Friday, 22 May 2015

Who is correct, Najeeb Jung or Kejriwal ?


In the present conflict between Najeeb Jung and Kejriwal several people have asked me for my opinion as to who is correct ?

 My opinion is : Kejriwal is correct. Let me explain

1. Before coming to Article 239AA of the Constitution, the Government of NCT of Delhi Act, 1991, and the Transaction of Business of the Government Rules, 1993, we should first consider the matter from the historical perspective.

 In ancient and  medieval times, the king was supreme. However after the Glorious Revolution of 1688, the principle of democracy and Parliamentary Sovereignty have been firmly established in England and elsewhere. Now it is not the king but the people who are supreme, and they excercize their 'general will', as Rousseau called it, through their representatives in the legislature.

2. What power, if any, does the British king now have ?

According to the eminent constitutional expert Walter Bagehot ( 1826-1877 ), as mentioned in his well known book 'The English Constitution', the British King still has 3 rights :(1) the right to be consulted, (2) the right to encourage, and (3) the right to warn. But apart from these very limited rights, he has to act in accordance with the advice of the Council of Ministers.

3. In Shamsher Singh vs. State of Punjab, A.I.R. 1974 S.C.2192 a 7 Judge bench of the Indian Supreme Court held that the President and Governors in India are like the British King. In other words, they have to act on the advice of the Council of Ministers, and not on their own discretion. This was the legal position even before the 42nd Amendment of the Constitution which amended Article 74 by adding the words " who shall act on the advice of the Council of Ministers ". Thus, the 42nd Amendment only clarified the law, and did not change it

  As explained by the Supreme Court in Shamsher Singh's judgment, the expression ' aid and advice ' is only a term of art, and it does not mean that the President or Governor has any discretion in the matter. He has to act according to the advice given by the Council of Ministers, and this is obvious once it is realized that we are living in a democracy, where people rule themselves ( through their elected representatives ). The President of India and the Governors are only formal heads, like the British King

4. It is true that Delhi is not a full fledged state, and certain powers e.g. relating to police and land, are with the Central Government.

 However, Delhi is also not a Union Territory, after the 69th Constitutional Amendment which introduced Articla 239AA. Unlike a Union Territory, it has a legislature and a Council of Ministers.

Article 239AA (4) of the Constitution says " There shall be a Council of Ministers with a Chief Minister at the head to aid and advise the Lt. Governor in the excercize of his functions in reference to matters with respect to which the Lt. Governor has power to make laws, except insofar as he is, by or under law required to act in his discretion "

The expression ' aid and advise ' has to treated as a term of art, as held by the Supreme Court in Shamsher Singh's case, and not literally, otherwise democracy will be subverted.

Article 239(6) says that " The Council of Ministers shall be collectively responsible to the Assembly ".. This provision incorporates the principle of democracy that the people rule themselves, through their elected representatives. The stand of Mr. Najeeb Jung is thus totally untenable.

 Mr Najeeb Jung claims that he has the authority to appoint officers of the Delhi Government at his discretion, while Kejriwal claims he does not. Assuming that there is some legal uncertainty on this matter, the democratic way of resolving it is that we accept Mr. Kejriwal's view, because he is an elected functionary, and head of a democratically elected body, while Najeeb Jung is not.

 It is evident that Najeeb Jung is behaving like His Master's Voice. Like Faust, he has sold his soul to a Mephistopheles

17 comments:

  1. This comment has been removed by the author.

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  2. but sir at the end of the day the notification issued by central government is the final one according to the article 299AA. and so,therefore what ever center had notified in the gazette of India is't that constitutional.

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  3. In detail filly explained. Means a lot .Thank you Sir for your timely explanation

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  4. I don't agree with Mr katju.there is a saying in hindi worth mentioning here,Bhagwan ganje ko nakhun nahin deta.its will be very dangerous to give great powers to chief minister.the present tussle proves my point.delhi is capital city.the state govt should have only limited powers,or else it can cause great damage no matter if it's kejriwal or someone else.

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  5. SO, If Delhi CM goes to the Court to nullify the latest circular(or in other words to prove his point that he can have his SAY in appointing Chief Secretary) , he will win ?

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  6. Thanks for the precise information.

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  7. Delhi as IDEAL & MODEL WORLD CAPITAL may be reality by joint efforts & cooperation by all ! MEHAR BHAI BLOGS on Google

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  8. IDEAL DEMOCRACY AND INDIAN CONSTITUTION FOR DELHI :
    1.It is well settled law by Supreme COURT :"Administrative instructions/ statutory rules can not supersede constitutional provisions. "
    2. Supremacy of democracy to be ensured at all levels by all concerned.
    3. Parliament and President of India have already admitted and treated Delhi as a "STATE"under Electricity Act, 2003 provides DERC, but for U.T.s, it is only JERC.SO, if there is elected govt. as per constitution ,then there is no question to still treat as U.T.
    4. Lt. Governor is simply is the administrative HEAD but can not be the constitutional head on behalf of President.LG is not competent to exercise constitutional powers of President, however Chief Minister is the constitutional executive head even for Delhi and can not be overruled as par with Prime Minister.
    5. When there is elected Government as per constitution & R.P.ACT, threre
    should be state constitutional head i.e. Governor and not administrative head i.e. L.G.
    6. It is evident as mentioned in the administrative notification issued by the MHA to allow openly to act as per his "DISCRETION" and not as per constitution .In constitution and in judicial jargon, there is no such power or word "DISCRETION ". DISCRETION amount to open 'Corruption & Abuse of Power'. It lacks transparency and unconstitutional and ultra wire ab initio. Above all, DISCRETION at every step is destroying our democracy and snake pit of corruption, nepotism, favoritism.
    7.Our political masters and top babus to be our guiding stars, ideal, model and have humble leadership for welfare of the society and to be above all party politics showing that we all souls belong to one Godly family and for away from all "ISMs."
    8. The current Delhi JUNG- CIVIL WAR clearly demonstrated publicly that our top babus are directly responsible and always keep in mind being public servant about SERVICE CONDUCT RULES and avoid to indulge for misconduct, unbecoming, indiscipline, disobedience, non cooperation, violent, political/outside influence and acting and operating against the duly elected government by the public and should have properly guided/ advised the Govt well in time to avoid such undemocratic and politically motivated attack on democracy and directly affecting public rights and justice under the constitution expecting from elected govt and not from an administrator, otherwise democracy is going to be totally dictatorship by one single undemocratic person just for political gains.Let us all of us join hands that public should not suffer at any cost due to political vendetta.
    9. It is now well established from on going Delhi-Jung that is direct attack,mockery and
    suffocation of democracy and fraud on public and constitution by Union of India with support by unbecoming and misconduct of top babus acting and operating against all democratic norms and trying to dictate the elected government-VOICE of PEOPLE just by 'DISCRETION' against ZERO CORRUPTION. JAGO. United Nations, Transoarecy International,UNCAC- United Nations Convention Against Corruption, Indian Prome minister, Delhi Chief Minister and public in general for ZERO CORRUPTION appears to be a 'DREAM'. Spirituality is the foundation for political transformation to have IDEAL DEMOCRACY i.e. GOLDEN AGE or RAMRAJYA- SATYUGA .Therefore, SPIRITUAL REVOLUTION is the call of time : Self Transformation,World Transformation ! Full Details on Google : MEHAR BHAI BLOGS

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  9. Unconstitutional Dual Governance in Delhi is public murder and fraud on constitution. Center / LG have made practically the duly elected govt to 'ZERO' where policemen and babus are above public elected representatives and made them also part of on going civil war due to 'Dirt Politics' encouraged indiscipline and misconduct by public servants. All over learned souls created confusion by using the word 'APPOINTMENT'. but the issue is for just interim work arrangements for few days to be called placement/ assignment by internal arrangements by the supervisors.So it is not a case of appointment. Under service jurisprudence, appointment is always made by the appointing authority in accordance with statutory rules/ recruitment rules. Here, President of India is the appointing authority but not LG.It is a clear case for Abuse of Power' by LG and illegal to pass IRREGULAR directions to the babus directly ignoring deliberately duly elected govt. and destroying democracy.Acting Chief Secretary is also violated CONDUCT Rules and acted against advice of immediate controlling authority and brought political influence publicly in her favor indulged in 'ISM' for personal gains.Above all ,as per CVC rules, vigilance clearance is must before such positions. It is doubtful whether LG has obtained vigilance clearance before issuing such hasty and unconstitutional orders posing as a dictator against advice of council of ministers violating Article 239 AA.It is also not clear as to why regular chief secretary has not made interim arrangements before proceeding on leave.Normally, such arrangements to be done in advance in public interest and it is no where laid down that govt. to be bound to take approval from LG/ President for such internal short period arrangements.Under Fundamental RULE 49 also at least 42 days days minimum limit for officiating appointments.Any how , due to 'Dirt Politics' poor public is suffering by misusing Constitution for selfish motives.IDEAL SOLUTION : either FULL STATEHOOD or U.T. as no third option or dual governance.Always constitutional crisis will continue especially when different political parties governments in center and state.GOD BLESS ALL , SAVE OUR DEMOCRACY !!! For ideal governce, follow laws of GOD- SPIRITUAL LAWS. Full details on Google : MEHAR BHAI BLOGS

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  10. HAPPY PUBLIC SERVICE DAY !!!
    Heartiest Congratulations !Excellent and Wonderful words of wisdom.Our leaders to be motivator and inspiration for others.Be Model ,Ideal and Humble leaders as Crown of servant's leadership.We call our selves as free but in real sense we are all slaves of our unlimited desires and all VIKARS. OUR 'BABU RAJ' are still in British Rule slavery.They do nothing except post office role, confined to A/Cs rooms only and in the real sense 'Kings of Kalyuga' and genesis of all scams. Full of corruption, nepotism,favoritism and abuse of power and corrupt babus are protecting the corrupts from top to bottom under the shelter of political masters.Deep rooted criminal conspiracy continues . CBI/SIT Probe for Delhi Electricity Ombudsman & DERC- full of corruption and guilty of serious recruitment scams since 2004. Let us make the dream of ZERO CORRUPTION - a reality and global model. All the BEST. GOD BLESS !!! Stop at once egoistic VIP culture and focus on original VIP culture i.e. VIP = VALUES INSPIRED PERSONALITY ! For all -Focus on SPIRITUAL REVOLUTION for greater transformation to Golden Age-SATYUGA

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  11. Thank You very much Sir. As I said judiciary is the only branch which can clarify the situation since it has the power to interpret because their answers are baked by reasons which you proved once again.

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