The AAP government’s decision to set up a commission of inquiry headed by senior advocate Gopal Subramanium to probe alleged irregularities in the DDCA has raised many questions of law and ethics.
Both the subjects that relate to the controversy — sports, societies and associations — are in the state list of the seventh schedule of the Constitution. Since executive powers are co-extensive with legislative powers, the Kejriwal government is claiming that it’s well within its power to order such an inquiry.
But things are not that simple in case of the National Capital Territory of Delhi.
First, Delhi is not a full-fledged state. There are many areas where the lieutenant governor enjoys exclusive powers by virtue of Article 239AA of the Constitution.
Already, there is a power-tussle going on between the lieutenant governor Najeeb Jung and chief minister Arvind Kejriwal. On May 21 this year, the Union home ministry issued a gazette notification giving more powers to the L-G.
Senior advocate Upamanyu Hazarika said institution of an inquiry commission is not within the Delhi government’s jurisdiction. “Given the peculiar status of Delhi, the state government has to get the inquiry commission approved from the lieutenant governor (Centre’s representative),” he said.
NCT government is taking shelter under a request sent to it during UPA rule that the matter should be inquired into. But the real question is: can the AAP government set up a commission of inquiry without the L-G’s consent?
The question becomes all the more important because its earlier order to set up a commission of inquiry to probe an alleged scam involving several officials of the previous Sheila Dikshit government in the grant of CNG fitness certificates to vehicles was stayed by Delhi high court after being challenged by the MHA. Will this order meet the same fate?
According to Hazarika, section 3 of the Commission of Inquiry Act mandates only the central government to hold such a probe. He adds it is inappropriate on the part of Arvind Kejriwal government to have ordered the commission of inquiry, especially in view of the fact that the HC is yet to adjudicate the issue whether the L-G could be given absolute power in administrative matters.
Second, there are questions being raised over the choice of a non-judicial person to hear the commission of inquiry. Though, the Commission of Inquiry Act, 1952 does not make it mandatory to be headed by a judge, the convention has been to assign the job to a sitting or a retired judge. Deviation from the well-established convention makes the decision questionable.
Third, Subramanium – a former solicitor general and a reputed lawyer - has been advising the AAP government and even appeared for it in many matters in courts. This raises questions over the choice.