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HindustanTimes Fri,24 Oct 2014
Kejriwal should have done his homework
Omesh Saigal
March 11, 2014
First Published: 23:56 IST(11/3/2014)
Last Updated: 00:05 IST(12/3/2014)

We have an intense capacity to be surprised. Be it the precocity displayed at a party by our otherwise well-behaved son or the occasional roving eye of the husband, it is always our lot to be surprised.

So it is with Arvind Kejriwal, who was ‘surprised’ that what he headed was not a state government but Union Territory administration and he needed a nod from the lieutenant governor (L-G) before he could even move certain Bills in the assembly!

Imagine how surprised he was to learn that he lacked authority over the anti-corruption branch, which he had been directing with impunity to register corruption cases against all and sundry, or that his decision to waive the electricity dues of 24,000 of his supporters actually could amount to corruption, the eradication of which is so close to his heart!

The Delhi Police Act, 1978, states: “[T]here shall be one police force for the whole of Delhi” and lays down that the “superintendence of the Delhi Police throughout Delhi shall vest in, and be exercisable by the Administrator ...” It enables the police commissioner, subject to the control of the administrator, to define the limits of the districts, sub-divisions and police stations. These provisions show the anti-corruption branch has to be part of the Delhi Police and functions under the control of the administrator, who is the lieutenant governor.

It may be argued: Does the LG not have to act on the advice of the Cabinet? A mere reading of Article 239AA of the Constitution of India, under which the assembly and Cabinet were set up in Delhi, shows that this is not the case.

The Article states: “[T]here shall be a Council of Ministers … to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws …”’

With regard to the legislative powers of the assembly, the Article goes on to state: “Subject to the provisions of this Constitution, the 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”. The police, including the anti-corruption branch, are one of the three subjects kept out of the purview of the legislative assembly.

As for waiving the electricity arrears of the people who participated in the Kejriwal movement, it is clear that the government had no authority to do so in respect of a private entity. If the people are to be given a waiver, the government will have to pay the bills or give money to the people to clear their dues. Such payments could well fall foul of the Prevention of Corruption Act.

The Act states when a public servant “dishonestly (meaning causing wrongful gain or loss, according to the Indian Penal Code) or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him”, he is guilty of criminal misconduct.

Isn’t paying someone’s electricity dues out of the government exchequer, without any scheme or provision for it, an instance of wrongful gain?

The amount has still to be disbursed. Everyone concerned, especially the bureaucrats, who are usually the victims of such political excess, should be doubly careful before releasing this amount. If at all it has to be done, let it be done after preparing a scheme with the approval of the finance and law departments and getting funds voted for the purpose.

Omesh Saigal is former chief secretary, Delhi
The views expressed by the author are personal


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