L-G vs Delhi Govt: Voters deserve better deal

BY Satya Prakash

However good  a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good,” Dr BR Ambedkar — the chairman of the seven-member drafting committee of the Constituent Assembly had said.

Seven decades on, his prophetic words have unfortunately proven to be true in case of NCT of Delhi where the Lt Governor and the Aam Aadmi Party government led by Arvind Kejriwal have indulged in an unpalatable power struggle since early 2015.

Even after two Supreme Court verdicts — one by a five-judge Constitution Bench and the recent one by a two-judge Bench — the tussle appears to be far from over. In July last year, the top court had ruled that Delhi Lt Governor did not have independent decision-making powers. Last week, a Bench of Justices AK Sikri and Ashok Bhushan delivered a split verdict as to who had powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution and referred it to a larger Bench.

“The judgment is against the Constitution and democracy. We will seek legal remedies,” Kejriwal said describing it as “injustice” to the people of Delhi. Expectedly, the BJP welcomed it, saying it was a “lesson” for Kejriwal — an “urban Naxal” who always tried to cross boundaries by adopting “unconstitutional” means.

The tussle for power between the AAP government and Lt Governor as the Centre's representative is primarily because of Delhi's unique position as a Union Territory with an elected government which doesn’t enjoy much power over important agencies. The elected government does not have control over issues relating to public order, police and land. 

The fact that the Centre and Delhi were ruled by different parties has only complicated the issues as the AAP government was demanding control over various agencies while Lt Governor was not ready to concede much and often allegedly sat over files.

There are three legal instruments regarding National Capital Territory of Delhi — Article 239AA, NCT of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.

One needs to remember that Delhi is not a state and merely having an Assembly doesn’t empower its elected government with all the powers generally enjoyed by an elected government in a state.

Article 239AA of the Constitution — which was added to the Constitution by the 69th Amendment and led to creation of an Assembly in the national capital — clearly states that the Legislative Assembly of Delhi shall not have power to make laws relating to subjects such as public order, police and land.

It also gives wide discretion to Lt Governor even on subjects on which the Assembly has powers to make law. It says in case of difference of opinion between Lt Governor and the elected government, the former can refer it to the President and he could take a decision during pendency of the issue, if the President was of the opinion that the issue needed immediate action. 

Section 45 of the NCT Act says: “It shall be the duty of the Chief Minister to communicate to the Lt Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation; to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lt Governor may call for, and if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

But the CM had in the past asked all departments under the Delhi Government to route files pertaining to police, public order and land only through the minister concerned and to “not bother the office of the Lieutenant Governor.” He had quoted a provision of the Transaction of Business Rules that said the L-G should, in matters of public order, police and land, consult the CM — but he had conveniently forgotten that it was mandated only if the president issued orders to this effect under Article 239.

Kejriwal is not the first non-BJP CM of Delhi during a BJP-led government at the Centre. Sheila Dikshit had managed to run Delhi smoothly during the Vajpayee government without creating any political acrimony.