Najeeb Jung vs Arvind Kejriwal in Delhi: A battle of perceptions, a war of attrition

Read: Jung-Kejriwal faceoff; Don’t bother LG with all files, orders CM

Q: On February 26, Kejriwal wrote to Jung, referring to the amended Rule 45 of the Transaction of Business of the Government of NCT of Delhi Rules, 1993, to argue that the LG was obliged to consult the CM in matters related to the three reserved subjects. What is Rule 45?

In 1997, Chief Minister Sahib Singh Verma asked for an amendment to the rule that did not leave him with any say on reserved subjects. Rule 45 was subsequently amended to read, “…The LG shall in respect of matters connected with public order, police and land exercise his executive functions to the extent delegated to him by the President, in consultation with the Chief Minister if it is so provided under any order issued by the President under Article 239 of the Constitution.”

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Q: Did the amendment bring about a substantive change in the powers of the Chief Minister of Delhi? 

Only in respect of cases where the President asks that the CM be involved. However, a gazette notification of September 24, 1998 clarified that the LG could still ignore the CM, as long as he gave a reason for it. The notification read: “LG… shall in respect of matters connected with public order, police and services exercise the powers and discharge the functions of the central government to the extent delegated to him from time to time by the President, in consultation with the Chief Minister except in those cases where, for reasons to be recorded in writing, he does not consider it expedient to do so.” According to experts, Kejriwal may have failed to take a holistic view of the amendment. In his response sent in April, LG Jung made it clear that he was not obliged to send the files to the CM.

Read: Not obliged to send files to CM, says Jung

Q: On April 29, Kejriwal asked all departments of the government to not “bother the office of LG” by sending him files. He referred to Article 239AA 3(a) of the Constitution. What is this provision?

Articles 239AA and 239AB were introduced by the 69th amendment that came into force in 1992, providing for a legislative assembly and council of ministers for Delhi. Sub-section 3(a) reads: “…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 in the Concurrent List in so far 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 in so far as they relate to the said Entries 1, 2 and 18.” Entries 1, 2 and 18 are matters related to public order, police and land respectively.

Read: Take back order on files, L-G Najeeb Jung to CM Kejriwal

Q: Kejriwal also referred to Articles 74, 163 and 167 of the Constitution. How are these provisions relevant to this debate?

Despite the legal and constitutional position on the ground, the CM has been positioning Delhi as a full fledged state, and referring to provisions that are applicable to ‘full’ states in his communication with the LG. He has been trying to draw a parallel between articles of the Constitution and Sections 41 and 45 of the GNCT Delhi Act, 1991. Article 74 provides for a Council of Ministers at the Centre to aid and advise the President, Article 163 provides similarly for a Council of Ministers in the states to aid and advise the Governor, and Article 167 lists the duties of the CM on furnishing information to the Governor. Section 41 of the GNCTD Act, 1991 lists the situations in which the LG must act in his discretion, while Section 45 is about the duties of the Chief Minister with regard to furnishing information to the LG.

In taking on the LG Najeeb Jung, CM Arvind Kejriwal is audacious and imprudent.

Q: The April 29 order referred to multiple sections of the GNCTD Act and compared practices of administration in Delhi with those in other states and the Union government. How relevant are these comparisons?

Legal and constitutional experts believe these comparisons are not apt because Delhi is not a ‘full’ state. The Transaction of Business Rules are subordinate to the Constitution. “These Rules, laid down by the President under Section 44 of the GNCTD Act, are for civil servants, bureaucrats and ministers, and are heavily tilted in favour of the LG, who is the Administrator. The key point here is that while in other states, the CM may act without informing the Governor, in Delhi, the LG is the final authority for approval of all laws enacted by the assembly. In case of a difference of opinion between the CM and LG, the matter may be referred to the President through the Home Ministry. The President’s decision will be final and binding on all parties,” said S K Sharma, former secretary of the LokSabha and Delhi assembly.

Q: What is the way forward in this matter?

According to experts, the CM could approach the Home Ministry and suggest amendments in the Transaction of Business Rules. Despite the limitations on their power, past Delhi CMs have been able to get things done by taking a non-confrontational path. “The state does not run on rules, it runs on mutual understanding and respect,” said a top official. Another expert said: “Despite a non-BJP government being in power at the Centre, Sahib Singh Verma and Madan Lal Khurana were able to run Delhi and get things done. Cooperation and personal equations matters most in running Delhi.”