AAP vs Najeeb Jung: What Does the Constitution Say?

The Delhi HC has struck down AAP’s petition; does Delhi constitutionally still remain a half-state?

The Delhi High Court has dismissed the petition filed by the Arvind Kejriwal-led government. (Photo Courtesy: Liju Joseph/The Quint)

The long tussle between Aam Aadmi Party (AAP) government and Delhi’s Lieutenant Governor (L-G) Najeeb Jung seems to be at an end, for now.

The Delhi High Court has dismissed the petition filed by the Arvind Kejriwal government. The petition challenged the powers of Lieutenant Governor (L-G) Najeeb Jung by questioning the Centre’s notification, dated 21 May 2015. The notification gives the L-G absolute power in appointing bureaucrats in Delhi.

Clearly, the crux of the fight between AAP and Najeeb Jung is the special status given to Delhi by the Constitution. But what does the special status entail? And what exactly does the Constitution say about the relationship between LG and the legislative government in Delhi?

Not a Union Territory, Not Yet A State

The constitutional status of Delhi is fuzzy at best.

Delhi was a Union Territory until 1992. Under Article 239 of the Constitution, every union territory is under an administrator (which would be the position of a Governor). The administrator governs on the directions of the President.

But on 1 February 1992, Article 239 was amended. Under Article 239AA, Delhi was given special provisions and was deemed a National Capital Territory. The administrator of the National Capital Territory was the Lieutenant-Governor. The Aam Aadmi Party (AAP) used this special status given by Article 239AA as grounds to challenge the Centre’s notification.

The appointment of Delhi’s Chief Secretary Shakuntala Gamlin was the major flashpoint in the AAP-Najeeb Jung tussle. (Photo: PTI)

Why Is Everyone Obsessed with Article 239AA?

Under Article 239AA, the National Capital Territory of Delhi has a Legislative Assembly which has the power to make powers for the territory except for three subjects included in the State list. This is different from other Union Territories where the Legislative Assembly is under the Governor.

Also Read: AAP, Jung at War Again: L-G Calls DDCA Probe Panel Illegal

The special status also states that a Council of Ministers in Delhi under the Chief Minister shall be constituted. With respect to the relation between the Chief Minister, the Legislative Assembly and Lieutenant Governor, the amendment clearly states the following:

There shall be a Council of Ministers consisting of not more than ten percent. Of the total number of members in the Legislative Assembly, with the Chief Minister at the head 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, except in so far as he is, by or under any law, required to act in his discretion.

This crucial clause has been a source of dispute for AAP and Najeeb Jung.

AAP has argued that the Lieutenant Governor can only act on the Chief Minister’s advice. The Delhi High Court, on the other hand has ruled that the AAP government’s contention that the L-G is bound to act on the aid and advice of Council of Ministers was “without substance and cannot be accepted”.

The Three Exceptions

But, the source of the dispute between the AAP government and Najeeb Jung goes back to the appointment of Shakuntala Gamlin as Delhi’s Chief Secretary.

According to Article 239AA, the Legislative Assembly in Delhi is within its rights to rule on all subjects in the state except for entries 1, 2 and 18 on the State list. These subjects are:

• Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).
  
  
• Police (including railway and village police) subject to the provisions of entry 2A of List I.
  
  
• Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
  
  

The appointment of Chief Secretary falls in the cracks between public order, police and land.

Arun Jaitley has been at the centre of the DDCA scam investigation initiated by Aam Aadmi Party. (Photo: PTI)

How The High Court Read The Constitution

So what has the Delhi High Court said today?

Basically, it has dismissed AAP’s plea challenging the power of the L-G, Najeeb Jung. A bench of Chief Justice G Rohini and Justice Jayant Nath has also said that notifications issued by Kejriwal after returning to power in 2015 are illegal.

On the issue of Delhi being administered as a Union Territory, the court has observed that the special status given to Delhi in its amendment does not overrule the powers given by Article 239 to the Lieutenant Governor.

The L-G remains the administrative head of Delhi. Interestingly, the court has also stated that the AAP government’s inquiry into the Delhi and District Cricket Association (DDCA) scam and the CNG scam are illegal because they were instituted without Jung’s consent.