She said the LG’s position in the scheme of governance is well settled. Citing the the decision of the Constitution Bench of the Supreme Court in Shamsher Singh vs State of Punjab (1974) 2 SCC 831, Jaising said the undisputed legal position which has emerged is that the Governor in discharge of his functions is to act only in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister.
Asked by the Delhi Government to provide her opinion on the latest stand-off between the CM and LG, Jaising said she would not go into the specifics but only answer queries “from the stand point of Constitutional and Statutory provisions”.
According to the opinion, exclusively accessed by The Wire, Jaising notes that under Article 239AA(4) of the Constitution “unless any law requires the Lieutenant General to act in his own discretion, [he] is bound to exercise his functions in accordance with the aid and advice of the Council of Ministers headed by the Chief Minister.”
“There is no provision in the constitution or in the NCT of Delhi Act, 1991 or any of the law, granting to the Lieutenant Governor, the power to act at his own discretion in the matter of appointment of the Chief Secretary,” she declared.
Referring to the proviso to Article 239AA(4), she said, “If there is any difference of opinion between the Lieutenant Governor and the Council of Ministers, the Lieutenant Governor shall refer the matter to the President” and pending a decision the L-G shall, where in his opinion is so urgent that it is necessary for him to take immediate action, direct or take such action as it is deemed necessary.
As for the decision to appoint the Chief Secretary, she said this was an executive matter and must be taken by the Council of Ministers in accordance with the Rules of Business and the Cadre Rules.
“The question of any difference of opinion on the appointment of Chief Secretary can arise only after the decision to appoint is taken by the Council of Ministers and sent to the LG. Prior to that, no question of difference of opinion can arise,” she said.
Jaising’s legal opinion also makes a wider constitutional point. In the democratic scheme of our Constitution, she said, the political executive is constitutionally empowered to choose its own officers in accordance with the Cadre Rules. “Who will be the Chief Secretary or any other Secretary of the Government is a matter in which the Governor has to yield the will of the political executive which has been democratically elected.”
“Discretionary power to appoint a Chief Secretary can be found neither in the Constitution nor in any statute, hence there is no such power, independent of an enumerated powers. These are not matters, by any stretch of imagination, which fall under the individual discretionary powers of the Governor. Even otherwise, relying upon the Proviso to the Article 239AA(4), the Lieutenant Governor cannot issue directions to appoint a Chief Secretary,” she held.
The tussle between Kejriwal and Jung began after the latter on Friday appointed Power Secretary Shakuntala Gamlin as acting Chief Secretary as the incumbent, K.K. Sharma was on a visit to the United States. Kejriwal objected to this. He accused the official concerned of favouring the private power distribution companies in Delhi and charged that Jung had intervened in an attempt to release funds to the tune of Rs 11,000 crores to the power companies.
Despite his objections, however, Gamlin assumed her duties on Saturday. Subsequently the Delhi Government decided to pursue the matter with President Pranab Mukherjee.
In the meantime, on Monday, the AAP Government sealed the offices of Principal Secretary (Services) Anindo Majumdar – who had signed Gamlin’s appointment note — and handed over his departments to another official. But the LG cancelled this order. Jung has also met President Mukherjee to discuss the impasse.
Given the sharp political differences between the AAP and the BJP, which controls the Centre, the issue has also taken political undertones. On Tuesday, Union Finance Minister Arun Jaitley accused the AAP government of deliberately raking up controversies. “The people of Delhi experimented with a new party in the elections, but it’s a very costly experiment. Governance is not AAP’s political agenda,” he said at a BJP State unit meeting.
Meanwhile, Delhi Deputy Chief Minister Manish Sisodia said ahead of his meeting with the President that the Constitution has clearly laid down “everyone’s role in black and white, and we are following those rules”.
Reminding the BJP that Delhi was not under the President’s Rule and had a democratically elected government, he said his government was going purely by the rule books.