The tussle between Delhi chief minister Arvind Kejriwal and lieutenant governor Najeeb Jung over appointments of officials has reached President Pranab Mukherjee's court but legal luminaries are sharply divided on the stand taken by the two sides.
While a section of lawyers contends that there were limited executive powers available with Kejriwal under the law, others feel that no power is vested in the lieutenant governor that can obliterate the democratic mandate of the elected government.
"From the constitutional point of view, Delhi government has a very limited executive power. The basic administrative powers are vested in the lieutenant governor. The power of Delhi government can always be superseded by the President," says senior lawyer Prashant Bhushan, a comrade turned critic of Kejriwal.
Fearing that "brinkmanship" being shown by Kejriwal may do more harm than good for Delhi, Prashant Bhushan, recently ousted AAP rebel, said the "legal opinion on which Delhi government is locking horns with the lieutenant governor is questionable."
Taking a diametrically opposite view, senior counsel Gopal Subramanium said a "strong case can be made out to suggest that the exercise of the power by the government of Delhi cannot be overruled by the lieutenant governor as this could violate the constitutional scheme."
Overruling the Delhi government's decision would be "lieutenant ultra vires of Articles 14 and 239 AA of the Constitution and would also fall foul of the basic structure of the Constitution as it undermines the basic feature of democracy," Subramanium said in his opinion given to the Delhi government.
Meanwhile, the Centre is mulling various options, including sending a strong message to the Delhi government to run the administration in accordance with Constitutional provisions (under Article 355), in the wake of ongoing controversy triggered by the appointment of a top bureaucrat.
Senior Congress leader and eminent lawyer Kapil Sibal has another take on the issue as he says "both (Centre and Kejriwal) are playing politics. Chief minister of Delhi is a permanent agitator and because he has no experience nor a constructive state of mind, he is constantly in conflict with the union government."
On the contrary, BJP-led central government is not reconciled to its "dismal defeat" in the Delhi elections and is out to "destabilise" the Kejriwal government, he added.
"Unless the issue is resolved across the table, the people of Delhi are suffering and will continue to suffer," said Sibal.
Bhushan seemed to agree, contending, "If you do such brinkmanship, it may result in the imposition of President's rule in Delhi. They (Aam Aadmi Party) are not taking proper opinion or maybe they are guided by the short-term considerations."
Article 239AA of the Constitution clearly states that the Legislative Assembly of Delhi shall not have power to make laws relating to subjects such as public order, police and land.
Reiterating this point, Vikas Singh, former additional solicitor general of India, told HT, “In the case of appointment of chief secretary, commissioner of police, state home secretary and secretary (land), it is the LG who has the power. Rest of the appointments should normally be made on the advice of the state cabinet.”
Lieutenant governor Najeeb Jung had ordered the appointment of Shakuntala Doley Gamlin, a 1984-batch IAS officer and wife of late Arunachal Pradesh CM Jarbom Gamlin, as the interim chief secretary of Delhi on May 15.
Kejriwal had then responded to the move by sending an unsigned typed note accusing Gamlin of being "unsuitable" for the post and trying to "favour (discom) BSES (promoted by Reliance Industries Limited) for proposing a comfort letter for their loan from Power Finance Corporation".
The turf war has only escalated as Kejriwal issued an order that any instructions — oral or written — from the L-G’s office or those issued by the acting chief secretary will have to be approved by the CM or the minister concerned.
Citing provisions in the transaction of business of the government of NCT of Delhi rules, 1993, AAP leader issued instructions to "route files pertaining to matters connected with public order, police and land through chief minister’s office (CMO)".
All three key departments are not under the CM.
However, the demand was flatly refused, leading to heightened tensions between two of the Capital’s most powerful figures.
Jung's office released a statement saying, "All files relating to matters for which legislative assembly can make law should come to the L-G for final approval,” after Kejriwal's principal secretary wrote to all government offices to "not bother the lieutenant governor's office".
Important departments such as law and order and police, in addition to crucial agencies such as the Delhi Development Authority, function under the Centre and are effectively headed by the L-G, who reports to the Union home ministry.
The two have been on a collision course since Kejriwal’s first term, when Jung criticised the AAP chief for sitting on a dharna that threatened the Republic Day parade last year.