NEW DELHI: Joining a growing league of legal experts, eminent lawyer Indira Jaising today supported the AAP government in its ongoing tussle with the Lt Governor, terming the Centre's notification giving absolute powers to the LG in appointment of bureaucrats as "patently unconstitutional".
In a statement, she said the notification "usurps" the legislative power of State as allocation of work to public servants was an administrative and executive function of the Delhi government.
"The notification, dated May 21, 2015, is ultravires the power of the Central Government and the President. The Government of NCT, Delhi has the power to legislate on the matters covered by Entry 41 and hence co-extensive executive powers," she said.
The notification issued day before yesterday had also clarified that the LG need not "consult" the chief minister on subjects like police and public order.
The Anti-Corruption Bureau of the Delhi government has also been barred from registering any case against officers and political functionaries of the central government.
"In my opinion since the premise on which the operative part of the notification is based is unconstitutional, the said operative direction is also patently unconstitutional," she said.
After AAP government sought their opinion, constitutional expert K K Venugopal and former Solicitor General of India Gopal Subramanium had yesterday questioned the very foundation of the gazette notification issued by the Home Ministry and wondered whether it had requisite approval of the President.
Jaising said the central government, or the President, has no power to delegate the exercise of power and discharge of functions in matters relating to "Services" to the LG.
"Even otherwise and if one assumes that the notification has effect on the service of public servants and hence 'Service' will be excepted... the power to transfer and make postings are not part of the conditions of service and hence can still be made by NCT of Delhi," she added.
The appointment of senior bureaucrat Shakuntala Gamlin as acting Chief Secretary by the LG last week had triggered a full-blown war between the ruling AAP and the Lt Governor, with Kejriwal questioning the LG's authority and accusing him of trying to take over the administration.
In the notification, the Home Ministry said that the LG will have jurisdiction over matters connected with services, public order, police and land and he may consult with the chief minister whenever he thinks necessary in issues of services using his own "discretion".