Sunday 5 June 2016

AAP's Bus Lane Scheme

While I have appreciated many good things AAP has done, e.g. mohalla clinics, reduction of electricity bills, providing water free upto 20,000 litres p.m., abolition of hike in school fee, etc, I have also criticized it regarding some matters, e.g. odd even scheme.  So I am not a blind supporter of AAP.

However, I do believe that the Lt. Governor of Delhi, Mr. Najeeb Jung, is often interfering in the functioning of the Delhi Govt. unconstitutionally.

Under Article 239AA of the Constitution, the state legislature and state govt. of Delhi has jurisdiction to legislate and exercise executive powers over all matters except land, police and public order. The Central Govt. and Parliament have jurisdiction over only these 3 matters.

What power does the Lt. Governor have ?

 .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 ( which term would include Lt. 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

  It is true that Delhi is not a full fledged state, and certain powers ( i.e. those relating to police, public order and land, are with the Central Government and Parliament ). 

 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 be 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.

It is thus clear that the Lt. Governor of Delhi has often been acting unconstitutionally, e.g. when he refused to appoint some officers recommended by the Delhi Govt. and instead wanted to appoint officers of his own choice. What has appointment of officers got to do with police, public order and land ? The persons recommended were not in the police department.

In my opinion,the L.G. has been behaving like King George the Third of England, who appointed Prime Ministers of his own choice ( Lord Bute and Lord North ), rather than those in whom the House of Commons had confidence.
The latest act of the L.G. also seems unconstitutional. He has been holding up the bus lane  scheme of the Delhi Govt. 

First he sent it back for some 'clarifications', and when it was resent to him, he has been procrastinating over the matter.

I do not know whether this scheme is a good scheme or not. I am not a blind supporter of AAP ( whatever some people may think ). I criticized the odd even scheme, because office goers, lawyers and other professionals, shopkeepers, etc have to go to work every day, and not just on odd days or even days.

But that is not what I am considering here. What I am pointing out is that the Delhi Lt. Governor is behaving in an unconstitutional manner. Surely bus lanes have nothing to do with land, police or public order

No comments:

Post a Comment