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Arvind Kejriwal needs to stop cribbing now because he knew very well what he walked into

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Arvind Kejriwal has to play second fiddle to the lieutenant governor, the Constitution says so.

New Delhi: Amid the allegations about Aam Aadmi Party (AAP) MLAs assaulting Delhi chief secretary Anshu Prakash at Chief MinisterArvind Kejriwal’s residence, the AAP government and its party leaders have once again raised the issue of a lack of powers, with “officers refusing to listen to” elected ministers being the most common complaint.

With government officers hardening their stance and one AAP MLA going to the extent of exhorting people to beat up public servants who sit on files or refuse to work, the tussle seems to have reached a point of no-return. As expected, the BJP-led central government is using the opportunity to queer the pitch for the Delhi government.

But claims and counter-claims notwithstanding, it is a fact that Delhi isn’t a state – it is a union territory with an elected assembly, a position that is similar to Puducherry. The difference between the two is that, unlike the Kejriwal government, the Congress chief minister of Puducherry, V. Narayanasamy – he is also saddled with a strong-minded, Narendra Modi government-appointed Lt. Governor Kiran Bedi – doesn’t issue statements against the LG on a daily basis or pick fights with the bureaucrats. This is not to suggest that Narayanasamy doesn’t have a long list of complaints against Bedi, who, it is very clear, is much more proactive than her Delhi counterpart, Anil Baijal.

A simple reading of the Constitution – Delhi draws its special status from Article 239AA – inserted through the Constitution (69th Amendment) Act, 1991 – is enough to show that, the special status notwithstanding, there was never any legislative intent to grant the Delhi chief minister or his ministers the same powers enjoyed by his counterparts in the full states.

Several constitutional experts, including Soli Sorabjee, have incidentally pointed to constitutional infirmities in Article 239AA. But, till the time either the court – a constitution bench of the Supreme Court sometime back reserved its judgment on the matter of Centre versus Delhi government – or Parliament takes out the offending parts of the act through a legislation, the democratically-elected Delhi government will always be the notional head (for want of a better word) of the NCT of Delhi, always hindered in his working by the Centre, if the Centre doesn’t like it for some reason.

Incidentally, the fact that the LG has primacy was underlined by the five-judge bench during hearing also. “Article 239AA (of the Constitution) is unique to Delhi. Prima facie it appears that it gives more power to the lieutenant governor unlike other Union Territories. LG in Delhi has the primacy under the Constitution,” the bench noted.

The smart politician that he is, there is no way Kejriwal wasn’t aware of this significant gap in what any other CM and a Delhi CM can do or can’t do when he was planning his first campaign for Delhi assembly.

The Delhi assembly has the power to legislate on all subjects except subjects like law and order and land. But, even on issues where the Delhi assembly can pass legislations, the same can always be overridden through laws by Parliament.

Moreover, even the clauses of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, are loaded against the “elected” government, giving too much discretion to the LG to interfere.

Every time, he wants to stall something, the LG, under the rules, has been empowered to refer the matter to the Union government through the home ministry. But, Kejriwal can’t complain. The law allows the LG to do so.

Under Rule 45 of Chapter VI the 1993 Rules, the LG, in case he doesn’t agree with the views of the chief minister or the entire council of ministers on any issue, can refer the matter to the Union government for a decision by the President, a decision he is legally bound to accept.

And, it doesn’t require a very smart person to figure out the answer to this question: Who (in almost all cases where the LG doesn’t agree with the CM or his cabinet) will the President side with? A hint: the President acts on the advice of the central government, and that is the BJP in this case!

The situation wasn’t any different when Sheila Dikshit was heading a Congress government in Delhi. For about five years — from 1998 to 2004 — she also had an adversarial NDA government at the Centre but she wasn’t always ranting against the officers or the Centre.

The strong differences between the LG and the Kejriwal government could also be due to the fact that AAP, a byproduct of anti-government agitations, would like nothing better than to play the martyr.

During the hearing of the AAP government plea challenging the Delhi High Court judgment on the issue of its powers vis-à-vis the Centre, senior advocate Indira Jaising, arguing for the Kejriwal government, did make out an argument for making it clear who runs Delhi.

“Who is the commander-in-charge of the National Capital Territory (NCT) — AAP government or the Centre,” she asked the five-judge bench.

While acknowledging that Delhi wasn’t a state just because it has an assembly and a council of ministers headed by the chief minister, Jaising, said there was need to clearly demarcate the powers of the Centre (LG) and the Delhi government.

Hopefully, in its judgment, the SC will do so.

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