Najeeb Jung is Subverting Democracy, But is He Acting Alone?

File photo of Delhi LG Najeeb Jung and Prime Minister Modi [Credit: PTI]

File photo of Delhi LG Najeeb Jung and Prime Minister Modi [Credit: PTI]

Arvind Kejriwal was sworn in as Delhi’s Chief Minister on February 14, 2015 with an unprecedented mandate from the people of the Capital. No sooner was he sworn in, dissidents accused him of not acting in a principled way. After much discussion, they became a splinter group and were eventually thrown out of the party. However, as early as February 24, Law Minister Jitender Singh Tomar wrote to me asking for my legal opinion on a number of matters including the Lieutenant Governor’s (LG) powers in relation to his Council of Ministers (CoM) and various aspects of the distribution of powers between Parliament and the Delhi Assembly.

On March 3, I got a further query on an inquiry to be set up by the CoM. The Delhi government wanted a magisterial inquiry into the rape of a woman in a moving car. The LG declined a magisterial inquiry but insisted that an inquiry be set up under S.P. Gaur, a retired IAS Officer who was an ex-chairman of the Inland Waterways Authority. Gaur had served on the UPSC and was “indicated” by the Liberhan Commission for his role in the demolition of Babri Masjid when he was the Commissioner of Faizabad. Whether it was a good choice, or bad choice, we can’t say. But in this case, the LG was not indicating a choice but imposing a decision. Did he have the right to do so? The Government of the NCT was taken aback.

Then I was informed of a further controversy about who should be a stand-in for the Chief Secretary while he was on leave. The LG’s stance appeared to be that since Chief Minister Kejriwal had not appointed a Chief Secretary for 40 hours, the LG had a perfect right to make an appointment because the Delhi government had to have a Chief Secretary. This kind of tension between the LG and CM is unprecedented, unnecessary and disagreeable.

First, let us look at this on principles.

If this principle of democracy is lost sight of, autocracy will triumph. It is true that as the National Capital, Delhi is a Union Territory, and not a full – fledged state. When a fuller parliamentary democracy was introduced in Delhi in 1992 (by introducing Article 239AA of the Constitution) and its democratic framework was established by the Government of National Capital Territory of Delhi Act, 1991, as amended, this was done on two principles: The first was that Delhi with its sprawling millions was entitled to a representative government responsible to the people through the legislature; the other imperative was that in matters of land, public order and police, the legislative and executive power be vested in the Central Government. But apart from the exceptions, the NCT government had legislative and executive power over everything else, similar to the powers of states that have full statehood, apart from the three exceptions.

Aiding, advising the LG

The arrangement between the elected CoM and the nominated LG was that the CoM with the CM as its head would “aid and advise the Lieutenant Governor” (Article 239AA(4)). The phrase “aid and advise” may seem fuzzy, but exactly the same phrase is used to describe the relationship between elected governments and the President of India and Governors of states (Article 74 (1), 163 (1)). The CoM was responsible in all cases to their respective Parliaments and Assemblies including the CoM of Delhi (Article 75(3), 164(2), 239AA (6)). If “aid and advise” was interpreted literally, the CoMs would become advisory and parliamentary democracy would be worthless. In Samsher’s case (1974) 2 SCC 831)) the Supreme Court ruled that the “aid and advice” of the CoM was binding on the President and Governor. There is no reason to give it a different interpretation for parliamentary democracy in Delhi. We can conclude that LG Jung was bound by the CoM led by Kejriwal in all matters except land, police and public order. Even in these areas, the LG is not a law unto himself. He is the agent of the Union which has a government which is responsible to Parliament. So democracy prevails in all circumstances. Even as an appointee of the Union Government, he cannot claim any independent power to himself. If this were not so, Delhi will become an autocracy and its parliamentary democracy a farce.

Under the NCT Act of 1991, the CM has the duty to communicate all decisions of the CoM and proposals for legislature to the LG who could request information on these. But this is to keep the LG informed and not to surrender power to him. In fact, the statute makes it clear that the maximal power of the LG is to ask the CoM to examine any decision of a minister (Section 45). There can be little doubt that constitutional functionaries should keep each other informed. But this does not mean that exchange of information reverses the decisional roles of the LG and the CoM.

The constitutional plan to give Delhi’s Assembly and CoM powers over all matters (other than land, public order and police) is reflected in Section 41 of the NCT Act. But the Constitution does make the Union Government the arbiter of disputes of jurisdiction between the LG and the CoM. While these disputes are being decided, the LG has the “urgency” power to take decisions. Surely even this urgency power should be exercised in consultation with the CoM and the Union (Article 239AA(4) proviso). But the exercise of this “urgency” power is within narrow parameters, i.e. when a dispute over jurisdiction is pending with the Union and in matters relating to the dispute. The view that the LG has an overriding urgency power must fail on the text of the Constitution and the principles of parliamentary democracy underlying it.

The Rules of Business (Rule 23) do lay down that certain matters have to be “submitted to the Lieutenant Governor through the Chief Secretary…before issuing any orders.” But placing proposals before the LG is one thing, transferring a veto to him is quite another. The LG has to keep reminding himself that he is not democratically unaccountable. He is an agent of the Union Government and must not disgrace his office as many Governors, acting unconstitutionally, have done.

Is LG acting alone?

The LG could not insist on an Inquiry Officer of his choice. His choice rested on a specified retired IAS Officer. He certainly cannot insist on a Chief Secretary of his choice. The CoM and Chief Secretary have a close relationship. Recall that Prime Minister Modi changed the law to get Nripendra Misra as his Principall Secretary. The LG’s view that 40 hours had passed and action was necessary did not give him powers to override the CM.

Why was Jung doing this and creating a jang (war) with his own Chief Minister? He is no longer the Vice Chancellor of Jamia Millia whose word ruled the roost. Socially he is a nice man, but it seems autocracy has come to him too easily. Was he acting for himself? Or, which is one’s worst fear, is he acting for someone else or on behalf of someone else? Does he want to hold on to this office? Or does he want some other more prestigious office? These suspicions cannot be allayed easily. Both Kejriwal and Jung have gone to the President. What can the President do? He can offer a warm cup of tea and some sober advice. If anything, it is for Modi to tell the LG to stay within the Lakshman Rekha of his power.