On the Newshour, on May 18, Sharmistha Mukherjee of the Congress hardly spoke, even as Raghav Chadha of the Aam Aadmi Party (AAP) and Nalin Kohli of the Bharatiya Janata Party (BJP) went at each other like school kids brawling on a football field. When she did, though, for the first time almost 20 minutes into the debate, she said the noise on the Newshour was reflective of the way the general discourse pertaining to the stand-off between the Delhi government and the Lieutenant Governor was playing out.

What she meant was that the debate was being reduced to an overzealous Arnab Goswami keen on pronouncing judgments based on pre-conceived notions that he bizarrely called “facts”.  The issue, if not already evident, is about the appointment of a bureaucrat, Shakuntala Gamlin, as the interim Chief Secretary of Delhi – an appointment that the Delhi government claims was done without consulting it, and, which according to it, is unconstitutional.

So what are the “facts” then? (Surely, Arnab Goswami waving a piece of paper as proof of his claim that Delhi is the worst-ruled “state” in the country can’t be categorised as facts in this case.) Is Arvind Kejriwal really just being petulant? Or has the Lieutenant Governor overstepped his mandate?

The debate, as it has developed, is about propriety and constitutionality. Unfortunately, though, both have overlapped in popular media discourse – and the result has been a mess and constant shifting of goalposts by both sides. What is legally right is not necessarily ethically correct (and vice-versa)  – and it is imperative to make the distinction.

The constitutional arguments

Article 239AA(4) of the Constitution

“There shall be a Council of Ministers consisting of not more than ten per cent. Of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:

Provided that in the case of difference of opinion between the 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.”

According to constitutional expert Indira Jai Singh, Najeeb Jung has not quite acted in accordance with the Constitution apropos this act. According to Singh, “there is no provision in the constitution or in the NCT of Delhi Act, 1991 or any of the law, granting to the Lieutenant Governor, the power to act at his own discretion in the matter of appointment of the Chief Secretary.”

Rajeev Dhawan, lawyer and constitutional expert echoes Singh. Writing in The Wire, he states that “the arrangement between the elected CoM [Council of Ministers] and the nominated LG was that the CoM with the CM as its head would ‘aid and advise the Lieutenant Governor’ (Article 239AA(4)). The phrase “aid and advise” may seem fuzzy, but exactly the same phrase is used to describe the relationship between elected governments and the President of India and Governors of states (Article 74 (1), 163 (1)). The CoM was responsible in all cases to their respective Parliaments and Assemblies including the CoM of Delhi (Article 75(3), 164(2), 239AA (6)). If “aid and advise” was interpreted literally, the CoMs would become advisory and parliamentary democracy would be worthless.

The Transaction of Business Rules, Section 44 of the Government of National Capital Territory of Delhi Act, 1991,

Rule 45: “…Lieutenant Governor shall in respect of matters connected with ‘public order’, ‘police’ and ‘land’ exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister…”

Rule 46: With respect to persons serving in connection with the administration of the NCTD”, the LG shall “exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister…”

Rule 49:  In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council

Rule 50: In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter,the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.

Rule51: Where a case is referred to the Central Government in pursuance of rule 50, it shall be competent for the Lieutenant Governor to direct that action shall be suspended pending the decision of the President on such case or in any case where the matter, in his opinion, is such that it is necessary that immediate action should be taken to give such direction or take such action in the matter as he deems necessary.

Rule 52: Where a direction has been given by the Lieutenant Governor in pursuance of rule 51, the Minister concerned shall take action to give effect to such direction.”

The above rules clearly say that the LG does not have any overriding powers, as many experts have pointed out.

All of the pertinent constitutional provisions essentially therefore imply that the government of Delhi has a very strong legal case

The propriety part of the debate

The Delhi government has publicly levied allegations of serious wrongdoing against one of the most senior bureaucrats of the state without furnishing any proof (AAP, in its defence, claims that it was the LG’s office which leaked the charges to the media and not the government).  Not only does that amount to defamation, it also points to the fact that Kejriwal and gang just can’t move beyond poll mode. While it is one thing to rail and rant against opposition leaders without concrete evidence in an election rally, it is completely unbecoming of a chief minister to publicly accuse a bureaucrat of favouring power firms without proof.

Even the government’s accusations of the LG’s office acting at the behest of the Centre have no firm footing in terms of evidence.  So again the Delhi government seems to be alleging a constitutional appointee of wrongdoing without any substantive proof.

Also, the constitutional provisions very clearly state any difference of opinion between the government and the LG is to be sorted out through “discussion”.  If the Delhi government did try doing that, it should have been communicated more explicitly as part of the bad press the government has been getting is owing to the perception that it went on war mode without even trying to resolve the issue amicably.

Besides, this is not the first time that Kejriwal’s government had run into conflict with the LG’s office. It had happened the first time it came to office in December 2013. Then, Justice Mukul Mudgal had advised the previous Kejriwal government to challenge in court the constitutionality of the clause. So why not just approach the court instead of raising a stink time and again? Delhi’s semi-statehood is definitely problematic and Kejriwal, as an elected representative, has the right to object. But the place to do it is in court and not in television studios.