Supreme Court verdict on Arvind Kejriwal versus L-G: At the heart of case is contentious Article 239AA

The Supreme Court is expected to provide some closure to a long-running political power tussle between the Centre and the Arvind Kejriwal-led Delhi government. The verdict will effectively decide who will rule Delhi.

The tussle between the Aam Aadmi Party-led Delhi government and the L-G's office started as early as February 2015, after AAP won a landslide majority in the Delhi Assembly. In 2015, the Centre issued a notice saying the services department of the Delhi government would fall under the L-G's purview. This was in addition to three other subjects – land, police and public order – which fall with the Centre. This was compounded by the clash between the then L-G Najeeb Jung and Kejriwal when the AAP had set up an inquiry against the alleged CNG and DDCA scams. AAP also bypassed the L-G and made several top bureaucratic appointments without consulting Jung, who hit back reasserting himself by claiming himself to be the sole authority in matters of appointment.

The tussle which began during the tenure of Jung (Centre's representative), has gone through several ugly patches. Since assuming office in Delhi, the AAP government has been locked in one fight or the other with the Centre's representative for stalling administrative and policy decisions affecting daily government work.

File image of Supreme Court of India. Reuters

File image of Supreme Court of India. Reuters

The stand-off, which began during Jung's tenure over control of key bureaucratic appointments, was sparked by the L-G's appointment of IAS officer Shakuntala Gamlin as acting chief secretary. Kejriwal had opposed to the appointment on the grounds that it fell beyond the scope of the L-G's powers to do so without the aid and advice of his Cabinet of ministers.

The Delhi government sought to know whether NCT Delhi was a state, Union Territory or a hybrid. The Kejriwal government had complained to the Supreme Court that it was facing a crisis in governance because after the Delhi High Court verdict which ruled that the L-G will decide on how to run Delhi, Delhi cadre officers were "increasingly reluctant" to report to ministers.

The power struggle in Delhi won't end with Jung or any successive L-G's appointed to the Union Territory. At the heart of it, is the special status given to Delhi by the Constitution and Article 239AA of the Constitution which confers special provisions for Delhi (National Capital Territory). and which states that the region will be under the control of Lieutenent Governor.

Constitutional status of Delhi

Details in this section are still blurry. A Union Territory until 1992, Delhi was part of the Punjab province before India gained Independence. It was made the capital in 1911 and became a chief commissioner's province. "The chief commissioner was empowered to determine the application of laws by issuing appropriate notification in the Gazette of India." A committee set up in 1947, however, recommended that Delhi would function under an L-G who would, in return, act on the advise of the Centre.

Article 239 of Constitution

Under Article 239 of the Constitution, every Union Territory is under an administrator (which would be the position of a Governor). The administrator governs on the directions of the President. After after amendments, under Article 239AA, Delhi was given special provisions and was deemed a National Capital Territory. According to 239AA, the administrator of the NCT was the Lieutenant-Governor. The L-G, who is to be appointed by the President, will be advised by a council of ministers. However, in cases pertaining to land, police, and public order, the LG had the freedom to not consult the ministers. The appointment of chief secretary falls in the cracks between public order, police and land. It is also because of this exception that the Delhi Police is under the control of the BJP-led Centre and not the Kejriwal government. This is different from other Union Territories where the Legislative Assembly is under the Governor.

Article 239AA(4) provides a mechanism to refer a matter to the President of India in case of a difference of opinion between the L-G and the Delhi government or, in other words, the council of ministers. This is the section which the AAP government has challenged in the PIL.

The amendment, with respect to relation between the chief minister, the Legislative Assembly and the L-G says: "There shall be a Council of Ministers consisting of not more than ten percent. Of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion."

What this means

Even though the council of ministers is there to advise the L-G, he, however, is not bound by the council of ministers' advice where he has the power to act in his discretion.

What is today's verdict about

Last year, the Delhi High Court dismissed AAP's plea challenging the power of L-G Najeeb Jung. On the issue of Delhi being administered as a Union Territory, the court had observed that the special status given to Delhi in its amendment does not overrule the powers given by Article 239 to the L-G and that the L-G remains the administrative head of Delhi.

The AAP government said that the high court was mistaken in characterising the NCT of Delhi as a Union Territory without taking into account the democratic rights of citizens of Delhi. The AAP government had asked the Supreme Court whether the Delhi government had any power to legislate, despite the NCT of Delhi having an Assembly, on any subject when the reins of governance was entrusted solely to the L-G, who was a representative of the Centre.

Even after Jung's tenure, the AAP government continued to have problems with the office of the L-G, now held by Anil Baijal. Kejriwal accused L-G Baijal of taking decisions of an elected government and delaying work by sitting on files. The Centre, meanwhile, contended that "for any centrally-administered territory… and especially Delhi in respect of its unique position… responsibility is on the shoulders of the Union government".

The demand for statehood, therefore, came up as a result of the report of the Balakrishnan Committee in 1987. The committee recommended setting up a legislative system and examined overlapping of authorities in matters of municipal governance. It agreed to give the National Capital a special status and the Union Territory to have a legislative Assembly that would be given powers to form laws on matters under the state list with exception to matters related to land, police, and public order.

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Updated Date: Jul 04, 2018 16:56 PM

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