: Noted Constitutional expert K.K. Venugopal and former Solicitor General Gopal Subramanium have described the notification issued by the Ministry of Home Affairs giving absolute powers to Delhi Lieutenant Governor Najeeb Jung in certain matters as “illegal, unconstitutional and void”. Experts said the gazette notification should not have been issued when the President was seized with the matter of jurisdiction.
Elected representative
Former Supreme Court Judge Justice Markandey Katju said if there was a legal uncertainty on the matter, the democratic way of resolving it was by accepting Chief Minister Arvind Kejriwal’s views because he was an elected functionary and head of a democratically elected body, while Mr. Jung was not.
In their opinions submitted to the Delhi Government, which were discussed at a meeting of the State Cabinet here on Saturday, both Mr. Venugopal and Mr. Subramanium said the very foundation of the notification, relying upon two specific provisions of the Constitution dealing with the administration of Union Territories and conferring legislative powers on the Delhi Assembly, was flawed.
Mr. Subramanium said the powers purported to be exercised by a Constitutional functionary, as laid down in the notification, could be assailed in a court of law as fraud on the Constitution or a colourable exercise of authority. He advised the Delhi Government to immediately apprise the President of the infirmities with which the notification suffered.
The former Solicitor General said the notification had been presumably issued without the requisite Presidential approval.
Erstwhile administrator
Mr. Subramanium said in view of the provisions of Article 239AA (special provisions with respect to Delhi) of the Constitution, it would be inconceivable that the L-G, who was an erstwhile Administrator of the Union Territory of Delhi under Article 239, would continue to exercise powers by virtue of being a so-called Administrator, and also that the President could delegate authorities or functions to him.
Mr. Venugopal dealt with the notification’s part dealing with the delegation of powers on the L-G in regard to “services” and observed that both the legislative as well executive powers of the State Government remained intact and inviolable.
“No delegation could have been made under the said notification to the L-G so as to enable him to exercise powers in regard to ‘services’ in his discretion,” said Mr. Venugopal.
Writing on his blog, Satyam Bruyat, Justice Katju referred to Article 239 (6) of the Constitution providing that the Council of Ministers shall be collectively responsible to the Assembly.
No delegation could have been made under the said notification to the L-G so as to enable him to exercise powers in regard to ‘services’ in his discretion
K.K. Venugopal
Constitutional expert
