Pavan Bhushan examines the law relating to what powers the law provides for Lieutenant Governor of Delhi and argues that the bid for Delhi’s statehood has been compromised by the recent fracas.
In the last couple of weeks, the escalating conflict between the Chief Minister of Delhi and the Lieutenant Governor of Delhi has led to several questions regarding the powers of the Government of the National Capital Territory (NCT) of Delhi and the Union Government to administer the NCT of Delhi.
The current dispute really is about who, between the Chief Minister and the Lt. Governor, has been empowered by the Constitution to carry out posting of Civil Servants in the NCT of Delhi. This recent public battle has also led to the in-principle question of whether Delhi should be made a ‘State’.
The Law on the Subject
The National Capital Territory (NCT) of Delhi is a Union Territory. In 1991, The Parliament, through the sixty ninth Constitutional Amendment Introduced Art. 239AA (Special Provisions with respect to Delhi) and conferred the right upon the people of the NCT of Delhi to elect their own Legislature and Government to make laws under certain entries of the State list of the seventh schedule of the Constitution and execute these laws respectively.
This Amendment did not confer full statehood upon Delhi. Clause 3(a)i of Article 239AA states that the Legislative Assembly of the NCT of Delhi “shall have power to make laws for the whole or any part of the NCT with respect to any of the matters enumerated in the State List [Except matters with respect to Entries 1 (Public Order), 2 (Police) and 18 (Land)] or in the Concurrent List in so far as any such matter is applicable to Union Territories…”.
The words ‘in so far as any such matter is applicable to Union Territories’ further narrow the scope of Legislation on entries of the State List of the seventh Schedule of the Constitution.
All those entries apart from 1, 2 and 18 of the State List that are not applicable to Union Territories will be outside the jurisdiction of the Legislative Assembly of the NCT of Delhi.
For example, Entry 41 of the State List empowers states to legislate on State Public Services and State Public Service Commission. But Union Territories do not have any separate Public Service Commission and officers in Union Territories qualify through the Union Public Service Commission (UPSC) and belong to the Union Territory Civil Services (AGMUii Cadre of IAS/IPS and DANICSiii).
Thus, Entry 41 of the State List is not a matter applicable to Union Territories and the Legislative Assembly of the NCT of Delhi cannot Legislate under Entry 41.
Clause 1 of Article 239 of the Constitution states that “Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify”.
Article 74 of the Constitution clearly provides that the President shall Act in accordance with the aid and advise of the Union Executive.
Clause 1 of Article 239AA of the Constitution states that the Administrator appointed under Article 239 shall be designated as the Lieutenant Governor.
Clause 4iv of Article 239AA provides for the Executive of the NCT of Delhi and empowers the Council of Ministers headed by the Chief Minister to aid and advise the Lt. Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws. Even this power of the Council of Ministers headed by the Chief Minister to aid and advise the Lt. Governor extends only to the matters with respect to which the Legislative Assembly of the NCT of Delhi has power to legislate and not beyond these matters.
The proviso to Clause 4 of Article 239AA further tilts the balance of power in favour of the Lt. Governor as it clearly states that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
In order to supplement the sixty ninth Amendment to the Constitution, the Parliament also enacted The Government of National Capital Territory of Delhi Act, 1991. Section 41v of the NCT Act clearly confers wide discretionary power upon the Lieutenant Governor of Delhi and this discretion is for all matters that fall outside the purview of the powers conferred on the Legislative Assembly and in respect of which powers or functions are entrusted or delegated to him by the President.
Clause 2 of Section 41 provides that If any question arises as to whether any matter is or is not a matter in which the Lt. Governor is required to exercise his discretion, the decision of the Lt. Governor thereon shall be final.
Section 44vi empowers the President to make rules for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers.
Therefore, the Lt. Governor has to act on the aid and advise of his Council of Ministers only with respect to those matters for which the Legislative Assembly has been empowered under article 239AA of the Constitution. In Exercise of these powers, the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 were made by the President.
Rule 46vii of these Rules, which is in respect to persons serving in connection with the administration of the NCT of Delhi, provides that the Lt. Governor shall exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons.
As mentioned above, Civil Servants serving in the NCT of Delhi and other Union Territories are IAS officers of the Joint AGMU Cadre or part of DANICS. The Cadre Controlling Authority of AGMU Cadre and DANICS is the Union Home Ministry. The Rulesviii governing DANICS have been framed by the President Under the proviso to Article 309 of the Constitution.
The Legislative Assembly of the NCT of Delhi is not empowered to legislate on state public services or any civil service. Rule 12ix of these rules confer the Lt. Governor (The Administrator) with the duty of posting every member of the Union Territory Civil Service (DANICS) allocated to an ‘Administration’ (NCT of Delhi, in this case) to a duty post under the administration.
The Union Home Ministry framed guidelines for transfer and posting of IAS/IPS officers of AGMU Cadre in 2010. Clause 9 and Clause 11 of the Policy empower the Home Minister to take the final decision in accordance with the general policy laid down.
The Consultation of the Home Minister with Chief Minister provided in Clause 9(i)x is only with respect to Chief Minister of a State and not a Chief Minister of a Union Territory. Clause 11, to make it abundantly clear, states that Notwithstanding anything contained in the policy, the Government (MHA) has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest.
To summarise a combined reading of the above provisions: The ‘administrator’ of a Union Territory has been given the task of posting civil servants of the Union Territory to a duty post. The ‘administrator’ of the NCT of Delhi is the Lt. Governor. The Executive or Legislature of the NCT of Delhi is not empowered to carry out any postings of Civil Servants as the Constitution has not conferred upon them any such power.
In fact, Article 309 of the Constitution and Rules made thereunder empower the Lt. Governor of Delhi. Further the guidelines for transfers/postings of IAS/IPS officers of AGMU Cadre empower the Union Home Ministry to transfer and post officers. The power to approve such transfers and postings has been conferred by the President (Union Home Ministry) to the Lieutenant Governor (administrator) under Article 239(1) by way of an Executive Orderxi.
Thus, the Law with respect to the transfers and postings of Civil Servants under the AGMU Cadre and DANICS services is clear and the competent authority to order such postings is the Lt. Governor or Union Government as the case may be and Not the Chief Minister or any other official of the Govt. of NCT of Delhi.
Though this recent episode between the CM and the Lt. Governor has reopened the debate on Delhi being made a ‘State’, it is likely to result in an even more cautious approach of the Parliament and the Union Executive towards conferring full statehood upon Delhi.
Even in the US, the Washington, District of Columbia (DC) was formed by taking land from two states to ensure that the National Capital would be smoothly governed by the Federal Government.
The unfortunate aspect of this whole controversy has been that the otherwise legitimate demand for Delhi to be made a ‘State’, subject to the Central Government and Diplomatic Enclaves being outside the purview of the State Government, is likely to be set back by several years due to the ham-handed and whimsical manner in which the Chief Minister of the Government of the NCT of Delhi has handled this issue.
Pavan Bhushan is a final year student in the three-year LLB at the Campus Law Centre, Faculty of Law, University of Delhi. The author thanks Prashant and Shanti Bhushan for their valuable feedback and inputs.
Photo by kabi1990
Footnotes
i Article 239 (3)(a) of the Constitution: “(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”
ii AGMU: Arunachal Pradesh, Goa, Mizoram and Union Territories
iii DANICS – Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services
iv Article 239 (4) of the Constitution: “(4) 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:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.”
v S. 41 of the NCT Act, 1991 : “Matters in which Lieutenant Governor to act in his discretion:
(1) The Lieutenant Governor shall act in his discretion in a matter: -
(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President ; or
(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
(3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.”
vi S.44. of the NCT Act : “Conduct of business :
(1) The President shall make rules :
(a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and
(b) for the more convenient transaction of business with the ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.”
vii Rule 46. “46. (1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause (3) of article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public Services Commission unless authorised to do so by the Central Government.
(3) All correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.”
viii Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli (Civil Service) Rules, 2003
ix Rule 12 of DANICS Rules, 2003: “12. Posting.-
Every member of the Service allocated to an Administration shall, unless he is appointed to an ex-cadre post, or is otherwise not available for holding a duty post owing to the exigencies of the public service, be posted against a duty post under the Administration by the Administrator concerned.”
x Clause 9 of AGMU transfer/posting Policy, 2010: “9. The transfer/posting Policy will be operated as follows: (i) The transfer and postings of Chief Secretary/Administrator and the senior most police officer heading the police force in State/UT may be decided with the approval of Home Minister in consultation with Chief Ministers of States concerned. A panel of 3 names can be suggested to Chief Ministers of the States, who may convey their response with reasons thereof on the panel within a period of 15 days. After considering the response received from the Chief Minister, the MHA may issue the orders for posting of Chief Secretary / Administrator / Director General of Police. In case no response is received within a period of 15 days, the MHA may decide the matter at its own level. The transfer and posting of other officers may be decided at the level of Home Secretary, except in the case of Junior Scale officers whose transfer and posting may be decided by Joint Secretary (UT).”
xi Order No: F. 57/3/94-S.I dated 09.04.1994
threads most popular
thread most upvoted
comment newest
first oldest
first
However, it assumes the following.
1. The appointment of civil servants by the Lt. Gov was deviod of any politics.
2. It was worth the time and energy of the Lt. Gov to go against the choices made by the CM and appoint civil servants to whom the CM was strongly against. Something that has not happened with past CMs
3. You (the author) if you are related to the Bhushan Clan ( of which Prashant was thrown out of this CM's party) or even if you are not related to the clan, have a neutral and unbiased argument against the CM.
3. The author is Prashant Bhushan's son but the arguments made are pretty much legal, not political.
Prashant and Shanti Bhushan's inputs in the article are transparently disclosed at the bottom, so obviously do feel free to factor that into your reading, though again, would be interesting hearing legal counter points if the analysis is not accurate.
thank you.
now that you mention it, had it not been for the disclosure, would not have guessed the background.
A rebuttal is definitely on the cards. without which any criticism rings hollow.
Article 239 (3)(a) of the Constitution: “(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”
Pavan Bhushan incorrectly interprets this provision when he makes the following incorrect claim:
"The words ‘in so far as any such matter is applicable to Union Territories’ further narrow the scope of Legislation on entries of the State List of the seventh Schedule of the Constitution.
All those entries apart from 1, 2 and 18 of the State List that are not applicable to Union Territories will be outside the jurisdiction of the Legislative Assembly of the NCT of Delhi.
For example, Entry 41 of the State List empowers states to legislate on State Public Services and State Public Service Commission. But Union Territories do not have any separate Public Service Commission and officers in Union Territories qualify through the Union Public Service Commission (UPSC) and belong to the Union Territory Civil Services (AGMUii Cadre of IAS/IPS and DANICSiii).
Thus, Entry 41 of the State List is not a matter applicable to Union Territories and the Legislative Assembly of the NCT of Delhi cannot Legislate under Entry 41."
The qualifier "in so far as any such matter is applicable to Union territories" in Article 239 (3)(a) only applies to matters in the Concurrent list and not to matters in the State list.
Therefore the Delhi legislative assembly can make laws on all matters in the State list except on entries 1, 2 and 18 therein.
239AA 3(a):"Subject to the provisions of the Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1,2, and 18 of the State List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18."
Seema Sapra and several others have interpreted that the words "in so far as any such matter is applicable to Union Territories" are applicable only to the concurrent list. This view raises certain interesting questions. The following questions have further strengthened my disagreement with this view:
1) The words "with respect to any of the matters enumerated" before "in the state list or concurrent list" are significant. I feel that it can be safely stated that it means any matter enumerated in either the state list or the concurrent list. The words "any such matter" in "in so far as any such matter is applicable to Union Territories" needs to be interpreted. Can it be interpreted to mean "any such matter" relates to any such matter in the Concurrent list only ?
(In my view, "any such matter" relates to any matter enumerated in either the State List or the Concurrent List.)
2) The three entries that have been excepted from the state list and the entries to legislate on Taxation(44,65,66) in so far as they relate to the three excepted entries have been specified at the end of Article 239AA 3(a). In my view, the fact that the entries that have been excepted come after the words "in so far as any such matter is applicable to Union Territories" lead to another question.
If it was the intent of Parliament to separately specify the extent/exceptions for the State List and the Concurrent List, then would the excepted entries of the State List not be mentioned along with the State List itself?
[Wouldn't the wording of Article 239AA 3(a) in that case have been : Subject to the provisions of the Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List except matters with respect to Entries 1,2, and 18 of that List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18 or any of the matters enumerated in the Concurrent List in so far as any such matter of the that List is applicable to Union territories ? ]
In my view, the reason that the excepted entries from the State List are given later is to ensure that the extent of the power to Legislate on matters enumerated in the State List or Concurrent List is specified clearly - i.e. in so far as any such matter (whether enumerated in the State List or Concurrent List) is applicable to Union Territories.
These are my initial thoughts.
Obviously more thoughts and critique of the above analysis is always welcome!
Regards
So its Article 239AA (3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any part of the
National Capital Territory with respect to any of the matters enumerated in the
State List or in the Concurrent List in so far as any such matter is applicable to
Union territories except matters with respect to Entries 1, 2 and 18 of the State
List and Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2 and 18.
For your interpretation to hold, the words "any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories" should have read as " any of the matters enumerated in the State List and in the Concurrent List in so far as any such matter is applicable to Union territories", i.e., an "and" instead of an "or".
Or there should have been a semi colon or at least a comma after the words :Concurrent List".
Even logically, the State List does not have any entries that are applicable to Union Territories.
The distinction between entries applicable to Union Territories and not applicable to Union Territories can only be made for the Concurrent List.
But the biggest hurdle to your interpretation is that the State List does not contain any entries which apply to Union Territories and Parliament cannot be presumed to have made an un-necessary distinction.
The Concurrent List on the other hand contains entries which pertain to exercise of power at the federal level and exercise of power at the State/Union Territory level. Therefore the Article needed to draw a distinction for the Concurrent List. The article only empowers the Delhi legislature to legislate on those entries in the Concurrent List which apply to Union Territories.
That in any case would be true even if Pavan Bhushan's interpretation of this article is incorrect.
But how does this help on determining whether or not the LG must act on the advice of the Delhi Council of Ministers for bureaucratic appointments to Delhi Government posts.
It is obvious that the "unelected" LG cannot make these appointments solely based upon his discretion.
The LG has to act in this respect either as the representative of the President who acts on the advice of the Union Council of Ministers or he has to act on the advice of the Delhi Council of Ministers.
In any case this is not a discretionary function for the LG.
It would only be reasonable to contend that the Delhi Government should have a say in filling Delhi Government posts which pertain to departments/ matters under the Delhi Government's legislative and executive competence.
Also the power to appoint public servants by the Delhi Government would not fall under entry 41 but under its executive powers pertaining to all the relevant entries in the State and Concurrent Lists.
At the very least, bureaucratic appointments would be a matter on which the LG must consult with the Delhi Council of Ministers and in case of difference of opinion, the matter should be referred to the President.
One more point - The words "in so far as any such matter is applicable to Union territories" in this Article are another instance of bad drafting as they leave a lot of scope for ambiguity and dispute irrespective of whether or not they apply to both the State and Concurrent Lists or to the Concurrent List alone. The Constitution was not intended to be so vague on such an important issue, but Article 239AA (3) (a) has made it vague. Who will determine which entry does or does not apply to Union Territories and why should this be left open for determination on a case to case basis as this provision does?
Given that India is not really a working "rule of law" society (awkward phrasing I admit), power often comes from who holds the stick. Jiski lathi uski bhains.
We don't have a federal police and we don't have separate federal and state crimes like in the US.
If public order and the police were under the control of the Delhi government, it could certainly and would in all likelihood misuse that power to harass central government officials if the two governments were from hostile political parties. The argument with respect to land is also similar, a hostile state government could deprive the central government of land resources in Delhi needed for the central government to function.
But given that India desperately needs so much institutional reform including in the justice delivery and law enforcement areas, and these reforms require careful thought and wide discussion, one issue to dwell upon would be whether India needs a separate federal police.
“(3) (a) Subject to the provisions of this Constitution,
the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory
with respect to any of the matters enumerated
in the State List
or in the Concurrent List in so far as any such matter is applicable to Union territories
except matters
with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”
There is no qualifier attached to the words "in the State List".
The qualifier attached to the words "in the Concurrent List" is "in so far as any such matter is applicable to Union territories".
The words "except matters
with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.” create an exception to the legislative powers of the Delhi State government.
Therefore entries 1, 2, 18 are carved out of the power of the Delhi Government to legislate on matters in the State List.
A further limited exception applies to the Delhi State government's power to legislate on entries 64, 65 and 66 of the State List to the extent that these relate to entries 1, 2 and 18.
Entries 64, 65 and 66 of the State List read as follows:
"64. Offences against laws with respect to any of the matters in this List.
65. Jurisdiction and powers of all courts, except the Supreme Court, with
respect to any of the matters in this List.
66. Fees in respect of any of the matters in this List, but not including fees
taken in any court."
Pavan Bhushan's [...] opinion that the Delhi Government cannot legislate on entry 41 of the State List is therefore wrong.
Article 239 (3)(a) of the Constitution is followed by Article 239 (3)(b) and Article 239 (3)(c) which provide:
"(b) Nothing in sub-clause (a) shall derogate from the
powers of Parliament under this Constitution to make
laws with respect to any matter for a Union territory or
any part thereof.
(c) If any provision of a law made by the Legislative
Assembly with respect to any matter is repugnant to any
provision of a law made by Parliament with respect to
that matter, whether passed before or after the law made
by the Legislative Assembly, or of an earlier law, other
than a law made by the Legislative Assembly, then, in
either case, the law made by Parliament, or, as the case
may be, such earlier law, shall prevail and the law made
by the Legislative Assembly shall, to the extent of the
repugnancy, be void:
Provided that if any such law made by the Legislative
Assembly has been reserved for the consideration of the
President and has received his assent, such law shall
prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall
prevent Parliament from enacting at any time any law
with respect to the same matter including a law adding
to, amending, varying or repealing the law so made by
the Legislative Assembly."
So the Union Parliament can still make laws for Delhi as a Union territory including on all matters on the State List including Entry 41.
But in the present controversy, we are talking of the executive powers with respect to bureaucratic appointments in the Delhi government and not about legislative powers.
So we must read the following article
"73. (1) Subject to the provisions of this Constitution,
the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament
has power to make laws; and
(b) to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of
India by virtue of any treaty or agreement:
Provided that the executive power referred to in subclause
(a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in
any State 1*** to matters with respect to which the
Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State
and any officer or authority of a State may,
notwithstanding anything in this article, continue to
exercise in matters with respect to which Parliament has
power to make laws for that State such executive power
or functions as the State or officer or authority thereof
could exercise immediately before the commencement of
this Constitution."
More to follow.
But the matter gets more complex than Pavan Bhushan's opinion brings out.
"162. Subject to the provisions of this Constitution, the
executive power of a State shall extend to the matters
with respect to which the Legislature of the State has
power to make laws:
Provided that in any matter with respect to which
the Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by
Parliament upon the Union or authorities thereof."
But Delhi is not a State under the Indian Constitution. It is only a special kind of Union territory with a quasi government. So Article 162 does not apply to Delhi.
The next step is to determine who under the Indian Constitution is empowered to legislate and exercise executive powers for Union Territories generally,
After that, the special provisions in the Constitution for legislative powers and executive powers in the specialized Union Territory - the territory of Delhi (or the National Capital Territory) must be identified.
Then comes the task of reconciling all these provisions in accordance with applicable principles of constitutional interpretation to finally determine whether the LG can or cannot over-ride the bureaucratic appointments by the Delhi Chief Minister.
239. (1) Save as otherwise provided by Parliament
by law, every Union territory shall be administered by the
President acting, to such extent as he thinks fit, through
an administrator to be appointed by him with such
designation as he may specify."
and
"240. (1) The President may make regulations for the
peace, progress and good government of the Union
territory of—
(a) the Andaman and Nicobar Islands;
2[(b) Lakshadweep;]
3[(c) Dadra and Nagar Haveli;]
4[(d) Daman and Diu;]
5[(e) Puducherry;]
6***
7***:"
The Union Parliament can obviously legislate for a Union Territory with respect to any matter including all entries in the Union, State or Concurrent Lists.
But there are certain specialized Constitutional provisions for the Special Union Territory of Delhi. Normally specialized provisions prevail over general provisions if there is any conflict between the two. .
The following positions of law emerge.
Parliament can legislate on any matter for the specialized Union Territory of Delhi, i.e., the NCT. Parliamentary legislation on Delhi will prevail over legislation by Delhi's legislative assembly on the same matter, unless the latter legislation has obtained presidential consent.
Delhi is administered by the President acting through the LG under Article 239. (1) of the Constitution and the relationship between the LG and the Delhi government is spelled out in the THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991.
The President cannot make regulations for the peace, progress and good government of the Union Territory of NCT of Delhi.
The specialized constitutional provision pertaining to exercise of executive powers in the Specialized Union Territory of NCT of Delhi is the following:
" (4) 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:
Provided that in the case of difference of opinion
between the Lieutenant Governor and his Ministers on
any matter, the Lieutenant Governor shall refer it to the
President for decision and act according to the decision
given thereon by the President and pending such decision
it shall be competent for the Lieutenant Governor in any
case where the matter, in his opinion, is so urgent that
it is necessary for him to take immediate action, to take
such action or to give such direction in the matter as he
deems necessary."
So the Delhi Govt can advise the LG on executive matters that fall within the former's legislative competence, and the LG would normally act in accordance with this advice, unless there is a difference of opinion, and then the LG can refer the matter to the President and pending a presidential decision, the LG can take urgent action if so required.
However, there are certain matters that require the LG to act in his discretion and in these cases, the LG need not seek the advice of the Delhi Government.
We are not in the realm of a case of failure of constitutional machinery and the provisions of Article 239AB are not relevant to the current issue of bureaucratic appointments.
CERTAIN PROVISIONS RELATING TO LIEUTENANT GOVERNOR AND MINISTERS
41. Matters in which Lieutenant Governor to act in his discretion:
(1) The Lieutenant Governor shall act in his discretion in a matter: -
(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President ; or
(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
(3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.
42. Advice by Ministers :
The question whether any, and if so what, advice was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court.
44. Conduct of business :
(1) The President shall make rules :
(a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and
(b) for the more convenient transaction of business with the ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of Lieutenant Governor whether taken on the advise of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.
45. Duties of Chief Minister as respects the furnishing of information to the Lieutenant Governor, etc. :
It shall be the duty of the Chief Minister –
(a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for, and
(c) if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
Note how complicated Indian law-making is.
Before getting into these rules, lets pause and see where Delhi Government bureaucratic appointments fall within the Constitutional scheme and the scheme of THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991.
Should these be considered executive powers where the LG has to act in his own discretion or as executive powers where the LG must act on the advice of the Delhi Government?
Logically bureaucratic appointments to the Delhi government which are necessary for the Delhi Government executive to function should be made by the LG taking into consideration the advice of the Delhi government's Council of Ministers. This is not a matter which either under the Constitution or as a matter of principle would fall within matters on which the LG must act in his own discretion.
(Article 239AB provides an example of a situation where the LG must act on his own discretion and not on the advice of the Delhi Government.)
The GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991 has more to say on when the LG must and can act on his own discretion without considering the advice of the Delhi Government. This is a very badly drafted statute and I will deal with it separately.
Coming to the GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991. Section 41 states that the LG "shall" act in his own discretion in the following situations:
A the matter "falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President"
B in which he is required by or under any law to act in his discretion or to exercise any judicial functions.
Coming to situation A, the Statute states that LG shall act in his own discretion even on matters falling outside the legislative competence of the Delhi Government, provided the powers or functions for such matter should have been entrusted or delegated to the LG by the President.
This is an example of incompetent drafting which is not only unclear in its sense but creates undesirable complications regarding the extent of executive powers of the LG vis-a-vis not only the State Government but also the Union Government. Note that under the Constitutional scheme, all executive powers for Delhi outside the legislative competence of the Delhi Government are residually retained by the President acting through the LG on the advice of the Union Government.
What was meant perhaps was this - The Lieutenant Governor shall act in his discretion in a matter which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions, the LG is authorized by the President to act in its discretion. But can the President authorize this by executive order? The answer would be no.
To understand this, note that normally the LG would either act on the advice of the State Government on matters co-terminus with the latter's legislative competence or on the advice of the Union Government rendered through the President when acting on matters falling within the legislative competence of Parliament. Note that the legislative powers of Parliament with respect to Delhi cover all three lists - The Union, State and Concurrent Lists.
The LG's power to act in his own discretion unadvised either by the Delhi Government or by the Union Government would be extremely limited - to instances of forming an opinion as to failure of constitutional machinery under Article 239AB or when exercising discretion if so expressly required by law or his acting in a judicial capacity.
Therefore Part VIII of the Constitution and The GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991 should have expressly differentiated between three situations: 1) where the LG acts on the advice of the Delhi Government; 2) Where the LG acts on the directions of the President derived from the advice of the Union Government; and 3) the limited number of situations where the LG acts on his own discretion.
These three scenarios can be read into Article 239. (1) and to state the law that the LG normally administers on the directions of the President (Union Government) except on matters falling within the legislative competence of the Delhi Government when the LG acts on the advice of the Delhi Government and except where the LG must act in his own discretion.
Notwithstanding the bad drafting in the The GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991, Delhi Government bureaucratic appointments do not fall within the discretionary power of the LG either under the Constitution or under the Statute. Note that Delhi Government bureaucratic appointments would pertain only to its legislative competence and to its executive functions co-terminus with its legislative competence.
First Section 44 states that these rules apply to "business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers" thereby indicating that these rules do not deal with matters falling within the discretionary power of the LG.
Second nothing in these rules empowers the LG to make bureaucratic appointments in his own discretion. No doubt the LG is the appointing authority but this is not a discretionary power or function. Instead the LG must follow directions from the President (read the Union Government) or follow the advice of the Delhi Government.
Note the following rules:
"46. (1) With respect to persons serving in connection with
the administration of the National Capital Territory, the Lieutenant
Governor shall, exercise such powers and perform such functions as
may be entrusted to him under the provisions of the rules and orders
regulating the conditions of service of such persons or by any other
order of the President in consultation with the Chief Minister, if it is
so provided under any order issued by the President under article 239
of the Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
Commission on all matters on which the Commission is required to be
consulted under clause(3) of article 320 of the Constitution; and in
every such case he shall not make any order otherwise than in
accordance with the advice of the Union Public Services Commission
unless authorised to do so by the Central Government.
(3) All correspondence with Union Public Service
Commission and the Central Government regarding recruitment and
conditions of service of persons serving in connection with the
administration of National Capital Territory shall be conducted by the
Chief Secretary or Secretary of the Department concerned under the
direction of the Lieutenant Governor.
47. The matter in respect of which no specific provision has been
made in these rules, the Lieutenant Governor shall consult the Central
Government before exercising his powers or discharging his functions
in respect of that matter."
"In my view, since the Union lacks the executive authority to act in respect of matters dealt with in Entries 1 & 2 of List III of the Seventh Schedule, the further executive fiat issued by the Union Government on May 21, 2015 is also suspect,” Justice Vipin Sanghi had said in his order ...
see at
www.niticentral.com/2015/05/27/kejriwals-delhidysfunction-heads-to-supreme-court-315431.html
Can someone or LegallyIndia upload this order and the two notifications of the Home Ministry and the LG respectively.
pibphoto.nic.in/documents/rlink/2015/may/p201552201.pdf
But as I stated in comment 4.1.4 above, even if entry 41 is not within the legislative competence of the Delhi assembly, which it cannot be, the requirement that the Delhi Govt be consulted on bureaucratic appointments is not defeated. The legal requirement that the Delhi Govt be consulted on bureaucratic appointments is not based upon entry 41 but on a broader concept that an executive branch must have the capacity to govern through officers not hostile to it.
Coming to the notification, in my opinion the inclusion of Services is unconstitutional.
I also think that an argument could be made that Section 41 (1) (i)of the THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT, 1991 is unconstitutional, for reasons that I touched upon in comment 13 above.
In my view a Union executive notification cannot empower the LG to act in his discretion on matters of public order, land, police and services.
First because under Article 239AA (4), any discretion granted to the LG must be sanctioned by Law (and not by executive order); and second because these matters are beyond the scope of discretionary action by the LG and such discretion could not be granted to the LG on these 4 matters even by law as it would violate the fundamental basic structure/ scheme of democratic and accountable government under the Indian Constitution.
I am not saying that the Delhi govt has the right to consultation on matters of land, public order and police but I am saying that the LG cannot exercise power on these matters in his discretion but must be guided by the Union executive.
On bureaucratic appointments though, The LG must consult with the Delhi Government.
,
threads most popular
thread most upvoted
comment newest
first oldest
first