DC discusses Lt Governor and Delhi government fracas

CM’s claims are unlawful
The mysterious ways in which the Indian Constitution and democracy function once again came to light with the recent controversy surrounding the administration of Delhi. Under Art 1(3) of the Constitution, the territories of India comprise the territories of the ‘States’ and the ‘Union Territories’ specified in the First Schedule.

In the First Schedule of the list of Union Territories, Delhi is still one of the UTs. With effect from November 1, 1956, by the Constitution (seventh amendment) Act, 1956, these territories, which were in ‘Part C States’ in the First Schedule, were named as UT. Under Art 239 of the Constitution, every UT shall be administered by the President via an administrator to be appointed by him. The Delhi Administration Act, 1966, governed the administration of the Delhi UT till that Act was repealed by the Government of National Capital Territory of Delhi Act, 1991. The Act came into force with effect from February 1, 1992.

This Act is consequential to the Constitution (69th Amendment) Act, 1992, which also came into effect on the same date. By this Constitutional Amendment, Art 239AA was introduced. This amendment did not bring any change in the status of Delhi as a UT under the Constitution of India.

With this Amendment, the Delhi was made a ‘National Capital Territory’ with the essential features of a UT. The retention of ‘Delhi’ in the List of UTs under Schedule I is ample proof of the intention of Parliament in this regard. Therefore, it has to be noted that the NCT of Delhi is essentially like any other UT under the Constitution and is bound by the administration by the President through his appointee.

It is noteworthy to mention that initially in 1998, and latter in 2003, there were proposals (Delhi Reorganisation Bill) to bring in appropriate legislation to give full statehood to Delhi. It did not materialise. A UT cannot be classified on par with a State as per the Constitution.

Under Clause 4 of Art 239AA, the Council of Ministers of the NCT of Delhi, with the Chief Minister at the head, is to aid and advise the Lieutenant Governor in exercise of his functions. This is so in respect of matters which are in the domain of the Legislative Assembly of the NCT.

In respect of other matters, where the LG, by law, is required to act in his own discretion, he may do so. These provisions sufficiently show the supreme authority of the LG on the administration of NCT. The elected Assembly and the Council of Ministers should act in accordance with the Act and the Constitution. When the proposal for statehood could not be achieved in accordance with law, the same cannot be asserted by the elected Assembly or the Council of Ministers.

There is no doubt that in a complete statehood, a chief secretary should and can be the choice of the CM. But such convention or practice can never have any application in the present controversy. Looking from any angle, the claim raised by the CM cannot be lawfully supported.

What was not achieved legally (complete statehood) cannot be asserted by raising this sort of controversy. The beauty of rule of law is that even the mightiest of governments with their absolute majority cannot transgress their powers and have to abide by the limits imposed by Constitution and the relevant law. S.S. Prasad Senior advocate, Hyderabad HC and SC

CS must enjoy CM’s trust
The controversy surrounding the appointment of chief secretary of the Government of National Capital Territory, Delhi, was wholly avoidable. Parliamentary democracy is part of the basic structure of the Constitution. Over 40 years ago, a Constitution Bench of the Supreme Court in the case of E.P. Royappa (former chief secretary of Tamil Nadu), declared that the post of CS is a highly sensitive post. “It is a post of great confidence — a lynchpin in the administration — and smooth functioning of the administration requires that there should be complete understanding between the CS and the CM. The CM is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures.”

The Central government does not appear to appreciate the scheme of the Constitution and the law. Delhi has been a UT, administered by the President through the Lt. Governor. In 1992, the Constitution was amended and a provision was made for an elected Legislative Assembly and a Council of Ministers responsible to the Assembly, to aid and advice the LG in all matters except three subjects — “public order”, “police” and “land”. Appointment of the CS is not directly related to any of these subjects.

The Legislative Assembly of NCT is competent to make laws with respect to “State Public Services”. Therefore, the Council of Ministers is competent to advise LG about appointments and postings of civil servants. Although the CS is always a member of an All India Service (IAS), controlled by the Centre, posting of IAS officers allocated to the state or UT is within the exclusive power of the state government under Rule 7 of the IAS (Cadre) Rules.

It follows that according to the Constitution and the law, the CS needs to be an officer who enjoys the confidence of the CM, not the Central government. However, there is an exception carved out to this Rule in proviso to Article 329 AA (4), in the case of NCT, to the effect that if there is difference of opinion, the LG shall refer the case to the President for decision, and if the matter is so urgent, the LG can take necessary action provisionally.

It is a settled law that an exception cannot have a larger role than the rule itself. The present case does not appear to be an exceptional one. Section 41 of the Government of NCT of Delhi Act, 1991, specifies the matters in which the LG may act in his discretion. The appointment of CS is not one such matter. The very purpose of providing for an elected Assembly and a Council of Ministers is to allow the people of NCT to govern themselves. As held by the court in Royappa’s case, for proper governance, it is necessary that the CS enjoys the confidence of the CM. This is a Constitutional requirement.

One can understand if the objection is to a particular officer on the ground that his/her record is bad or there are allegations about their conduct or integrity or they lack the potential to provide leadership, in which case the proper course would be to request the CM to choose another senior officer. Such is not the case here. Politicisation of Raj Bhavans and Secretariats is against the tenets of the Constitution and the recommendations of Justice Sarkaria Commission. The Centre cannot rule the government of NCT by remote control. P.P. Rao, Senior advocate,  Supreme Court