Capital stand-off

THE initial stand-off between Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor (LG) Najeeb Jung over the appointment of a temporary Chief Secretary has developed into a full-blown constitutional battle over the crucial issue of devolution of powers. In early May, Kejriwal objected strongly to the LG’s unilateral decision to appoint Shakuntala Gamlin Acting Chief Secretary in the absence of Chief Secretary K.K. Sharma, who was on leave for 10 days. Jung claimed that he was well within his constitutional right to appoint officials without consulting the Chief Minister. The confrontation triggered a legal conflict.

The appointment was blown out of proportion as Kejriwal accused Shakuntala Gamlin of lobbying with the government to promote the interests of Reliance-owned power distribution companies (discoms) in the city. Shakuntala Gamlin was in the midst of a controversy when Delhi’s Power Minister Satyendra Jain alleged that she insisted that the power discoms be given “letters of comfort”, if not a loan guarantee, which may have given the discoms loan guarantees of Rs.11,000 crore. Kejriwal, who has consistently spoken about the high-handedness of the discoms and refused any form of loan guarantee to them, saw Shankuntala Gamlin’s appointment as a strategic move by Jung and the Central government to protect the discoms. He alleged that his requests for substitutes had always been turned down by the LG and hinted at foul play in the appointment of Shakuntala Gamlin bypassing many senior bureaucrats.

Soon after this face-off, the Union Home Ministry issued a gazette notification to the Delhi government on May 21 restraining its Anti-Corruption Branch from acting against Central government officials in the city. Kejriwal saw this move by the Central government as a direct attack on the Delhi government, which was elected on the agenda of curbing corruption and crony capitalism.

The bitter battle took a dramatic twist when Kejriwal got Principal Secretary (Services) Anindo Majumdar’s office locked to prevent him from carrying out the orders of the LG and ordered all bureaucrats not to act on any order from the LG without consulting him. Following this, Jung, in a strongly worded letter to Kejriwal, asserted his constitutional right to appoint and transfer officials—right from stenographer to Chief Secretary—in the city government’s administration and nullified all orders of the Delhi government in the previous week. The ego tussle worsened when an Aam Aadmi Party (AAP) legislator, in an emergency session of the Assembly, sought the amendment of the Constitution to allow impeachment of the LG.

In an effort to resolve the crisis, Kejriwal met President Pranab Mukherjee and said he was ready to accept Shakuntala Gamlin’s appointment, but sought the President’s intervention to ensure that the LG did not intervene in the Delhi administration’s functioning on a day-to-day basis. He alleged that Jung had been commanding senior-level bureaucrats directly without consulting him or his Council of Ministers.

Amidst this fiasco, Kejriwal received a boost when the Delhi High Court, while hearing the Delhi government’s petition, termed the Home Ministry’s notification “suspect” and ruled that the Delhi government had the authority to probe Central government officials, including Delhi Police personnel. However, a few days later, the Supreme Court, hearing the Central government’s petition, issued a notice to the Delhi government and asked it to file its response within three weeks. The Supreme Court bench refused to stay the High Court order but added that the High Court ruling on the May 21 notification was tentative and would not be binding. This observation by the apex court has complicated the legal conflict further.

The unique status of Delhi as a half-state and the multiplicity of authorities have always been a cause of trouble in administrative affairs. It is because of this that both the Congress and the Bharatiya Janata Party (BJP) had demanded “full statehood” for Delhi. Kejriwal renewed the demand in his campaign with added vigour. In his first stint as Chief Minister, for 49 days in 2013-14, Kejriwal dramatically sat on a dharna outside Rail Bhavan to demand control over Delhi police.

The unique status of Delhi gives the Central government full control over public order, land, and the police, while the Delhi government is in charge of general administration and welfare. It is for this reason that Jung’s recent actions have been viewed by some political observers as the Central government’s attempt to engineer an administrative paralysis in Delhi.

Prem Shankar Jha, a senior journalist, wrote in one of his articles: “Today Arvind Kejriwal heads a government in a territory that is larger than 11 Indian States that enjoy full autonomy under the Indian Constitution. He heads a party that has secured an unprecedented 54 per cent of the vote—the highest won by any party in any election during India’s 67 years of freedom—and 96 per cent of the seats in the State Assembly. But he is being prevented from taking decisions that he and his Ministers feel are necessary to enable them ‘to deal with matters of concern to the common man’ by an unelected appointee of a Central government that was wiped out in the very same election that brought the AAP to power.”

The political tussle between the AAP government and the National Democratic Alliance (NDA) government at the Centre is rooted in one clause of the National Capital Territory (NCT) Act, included as the 69th amendment to the Constitution in 1991. The NCT Act created the provision for an elected Delhi government and promoted Delhi’s status from a Union Territory to a half-state. Both Kejriwal and the LG have interpreted Article 293AA (4) of the NCT Act differently to defend their standpoints. The Article states: “There shall be a Council of Ministers consisting of not more than 10 per cent of the total number of members in the Legislative Assembly, 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 insofar as he is, by or under any law, required to act in his discretion…. Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”

The Article is unclear about who the head of Delhi is. While some senior bureaucrats and constitutional experts have read the Article as one which gives full powers to the LG to take executive decisions, some other legal experts are at variance with the view. The constitutional expert Subash C. Kashyap said: “The Union Territory is administered by the LG. The Council of Ministers is to aid and advise him. In case of service matters, it is the LG’s call. In such a matter, the Chief Minister should go to the LG and sort things out.”

However, many prominent legal experts said that such an understanding would be a silly literal translation of the Article. They view this Article as one that gives the elected government clear powers to make laws and expects the LG to exercise his functions through the elected government.

Rajeev Dhawan, prominent lawyer, said the LG was playing tricks with the Constitution. “The arrangement between the elected CoM [Council of Ministers] and the nominated LG was that the CoM with the CM as its head would ‘aid and advise the Lieutenant Governor’. The phrase ‘aid and advise’ may seem fuzzy, but exactly the same phrase is used to describe the relationship between elected governments and the President of India and Governors of States (Article 74 (1), 163 (1)). The CoM was responsible in all cases to their respective Parliaments and Assemblies, including the CoM of Delhi (Article 75(3), 164(2), 239AA (6)). If ‘aid and advise’ was interpreted literally, the CoMs would become advisory and parliamentary democracy would be worthless,” he wrote in one news website.

Similarly, former Additional Solicitor General Indira Jaising is of the view that Jung overstepped his jurisdiction.

She said, “There is no provision in the Constitution or in the NCT of Delhi Act, 1991, or any of the laws, granting to the Lieutenant Governor the power to act at his own discretion in the matter of appointment of the Chief Secretary.” She further said that there was no provision in the Transaction of Business Rules which empowers the LG to issue direct orders to bureaucrats bypassing the elected government. She said that the issue needed no further interpretation as the power of the Governors had clearly been stated by the Supreme Court in Shamsher Singh vs State of Punjab (1974), where it ruled that the Governor had to act only in accordance with the aid and advise of the Council of Ministers headed by the Chief Minister. She added that the appointment of officials was an executive matter and must be taken up by the Council of Ministers as had been delineated in the Rules of Business and the Cadre Rules.

Both former Solicitor General Gopal Subramanium and the prominent lawyer K.K. Venugopal stood in support of Kejriwal and were of the view that the LG’s decisions violated the stated norms of governance and were against the constitutional scheme. “Insofar 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 LG—to whom no such power is conferred either by the Constitution or the NCT Act, 1991,” Subramanium said. Prem Shankar Jha noted that the conflict had arisen out of Jung’s refusal to allow the Chief Minister and his Cabinet the freedom to choose the officials they would work with. Political observers and parties in the opposition, too, felt that the LG decisions and the subsequent Home Ministry notification were dangerous precedents set by the NDA government at the Centre as such political sabotage of an elected government not only undermined the core federal principles of governance but also subverted the whole idea of parliamentary democracy.

As the AAP government completes 100 days in power in Delhi, it has already seen many minor skirmishes with the Union government, this being the most recent and the biggest. Fearing further such interventions by the Central government, the Delhi government, after the High Court order vindicating Kejriwal, has renewed its efforts to strengthen its Anti-Corruption Branch. In a deft political move, it sought police personnel from various non-BJP States for its Anti-Corruption Branch.

Politically, Kejriwal has succeeded in turning the tussle in his favour on the ground. The AAP’s campaign during this turf war has not only cemented Kejriwal’s position as a crusader against corruption but also succeeded in pushing the BJP into a corner.

With the AAP launching 11 mohalla sabhas for participatory governance and initiating a significant number of welfare measures such as reduced water and electricity tariffs, the report card of the Delhi government also seems to be a positive one. The growing popularity of the AAP in the national capital has come at the cost of the NDA’s dwindling reputation as a pro-people government. In such a situation, the present melee could do more harm than good to the Union government.