Law

Document: Text of Indira Jaising’s Opinion

OPINION

  1. My opinion has been sought by the Government of National Capital Territory of Delhi inter alia regarding the role played by the Lieutenant Governor of Delhi in the appointment of Chief Secretary and whether direct instructions can be issued by the Lieutenant Governor to the Secretaries of National Capital Territory of Delhi. I have had the benefit of perusing a detailed Case for Opinion dated 17th May, 2015, forwarded by Mr. Sanjay Ghosh, Advocate, and have also perused the relevant documents annexed along with the Case for Opinion.
  1. Before I advert to the answering the queries raised, it may be relevant to mention that the Case for Opinion does not indicate the factual matrix or the factual conspectus in which the present opinion has been sought from me. The Case for Opinion only deals with the legal and constitutional provisions in relation to the role of Lieutenant Governor. Accordingly, I am proposing to answer the queries raised only from the stand point of Constitutional and Statutory provisions without going into the factual aspects.
  1. The queries which have been raised in the Case for Opinion are as follows:-

(i) Does the LG have powers to bypass the CM, Minister in charge of a department and the council of ministers and give direct instructions to the Secretary of that department and directly get such directions implemented?

(ii) Does the LG have the powers to select/appoint the Chief Secretary?

(iii) Does the CM have any say in matter of selection/appointment of the Chief Secretary?

  1. The relevant Constitutional and Statutory provisions for the purposes of the present opinion are briefly noted hereunder:
  1. Article 163 of the Constitution provides that

“(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

  1. Insofar as the National Capital Territory of Delhi is concerned, Article 239AA and Article 239AB govern the field.
  1. Article 239AA(1)states –

“As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.”

  1. Article 239AA(2)(a) states that there shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
  1. Article 239AA(3)(a) provides that 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.
  1. Article 239AA(4)(b) is extremely relevant for the case in hand and is extracted hereunder for the sake of convenience.

“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.”

  1. Article 239AA(5) provides that the Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
  1. Article 239AA(6) speaks of collective responsibility of the Council of Ministers to the Legislative Assembly.
  1. Article 239AB provides that if the President, on receipt of the report from the Lieutenant Governor or otherwise, is satisfied that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law for such period and subject to such conditions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.
  1. The Government of National Capital Territory of Delhi Act, 1991 ( (“GNCT Act”), was passed pursuant to the Sixty Ninth Amendment to the Constitution. The Section 21 of the said Act deals with the restrictions on laws passed by Legislative Assembly with respect to certain matters.
  1. Part IV of the GNCT Act, deals with the relationship of the Lieutenant Governor and Ministers. Sections 41 to 45 are extremely relevant and are hereunder for the sake of convenience.

“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.

  1. 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.

  1.      Other provisions as to Ministers :

(1)     Before a Minister enters upon his office, the Lieutenant Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Schedule.

(2)     A Minister who, for any period of six consecutive months, is not a member of the Legislative Assembly, shall, at the expiration of that period, cease to be a Minister.

(3)    The salaries and allowances of Ministers shall be such as the Legislative Assembly may form time-to-time by law determine, and until the Legislative Assembly so determine, shall be determined by the Lieutenant Governor with the approval of the President.

  1.      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 toact 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.

  1. Duties of Chief Minister as respect 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.”

  1. Transaction of Business Rules have been framed in exercise of powers under Section 44 of the Government of National Capital Territory of Delhi Act, 1991. In particular, I would note Rules 49, 50 & 52 which deals with the procedure in case of a difference of opinion between the Lieutenant Governor and the Chief Minister/Minister. Rule 49, 50, 51 and 52 of the Transaction of Business Rules, 1993, is extracted hereunder –

“49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council

50. In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter,the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.

51. Where a case is referred to the Central Government in pursuance of rule 50, it shall be competent for the Lieutenant Governor to direct that action shall be suspended pending the decision of the President on such case or in any case where the matter, in his opinion, is such that it is necessary that immediate action should be taken to give such direction or take such action in the matter as he deems necessary.

52. Where a direction has been given by the Lieutenant Governor in pursuance of rule 51, the Minister concerned shall take action to give effect to such direction.”

  1. The legal position in regard to the scope of discretionary powers of the Governor is no longer res integra. From the decision of the Constitution Bench of the Hon’ble Supreme Court in Shamsher Singh vs State of Punjab (1974) 2 SCC 831, 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. It is only in case when the Constitution or a Statute specifically confers discretionary powers on the Governor, that it is permissible for the Governor to act without/against the advice of the Council of Ministers.. In Shamsher Singh, the Hon’ble Apex Court held as under:-

“Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government.

48. The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor.

57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.

  1. In the recent decision of the Apex Court in State of Gujarat v. R.A. Mehta, (2013) 3 SCC 1, at page 28 , the Hon’ble Apex Court held

34. Whenever the Constitution intends to confer discretionary powers upon the Governor or to permit him to exercise his individual judgment, it has done so expressly. For this purpose, the provisions of Articles 200, 239(2), 371-A(1)(b), 371-A(1)(d), 371-A(2)(b) and 371-A(2)(f), Schedule VI Para 9(2) [and Schedule VI Para 18(3), until omitted with effect from 21-1-1972], may be referred to. Thus, discretionary powers exist only where they are expressly spelt out.

It was further held that

Thus, where the Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him must only be upon the aid and advice of the Council of Ministers, for the reason that the Governor being the custodian of all executive and other powers under various provisions of the Constitution is required to exercise his formal constitutional powers only upon and in accordance with the aid and advice of his Council of Ministers. He is, therefore, bound to act under the Rules of Business framed under Article 166(3) of the Constitution. (Vide Pu Myllai Hlychho v. State of Mizoram26.)

At this stage it is worth mention that having regard to the Consitutional provisions, and the scheme of the relevant Articles quoted above, the position of the Lieutenant Governor is identical to that of the Governer of the States and to that extent, the law declared by the Supreme Court as mentioned above, is directly applicable to an analysis of the powers of the Lieutenant Governor of Delhi. The difference in the Constitutional Scheme, relates only to the subject matters in relation to which the Government of Delhi can make laws, but that is of no relevance to the present opinion since the appointment of the Chief Secretary is an executive function and is not one of the powers in relation to which the Government of Delhi cannot make laws or take executive decisions.

  1. With the aforesaid analysis, I would straightaway proceed to answer the queries rasied

Q.1.   Does the LG have powers to bypass the CM, Minister in charge of a department and the council of ministers and give direct instructions to the Secretary of that department and directly get such directions implemented?

Ans.  No. The legal position in regard to the role of Governor in the scheme of governance is no longer res integra. It is well settled that the Governor or the Lieutenant Governor as in the case of GNCT, Delhi, has to act in consonance with the aid and advice of the Council of Ministers headed by the Chief Minister. Any function/power of the Governor where he is required to act in his discretion has to be expressly stated in the Constitution or has to be conferred by Statute.

Article 239AA(4) of the Constitution specifically requires that unless any law requires the Lieutenant General to act in his own discretion, the Lieutenant General 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.

The Proviso to the Article 239AA(4) further makes it clear that 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 act in accordance with the decision given thereon by the President. Pending such decision by the President, the Lieutenant Governor shall, where in his opinion it is so urgent that it is necessary for him to take immediate action, shall direct or take such action as it is deemed necessary.

Rules 49, 50, 51 & 52 of Transaction of Business Rules also prescribes the resolution in the event of difference of opinion between the Lieutenant Governor and the Council of Ministers.

There is no provision in the Transaction of Business Rules which empower the Governor to issue direct instructions to the Secretaries concerned.

Hence, the decision to appoint the Chief Secretary being an executive function must be made by the Council of Ministers in accordance with the Rules of business and the Cadre Rules. The question of any diffirence of opinion on the appointment of Chief Secretary can arrise only after the decision to appoint is taken by the Council of Minsiters and sent to the Lieutenant Governor. Prior to that, no question of diffirence of opinion can arise. In other words, the decision who to appoint as the Chief Secretary must be that of the Council of Minsiters, and it is only if the Lieutenant Governor has a difference of opinion on that decision, that his role begins under Rule 49. Hence there is no question of the Lieutenant Governor taking the decision who to appoint as Chief Secretary wihout waiting for the decision of the Council of Ministers.

However, in the absence of any factual details on what “instructions” had been given by the Lieutenant Governor, it may not be appropriate for me to comment on whether such instructions could be issued relying upon the proviso to Article 239AA(4) which enables the Lieutenant Governor to issue directions pending an impasse with the Ministers on which a decision of the President is pending.

Q2.   Does the LG have the powers to select/appoint the Chief Secretary?

Q3.   Does the CM have any say in matter of selection/appointment of the Chief Secretary?

Ans.  I already answered above. In view of the settled legal position, is the appointment of the Chief Secretary has to be made on the advice of the council of ministers. The Lieutenant Governor has no power to select/appoint the Chief Secretary.

Finally, I may add, in the democratic scheme of our Constitution, 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 foud nigher in the Constition 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.

And Generally, I have nothing further to add.

Ms Indira Jaising

Senior Advocate