Delhi Chief Minister Arvind Kejriwal has called a two-day emergency assembly session starting Tuesday to discuss the Union Home Ministry notification, which declared that the Lieutenant Governor Najeeb Jung holds the power to appointments and transfer of senior officials.
The decision to call the meeting came after two senior jurists – Gopal Subramanium and Indira Jaising – questioned the constitutionality of the MHA notification after assessing the same.
Following the assessment of the MHA notification issued to AAP on Friday, Subramanium expressed concern over the process that was involved in issuing the notification.
"It is very hard to believe that this notification has the requisite presidential approval," The Indian Express quoted Subramanium as saying, "Under the circumstances, the GNCT must bring the notification to the attention of the President, who knows that all instruments of delegation which are issued either under Article 356 or other cognate provisions of the Constitution to a Governor or to any other authority... including a Lt-Governor, must always be approved and signed by him on file. If that has not happened, there is a clear breach of the Constitution..."
He added that it is the Chief Minister and Cabinet that ought to have control over the officers appointed under them and not L-G.
"In so far as the control over such officers is concerned, the only authority which ought to exercise control would be the chief minister and the Cabinet... It is not possible that any of the officers who are appointed to serve directly under the chief minister, as well as the department ministers, bypass them and report to an extraneous authority — the L-G — to whom no such power is conferred either by the Constitution or the GNCT Act, 1991," Subramanium said.
Another senior advocate in the Supreme Court and eminent Indian constitutional lawyer KK Venugopal shared similar opinion on the matter, saying the power to take administrative decisions should be under the control of a democratically elected government.
"If a democratically elected government has been brought to power, the 'public services' of the state should be controlled by the government. Undoubtedly, the chief secretary is the linchpin of executive governance. He is to have the confidence of the chief minister and the council of ministers..." Venugopal said.
Even Jaising called the notification "ex facie unconstitutional" as issuing it amounts to "to removal of power to legislate on "Services" from the State List and has the effect of deleting Entry 41 from the State List... It is axiomatic that no provision of the Constitution can be deleted, except by an amendment to the Constitution itself."
"The GNCT, Delhi, has the power to make transfer and postings among various departments and the Lieutenant-Governor of NCT Delhi has no such power, to make laws or take executive decisions. I have already said that the notification is ex facie unconstitutional... In light of Rule 23(va) of the Transaction of Business Rules, all files sent to the LG will have to be sent through the Chief Minister by the Chief Secretary," he added.
The Centre issued the notification after the standoff between the Delhi Government (AAP) and L-G escalated over the appointment and transfer of senior officials. Both Jung and Kejriwal blamed one another of bypassing their authority by misusing the powers.
The NDA government intervened on Wednesday to settle the ongoing war between Jung and Kejriwal, but as the tiff escalated further, the Centre issued the notification on Friday.