The tussle between the Aam Aadmi Party (AAP) government and the Lieutenant Governor (LG) has become a regular feature. The root cause was about power: In which areas does the AAP and the LG have jurisdiction? The tussle occasioned a lengthy judgment of the Delhi High Court and thereafter an erudite and also lengthy judgment of the Supreme Court which was unanimous except on one issue.
One of the main issues before the court was whether the transfers and postings of secretaries, HODs and other officers in the scale of joint secretary to the government of India and above can be done by the LG and the file submitted to him directly, and whether in case of a difference of opinion between the LG and the chief minister, the view of the LG should prevail. Justice AK Sikri held that “the appointing and disciplinary authority is the President of India, as per the powers delegated by the President from time to time. Vigilance matters would get covered by the applicable disciplinary rules in terms of officers competent to initiate and take vigilance action”. Consequently the LG and not the AAP government would have jurisdiction in this field.
The following passages in the judgment are interesting and noteworthy. “The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation.… Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a rational anarchist, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.”
{{/usCountry}}The following passages in the judgment are interesting and noteworthy. “The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation.… Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a rational anarchist, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.”
{{/usCountry}}Another instructive passage is “the LG is expected to honour the wisdom of the Council of Ministers. He is also expected to clear the files expeditiously and is not supposed to sit over it unduly. He’s under duty to bear in mind expediency and urgency of the subject matter of the decisions taken by the Government of National Capital Territory of Delhi (GNCTD), wherever situation so demands. That in fact is the facet of good governance. Likewise, the executive is also expected to give due deference to the unique nature of the role assigned to the LG in the Constitutional scheme. By and large, it demands a mutual respect between the two organs. Both should realise that they are here to serve the people of NCTD. Mutual cooperation, thus, becomes essential for the effective working of the system.”
These passages have made no impression on chief minister Arvind Kejriwal, who has regrettably attacked the judgment as undemocratic and against the spirit of the Constitution. Kejriwal is entitled to say that the judgment is erroneous and it is open to him to adopt appropriate remedies. But disparaging statements are utterly unbecoming of a chief minister of the national capital territory of Delhi.
To be fair, Kejriwal is not the only politician to make deprecating comments about the judiciary. Politicians belonging to other political parties, including the Congress and the BJP, also indulge in the same game. It is forgotten that an independent judiciary is not a political party. It is a basic feature of our Constitution, the guardian and protector of our fundamental rights, a role, which, barring some exceptions, it has performed with courage and vision.
Soli Sorabjee is former Attorney General of India
The views expressed are personal