Revision as of 10:39, 5 August 2016

Delhi's evolution as a Union Territory; Graphic courtesy: The Times of India

Statehood

The Times of India

Jan 12 2015

NDA govt's '03 Bill to confer Delhi statehood was not passed

How are states different from union territories?

Union territories are governed directly by the Centre. According to the Constitution's article 239 , ev ery UT shall be administrated by the president through an adminis trator appointed by himher. But two of the UTs, Puducherry and Delhi, are different in that there is a greater devolution of powers in their case. They are allowed to elect members of legislative assemblies and have a council of ministers with jurisdiction over depart ments such as education, health, power and power. Being the seat of the na tional government, the Delhi gov ernment has been denied control over vital departments such as po lice and land. This is why Delhi is far from a full fledged state.

What is the Government of Na tional Capital Territory Act?

This Act of 1991 inserted two special provisions in article 239 of the Indian constitution. These provisions state that articles 324 to 329 with the exception of article 328 will also be valid for Delhi. The Act deals with the establishment of a legislative assembly and a council of ministers for the NCT of Delhi. It defines pa rameters of the assembly like number of seats, reser vation for scheduled castes, duration of assembly , eligi bility criteria for members, legislative powers of the house and so on. These proS visions make Delhi differ ent from other UTs.

How is NCT of Delhi different from states?

As per Article 239AA, the legislative assembly of Delhi has no control over establishment of public order, police, officers and servants of the high court and rights over the land of the NCT. This is in contrast to the authority vested in state governments over those subjects.

Does Delhi's lieutenant governor have more legislative power than state governors?

The special provision for Delhi states that there shall be a council of ministers, with the chief minister to aid and advise the lieutenant governor. In the case of a difference the LG can refer it to the president.The LG can act according to the decision given by the president and overrule the council of ministers.

Is the recurring demand for full statehood for Delhi feasible?

Though Prime Minister Narendra Modi has maintained silence on this issue, the previous NDA government had introduced a Bill in Parliament in 2003 through the then home minister, L K Advani, to confer full statehood on Delhi. But there was no serious attempt to pass that law.

A state that is not a state

The Times of India

Feb 07 2015

Subodh Varma

Is Delhi a `State' or a `Union Territory'?bb

The Centre administers a Union territory while a state is governed by its elected government. Delhi is a bit of both. Till 1991 it was a UT with a Metropolitan Council that had limited powers. Then the 69th Amendment was passed changing the set up. Delhi's official name became National Capital Territory of Delhi with a legislative assembly to be elected by citizens, a council of ministers and a CM. The lieutenantgovernor continued as the President's appointee. But certain pow ers given to legislatures were withheld from Delhi making it a special class stateUT.Another example of this is Puducherry . The first Delhi's assembly poll under the new dispensation was in 1993, which BJP won. Congress won the three subsequent elections, and the last one in 2013 produced a hung house.

Why can't Delhi be considered a fullfledged `state'?

The 69th Amendment laid down why: Legislative powers on everything related to land and public order are with the Centre. In full states, as per the Constitution, these are with state governments.There are other differences too. The Lt Governor is not the head of state, unlike other governors. The CM and ministers are appointed by the President. Parliament has overriding powers over laws passed by the state legislature.

All Delhi land is under Delhi Development Authority control. DDA has sole power to acquire or dispose it off. DDA is under the Union urban affairs ministry . Over the years, as Delhi's population exploded and land became a key requirement for settlement, this agency acquired enormous powers.

In Delhi, since public order is not state government responsibility , the Union home ministry runs Delhi Police, one of the largest metropolitan police forces in the world.

So, that's it? Some things are run by Centre and some by state government?

It's slightly more complicated. Most civic functions like sanitation, maintenance of roads, certain taxes and tolls, infrastructure, and so on are controlled by mu nicipal corporations after the 74th Constitution Amendment of 1992. The Municipal Corpo ration of Delhi was reorgan ized with a 272-member body after the 74th Amendment.

In 1997, it was won by BJP , in 2002 by Congress and again by BJP in 2007. In 2012, it was trifurcated into North, South and East Corporations, all controlled by BJP . A large chunk of funds to the municipal corporations are provided by the state.

These civic bodies don't have jurisdiction over Lutyens Delhi where residences of ministers, MPs and the diplomatic enclave are located. This island comprising 3% of Delhi's area is run by the unelected New Delhi Municipal Council. An even smaller segment where armed services establishments and residences are located is managed by the Cantonment Board, an elected body .

Where the Constitution places the Delhi govt

The Times of India

May 25 2015

How was Delhi governed after Independence?

Soon after the Constitution was adopted in 1950, the country was divided into four types of administrative divisions--Part A, B, C states and Part D territory . Part A constituted of nine states headed by the governors. Part B had nine states headed by the raj pramukhs. Ten Part C states and one Part D territory (Andaman and Nicobar Islands) were administered by the President through the chief commissioners. Unlike Part C states, there was no provision of a legislative body in a Part D territory . Delhi, along with Himachal Pradesh, Manipur, Tripura and the erstwhile princely states of Ajmer, Coorg, Bhopal and so on, was a part C state.

When did Delhi become a Union territory?

Soon after the formation of states, there was a huge demand for redrawing state boundaries on the basis of lin guistic identity. The State Re organization Commission was set up in 1953 and on its recommendation 14 states and 6 Union territories were created. On the recommenda tions of the commission, Del hi ceased to exist as a Part C state with effect from November 1, 1956 and became a Union territory . The legislative assembly was abolished as it came under the di rect administration of the President. In 1957, Delhi Munici pal Corporation Act and Delhi Development Authority Act were passed to plan and pro mote the city's development.

What stirred the demand for an elected government in Delhi?

The Fourteenth Amendment e Act 1962 inserted Article 239A c in the Constitution. This amee ndment provided for the cret ation of local legislatures and council of ministers or both for some UTs of that time, including Himachal Pradesh, Manipur, Tripura, Goa, Daman & Diu, Mizoram and Arunachal Pradesh. Delhi and other UTs like Lakshadweep, Chandigarh etc. were excluded from its purview. Subsequently , there was significant public pressure to set up an elected government in the capital.

What was Delhi Metropolitan Council?

Considering the pub lic demand, Delhi Adrative Act was passed ministrative Act was passed in 1966 and the metropolitan council was formed as a deliberative body. The council consisted of 56 elected and five nominated members. It was headed by the lieutenant governor and had an executive council comprising one chief executive councillor and three executive councillors. The council, however, was a compromise between a representative body with full legislative and financial powers and administration by the President (read Centre) through his nominees. It had no legislative power and its role in the city's governance was largely advisory . And hence there was a demand to make Delhi a full-fledged state.

When was the present form of government established in the city?

In 1987, the Balakrishan committee was constituted to go through various administrative issues pertaining to the city's governance. In a 1989 report, the committee recom mended Delhi should continue as a UT, but there should be a legislative assembly and a council of ministers with appropriate powers to deal with the issues linked to ordinary people residing in the city .Subsequently , Government of National Territory Act 1991 was passed and came into force in January 1992. The Act inserted special provisions in the Constitution for the capital. Article 239AA states that the legislative assembly shall have power to make laws for the whole or any part of NCT except matters with respect to entries 1, 2 and 18 of the State List and entries 64, 65 and 66 of that list if they are linked to 1, 2 and 18. This means the legislative assembly of Delhi has no control over establishment of public order, police, officers and high court servants, and over the land of NCT. This is in contrast to the authority vested in the state governments over those subjects.

Extent of Centre’s powers

The Times of India

Delegation of powers to Delhi; Graphic courtesy: The Times of India

Feb 07 2015

Ambika Pandit

Previous chief ministers of BJP, Congress and even AAP have been seen to be on the defensive and often helpless over unresolved policing, land and legislative concerns. However, as far as Delhi's finances go, it is not dependent on the Centre directly as it generates its own resources from a tax base which continues to be robust even in the absence of a state government for a year now. However, critical subjects like land, law and order, traffic and certain financial bills rest with the union government. Delhi's lack of status as a full state also means it gets just a few hundred crores from the central government under the allocation from the union budget. Thus Delhi runs the show with its own finances from revenue generated from value added tax, excise, stamp duty and transport. Central assistance was around Rs 700 crore last year. Delhi also gets its share in central schemes.

In Delhi, LG is the representative of the Centre on all matters related to policing and land. The Centre plays a key role through urban development ministry on subjects related to land managed by DDA. Regularisation of unauthorized colonies is a key concern where centre-state coordination has a critical role. As far as Delhi Police goes, it is not only under the control of the home ministry but also gets its budget from the Centre. Delhi Cantonment too is a centrally-fi nanced entity .

The first test for any government that takes charge after the polls will be to give shape to the Delhi budget for 2015-16. The budget outlay for the current fiscal 2014-15 was about Rs 36,000 crore and the outlay for the next fiscal is expected to be of the same size.

BJP has sought votes for good governance under Narendra Modi, making Delhi's development almost a Central affair. The fact that the BJP has abandoned its long-stand ing demand for full statehood this poll season indicates that the Centre will take a keen interest if a BJP-led government takes charge in Delhi. The PM himself has been addressing rallies and seeking a vote for good centrestate coordination.

While AAP's CM candidate, Arvind Kejriwal, has assured people that he would seek cooperation of the centre on subjects linked to centre-state coordination, an AAP government will face the challenge of strengthening the capital's financial base to deliver an expansive social welfare agenda. However, the past shows that on subjects of land and policing, often CMs have found themselves struggling to take decisions due to dependence on the Centre, leading to a stalemate.

During the 49 days of AAP government, one saw the centre-state row escalate over Jan Lokpal Bill with then CM, Arvind Kejriwal, refusing to refer the bill to the Centre in keeping with the provisions, arguing that there was no need for central approval. The impasse and protests by BJP and Congress over AAP's stand finally led to Kejriwal resigning from government. Sheila Dikshit as CM had also expressed helplessness on matters related to law and order. After the Nirbhaya gangrape case, the tussle between the centre and state on law and order was out in the open.The union home ministry's reluctance to remove the then police commissioner did not go down well with Dikshit.She failed to have her way though the Congress-led UPA was in power at the Centre.Similar showdowns were seen over trifurcation of the municipal corporation with the Centre reluctant to let go of its powers on municipal affairs.

2016: Centre says: Delhi not a full-fledged state

The Times of India, Jan 28 2016

The Centre told the Delhi High Court that capital remains under its control since it is a Union territory not a fullfledged state. The central government, which has been at loggerheads with the AAP government over powers of governance, referred to S Balakrishna committee report and said its analysis of various capitals of the world led it to conclude that Delhi cannot be a full-fledged state.

A bench of Chief Justice G Rohini and Justice Jayant Nath has begun hearing a batch of petitions dealing with separation of powers between Delhi government and the Centre. Additional solicitor gene ral Sanjay Jain, appearing for the Centre, said the Balakrishna report recommendation is the fountain-head of Article 239AA of the Constitution. He further said that Delhi “remains to be under the overall control of the Centre as it is a Union territorynational capital territory.“ The submission was ma de by the ASG during the final hearing on the issue of interpretation of Article 239AA regarding the powers of the lieutenant governor (LG) on governance of Delhi. A total of 11 cases arising out of the spat between the LG and the Delhi government, are being heard together by the bench headed by the chief justice. The ASG further conten ded that the office of the LG is unique and has wider powers than those enjoyed by the go vernor of a state, since the LG is an administorator.

“Governor enjoys constitutional immunity but not the LG. He (present LG of Delhi) is the executive head of the state. The chief minister and his council has to aid and advise the LG but he is not bound by it. If there is a difference of opinion, the issue has to be referred to the President. LG is not a mayor or a titular head,“ he said.

“Here we have an elected government with a chief minister, but the CM is not like that of other states because here we have a CM of a Union territory , which is also the ca pital of the country ,“ the senior law officer argued.

Demarcating turf

SC: HC can decide

The Times of India, Jul 02 2016

Dhananjay Mahapatra

The Supreme Court declined the Arvind Kejriwal government's plea to direct Delhi High Court not to pronounce judgment on a clutch of petitions on disputes between the state administration and the Union government over jurisdiction. A bench headed by Chief Justice T S Thakur was taken aback by the request and said, “How can an HC be restrained from pronouncing its judgment? Even if it delivers a judgment, it would still be open for the petitioner to challenge it in the Supreme Court.All issues can be raised in the appeal before the SC.“

The Kejriwal government had said the HC did not have jurisdiction to adjudicate a dispute between a state and the Centre, contending that the matter fell squarely within the SC's purview.

The AAP government told the SC that the Centre had virtually paralysed its functioning and governance in the absence of clarity in the distribution of legislative powers between Delhi and the Centre as per Article 239AA of the Constitution.

“Because of lack of clarity, disputes have arisen between Delhi government and Union government. This has led to difficulties in day-today activities and administration of Delhi government inasmuch as every decision taken by it is being questioned on the ground that the lieutenant governor has power to take decisions in all matters relating to the Delhi government,“ the AAP government said.

Delhi's counsel Indira Jaising said numerous petitions had been filed by both sides in Delhi HC, which on May 24 reserved its verdict on the AAP government's application seeking stay of all pending proceedings on this issue. The AAP government said the HC had no jurisdiction to deal with inter-government dispute, even if the parties consented to its adjudication by the high court. Jaising said inter-government issues could be adjudicated only by the SC, where the AAP government's petition was pending. She added that all proceedings before the HC, including the impending pronouncement of judgment on stay as well as merits of the issue, should be kept in abeyance.

Jaising alleged that the HC had not taken into account the preliminary objections raised by the AAP government and requested a bench of CJI Thakur and Justices A M Khanwilkar and Dhananjaya Y Chandrachud to restrain the HC from pronouncing its verdict.

“Final judgment of the HC is subject to an appeal before the SC. Let the HC decide the matter. We are not going to stay pronouncement of the judgment by the HC,“ the bench said despite Jaising persisting with her argument that a final judgment on this issue would prejudice the merits of the Delhi government's case. Finding it difficult to persuade the court, Jaising requested listing the matter for hearing on Monday and told the court that merits of the issue would be addressed by senior advocate K K Venugopal, who was also present. The bench agreed and listed the matter for Monday .

The Delhi government in its special leave petition, filed through advocate Chirag M Shroff, said, “The HC by reserving judgment on the application for stay of the proceedings as also simultaneously reserving judgment on merits of the petitions amounts to a refusal of stay of proceedings, thereby seriously jeopardizing the rights of the petitioner to a determination of the issues in the suit filed before the SC raising issues of federal nature.

“The HC has no jurisdiction to hear the writ petitions, the dispute being essentially one between a state on the one hand and the Union of India on the other hand. The exclusive jurisdiction over the present petition rests with the Supreme Court under Article 131 of the Constitution.“

Anti-Corruption Bureau’s powers

Graphic courtesy: The Times of India

The Times of India May 26 2015

Abhinav Garg

Delhi HC restores ACB's power to act against any govt official

In an embarrassment to the Centre, the Delhi high court restored the powers of Delhi government's Anti-Corruption Branch (ACB) to probe and prosecute all government employees, including IAS and IPS officers, within the jurisdiction of Delhi. Justice Vipin Sanghi, while rejecting the bail plea of a Delhi Police head constable arrested by ACB, described as “suspect“ the noti fication issued by the Union government on May 24, which spelt out the powers of the lieutenant governor (LG) in relation to the state government. It had also asserted that the ACB didn't have powers over officers in the central cadres, and virtually made it appear that the LG was the real boss of Delhi.

The HC said the LG “must act on the aid and advice of the council of ministers“ on matters over which the state had full jurisdiction“. The court stressed that “Delhi shall not be administered by the Presi dent through the LG in respect of matters over which the legislative assembly of NCT has authority to make law“.

Welcoming the HC order, the Delhi government said, “The Delhi high court verdict restoring the powers of the anti-corruption branch (ACB) is a decisive victory for the people of the national capital. The move to curtail the original powers of the ACB through an ill-conceived notification by the union home ministry on July 23 last year (2014) has been categorically rebuffed by the high court.“

The HC viewed the notification as “executive fiats“ encroaching upon areas of governance demarcated by the Constitution in favour of Delhi government under entries 1 & 2 of Concurrent List. “In my view since the Centre lacks the executive authority to act in respect of matters in Entries 1 & 2 of Concurrent List,“ the court said there “is no fetter on power of Delhi assembly in relation to matters enumerated in Concurrent list.“

Entry 1 deals with criminal law, including all matters related to IPC but excluding offences listed in List I or List II. Entry 2 is about criminal procedure, including all matters in the code of Criminal Procedure at the beginning of the Constitution.

HC concluded that the Centre lacks “power in respect of a matter falling within the legislative competence of Delhi assembly , since a law made by Parliament, the GNCTD (Government of National Capital Territory of Delhi) Act, read with Article 239AA puts fetters on executive authority of the President.“

Agreeing with the arguments of ACB's counsels, Dayan Krishnan and Rajat Katyal, the court held that the state government has the powers with respect to investigation of a crime which “stems from entries 1 and 2 of the Concurrent List of the Seventh Schedule.“

In the process, the court dismissed the bail plea of head constable Anil Kumar, rejecting his main argument that the ACB doesn't have jurisdiction to prosecute him.“Since the applicant is a Delhi Police personnel serving the citizens in NCTD and the functions of the Delhi Police personnel substantially and essentially relate to the affairs of the GNCTD, in my view, the ACB of GNCTD has the jurisdiction to entertain and act on a complaint under the PC Act in respect of a Delhi Police officer or official, and to investigate and prosecute the crime. This would also be in consonance with the guidelines issued by the CVC,“ the court noted.

Kumar's arrest by the ACB had set off a turf war between Delhi Police and the government. While the ACB booked him on corruption charges, Delhi Police registered an FIR of kidnapping on a complaint from Kumar's wife.

He was arrested by the ACB after a scrap dealer complained on the anti-corruption helpline 1033 that Kumar demanded Rs 20,000 as bribe and threatened to falsely implicate him. After the arrest, Delhi Police sent a notice to ACB to join the probe, which however sent a counter-notice to Delhi Police asking the Sonia Vihar SHO to join investigations.

SC refuses to stay ruling on ACB powers

The Times of India, May 30 2015

AmitAnand Choudhary

The Supreme Court said the Delhi high court's observation that the Delhi government and not the lieutenant governor has the final say in transfers and postings of senior government officers in the capital was “tentative“ and, thus, not binding, strengthening the Centre's hand in the tussle with CM Arvind Kejriwal. A bench of justices A K Sikri and U U Lalit, however, did not accept the Centre's plea for immediate stay on the Delhi HC order empowering the city government's AntiCorruption Branch (ACB) to not just act against their own employees but also functionaries, officers and employees of the central government serving in the capital.

The apex court's order comes days after Delhi HC termed as “suspect“ a notification issued by the Union home ministry to assert it was the LG and not the state government which enjoyed primacy in transfers and postings of officers belonging to central services and posted in the capital.The Kejriwal government celebrated the order as a vindication of its stand that the LG ought to heed the state government in matters of transfers and postings.

Although justices Sikri and Lalit said the larger legal issue of who enjoys paramount powers in the contentious matter will be decided later, Friday's order clears the way for the LG to act as the final authority on transfers and postings until the top court settles the issue.

The bench also stressed that Delhi HC's observations will have no bearing on the court when it settles the constitutionality of the home ministry's notification.

“We, therefore, clarify the observations made therein were only tentative in nature without expressing any opinion on the validity of the notification...and it would be open to the HC to deal with the said petition independently without being influenced by any observations made in para 66, or for that matter in other paragraphs of the impugned order,“ the court said.

On the Centre's challenge to the Delhi HC order that the jurisdiction of the ACB covered not just employees of the state government but also those of the Centre, the bench said it needed to hear the state government before passing an order. It gave Delhi government three weeks to respond to the Centre's plea for interim stay .

The MHA notification emphasizing that ACB was not legally equipped to proceed against functionaries, officers and employees of the Centre came amid apprehensions of “misuse“ of the anti-graft agency . The ACB hit the headlines last year when it, during Kejriwal's 49-day term, lodged complaints against former petroleum minister Veerappa Moily and industrialist Mukesh Ambani in connection with alleged rigging of the KG basin gas price.

The Centre had challenged the HC order questioning the constitutionality of the MHA notification saying it was passed without giving it an opportunity to put forth its views. Appearing for the Centre, solicitor general Ranjit Kumar and additional solicitor general Maninder Singh said for the HC to pass the order without giving the Centre an opportunity to be heard marked a violation of the principles of natural justice.

Delhi HC had said the LG “must act on the aid and advice of the council of ministers“ on matters over which the state had full jurisdiction, and that the mandate of the people, with whom the sovereign power resides must be respected by the LG in respect of matters which fall in the domain of the legislative assembly , provided there is no other constitutional or legal fetter“.

However, the two law officers disputed the reasoning behind the Delhi HC order that having been elected by the people, Delhi government was the final authority on the issue of transfers and postings of officers. The SG and the ASG emphasized that Delhi was a Union Territory and did not enjoy the same powers as fullscale state governments. Delhi HC overlooked this fact, the law officers contended.

“The judgment upsets the delicate constitutional balance for governance of Delhi and that too without an opportunity of hearing being given to the Centre,“ Kumar and Singh argued.

“The HC erred in not issuing notice to the Union of India despite recording that this is an important constitutional issue which has a bearing on the executive authority of the Union and the said issue cannot be finally determined without hearing the Union and examining its stand,“ the Centre said.

Powers of lieutenant governor and chief minister

MHA notification

The Times of India

May 22, 2015

The Union home ministry issued a notification clarifying distribution of power between Delhi's lieutenant governor and the chief minister. According to the MHA notification, the LG has primacy in postings and transfers of officers belonging to Central services.

Here is the full text of MHA notification.

"MINISTRY OF HOME AFFAIRS

NOTIFICATION

New Delhi, the 21st May, 2015

S.O. 1368(E).—Whereas article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify; And whereas article 239AA inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’ provides that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor; And whereas sub-clause (a) of clause (3) of article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18 relates to ‘Land’. And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that - (i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President. Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate. 2. In the Notification number F. 1/21/92-Home (P) Estt. 1750 dated 8th November, 1993, as amended vide notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for paragraph 2 the following paragraph shall be substituted, namely:— “2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the article 239AA of the Constitution.” after paragraph 2 the following paragraph shall be inserted, namely:— “3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government”. 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession.

[F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy."

CM Arvind Kejriwal vs L-G Najeeb Jung: 2015

A timeline: Chief Minister vs Lieutenant Governor; Graphic courtesy: The Times of India

The Times of India 19 May, 2015

The turf war between chief minister Arvind Kejriwal and lieutenant-governor Najeeb Jung unfolded as follows.

May 15

LG Najeeb Jung appoints Shakuntala Gamlin as acting CS; AAP govt slams the move, saying LG acted against ‘the Constitution, GNCT of Delhi Act and the Transaction of Business Rules’ Jung rebuts the allegations saying under Article 239 AA of the Constitution, LG is the representative of State Authority in Delhi

May 16

CM Arvind Kejriwal asks Gamlin not to take charge, saying her appointment is against the set rule Gamlin takes charge; Kejriwal removes Anindo Majumdar from the post of principal secretary (services) after he issued the appointment letter to Gamlin following instructions from Jung LG declares the order to transfer Majumdar ‘void’ saying it did not have his approval

May 17

CM accuses Gamlin of trying to favour 2 Reliance Infra-owned discoms through a Rs 11,000-cr loan and says the Modi government wants AAP dispensation to 'fail'

May 18

AAP government locks the office of Majumdar, appoints CM’s secretary Rajendra Kumar as principal secretary (services); LG rejects the appointment

Deputy CM Manish Sisodia writes to LG, calling Jung’s stand unconstitutional

Jung is right: Centre

The Times of India, May 09 2015

`Jung is right, can use discretion on reserved subjects'

Bharti Jain

While the Centre is keeping itself aloof from the Arvind Kejriwal vs Delhi LG tangle on matters of jurisdiction, it firmly believes that Najeeb Jung is right in asserting his prerogative to involve or not involve the Delhi CM in decisions pertaining to `reserved' subjects of police, public order and land. A top central government functionary said the Union government would step forward to fully back Jung if needed, while also highlighting how Kejriwal was trying to usurp powers that did not constitutionally belong to him.

“The Centre is not keen to be seen as siding with either party for now. We are clear that powers and functions relating to the `reserved' subjects fall very much in the LG's domain, who may or may not consult the CM,“ he said.

A senior home ministry official insisted the Delhi government's anti-corruption bureau was not competent to act against any central government officer in Delhi, including Delhi Police personnel who draw their salaries from the home ministry . This renders invalid the recent action initiated by the bureau against a woman inspector and constable of Delhi Police.

As per Rule 45 of Transaction of Business of the Government of NCT Rules, 1993, the LG may consult the CM only where the President issues an order to this effect under Article 329. Even this consultation may be bypassed, thanks to a September 1998 clarification to Rule 45 that exempts the LG from involving the Delhi CM in decisions where, for reasons to be recorded in writing, he does not consider it expedient to do so.

Though Kerjiwal had on April 29 cited Article 239AA3(a) of the Constitution to ask all departments “not to bother the office of LG“ by marking files to him, legal experts are of the opinion Articles 239AA and 239AB give the Delhi CM no such powers as far as public order, police and land matters are concerned.

A senior lawyer told TOI that by engaging Delhi LG and the Centre in jurisdiction battles, Kejriwal was cleverly trying to pitch for full statehood to Delhi. But, in reality , Delhi is far from a “full-fledged“ state and LG remains the final authority for approval of laws enacted by the state assembly .

On CM’s side: K.K.Venugopal

The Times of India, May 24 2015

Sana Shakil

Centre's notification illegal, unconstitutional: Venugopal

The Delhi government has found support in its tussle with LG Najeeb Jung from two senior lawyers who have described the central government's notification giving LG the final say in posting and transfer of Delhi government bureaucrats as “illegal and unconstitutional“. Former solicitor general Gopal Subramanium and senior advocate K K Venugopal, in their legal opinion that was sought by CM Arvind Kejriwal, have stated that the gazette notification is untenable in law and stands no chance in court. Both lawyers have wondered whether it has the approval of the President. “Such an exercise may be assailed in a court of law as a fraud on the Constitution or a colourable exercise of authority...It singularly lacks propriety when the President is still seized with the question. It is illegal and unconstitutional; and presumably , it has been issued without the requisite presidential approval,“ Subra manium has said.

Calling the MHA 's notification as void, Venugopal has said: “If a democratically elected government has been brought to power by the people, the `public services of the state' should be controlled by the elected government.“ Venugopal has also backed Kejriwal's decision to oppose senior bureaucrat Shakuntala Gamlin's appointment as acting Delhi chief secretary by the LG. “The chief secretary is the lynchpin of executive governance...but...if the government is given a chief secretary who obeys the orders of the administrator and not of the council of ministers of the chief minister, this would be a sure recipe for disaster,“ Venugopal's 11-page opinion states.

Earlier, two senior lawyers, Indira Jaising and Rajeev Dhavan, had supported Kejriwal.

Meanwhile, the Centre's notification has found support from some other lawyers who said it was “absolutely justified“. Shanti Bhushan, who was earlier associated with AAP , said: “Only the LG has the power to post and transfer bureaucrats on the direction of the central government. Delhi government has no power at all (in this regard).“ Agreeing with Bhushan, a former judge of the Delhi HC and now a senior counsel, Rupinder Singh Sodhi, said: “I think the LG was always right and the power of services (posting and transfer of bureaucrats) are always with the President which are delegated to the LG. Unlike the states where consultation by the governor with the council of minister is mandatory , in case of a union territory , it is a discretion which the LG may or may not exercise.”

LG, the administrator: Experts

The Times of India, May 16 2015

Abhinav Garg

The tug of war over appointment of Delhi's acting chief secretary has once again brought into focus the separation of powers between the Union and the Delhi government. Constitutional experts told that Delhi, being a Union Territory , can't be compared to other states where the Governor is just a titular head. For the capital, Lieutenant Governor is the “administrator“ who has overriding powers.

Former secretary general of Lok Sabha, Subhash C Kashyap, a noted authority on the Constitution, explained that the NCT Act and the Constitution, when read together, make the legal position very clear.“Delhi is a Union Territory and by definition it means a centrally-administered territory .The President governs all Union Territories through an administrator appointed by him. In Delhi, this is the Lieutenant Governor. Under Article 73, executive powers are coextensive with legislative powers. If the Parliament has overriding powers, then the Union executive also has overriding powers. So in Delhi's case, the chief minister depends on Lieutenant Governor and not the other way round.There is no provision that says LG is bound to act on the aid and advice of the chief minister,“ Kashyap maintained.

His views were echoed by the former secretary of the Delhi assembly , S K Sharma. Referring specifically to the ongoing crisis, Sharma pointed out that under the Constitution, there are either central government or state government employees. Delhi being a Union Territory, the employees of the Delhi government are deemed to be the Union government's employees for which the Centre has the final say .

“The chief minister is nowhere in the picture. Even under the Delhi Act, for transferred subjects, the Lieutenant Governor is not bound by the advice of the chief minister or his council of ministers. For higher services such as IAS, the cadre-controlling authority is the home ministry . The state government has very limited role. In my view, this is not the first time that the capital has a CM. In the past 25 years, when there has been no problem on demarcation of powers, I wonder why there is so much confusion now,“ he said.

Legal opinion: Rajiv Dhavan and Indira Jaising

The Times of India, May 20 2015

Manoj Mitta

In the event of “a difference of opinion“ between him and the council of ministers, the lieutenant governor of Delhi does have the power to act on his own “where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action“. But then, Article 239AA of the Constitution also makes it clear that the lieutenant governor can invoke this urgency power only after he has referred the matter to “the President for decision“ and that it “shall be competent“ for him to take immediate action “pending such decision“. Since Najeeb Jung had made no such reference to Pranab Mukherjee before appointing Shakuntala Gamlin as acting chief secretary , which is a precondition for taking “immediate action“, two legal experts, Rajeev Dhavan and Indira Jaising, have given their opinions to the Arvind Kejriwal government in support of its stand in the on-going turf war.

Responding to the query whether the LG could make such an appointment if the CM did not do so within 40 hours, Dhavan said, “A lapse of 40 hours is not sufficient reason for the LG to impose his choice on the CM, espe cially when his urgency powers arise only when a reference is pending before the Central Government.“

Though the LG of Delhi has exclusive jurisdiction over three subjects (public order, police and land), Dhavan said the CM had “a perfect right to a chief secretary of his choice“. He added, “At best the LG can advise the CM that it is necessary to appoint a chief secretary forthwith.“ In a verdict delivered in 1998 in Om Prakash Pahwa vs State of Delhi, the Supreme Court brought out the fact that the LG of the Capital however had wider discretion than a state governor.Quoting Article 163, the apex court said that “what the governor of a state may do at his discretion must be so provided for by the Constitution“.But it said that under Article 239AA, “what the LG of NCT of Delhi may do at his discretion may be provided by or under `any law' and not the Constitution merely .“

Referring to this distinction, Jaising said, “There is no provision in the Constitution or in the NCT of Delhi Act 1991 or any other law granting to the LG the power to act at his own discretion in the matter of appointment of the chief secretary .“ A former additional solicitor general, Jaising added that the decision to appoint the chief secretary , “being an executive function must be by the council of ministers“ in accordance with the rules of business and cadre rules.

As a corollary, the question of any difference of opinion on the appointment of chief secretary can arise, Jaising said, “only after the decision to appoint is taken by the council of ministers and sent to the LG.“ She added that it was only when the LG had a difference of opinion with the decision of the council of ministers that “his role begins under Rule 49“ of the transaction of business rules, spelling out the procedure for referring the matter to the President.

Since the political execu tive is constitutionally empowered to choose its own officers in accordance with the cadre rules, Jaising said “who will be the chief secretary is a matter in which the LG has to yield to the will of the political executive.“

Significantly , Dhavan attacked Jung's motives saying, “It is clear that the LG has exceeded his authority and turned the relationship between himself and the council of ministers on its head to jeopardize democracy and the Constitution.“

Dhavan alleged it was not for Jung “to concoct a controversy about his powers when it is perfectly clear that parliamentary government requires him to act on the aid and advice of the CM“.

Need of a political solution

The Times of India, May 29 2015

In Delhi's battle against Centre the law is murky, solution must be political

Arghya Sengupta

It was only a matter of time before the highdecibel public confrontation between the Delhi government and its lieutenant governor reached courts of law. But the trigger for this was curious ­ far from being a constitutional writ brought by the Delhi government against the Union of India, it was a pedestrian application for bail of head constable Anil Kumar of Sonia Vihar police station who had been accused of corruption. Two passing observations by a single judge of the Delhi high court, that the LG must respect the “mandate of the people“ and that the recent notification issued by the Union home ministry pertaining to the powers of the LG vis à vis those of the Delhi government was `suspect', have now been appealed in the Supreme Court. But there is scant chance that even an authoritative pronouncement by the highest court will bring quietus to an issue that deserves mature political rapprochement.

As a matter of law, the Delhi high court judgment is erroneous. The question was whether the jurisdiction of the anti-corruption branch of the Delhi government extends to the Delhi Police whose officers are not employees of the Delhi government. To answer this question, the court relied on the fact that the executive power of the central government to issue a notification does not extend to matters pertaining to criminal law, a concurrent list subject.

This is a simplistic proposition that flies in the face of Article 239 AA of the Constitution which clearly provides that Parliament has power to enact laws with regard to any matter pertaining to Delhi, no matter which list it falls under. This is also provided by Article 246(4), which vests Parliament with the same competence for all Union Territories. The court failed to recognise this salient fact and equated Delhi to other states in the Union.

In any event, the judgment has no bearing on the core legal issue in the current standoff, which is the power to appoint and transfer IAS officers. IAS officers in Delhi belong to a joint cadre that includes Arunachal Pradesh, Goa, Mizoram and the Union Territories. Its rules provide that some powers in respect of this cadre can be exercised by the joint cadre authority under the Union home ministry. Other functions, including the power to post bureaucrats within a state, must be exercised by the concerned state government.

In the context of Delhi, the consequent question is whether such power is to be exercised by the LG or the elected government. Common sense would dictate that given the nature of India's representative democracy and federal polity, it would mean the latter. But Delhi and Puducherry provide a unique situation where state governments have to be like Janus ­ accountable to the electorate that has voted them into power but reliant almost entirely on the central government that has midwifed them into existence.

A combined reading of the constitutional and statutory provisions pertaining to Delhi suggests that the power to appoint and transfer bureaucrats is the prerogative of the LG. For the appointment of the chief secretary there is a specific provision that the LG shall make a reference to the central government and shall follow its direction.

For the general power pertaining to appointment and transfer of senior bureaucrats, the LG's office claims a Presidential Order from 1994 vests him with this power. Even discounting this, the default in case the position of law is unclear on whether the LG can act on his discretion or not is quite clear: The matter shall ultimately be decided by central government.

One can say the law is anomalous.Such an anomaly is not uncommon in capital cities in federal countries around the world. Islamabad is governed by the federal administration of Pakistan; Canberra has an elected legislative assembly which has been deprived of vast swathes of power including control over land and police.In several federal setups including the US, full statehood for the capital city has been demanded and rejected.

For Delhi too, it is imperative to remember that after functioning as a state from 1951 to 1956 its statehood was specifically taken away by the States Reorganisation Commission, which felt that the interest of Delhi's residents and its status as the seat of national government would be optimally balanced with Delhi being a Union Territory with a powerful municipal body. The Balakrishnan Committee whose 1989 report led to the present position of law, recommended an elected legislative assembly but stopped well short of full statehood.

Whether these determinations have to be revisited now and the shape such reform might take are key questions that concern the country today . While the answers are complex, two thoughts must be borne in mind. First, the existing position of law is murky and hence any determination must not be founded on a judicial view that negotiates the murkiness through artful usage of technical rules of interpretation. There must be open public debate and civil dialogue leading to a political solution on necessary reforms.

Second, this political squabble is far from a constitutional crisis. It is a case of `ambition counteracting ambition' ­ the key foundation of a government based on checks and balances, and a sign that Indian democracy is alive and well.

See also

Parliamentary secretaries: India