territory of Delhi (NCT) Act, 1991. The relevant provisions governing Delhi’s legal status can be found in Article 239AA and Article 239AB which were added to the Indian Constitution via the 69th Amendment Act, 1991. Delhi, like most other states, enjoys a popularly elected Legislative Assembly and Chief Minister – executive authority is placed in the hands of the Lieutenant Governor (LG). The powers of the LG vis-à-vis the CM are described in Article 239 AA and AB of the Constitution, the NCT Act, and Transaction of Business Rules. The gist of these provisions is that Delhi’s LG is a mere figurehead, much like any other State. Though all acts of the Delhi Government are taken in his name, they are not based on his personal judgment. In all matters that fall under the jurisdiction of the Delhi Government, he mandatorily acts on the advice of the Chief Minister and his council. The specific provision (Article 239AA(4)(b)) reads: “with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of 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.” The interpretation of ‘aid and advise’ as the subordination of the LG to the popularly elected CM is a cornerstone of Indian constitutional law that has been reinforced by multiple Supreme Court judgements and more recently, through the legal advice shared by Senior Advocates such as Gopal Subramaniam and Indira Jaising.

The discretionary powers of the LG referred to beforeare outlined inSection 41 of the NCT Act. It notes that the LG may act in his discretion only if there is a specific and explicit law granting him discretionary powers in an issue. However, no provision in the NCT Act or any other statue confers the LG with discretionary powers over bureaucratic appointments; thus precluding him from overriding or bypassing the Chief Minister when appointing a Chief Secretary.There is only one loophole in this scheme and that is Article 239AA(4) (reinforced by Section 51 of the Transaction of Business Rules)- this is the very provision that Najeeb Jung used to claim supervening power over the appointment of the Chief Secretary of Delhi. This provision states that in the event of a dispute between the LG and the CM, the matter must be referred to the President. However, pending the President’s decision, the LG’s orders will prevail if:“it is necessary that immediate action should be taken to give such direction or take such action in the matter as he deems necessary.” Based on this,Najeeb Jung decided that the appointment of an interim Chief Secretary for a period of 10 days required immediate action. His position that a 40 hour delay in the appointment of an interim Chief Secretary constituted a situation necessitating the exercise of emergency powers by an LG seems facile at best.

The second aspect of this constitutional tussle is with respect to the legislative powers enjoyed by Delhi. As per the Constitution, the government of Delhi enjoys all powers in the State List, except items 1, 2 and 18 that deal with Public Order, Police and Land, respectively (Article 239AA(3). In 1998, via a notification promulgated by the Ministry of Home Affairs, the Delhi Government’s powers were further restricted by the exclusion of ‘Services’ from its jurisdiction in addition to the aforementioned three subjects. Hence, according to the notification, the Chief Minister’spower included everything in the State List except the following four items – Public Order, Police, Land and Services. Four days ago, apparently in the interest of clarity, the MHA issued another notification further detailing the powers exempt from the control of the Delhi Government. The notification states that ‘Services’ shall fall within the purview of the President, or his agent, the Lt Governor, who may, in his discretion, take into consideration the views of the Chief Minister. The justification offered for the above is that Delhi is served by the Union Territory Cadre of bureaucrats which is administered through the Ministry of Home Affairs. Since Delhi (unlike other states) does not have its own cadre of civil servants, Section 41 of the State List (State Public Services, State Public Service Commission) which would otherwise come under the jurisdiction of the Assembly and the Chief Minister, is not applicable to Delhi.

This reasoning is flawed for the following reasons. Firstly, the Constitution does not mention ‘Services’ as one of the powers excluded from the jurisdiction of the Delhi Government. The Constitution explicitly notes that changes to the Lists can only be made through law and not by executive notifications of the Home Ministry. Therefore, the only clarity that the notifications bring is that they violate the constitution because one cannot circumvent constitutional provisions simply by publishing notifications that state otherwise.

Secondly, the comparison of Delhi to other Union Territories is not valid in law since Delhi, by virtue of a popularly elected Assembly and Chief Minister, is not relegated to the status of a Union Territory. The recruitment of the bureaucratic service may be done by the Center, but they are still accountable to the popularly elected government.

Thirdly, up until now, the LG has never interfered in the appointment of bureaucrats. In fact, despite the 1998 notification, former Chief Minister Sheila Dikshit did not face any problems with regard to the appointment of Chief Secretaries during her tenure. The Services portfolio in the Delhi Cabinet has regularly been allocated to cabinet members, most recently to Manish Sisodia of the AAP. History and past precedent thus unequivocally indicates that the Chief Minister’s authority over bureaucratic appointments has always been recognised.

Lastly, multiple lawyers have spoken about the spirit of the constitution and the reasons behind the exclusion of certain powers from the Delhi Government. When the constitution was written, there were a series of debatesthrough which Nehru and various other founding fathers decided that these powers must be excluded because of Delhi’s status as the National Capital and the presence of Central Government institutions in Delhi. The idea was to prevent the Delhi Government from holding the Center ransom by threatening to usurp land or misusing police power. There were also several national security issues that could crop up that would prevent the functioning of the country. Never did the founding fathers think that it would be appropriate for Services to fall under the purview of the center because that would be tantamount to depriving the citizens of Delhi of their lawful right to elect a government of their choice. Hence, we can see that the Lt Governors claim to authority over Services is invalid because it goes beyond the powers envisaged by both the Constitution in its current form and the ideas upon which it was written.

In effect, the Central Government through the 1998 and especially the 2015 notifications seems to be attempting to create a back door through which it can stall the functioning of the Delhi Government. If the bureaucrats who will implement legislation are allied with the central government, how will Kejriwal make effective changes if he has to live in constant fear of his decisions being overturned by the center? In order to better understand the importance of synergy and a good relationship between the CM and his Chief Secretary; it is pertinent to recall that Narendra Modi took the unprecedented step of passing an ordinance to amend the provisions of the TRAI Act only so that he could appoint Nripendra Mishra as his Principal Secretary.

Although Kejriwal is infamous for crying wolf, this time, the wolf is here and is threatening to kill his sheep. In an ideal world, the CM would be able to resolve this issue through discussion with the LG and move on. Unfortunately, in this political world where power takes precedence over change and the majority party in the Lok Sabha is lead by a party that is willing to change the law to suit its will, it will be very difficult to find a way forward without the BJP’s support. Now the question that arises is will Kejriwal be able to liase with the Modi Government and Najeeb Jung to stop these roadblocks, or will he take it to court and risk changing the law forever?