Najeeb Jung has no right to meddle in AAP affairs

Does the lieutenant-governor (L-G) have powers to bypass the chief minister (CM), minister in charge of a department and the council of ministers and give direct instructions to the secretary of that department and directly get such directions implemented?

No. The legal position in regard to the role of governor in the scheme of governance is no longer res integra. It is well settled that the governor, or the L-G as in the case of Government of National Capital Territory (GNCT), Delhi, has to act in consonance with the aid and advice of the council of ministers headed by the CM. Any function/ power of the governor, where he is required to act in his discretion, has to be expressly stated in the Constitution or has to be conferred by statute.

L-G can’t act on his own discretion

Article 239AA(4) of the Constitution specifically requires that unless any law requires the L-G to act in his own discretion, the L-G is bound to exercise his functions in accordance with the aid and advice of the council of ministers headed by the CM. There is no provision granting to the L-G the power to act at his own discretion in the matter of appointment of the chief secretary.

During difference of opinion

The proviso to Article 239AA(4) further provides that if there is any difference of opinion between the L-G and the council of ministers, the L-G shall refer the matter to the President and act in accordance with the decision given thereon by the President. Further, pending such decision by the President, the L-G shall, where in his opinion it is so urgent that it is necessary for him to take immediate action, shall direct or take such action as it is deemed necessary. Rules 49, 50, 51 and 52 of TBR also prescribe the resolution in the event of difference of opinion between the L-G and the council of ministers. There is no provision in the TBR that empowers the governor to issue direct instructions to the secretaries concerned.

Appointment of chief secretary

The proposal to appoint the chief secretary must be initiated by the government in accordance with the rules of business. The question of any difference of opinion on that issue can arise only after the proposal is made by the council of ministers and sent to the L-G, prior to that no question of difference of opinion can arise. In other words, the decision who to appoint as the chief secretary must be of the council of ministers, and it is only if the L-G has a difference of opinion on that decision that his role begins. Hence, there is no question of the L-G taking the decision who to appoint as chief secretary without waiting for the decision of the council of ministers.

However, in the absence of any factual details on what “instructions” had been given by the L-G, it may not be appropriate for me to comment on whether such instructions could be issued relying upon the proviso to Article 239AA(4) which enables the L-G to issue directions pending an impasse with the ministers on which a decision of the President is pending.

Does the L-G have the powers to select/ appoint the chief secretary? And does the CM have any say in matter of selection/ appointment of the chief secretary?

I would proceed to answer both the queries together. The answer to the aforesaid queries in view of the settled legal position is that the appointment of the chief secretary has to be made on the advice of the council of ministers. The L-G has no discretion in the matter of appointment of chief secretary.

Political executive is constitutionally empowered

In the democratic scheme of our Constitution, the political executive is constitutionally empowered to choose its own officers in accordance with the cadre. Who will be the chief secretary or any other secretary of the government is a matter in which the governor has to yield to the will of the political executive, which has been democratically elected.

The discretionary power to appoint a chief secretary can be found neither in the Constitution nor in any statute, hence, there is no such power independent of an enumerated power.

There are not matters, by any stretch of imagination, which fall under the individual discretionary powers of the governor. Even otherwise, relying upon the proviso to Article 239AA(4), the L-G cannot issue directions to appoint a chief secretary.