Will Kejriwal win the Jung for Delhi in Supreme Court?

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What had seemed like an ugly, never-ending tussle between Arvind Kejriwal, the popularly elected Chief Minister of the state of Delhi, and Najeeb Jung, the Lieutenant Governor (LG) of the Union Territory of Delhi has been settled by the Delhi High Court -- in favour of the latter.

The reason for the tussle is that unlike previous Congress and BJP chief ministers of Delhi, Kejriwal, who won elections promising to upend the kind of politics that the two national parties represented and practiced, is unwilling to accept the duality of Delhi as primarily a Union Territory with the institutions of a State.

Will Kejriwal win the Jung for Delhi in Supreme Court?

It must rankle that even with a mandate like his -- with 67 seats in a 70-seat legislature -- he still does not have control over the most important institutions of government -- the police, the Delhi Development Authority, etc.

The Delhi High Court on Thursday held that that that the capital, as a union territory, is mainly under the charge of the LG. The court said the LG is the representative of the central government in Delhi, the administrative head of the capital and is not bound by the advice of the elected government and council of ministers of the state of Delhi.

Kejriwal's Aam Admi Party has said, however, that it will challenge the High Court order in the Supreme Court. Will the Supreme Court rule differently?

It is unlikely. To understand why, we must look at the constitutional provisions that apply to Delhi.

First and foremost, Delhi is not a full-fledged state. As per Schedule 1 of the Constitution, Delhi continues to be a Union Territory. Delhi has been given special status through amendments to the Constitution that keep law and order and land matters out of the purview of the Delhi government. The elected assembly, too, has the right to legislate on several subjects, except law and order and land.

In such a scenario, if a conflict arises between a law enacted by the Parliament and one enacted by the Delhi assembly, the former will prevail. This is the basis of the LG's power and authority over Delhi as the Centre's representative.

Limited Authority

Going by these provisions, the powers of the Delhi government are limited. It does not have control over the Delhi Development Authority or the police or any other law enforcement agency. Article 239AA of the Constitution clearly states that the Legislative Assembly of Delhi shall not have power to make laws relating to subjects such as public order, police and land.

In a nutshell, this means the Delhi government, from a constitutional point of view, has very limited executive powers and the basic powers of administration are vested with the LG. Moreover, the powers of the Delhi government can always be superseded by the President of India.

A practical question that has been raked up due to these issues is whether the Chief Minister can direct departments under his government to route files pertaining to law and order and land without keeping the LG in the loop. Article 239 AA, which was inserted in the Constitution by way of the 69th Amendment came into force in 1992.

This must be read along with the Government of National Capital Territory of Delhi Act, 1992, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.

The Transaction of Business Rules gives the LG a lot of power, but it is also mandatory for him to consult with the council of ministers in case of a divergent view. The LG can summon files from the secretary of the respective department. While it is mandatory for the secretary to obey the LG, he is to inform the minister in charge of the department about the action taken.

Don't underestimate the power of the LG!

Under Rule 45, which describes the LG's executive functions, it is clear that he has the right to exercise his powers where matters of public order, land and police is concerned.

Further, it says that these decisions shall be taken in consultation with the Chief Minister if there is any order issued by the President of India under Article 239 of the Indian Constitution.

On matters relating to reference to the Union Government, a clause states that the same can be done in case of a divergent view. If there is a difference of opinion between the LG and a minister, the first option would be to try and settle the matter through discussion. If there is no solution, then it may be referred to the council of ministers.

If the issue persists, then it shall be referred to the union government for a decision by the President of India, whose decision is final.

Clause 55(2) states that the LG is bound to make a prior reference to the union government on proposals such as the appointment of a Chief Secretary, Commissioner of Police and also the Secretary, both land and home.

Given these constitutional provisions and Business Rules, it is unlikely that the Supreme Court will overturn the Delhi High Court's order on who Delhi's boss is.

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