There is a proverb in Tamil. It reads: தொப்பிபோடு-தல் toppi-pōṭu-, v. tr. < id. +. Loc. 1. To cap, deceive; ஏமாற்றுதல். 2. To confound and ruin; மயக்கி நாசஞ்செய்தல்.
The proverb is an apt description of the pathetic state of Delhi voters who have goofed up by electing topi-walas.
He (Arvind Kejriwal) is basically a Naxalite. He isn't interested in ruling: Subramanian Swamy on Delhi CS issue
Kalyanaraman
Is Delhi a state within a state?
Abhijit Bhattacharyya
| 28 May, 2015
Today, one is only on application and applicability of the Constitution of India in/on the Union Territory of Delhi, and not on bureaucratic postings or deployment there of per se. It is an irony that of late some very high profile and ambitious politicians of the country who managed to win elections have shown little or no interest in the Constitution, as for them it simply has no meaning except for uttering catchy political slogans.They often misquote the Constitution at the drop of a hat, but do not appear to have ever bothered to either read or seriously analyse the application thereof in the polity and administration of the state. Else how does one justify or defend the present confrontation between the “elected” head of National Capital Territory (NCT) of Delhi and the selected “executive” head of the same NCT?
The fundamental question today is: what is the Constitutional status of Delhi? Is it a linguistic state (formed in accordance with the organisation of the states on 1 October 1956) or is it a Union Territory? The answer in five words is “Delhi is a Union Territory”. It is one of the seven Union Territories within “India, that is Bharat, shall be a Union of States” (Pondicherry; Delhi; Andaman & Nicobar Islands; Laccadive, Minicoy & Amindivi Islands; Dadra & Nagar Haveli; Daman & Diu and Chandigarh). As India today has 29 states, Delhi happens to be the capital city of those and no less.
However, vide the Constitution 14th Amendment Act, passed on 28 December 1962 the First Schedule and Article 240 were amended and Article 239A was added. The Government of Union Territories Act, 1962 created legislatures for the Union Territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman, Diu and Pondicherry (Puducherry). At present this Article is applicable to Puducherry and since 1991, to Delhi. Thus some form of democracy and parliamentary government has been introduced vide Constitution 69th Amendment Act 1991, as Article 239AA provides special provisions for the capital of India.
The Union Territory of Delhi became National Capital Territory and the Administrator thereof, appointed under Article 239, was designated as the Lieutenant Governor.
“Article 239AA. Special provision with respect to Delhi- (1) As from the date of commencement of the Constitution 69th Amendment Act 1991, the Union Territory of Delhi shall be called the National Capital Territory (NCT) of Delhi the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. (2)There shall be a Legislative Assembly for the National Capital Territory. (3)Subject to the provisions of this Constitution, the Legislative Assembly shall have the power to make laws.... except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 8”.
What are the Entries 1, 2 and 18 of the State List which are beyond the jurisdiction of Delhi Legislative Assembly/Government? They are “(1) Public order; (2) Police and (18) Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization”. Also beyond jurisdiction are Entries 64, - “Offences against laws with respect to any of the matters in this List”; 65 – “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List” and 66 - “Fees in respect of any of the matters in this List, but not including fees taken in any court”.
Coming back to Article 239AA(4), it says: “There shall be a Council of Ministers with the Chief Minister to aid and advise the Lieutenant Governor”. Now comes the next step and stage thereof:- “Provided that in the case of difference of opinion between 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 and 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.”
In the present ongoing tussle in the Union Territory of Delhi, (known as the NCT), between the selected LG and the elected CM, prima facie the former is on the right side of the Constitution of India.
We now move on to Article 239AB - provision in case of failure of constitutional machinery. “If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied- (a) that a situation has arisen in which the administration of the NCT cannot be carried on in accordance with the provisions of Article 239AA or of any law made in pursuance of that Article; or (b) that for proper administration of the NCT, it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the NCT in accordance with the provisions of Article 239 and Article 239AA”.
One hopes the present elected representatives of NCT are aware of the explicit words of the Constitution of India. Politics is the prerogative of politicians no doubt. And nobody in his or her senses should object to the variety of tantrums that the politicians of India resort to, to catch the attention of the people and voters of India.
The rulers of NCT need to go through the written words of the Constitution in letter and spirit. Laws made by Delhi Legislature are subordinate to laws of Parliament of India, whether prior or post in time by virtue of Article 239AA(3)(b). The legislative powers of Legislative Assembly do not supersede powers of Parliament to make laws with respect to any matter for the Union Territory or any part thereof.
Before ending, one is constrained to bring to the notice of the Delhi rulers that Article 239 may be studied too. Thus the status of the Administrator of a Union Territory, appointed under Article 239, is not a constitutional functionary like the Governor of a State and he is not bound to act on the advice of his Council of Ministers, even in matters where he is not required to act in his discretion by or under the Constitution {Devji Vallabhbhai Tandelv Administrator AIR 1982 SC 1029 (para 6): (1982) 2 SCC 222}.
Secondly, the Administrator is a delegate of the President and cannot be likened to a Governor. This implies that attacking the Lieutenant Governor/Administrator amounts to attacking the office of the President of India. After differing from his Ministers, the Administrator may act under orders of the President, i.e, the Central Government. Hence the present Delhi imbroglio is a political act of the politicians. Are they brazenly challenging and violating the Constitution of India?