Arvind Kejriwal is fighting simultaneous battles on several fronts, against the former core team of the AAP, the central government, Delhi’s lieutenant governor and, worst of all, his own bureaucrats, who are the cutting edge of governance that is necessary to deliver all he had promised. He has a right to choose his adversaries but such acts may shift his focus from core governance.
The rise of the AAP and its leader, Arvind Kejriwal, was like a whiff of fresh air, different from the corrupt cesspool of some of the major political parties. People of this country want this experiment to succeed, where politicians with no prior baggage of quid pro quo commitments govern with no compulsion to satisfy any corporate group or lobby. To succeed, Kejriwal must govern and deliver with efficiency, integrity and alacrity. The voters have shown great maturity to give the AAP a second chance (the first they completely botched up). It’s now the turn of Kejriwal and his team to show some maturity, end the pugnacious posturing and serve the people.
In this war for supremacy between the chief minister and the LG of Delhi, the general view is that an elected CM cannot be subservient to a nominated LG. It goes against the basic tenets of democracy. How can a CM who is accountable to the people not be allowed to even choose his chief secretary and other officers? However, another inherent requirement of a democracy is that all must be governed by “rule of law”. Thus, it is interesting to know what is the law laid down in the Constitution, other relevant Acts and rules about the issue at hand, as the Constitution is suprema lex (above all). Is there a conflict between the theory of supremacy of an elected leader and rule of law? It seems there is and the sooner this conflict is resolved, the better it would be for all.
The matter at hand is quite complicated and has the potential to snowball into a lengthy legal battle. Article 239 AA of the Constitution brought by the 69th amendment, 1991, confers power on the legislative assembly of the National Capital Territory (NCT) to make laws in the State List or in the Concurrent List in so far as any such matter is applicable to a Union Territory. Article 239 AA (3)(a) provides that with respect to entries 1(public order), 2(police) and 18(land) of the State List the legislative assembly of the NCT shall have no powers to make laws. In addition, Article 239 AA (3)(c) makes it clear that laws passed by the legislative assembly of the NCT to the extent they are repugnant to the law made by Parliament regarding that matter would be void.
The scheme of Article 239 AA is lucid. Parliament can legislate on any item in the Union List, i.e. List 1. However, the NCT legislature cannot legislate even on the entries in the State List relating to land, public order and police. We have to keep in mind that executive power coexists with legislative power. Article 239 AA does not grant a complete “statehood” to Delhi but gives limited powers to its Assembly and council of ministers. Therefore, it is vital that the functional relations between the duly elected government in Delhi and the LG should be clearly laid down and should not fluctuate depending on equations between political parties forming governments at the Centre and NCT of Delhi in order to uphold the democratic fabric of India.
Article 239 AA(7) gives the power to Parliament to enact laws which have provisions for giving effect to or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. Accordingly, the Government of National Capital Territory of Delhi Act, 1991, was enacted to supplement the provisions of Article 239AA. Rule 41 of this Act lays down the areas in which the LG can act in his discretion. As per rule 44, the president has approved allocation of business rules (1993) and transaction of business rules (1993). The former has allocated public order, police (including railway and traffic police), internal security to home department and acquisition, development and disposal of land to the land and building department of the NCT Delhi government. In rule No. 23 of the transaction of business rules, it has been made clear as to in which matters the files have to be sent by the chief secretary to the LG through the CM. Thus, the argument that CM and his government have no powers in matters of public order, land and police go against the rules notified by notification no. F S7/1/92 S.I/ vol. III dated 1/12/1993 by the government of India.
As regards the power of the CM/cabinet to decide on the transfer posting of IAS/IPS and other officers, the home ministry has come out with notification no. S.O-1368(E) dated 21/5/15. The notification tries to give a rationale along with the verdict and has erred in both. Firstly, the rationale given to completely keep “services” within the exclusive power of the LG has fallacies. The NCT of Delhi has several officers/staff of various departments whose “services” are supervised by the state government and while it does not have a state public service commission, that fact does not necessarily imply that due to the provision of Art. 239 AA (3)(a) it cannot exercise superintendence, control including transfer posting of officers/staff posted within its jurisdiction. Secondly, rules of allocation of business already notified in 1993, which have allocated business in the field of land, public order and police, cannot be taken away by the notification dated 21/5/15 as rules cannot be amended by executive notifications. In my view, there is need to differentiate between the competent authority that has powers of recruitment, promotion, awarding major punishment, changing service conditions and the competent authority that can make transfer postings, grant leave, etc. The former should be with the government of India/UPSC in case of IAS and IPS officers but the latter should be with the duly elected government of NCT Delhi. Else, it would lead to a situation where power lies with one and accountability with another.
The need is to balance the demands of a maturing democracy to make its leader accountable (which requires powers, including the power to transfer its officers necessary to provide good governance) on one hand and the necessity to provide the central government the required authority to govern the geographical area from where it rules the country.
Although India is quite unique in its form of government, a reference can be made to other countries which have given substantial autonomy in governance to its capital territory/city/district. Despite the fierce counter argument against it many countries like Australia, Argentina and Germany have given substantial legislative and administrative powers to their capital districts/province. In Argentina, for instance, the capital district is an autonomous province with general exception of the federal geographical area.
The writer is a former IAS and runs a law firm in Delhi. He can be contacted at vimalkirti veritas.firm.in