THE DELHI DEBATE | Who has rightful rule over the National Capital?

The Centre is justified in passing an ordinance that accords powers to the LG over the elected government. The Constitution allows this, writes BANSURI SWARAJ

In this summer of 2023, the National Capital is experiencing a smog of misinformation being spread by the ruling Aam Aadmi Party (AAP) government. Since 2015, being dissatisfied with the limited role and powers granted to the government of NCT under Article 239 AA of the Constitution, the Kejriwal government has been at loggerheads with the Central government. The latest flash point seems to be the promulgation of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which gives the Lieutenant Governor executive control over matters concerning transfer posting, vigilance and other incidental service-related matters of the bureaucrats in the government of New Delhi.

On May 19, the Central government promulgated an ordinance giving the Lieutenant Governor (pictured above, Delhi LG VK Saxena) administrative powers in relation to the services of the officers of the NCT government. (HT File )

The Aam Aadmi Party has launched a media and political campaign declaring the said ordinance as contrary to constitutional principles as well as in violation of the judgment of the Supreme Court of India. Chief Minister Arvind Kejriwal, during one of his press conferences said that the ordinance is in contempt of the Supreme Court of India in an attempt to pit the Central government against the apex court.

As a student of law and an advocate practising before the Supreme Court, I feel it is my duty to clear this smog of misinformation and shine some light on the legality and necessity of the ordinance.

Is the ordinance legal?

Yes, it is. Since independence, Delhi has never been accorded full statehood under the provisions of the Constitution. Delhi, being the Capital, belongs to all the people of India. The Hon’ble Chief Justice of India, while delivering the Constitutional bench judgment observed, “It (NCT) embodies, in its character as a Capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.”

Keeping in mind the significance of the Capital, not only in the domestic sphere but also in international relations, Delhi has always been accorded a hybrid or a quasi-state status, where the Central Government has overriding powers in managing affairs. Article 239AA was introduced into the Constitution by way of the 69th Amendment and came into force on 1.2.1992. It granted special status to the National Capital Territory of Delhi under Part VIII of the Constitution. While its inclusion in Part VIII indicates that NCT is identified as a Union Territory, Article 239 AA provides it special status in the form of its own Assembly, direct elections, Council of Ministers and a local government with legislative and executive powers.

A perusal of the provisions of Article 239 AA would show that the Central Government has been granted supremacy over the affairs of the NCT of Delhi. Under Article 239 AA (3), Parliament has been granted full powers to make laws on all subjects without any restriction. It further clarifies, that if there is any conflict between the law passed by the Assembly and the law passed by the Parliament, then the latter shall prevail.

Even in the areas of functioning of the NCT government, the Lieutenant Governor has been granted special powers. Under Article 239 AA (4), the Lieutenant Governor has the power to expressly disagree with the decision of the NCT government. In case of such a disagreement, the matter has to be decided by the President acting on the aid and advise of the Central government. Under the Constitution, such kind of power to disagree with the Council of Ministers or the Chief Minister, is specially provided only to the Lieutenant Governor of NCT of Delhi, and the same has not been granted to any Governor under Article 163 nor to the President of India under Article 74.

This legal position has been upheld by the Supreme Court in two of its Constitutional bench judgments delivered on July 4, 2018 and on again on May 11, 2023. In its latest judgements delivered on May 11, 2023, the Supreme Court concluded that the executive powers of NCT of Delhi shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament.

Such being the position of law, as affirmed by the Supreme Court, the Central government is well within its powers to pass any law to regulate the working of the Delhi Government, as and when necessary. Such exercise of power is neither unconstitutional nor against the judgment or in contempt of the apex court.

Why was the ordinance necessary?

Having now clarified the legal position, I must highlight the necessity for the Central government to pass the ordinance. The Aam Aadmi Party which came into existence out of an anti-corruption movement, is today embroiled in several high-profile corruption cases. Despite promises and claims of eradicating corruption, the fact of the matter is that several leaders of the Aam Aadmi Party, including cabinet ministers, have been arrested in connection with corruption cases.

Several other matters involving irregularities of the Kejriwal government were being investigated by the Directorate of Vigilance and Anti-Corruption department of the NCT government. The Directorate of Vigilance is operated under the supervision and control of the Chief Secretary, who is also the Chief Vigilance Officer for the NCT government. The important documents and files, which were part of the ongoing sensitive investigation, were kept in the custody of Mr. Rajasekhar, IAS, Special Secretary (Vigilance).

On May 11, the Supreme Court passed its judgment granting administrative control over the services of NCT government officials to the Kejriwal government, on grounds that there is no legislation passed by the Parliament on this issue. Immediately, on the same day, the Kejriwal government removed the Secretary with unprecedent promptness.

Thereafter, on May 13, Mr Saurabh Bharadwaj, cabinet minister in the Kejriwal government, directed withdrawal of all work from Mr Rajasekhar and transferred it to other officers. Further, during the intervening night of May 15 and 16, the office of Mr. Rajasekhar was illegally accessed and sensitive files and records relating to various corruption investigation were removed.

Thus, there appears to be a clear intention of the Kejriwal government to interfere with and compromise the investigations that are ongoing against various leaders of the Aam Aadmi Party. The power to administer services was being deliberately misused to shield the corrupt and destroy sensitive evidence. In fact, on June 2, the Delhi Police lodged an FIR, on a complaint filed by Mr. Rajasekhar, in relation to this illegal removal of sensitive files and records from his office.

Keeping in mind the significant and unique status of the National Capital, the Central government on May 19, promulgated the said ordinance, thereby giving the Lieutenant Governor, the administrative powers in relation to the services of the officers of the NCT government. The objects and reasoning of the ordinance clearly record that any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum.

As explained, the Central government has the Constitutional power to pass any law in relation to the administration of the NCT government. Since Parliament was not in session during the relevant period, the Central government passed the ordinance to deal with the pressing situation prevailing in NCT of Delhi.

Perhaps, the current actions of the chief ministers of NCT Delhi and Punjab, can shed some light on Aam Aadmi Party’s true intentions. The two were on a national tour to garner support against the ordinance. Surprisingly, Mr. Kejriwal is seeking support from leaders of the parties, who Mr. Kejriwal himself had once accused of being tainted with corruption. Only Mr. Kejriwal can answer, why he is seeking support from such leaders. This shift in rhetoric is astonishing, especially for a party that sought support from the electorate on the plank of anti-corruption. The Central government had to notify the ordinance to ensure that the members and ministers of the Aam Aadmi Party, accused in corruption cases are not protected through destruction of evidence. It seems that the intoxication of power has led to a tectonic shift in the ideology of the Aam Aadmi Party that is now trying to shield its khas aadmis!

Bansuri Swaraj, is the co-convener Delhi BJP Legal Cell. The views expressed are personal.