Headline writers are having a field day as Delhi Lieutenant Governor Najeeb Jung and Chief Minister Arvind Kejriwal battle it out over the appointment of Shakuntala Gamlin as acting Chief Secretary.

Jung made the appointment while Delhi Chief Secretary KK Sharma was away in the United States on a personal visit. His decision immediately invited Kejriwal’s ire. “I would strongly request and urge you to remain within the confines of the Constitution and the laws relating to government of the National Capital Territory of Delhi,” thundered Kejriwal in a strongly-worded letter sent to Jung.

A look at the provisions Kejriwal is referring to helps demonstrate why this is no ordinary jung, but a full-blown constitutional crisis in the offing.

Special provisions for Delhi

On February 1, 1992, the Union Territory of Delhi was renamed the National Capital Territory of Delhi. Under Article 239 of the Constitution, every union territory is to be administered by the president acting through an administrator appointed by him. In the case of Delhi, by virtue of Article 239AA of the Constitution, the administrator appointed under Article 239, currently Najeeb Jung, is designated as the lieutenant governor.

But unlike in other union territories, the powers of Delhi’s lieutenant governor are circumscribed by the presence of a legislative assembly whose members are chosen by direct election in the territorial constituencies in the National Capital Territory of Delhi. Kejriwal and his Aam Aadmi Party had won this election earlier this year, capturing 67 of the 70 seats in the Assembly.

To act as a conduit between the Legislative Assembly and the L-G, Article 239AA (4) of the Constitution provides that:
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.

What this means is that the lieutenant governor, in the exercise of his functions relating to matters that fall within the purview of the legislative assembly, is to be guided by the council of ministers (headed currently by Kejriwal in his capacity as chief minister). However, the lieutenant governor is not bound by the council of ministers’ advice where he has the power to act in his discretion.

Therefore, in assessing the constitutionality of Gamlin’s appointment as acting chief secretary, what needs to be determined is whether the lieutenant governor was acting in his discretionary capacity. In order to effectively answer this question, it is first necessary to examine the laws relating to the National Capital Territory of Delhi in conjunction with Article 239AA.

Laws relating to NCT

The powers of a legislative assembly are found in the Seventh Schedule of the Constitution. The Union list of the Seventh Schedule lists matters falling within the exclusive legislative competence of the Union. The State list lists those matters that fall within the exclusive legislative competence of the States. And the concurrent list lists matters to which the executive power of the both the Union and the States extends.

As the National Capital Territory of Delhi is not a full-fledged State, Article 239AA (3) explicitly grants its legislative assembly the power to make laws with respect to all but three entries in the State list. These entries relate to public order, police and land. It is because of this exception that the Delhi Police is under the control of the Union government and not the Delhi government.

Thus, following on from Article 239AA (4) (quoted above), the lieutenant governor is to act in his discretion as far as matters relating to public order, police and land are concerned. In all other matters, he is to act on the aid and advice of the council of ministers. The question for consideration, therefore, is simply this: Is the appointment of the chief secretary related to public order, police and land? The answer is no.

Rules of transaction

With Delhi Chief Secretary KK Sharma away in the US on a personal visit, the lieutenant governor issued instructions directly to the Principal Secretary (Services) Anindo Majumdar to give Gamlin the additional charge of chief secretary of Delhi.

Kejriwal alleges that the actions of Jung are unconstitutional and violates both the Transaction of Business Rules and the Government of the National Capital Territory of Delhi Act, 1991.

The Transaction of Business Rules, as the name suggests, were drafted with the intent of regulating the procedural nuances that govern the relationship between the lieutenant governor and the council of ministers. Under Rule 4(2), the minister in charge of a department shall be primarily responsible for the disposal of the business pertaining to that department.

As far as the appointment of the chief secretary is concerned, the minister in charge is Deputy Chief Minister Manish Sisodia, who holds the services portfolio. Under Rule 14 of the Transaction of Business Rules, the proposal for the appointment of the acting chief secretary should have been approved by the council of ministers and then sent to the lieutenant governor by the secretary to the council, who in this case is Majumdar. Instead, the converse happened. This was a clear contravention of the TBR by the lieutenant governor’s office.

Delhi’s identity crisis

It would be unthinkable for the governor of Uttar Pradesh to notify the appointment of a chief secretary by completely bypassing a democratically elected chief minister and his cabinet. And yet, this is precisely what has happened in the case of Delhi.

Jung could argue that the appointment of an acting chief secretary is a matter that is not dealt with by the Transaction of Business Rules, and according to Rule 47 the lieutenant governor must take instructions from the central government in such matters. Jung could also find support from Section 41 of the Government of the National Capital Territory of Delhi Act to argue that the appointment of an acting chief secretary is a matter that falls outside the purview of the powers of the legislative assembly, thereby giving him the discretionary power to make the appointment by acting on the instructions of the central government.

Putting aside legal technicalities, the question that remains is: how can a chief minister be expected to run a state without a chief secretary of his or her choice? But therein lies the nub – Delhi is not a state. This at least seems to be the official line of the Bharatiya Janata Party, which just a few months ago had invested all its energies into winning the Delhi Assembly elections.

One of BJP’s most prominent leaders, Arun Jaitley, recently chided the Delhi voter for causing the current crisis by “experimenting” with AAP. A party spokesperson, demeaning the constitutional status of the capital, referred to it as a municipality and Kejriwal as a glorified municipal leader.

It’s unfortunate that matter have come to such a pass. Delhi deserves better. Delhi’s democratically elected chief minister deserves better.