Supreme Court senior advocate Rajeev Dhawan, who was been approached for legal consultation by the Delhi government on the ongoing row over the appointment of IAS officer Shakuntala Gamlin as acting Chief Secretary of the city, has opined that the current crisis has been created 'entirely' by Lieutenant Governor Najeeb Jung.
In his assessment of the issue, Dhawan cited a case from 1974 to state that the Chief Minister's advice shall be 'binding' on the Lieutenant Governor.
"I have been consulted on the issue as to whether the Lieutenant Governor can appoint a Chief Secretary if the Chief Minister does not do so within 40 hours. The Constitution is clear that the Union Territory of Delhi has an elected assembly to establish a parliamentary system of government. It is clear that the government will act on the aid and legal advice of the Chief Ministers in matters within the remit of the legislative assembly," Dhawan's three-page legal opinion, dated May 18, said.
"The term 'aid and advice' has been emphatically interpreted in the Samsher Singh vs State of Punjab (1974) 2 SCC 831, to mean that the Chief Minister's/Prime Minister's advice shall be binding on the Governor/President," he added.
Dhawan further noted that right to receive information does not give Jung the right to interfere in the administration of Delhi.
"The Lieutenant Governor does have the right to receive information about all decisions made by the Council of Ministers including information relating to the administration of the National Capital Territory and proposals for legislation. He can also request that decisions taken by a minister be submitted to the Council of Ministers (Section 45)," his papers said.
"The right to receive information does not give the Lieutenant Governor the right to interfere in the affairs of the administration of the National Capital Territory of Delhi by the Council of Ministers, in accordance with the Rules of Business," they added.
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Furthermore, Dhawan stated that despite 40 hours lapsing before a chief secretary was appointed, Jung has no right to 'impose' his choice on Kejriwal.
"Applying this to the present controversy the following things emerge: first, that the Chief Minister has a perfect tight to a Chief Secretary of his choice; and second, that the fact that there is a lapse of 40 hours is not sufficient reason for the Lieutenant Governor to impose his choice on the Chief Minister especially when his urgency powers arise only when a reference is pending before the Central government," his opinion read.
"At best the Lieutenant Governor can advise the Chief Minister that it is necessary to appoint a Chief Secretary forthwith... I am firmly of the opinion that this crisis has been created entirely by the Lieutenant Governor," it added.