The tussle between Delhi Chief Minister Arvind Kejriwal and Lt. Governor Najeeb Jung over appointments of officials has reached President Pranab Mukherjee's court, but legal luminaries are sharply divided on the stand taken by the two sides.
While a section of lawyers contends that there were limited executive powers available with Kejriwal under the law, others feel that no power is vested in the lt. Governor that can obliterate the democratic mandate of the elected government.
"From the constitutional point of view, Delhi government has a very limited executive power. The basic administrative powers are vested in the Lt. Governor. The power of Delhi government can always be superseded by the President," says senior lawyer Prashant Bhushan, a comrade turned critic of Kejriwal.
Fearing that the "brinkmanship" being shown by Kejriwal may do more harm than good for Delhi, Bhushan says the "legal opinion on which Delhi government is locking horns with the Lt. Governor is questionable".
Taking a diametrically opposite view, senior counsel Gopal Subramanium says that a "strong case can be made out to suggest that the exercise of the power by the government of Delhi cannot be overruled by the Lt. Governor as this could violate the constitutional scheme".
Overruling the Delhi government's decision would be "ultra vires of Articles 14 and 239 AA of the Constitution and would also fall foul of the basic structure of the Constitution as it undermines the basic feature of democracy", he added.
This, Subramanium said in his opinion given to the Delhi government.
Senior Congress leader and eminent lawyer Kapil Sibal has another take on the issue as he says that "both (Centre and Kejriwal) are playing politics. Chief minister of Delhi is a permanent agitator and because he has no experience nor a constructive state of mind, he is constantly in conflict with the union government".
On the other hand, the BJP-led central government is not reconciled to its "dismal defeat" in the Delhi elections and is out to "destabilise" the Kejriwal government, he said.
"Unless the issue is resolved across the table, the people of Delhi are suffering and will continue to suffer," says Sibal.
To an extent, Bhushan seems to agree as he described as "brinkmanship" the Kejriwal government's action of locking the doors of offices.
"If you do such brinkmanship, it may result in the imposition of President's rule in Delhi. They (Aam Aadmi Party) are not taking proper opinion or maybe they are guided by the short-term considerations," he contended.
Addressing the moot question whether the chief minister of a democratically-elected government cannot even appoint an officiating chief secretary, Subramanium, in his opinion to the Delhi government, holds: "For the Lt. Governor to act in such a manner would completely undermine the democratic mandate of an elected government and would render otiose the entire election process for the Delhi legislature under Article 239 AA".
Subramanium, who was the solicitor general under UPA-II, maintained: "In a democratic set-up, there can't be two reporting authorities i.e,. the Lt. Governor and the chief minister. The Lt. Governor in law can't be placed on a higher position then the governor of the state who has to act on aid and advice of the council of ministers."
