Delhi’s jung – the legal side

Dinesh Dwivedi

The provision in question is Article 239 AA of the Constitution. First and foremost we must know that the Constitutional provision has to be understood in the light of the guiding principles of our Constitution, its basic features and interpretations imparted by Courts and other literature. They do not operate in a vacuum or on a clean slate. A few other provisions of the Constitution that have to be kept in mind are the Preamble, Articles 1, 245, 246, 73, 74, 75(3),163, 164(2). These provisions establish two important pillars of our democracy- “Federal Structure” and the “Cabinet System of Governance”. These basic features must reflect in our understanding of the constitutional provision. Article 1 read with Article 245 and 246 clearly spell out the federal structure of our governance. States have exclusive power to legislate on items specified in List 2 of Schedule VII of our Constitution. This is what we can call the State’s exclusive legislative sphere and the Parliament has no jurisdiction here. The State Executive has co-extensive powers under Article 162. Under other Articles mentioned above what has been conferred by framers is the Cabinet System. They show that the Legislature reflects the will of the people and thus the Council of Ministers is answerable to it. Once the Government is formed, it is Government of the People, by the People and for the People. Government is not responsible to any other authority. Likewise the LG is not responsible to the people. This Cabinet system must underly all our understanding of Article 239AA.

Article 239 AA is parallel provision to Articles 163 and 164. Therefore these two Articles must colour our understanding. Delhi has been conferred a status akin to “State”, and therefore Article 162 automatically applies. It talks of the power of Executive being co-extensive with that of the Legislature. This power is exercised by the Governor with the “aid & advise” of the Council of Ministers. Under Article 163 and under Article 164 Governors appoint Chief Minister and Ministers but under Article 239 AA the LG does not have any such power. They hold office during the pleasure of the President and so long as they enjoy the confidence of the majority in the directly elected Legislature. Article 239 AA(3) & (4) need a little elaboration. Article 239 AA (3a) defines the extent of legislative power of Delhi Union Territory, which comprises of List 2 of Schedule VII as exclusive power and concurrent power under List 3. We are concerned with List 2 in the present dispute. The power conferred under Article 245 & 246 are virtually the same as Article 239 AA(3a), except that Item 1 (Public Order), 2 (Police) and 18(Land) are excluded. None of these are relevant to the present controversy. The relevant one is Entry 70 in List 1(Union Public Service, All India Services etc). The dispute relates to appointment of acting Chief Secretary of Delhi, who belongs to Service covered under Entry 70 mentioned above. Since this Entry falls under List 1, it is as outside State’s jurisdiction as in the case of Union Territory Delhi. Can it be imagined that the Chief Secretary of a State can be appointed by Governor(Union’s agent), ignoring the advise of the Government, or transfers and postings of officers of IAS in States being done by Governor on his own? What can be more preposterous than this. This is utter violation of the Cabinet System which is one the of the basic features of our Constitution. Yet, the LG seeks to assume this power ignoring all cannons of our Constitution which he has sworn to uphold. This is despite the presence of Article 239 AA(4),(5) and(6).

Article 239AA(4) to (6) clearly instil the Cabinet System of the same nature as is contemplated in the case of States. Therefore Articles 163 &164 need to be seen as they are parallel provisions. These Articles have been subjected to innumerable interpretations by the courts and experts and therefore there is no excuse to misinterpret. As I said earlier, there is no clean slate. Because Legislatures are directly elected and represent the will of the people, the real power vests in the Council of Minsters who are ultimately responsible to the will of the people represented by Legislatures. We should not forget that the premise of the Constitution is that it has been made for the people and their will is supreme. It is for the fulfilment of their wishes that Governments are elected. The LG comes nowhere in the scene and should resist any desire to enter the scene. Article 239AA(4) has to be read likewise. Question is why would Parliament, acting as Constituent Assembly in the year 1992, virtually incorporate the same phraseology as in Articles 163 & 164, which have received considerable interpretation by the courts as above. The Courts have repeatedly held that these provisions clearly vest the Executive powers of the State in the Cabinet while the Governors are figure heads. They have no choice except to act as per the advise of the Cabinet, which is binding. Therefore if the intent was otherwise then why would Parliament use the same language in Article 239AA (3) & (4). Incidentally this would also cover Cabinet’s advise with regard to Services falling under Entry 70 as shown above. Let us examine the claim to power of the LG. The basis is Article 239AA(4)(Proviso). Whoever has advised the LG did not keep in his vision the above reasons. This is what happens when you read a Constitutional provision in an isolated manner. The ‘Proviso’ first and foremost applies only when there is a difference of opinion between the the LG and Government. Secondly he has to refer the difference of opinion to the President and then only can he act on his own. The whole scope of ‘Proviso” is to be appreciated in the light of the above Articles and the other contexts. This ‘Proviso’ is of limited application as the ‘Provisos’ commonly are. It carves out an exception only in cases where:

(a) Subject matter pertains to List 3(Concurrent)
(b) With regard to his own discretion as in latter part of Article 239 AA(3)
Words ‘difference of opinion….on any matter’ cannot be read as to demolish the other provisions of Article 239AA (3) & (4). If the LG is permitted to differ on any or every issue then there would be no popular Government left to function.

Every time it will have to seek the concurrence of the Governor before it takes any decision. It is therefore completely contrary to the objective of Article 239AA (3) & (4) read with Article 163 & 164. It cannot be taken as meaning that Government has to act with the LG’s approval. It would be most destructive of the most basic of all features of our Constitution. It will put the Government in coma and defeat the very will of the people. Only motivated people can imagine such a distorted construction. It is therefore apparent that those who support the LG are either totally ignorant or are motivated otherwise. This is a terrible fraud on the Constitution and I hope some good sense prevails in the LG and that he stops acting on behalf of the Union Government.

Before dust could settle, Centre has again stepped in to stoke the fire by issuing fresh notification making all the officers aware that Union Territory Government, has no control over them. We may blame Kejriwal for being irresponsible but how do we absolve the Centre from the same charge of irresponsible behaviour. In fact it reflects on the Centre’s desire to not to let elected Government function smoothly otherwise why does it proclaim that UT Government should fulfil its poll promises through officers of its choice. This latest notification of MHA is unconstitutional for the same reasons as the LG’s misdemeanour referred to earlier. Interestingly the notification of MHA accepts that Cabinet System as incorporated in the Constitution is applicable and that power of the Executive is as wide as that of the Legislature. If so then the logic of my analysis stands vindicated. Centre is also committing the same constitutional misdemeanour as the LG by supporting him. There is no element of doubt in my mind that BJP Government is intent on not allowing the elected Government to function unimpeded.

(Dinesh Dwivedi is a Senior Advocate practising in the Supreme Court for the past 15 years, primarily on the Constitutional, Civil and Criminal sides. He has been associated with various important cases including some references to Larger Benches dealing with important Constitutional points. The views expressed by the author are personal.)