Markandey Katju : Mr. Shanti Bhushan’s response to my article in scroll.in in which I said that the Delhi Govt. is a state, and is empowered to constitute a Commission of Inquiry. I have taken his permission to post his email to me…
Justice Katju is totally wrong
Delhi being the capital of India, having the embassies of the entire world located therein, the President of India, the Parliament of India, the Prime Minister, the entire cabinet, etc. it could not belong to the people of Delhi only. It belongs to the people of the whole country.It is the govt elected by the people of the entire country who have to administer Delhi.
This is the reason for enacting Art 239 AA (7) empowering Parliament to enact a law for supplementing the provisions of Part VIII which could even go to the extent of amending that Part .In Fact this power was exercised by the Parliament by enacting the Administration of the National Territory Act.
A look at the provisions of this Act would show that neither the Delhi govt nor even the Delhi Legislative Assembly have been given any real powers.Their function even on subjects not excluded from their jurisdiction is only to assist the Central Govt through its representative the Lt Governor. All powers are rightly with the Central Govt alone.Any exercise of legislative power or executive power requires the approval of the Lt Governor.
It may hurt the ego of Arvind Kejriwal but the constitutional position is that he is only a Chief Minister in name but is effectively only a subordinate officer of the Lt Governor. His role as CM is only ceremonial.
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Markandey Katju : My reply to Mr. Shanti Bhushan..
Dear Shanti Bhushanji,
I have read your email. So according to you Delhi voters wasted their time and money voting for a ceremonial body, and you made a substantial financial contribution also to this ceremonial body.
By your logic Delhiites were cheated and deceived into thinking that they were electing a legislative ( not a merely administrative ) body, and the only authority in Delhi is the unelected chamcha of the central govt, Najeeb Jung, while elected functionaries are only flowerpots.
I find your logic totally unacceptable in a democratic country.
Except for land, police and public order, the Delhi legislature can legislate, and the Delhi Govt. can deal with, all matters in the State and Concurrent List. But how can they legislate and deal with them if they cannot even inquire into them ? Sports is a matter within entry 33 of the state list, and inquiries are a matter covered by entry 45 of the concurrent list.
Hence a purposive, and not literal interpretation has to be given to the word ‘state’ in section 3 of the Commissions of Inquiry Act, 1952. Several decisions of the Indian Supreme Court, as well as English Courts, have adopted the purposive approach.
You write :
” A look at the provisions of this Act would show that neither the Delhi govt nor even the Delhi Legislative Assembly have been given any real powers.Their function even on subjects not excluded from their jurisdiction is only to assist the Central Govt through its representative the Lt Governor. All powers are rightly with the central govt alone ”
So according to you, the Delhi C.M. other Delhi Ministers, and MLAs are only civil servants who are subordinate to the Central Govt. and their job is only to assist the Central Govt. With respect, I find this a strange logic.. If your statement is accepted, Article 239AA becomes redundant, and Delhi reverts to becoming a purely administrative unit.
Your reference to Article 239AA(7) is totally misplaced. That provision reads :
” (a) Parliament may, by law, make provisions for giving effect to, or supplementing provisions contained in the foregoing clauses and for all matter incidental or consequential thereto .
(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this constitution for the purposes of article 368 not withstanding that it contains any provision which amends or has the effect of amending this constitution. ”
A perusal of the above shows that it only empowers Parliament to make supplementary, incidental or consequential laws. It does not derogate from the legislative powers of the Delhi Legislature on matters on which it is competent to legislate.
I may mention that by virtue of Articles 249 and 250 of the Constitution in some situations Parliament can legislate on matters covered by the state list.
Regards
Markandey Katju
फेसबुक से.