Sunday, 18 September 2016

A Chief Minister who thinks he is above the Constitution

A Chief Minister who thinks he is above the Constitution

Part one of analysis of the status of the Chief Minister of the Union Territory of Delhi in two parts

Kejriwal's biggest problem is that he has no understanding of what is a government formed according  to the constitutional provisions.

The demands of Shri Arvind Kejriwal, Hon’ble Chief Minister of the Union Territory (UT) of Delhi, for power and status provided to a State Chief Minister by the Indian Constitution reminds me of the demand of another Hon’ble politician.  I had heard the story from one of my professors of political science sometime in 1959 or 1960.  That gentleman, a General Secretary of the Indian National Congress, during his visit  to Moscow,   when Joseph Stalin was  General Secretary of the Communist Party of the Soviet Union, asked the Indian embassy to arrange his meeting with his ‘counterpart’. Taken aback by the demand, the embassy officials told him that it was beyond their capacity. The Congress General Secretary got angry: “What’s the problem?  Like him, I am also General Secretary of a national party.  He is my equal.  I am sure, Stalin will consider it his privilege to meet me.’ The embassy had no courage to make Stalin aware of his new ‘privilege’.  The Congress worthy threatened to make a complaint to the Prime Minister of India and walked out of the embassy building in huff.

Perhaps, Kejriwal  was so thrilled when he learnt that  while the  Chief Minister (CM) of a State  was appointed by  the State Governor,  Delhi CM  was appointed by none other than the President of India that he assumed that he was as good as the Prime Minister (PM) of India, also appointed by the President and certainly  above ordinary State CMs. It must have been a big disappointment to him that while the PM was administered oath of office by the President himself, the Delhi CM was administered oath of office by the Lieutenant Governor (LG). Perhaps Kejriwal  is unaware of the ‘Order of Precedence’ of the India in which  while State CMs are shown at No. 6, CMs of UTs  are shown nine ranks below, at No. 15, along with  deputy ministers of the Central Government. In other words, on ceremonial occasions Delhi CM is as good as a deputy minister of the Central government. Even the Union Cabinet Secretary is four ranks above him.

By now it is quite clear that to the 48 year old Magsaysay Award winner Delhi CM what matters is his own perception. At the time of the swearing-in ceremony Kejriwal took oath to “bear true faith and allegiance to the Constitution of India”.  Taking oath is one thing, knowledge of the Constitution and the law is different.  Fortunately for people like Kejriwal, the Constitution does not require anyone to take oath that he/she has read the Constitution.

Or, maybe he thinks he is above the Constitution which is meant for lesser mortals, not revolutionary like him who is different from all other politicians. Or, does he want to say that he did not know that the Chief Minister of Delhi had lesser powers than the Chief Minister of a State?

After abusing PM Modi and LG Jung and accusing them of not allowing him to function like a CM, Kejriwal went to the Delhi High Court for recognition as a full-fledged CM of a cabinet form of government. On August 8 this year, the High Court made it clear to him that Delhi being only a UT, the real executive power was vested in the administrator, the LG. The High Court verdict has been challenged in the Supreme Court on the grounds that Delhi has an elected Assembly vested with power to make laws and a Cabinet form of government in which the Lt. Governor has to act on the "aid and advice of the Council of Ministers" (CoM) 

While requesting for a speedy decision, the former Solicitor General Gopal Subramaniam told the Supreme Court that ever since the High Court verdict was announced, the Delhi government was facing a “governance crisis’ and asked the apex Court to decide whether Delhi “is a State, a Union territory or a hybrid.”  Some eminent lawyers has joined hands to fight for Kejriwal.

The Supreme Court has refused to stay the High Court order but has hinted that the case might be referred to a Constitution Bench to examine the distribution of power between the Centre and the Delhi government.  The Supreme Court is the final interpreter of the provisions of the Constitution. No one can be sure what would be the final verdict. We have the example of the creation of the Collegium for appointment of judges to the higher judiciary, an institution not mentioned in the Constitution. Some Constitutional experts, not appearing on behalf of the Kejriwal government, also think that there are certain grey areas, particularly in the Transaction of Business Rules.

However, in my humble view there is no vagueness in the Constitution about the status of Delhi UT. In the federal structure of India, there are different provisions for some of the States and UTs. There are special provisions for the States of Andhra Pradesh, Arunachal Pradesh, Assam, Gujarat, Jammu & Kashmir (which has its own Constitution and flag), Karnataka, Maharashtra, Manipur, Mizoram, Nagaland and Telangana. Only eight States – Andhra Pradesh, Bihar, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, Telangana and Uttar Pradesh – have bicameral legislature. The UTs, including those with elected Assembly and council of ministers, are administered by the Centre with varying degrees of autonomy.

There is no standard, universally accepted form of federal structure. In the USA, the States have much more powers than the Indian the States. In 1998, the Supreme Court of Canada held that ‘If a clear majority of the people in Quebec want to secede, the rest of Canada would be obliged to negotiate the terms of secession as though it were an amendment to the constitution.’ In India no such right is recognised.

Let us look at the Constitutional and legal provisions about UT of Delhi and other States

Constitutional provisions relating to the States
Constitutional provisions relating to the UT of Delhi

Legislative powers
Legislative powers

Article 246 (3) provides that a state legislature has exclusive power to make laws for the state in respect to any of the matters in related in the State List.
Article 239AA(3) (a) gives Delhi Legislative Assembly power to make laws with respect to any of the matters in related in the estate list barring Entries 1 (Public order), 2 (Police) and 18 (right in and over land)

According to Article 249, the Parliament can make laws for the States in respect to any of the matters enumerated in the State list only “if the Rajya Sabha has declared by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in national interest” to do so.   
Even the right granted by the above provision is restricted by two other provisions. Article 239 AA, (3) (b) gives overriding power to the Parliament to make laws in respect to any matter in the State list for a UT or any part thereof. The Article further empowers the Parliament to enact any law adding to, amending, varying or repealing the law so made by the Legislative Assembly of Delhi.

Executive powers
Executive powers

According to Article 162, “the executive powers of a State shall extend to the matters with respect to which the Legislature of the State has to make laws.” There is a similar provision in Article 73 for the Union.

In the historic Rai Sahib Ram Jawaya Kapur And Ors. vs the State of Punjab judgement on 12 April, 1955 (AIR 1955 SC 549), the Supreme Court stated that the language of Article 162 clearly indicated that the powers of the State executive extended to matters upon which the state Legislature was competent to legislate and that while ‘the President as well as Governor has been made a formal or constitutional head of the executive, the real executive powers are vested in the Ministers or the Cabinet.’ This is one of the salient features of the cabinet form of government.
There is no provision corresponding to Article 162 for the Union Territories.

In the UTs the real executive power is vested in the administrator. Article 239 provides that “every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.” According to Art. 239AA, in the UT of Delhi, the administrator is called Lt. Governor. (Originally, he was called Chief Commissioner.) In other words, despite a council of ministers, Delhi does not have cabinet form of government because the LG is not just a formal or constitutional head of the executive.

Article 163 provides for a CoM, headed by the CM, “to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.” In case of any question whether in a particular matter the Governor was required to act in his discretion or not, the decision of the Governor shall be final.
The language of Article 239AA (4) is different. It provides for a CoM, headed by the CM, “to aid and advise the LG in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws”, with the proviso that “in the case of difference of opinion between the LG and ministers on any matter, the LG shall refer it to the President for decision and act according to the President‘s decision and pending such decision the LG has power to act in his discretion in urgent and necessary matters.

The National Capital Territory of Delhi Act (NCTDA) contains provisions about the powers of the LG and his involvement in the functioning of the UT government. According to Section 41, the LG shall act in his discretion in the matters which fall 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 in which he is required by or under any law to act in his discretion or to exercise any judicial functions. It is LG who will decide the matter in which he has to act in his discretion or to exercise his judicial or quasi-judicial functions. 

 Section 45 has provisions to ensure the LG’s active involvement in the administration of the UT. The CM is required to communicate to the LG all decisions of the CoM relating to the administration of the affairs of Delhi and proposals for legislation. The LG may direct the CM to furnish any information relating to the administration of Delhi and proposals for legislation. Further, if the LG so requires, any decision taken by a Minister, without prior approval of the Council of Ministers, has to be placed before the CoM for consideration.

The Transaction of Business Rules, framed under Section 44 of the NCTDA, has provisions to regulate the relationship between the LG and the ministers. On several specified matters such as those affecting or likely to affect peace and tranquility of the capital, interest of any minority community, scheduled castes and backward classes, etc., no order can be issued without the LG’s prior approval. The LG may direct Secretary to any Department to submit papers relating to any proposal or matter in the Department. The LG may direct the CM to furnish information relating to the administration of Delhi and proposals for legislation.

There are specific rules to resolve differences between the LG and the Ministers. In case of difference of opinion between the LG and a Minister, the LG is required to settle the differences through discussion, failing which he may direct that the matter be referred to the CoM. If necessary, the LG may refer the differences to the Central government for decision. Pending the decision of the Central government, action shall remain suspended unless it is necessary and urgent to take action.

Rule 55 requires the LG to refer to the Central government every legislative proposal on certain matters.

Devendra Narain
September 16, 2016

Please read Part II also: Delhi needs a Lt. Chief Minister