More constitutional than political

A reasonable case can be made that the Delhi Lieutenant Governor’s discretionary powers do not extend to the appointment of the Chief Secretary without the ‘aid and advice’ of the Chief Minister and his Council of Ministers
The tussle between the Delhi Chief Minister, Arvind Kejriwal and Delhi Lieutenant Governor, Najeeb Jung, much in the news, raises several constitutional and legal issues on the scope and extent of their powers in the National Capital Territory (NCT) of Delhi. The stand-off, especially over control of key bureaucratic appointments, was sparked by Mr. Jung’s appointment of IAS officer Ms Shakuntala Gamlin as acting Chief Secretary. This was opposed by Mr. Kejriwal on grounds that it fell beyond the scope of the Lieutenant Governor’s powers to do so without the aid and advice of the Ministers.
A Home Ministry notification issued by the Centre on Thursday tilts the balance more in favour of the Lieutenant Governor, indirectly expanding its own powers in the region. Although the dispute is coloured by highly partisan political contestations, the issue is more a matter of constitutional and statutory interpretation.
The relevant laws

The laws relevant to understanding the relation between the Lieutenant Governor and the Chief Minister in Delhi are Article 239AA of the Constitution, the Government of National Capital Territory of Delhi Act, 1991 (GNCT Act), the rules formulated under this Act (Transaction of Business Rules), and the relevant judicial pronouncements. It needs to be said that the precise contours of the sharing of powers between the Lieutenant Governor and the Delhi government are a grey area. Yet, a reasonable case may be made to suggest that the Lieutenant Governor’s discretionary powers do not extend to the appointment of the Chief Secretary without the “aid and advice” of the Chief Minister and his Council of Ministers. Further, it will be argued that the Home Ministry notification may not stand the test of constitutionality, being ultra vires of Article 239AA of the Constitution.
As far as States are concerned, the Chief Secretary is appointed by the Chief Minister and the Ministers. The reasoning for this can be found in these landmark Supreme Court judgments. E.P. Royappa (1974) states that “The post of Chief Secretary is a highly sensitive post…[Chief Secretary is a] lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. …” Similarly, Salil Sabhlok (2013) says: “it may be necessary for [the] Chief Minister of a State to appoint a ‘suitable’ person as a Chief Secretary or the Director General of Police…because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end…” These precedents clarify the rationale that the Chief Minister ought to have the discretion to appoint Chief Secretaries in the interest of a smooth functioning representative government.
Delhi’s peculiar nature

While this justification for the Chief Minister to appoint the Chief Secretary may hold good for States, is it the same for Delhi? Delhi is a peculiar case, neither being a State, nor a Union Territory. So, Article 239, which deals with Union Territories, does not apply to Delhi. Instead, Delhi is governed by Articles 239AA and 239AB, introduced by a constitutional amendment in 1991. The problem with the Home Ministry notification is that while it conflates Delhi as a Union Territory to suit its own interests, at other times, it treats it as a State. The crucial constitutional provision relevant to the issue is Article 239AA(4) which says: “There shall be a Council of Ministers…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.” Two conclusions can be drawn from reading the provision: (a) the Lieutenant Governor will have to take decisions based only on the “aid and advice” of the Chief Minister in exercise of all matters on which the Legislative Assembly has power to make laws. Consequently, the Legislative Assembly of Delhi has the power to make laws on all matters in the State List and the Concurrent List in the VIIth Schedule of the Constitution, except entries related to public order, police and land. (See, Article 239AA(3)); and conclusion (b) the Lieutenant Governor can act at his own discretion only when there is a specific law conferring this discretion on him. Section 41 of GNCT Act deals with the discretionary powers of the Lieutenant Governor. There is no such law granting discretion to the Lieutenant Governor for making such appointments currently.
Based on these two conclusions, the question is this: whether the appointment of the Chief Secretary falls under conclusion (a) wherein the Lieutenant Governor appoints the Chief Secretary on the “aid and advice of [the] CM”; or conclusion (b) wherein the Lieutenant Governor appoints, at his own discretion, the Chief Secretary, granted by a specific law. The second conclusion is clearly not applicable here. Three further points have to be made. First, we need to understand what the intention of Parliament was in passing the constitutional amendment introducing Article 239AA granting special status to Delhi. The population of Delhi is large, and it is only fair that the people deserve a representative government serving their interests, similar to other States, except in matters concerning land, public order and police. Given such an intention of the lawmakers, for all practical purposes, from then on, Delhi has acted and functioned like other States. Which is why the language used in Article 163(1) pertaining to States reads identical to that of Article 239AA(1) pertaining to Delhi, while that of the provision relating to Delhi reads different from the provision relating to all other Union Territories. Therefore, just as in other States where the Supreme Court has justified that the Chief Secretary appointments be made at the discretion of the Chief Minister, in Delhi as well, it is the Chief Minister who must have the power to appoint the Chief Secretary, by “aiding and advising” the Lieutenant Governor. Second, executive powers run coextensively with legislative powers. Finally, the phrase “aid and advice”, as used in Article 239AA, has been interpreted by the Supreme Court in Shamsher Singh(1974) to mean that the aid and advice of the Council of Ministers and the Chief Minister is “binding” on the Governor; it is not just advisory.
Therefore, the following can be reasonably concluded based on a joint reading of the observations: First, as per Article 239AA(4) read with Section 41 of the GNCT Act, the Lieutenant Governor does not have any discretion to appoint the Chief Secretary and other such posts, nor is there any special law granting him this discretion; Second, the Lieutenant Governor is bound by the “aid and advice” of the Council of Ministers and the Chief Minister in all matters that concern the Legislative Assembly. Third, for all practical purposes, the intention of Parliament was to treat the Delhi government as a representative government. It would be disrespecting voters and a travesty to grant autocratic powers to the Lieutenant Governor, an authority which does not have a “democratic legitimacy” in the strict sense. A democracy, by design, guarantees that it is the party voted into power that represents the people of Delhi.
Questionable notification

The Home Ministry’s notification, siding with the Lieutenant Governor, states that apart from public order, police and land, the category of “services” also falls within the scope of the Central Government. Therefore, the Centre has decided to treat Delhi as any other Union Territory when it comes to appointments by the Public Service Commission. This is ultra vires. Article 239AA gives the Legislative Assembly of Delhi power on all matters under the State List, and Entry 41 of the State List includes State Public Service Commissions. The Home Ministry notification — by reiterating that Indian Administrative Service and Indian Police Service personnel will be chosen by the Central Government from the Union Territories Cadre — is to conflate Articles 239 and 239AA, denying the special status that Delhi otherwise has, and further denying it the powers under Entry 41.
The act of Mr. Kejriwal and Mr. Jung rushing to meet the President for a decision on the dispute is justified under Article 239AA(4). However, the Transaction of Business Rules suggest that when there is a dispute between the Chief Minister and the Lieutenant Governor, there must be an endeavour to settle it through discussions, and only then must a referral be made to the President. One can only hope that such endeavours were genuinely made. Finally, the act by the Lieutenant Governor, cancelling or staying the orders by the Chief Minister, also seems to be illegitimate and excessive. Rule 23 of the Transaction of Business Rules states that all relevant proposals of the Delhi government “have to be submitted” to the Lieutenant Governor through the Chief Secretary. But nowhere does it state that the Lieutenant Governor can reject or cancel such orders.
In the end, the politicisation of the issue as a struggle for power between the Bharatiya Janata Party and the Aam Aadmi Party is ultimately an attack on the ideals of representative governance. In the long run, regardless of such adversarial legal technicalities, there can be no compromise when it comes to cooperation, trust and coexistence between the Lieutenant Governor, the Delhi Government and the Centre. The peculiar nature of Delhi mandates that these three institutions learn to work and dwell together in their home-city. A clear interpretation of the existing laws, in the larger interest of representative democracy, would suffice, as has been established. In sum, the question of statehood for Delhi need not be raised to resolve the tussle.