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Shakti Sinha, former principal secretary (finance and power) in the Delhi government, tells Kavita Chowdhury that as per the statute, the Delhi Lt Governor has more powers than that of state Governors. Edited excerpts:
In the ongoing tussle between the Lt Governor Najeeb Jung and Chief Minister Arvind Kejriwal, both are claiming they are acting as per the Constitution. As per the statute, can the Lt governor override the chief minister's decisions?
I do concede there are serious systemic issues from the point of view of electoral democracy, there is a dysfunctionality in the implementation of Article 239 AA (pertaining to powers of the Lt Governor as the administrator of Delhi and the elected government) read along with the Government of National Capital Territory Act, 1991.
However, as things stand, the Lt Governor of Delhi has powers which are much beyond that of Governors of states. Delhi is a Union Territory; to say it is ‘not a full-fledged state’ is completely misleading. It does have a legislative Assembly, which can make laws on all but three items of the State List of the Seventh Schedule of the Constitution. But even here, Parliament is supreme – no law passed by the Delhi Assembly can go against any law passed by Parliament on the State List, and even if Delhi has passed any law, it can be nullified by any subsequent law passed by Parliament. Not so for states, where procedure for parliamentary law on state subject is quite different. Also President assents to laws passed by the Delhi Assembly, not the L-G, unlike states where the respective Governor gives assent.
On transferred subjects, normally an elected government can act, except that even here, the Lt Governor has specific jurisdiction under proviso of sub clause 4 of Article 239AA. Where the L-G disagrees, he can refer it to the President for his decision, which shall be final. Pending that, L-G’s decision shall override ministers’ decision. In other words, the L-G retains effective veto even in transferred subjects. Precisely for this reason, all policy files go to the L-G.
In case of appointments and transfers, the chief minister says he is empowered to appoint officers.
In the case of services, the L-G alone has powers; chief minister/ministers can recommend at best. L-Gs in the past have often ignored advice, without any controversy. The chief minister has absolutely no jurisdiction to either post any officer, or to give orders to hold charge. Any such order is ‘ab initio void’. To ask X or Y to hold charge of principal secretary (services) or principal secretary (general administration) by the chief minister is illegal and should be ignored/voided. L-G’s orders are to be implemented by bureaucracy, but they are required by Rules of Business to keep CM/ ministers’ informed simultaneously. But to ask bureaucrats to submit L-G’s orders to CM/ministers before implementing, as CM has directed, is illegal.
What happens in the case of a difference of opinion between the L-G and CM? Have there been any instances in the past and how were they resolved?
Madan Lal Khurana worked as CM when there was a Congress government at the centre, Sheila Dikshit with the NDA (National Democratic Alliance) government. In fact, the L-G during the first five-and-a-half years of Dikshit’s regime was Vijai Kapoor, a retired bureaucrat who had subsequently joined the BJP, yet while they may have disagreed, never did the CM make an issue of it, at least there is nothing in the public domain to suggest otherwise. On the other hand, she had issues with Congress-appointed L-G Tejinder Khanna, for instance, on the length of Vasant Vihar flyover, which then went to the President. Under government of India Rules of Business, President means the minister concerned. In this case, based on report of the then joint secretary (home),Chidambaram as Union home minister agreed with the chief minister. Najeeb Jung in the present scenario, has been impeccable in his actions, not stepping over the line, patient and forbearing. The government of India has also reacted with calmness.
Bureaucrats appear to have been caught in the crossfire.
The present controversy is not about appointment of chief secretary but about holding charge when chief secretary is away for 10 days, four of which are holidays. Shakuntala Gamlin was in list of four names sent by Manish Sisodia, the deputy chief minister. This fact, plus the 10-day holding charge bit makes me believe that it is about Arvind Kejriwal spoiling for a fight, not about principles. To say that they will be watching her is shameful, why did you place her name in the panel? If you have doubts about her, what steps have you taken till now? Initiated a vigilance inquiry? But to damn an officer by allegations and innuendo is just not on.
Sisodia has said the government will issue detailed guidelines for bureaucracy. Is such a thing possible?
It's definitely possible with the L-G's approval. Should not elected persons also have a code of conduct?
The crux of the problem according to most people is the demand for full statehood for Delhi. What are your views?
Has any political party/coalition ever seriously considered giving Delhi’s elected government any more powers? Delhi is the national capital and this fact cannot be ignored. When around 1919 Delhi was separated from Punjab and made into a chief commissioner's province, the Centre retained police, public order and land, this when there were only ICS babus on both sides. Food for thought.
