War between Arvind Kejriwal and Najeeb Jung

By Deepak Parvatiyar

May 21, 2015

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The ongoing public spat between Lieutenant Governor Najeeb Jung and Chief Minister Arvind Kejriwal over the control of Delhi administration has exposed the grey areas in governance that require immediate redressal to ensure against any such crisis in the city state of Delhi.

The immediate provocation was the appointment of Shakuntala Gamlin as acting Chief Secretary of Delhi by the Lieutenant Governor in spite of Kejriwal’s strong opposition on 15th May this year. This made the Chief Minister cry foul alleging that the LG was “functioning as if there is President’s Rule in the national capital and there is no elected government here” by bypassing the “democratically elected government…(and) issuing instructions to officers”.

Much drama unfolded ever since. Both Kejriwal and Jung indulged into public sparring with Kejriwal even dispatching an angry letter to Jung; Kejriwal even accused Gamlin of favouring two Reliance Infra-owned power distribution companies through a Rs.11,000-crore loan that led to an unprecedented reaction from Union Minister of State for Home Kiren Rijiju, who claimed this was an insult to the people of Northeast ( Rijiju himself belongs to the Northeast); Kejriwal accused the Narendra Modi government at the Centre of making attempts to dislodge the AAP government and said the LG was at the forefront of the coup against his government; The CM’s office gave orders to lock the office of the Principal Secretary (Services), Anindo Majumdar, who had issued the order notifying the appointment of power secretary Shakuntala Gamlin as acting Chief Secretary and the Lieutenant Governor cancelling  the removal of Majumdar. In between, Union Finance Minister Arun Jaitley, too, jumped into the fray advising the AAP government in Delhi to “understand their responsibilities and fulfil people’s expectations”.

Kejriwal has taken the fight to the President’s court and both he as well as Jung have already had separate meetings with the President, Pranab Mukherjee, on 21st May. Thereafter,  in the midst of the crisis, the Union Home Minister, Rajnath Singh, who too had a discussion on the issue with the President, advised both Kejriwal and Jung to “sit together and find a solution”. Yet, the confrontation continues and as late as on 21st May, Jung cancelled all bureaucratic appointments made by the AAP government without consulting him in the past four days.

Ostensibly the Home Minister’s advice reflects on the inadequacies of the legal provisions to clearly demarcate the powers of the LG and the CM under the given situation. Even the legal fraternity seems divided over their interpretation of the prevailing laws.

The LG, who claims he has the power to appoint and transfer officers had justified the appointment of Gamlin on grounds that the Kejriwal government had been delaying theappointment of an acting Chief Secretary.  To this, the Delhi government promptly sought legal opinion from senior Supreme Court lawyer Rajeev Dhavan who wrote in his opinion, dated May 18, “I have been consulted on the issue as to whether the Lt-Governor can appoint a Chief Secretary, if the Chief Minister does not do so within 40 hours….The fact that there has been a lapse of 40 hours is not sufficient reason for the Lt.Governor to impose his choice on the Chief Minister, especially when his urgency powers arise only when a reference is pending before the Central government.”

However, the larger questions that need to be addressed at the moment are whether a Delhi Chief Minister at all can insist on appointing an officer of his choice to be Chief Secretary for a few days or can he direct departments under his government to route files pertaining to land, police and public order only through Delhi ministers, so as not to “bother the LG”?

These questions have brought into focus the vagueness of Article 239AA of Constitution on special provisions with respect to Delhi vis- a- vis the powers of the CM and LG. This Article was inserted in Constitution by the 69th Amendment.

In his first term as CM too, Kejriwal had hit at the inadequacies in Article 239AA, when during his 49-day government, he clashed with Jung over seeking the Centre’s approval to introduce the Jan Lokpal Bill in the Delhi Assembly.

As it is, there are inherent limitations of the Delhi government as it enjoys limited legislative powers and there are some 60 matters relating to municipal governance that cannot be administered without the acquiescence of the Union government.  In simple terms, it means in suchmatters, even if the Delhi government moved an amendment and got it passed in the state assembly, it still needed the approval of the Lieutenant Governor and the ministries of Urban Development and Home Affairs and the assent of the President before they can become law.

There are further restrictions with regard to the appointments in the state bureaucracy – the bone of contention between Jung and Kejriwal, at present, because of varied legal interpretations over the powers vested with the state government and the LG.

Unlike other states that enjoy considerable autonomy in our federal structure, Delhi, despite having an elected government, is yet to acquire full statehood and remains a Union Territory. This has been a contentious issue as an elected government considers itself directly accountable to the citizens’ concerns. It requires a certain degree of autonomy in administrative as legislative matters.

In other words, governments by rival political parties, respectively, in Delhi and in Centre, ensure a conflict of political interest and rather a confrontationist approach to tackle issues in an attempt to downplay each other.

Remember how often during the Delhi elections the Bharatiya Janata Party leaders shot down the Aam Aadmi Party’s election promises as “utter lies” given the limitations of the Delhi government in implementing such promises? Obviously these leaders were mindful of the fact that any city government in Delhi has to depend on the BJP-ruled Centre to upkeep its election promises.

The challenge before Kejriwal is more also because of his tall 70 point plan that he promised to his voters. But indeed Kejriwal realises his hands are tied in view of the intricacies involving the composition of the Delhi administration.

Ever since the Delhi Legislative Assembly was set up following the Constitution (Sixty-ninth Amendment) Act, 1991, and the Government of National Capital Territory of Delhi Act, 1991 that came into force in 1993 and paved the way for the National Capital Territory of Delhi (following the recommendations of the Sarkaria Committee, which was later on called Balakrishan Committee), confrontations between the Centre and the successive Delhi governments remained in the forefront whenever the city state was ruled by an opposition party. To be precise, the first confrontation was witnessed after 1993 itself when a Bharatiya Janata Party government was elected in Delhi at a time when the Centre was ruled by the Congress. The then Chief Minister Madan Lal Khurana had his own share of tiff with the then Lieutenant Governor, P.K. Dave, over routing of files and transfer of officers. The BJP government, which saw three Chief Ministers in the same House, could not last beyond its term but Congress Chief Minister Shiela Dikshit, who could hold her forte for the next fifteen years even thethough her first term coincided with the BJP-led National Democratic Alliance government at the Centre. However she enjoyed the patronage of her own party which was in power in Centre during her next two terms as CM.  However, Kejriwal’s in his first stint as CM and now again, has exposed the flaw in the system with regard to the city government’s powers and provisions. At the moment, the impasse is set to demoralize the entire bureaucracy as well.

There has been a long standing demand for according full statehood to Delhi and even the Bharatiya Janata Party, which is at the helm at the Centre, is a strong proponent of this. This is high time to have a relook at the issue. As for the moment, the confrontationist attitude between the Centre and the Delhi government is leading to a situation from where it would only further deteriorate. Kejriwal has already accused the LG of leading a coup at the behest of the Centre against his government. Though it seems a far-fetched reality as of now, constitutional experts agree that the LG is well within his powers under Article 239AB of Constitution to eventually report to the President that he is not able to run the state as per the Constitution, which could pave the way for President’s rule in Delhi. But do Kejriwal or the Centre want this to happen? It would be better for the LG and the CM to sit together to thrash out a solution at the earliest and the Centre work towards according full statehood to Delhi as was promised by the BJP. Else, it will be a blow to democracy!