There is an open war going on between the Chief Minister of Delhi Arvind Kejriwal and the Lt. Governor of Delhi Najeeb Jung, over the appointment of acting Chief Secretary Shakuntala Gamlin and the transfer of Principle Secretary (Services) Anindo Majumdar. The Chief Minister has alleged that the Lt. Governor is violating the principles of the Constitution by overriding his orders even though he is the Chief Minister of an elected government. On the other hand, the Lt. Governor states that he has not violated the Constitution by any of his actions. The confrontation between these two constitutional authorities in Delhi has taken a very ugly turn with the Chief Minister refusing to recognise the acting Chief Secretary appointed by the Lt. Governor and the Chief Minister transferring the Principal Secretary (Services) Majumdar without taking approval from the Lt. Governor and even getting the room of Majumdar locked. Who is right? Chief Minister or Lt. Governor? What does the Constitution say? Let me discuss this question by analysing the provisions of the Constitution. Since the provisions of the Constitution itself are very clear on this issue, I do not think there is any need of going into further details of the Transaction of Business of the Government of National Capital Territory of Delhi Rules or other similar rules.
Note: Relevant provisions of the Constitution have been reproduced by me at the end of this article and I will be making reference to those provisions in this analysis.
First of all, let me point out that as per the provisions of Part II (THE UNION TERRITORIES) of Schedule I to the Constitution of India, Delhi is a “Union Territory”, since the very first item in this Part is “Delhi”. Thus, it should be very clear that Delhi is not a “State” under the Constitution and is a “Union Territory”. There should not be any confusion on this issue since on more than one occasion, Arvind Kejriwal has himself demanded that Delhi should be given the status of a full “State” which clearly implies that it is not a “State” at present.
Now, provisions relating to Union Territories are contained in Part 8 of the Constitution.
Article 239 of the Constitution lays down as to how the administration of Union Territories shall be conducted, and its clause (1) is reproduced as under:
“239. Administration of Union territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.”
Thus, it is quite clear from clause (1) of Article 239 that every Union territory shall be administered by the President acting through an administrator to be appointed by him with such designation as he may specify. It may be pertinent to point out that the administrator for Delhi has been designated as “Lieutenant Governor” under clause (1) of Article 239AA of the Constitution, which is reproduced at the end of this article, meaning thereby that Delhi shall be administered by the President through the Lieutenant Governor of Delhi.
Now, under clause (2) of Article 239AA, Delhi has a Legislative Assembly. However, as per the provisions of clause (3) of Article 239AA, while the legislative assembly of Delhi has the power to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List (in Schedule VII to the Constitution) in so far as any such matter is applicable to Union territories, it has no powers to make laws with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. The power to make laws with respect to these excepted entries continues to be fully with the Parliament. These entries (in the State List) are as under:
“1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).
2. Police (including railway and village police) subject to the provisions of Entry 2A of List I.
18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
64. Offences against laws with respect to any of the matters in this List.
65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
66. Fees in respect of any of the matters in this List, but not including fees taken in any court.”
Thus, the legislative assembly of Delhi does not have any power to make laws on the subjects of public order, police, land; moreover, it has no powers to make laws with respect to offences, jurisdiction of courts and fees relating to public order, police and land.
Further, it is germane to point out that as per the provisions of sub-clause 3(b) of Article 239AA, notwithstanding the above powers of the legislative assembly of Delhi, the Parliament still continues to have full powers to make laws for Delhi on any of the subjects. Moreover, sub-clause 3(c) of Article 239AA further lays down that if there is a conflict between the law made by the legislative assembly of Delhi and the Parliament of India on the same matter, the law made by the legislative assembly shall be void to the extent of repugnancy.
Therefore, it should be quite clear that notwithstanding the fact that Delhi has a legislative assembly having certain powers of making laws, the Parliament continues to have full powers to make laws for Delhi and a law made by the Parliament shall override and supersede a law made by the Delhi legislative assembly on the same matter. It should, thus, be clear that powers of Delhi legislative assembly are quite limited when compared with the powers of the legislative assembly of a full-fledged State such as Rajasthan or Maharashtra, etc.
Let us now turn to the provisions contained in Article 239AA relating to Council of Ministers for Delhi.
Firstly, clause (4) of Article 239AA says that there shall be a Council of Ministers with the Chief Minister at its head. Clause (5) says that the Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
A student of constitutional law will immediately notice that this provision is entirely different from the provision of the Constitution (relating to Chief Minister and other ministers) in this regard for a full-fledged State such as Rajasthan or Maharashtra. In respect of a full-fledged State, Article 164 of the Constitution lays down that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. Thus, in the case of Delhi, the Chief Minister is not appointed by the Lieutenant Governor of Delhi but by the President of India, unlike in a full-fledged State where the Chief Minister (and other ministers) are appointed by the Governor and hold office during his pleasure. Therefore, it is again clear that Delhi is not like other States. President of India administers Delhi, it being a union territory.
Let me revisit clause (4) of Article 239AA since this is the most important provision relating to the issue being analysed in this article. Clause (4) is reproduced as under for a ready reference:
“(4) There shall be a Council of Ministers consisting of not more than ten per cent 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:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”
Following principles of law can be deduced from this provision:
- The Council of Ministers is to aid and advice the Lieutenant Governor (this provision is similar to that existing in a full-fledged State).
- Notwithstanding such aid and advice rendered by the Council of Ministers to the Lieutenant Governor, the latter is empowered to act in his own discretion “in so far as he is, by or under any law, required to act in his discretion” (this provision is also similar to that existing in a full-fledged State).
- However, the most important difference between a full-fledged State and Delhi is noticed in the Proviso to the aforesaid clause (4). And, this is very IMPORTANT. In the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President. Moreover, pending such decision, the Lieutenant Governor is empowered in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
I may point out that the Proviso to the aforesaid clause (4) to Article 239AA, thus, gives an overriding power to the Lieutenant Governor of Delhi over the Chief Minister (and his Council of ministers) on any matter, irrespective of whether or not such matter relates to public order, police on land. This is important.
It may further be noted that reference to the President basically implies, reference to the Department of States under the Ministry of Home Affairs (excepting matters relating to “land” where the reference will be to the Ministry of Urban Development) in terms of the Second Schedule (“Distribution of Subjects among the Departments”) read with Rule 3 of the Government of India (Allocation of Business) Rules, 1961, made by the President in exercise of the powers conferred by clause (3) of article 77 of the Constitution.
It is noteworthy that the Governor of a full-fledged State does not have a similar power to override the decision of the Chief Minister or his Council of ministers. The power of the Lieutenant Governor of Delhi in this regard is thus much different from the powers given to the Governor of a State.
It should thus be clear that when there is a difference of opinion between the Lieutenant Governor of Delhi and his Council of ministers on any matter, the Lieutenant Governor has the power to refer that matter to the Ministry of Home Affairs or Ministry of Urban Development (which acts on behalf of the President, in accordance with the rules of business framed under Article 77 of the Constitution). And, in such matter, the Lieutenant Governor is then required to act as per the decision of the Ministry of Home Affairs etc. (i.e., the President). Moreover, wherever an urgent action is required, the Lieutenant Governor of Delhi can suo motu take such action or give such direction in the matter as he deems necessary pending the decision of the President on such matter.
I am not going into the details of other provisions in the Constitution or the provisions of the relevant rules of business applicable to the National Capital Territory of Delhi. That is not necessary. The Constitution itself makes the issue very clear.
From the above analysis, it should thus be unequivocally clear as under:
- Normally, the Lieutenant Governor is required to act as per the aid and advice of the Chief Minister and his Council of ministers.
- In certain matters, the Lieutenant Governor is required to act as per his own discretion, wherever it is required under any law (such as, in the matter of appointment of Chief Minister, since the Lieutenant Governor cannot be expected to take the advice of the existing Chief Minister in the matter of appointment of the next Chief Minister, i.e., he has to go by the majority in the legislative assembly).
- Wherever there is a difference of opinion between the Lieutenant Governor and the Chief Minister (and his Council of ministers), the Lieutenant Governor has the power to refer the matter to the President and then act as per the decision of the President. In such cases of difference of opinion, where an urgent action is needed, the Lieutenant Governor can suo motu take such action or give such direction in the matter as he deems necessary.
- Thus, the Lieutenant Governor of Delhi has overriding powers over the Chief Minister of Delhi (and his Council of ministers). This is mainly due to the fact that Delhi is a Union Territory and it is required to be administered by the President to the Lieutenant Governor. A Union Territory is NOT required to be administered by the Chief Minister, though he may have some powers under the Constitution as mentioned above. This is as per the provisions of the Constitution itself.
- Moreover, while it is true that the Delhi Government is elected by the people, the fact remains that the Central Government (which exercises the powers in the name of the President in a Union Territory) is also elected by the people and it is the Central Government (i.e., the President) which is empowered under the Constitution to “administer” the Union Territories though the Chief Minister also has some powers, whether or not one likes.
In view of the aforesaid reasons, I am of the considered opinion that the Lieutenant Governor of Delhi Najeeb Jung has acted within the limits of his powers under the Constitution when he superseded the decision of the Chief Minister of Delhi Arvind Kejriwal.
Before I end, let me make it clear that what has been discussed in this article is with regard to the legality or constitutionality of the actions taken by the Lieutenant Governor and/or the Chief Minister of Delhi. I have not endeavoured to comment on the moral or ethical aspects of the actions, i.e., whether a particular decision taken by the Lieutenant Governor and/or the Chief Minister is ethically and morally correct, notwithstanding the fact that such decision may be constitutionally valid.
Relevant provisions of the Constitution:
“239. Administration of Union territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”
“239-AA. Special provisions with respect to Delhi.—(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.
(c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in Articles 326 and 329 to ‘appropriate Legislature’ shall be deemed to be a reference to Parliament.
(3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more than ten per cent 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:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
(5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.
(7)(a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.
(8) The provisions of Article 239-B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that article to ‘clause (1) of Article 239-A’ shall be deemed to be a reference to this article or Article 239-AB, as the case may be.”
