: Noted Constitutional expert K.K. Venugopal and former Solicitor General Gopal Subramanium have described the notification issued by the Ministry of Home Affairs giving absolute powers to Delhi Lieutenant Governor Najeeb Jung in certain matters as “illegal, unconstitutional and void”. Experts said the gazette notification should not have been issued when the President was seized with the matter of jurisdiction.
Elected representative
Former Supreme Court Judge Justice Markandey Katju said if there was a legal uncertainty on the matter, the democratic way of resolving it was by accepting Chief Minister Arvind Kejriwal’s views because he was an elected functionary and head of a democratically elected body, while Mr. Jung was not.
In their opinions submitted to the Delhi Government, which were discussed at a meeting of the State Cabinet here on Saturday, both Mr. Venugopal and Mr. Subramanium said the very foundation of the notification, relying upon two specific provisions of the Constitution dealing with the administration of Union Territories and conferring legislative powers on the Delhi Assembly, was flawed.
Mr. Subramanium said the powers purported to be exercised by a Constitutional functionary, as laid down in the notification, could be assailed in a court of law as fraud on the Constitution or a colourable exercise of authority. He advised the Delhi Government to immediately apprise the President of the infirmities with which the notification suffered.
The former Solicitor General said the notification had been presumably issued without the requisite Presidential approval. “It singularly lacks propriety when the President is still seized with the issue in question,” he said in a reference to the issue of the tussle having already been taken to President Pranab Mukherjee.
Erstwhile administrator
Mr. Subramanium said in view of the provisions of Article 239AA (special provisions with respect to Delhi) of the Constitution, it would be inconceivable that the L-G, who was an erstwhile Administrator of the Union Territory of Delhi under Article 239, would continue to exercise powers by virtue of being a so-called Administrator, and also that the President could delegate authorities or functions to him.
Mr. Venugopal dealt with the notification’s part dealing with the delegation of powers on the L-G in regard to “services” and observed that both the legislative as well executive powers of the State Government remained intact and inviolable.
“No delegation could have been made under the said notification to the L-G so as to enable him to exercise powers in regard to ‘services’ in his discretion,” said Mr. Venugopal, adding that it would always be open to the Delhi Government to bring into existence, through an exercise of executive power, a “public service” for the State and make appointments to whatever posts it chooses.
Writing on his blog, Satyam Bruyat, Justice Katju referred to Article 239 (6) of the Constitution providing that the Council of Ministers shall be collectively responsible to the Assembly. “This provision incorporates the principle of democracy that the people rule themselves, through their elected representatives. The stand of Mr. Jung is thus totally untenable,” he said.
“It is evident that Najeeb Jung is behaving like His Master’s Voice. Like Faust, he has sold his soul to a Mephistopheles (a demon featured in German folklore),” wrote Justice Katju.
In the notification issued on Thursday, the Centre had given absolute powers to the L-G in appointment of bureaucrats while also clarifying that he need not consult the Chief Minister on subjects like police and public order.
No delegation could have been made under the said notification to the L-G so as to enable him to exercise powers in regard to ‘services’ in his discretion
K.K. Venugopal
Constitutional expert
