With critics and constitutional experts divided over the issue, the final call would be taken by the courts
The face-off between the AAP-led Delhi government and the Centre over the struggle of power in the national capital will soon land up in the Supreme Court. Amid growing hostility, the Arvind Kejriwal government is now armed with the Delhi High Court judgment that restored the powers of the Delhi government’s Anti-Corruption Branch (ACB) to investigate and prosecute all government employees, including IAS and IPS officers, within the jurisdiction of Delhi.
This order may be an embarrassment to the Modi government as it ruled that the Lieutenant Governor must act on the “aid and advice of the council of ministers” and that the “mandate of the people must be respected by him in respect of matters which fall within the domain of the legislative assembly.”
While the Centre is likely to move the Supreme Court against the High Court ruling, the Kejriwal government, also having an overwhelming support of legal luminaries, is in no mood to resolve the tussle amicably. It is bent on its fight to “liberate” the state from the “control” of the Centre and called a special session of the Assembly on Tuesday, hoping the decision taken by the house will be binding on the LG, as in democracy, “legislative is superior to executive.”
The confrontation between the two is a notification issued by the ministry of home affairs to back LG Najeeb Jung, who cancelled all postings and transfer orders issued by the AAP government from May 14 to May 20 on the pretext of not having taken his approval. The gazette notification said the LG is the “administrative head” of Delhi and included “services” in the reserved list, which meant that the Delhi government would have no power in appointment of senior officers. The other three reserved subjects—police, public order and land—are already out of the Delhi government’s purview.
The tussle between the CM and the LG started over the appointment of power secretary Shakuntala Gamlin as the acting chief secretary on May 15 and this led into a situation where another bureaucrat, principal secretary (services) Anindo Majumdar, was locked out of his office at the Delhi Secretariat. This was reportedly done on the orders of Kejriwal as Majumdar had followed the LG’s instruction to appoint Gamlin as the acting chief secretary. The Delhi government has levelled serious allegations against Gamlin, accusing her of being extremely close to power distribution companies in Delhi.
Kejriwal has also questioned Jung’s authority and described the Centre’s stand as a blatant attempt to provide cover to corrupt officials.
However, constitutional experts are of the view that passing a resolution by the AAP government is unlikely to end the stalemate. Some experts feel that any such resolution is not binding on anyone because it is just recommendatory in nature.
Others feel that the best way to break the deadlock is to sit across the table and reach an amicable solution. If it doesn’t work, then the issue will have to be decided by the courts, as this could have a serious problem for Centre-state relations.
Senior Congress leader and eminent lawyer Kapil Sibal has said that “unless the issue is resolved across the table, the people of Delhi are suffering and will continue to suffer.”
The legal fraternity is divided. While a section of lawyers feel that there were limited executive powers available with Kejriwal under the law, others believe that no power is vested in the LG who can obliterate the democratic mandate of the elected government.
The AAP government has already sought legal opinions from top lawyers—Rajeev Dhavan, Arvind P Datar, KK Venugopal, Indira Jaising and Gopal Subramanium—all of who have favoured Kejriwal.
Even the home ministry has sought opinion of Attorney General Mukul Rohtagi to trash the Delhi government’s claims that the LG needs to mandatorily consult the CM on appointments. Jung is also said to be taking legal opinion relating to his authority over bureaucrats in the Delhi government.
Venugopal in his legal opinion to AAP said that if a government has been brought into power by the people, the “public services of the state” should be controlled by the elected government. Subramanium said that “the exercise of powers by the government of Delhi cannot be overruled by the LG as this would violate the Constitutional Scheme.
In particular, it would be ultra vires Articles 14 and 239AA and would also fall foul of the basic structure of the Constitution as it undermines the basic features of democracy and the Cabinet form of government.”
Dhavan and Jaising have asserted that Jung has no independent discretion in the matter and has exceeded his authority. In his written advice, Dhavan said: “It is abundantly clear that the LG has exceeded his authority and has turned the entire relationship between himself and the council of ministers on its head to jeopardise democracy and the Constitution.”
Senior advocate CS Vaidyanathan and BJP member Subramanian Swamy criticised the central government.
Vaidyanathan feels that the LG has jurisdiction over land, law and order, and police, but not on services.
With critics and constitutional experts divided over the issue, the final call to interpret the Constitution would be taken by the courts.