“The perception that Article 239AA is the only provision relevant to the stand-off between the L-G and the chief minister of Delhi is born out of ignorance. And so is the perception that the Delhi legislature has all the powers of a state except specifically excluded items like public order, police, land and others which are with the Centre. The crucial words in Article 239AA (3)(a) are “in so far as any such matter is applicable to Union Territories”. Delhi, thus, remains a UT for all practical purposes. Mr Kejriwal has to take it or leave it; he can’t change it through histrionics.” – K. N. Bhat
Delhi chief minister Arvind Kejriwal appears to be a classic case of triumph of hope over experience. As recorded in recent history, his first marriage with the office of Delhi chief minister was solemnised on December 28, 2013. It lasted all of 49 days. During that brief period too he had a running feud with the lieutenant-governor over, among others, the issues of prior consent of the L-G before the Jan Lokpal Bill could be tabled in the Assembly. It is a different matter that the bill did not take a shape till the night before it was tabled (only to be aborted soon). There were enough occasions for Mr Kejriwal to internalise the fact that the
L-G of Delhi is not like a governor of a state; the L-G is the real centre of power in the hybrid arrangement for Delhi. India under the Constitution as originally brought into force in 1950 consisted of three types of states — the provinces in the British India as Part A states, the maharajas’ kingdoms as Part B states and Part C states being centrally administered areas. Delhi, a Part C state till 1956 when the states were reorganised on linguistic basis, continued to be administered by the Central government as a Union Territory.
As can be gathered from the statement of objects and reasons attached to the Constitution (69th Amendment) Act, 1991, that brought the National Capital Territory (NCT) into existence, an expert committee appointed by the Government of India on December 24, 1987, submitted its report a couple of years later after elaborate consultations and considerations of the positions of national capitals world over in federal set-ups. It recommended that Delhi should continue to remain a Union Territory, but be provided with a Legislative Assembly and a Council of Ministers with appropriate powers to deal with matters that concern the common man. To give effect to this proposal the Constitution 69th Amendment Act — Article 239AA — was enacted. As a result the UT became NCT and its administrator became L-G. The excitement of a full-fledged election for the Legislative Assembly leading to the installation of Council of Ministers headed by a chief minister was added, but with very limited power. So the NCT was really a UT with some facade of a “state”. It was a hybrid, sui generis. In the first schedule of the Constitution, Delhi is still classified as a UT. So all efforts to draw conclusions by taking Delhi to be a mini Haryana are bound to result in absurdity.
The perception that Article 239AA is the only provision relevant to the stand-off between the L-G and the chief minister of Delhi is born out of ignorance. And so is the perception that the Delhi legislature has all the powers of a state except specifically excluded items like public order, police, land and others which are with the Centre. The crucial words in Article 239AA (3)(a) are “in so far as any such matter is applicable to Union Territories”. Delhi, thus, remains a UT for all practical purposes. Mr Kejriwal has to take it or leave it; he can’t change it through histrionics.
Contemporaneously with the 69th Amendment, the Government of National Capital Territory of Delhi Act, 1991, was enacted by Parliament and came into force on January 2, 1992. Article 239AA came into force one month later, on February 1, 1992. The 1991 Act’s Section 41 specifically deals with the subject of discretion of the L-G and matters where he is bound by the aid and advice of the Council of Ministers.
It provides that the L-G “shall act in his discretion” in matters that fall outside the purview of the powers conferred on the legislature and matters delegated to him by the President. The language of Article 239AA (4) is to similar effect. Appointment of an official is not a matter for legislative action. The 1991 Act has the same force as a constitutional provision as long as it is in the book. In addition, the President promulgated Rules of Procedure and Conduct of Business in exercise of his powers under Section 44 of the 1991 Act for carrying out the business of governing. They elaborately deal with the administrative mechanics. Further, there are directives issued from time to time.
These along with Article 239AA constitute laws governing the NCT administration. Yes, there are voices that the 1991 Act, the rules and directions are opposed to the Constitution. But until declared invalid by a competent court, they are binding on the L-G, Mr Kejriwal and all the TV pundits. Expressing categorical opinion on the basis of 239AA alone, that parliamentary democracy is the same in Delhi as it is in Punjab and that the L-G exceeded his limits and should, therefore, resign, is like a blind man pronouncing on the shape of an elephant.
The laws are clear. The appointment of an acting chief secretary is not a subject on which the Delhi Assembly can legislate. Under the applicable laws the L-G of Delhi holds a unique position and his powers are immense. Power of an office is not a matter of conjecture — it is a matter of law. In the present context, the L-G acted within his powers and rightly.
The legal position regarding Delhi has not changed even a bit since Mr Kejriwal had a practical lesson or two about the lieutenant-governor’s powers during his 49-day tenure. Still he decided to enter into the same bond that he could not sustain the first time. No one offered him better conditions, still he jumped into the election fray, making taller promises. He probably never expected to win. But he did and now he wants full statehood to Delhi for fulfilling his promises. Even Mr Kejriwal would know that 70 MLAs of Delhi cannot decide the fate of the capital of a country of over 100 crore people.
Political analysts appear to be right in their suspicion that Mr Kejriwal may be getting ready to tie his shoelaces once again. Otherwise it is difficult to understand why an IIT-graduate reacted to a temporary arrangement in the manner he did — that too when he has a long way to go.
» The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at firstname.lastname@example.org