It’s hard to understand why legal uncertainty is needlessly clouding the wanton drama between Kejriwal and Jung.
But before I present my views on this, let’s set something straight: Mr. Jung cannot act on his own will in a democratic country. And that’s the bottom line.
By the virtue of being democratically elected, Kejriwal axiomatically has an upper hand in the matter.
However, if one were confused about this matter, it is solely because of the media. The press has not stopped writing trash and propagating needless advises from ‘senior lawyers’ or serving delicious red herrings to the general public. Most of the articles published online have tried their best to make useless comments sound important, which is consequentially leading to the confusion.
The third last paragraph states:
“As per Rule 45 of Transaction of Business of the Government of NCT Rules, 1993, the LG may consult the CM only where the President issues an order to this effect under Article 329. Even this consultation may be bypassed, thanks to a September 1998 clarification to Rule 45 that exempts the LG from involving the Delhi CM in decisions where, for reasons to be recorded in writing, he does not consider it expedient to do so. “
First of all, LG may consult the CM only when the President issues an order to this effect under Article 239, not 329.
Second, TOI’s interpretation of Rule 45 of the Transaction of Business of the Government of NCT of Delhi Rules, 1993 and the resulting suggestion that “LG may consult the CM only where the President issues an order to this effect under Article 239” is anything but dubious.
Rule 45 of the Transaction of Business of the Government of NCT of Delhi Rules, 1993 states:
“Provided further that the Lieutenant Governor shall in respect of matters connected with ‘public order’, ‘police’ and ‘land’ exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister, if it is so provided under any ORDER issued by the President under article 239 of the Constitution.”
(Source, Ministry of Home Affairs: http://mha.nic.in/…/…/pdf/TransactionofBusinessRulesGovt.pdf)
The ‘order‘ that TOI mentions is, by a general and common understanding of language, in no way an order passed by the president on the matter of consultation, or at least when Rule 45 is construed simply and not subjected to needless surmises on its meaning.
Moreover, since the rule talks about the order being passed under article 239 of the constitution, let’s see whether Article 239 contains anything that can be related to ‘consultation’.
Provided Below is Article 239 of the constitution
\\239. Administration of Union territories
(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.\\
As we can observe, any order passed under article has little or no scope to be related with Lt. Governor’s consultation with the CM. Times of India has -knowingly or unknowingly- bequeathed opinions upon the public which turn out to be fallacious when subjected to scrutiny.
Sadly, this article is referenced by SCROLL in their article on the same matter. ( http://www.scroll.in/…/arvind-kejriwals-battle-with-delhi-l…)
Lastly, Rule 45 was clarified in September, 1998 in an notification in the Official Gazzete:
“LG… shall in respect of matters connected with public order, police and services exercise the powers and discharge the functions of the central government to the extent delegated to him from time to time by the President, in consultation with the Chief Minister except in those cases where, for reasons to be recorded in writing, he does not consider it expedient to do so.”
However, the LG has given no reason in writing for not consulting the CM, but has simply announced that he’s not consulting Kejriwal because he has the power to take decision all by himself, which is spectacularly unreasonable and infantile, if not stupid.
By Ayush Tiwari
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