The Modi government is completing one year in power at the centre, and Arvind Kejriwal is racing towards his 100 days of governance in Delhi - and if one compares both honestly, one can see the difference. Modi is all about hype and hoopla, and Arvind is about delivery, and that is the reason the BJP is worried and its Dirty Tricks Department is working overnight to discredit AAP and squeeze the government with unfair pressure. The latest example is the Lieutenant Governor's attempt to usurp the power of an elected Chief Minister and appoint an acting Chief Secretary without his consent. This is not only a violation of the constitution, but also conspiratorial.
Yes, I agree that Delhi is not a full state. The Chief Minister does not have as many powers as enjoyed by other state leaders. In the capital, the LG is not a ceremonial figurehead like other governors. Powers of Police, Law and Order and Land are directly in the hands of the LG. But that does not mean that the Chief Minister of Delhi is just a titular head and he is a subordinate to the LG. This raises certain fundamental questions which need to be understood if parliamentary democracy has to work smoothly.
1. AAP has won 67 seats and it is the duly elected government with a sovereign assembly reflecting the will of the people. Arvind Kejriwal is a constitutionally-elected Chief Minister. Now the question is, does an elected Chief Minister have right to choose a Chief Secretary or not ? In a parliamentary democracy, it is the prerogative of the elected Chief Minister to choose his/her team for the smooth delivery of the promises made during elections. He is the face of the government, and not the Lieutenant Governor, who is appointed by the central government. And in a democracy, an appointed authority can't be given precedence over an elected constitutional body. The LG in Delhi is trying to violate this fundamental spirit of democracy and the constitution.
2. The Lieutenant Governor has also violated the constitution. Article 239 AA (4) clearly lays down the process by which a difference of opinion between the LG and the CM is resolved: "provided that in the case of difference of opinion between LG and his minister on any issue, the LG shall refer it to the president for decision and act according to the decision given thereon by the president and pending such decision it shall be competent for the LG , 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 manner as he deems necessary. "
But this act has to be read with the transaction of business rules (TBR) 49, 50, 51, and 52, which clearly mention that the LG can't act and direct the department, bypassing the minister concerned. TBR clearly spells out the ground rule. TBR 51 talks about the presidential reference and urgency clause for immediate action by the LG, but it has to be read with TBR 52 which says - "where a direction is given by the LG IN PURSUANCE OF RULE 51, THE MINISTER CONCERNED SHALL TAKE ACTION TO GIVE EFFECT TO SUCH DIRECTION."
(emphasis mine)In this case the LG has violated the law on two counts. Firstly, he has not sent the matter for presidential reference when there was difference of opinion between him and the Chief Minister for the appointment of the acting CS which he should have done and which is a violation of Article 239AA(4). Secondly, in case of urgency when the LG is required to act, he has violated TBR Rule 52 which unambiguously states that he can't give directions to the secretary or the department bypassing the minister for the notification of the appointment of the acting Chief Secretary. In this case, he has given direct orders and not via the minister concerned, Manish Sisodia.
In the absence of the presidential reference, his order is otherwise also null and void. Now the question is why has the Lieutenant Governor done this? And why has his act been justified by the central Home Ministry to whom the Lieutenant Governor reports? Ideally, the central Home Minister should have reprimanded the Lieutenant Governor and set things right. Since that has not been done it clearly indicates a deep rooted conspiracy by the Modi government to destabilise the duly elected government in Delhi. In view of the above, AAP has no option but to seek an appointment with the President of India and apprise him of the situation, hoping justice will be done.
3. There is another side of the story too which makes it more dangerous. The conduct of the officer concerned who has been appointed as the acting Chief Secretary raises serious doubts. The Power Minister has written a letter to the LG which has been reported on in the press which alleged she had been putting pressure on the minister to sign a "comfort letter" addressed to Power Finance Corporation for a loan amounting to Rs. 11,000 crore to power companies. This is a kind of guarantee letter to the Corporation on behalf of the power companies including one owned by Reliance that if they default in repaying the loan, it would be incumbent on the Delhi Government to settle the debt. The question is, when the LG has been apprised of the matter orally many times, and finally in writing, then why is he hell-bent on appointing such an officer in violation of the constitution?
4. It will also be pertinent to ask a simple question - why is Mr. Najeeb Jung continuing as the LG of Delhi when all other governors appointed by the earlier UPA government have been replaced/sacked?
The matter is extremely serious and it's a question of constitutionality too. Modi is known to not forget his friends and foes. He also has a strong authoritarian streak and the way governors have been removed/ sacked and the way the LG has been allowed to behave strongly hints at contempt for the opposition. This is against the spirit of the federalism and in the long run will jeopardize the centre state relations. Today it is AAP, tomorrow it will be others. It has to be protested and stopped.
(Ashutosh joined the Aam Aadmi Party in January 2014. The former journalist took on former Union minister Kapil Sibal and Health Minister Harsh Vardhan in the national election from Chandni Chowk in Delhi.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.