Delhi Constitutional Crisis: Overview & LG’s Constitutional Rights

Delhi Constitutional Crisis: Overview & LG’s Constitutional Rights

Question: There is disagreement between Delhi’s current LG Najeeb Jung and CM Arvind Kejriwal regarding the appointment of the acting chief secretary. Provide an overview of the constitutional crisis that has arisen in Delhi and the constitutional rights of the LG.

Nature of Constitutional Crisis

• Partial statehood in Delhi holds that the government should work hand in hand with a non elected LG

• Article 239AA and AB of the Constitution grant the LG more discretionary powers than Governors in other states

• Clause 4 of the article holds there should be a CoM to aid and advise the LG except when he acts in his discretion

• The Indian Constitution lacks a specific provision for the appointment of the Chief Secretary

• As per the law, in case the LG has a difference of opinion with Ministers, the matter has to be referred to the President

• Following the Presidential decision, LG can take immediate action if the matter is urgent

• However, as per the Transaction of Business Rules for the government of Delhi, process of initiating appointment of Chief Secretary has to be done by the CoM

• Another key issue is that partial statehood involves compromises in governance

• Ambiguity of the powers of the state government as against that of the LG takes a deeper turn as Delhi is not completely a state and as per Schedule 1 of the Constitution, it also continues to be a UT

• According to those supporting the CM’s stand, Delhi has its own elected assembly therefore the State Assembly has the right to legislate on all subjects except certain ones such as law and order as well as land

• In case of conflict between law enacted by Delhi Assembly and Parliament, the latter prevails

• But since the Delhi CM is not heading the government of the state in the complete sense of the term, his powers are limited

• Article 239AA which was inserted by the 69th AA came into force in 1992 and read with the Government of NCT Delhi Act and Transaction of Business of the Government of NCT of Delhi Rules 1993, it creates more ambiguity regarding this constitutional tussle
• Some legal experts say Delhi government may have a case if the constitutionality of NCT of Delhi Rules s challenged by it

• This is not the first tussle between CM and LG; Both also disagreed with respect to implementation of A239AA regarding Government’s approval to introduce the Jan Lokpal Bill in the Delhi Assembly

• The Transaction of Business Rules also can be differentially interpreted.

Constitutional Rights of the LG

• LG has vast powers as per these rules but he should also consult the CoM in case of any difference of opinion

• While obeying the directive of the LG, the Secretary of the Department is duty bound to “simultaneously inform the Minister-in-Charge of the Department of the action taken by him”

• LG is also empowered to seek data pertaining to any matter “which is likely to bring the Government of the Capital into controversy with the Central Government or with any State Government”

• For matters where a specific provision is missing, LG should consult the Centre; the Union Ministry of Home plays a key role in the crisis therefore

• Rule 45 dealing with the executive functions of the LG allows him to exercise power in matters pertaining to public order, police and land in consultation with the CM in case of order issued by President under A239

• Rule 46 holds that for persons serving in connection with NCTD administration, LG should exercise powers and perform functions entrusted to him under provisions of rules and orders regulating service conditions of such persons in a manner which is consistent with order of President in consultation with the CM

• In case of difference of opinion between Minister and LG, the latter should try to settle the matter through discussion

• If the matter is referred to the President via the central government, LG can direct action to be suspended till Presidential order

• For matters requiring urgent action, LG can direct particular action which minister must obey without question

Facts and Stats

• As per Clause 55 (2) subject to instructions issued by the central government, LG is bound to make prior reference to centre with respect to appointment of:

- Chief Secretary
- Commissioner of Police
- Secretary (Home)
- Secretary (Lands)

• Clause 56 states that procedure to be followed if LG refers matter to Centre is that future action should not be taken except in consultation with Centre

• Legal experts have asked Delhi CM to challenge the LG in court regarding constitutionality of clause 55
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  • RE: Delhi Constitutional Crisis: Overview & LG’s Constitutional Rights -rahul (06/02/15)
  • But Delhi Police reports to the Ministry of Home Affairs,GoI. So how come LG appoints the Commissioner of Police?
  • RE: Delhi Constitutional Crisis: Overview & LG’s Constitutional Rights -sajid Akhter (05/26/15)
  • LG should not cross the constitutional right .