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The turf war between Delhi’s Lieutenant-governor (L-G) Najeeb Jung and its chief minister, Arvind Kejriwal, has been going on for a long time. It culminated recently in the Delhi High Court which gave a judgment which was a setback for the AAP government. The Court held that the L-G was the administrative head of Delhi and he was not bound to act on the advice of the council of ministers. Additional Solicitor General SANJAY JAIN who appeared for the Union of India in the case Government of National Capital Territory of Delhi vs Union of India tells NAYANTARA ROY that the Court’s judgment was in line with the constitutional provisions, and that the L-G has more discretionary powers than the governor of a state.

How do you reconcile two seemingly contradictory propositions that Delhi is a Union Territory and also has an elected government?

Before embarking on any discussion, it would be necessary to refer to the Balakrishnan Committee Report which was the vision document which led to the introduction of Article 239AA. This Report was unanimously accepted by parliament and is the template of Article 239AA. The main purpose of the Committee was to balance the concerns of the people of Delhi by providing them a representation in the form of an elected government on the one hand, and at the same time, to ensure that the capital of the country remains under the overall control of the Union government. This Committee, therefore, conducted a study of the administrative set up of various international capitals, such as London, Washington DC, Canberra and others, and came to a conclusion that granting statehood to Delhi would be against national interest. A commonality in all these city names that I have taken was that the capital of the country was always the seat of the central government.

“A symbiotic and participatory relationship between the central government and the government of Delhi was envisaged by the constitution, as opposed to a contention to the effect that Delhi is a full-fledged state, which was argued by the Delhi government.”

When the status of Delhi was being discussed in parliament, it was decided that a unique model be created for Delhi wherein it would have a representative government to respond to the demands of the public, albeit in a limited sphere, with the center having overall control. Therefore, a symbiotic and participatory relationship between the central government and the government of Delhi was envisaged by the constitution, as opposed to a contention to the effect that Delhi is a full-fledged state, which was argued by the Delhi government.

If Delhi was to be retained as a Union Territory only, then why did we introduce a system of an elected government and why did we bring in Article 239AA in the constitution providing for an elected legislative assembly?

The elected government was formed as a response to the demands of the people of Delhi. But it was expected that the government of Delhi would work symbiotically with the Union government to ensure that the people of Delhi enjoy the best governance. Keeping in mind that Delhi is the capital of the country and thus, the seat of the central government, there should not be a situation wherein the government of Delhi and the central government are in a tug-of-war. This might result in destabilizing the central government or preventing it in meeting its international obligations.

In what way is Delhi different from other Union Territories?

First and foremost, it is the capital of the country. Secondly, various embassies, central government offices, the Supreme Court and institutes of national importance are located here. And finally, being a capital, Delhi does not belong to the people of Delhi alone, but to the entire country. It, therefore, cannot be overemphasized that Delhi, in the context of the entire country, has a peculiar status, which necessarily requires the center to retain overall control over Delhi.

How is it that the Lt. Governor is not bound by the “aid and advice” of a duly elected government?

As I understand it, this was the crux of the entire matter before the High Court. Clause 4 of Article 239AA states that with regard to matters in which the Delhi Assembly has power to make laws, the L-G shall act on the aid and advice of the council of ministers, except when he is required under law to act on his own discretion.

“Keeping in mind that Delhi is the capital of the country and thus, the seat of the central government, there should not be a situation wherein the government of Delhi and the central government are in a tug-of-war.”

The proviso to the above mentioned clause essentially provides that the L-G has the right to differ with the aid and advice of the council of ministers. This is evident from a reading of Article 239AA(4) which has given wide powers to him by providing that if there is difference of opinion between him and the council of ministers on any matter, the LG has to send the file to the President. Pending such decision, it is the opinion of the L-G that will prevail. This may seem complex on the face of it, but on a reading of Article 239AA, it becomes clear that the L-G is not bound by the aid and advice of the council of ministers and can act on his own discretion.

“Article 239AA(4) has given wide powers to L-G by providing that if there is difference of opinion between him and the council of ministers on any matter, the LG has to send the file to the President. Pending such decision, it is the opinion of the L-G that will prevail.”

I must hasten to add that this does not mean that this is any impediment in the system of governance in Delhi. What Article 239AA requires is that the council of ministers should follow a working tool which recognizes the limits of their powers. Therefore, if the ministers act strictly in accordance with the Transaction of Business Rules, there would be no situation of conflict as the fields covered by the exclusive powers of council of ministers is well-defined, and in the ordinary course, it is unlikely that the L-G will unnecessarily differ with such decisions of the council of ministers which is in its power. It is only where the L-G finds that the decisions are legally infirm, or in conflict with some law, or such which are overreaching the central laws applicable in Delhi, that the L-G might opt to differ with  the council and request them to reconsider their decision. It all depends on the skill and maturity of the council of ministers to either persuade the L-G with its reasoning and rationale, or provide an alternative approach, or rectify its earlier decision to the satisfaction of the L-G.

Delhi L-G Najeeb Jung and chief minister Arvind Kejriwal Photo: UNI
(L-R) Delhi L-G Najeeb Jung and chief minister Arvind Kejriwal. Photo: UNI

As Delhi is the capital of the country, it is also necessary that the Union government exercise certain executive powers and functions that are not limited to emergency situations. It is due to this reason that the constitutional provision has clearly stated that the L-G, who is a delegate of the President of India, need not be bound by the aid and advice of the council of ministers of Delhi.

“As the government of Delhi has not exercised its powers under Entry 41 of List II and created services of its own, it cannot claim that it can exercise any executive control over employees of the central government.”

In any case, as per the constitutional scheme, the L-G remains the administrator, even after the advent of the Legislative Assembly and the council of ministers. It is for this reason, amongst others, that the office of the L-G is not placed at par with the office of the governor of a full-fledged state, who is bound by the aid and advice of the council of ministers of the respective state and does not have the power to act at his own discretion.

Article 239AA speaks only about Entries 1, 2 and 18 of List II of the 7th Schedule of the constitution. However, the central government in its notification dated May 21, 2015 issued a direction with regard to “the Services” and corruption cases also. What is the basis for that?

All services in Delhi are performed by central government employees whose cadre-controlling authority is the Ministry of Home Affairs or other central government ministries. The Delhi Assembly has not exercised its powers under Entry 41 of List II, by virtue of which it could create its own services in Delhi. Therefore, the Delhi government does not have its own services.

It is a settled principle of constitutional law that a legislative power is co-extensive with executive power. As the government of Delhi has not exercised its powers under Entry 41 of List II and created services of its own, it cannot claim that it can exercise any executive control over employees of the central government.

“All that the L-G or the central government had asked from the government of Delhi was that decisions must be taken only after consulting the L-G. So it would be misleading for the Delhi government to say that it is not being allowed to govern.”

So far as the notification dated May 21, 2015 is concerned, the same only clarifies the position that it is the cadre controlling authority which can decide on issues incidental to services, including but not limited to transfer of employees and taking disciplinary action, if required. In the present scenario, the cadre controlling authority, that is, the Ministry of Home Affairs, will be the disciplinary authority for the employees of the central government and will also be the authority deciding on incidental issues such as transfers, amongst others. Therefore, the government of Delhi cannot be suddenly found to be taking decisions with respect to services of the central government, merely because it does not have its own state services or because officers of the central government are posted in Delhi and when prevented from doing so, it cannot raise a furor over it, for such an act is inherently misconceived.

The BJP once spearheaded the full statehood for Delhi campaign. How do you explain the stand of the Union in relation to that?

I would prefer to refrain from responding to this question, since by representing the central government, I do not represent any political party.

Reacting to the judgment, the deputy chief minister of Delhi has stated that if this is the interpretation of the constitutional position, then how does the Delhi government fulfill its obligation to govern?

If the judgment is seen as a whole, it states that the Delhi government has not acted in consonance with its constitutional obligations of consulting the L-G. All that the L-G or the central government had asked from the government of Delhi was that decisions must be taken only after consulting the L-G. So it would be misleading for the Delhi government to say that it is not being allowed to govern. The Delhi government has jurisdiction over most of the entries of the State List of the Seventh Schedule. It would be a very myopic understanding of the constitution to claim that the Delhi government is unable to perform its functions in the light of this judgment, and because the central government has overall control of Delhi. The people of Delhi have a right to enjoy good governance, and the government of Delhi cannot contend that the symbiotic relationship between them and the central government is a hindrance in the exercise of its powers and functions. To ensure smooth governance in Delhi, all that is required is that the government here govern in accordance with the constitution, and this has also been upheld by the judgment of the Delhi High Court.

I recall what American writer Frank Herbert had said about good governance—“Good Governance never depends upon laws, but upon the personal qualities of those who govern. The machinery of government is always subordinate to the will of those who administer that machinery. The most important element of government, therefore, is the method of choosing leaders.”

Read also: No Ceasefire In Delhi’s Battle Royale  

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