The ugly spat between Delhi’s Lieutenant-Governor (LG) Najeeb Jung and its Chief Minister Arvind Kejriwal, which started with the appointment of Shakuntla D. Gamlin as acting Chief Secretary, is now a full blown constitutional crisis. In this war of words what are the essential facts? What has been the precedent and how much power do Jung and Kejriwal actually hold? Unfortunately, the legal fraternity is as divided as the main protagonists of this unseemly turf war.
Capital Phenomenon: A political history of Delhi by Sidharth Mishra traces the roots of this unfolding crisis. Delhi’s special status and its fundamental differences from other states of the union is the genesis for this tussle and many of the issues raised by the Kejriwal were raised by Sheila Dikshit who preceded him.
Notwithstanding the scams, her record in office now seems glowing compared to the current mayhem. Her preface to the book Delhi: India in a City is proof that she knew her city well but then Kejriwal’s Delhi is far removed from her Delhi and the beautifully illustrated images of this book.
His constituency is different and he speaks for the urban poor and the disaffected. He is also a serial agitator but he also happens to be the elected Chief Minister unlike Jung who is a political appointee (chosen by the Congress but now increasingly favoured by the Narendra Modi government).
Partial statehood for Delhi and the unusual constitutional provisions that were laid down when it was granted this status was bound to lead to this crisis. Power sharing between an elected government and its unelected LG was always going to be a challenge particularly on account of Article 239 [AA and AB] of the Constitution. Under this provision, the LG enjoys far greater discretionary powers than governors of other states. However, clause 4 of the Article while hedging this power also grants him the right to override the Chief Minister and his cabinet under special extenuating circumstances.
The question to be asked is was there in this instance any cause for the exercise of this discretionary power? More critically to the central question of appointment of the Chief Secretary, which was the proximate trigger for this crisis, are there any special provisions or rules concerning this position? The short answer is No! And neither the LG nor the Chief Minister has the exclusive power to overrule the other and should there be an impasse the matter needs to be referred to the President. And that is precisely where the matter rests as of now.
How do legal luminaries weigh in on this fracas?
Unsurprisingly, Prashant Bushan, a senior lawyer and a one-time comrade of Kejriwal and now his fierce critic slams the Chief Minister and rules in favour of the LG. He terms his erstwhile colleague’s action as brinkmanship. Senior counsel Gopal Subramanian takes a completely opposite view and says the Delhi government cannot be overruled by the LG. Incidentally, Subramanian was on the verge of becoming a judge of the Supreme Court but his appointment was allegedly stalled by the Modi government.
What about the main protagonists?
Neither the LG nor the Chief Minister have covered themselves in glory. Kejriwal has consistently shown a persistent failing in not being able to distinguish between being a reformer and an agitator. To reform and to deliver on his promises he needs to be able to work the system, however broken it may be. Being disruptive can be creative in the short term but it cannot be a favoured default mode; the citizenry whether the urban poor or the middle classes expect good governance. Kejriwal thus far has singularly failed in this responsibility.
The LG needs greater scrutiny as well. His tit-for-tat response to his Chief Minister’s antics make him look increasingly beholden to his new masters — the Modi government — and there has been a history of bad blood between the two even before this crisis.
Next, however far-fetched some of the mudslinging spewed by Kejriwal, it needs to be pointed that there are some tenuous links between Delhi’s power distribution companies and Gamlin, the disputed Chief Secretary. Indeed it appears even the LG much before this appointment did work briefly for Reliance as a consultant: A wearer of many hats, from the civil service to academics to a corporate and now a ceremonial head who believes he is there to rule and not reign.
On this matter of reign and rule, Subramanium endorses the ceremonial nature of the LG and says his action is ultra vires of Articles 14 and 239 AA of the Constitution and falls foul of the basic structure of the Constitution, thereby undermining the basic feature of democracy. The Transaction of Business — the rules relating to functioning of the legislative assembly of Delhi — important though it may be, is subordinate to will of the people of Delhi.
And in Delhi: India in a City, Kejriwal has the will of the people. However undeserving some may think he is!
— Ravi Menon is a Dubai-based writer, working on a series of essays on India and on a public service initiative called India Talks.
