Delhi: Statehood- legal, constitutional issues
See also Delhi: Lt. Governor vs. Chief Minister
This article has been sourced from an authoritative, official
readers who wish to update or add further details can do so on
a ‘Part II’ of this article.
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
Feb 07 2015
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 .
The demand for statehood, a history
July 5, 2018: The Times of India
THE HISTORICAL BACKGROUND
Delhi was categorised as a type C state to be administered by chief commissioner. In 1952, Delhi was made a self-governing part ‘C’ state with a legislative assembly and a council of ministers. The states reorganisation Act 1956, scrapped the definition category A, B and C states and set up 14 states and 6 union territories including Delhi. Union territories were to be governed by “administrators” appointed by the President.
What is the current status?
The union territory was designated as the National Capital Territory after the National Territory Act came into force following the Constitution (69th Amendment Act) 1991.
Article 239 AA of the Constitution confers special status on Delhi and says that the administrator appointed shall be designated as Lieutenant governor. It states that there shall be a legislative assembly for the NCT and seats would be filled through election.
The article says that in case of difference of opinion between the LG and the ministers, the LG shall refer it to the President for decision and act according to his decision. If the matter is very urgent the LG is authorised to take a decision or issue directions as he deems necessary.
What is the division of powers in Delhi now?
The Delhi government does not have powers over the following: Police, public order, land, jurisdiction of courts. The municipal corporations are governed by their own laws while the Centre has a say in some domains.
What statehood will mean for Delhi
Demand for statehood for Delhi has been made by political parties across the spectrum. The AAP government has renewed the effort as it feels that it is unable to effectively govern given its limited powers over the police and the bureaucracy. It says the Centre is interfering in its function and sees the LG as an obstacle and this has led to clashes with the government and the LG, the most recent being the dharna by the CM Arvind Kejriwal at the LG’s office.
Where the Constitution places the Delhi govt
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
Feb 07 2015
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.
May 2016: Delhi's a UT, not state: Centre to SC
The Times of India, May 01 2016
Delhi's a UT, not state: Centre to SC
In what could rile the Kejriwal government, already in a confrontational mode with the Centre over power-sharing, the latter has told the Supreme Court that despite having an elected government, Delhi remains a Union Territory administered by the President through the lieutenant governor. The home ministry , in a plea, said it was possibly an “oversight“ by the SC to treat Delhi as a state alongside Himachal, Mizoram, Arunachal, Tripura and Nagaland when it directed the setting up of the state human rights commissions. “There is no separate...entity called `state government' in NCT,“ it said. The SC had not discussed whether the Pro tection of Human Rights Act contemplated setting up of SHRCs in Union Territories.“Inclusion of Delhi in the direction as State of Delhi may be due to an oversight of the fact that the Delhi government continued to be Union Territory despite having an elected government,“ the application said.
“Since the NCT of Delhi is a Union Territory , it is administered by the President through an administrator (Lieutenant Governor) appointed by him under Article 239(1) of the Constitution,“ it said. “Thus, the administration of UT of Delhi falls under the jurisdiction of the central government and there is no separateindependent entity called `state government' in the National Capital Territory ,“ it said.
In what can be seen as rubbing salt on the wounds of the Kejriwal government, it said: “For all intent and purpose, state government for NCT of Delhi would imply the President acting through LG.“ The affidavit did not even mention once about the elected AAP government which had been demanding administrative control over police and the Delhi Development Authority .
The AAP government had passed a resolution for setting up of SHRC in Delhi but the Centre had remained inactive on this proposal. The SC had taken strong note of the inaction and entertained a contempt petition for alleged violation of the apex court's July 24, 2015 order directing setting up of SHRCs in seven states, including Delhi.
The home ministry through advocate Wasim A Qadri requested the court to clarify its July 24 order. Referring to the constitutional provisions in Article 239AA and 239-B, the Centre said a conjoint reading showed “how the Union Territory of Delhi is in a class by itself but is certainly not a state within the meaning of Article 246 of Part VI of the Constitution“.
“The fact remains that those surviving as Union Territories are governed by Article 246(4) notwithstanding the differences in their respective set-ups -and Delhi, now called the `National Capital Territory of Delhi', is yet a Union Territory,“ the home ministry said and admitted that it had earlier failed to distinguish before the court that Delhi was not a state but a UT.
“Proposal for constitution of HRC for Delhi is not comparable to Delhi Women Commission and Delhi Minorities Commission, which are constituted under specific Acts passed by Legislative Assembly of Delhi. But proposal for a HRC in Delhi is to be under a law which refers only to states and not UTs,“ it said.
The final word: SC gives Centre upper hand/ 2019
AmitAnand Choudhary, SC allows Centre to retain upper hand in ruling Delhi, February 15, 2019: The Times of India
Larger Bench To Decide On Power To Post Officials
The Supreme Court gave the Centre the upper hand in running Delhi by allowing it to retain control of the anticorruption bureau and setting up of commissions of inquiry while the contentious issue of services — posting of officials — will be examined by a larger bench.
A bench of Justices A K Sikri and Ashok Bhushan disagreed only on the matter of services while holding that appointments of public prosecutors and setting of power tariffs and circle rates lie in the domain of the AAP government. On services, Justice Sikri felt that cadre management of officers below the rank of joint secretary could be done by the Delhi government while Justice Bhushan held that the Centre be the sole authority with regard to central service officers.
The split with regard to services essentially means that the Centre remains the cadre-controlling authority till a larger bench rules on the matter. The matter of services and four other issues had been referred to the bench of Justices Sikri and Bhushan after the SC disposed of the Delhi high court order that had upheld the Centre’s administrative control over the capital.
The verdict disappointed Delhi CM Arvind Kejriwal while BJP welcomed it.
‘Fixing circle rates in state’s domain’
The AAP government has been keen to assume supervision of the ACB and postings of officials — a source of constant friction with the Centre as well as with several senior officials in the city administration.
While control over the ACB and setting up of commissions of inquiry went in favour of the Centre, the Delhi government keeps jurisdiction over relatively lesser functions like powers under the Electricity Act and revision of circle rates of land, in addition to appointing public prosecutors.
The AAP government’s quest for police powers remains unfulfilled as the bench noted that the ACB was created as a police station by the lieutenant governor way back in 1993 and that notification is still valid and has not been challenged. Holding that “public order” comes within the Centre’s jurisdiction and excludes the Delhi government, the court concluded that the LG will have superintendence over ACB. It upheld the Centre’s notification barring the ACB police station from taking cognisance of offences against officials of the central government.
The bench also ruled that the Delhi government is not empowered to appoint inquiry panels under the Commissions of Inquiry Act as the “state government” used in Section 2(a) of the act would not mean the Delhi government, which is a Union territory.
Referring to the constitutional bench verdict which had held that the LG has to act on the aid and advice of the council of ministers on areas which do not come within his discretionary powers, the court said it is for the Delhi government to take a decision and pass order to the Delhi Electricity Regulatory Commission to fix tariff and held that it comes within the jurisdiction of the elected government.
Holding that the Centre cannot have exclusive jurisdiction on fixing the circle rates of land merely on the ground that the issue of “land” lies in its domain, the bench clarified that this is fixed to decide stamp duty. The rates are in the domain of the Delhi government though approval of the LG was required before implementing the order.
The split opinion on services also gives an edge to the Centre as both judges agreed that transfer and posting of higher bureaucrats should be done by the LG. Justice Sikri suggested “to carve out a just and fair mechanism” under which transfer and posting of officers of joint secretary level and higher officers should be directly done by LG. He said for other levels, including Danics officers, the files can be routed through the CM to the LG and in case of difference of opinion, the view of the LG should prevail. To ensure greater transparency, Justice Sikri said a civil services board could be set up for Grade IV, III, II and I DASS officials.
Justice Bhushan, however, outright rejected the claim of the AAP government over services and said there is no occasion for the Delhi government to exercise any executive powers with regard to services.
2023/ SC: the legislature has control over bureaucracy
Khadija Khan, May 12, 2023: The Indian Express
The Supreme Court today (May 11) ruled unanimously in favour of Delhi government on the issue of who controls the bureaucracy in the national capital. The 5-judge constitution bench, headed by Chief Justice of India DY Chandrachud, held that the legislature has control over bureaucrats in administration of services, except in areas outside the legislative powers of the National Capital Territory (NCT). There are three areas outside the control of Delhi government: public order, police and land.
The CJI said an ideal conclusion would be that the Delhi government ought to have control over services, subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, the ministers and the executive, who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions, he said.
The CJI said, “The legislative and executive power of the Government of National Capital Territory of Delhi (GNCTD) over entry 41 shall not extend over to services related to public order, police and land. However, legislative and executive power over services such as IAS or joint cadre services, which are relevant for the for the implementation for the policies and the vision of NCTD in terms of day to day administration of the region shall lie with the NCTD.”
The question of the regulation of services was a major part of the overall dispute between the elected government in Delhi and the Lieutenant Governor (LG) nominated by the Centre. The legal battle has been protracted, and the verdict of the Supreme Court will have far-reaching implications. Almost five years ago, another Constitution Bench of the court had ruled in favour of the Aam Aadmi Party-led state government in a similar tussle.
The CJI-led Bench in the present matter also comprises Justices M R Shah, Krishna Murari, Hima Kohli, and P S Narasimha. The verdict is unanimous, and has been written by the CJI. Here’s the background of the case.
First, how did the matter come before the CJI-led Bench?
On May 6, 2022, a three-judge Bench headed by then CJI N V Ramana, acting on a plea by the Centre, had referred this case to a larger Bench. The three-judge Bench had decided that the question of control over administrative services required “further examination”.
The Centre had sought the reference to a larger Bench on April 27, 2022, arguing that it needed the power to make transfers and posting of officers in Delhi on account of it being the national capital and the “face of nation”.
The court had agreed that the limited question relating to the scope of the legislative and executive powers of the Centre and NCT of Delhi, with respect to the term “services”, would need an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution. Article 145(3) deals with the setting up of a Constitution Bench comprising at least five judges “for the purpose of deciding any case involving a substantial question of law as to the interpretation” of the Constitution.
The three-judge Bench had noted that the primary contention in the case related to the interpretation of Article 239 AA(3)(a) of the Constitution, which deals with special provisions for the NCT of Delhi. In its order of May 6, 2022, the court said: “The Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of the Constitution [in 2018], did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List (State public services; State Public Service Commission).”
Who had filed the case before the three-judge Bench?
The case had come before the three-judge Bench because a two-judge Bench comprising Justices A K Sikri and Ashok Bhushan had, earlier in 2019, delivered a split verdict on the issue of services.
This two-judge Bench had in its decision settled several issues relating to the powers of the LG, but on the issue of control over services, the two judges on the Bench had ruled differently. Once the split verdict was passed in 2019, as per procedure, the case came up before the then CJI for listing so that it could be heard afresh by a larger Bench. Split verdicts by two-judge Benches are not common, but not unheard-of either.
So what did the judges on the two-judge Bench hold?
Justice Bhushan held that the Delhi government has no power over administrative services at all.
Justice Sikri, however, was of the view that “transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly”, but “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to LG”.
The 2019 verdict also dealt with five other issues arising from the power tussle between the Centre and the Delhi government, relating to the power of the Anti-Corruption Branch of the Delhi government to investigate corruption cases against central government officials and appoint commissions of inquiry.
And what led to these issues coming before the two-judge Bench?
The 2019 verdict was essentially delivered to decide the contentious issues based on the law settled by a five-judge Constitution Bench in 2018 [to which (then) CJI Ramana referred in 2022].
In 2018, a five-judge Bench comprising then CJI Dipak Misra and Justices Sikri, Bhushan, A M Khanwilkar, and (now CJI) Chandrachud interpreted Article 239AA of the Constitution which contains special provisions for the national capital. The court laid down broad parameters for the governance of Delhi; it held that although Delhi cannot be given the status of a state, the powers of the LG can be curtailed as he has no “independent decision-making power” and has to act on the aid and advice of the elected government.
“Thus, in this hue, the Constitution Bench has also accepted that the Lieutenant Governor is to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor is permitted to exercise his own discretion,” the court held.
The court also restricted the jurisdiction of the LG to matters involving land, police, and public order, while holding that for all other matters, he will have to act on the aid and advice of the council of ministers.
Prior to this, the Delhi High Court had, in its judgment of August 4, 2017 on the same issue, held that for administration purposes of the NCT, the LG is not bound by the aid and advice of the Council of Ministers in every matter. On appeal, the SC in 2017, referred the matter to decide the interpretation of Article 239AA of the Constitution.
Finally, what is Article 239AA(3)(a) of the Constitution?
Article 239AA was inserted in the Constitution by the 69th Amendment Act, 1991. It conferred Special Status upon Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.
According to this provision, the NCT of Delhi will have an Administrator and a Legislative Assembly. Subject to the provisions of the Constitution, the Legislative Assembly, “shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” except on the subjects of police, public order, and land.
SC/ 2016: HC can decide
The Times of India, Jul 02 2016
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
The Times of India May 26 2015
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
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
Constitution gave LG primacy in administrative matters
Dhananjay Mahapatra, SC: LG has primacy, but we can make more room for Delhi govt, November 3, 2017: The Times of India
Welfare Schemes Being Stalled, Says AAP Govt
The Supreme Court on Thursday said the Constitution prima facie gave the Delhi lieutenant governor primacy in administrative matters of the capital, but added that the court could attempt a constructive and harmonious interpretation of the provision to allow the elected government to take decisions in its domain.
The Kejriwal government has complained to the SC that the Centre, through the LG who acted as a “super governor“, had paralysed the elected AAP government by stalling its every welfare scheme.
Article 239AA identifies land, law and order and police as the Centre's domain to be administered through the LG, while leaving other matters to the city government. Since the formation of the AAP government in 2015, it has been locked in a fierce turf war with the LG over whose writ should run in the city. The Kejriwal government approached the SC after a Delhi high court order upheld the supremacy of the Centre, in turn the LG, in governance of Delhi.
Article 239AA was inserted in the Constitution to give Delhi an assembly and an elected government with a council of ministers headed by a chief minister but without the power to legislate or control land, law and order and police. The Kejriwal government has approached the SC to demarcate the powers between the Centre and the Delhi government for smooth exercise of executive functions by the elected government.
Appearing for the Delhi government, senior advocate Gopal Subramaniam told a bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan that the Centre had chosen to go by the letter of the constitutional amendment and completely ignored the intent behind the provision to give Delhiites a voice in governance to usher in accountability and transparency .
“The LG has been exercising powers in such a manner to completely block Delhi gov ernment and negate the intent and object of Article 239AA which gave a democratically elected government to Delhi,“ Subramaniam said.
When the bench said a proviso in Article 239AA prima facie appeared to suggest that the LG had primacy in governance of Delhi, Subramaniam said, “Is it the intent of the constitutional provision to make civil servants openly defy the elected government? Is it the mandate of the constitutional provision that the LG must stall every scheme of the Delhi government -extending the functioning of mohalla clinics for one year, regularising posts of teachers in municipal schools, and filling up of nearly one lakh sanctioned posts at various levels through a transparent process? Now, the ministers as departmental heads have to fall at the feet of the bureaucrats to implement public welfare schemes.
“Bureaucrats pay no heed to orders from ministers and openly say that they will await nod from the LG's office. Is this what is contemplated in Article 239AA, which makes the chief minis ter accountable to the people?
The LG keeps sitting on files which are required to be cleared to allow day to day functioning of the Delhi government. The Delhi government cannot appoint lawyers of its own choice. If everything is going to be stultified by the LG, why have an elected government at all in Delhi?“ The bench understood the letter of the constitutional provision creating functional problem for the AAP government and said a constructive and harmonious interpretation of Article 239AA could be attempted by the apex court.
“The LG cannot stultify the Delhi government by sitting over files. If he has disagreement with the Delhi government on any issue, he could refer it to the President.We can read into the provision that whenever the LG disagrees with the Delhi government on any decision, he must give in writing the reasons for disagreement and send the matter to the President within a certain time frame,“ the SC said.
Subramaniam said while interpreting Article 239AA for separation of powers between the Centre and the Delhi government, the SC must keep in mind the practical difficulties posed on a day-to-day basis by the Centre purely going by the letter of the constitutional provision.
... but cannot stall day-to-day decision-making: SC
Dhananjay Mahapatra & Amit Anand Choudhary, LG cannot stall day-to-day decision-making of govt: SC, November 8, 2017: The Times of India
But Says It Can't Sort Out Friction Points
Delhi's lieutenant governor could have differences with Delhi government over policy but cannot stall dayto-day decision-making, the Supreme Court said on Tuesday in response to the Kejriwal government's constant complaints about the LG's alleged interference in administration.
A five-judge Constitution bench of the Supreme Court said the LG could not supplant the government of the National Capital Territory of Delhi (GNCTD) even as it said it cannot carve out areas where the Centre's appointee can have a difference of opinion. The AAP-led Delhi government and Centre have been locked in a bitter dispute over administrative and financial powers of the Delhi government.
Though the bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan maintained its prima facie view that LG appears to have been constitutionally vested with overriding powers, it agreed with senior advocate Gopal Subramanian that Parliament's intent to give special status to GNCTD could not be defeated.
“The LG cannot supplant the administration. What is to be done by all the ministers and the chief minister cannot be done by one person,“ said the bench after Subramanian pointed out that the LG has instructed bureaucrats to obtain his consent on every file before implementing decisions of the Delhi government.
However, the bench also expressed difficulty in giving a meaning to the LG's powers under articles 239 and 239AA as well as various provisions of the GNCTD Act, 1991.
“The LG cannot stall all decisions of the Delhi government citing difference of opinion. It cannot be on day-to-day issues relating to the functioning of the government. But we cannot carve out areas and rule that only on these areas the LG can have a difference of opinion. We can only say what are the duties of the LG in certain kinds of issues over which difference of opinion can arise. But we cannot specify the types of differences. What we can do is a harmonious interpretation by which Parliament's decision to grant special status to GNCTD is not defeated, especially with matters relating to hiring of Class IV employees,“ it said.
Subramanian said once Parliament recognised legislative competence of the Delhi Assembly, the inevitable corollary was that the executive government should also have some meaningful existence and not get eclipsed by the Centre in administration of the national capital. To a question whether the AAP government accepted the overriding power of LG in administration of Delhi, Subramanian said, “The power given to LG by Parliament through Article 239AA and GNCTD Act was to make him discharge a check and balance role. It cannot be a blank cheque in all matters for all times.“
“Surely , there cannot be a concept of a parallel government in the office of LG. The LG is issuing orders to obtain consent on every file and not implement any decision of the elected government prior to that.Why are we (AAP government) here then? The mandate of the Constitution is to work in harmony . The LG is transferring officers without consulting the elected government, “ he said.
Reading the provisions of the GNCTD Act, the bench said: “There are certain matters in which you can implement your decision after informing the LG about it. But, there are certain other matters, where you have been mandated to await the LG's nod.“
LG has more power than a governor: SC
LG has more power than a governor: SC, November 17, 2017: The Times of India
Says Constitution Has Given Him Wider Role
After days of arguments by renowned lawyers to get Delhi government the executive power due to it constitutionally, the Supreme Court on Thursday said it appeared that the Constitution gave the lieutenant governor much wider powers compared to the governor of a state.
A Constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Kahnwilkar, D Y Chandrachud and Ashok Bhushan did a comparison of Article 163, that specifies powers of a governor, with Article 239AA (4) dealing with the LG’s powers and said, “A state governor has no discretion to act on his own. He is bound by the aid and advice of the council of ministers headed by the chief minister. But the Constitution appears to give the LG a much wider role in governance of Delhi.”
Seasoned advocates Gopal Subramaniam, P Chidambaram, Rajeev Dhavan and Indira Jaising spent days arguing before the Constitution bench to drive home the point that the Delhi assembly and the council of ministers headed by the chief minister were a creation of the Constitution and were given specific executive powers to fulfil the hopes and aspirations of people of Delhi and stay accountable to them through the legislature.
Dhavan, who was the last to argue for the Arvind Kejriwal government, attempted to convince the bench by contending that the LG had been mandated by Parliament to supplement and not undo the work of the Delhi government. “The LG has been given powers to make Delhi government’s work meaningful and effective. Governance of Delhi has been insulated in many ways by the Constitution but the LG is attempting to look into the decisions taken by more than 100 departments under Delhi government,” he said.
“Look at the allocation of business rules. There is enormous amount of work in numerous departments. If the LG was to deal with all the issues of each department, then Delhi will need more than 20 LGs. No single LG can look after such a huge expanse of governance work,” he said.
Rajeev Dhavan, arguing for the Arvind Kejriwal government, attempted to convince the bench by contending that the LG had been mandated by Parliament to supplement and not undo the work of the Delhi government
LG can’t decide if govt’s decisions correct or not: SC
December 1, 2017: The Times of India
The Supreme Court said that the lieutenant governor does not have the jurisdiction to pronounce if the Delhi government’s decisions are correct or not as he can only, in the situation of disagreement, refer the matter to the President for decision.
“Lieutenant governor does not have the jurisdiction to decide on the correctness or otherwise of the decisions of Delhi government,” said Chief Justice Dipak Misra presiding over the five judge constitution bench.
Lieutenant governor can call the CM and apprise him of his opinion and persuade him on the course which is he thinks is correct or vice-a-versa or refer it to the President in the event of difference of opinion but can't take upon himself the adjudicatory role, said the court.
The bench also comprising Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan said this while making it clear that it would decide the larger issues on “law and principle” leaving the individual issues for the high court to decide — a position the top court took while deciding whether right to privacy was a fundamental right.
“We will only lay down the law and the principles ... We will decide what kind of State it is and for individual cases, it will go back to two judge bench of high court,” observed the bench.
The court noted that once constitutional perceptions are decided, the most of the problems will be solved “their (Delhi government) way or your (Centre) way” as Additional Solicitor General Maninder Singh, appearing for the Central government, sought to clear the impression that the LG was functioning in total disregard of the elected government or was sitting on the files thereby paralysing the functioning of Arvind Kejriwal government.
The ASG told the court that in every meeting called by the LG, the CM or the minister concerned are called and they attend them. Of the 6,300 proposals that were forwarded to the LG in last three years, 96% of them were cleared and that too within two to three days of their submission, he added.
He said that LG stood his ground only in three areas — police, public order and land — which are in the exclusive domain of the Centre.
2015: MHA notification distributing powers between LG, CM
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
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."
Abhinav Garg, Why 2015 notification is key to officer row, July 9, 2018: The Times of India
No Clarity From SC On Who Controls Bureaucracy
In absence of a categorical finding by the Supreme Court on who controls Delhi’s bureaucracy, the ministry of home affairs’ notification of 2015 continues to remain valid.
However, for the elected government, what compounds the problem is lack of a State Public Service Commission.
A close reading of the Supreme Court constitution bench verdict shows that it is clear in its finding that anything apart from land, public order and police will fall under the purview of the elected government from the state list.
“Services” as a category falls in Entry 41 of the state list, which as per the SC ruling should come under Delhi government. However, in absence of a State Public Service Commission, the capital’s administration continues to remain dependent for its elite positions on officers appointed by the All India Service officers who were inducted through the Union Public Service Commission (UPSC).
But at the heart of the debate lies Rule 46 of the Transaction of Business Rules (TBR), which is the operating manual for running the bureaucracy in Delhi. The Rule, framed in 1993, makes it clear that for people who are in the service connected to the administration of Delhi, LG has powers and functions to regulate their conditions of service.
It further specifies that with respect to people serving in connection with the administration of the capital, the LG shall exercise powers and consult the CM if it is so provided under any order issued by the President under article 239 of the Constitution.
Rule 46 also makes it clear that all correspondence with UPSC and Centre on recruitment and conditions of service of persons serving in connection with the administration of Delhi “shall be conducted by the chief secretary or secretary of the department concerned under the direction of the lieutenant governor.”
Speaking to TOI, former additional solicitor general Sanjay Jain, who incidentally led the Centre’s argument before the Delhi high court in the same matter, elaborated on the current legal position.
Jain maintained that till the MHA notification is not quashed by a regular SC bench, it continues to be legally in force but elected government can certainly create a state service for Delhi later.
“Supreme Court in its judgment has stated the earlier position. It has upheld that Delhi continues to be a Union Territory, LG is not a governor but a nominee of the President and his administrator for the capital,” the senior advocate explained.
Counselling Arvind Kejriwal-led government to await a ruling from the regular bench of SC on the validity of the MHA notifications, Jain opined the SC’s five judge bench ruling definitely hands over Entry 41 matters to the elected government but only when it has a supporting cadre of state service officers.
Jung is right: Centre
The Times of India, May 09 2015
`Jung is right, can use discretion on reserved subjects'
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
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 is the administrator: Experts
The Times of India, May 16 2015
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.
Resignation by Mr. Najeeb Jung: December 2016
The Times of India, Dec 22, 2016
Najeeb Jung submitted his resignation to the government of India on Thursday
The reason behind this sudden decision was not immediately known
According to reports, Najeeb Jung may return to academics
LG Najeeb Jung sacks Delhi power secretaryLG Najeeb Jung sacks Delhi pow...
In a surprise move, Delhi lieutenant governor Najeeb Jung has submitted his resignation to the Centre, ending a nearly three-and-half- year-long eventful tenure.
Without citing reasons, Jung's office said he has submitted his resignation to the Centre. 65-year-old Jung, a former IAS officer, had assumed charge of Lt Governor of Delhi on July 9, 2013. According to a press release by the Raj Niwas, Jung thanked Prime Minister Narendra Modi for all the help and cooperation he received during his tenure.
He also thanked the people for all their love and affection, especially during the one-year President's rule in Delhi, when he got unstinted support from them and which in turn helped the administration in Delhi run smoothly and effortlessly. Najeeb Jung has been engaged in a bitter tussle+ with the Delhi's Arvind Kejriwal government.
The AAP government has also accused Jung of working against the interests+ of the Delhi government at the behest of the Centre. AAP government has accused Najeeb Jung of stalling ambitious projects, including setting up of mohalla clinics across the city.
On August 4 in 2016, the Delhi High Court had stamped the primacy of the Lt Governor in the city administration. Kejriwal had challenged the High Court order in the Supreme Court.
On December 14, the apex court had observed that the Delhi government should have some powers for it to function properly. It had also listed for final disposal, the appeal of the AAP government against the August 4 Delhi high court verdict.
"Jung would be returning back to his first love, which is, academics," said his office. Reacting to Jung's resignation, Kejriwal said the decision surprised him. "Sh Jung's resignation is a surprise to me. My best wishes in all his future endeavours," he tweeted.
Legal opinion: Rajiv Dhavan and Indira Jaising
The Times of India, May 20 2015
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
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.
MLAs' salaries: Centre vs. state
Bharti Jain, Centre Not Satisfied With Govt Response On MLA Pay Increase Proposal, Feb 18, 2017: The Times of India
Justify 400% salary hike: Centre
The Union home ministry was not satisfied with the “incomplete“ clarifications received from Delhi government in November 2016 on the proposal to hike MLAs' salaries, prompting it to request complete information on December 15, 2016.
“A response to the fresh query, which seeks to know how the cost of living in Delhi has been worked out commensurate with the proposed pay hike, is still awaited,“ said a senior officer of the central government.
The clarifications were sought by the Centre via Delhi LG's office on May 25, 2016 after he sent the `legislative proposal' on May 3 in respect of five Bills -seeking to hike pay cheques of Delhi MLAs, ministers, speaker and deputy speaker, leader of the Opposition and chief whip in the Delhi legislative assembly . Three key queries were raised -rationale for the steep hike, considering that no other state has given its MLAs 400% pay hike in one go; how the fat pay-cheque on grounds of `high cost of living' in Delhi is offset by limited geographical area of an assembly constituency as com pared to other states; and how the unprecedented hike is justified when the MLA salary base in Delhi is neither low nor has it been long since it was last revised. Further, the department of expenditure sought the financial implications involved in the proposal from LG's office on June 16, 2016.
The five bills have been doing rounds of the home ministry , Delhi government and LG's office for over a year now.These bills were referred by LG in December 2015 for consideration of the President without actually `reserving' them, citing procedural defect by way of non-reference of legislative proposals to the Centre. On January 11, 2016, MHA asked LG to decide whether to reserve the bills, withhold assent or invoke provisions Section 9(2) of the GNCTD Act, 1991.
LG responded on January 27, 2016, saying that the bills were not `reserved' for consideration of the President and seeking instructions from the government. Based on opinion tendered by solicitor general, LG was asked on March 28 to take a decision. LG requested on March 29 to return the bills, followed by their return on March 31.
Shunglu Panel: Orders Restricted LG's Role, Violated Rules
Seeds of LG-govt row sown early, April 7, 2017: The Times of India
Shunglu Panel Found Series Of Orders Effectively Restricted LG's Role, Violating Rules
New Delhi: Kept under wraps but with its content regularly hinted at during the power tussle between the lieutenant governor of Delhi and the state government, the report of the three-member committee that pored through the decisions taken by the AAP government and found several of them suspect is finally in public domain. Procured by Delhi Congress through an RTI and released on Thursday , the report has roiled the political waters ahead of the April 23 municipal corporation polls. The committee was constituted by Najeeb Jung, then the LG, soon after Delhi high court determined on August 4, 2016 that the Union government and the lieutenant governor had primacy in the governance of Delhi. In this context, Jung wanted the decisions taken by the AAP government scrutinised and, accordingly set up the panel comprising three former officials: comptroller and auditor general VK Shunglu, chief election commissioner N Gopalaswami and central vigilance commissioner Pradeep Kumar.
The seed of the power struggle that eventually over took all functional niceties between the two offices was sown on February 25, 2015, a fortnight after the Aam Aadmi Party assumed power for the second time. That day , chief minister Arvind Kejriwal issued directions that all files relating to “reserved subjects, i.e. public order, police and land will be submitted to Lt Governor by the relevant department through the chief minister“.
The LG wrote to the CM on April 15 to say this was a misinterpretation of the rules.But disregarding this, on April 29, Kejriwal again told all departments that files pertaining to subjects transferred to the Delhi Assembly should be “decided at the appropriate level up to the office of the chief minister without bothering the office of the Lt Governor“.
Subsequent to this, the various departments of the government, in following the CM's instructions, fell foul of the Transaction of Business Rules (TBR) that required the LG to be the approving authority in many matters.
It was Kejriwal's directives of May 17 that actually heightened the clash. The CM informed all secretaries, heads of departments and state ministers, that the LG was bar red from issuing any direction to government officials “bypassing the council of ministersministers“. He instructed officials to submit any direct order by the LG to the minister concerned or the CM and “action will be taken only on the written direction of the CMminister“. A copy of the letter presenting the CM's interpretation of TBR was marked to Jung.
A day later, five ministers issued “identical standing orders“. The scrutinising panel observed that these acts were in contravention of the norms pointed out by the LG in his letter to the CM and that the ministers had “exceeded their powers“.
When the Shunglu Committee members pored through 404 files, they noted the CM and his ministers didn't consult the law department while issuing ordersdirections.The government didn't confer with the law department when approaching Delhi high court and Supreme Court on Delhi's power structure.
The approach to the court itself was the result of the Union home ministry precluding any role for the Delhi government in the administration of the controversial AntiCorruption Branch that the AAP regime had created. The Union ministry's notification of May 21 baldly stated that the “subject of service lay with the Union government LG“. A week later, the state government filed a writ petition challenging this notification.The Shunglu panel characterised this suit as the Delhi government's “attempt to rationalise“ its orders.
Gopal Mohan as advisor (anti-corruption)
Sleight of hand in how Rs 1 salary crossed a lakh, April 7, 2017, The Times of India
The Justice VK Shunglu Committee has come down heavily on appointments made by Delhi government, many of them without the necessary permission of the lieutenant governor. The most glaring incident, which the report describes as “fascinating“, related to the appointment of Gopal Mohan, originally as advisor (anti-corruption) at a remuneration of one rupee and later as advisor (grievances) on a monthly salary of Rs 1.15 lakh.
There are several appointments that were thought to be suspect by the panel. Mohan's case, howe ver, is described as going through a “series of deft moves apparently designed to provide him benefits“. Mohan's reassignment after starting with an honorarium of one rupee duly approved by the lieutenant governor to advisor (grievances) on a healthy salary with retrospective effect has been called a “sleight of hand“.
The report also criticised the unsanctioned appointment of Rahul Bhasin as advisor in the office of the chief minister as a coterminus post.
“There was no sanctioned post of advisor on coterminus basis in the office of the chief minister and co-terminus appointments need LG's approval, which was not taken,“ the report said. Bhasin, who is described as having cleared Class XII but not completing the advance diploma course in travel and tourism, was appointed advisor to the chief minister on tourism.
“Curiously in the order of appointment, the GAD makes specific mention that the chief minister desires that the person should be paid a salary of Rs 1,50,00,“ the report pointed out.
Another example cited is of Abhinav Rai. Appointed to the post of OSD at a salary of Rs 87,000, the appointment, the report claimed, was shown as recruitment against the vacancy for an upper division clerk. The report said the remuneration paid to Rai on contract and co-terminus appointment, was four times that of a UDC.And in violation of rule, the LG's approval was not acquired. Also, despite being a contract employee, Rai was given government accommodation, that too one meant for a higher-ranked official.
Similarly , Roshan Shankar's appointment as advisor to the minister of tourism has been indicted as illegal. “The due process of issuing an advertisement and making a proper selection, etc. are all given the go-by ,“ the report said.DTTDC made no effort to check Shankar's qualifications and experience or verified his antecedents while appointing him at a salary of Rs 60,000.
P Parija, an advocate, too did not have the requisite experience to be appointed the member (administration) of the Municipal Taxation Tribunal for a full term, according to the committee. The norm was to appoint a secretary-level official to the post, but Parija's name was cleared by the deputy chief minister without following due process, the report noted.
Soumya Jain’s case
`NEPOTISM' - Appointment of Jain's daughter, CM kin irregular, April 7, 2017: The Times of India
Of all the findings of the Shunglu committee, the charges of nepotism against Delhi government ministers are the most damning.
The report indicts the government for flouting rules in the appointment of Soumya Jain, daughter of health minister Satyendar Jain, as advisor to mission director, Delhi State Mission. TOI had reported in July 2016 about the controversial appointment, following which she had quit.
The committee has observed that the architect Jain's CV didn't support her claim for expertise on mohalla clinics. Also, the Memorandum of Association of State Health Society (Delhi), and the rules and bylaws do not support such an appointment.The committee also didn't find proof as to who approved her appointment.
The appointment order was issued and an expenditure of Rs 1.15 lakh incurred between the date of her joining and the date she resigned from the post, the panel said.“This expenditure seems to have been refunded by a cheque for like amount dated July 1, 2016. There is no document on file to explain the re fund of this amount 14 days prior to resignation,“ the report stated, adding that these events could only be explained by the fact that Soumya Jain is the daughter of Satyendar Jain.
The committee has also questioned the appointment of Nikunj Agarwal, who is related to CM Arvind Kejriwal, as OSD to the health minister.
“Dr Agarwal is appointed as senior resident on an ad hoc basis on his mere application by the resident medical officer of CNBC hospital, when there was no vacancy in that hospital and the established procedure is to invite applications through advertisements and effect selections after interviews by a panel of expert,“ the report said.
Agarwal was sent to IIM Ahmedabad for a management training programme to improve his CV . He also visited China with a team of doctors to study remodelling of hospitals and construction of new ones. “Co-terminus appointment can be made only with the approval of the LG but the matter is not placed before the LG. The case does not seem fit for ex-post facto approval,“ the report said.
`Vigilance files can go to LG directly'
Abhinav Garg, `All vigilance files can go to LG directly', August 17, 2017: The Times of India
Legal Input To Baijal States Deputy CM's Nod Not Needed
None of the files relating to the Delhi government's vigilance department has to be routed through the deputy chief minister before being sent to the lieutenant governor. LG Anil Baijal has received this legal input from a senior law officer of the Centre, in a development that may lead to scrapping of directions issued by Manish Sisodia in June.
The deputy CM, in a note, had instructed that all files “pertaining“ to the vigilance department must be first placed before him before being sent to the city's administrator.
The administrative diktat triggered a query from the LG who asked additional solicitor general (ASG) Sanjay Jain if the directions are “in consonance with the constitutional scheme of Delhi govrnment, more particularly with respect to the matters relating to reserved subjects under Article 239AA(3)(a) of the Constitution, Section 41(1) (i) of the GNCTD Act 1991read with the MHA notification of May 21, 2015?“ In response, the ASG said vigilance falls under the subject of “services“ over which the LG has complete control in Delhi and hence “directions issued by the deputy CM are without the force of law and in contravention of the Constitution; the judgment of the Delhi HC and the rules.“
Referring elaborately to the August 2016 HC verdict on division of administrative powers within the capital, ASG Jain pointed out that “what emerges is that the council of ministers do not exercise any executive control over matters incidental to or connected to “services“ which of course would inclu de “vigilance“ which is an integral part of smooth functioning of the services connected with Delhi government.“
Explaining his reasoning, the ASG underlined that a vigilance department is a check and balance mechanism meant to prevent and punish public servants who try to misuse their office or are guilty of misconduct and corrupt practices.
“The vigilance department keeps control over officerspersonnel serving in the administration of Delhi“ the ASG argues, adding that “it performs a preventive and punitive role and is a bulwark of a strong bureaucracy as it keeps the same insulated from corruption and unethical practices“ To back its deci sion the AAP go vernment had clai med it is well within rights to oversee vi gilance department since it figures in the allocation of business rules of GNCTD Act 1993, allowing council of ministers executive control over the department.
But the law officer cited example of Anti-Corruption Branch which too is mentioned in the same rules but doesn't come under executive control of the council, as endorsed by HC. “Just because a subject or business is mentioned in the rules, it does not mean ipso facto that council of ministers shall exercise executive control over the same,“ he concluded.
The legal opinion may also affect another order issued by Sisodia in May when he asked the law department to put up all files and instructions received from LG or his office.
In his order, Sisodia had made it clear that no instructions, verbal or written, will be issued by officers of the department without his approval. “No legal advice shall be given by the law department without the approval of the law minister.“
2021: Government means LG
April 6, 2021: The Times of India
What is the Delhi Bill?
The Centre has introduced The Government of National Capital Territory of Delhi (Amendment) Bill 2021 in the Lok Sabha. This bill seeks to give more powers to the Lieutenant-Governor by specifying that any decision of the state cabinet or government would need the LG’s “opinion” before implementation.
The proposed amendment says, "Provided that before taking any executive action in pursuance of the decision of the council of ministers or a minister, to exercise powers of government, state government, appropriate government, lieutenant-governor, administrator or chief commissioner, as the case may be, under any law in force in the capital, the opinion of the lieutenant-governor in term of proviso to clause (4) of Article 239AA of the Constitution shall be obtained on all such matters as may be specified, by a general or special order, by the lieutenant governor." (Article 239AA spells out the special status granted to Delhi as the National Capital.)
In another proposal, the Centre has said that the LG shall not give assent to a bill passed by the assembly on any matter which falls outside the purview of the powers conferred on the legislative assembly and he can reserve it for the consideration of the President.
WHAT THE BILL PROPOSES
- Govt must obtain ‘opinion’ of LG before implementing any decision, including ones taken by council of ministers -‘Government’, referred to in any law to be made by assembly, shall mean LG
- LG can specify all matters on which his ‘opinion’ is to be sought
- Assembly or any of its committee can’t conduct inquiries on administrative decisions and all rules made in contravention shall be void
The amendment bill also seeks to ensure that the business in the assembly is run in accordance with Rules of Procedure and Conduct of Business in House of People (Lok Sabha). This provision will put an end to any scope for criticising any leader or person who is not present or isn’t a member of the house.
Another major provision is that the assembly shall not make any rule to enable itself or its committees to consider the matters of day-to-day administration or to conduct inquiries in relation to any administrative decision. This will provide a shield to officers who often face the fear of being summoned to the assembly or its committees for administrative decisions, a source said. Interestingly, the proposed amendment also specifies that any rule made in contravention of this provision before commencement of the amended Act of 2021 shall be void.
Is this in accordance with the Constitution?
The Aam Aadmi Party (AAP) government of Delhi has condemned the bill, calling it “unconstitutional and undemocratic”.
The chief minister, Arvind Kejriwal, has tweeted that: "The Bill says - 1. For Delhi, 'Government' will mean LG, then what will the elected government do? 2. All files will go to LG. This is against 04.07.2018 Constitution Bench judgment which said that files will not be sent to LG, elected government will take all decisions and send copy of decision to LG."
The deputy chief minister, Manish Sisodia, also condemned the bill. "The BJP-led central government has taken an unconstitutional and undemocratic decision to curtail the powers of Delhi’s elected government. This bill will render elections and decisions of an elected government for its people meaningless. It would just be LG of Delhi, backed by Union government, taking decisions for the people which is highly undemocratic and against all ideals of the Constitution," he said. Who is opposing this and why?
The AAP government, of course, is up in arms against the bill. The party believes that the passage of the Bill will take the capital back to the days when the Centre versus Delhi government confrontation marred governance in Delhi.
AAP believes that the Bill is designed to curtail the power of the elected government and vest more power in the LG, who represents the central government. The Delhi government has called the bill “anti-constitutional, antidemocratic and dangerous”.
It’s not just AAP. The Delhi unit of Congress has opposed the introduction of the bill, saying this would usurp power from the people of Delhi.
Former MLA Anil Bhardwaj of the Congress, said that the Bill would not only considerably dilute the powers of an elected Delhi government, which already does not have authority over land and police, but would also directly assault the powers of the citizens of Delhi to choose a government through the democratic process of elections.
Bharadwaj alleged that if the Bill was enacted, BJP would resort to backseat driving through the LG, regardless of the party that formed the government.
Does the LG in Delhi have the same power as state governors?
The Supreme Court stated in 2017 that the Delhi LG had greater power than a state governor. State governors are bound by the aid and advice of the elected council of ministers; the LG’s discretionary powers are more than those of a state governor. Also, in Delhi’s case, land, police, and public order fall under the domain of the central government, which the LG represents. That automatically gives the LG a greater say in the functioning of the territory.
If the LG is already powerful, why has the Centre introduced this bill?
The state government under the elected Aam Aadmi Party (AAP) has not had a good relationship with successive LGs. The party has been fighting for full statehood for Delhi, something that the centre is against. The result has been a batch of petitions filed in the courts. In February 2019, a two-judge bench of the Supreme Court ruled in favour of the centre (and LG) in four of the six points that came up before it.
The centre claims that this bill is its attempt to clarify “ambiguities” following two judgments by the Supreme Court. The bill, say sources, is aimed at ending the lack of clarity on what proposals or matters are required to be submitted to the LG before issuing orders. However, it looks like it has restarted the power tussle that many thought was laid to rest with the 2019 ruling.
DANICS: Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services
Is the AAP government the first to have such a problem with the LG and Centre?
The AAP and the BJP started out with ideological differences, and those seem to have hardened over the years. Neither party seems to want to even attempt a compromise, and both are determined to not let the other gain the upper hand. Governance has taken a beating, and salaries and pensions have not been paid.
Due to the power tussle, work had been delayed. These included the installation of CCTV cameras, opening of mohalla clinics, doorstep delivery of services, appointments of public prosecutors, doorstep delivery of ration and recruitment of teachers.
Successive governments in Delhi — before 2015 — have had cordial or at least good working relationships with the centre, even if both were from opposing parties. A case in point is Delhi’s former CM, Sheila Dikshit, who headed a Congress government in Delhi and had amicable relations with the BJP government at the centre.
What happens now?
The AAP plans to fight the bill; Sisodia said the party would explore all options. The party is quite used to taking this issue to court, so it’s possible that this will join an existing list of pleas by AAP against the LG and the centre.
HC, 2016: Powers of LG, CM, Centre
The Times of India, Aug 05 2016
In a landmark verdict, the Delhi high court ruled that the city is a Union territory despite the presence of an elected government, and primacy in administering its affairs rests with the lieutenant governor and by extension, the Centre.
The judgment deals a bo dy blow to the Arvind Kejriwal government since it gives the LG final word as the administrator in charge of the city, relegating the role of the CM and his council of ministers to just “aiding and advising“ Najeeb Jung in governance.The AAP government said it would appeal against the ruling in Supreme Court.
The verdict makes most of Kejriwal's big-ticket announ cements illegal, ranging from commissions of inquiry into CNG and DDCA `scams', circle rate revision, nominating directors to discoms and appointment of bureaucrats.
A bench of Chief Justice G Rohini and Justice Jayant Nath outlined the constitutional arrangement of administering Delhi by interpreting Articles 239 and 239AA, the NCT Act of 1991and trans action of business rules for Delhi. It held that “concurrence of LG in administrative issues is mandatory“.
It said the Constitution provided for demarcation of powers between the Centre and the states and according to Part VIII of the statute book, which deals with the powers for administration of Union territories, UTs will be governed by the President acting through an administrator.
The high court agreed with the Centre's stand, argued by ASG Sanjay Jain, that no order can be issued by the CM or his ministers without the LG's approval and every decision must be routed through him, even if these relate to areas where the assembly has exclusive jurisdiction to frame laws. On the other hand, the LG is not bound by the “aid and advice“ of the Delhi cabinet on any matter and can either agree, cancel a proposal or even send it to the President for clarity in case of disagreement. Till the President decides, LG's decision must prevail, HC specified, based on its overall reading of the legal provisions.
Dealing with the central argument of AAP government that due to Article 239AA Delhi is more than just a Union territory, HC said this Article does not “dilute“ the effect of Article 239 which relates to governance of a UT and Article 239 of the Constitution continues to be applicable to Delhi.
“On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and transaction of business of the government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union territory even after the 69th Amendment Act 1991 inserting Article 239AA making special provisions with respect to Delhi,“ HC said in its 194-page verdict.
Once it enunciated the basic principle of LG's primacy , the bench went about dismantling several decisions of the AAP government that were found to have been taken without Jung's approval and were challenged before it through nine petitions. The court held that the government's order to set up a commission of inquiry to go into alleged irregularities in the functioning of Delhi and District Cricket Association under former president Arun Jaitley was illegal as it lacked the LG's nod. On similar grounds, it struck down a notification to set up CNG fitness scam under retired Justice S N Aggarwal.
As a corollary , it upheld the validity of two MHA notifications issued in 2014 and 2015, giving the LG full powers to transferappoint bureaucrats and restricting the turf of AntiCorruption Branch to just city agencies. It held that service matters fall outside the purview of the assembly , and that the Centre's May 21, 2015 notification barring ACB from proceeding against central government employees was “neither illegal nor unconstitutional“.
It also termed as “illegal and unconstitutional“ the city government's decision empowering the Delhi Electricity Regulatory Commission to impose fine on discoms in the event of disruption of power supply , on the ground that the LG was not on board. Another decision to revise stamp duty rates for sale and transfer of agriculture land was also struck down.
Though the court rejected almost all the contentions of Delhi government, it, however, agreed with its submission that the LG will have to act on its aid and advice in the appointment of special public prosecutors.
Delhi remains UT; administered by LG, Centre
The Shillong Times, August 5, 2016
Delhi remains union territory, LG its administrative head: High Court
Delhi continues to remain a union territory under the Constitution with the Lieutenant Governor (LG) as its administrative head, Delhi High Court today ruled, dealing a body blow to the Arvind Kejriwal government, which has been on warpath with the Centre over powers.
The special constitutional provision Article 239AA dealing with Delhi does not “dilute” the effect of Article 239 which relates to the union territory and hence, concurrence of the LG in administrative issues is “mandatory”, the bench headed by Chief Justice G Rohini said. The bench, also comprising Justice Jayant Nath, did not accept AAP government’s contention that the LG is bound to act only on the aid and advice of Chief Minister and his Council of Ministers with regard to making laws by the Legislative Assembly under the Article 239AA and termed it as “without substance”.
“On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi,” the bench said in its 194-page verdict.
Giving primacy to the concurrence of LG in transaction of Legislative business, the bench said, “It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the LG even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the LG does not take a different view”. The court held that the AAP government’s order for constituting a Commission of Inquiry to go into the alleged irregularities in the functioning of Delhi and District Cricket Association (DDCA) and CNG fitness scam was “illegal” as the orders were issued “without seeking the views/ concurrence” of the LG. The court, which rejected almost all the contentions of Delhi government, however, agreed with its submission that the LG will have to act on its aid and advice in appointment of special public prosecutors.
The persistent claim of Delhi government that Centre has been creating roadblocks in functioning of its Anti-Corruption Branch (ACB) by coming out with a notification which excludes Central Government employees did not find favour with the court. It held that service matters fall outside the purview of Legislative Assembly and Centre’s May 21, 2015 notification barring the ACB from proceeding against Central Government employees was “neither illegal nor unconstitutional”. “The direction in the impugned Notification as reiterated in the Notification dated May 21, 2015 that ACB Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference,” the bench said.
The verdict came on a batch of petitions, including those filed by the BJP-led Centre and Delhi government, on the issues relating to exercise of legislative powers and executive control in the administration of National Capital Territory of Delhi. The court did not approve of the AAP government’s decision to appoint its nominees as directors on the boards of private discoms on the ground that there was “huge” corruption in their functioning
LG’spowers wider than those of governor
The Times of India, Aug 5, 2016
Delhi LG not boundby cabinet advice: HC
The powers of the lieutenant governor of Delhi are much wider than those wielded by a state governor, the Delhi high court clarified. It explained that while a governor can act independently of the chief minister and his council only in areas specified by the Constitution, the LG has greater mobility to use discretion in all aspects of governance and is not bound by the cabinet's advice.
A bench of Chief Justice G Rohini and Justice Jayant Nath held that the "power of the LG to act in his discretion is not confined to the Constitution merely. The LG while exercising such powers and discharging such functions which any law requires to be done in his discretion acts on his own judgment without seeking the aid and advice of the council of ministers."
The court referred to the recent Supreme Court's Constitution bench ruling on the Arunachal Pradesh crisis to deal with discretionary powers of the governor and LG under the Constitution. "Discretion of the governor of a atate under Article 163(1) is confined only to the constitutional provisions, whereas under Article 239AA(4), the LG may act in his discretion with regard to all the matters in respect of which he is required to act in his discretion by or under any law," it explained.
In view of "this fundamental difference in the powers conferred upon a governor of a state and the LG of NCT of Delhi," the court said it isn't possible to conclude that LG is bound to act only on the aid and advice of the council of ministers.
Drawing a distinction, the court highlighted that the discretion conferred on the LG under the provision of the Constitution to refer the matter to the President in case of a difference of opinion between the chief minister and LG is not available to the governor. The HC's ruling on the issue came after the Delhi government in its petitions maintained that the LG can't have more powers than those enjoyed by a governor, more so since there is an elected assembly with the council of ministers headed by a chief minister.
Appointment of special public prosecutors: HC verdict
Govt rejects LG's scrapping of its lawyers' panel for SC, Nov 05 2016 : The Times of India
Cites HC Order Of Aug 4 On LG-Govt Powers To Govern Delhi
In another confrontation between the Centre and the AAP government, the Delhi cabinet on Friday rejected lieutenant governor Najeeb Jung's decision to scrap its panel of lawyers for Supreme Court. The cabinet chaired by the chief minister, Arvind Kejriwal, rejected the LG's decision to revoke the appointment of its panel of lawyers and cited a recent judgment of the Delhi high court on who has the power to govern the capital.
“The cabinet resolves that law is a transferred subject and as per the August 4, 2016 Delhi high court judgement, power to appoint lawyers lies with the elected government,“ the decision said.
Jung had a day earlier communicated to deputy CM Manish Sisodia his decision to cancel the appointment of 15 lawyers to the Supreme Court panel. The LG had said the appointments invalid since they lacked approval.
According to sources in the LG's office, the elected government wanted ex-post facto approval of the 15 names but the LG and the union ministry of home affairs said it was an illegal appointment and struck it down on the ground that the central agency section of the union law ministry hadn't cleared the names for the panel.
But the Kejriwal government has pinned its reasoning on the HC verdict while rejecting the LG's order. Sources in the government also pointed out the “incongruity“ in the LG's decision that may see the attorney general representing the Centre and one of the central government appoin tees, additional solicitor general, appearing for the AAP government.
In its order, the HC had concluded one issue in favour of the elected government, namely power to appoint special public prosecutors. Though the HC had ruled overwhelmingly in favour of the CentreLG in its August 4 verdict, giving the LG primacy in administering the capital, it backed the state cabinet so far as appointment of special public prosecutors was concerned.
HC had said that with respect to appointments of special public prosecutors under Section 24(8) of CrPC, the LG--as a delegate of the President of India--is bound by the aid and advice of the council of ministers.
The Centre has contested the HC reasoning on SPP appointments and claimed that as per Constitution, the primacy of LG is in every field. In fact, sources in the LG's office insisted that according to their interpretation, LG was the final authority in all transferred subjects.
The sources said if Delhi government went ahead with its panel of lawyers, they won't be paid. They said this was “wilful disobedience“ on part of Delhi government and will create a crisis.
Matters within HC's jurisdiction
The Times of India, Aug 05 2016
Despite being a petitioner in two of the nine cases before the HC, the AAP government wanted it to stop the proceedings and even questioned its jurisdiction. Its realisation that the SC was best suited to hear its plea came when pleadings, arguments and submissions were nearing completion. HC asserted its competence to decide the cases.
The HC bench also observed that contrary to the Delhi government's claim, none of the issues raised in the petitions was “federal in nature“ .
Every dispute arising between a state and the Centre while discharging their respective executive powers cannot be construed as a conflict attracting Article 131 of the Constitution which can be heard only by the SC, it added. It said the jurisdiction of SC with regard to civil suits is attracted only when a dispute arises between or amongst the states and the Centre in the context of the “constitutional relationship that exists between them and the legal rights flowing therefrom.“
In the cases before it, the HC said, the only question that requires consideration is if the orders passed by the Delhi government or Centre “are vitiated by any error in exercise of the jurisdiction conferred under Article 239AA(4) of the Constitution, read with the provisions of the GNCTD Act, 1991, Transaction of Business Rules, 1993 and the provisions of the respective enactments under which the impugned orders were passed.“
For instance, the question relating to competence of the Centre in directing the Delhi government's ACB police station not to take cognisance of offences against the officials and employees of the Union government “does not involve any dispute of a federal nature as sought to be contended by the petitioner applicant“.
Speaker cannot accept questions on reserved subjects
Alok KN Mishra, Query on foreign trips of officers ‘ignored’, March 27, 2018: The Times of India
Goel Slams LG Over Letter On Reserved Subjects
The government’s tussle with LG reverberated in the assembly on Monday after speaker Ram Niwas Goel announced that Anil Baijal has said that the speaker cannot accept any question on reserved subjects, such as land, law and order and services, among others.
The latest flashpoint was over the House not being provided answers on foreign trips undertaken by officers of the city government in the last 15 years.
Goel announced that “LG has in a letter advised that, legally, the speaker of Delhi assembly cannot admit any question on any reserved subject”. MLA Raguvinder Shokeen had wanted to know details of official foreign trips undertaken by officers of Delhi government, municipal corporations and autonomous bodies during the last 15 years and also what the outcome of these tours was. Last week, a question about the foreign trips of ministers and MLAs had gone unanswered.
Goel said the LG’s letter had communicated the advice received from the department of legal affairs of the central government through the home ministry.
As MLAs, including deputy CM Manish Sisodia, hit out at LG, Goel ruled that “the officers should realise that legislation on reserved subjects and seeking replies on matters of public interest, which directly affect the people of Delhi, are two different issues”. Goel added that “officers are duty-bound to provide replies to all questions that are admitted”.
The speaker said “any attempt from anyone, whatsoever post he may hold, to deny information to the assembly and its committees shall be viewed seriously”. He forwarded the question to the privilege committee of the assembly, adding that all questions, replies to which have not been received from the departments concerned, stood referred to the committee.
Sisodia said in the past, replies from Delhi Police and DDA were provided to the assembly and claimed that the LG’s letter was sent without informing the minister concerned and the matter should be probed. “Delhi assembly is not a subordinate body of a babu sitting in the central government,” Sisodia added.
“Replies to these questions can lift the veil on their (officials’) wrongdoings in the last 20 years,” Sisodia said. He alleged the “denial of the information” was an attempt to hide the “sins” of the past.
Leader of opposition Vijender Gupta backed AAP MLAs’ demand for answers to these questions.
Meanwhile, AAP MLA Saurabh Bharadwaj moved a resolution, urging the AAP government to present an outcome report on LG’s office because “the LG has not given approval to different projects of the government”.
2017: Elected governments should have powers
AmitAnand Choudhary, Fillip to AAP: SC says elected govts should have powers, December 15, 2016: The Times of India
Delhi is no doubt a Union territory , but the elected government must have powers to be able to function, the Supreme Court observed while hearing the contentions of the Centre and the FULL COVERAGE: P 2 AAP government.
The court posted the case for final hearing on January 18, when it will pronounce on the battle between the Centre and the Kejriwal government over the latter's powers. The city government had moved the SC against the high court order upholding the lieute nant governor's primacy in administering the capital.
Responding to arguments on Wednesday , the court said, “You may be right, but the elected government should have powers. Otherwise the government won't be able to function at all. There is no doubt that Delhi is a Union terri tory but there are special provisions for Delhi.“
A bench of Justices A K Sikri and Abhay Manohar Sapre said the NCT government had a valid point in raising the question whether powers can be taken away from an elected government, adding that the matter needed to be adjudicated at the earliest to end the controversy .
The Centre has been locked in a prolonged confrontation with the AAP government, with the latter challenging the need to send files and decisions to the lieutenant governor for his concurrence. After the high court verdict, LG Najeeb Jung set up a committee to review some 400 “illegal“ decisions that had been passed without his concurrence or vetting.
Senior advocate Gopal Subramaniam, appearing for the AAP government, told the bench that a situation had arisen where bureaucrats were not following ministers' orders and it had become difficult to manage affairs. He pleaded that the HC order be stayed and the government be allowed to take decisions and implement its policies. Solicitor general Ranjit Kumar told the bench there was an abnormal situation as the Delhi chief minister and the deputy chief minister were filing affidavits in their own name.The court, however, replied that they were forced to file affidavits as the officers were not following the directions of the NCT government to file affidavit on its behalf.
The bench also expressed concern over the legal battle between the Centre and Delhi government spilling over to court proceedings in other cases as lawyers from both sides “fight“ in court claiming to represent the state, disrupting the smooth hearing of cases.
Senior advocate Rajeev Dhavan said that the Centre was not allowing any counsel on the Delhi government's panel to file petition in courts and expressed apprehension that it may be made impossible for him to argue the case.He said that the Delhi government should be able to engage lawyers of its choice and asked the bench to restrain the Centre from removing lawyers from the panel.
The court said all lawyers appearing in the case would continue and made it clear that it would pass an order if advocates were removed from the panel. The first round of the legal tussle had gone in favour of the Centre and LG with the Delhi high court holding that the CM or his ministers cannot issue orders without the LG's approval and every decision must be routed through him. The court had ruled that the LG was not bound by the “aid and advice“ of the Delhi cabinet on any matter.
Challenging the order, the AAP government said the HC had no jurisdiction to decide the issue and the judgment was illegal and unconstitutional.
2018: LG Is Bound By Advice Of State Cabinet, can’t obstruct govt
Dhananjay Mahapatra & Amit Anand Choudhary, In win for Kejriwal, SC says LG can’t obstruct Delhi govt, July 5, 2018: The Times of India
‘Is Bound By Aid And Advice Of State Cabinet’
The Supreme Court on Wednesday upheld the Delhi government’s powers to legislate on matters under its jurisdiction, with a unanimous 5-0 verdict. However, it did not take away the lieutenant governor’s power to refer contentious calls to the President, provided he did not exercise the authority “mechanically”.
In its much anticipated ruling, the SC said the LG’s power to refer a decision of the Delhi government to the President should be used sparingly and not be the rule even as the court did not alter the constitutional scheme for the capital, which gives the Centre control over public order, police and land.
“The LG must work harmoniously with his ministers (that is the council of ministers headed by the chief minister) and must not seek to resist them every step of the way... Decisions of the council of ministers must be communicated to the LG but this does not mean that the concurrence of the LG is required,” the five-judge bench led by CJI Dipak Misra ruled.
Shorn of the emphasis on the supremacy of the elected government, the verdict does not change the distribution of powers between the city government and the LG, something CM Arvind Kejriwal has been campaigning to alter. The verdict not only recognised the exclusive jurisdiction of the Centre over the crucial troika of public order, police and land, it also upheld the LG’s authority to refer differences to the President, that is, the Union Cabinet or, precisely, the body he reports to.
The restraint that the LG should not exercise this power “mechanically” cannot translate into automatic concurrence because of divergent definitions of what qualifies as knee-jerk stalling.
The bar for the LG has been set high. However, read along with the court’s assertion that Delhi is a Union territory and not a full-scale state as also that the LG is not a titular head, the judgment can reduce but not eliminate deadlocks between the AAP government and the BJP-ruled Centre. Nonetheless, the verdict can be good propaganda fodder for AAP.
SC serves veiled warning to both LG and Delhi govt
Tells Them To Sort Out Differences Through Discussion
However, the SC had a veiled warning for both the LG and the CM. While asking them to sort out their differences through discussions, the CJI said, “The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel they have been lionised. They should feel they are serving the constitutional norms, values and concepts. The popular will of the people (of Delhi) which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.”
The bench of CJI Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan in a cumulative 535-page judgment, containing three concurrent views, said Parliament’s decision to create Delhi assembly and prescribe governance through elected representatives mandated that decisions of the council of ministers on subjects falling squarely within Delhi’s legislative domain could not be stalled mechanically by the LG citing difference of opinion.
Under Article 239AA(4), the LG is empowered to refer any decision of the council of ministers or Delhi assembly to the President in case he has a difference of opinion. During pendency of the matter before the President, the LG can take administrative decisions on the issue if he thinks it requires urgent action.
Writing the 237-page main judgment for himself and Justices Sikri and Khanwilkar, the CJI said, “The council of ministers headed by the chief minister is only required to communicate and inform its various proposals, agendas and decisions to the LG so as to keep him apprised and to enable him scrutinise them.” Justices Chandrachud and Bhushan concurred with the CJI’s views in separate judgments.
The LG’s concurrence was not required on matters falling squarely within the legislative competence of the Delhi assembly and the executive domain of Delhi government, CJI Misra said. Parliament, while enacting Article 239AA of the Constitution to craft a unique provision for Delhi, which is neither a state nor a Union territory, did not grant it legislative powers over state subjects like public order, police and land.
“It has to be clearly stated that requiring prior concurrence of the LG would absolutely negate the ideals of representative governance and democracy conceived for National Capital Territory of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of Parliament to treat Delhi government as a representative form of government,” the CJI said.
All five SC judges demurred at the thought of the Centre’s representative attempting to thwart decisions of an elected government accountable to the people of Delhi through the assembly. The CJI said, “The LG has not been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of the council of ministers or he is bound to implement the decision taken by the President on a reference being made by the LG (in case of difference of opinion with the council of ministers)”.
The SC warned the LG that he could not resort to his powers under Article 239AA
(4) and refer to the President each and every matter sent to him by the council of ministers citing difference of opinion.
“The power of the LG under the said proviso represents the exception and not the general rule; it has to be exercised in exceptional circumstances keeping in mind the standards of constitutional trust and morality, the principles of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government,” the CJI said.
Justice Chandrachud explained that the LG could refer a decision to the President only when dialogue between him and the council of ministers failed to resolve the difference of opinion. If every matter was referred to the President on the premise of difference of opinion, then it would lead to the President assuming administration of every aspect of the affairs of Delhi, negating the constitutional structure adopted for the national capital, he added.
Justice Bhushan said, “Legislative assembly of NCTD being representative of the views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President.”
But Delhi is not a ‘state’ currently
Dhananjay Mahapatra, ...But SC says clear as noon day Delhi can’t get state tag in current scenario, July 5, 2018: The Times of India
In a setback to the Arvind Kejriwal-led AAP government’s campaign for full statehood to Delhi, the Supreme Court on Wednesday ruled that in the present constitutional scheme of things, the national capital could not be accorded the status of a state.
“It is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a state under our present constitutional scheme,” said CJI Dipak Misra, who authored the main judgment on the turf war between the AAP government and the LG.
“The status of Delhi is sui generis, a class apart, and the status of LG of Delhi is not that of a governor of a state, rather he remains an administrator, in a limited sense, working with the designation of LG,” the CJI said. The status, in the light of the capital’s long administrative history, was in keeping with the view of various governments, going back to the colonial times.
Referring to Parliament’s decision to disable Delhi assembly from legislating on three important state list subjects — public order, police and land — Justice D Y Chandrachud said, “This is a constitutional indication of the fact that the NCT has been considered to be of specific importance from the perspective of the nation to exclude three important areas which have vital bearing on its status as national capital.”
Referring to the aim and objective of the 69th constitutional amendment creating Delhi assembly in 1991, Justice Ashok Bhushan said Parliament accepted the Balakrishnan Committee’s recommendation that Delhi continue to be a Union territory (UT) with an assembly and a council of ministers responsible to it.
Since the time the British made Delhi the capital on December 12, 1911, it has seen much legislative action. Delhi Tehsil and Mehrauli Thana were separated from Punjab and annexed to Delhi and came to be known as Chief Commissioner’s Province. In 1912, Delhi Laws Act was passed applying certain laws prevalent in Punjab to Delhi. The Government of India Acts of 1919 and 1935 retained Delhi as a centrally administered territory.
When India became a republic on January 26, 1950, Delhi became a ‘Part C’ state. In 1951, it was provided with an assembly by a separate law but was barred from enacting law on public order, police, municipal bodies, land and building and courts. After the State Reorganisation Act, 1956, Delhi was made a UT to be administered by an administrator appointed by the President. The assembly and council stood abolished.
In 1953, the Government of Union Territories Act was passed permitting UTs to have legislative assembly but it was not applicable to Delhi. Delhi Administration Act, 1966, provided a metropolitan council comprising 66 elected members and five nominated members. In 1966, the post of lieutenant governor (LG), who was made subject to the President’s control, came into existence.
In 1987, the Balakrishnan Committee was set up and it recommended Delhi should continue to be a UT but there must be an assembly and a council of ministers responsible to it with appropriate powers.
The essentials of the SC ruling
July 5, 2018: The Times of India
BREAKING DOWN SC RULING
WHY AAP IS CLAIMING VICTORY
LG bound by aid and advice of council of ministers LG has not been entrusted with any independent decision-making power
LG has to either act on the “aid and advice” of council of ministers or he is bound to implement the decision taken by the President on a reference being made by him
The executive power of the council of ministers spans over all the subjects covered under the Concurrent list and the State list of the Constitution except land, police, law and order
The status of LG of Delhi is not that of a governor of state
LG is an administrator in a limited sense
Delhi assembly, too, has powers to enact laws on the all subjects covered under the Concurrent list and the State list except land, police, law and order
LG should not act in a mechanical manner without due application of mind so as to refer every decision of the council of ministers to President
The difference of opinion between LG and the council of ministers should have sound rationale and should not be the phenomenon of an obstructionist
LG must work harmoniously with his ministers and must not seek to resist them every step of the way
The decision of the council of ministers that has to be communicated to LG does not mean that the concurrence of LG is required
Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy
LG being the administrative head of Delhi must be informed of all executive power, but he cannot stall all the decision of council of ministers who have been elected to address aims and aspirations of electorate
WHAT CENTRE SEES HAS GONE IN ITS FAVOUR
The Centre has exclusive executive power over land, police, law and order By no stretch of imagination, can NCT of Delhi be accorded the status of state under the present constitutional scheme Parliament has the power to make laws for NCT of Delhi on any matter under the State list and the Concurrent list
The executive action of the state must conform to the laws made by Parliament on certain subjects falling under Concurrent and State lists
The Centre may, in exceptional cases, block decisions of council of ministers in national interest
OTHER KEY OBSERVATIONS
Delhi enjoys a unique position under Constitution and neither LG nor the CM heading the council of ministers should consider themselves bigger than the other
LG and CM are constitutional functionaries who must work harmoniously with mutual respect and none of them should feel superior to the other
WHAT DELHI HC HAD SAID
LG is not bound to act only on the aid and advice of the council of ministers even on matters under preserve of the Delhi assembly
It is mandatory to communicate the decision of the council of ministers to LG even in relation to matters in respect of which power to make laws has been conferred on Delhi assembly
Order by elected govt can be issued only where the LG does not take a different view and if no reference to the Centre is required
The matters connected with ‘services’ fall outside the purview of elected government. HC upheld the MHA notification saying that LG shall in respect of matters connected with ‘services’ exercise the powers and discharge the functions of the central govt
Upheld Centre’s direction that the Anti-Corruption Branch of Delhi can’t take any cognisance of offences against officers, employees and functionaries of the central govt
Struck down a notification issued by Directorate of Vigilance, Delhi, appointing a commission of inquiry to probe grant of CNG fitness certificates in the transport department, since the same was issued without/concurrence of LG
Struck down similar commission of inquiry into allegations of irregularities in the working of DDCA
Policy directions to DERC on disruption in power supply to consumers and payment of compensation are illegal and unconstitutional since such policy directions cannot be issued without communicating to the LG
Regular bench to answer key issues
Abhinav Garg, Verdict leaves it to regular bench to answer key issues, July 5, 2018: The Times of India
The Supreme Court’s 535-page verdict on Delhi’s status tweaks some of the key findings of Delhi high court on the same issue, but keeps the judgment intact, leaving it for a regular SC bench to answer specific issues. The five-judge constitution bench answers the reference by laying down that LG is bound by the “aid and advice” of the elected Cabinet unless, in exceptional cases, he wants to escalate the matter to the President.
But SC failed to specify what these exceptional matters are — a task left to the twojudge bench when it deals with several contentious issues pending between LG and Delhi government. While Delhi HC categorically kept the “services” sector with LG and outside the ambit of the government, SC has not answered in clear terms who has power over transfer, posting and appointment of Delhi’s bureaucrats.
Again, a ministry of home affairs notification of 2015 — upheld by HC — continues to remain valid where it gives LG full control over transfers and appointments of civil servants. The majority ruling by Chief Justice of India Dipak Misra and concurrent findings by Justice D Y Chandrachud only clarified that barring the issues of public order, police and land, the Delhi assembly has powers to make laws and govern on all other subjects. Since “services” falls under entry 41 of State list, it remains to be seen for how long the MHA notification will survive scrutiny.
Unlike Delhi high court, which returned findings on each issue, the SC ruling lays down broad parameters for governance of the capital. It is this jurisprudence laid down by the bench that will determine the manner in which a regular bench deals with contentious issues. These include jurisdiction over ACB, panels to inquire into the CNG fitness “scam”, alleged irregularities in DDCA and appointment of nominee directors of Delhi government on the board of discoms.
Apart from the power of superintendence over bureaucrats, MHA had also issued a notification on May 21, 2015, barring ACB from proceeding against Central government employees, saying it shall not take any cognizance of the offences against the Centre's officers, employees and functionaries.HC agreed with this decision, saying it was in accordance with the constitutional scheme.
The HC bench, headed by then Chief Justice G Rohini, had also held the appointment of commissions by AAP government on August 11, 2015, and December 22, 2015, to probe into the CNG fitness scam in the transport department and alleged irregularities in DDCA, as illegal saying they were done without LG’s concurrence. The HC did not approve of AAP government's decision to appoint its nominees as directors on the boards of private discoms on the ground that there was “huge” corruption in their functioning.
It termed as “illegal and unconstitutional” the policy decision of the city government empowering the DERC to impose a fine on the discoms in the event of disruption of power supply on the ground that LG was not on board.
While Delhi high court categorically kept the ‘services’ sector with LG and outside the ambit of the government, the apex court has not answered in clear terms who has power over transfer, posting and appointment of Delhi’s bureaucrats
Centre must not encroach upon state’s powers: SC
Dhananjay Mahapatra, July 5, 2018: The Times of India
Amid rising friction between the Centre and non-NDA ruled states, the Supreme Court emphasised on ‘collaborative federalism’ and said though the constitutional structure was slightly tilted towards the Union, it must not unduly interfere in a state’s governance.
Chief Justice Dipak Misra, writing the lead judgment, said though the Constitution framers bestowed the Centre with slightly more power, they consciously provided for a federal balance of power between the Centre and states “so that there is no unwarranted or uncalled for interference by the Centre which would entail encroachment by the Centre into the powers of the state”.
“The interest of the states inherent in a federal form of government gains more importance in a democratic form of government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular state/region to the governance of the Union, that too, with respect to matters which can be best legislated at the state level goes against the very basic tenet of a democracy,” he said.
The judgment by the CJI and Justices A K Sikri and A M Khanwilkar said it could not have been the intent of the Constitution framers to entitle the Union government, in the garb of quasi-federal constitutional scheme of governance, to adversely affect the interest of states.
“Similarly, the states under our constitutional scheme were not carved as separate islands each having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put a step to invite anarchism,” the judgement said.
“The idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the state governments in their respective pursuits of development. The Union and state governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation,” the SC said.
“We are absolutely unequivocal that both the Centre and the states must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the state Governments,” the CJI said.
“The constitutional vision beckons both the central and the state governments alike with the aim to have a holistic edifice. Thus, the Union and the state governments must embrace a collaborative federal architecture by displaying harmonious coexistence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the state governments by demonstrating a pragmatic orientation,” he added.
=== ‘Ruling breaks deadlock but not new ground’ Abhinav Garg, Ruling breaks deadlock but not new ground, say legal experts, July 5, 2018: The Times of India
Supreme Court ruling on Delhi has drawn mixed views from experts. While some say the court has done little more than reiterate constitutional provisions, others say it has broken a deadlock and citizens will benefit.
Former attorney general and eminent jurist Soli Sorabjee said the SC ruling would streamline governance. “It is a good judgment. The lieutenant governor and Delhi’s elected government have to work harmoniously. Daily squabbles are not good in a democracy,” he said.
Another former senior law officer Mohan Parasaran said the ruling was a logical interpretation of the Constitution and the National Capital Territory of Delhi Act of 1991. “If the Election Commission conducts polls, then it is an elected government answerable to the people, like any other state government. If you don’t give that government the powers and respect it deserves but impose a lieutenant governor, you are, in effect, disrespecting the people of Delhi. The Supreme Court has rightly clarified that the LG is just a titular head and can’t sit on every proposal of the cabinet. For posterity, SC has saved us with correct interpretation of the Constitution,” Parasaran said, adding that the LG and CM should now focus on governance.
Former Lok Sabha secretary-general and constitutional expert Subhash Kashyap was not as sanguine, and said the “judgment creates more confusion than clarity.” He said it was not critical to “discuss the nuances of the Constitutional position since much can be said on either side… what is really important is to find a solution to make governance in Delhi functional. It can be done only when the institutions of lieutenant governor and chief minister work in a spirit of cooperation and accommodation, and not one of confrontation.”
Kashyap said the law had not been spelt out clearly by the SC since the lieutenant governor is a representative of the President. “Even in the case of the states, the Constitution says the governor will act on the advice of the council of ministers except in areas in which he can act at his discretion. What these areas are is something only he can decide, and his decision is final. But in Delhi’s case, Parliament has powers not just to make laws in the concurrent list but also in the state list. Also, any proposal requires the LG’s signature to become law. The Constitution gives the LG authority to withhold assent or forward it to the President for consideration.”
Advocate Prashant Bhushan too said the final order did not provide relief for the elected government since the apex court had only reiterated Article 239AA(4) of the Constitution relating to Delhi.
The economics of full statehood
As in 2019
April 30, 2019: The Times of India
Why Arvind Kejriwal’s demand of full statehood to Delhi is a costly proposition
NEW DELHI: Aam Aadmi Party (AAP) supremo Arvind Kejriwal has pegged his party's 2019 Lok Sabha election campaign to the issue of full statehood to Delhi.
As Delhi goes to polls on May 12, Arvind Kejriwal has been publicly appealing to the people of the national capital to elect the AAP candidates if they wanted full statehood for Delhi. His radio advertisement says the people of Delhi pay Rs 1.50 lakh crore as taxes but get only Rs 325 crore from the Centre and alleges discriminatory treatment.
On February 23, the Delhi assembly adopted a resolution which demanded that the Union home ministry should take steps to declare Delhi a “full-fledged” state without any further delay.
However, Arvind Kejriwal’s demand may be financially non-viable.
Talking to timesofindia.com, former Delhi Congress chief Ajay Maken, who is contesting from New Delhi constituency, said “There will be a huge burden on the taxpayers of Delhi if the city is granted full statehood and if it ceases to be a National Capital Territory (NCT).”
Maken said, "With statehood, Delhi will lose the status of National Capital and will be like any other state like Uttar Pradesh or Bihar. Moreover, statehood will be a financial disaster as the Union government spendings on police, higher education, speciality hospitals, pensions of government employees, Delhi Metro and the likes will be drastically reduced, thus putting a burden solely on Delhi."
By virtue of Delhi being a Union Territory, the Centre shares a large portion of the national capital’s financial burden.
If Delhi becomes a full state, these financial costs would have to be borne by its citizens. This burden may be huge and would cause inconvenience to the people of Delhi.
While complaining that the Centre gives only Rs 325 crore to Delhi, the AAP government has demanded that the state should get Rs 5,000 crore annually.
Presenting the annual budget for 2015-2016, Delhi deputy chief minister Manish Sisodia pointed at the 14th Central Finance Commission Commission which recommended increased devolution of central taxes to states from 32 per cent to 42 per cent.
Sisodia rued that Delhi, which was excluded from the terms of reference of the commission, was deprived of the benefit from this recommendation.
He said if the 14th Central Finance Commission’s recommendation had been applied to Delhi, the capital would have received about Rs 25,000 crore between 2015 and 2000. This comes to Rs 5,000 crore per annum.
However, figures prove that the Centre spends many more times on Delhi than Rs 5,000 which Manish Sisodia had demanded for the national capital.
For instance, in 2017-2018, the Centre’s spending on Delhi Police amounted to about Rs 7,000 crore. The Delhi Police comes under the Union ministry of home affairs (MHA).
The Centre also runs super-specialty hospitals in Delhi such as AIIMS, Safdarganj hospital and Sucheta Kriplani hospital. It spent approximately Rs 3,000 crore in 2017-2018 on maintaining more than 10,000 beds in these hospitals.
The Centre manages three central universities - Delhi University (DU), Jawaharlal Nehru University (JNU) and Jamia Milia Islamia (JMI) - and it had incurred a spending of Rs 2,633.51 in 2016-2017.
The Centre also pays Rs 3,665 pension to the Delhi government employees every year.
Adding all these, the total spending of the Centre amounts to about Rs 16,300 crore per annum.
Besides all these, the central government has also built and maintains the Delhi Metro.
So far, out of the total cost of Rs 70,433 crore spent on setting up the Delhi Metro in the three phases, the state government’s contribution has been a meagre Rs 8,682.80 crore, which is just 12.3 per cent of the total cost.
The remaining cost of Rs 61,750.20 crore on Delhi Metro has been borne by the central government.
Adding this amount, the total spending of Delhi comes to about Rs 22,000 crore per annum while the AAP government has demanded only Rs 5,000 every year.
Apart from these, the Centre also maintains the airports and railway stations in Delhi.
What Arvind Kejriwal has been demanding for Delhi may prove to be unbearable for the people of the national capital.
Delhi: Lt. Governor vs. Chief Minister
Parliamentary secretaries: India