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Updated: January 9, 2014 03:00 IST

Where the Chief Minister is the rubber stamp

Madabhushi Sridhar
Comment (14)   ·   print   ·   T  T  
UNEASY LIES THE CROWN: Apart from the dynamics of there being a political risk to its existence, there is a static legal impediment to the mission of the Delhi government. Picture shows Chief Minister Arvind Kejriwal at the Secretariat.
PTI UNEASY LIES THE CROWN: Apart from the dynamics of there being a political risk to its existence, there is a static legal impediment to the mission of the Delhi government. Picture shows Chief Minister Arvind Kejriwal at the Secretariat.

Without being a full-fledged State empowered with federal sovereignty and constitutional powers both under the State and Concurrent lists, it might be almost impossible for any government in Delhi to govern

A new political outfit, the Aam Aadmi Party (AAP), is getting on to the seat of “power.” But, its constitutional authority is shrouded in “powerlessness” because of various Union Territory limitations.

Meanwhile, in the national capital, the common man looks up to the AAP hoping that it can change the shape of governance — from the present mess to fresh pro-people governance. That hope is associated with several constitutional doubts about the real powers that a Chief Minister of Delhi could exercise to fulfil poll-promises.

A section of the media has compared the AAP’s rule with that of a “one day Chief Minister” in the Bollywood movie Nayak. This satirical remark finds base in the fate of minority governments supported by the Congress party in the past. Apart from the dynamics of there being a political risk, there is also a static legal impediment to the mission of the AAP. The strange problem is that New Delhi is neither a State nor even a glorified Union Territory (UT).

The administrator

The real ruler in the seven Union Territories is the Administrator. He continues to be more powerful even in Delhi and Puducherry where there are Legislative Assemblies and Chief Ministers with Council of Ministers. In governments in States, the Governor is generally called a rubber stamp, but in Union Territories, the Constitution itself has converted the Chief Minister into a rubber stamp.

A Chief Minister is generally regarded as first among equals in the ministers in the Council. In the Union Territory also, the Chief Minister leads a council which can be superseded by the de facto head administrator or de jure head, the President. Where does the Chief Minister stand? In the scheme of administration of a Union Territory under Part VIII of the Constitution and the Government of Union Territories Act, 1963 (UT Act), the Legislative Assembly is little more than a nominal force while the Council of Ministers is a recommendatory body of the executive while real powers are reserved with the Administrator and his ultimate boss, the President. Article 239 says the Administrator can act “as he thinks fit,” while the UT Act says “he can act in his discretion, and his decision shall be final.”

Compared to the Governor of a State, the Administrator of a UT is more powerful, and not just a nominal head. Both Article 239AA of the Constitution and UT Act, Section 44 confer enormous powers on the Administrator. Article 239AA (4) says in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President. Pending such decision, it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

Thus, according to Section 44 of the UT Act of 1963, the Administrator can differ with the Chief Minister or Minister and have his way “as he deems necessary.” Though he is under an obligation to refer it to the President, he will still be competent to make decisions in urgent situations.

Another significant feature is: the Parliament has power, as per Article 239AA (7) and (8), to change the provisions of the UT which will not be deemed to be the Amendment to the Constitution. The Union Government can exercise executive and legislative power on all State subjects with reference to a Union Territory, which is otherwise not possible in a full-fledged State Government. The whole scheme of Constitutional governance gets subverted “constitutionally” in a Union Territory, whether it has a legislative Assembly with people’s representatives or not.

In an ordinary State, it is very difficult to impose President’s Rule, especially after the constitutional amendments and Supreme Court’s judgment in the Bommai case. But suspending the Council of Ministers in a UT is very simple, i.e., the President can issue a direction suspending any provision relating to Council of Ministers as provided in Article 239AB.

According to Article 244, the President has powers to make regulations for a UT unless there is a legislature for that State. Even if there is a legislature which passes a law, the Administrator can reserve it for the assent of President, who might reject it, except in cases of a money bill. Even the Union Cabinet has no role.

While the Governor appoints the Chief Minister in States, the President appoints the Chief Minister and Ministers for Union Territories, who will hold office during the President’s pleasure. The President can also make rules (Section 46) for allocation of business to the Ministers. The President can also suspend any provision of this Act during “Emergency” based on a report of the Administrator under Section 51.

The Council of Ministers can aid and advise the Administrator and the President will have the advice of the Union Cabinet. The Administrator can override the advice while the President can act as he thinks fit. Thus, with reference to a UT, the role of democratic representative bodies and the Council of Ministers emerging out of it is almost ruled out.

Weakening amendment

As if the powers vested in the Union were not enough, Parliament by a constitutional amendment, divested executive and legislative powers over very key subjects like “public order, police, land and revenue” from the Delhi UT and vested them with the Union Government. The Delhi Legislative Assembly cannot exercise executive and judicial powers over these subjects listed in List II — “States List” as per Article 239AA.

Without being a full-fledged State empowered with federal sovereignty and constitutional powers both under the State and Concurrent lists, it might be almost impossible for any government in Delhi to govern as such. However, the AAP government can still offer a very responsive government within the sphere of its executive powers if it has political grit and willpower in fulfilling promises within these limitations and legal impediments.

(Madabhushi Sridhar is Information Commissioner at the Centre).

More In: Comment | Opinion

It does not matter, if AK is a rubberstamp CM.How about the non
rubberstamp CMs? Whether anyone has gut to fight corruption in India.
People are fed up with price rise, unemployment, corruption, and high
fee in children education.

from:  baijnath singh
Posted on: Jan 11, 2014 at 17:05 IST

Looks like they are applicable to AAP only. Tell me a single area of
life where we follow what is written on papers?

from:  dalchand agrawal
Posted on: Jan 11, 2014 at 16:04 IST

As the present day politics is full of corruption which causes no growth
or development of nation,people expect a change in politics
strongly.They need a tremendous reformation. This strong feeling and
desire of having a good government made Arvind Kejriwal came into
limelight.Let us too hope that change is going to come for making our
motherland a much more better nation.

from:  ravi varma
Posted on: Jan 11, 2014 at 12:43 IST

This is the last chance to remove corruption. I know huge hurdles are
there like act and more corruption officers and some peoples also. We
want to overcome all the hurdles.If not possible now never in feature
also

from:  Mannan
Posted on: Jan 10, 2014 at 11:45 IST

I am agree with M.Sridhar that in the Union territory,the
administrator is more powerful than chief minister (people
representative), but in near past , i am not hear any serious dispute
between administrator and chief minister . Art.294AA(4) and Art.244
gives administrator and president ultimate power,but at present time
it is very difficult to ignores the opinion of peoples which is voiced
by minister. Further we should not forget that the president is also a
people representative in indirect form and so administrator.

from:  Sudhir kumar
Posted on: Jan 9, 2014 at 14:36 IST

The constitution was designed to have balance of power between the various state agencies, so that there is no absolute concentration of power, because no one can have the absolute monopoly of "goodness". The basic philosophy here is development or improvements are essentially political processes, (as against a mere administrative process, which requires an all powerful to rule from his 10 bedroom high office) which requires leadership qualities that can inspire the masses to take on the challenges that plague their social life. For example stopping rapes is not only about stricter policing but also involves changing the social outlook that frowns upon the girl child. And it requires political will, courage and integrity to go against the commonly held prejudices and to make a trans formative effect on society.

from:  debebrata
Posted on: Jan 9, 2014 at 11:49 IST

In such a early stage of governance by AAP. I think the results are
important but more important is the intent. If some thing good is passed
form the council of ministers, it will be very difficult for the
authorities to reject the same in this media covered Capital. It might
take time to pass and get approved but what we are looking is it should at
least move up the ladder.

from:  Nishith Anand
Posted on: Jan 9, 2014 at 11:36 IST

But this situation was true for Sheila Dikshit and other CMs, and is not new for Arvind Kejriwal.
I am getting a taste of apologist in this article, AAP has to ensure that they don't end up justifying congress and BJP when they go back to people for re-election.
AAP has shown a way, but they can be replaced in the same way if they don't prove themselves to be different from congress and BJP.

from:  Praveeen Nair
Posted on: Jan 9, 2014 at 11:22 IST

Seems like it is not an easy job to remove corruption even our constitution does not permit this.

from:  sudhir
Posted on: Jan 9, 2014 at 09:59 IST

1.According to Article 244, the President has powers to make
regulations for a UT unless there is a legislature for that State -
this is article 240
2.Even the Union Cabinet has no role - these lines may violate Article
74.
3.The Delhi Legislative Assembly cannot exercise executive and
judicial powers over these subjects listed in List II — “States List”
as per Article 239AA - this is article 239A.

i agree that UTs with legislatures with assemblies are not equivalent
to the states but when the administrator has to justify his actions
based on rational calculations . There's judiciary,civil society and
the people who will scrutinise any arbitary actions -be it the
administrator or the CM of a UT .

from:  Reincarnation
Posted on: Jan 9, 2014 at 09:12 IST

"The Council of Ministers can aid and advise the Administrator and the
President will have the advice of the Union Cabinet. The Administrator
can override the advice while the President can act as he thinks fit."

Irrespective of the present Constitutional implications and the
possible amendments to the Constitution which might take place, The
Administrator and the President (irrespective of their past or current
party political allegiances, if any) would be most ill-advised to ride
roughshod over Delhites public opinion, bearing in mind the all
overriding fact that India is a democratic republic, not just a relic
of colonial past.

from:  D Mahapatra
Posted on: Jan 9, 2014 at 09:10 IST

The issues and limitations mentioned in this article on powers of Kejriwal government in
Delhi may well be tested if the Administrator or the President try to stand in the way of the
government implementing sound policies that are responsive to Delhiwalas needs. There will
be huge fight for the soul the people, the country and the Constitution. That is why some
people think no sitting or retired partisan politician should ever be allowed to contest for the
office of the President or should occupy a governor's office in the country.

from:  Hoshiar Singh
Posted on: Jan 9, 2014 at 07:53 IST

The assertion here that president can act as he thinks is wrong because
A president can act only on advise on Union Cabinet (by 44th Amendment
to constitution). This has been long settled by Supreme Court as well
(1974, Samsher Singh vs State of Punjab).

Also, except for public order, police and land and revenue, union
government has no role unless parliament especially provides for the
same. (It is no man's secret that parliament, under the present
circumstances especially, would never allow that).

Hence the assertion that Kejriwal (Or for that matter any Delhi CM) is
merely a rubber-stamp Chief Minister is misleading one, especially when
he enjoys the support of the people.

from:  Naveen E
Posted on: Jan 9, 2014 at 03:53 IST

An attempt to demoralize the AAP and the people support.
Why were not these rules highlighted during the 15 yr congress rule at Delhi?

from:  Kumar
Posted on: Jan 9, 2014 at 03:34 IST
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