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Who really governs Delhi?

The Financial Express logo The Financial Express 26-05-2015

Shailaja Chandra: The Constitution has made it clear that the LG can intercede, give interim directions to the government and, in case of difference of opinion, refer the matter to the President.

The ongoing tussle between the Lieutenant Governor and the chief minister of Delhi has escalated to new highs. Arvind Kejriwal has taken the fight over postings of senior IAS officers to Rashtrapati Bhavan; he has also demanded that the PM allows the city government to function ?independently? instead of trying to run it through the LG.

The question everyone is asking is, who is right and can an elected CM function if he does not get to post officers of his choice in key posts? To understand this, one needs to reflect not only on the law but much more on the practice which has evolved over the decades. Unlike full states, the cadre-controlling authority of IAS officers who service the states and Union Territories of Delhi, Arunachal Pradesh, Mizoram, Goa, Andaman & Nicobar Administration, Daman & Diu, Dadra & Nagar Haveli, Puducherry and Chandigarh is a body chaired by the Union home secretary with the concerned chief secretaries as members. Promotions and inter-state transfers are decided by this body, but within each constituent unit, postings are made by the concerned government.

In the case of Delhi, the LG decides the postings of officers at the level of principal secretary and above in consultation with the CM but lower-level postings are made by the CM in consultation with the chief secretary. This consultation is usually verbal, across the table or on the telephone, using the chief secretary as a bridge to relay the concerns and reservations if any. Details about seniority, suitability and integrity of the officers are supplied by the chief secretary and decisions are taken by mutual consent.

For the last 23 years, every CM, despite intermittent dissension, has got the chief secretary of his choice. On this occasion, the LG selected a woman whose name was on the panel and was senior to the name recommended by the CM. The grapevine says that there was no reason for her to be overlooked. When it came to the regular appointment of the chief secretary, the ministry of home affairs had done it in consultation with the CM and the LG, and KK Sharma, who was the chief secretary in Goa, was flown in because Kejriwal had sought his services. (The first name the CM had proposed was not agreed to as the officer had not reached the requisite level of seniority.)

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When he did not get his way on the officiating charge matter, Kejriwal took the fight to the streets and asked a conclave of auto rickshaw drivers whether he did right or wrong by refusing to appoint the officer, alleging that she was backing a particular private power company?an accusation which apparently had no basis. 

Thereafter, another senior officer suffered the humiliation of being locked out of his room because the CM was upset that he carried out the LG?s orders contrary to his stated wishes.

This has never been known to have happened in the annals of the politician-bureaucrat relationship. The LG was right to have used his authority once he discovered that his orders were not going to be executed and were, in fact, being wilfully defied, repeatedly.

Right or wrong, the Constitution has decided that Delhi is to be run on the principle of diarchy. The constitutional amendment, the National Capital Territory of Delhi Act and the Transaction of Business Rules have made it abundantly clear that the LG can intercede, give interim directions to the government and, in case of difference of opinion, refer the matter to the President.

The posting of an interim chief secretary was a routine matter and that it has escalated into a full-blown controversy with hardening of positions on both sides is unfortunate. While what the LG did was correct within the scope of the law, the situation might have been avoided had there been gentler handling and direct communication from both sides.

Let us hope those channels can be restored for Delhi?s sake. A face-off will result in incalculable harm to the development of the city and the well-being of its citizens.

The author is former secretary, government of India, and former chief secretary, Delhi. Views are personal

Rajeev Dhavan: The decision to make Delhi self-governing was by constitutional amendment and parliamentary law. The LG must understand that he shouldn?t assume governance

The political crisis in Delhi rolls on. Lieutenant Governor Najeeb Jung is firmly convinced that he has obstructive powers over the elected government of Delhi CM Arvind Kejriwal whose AAP has won the biggest majority ever in Delhi (67 out of 70 seats). The LG?s obstruction has been on various matters, including appointing his choice of a retired officer to head an inquiry, routing of files and appointment of bureaucrats.

Three tests can be applied in this case: the political mandate test (or the Parliament democracy test), the federal test and the rules test. The political mandate test is supported by the constitutional text which says the Council of Ministers shall ?aid and advise? the LG (Article 239AA (4)). But in parliamentary governance, the Supreme Court insisted this means that this advice is binding on the PM and the CM. The position is the same unless Parliament, by law, creates further areas of discretion.

Federally, the Delhi government does not have power over land, public order and police. In these, Parliament?s and government?s powers are exclusive, unless the Union delegates its powers to the LG or the LG?s function is judicial in nature (Section 41 of the Delhi NCT Act, 1991). But, the Union (or the LG appointed by it) cannot step into areas exclusive to Delhi?s government (i.e. all matters other than land, public order and police).

The rule-making power cannot break the parliamentary and federal mandate and must implement these to achieve their objectives, not undermine them. In 1991, Parliament?s NCT gave the President the power to make Rules of Business for NCT (Section 44). Although I opined otherwise to the Delhi government, I am convinced that, in its exclusive area of operation, Delhi?s NCT government should make the rules. Thus, the President making these rules for Delhi?s exclusive governance is unconstitutional, since such a power is not reflected in the Constitution. The rules are not an end in itself. The LG and some bureaucrats cite a standing order of 1994, when a spat broke out between then CM Madan Lal Khurana and LG PK Dave, requiring routing of files and transfer of officers being with the LG.

Surely, a self-serving standing order cannot undermine parliamentary and federal principles or constitutional and statutory texts. It seems like a detached tail of a dog wagging the dog.

Under the NCT Act, the LG has three other privileges: (1) to be informed of proposed legislation (to determine whether it is about land, police and public order); (2) to be informed of any decision of the NCT government (note: there is no prior approval required); and (3) to require the Council of Ministers to re-examine a decision of a minister (note: the LG has no power to overrule the decision).

These powers do not allow the LG to claim any overriding muscular powers. In the words of a 19th century English constitutionalist, Walter Bagehot, the head of state?s power is to ?encourage and warn?. LG Jung wants to reign and rule.

The other argument is that Delhi is not a full-fledged state. This is a half-truth. Technically, Delhi is a Union Territory. Delhi and Puducherry have legislatures. But the latter?s Assembly and system of governance is created by statute whilst Delhi?s government has been created by the Constitution. It is all but a full state, except Delhi does not have jurisdiction over land, public order and police.

Delhi has a population of over 10 million, larger than some of the north-eastern states. The decision to make Delhi self-governing was by constitutional amendment and parliamentary law. Why can?t the LG understand that he is not a stooge of the central government or an autocratic head of government? His duty is to serve the people of Delhi through the CM, not assume governance itself.

The question must be asked: why is he doing this?

Before the Emergency, governors were famous for toppling state governments? Is that Jung?s endeavour? Or does he have other ambitions? India?s governance is not a stranger to governors destroying state governments by fair or foul means. Is the next unconstitutional step the President?s Rule in Delhi?

The author is a senior Supreme Court lawyer and a constitutional expert. Views are personal

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