Centre's notification unconstitutional: experts to AAP govt

Centre's notification unconstitutional: experts to AAP govt

Centre's notification unconstitutional: experts to AAP govt

Two eminent lawyers today termed "unconstitutional" and "illegal" the Centre's notification giving absolute powers to Delhi Lt Governor in appointment of bureaucrats and on subjects like police and public order and said the Chief Minister's authority cannot be undermined.

After AAP government sought their opinion, constitutional expert K K Venugopal and former Solicitor General of India Gopal Subramanium questioned the very foundation of the gazette notification issued by the Home Ministry and wondered whether it has requisite approval of the President.

In his opinion, Venugopal said if a democratically elected government has been brought into power by the people, then the 'public services of the state' should be controlled by the elected government.

Giving a thorough review of the notification linking provisions in the Constitution and Supreme Court's ruling in a number of cases, he said the notification is "unconstitutional, illegal and void". On appointment of Chief Secretary, Venugopal said "undoubtedly, the Chief Secretary is the lynchpin of executive governance. He is to have the confidence of the Chief Minister and the Council of Ministers, and so too other secretaries to the government.

"If government is given a Chief Secretary who obeys the orders of the administrator and not of the council of Ministers or the Chief Minister, this would be a sure recipe for disaster."

The appointment of senior bureaucrat Shakuntala Gamlin as acting Chief Secretary by LG last week had triggered a full-blown war between the ruling AAP and the Lt Governor, with Kejriwal questioning the LG's authority and accusing him of trying to take over the administration.

In the notification, the Home Ministry said that the LG will have jurisdiction over matters connected with services, public order, police and land and he may consult with the chief minister whenever he thinks necessary in issues of services using his own "discretion".

In his opinion, Subramanium said the notification "is illegal and unconstitutional. Presumably, it has been issued without the requisite Presidential approval."In a sharp reaction to issuance of the notification, Kejriwal accused the Centre of "back-stabbing" the people of the city by "siding" with the Lt Governor and protecting the corrupt.

Questioning the timing of the notification, Subramanium wondered why it was issued when the President was examining the matter.

"Normally, when matters are under consideration before the highest constitutional functionary, namely, the President and the President is taking time to examine the matter from all aspects, including the constitutionality of actions of certain individuals, it does, prima facie, seem inappropriate that a further notification be issued under the name of the President," he said.

About authority over the bureaucrats, the former Solicitor General said the Chief Minister ought to have control over them subject to constitutional requirements."It is not possible that any of the officers who are appointed to serve directly under the Chief Minister, as well as the departmental ministers, and report to an extraneous authority called the Lt Governor, to whom no such power is conferred either by the Constitution or the GNCT Act, 1991," Subramanium said.

He also observed that "the Lt Governor is not a 'Governor' in the sense by which the Constitution expressly refers to governors.

"In fact, if the Lt Governor was a Governor, then the appointment of the Chief Minister and the Council of Ministers would take place only by the Lt Governor and they would hold office during the pleasure of the Lt Governor. In the absence of such a provision, it is clear that the Lt Governor is not a Governor," he said.

The lawyer said it was "very hard" to believe that the notification has the requisite Presidential approval.

"It singularly lacks propriety when the President is still seized with the issue in question," he said.