For Delhi it is a rule from New Delhi

It may seem somewhat anachronistic to established norms of representative democracy that a government enjoying the overwhelming support of 70 representatives of nearly 1.3 crore voters cannot have a Chief Secretary of its choice.

Or for that matter, doesn’t have the right to prosecute a member of Delhi Police on charges of demanding a bribe.

If the recent actions of the Lieutenant Governor of Delhi and the home ministry are anything to go by, that would indeed seem to be the case. Unfortunately, the issue cannot be evaluated on the basis of any higher moral principles of democracy but must be decided solely on the basis of the legal and constitutional arrangements that have been put in place for the administration of Delhi.

The key question is this: Has Article 239AA of the Constitution and the enactment by Parliament of a law called the National Capital Territory of Delhi Act, 1991 transformed Delhi into a State on par with States such as Uttar Pradesh or Maharashtra? Or, despite these legal initiatives, does the region continue to retain the character and status of a Union Territory with some trappings associated with a State listed in the First Schedule to the Constitution?

If it is the latter, then it has to be admitted that the final say on the appointment of the Chief Secretary or punitive action against a head constable of Delhi Police effectively rests with the government at the Centre.

Now, Clause 1 of Article 229AA merely says that after a specified date, the Union Territory of Delhi shall be named as the National Capital Territory of Delhi. In other words, the scope of that clause is restricted to identifying the Union Territory by a different label but otherwise remains as such (Union Territory), in a constitutional sense.

This becomes clearer when the same clause goes on to speak of the “Administrator thereof appointed under article 239 (which deals with union territories as a whole)” being designated as the Lieutenant Governor as opposed to such an administrator being designated by any name that the President may deem fit.

The legal effect of the insertion of the second part of Clause 1 of that Article is to confer on the residents of Delhi the consolation of limiting the choice from among a plethora of designations available to the President for naming the administrator to be appointed by him, to just one.

A lot has been written about the legal force of sub-clause 3 of Article 239AA and how it puts Delhi practically on par with other States.

On a closer reading it appears this clause is really not that much of comfort to the elected government of Delhi.

The relevant sub-clause says 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 the Concurrent List insofar 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 insofar as they relate to the said entries 1, 2, and 18.

Leaving aside the larger question of the scope of legal constraint implied in the exclusion list mentioned in the latter part of the provision, the key phrase is, “in so far as any such matter is applicable to Union territories”.

Whether it is a subject under the State or the Concurrent list, the law-making power of the Delhi legislature is restricted to only those that are applicable to a Union Territory. One may argue that in a substantive sense there is really no issue that could be deemed as not so relevant to a Union Territory such as Delhi with all its geographical spread and population compared to a State say, Mizoram, which suffers from no such limitation.

But the fact is, such a clause has been incorporated and it would be perfectly reasonable to conclude that Parliament in its infinite wisdom wanted the authority of the Union as represented by the government at the Centre to have the final word on whether the Delhi legislature is exceeding its legal mandate in passing a certain law as applicable to the National Capital Territory of Delhi.

As if to reinforce such an interpretation, the proviso to sub-clause 4 of Article 239AA makes it abundantly clear that in the case of a 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; 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.

So much for the limitations on the legislative capacity of the Delhi legislature.

What about the inherent powers of the executive represented in the authority of the Delhi government with a Chief Minister and his council of ministers? The Constitution does not define the term “executive power”.

But the Supreme Court which went into the question in the Rai Sahib Ram Jawaya Kapur and Ors versus The State Punjab case, answered it as all that remains of the cornucopia of governmental functions after legislative and judicial functions are taken away. As Justice Mukherjea, who delivered the ruling of the five-judge bench in that case observed, “Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.”

Article 239 which deals with the executive authority of the administrator of a Union Territory (which includes Delhi) says as follows: “Save as otherwise provided by Parliament by law 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 delegation as he may specify.”

Has Parliament by law, imposed any fetters on the powers of the Lieutenant Governor? The answer is provided by Section 41 of the National Capital Territory of Delhi Act, 1991. It says that he may act in his discretion in the following situations:

(i) 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;

(ii) In which he is required by or under any law to act in his discretion or to exercise any judicial functions;

(iii) 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;

(iv) 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.

If there are reasonable grounds for the Lieutenant Governor to entertain doubts about either the scope of the legislative authority of the Delhi legislature or the executive power of the Delhi government and therefore goes on to exercise his discretion, be it the appointment of the Chief Secretary to the Delhi government or to rule in the negative the competence of the Anti-Corruption Bureau of the Delhi government to try cases of corruption involving personnel of Delhi Police, he would be justified in doing so.

Indeed the law requires of him to do nothing less.

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