OFFICE OF THE LAW MINISTER
GOVT OF NCT OF DELHI
Dated : 25/09/2019
Delhi Law Minister Mr Kailash Gahlot has issued the following statement on Wednesday on the issue of Rs 50 crore Advocates Welfare fund :
We understand that the advocates of Delhi are agitated by the delay caused in implementation of Rs 50 crore welfare fund for lawyers. I am myself a lawyer and fully appreciate the anxiety of my brothers at the bar. I can assure you that I along with my Chief Minister have been trying our best to resolve this issue. The fact that we allocated Rs 50 crore in the annual budget of Delhi for the financial year 2019-20 for the welfare of lawyers indicates our desire and intent. However, its implementation has got delayed due to reasons beyond our control. I explain below the circumstances which led to this delay.
Constitution Bench of the Hon’ble Supreme Court, in its judgement dated 4 July 2018, had clearly said that executive powers on all subjects barring land, police and public order shall vest with Council of Ministers, which shall take decisions, send a copy of the decision to Hon’ble LG and start implementation of that decision. Relevant portion of the said judgement is reproduced below –
i. “Again, Section 45 of the 1991 Act is identical and analogous to Article 167 of the Constitution which makes it obligatory for the Chief Minister of NCT of Delhi to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of NCT of Delhi and proposals for legislation. Having said that, the real purpose of such communication is not to obtain concurrence of the Lieutenant Governor on all decisions of the Council of Ministers relating to the administration of the affairs of NCT of Delhi and on proposals for legislation, but in actuality, the objective is to have the Lieutenant Governor in synergy, to keep him in the loop and to make him aware of all decisions of the Council of Ministers relating to the administration of the affairs of NCT of Delhi and proposals for legislation so as to enable the Lieutenant Governor to exercise the power conferred upon him by the proviso to clause (4) of Article 239-AA.” (para 252 of the judgment)
ii. “We have referred to the relevant rules of the 1993 TBR which require that the Lieutenant Governor has to be apprised and kept in the loop of the various proposals, agendas and decisions taken by the Council of Ministers. However, a careful perusal of these rules nowhere suggests that the communication to the Lieutenant Governor is to obtain his concurrence or permission. The 1993 TBR simply reflect the scheme envisaged for the governance of NCT of Delhi wherein just as an Administrator in other UTs has to be apprised, likewise the Lieutenant Governor in Delhi is also to be informed and notified about the business being conducted.” (para 270)
iii. “It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for NCT of Delhi by Article 239-AA of the Constitution. Any view to the contrary would not be in consonance with the intention of Parliament to treat Delhi Government as a representative form of Government.” (para 273)
iv. “The Transaction of Business Rules, 1993 stipulate the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the 1993 TBR suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. The need for harmonious resolution by discussion is recognised especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239-AA.” (para 284.20)
v. “The scheme that has been conceptualised by the insertion of Articles 239-AA and 239-AB read with the provisions of the GNCTD Act, 1991 and the corresponding the 1993 TBR indicates that the Lieutenant Governor, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof.” (para 284.20).
Since then, the Government of Delhi has been functioning as per Hon’ble SC judgement. Sh. Sanjay Garg, posted as Law Secretary in Delhi Government on 05.04.2019, clearly opined that no file need be sent to Hon’ble LG on any subject barring the three reserved subjects, only decisions need to be communicated to Hon’ble LG. Mysteriously, Sh. Sanjay Garg was transferred out of Delhi Government on 30.05.2019 i.e. within 54 days of his posting. This happened for the first time in the history of Delhi Govt. He was replaced by the present Law Secretary Sh Sanjay Aggarwal.
Sh. Sanjay Aggarwal overturned the opinion of his predecessor and gave an opinion completely contrary to Constitution Bench judgement of Hon’ble SC. He said that all the files should be sent to Hon’ble LG and till he approves it, the decisions of COM cannot be implemented. This was completely contrary to SC judgement.
This brought the entire work of Law department to a standstill. Whereas the rest of the Delhi Government departments are running as per the Supreme Court judgement and no files are being sent for Hon’ble LG’s approval by any other department, Law Secretary refused to follow the SC judgement. Even when the Law Minister overruled Law Secretary’s opinion, the Law Secretary refuses to follow the written directions of his superior. This was in direct contravention of his conduct rules. Many efforts were made to convince him to abide by the judgement of SC and follow the directions of his superior authority, but he refused to budge. Bar Associations of Delhi also tried to persuade him but all in vain. It is learnt that this was brought to the notice of the Chief Justice of Delhi High Court also by the Bar.
However yesterday, the Law Secretary has issued notification in the matter of Delhi Advocates’ Welfare Fund (Amendment) Rules, 2019 without insisting on Hon’ble LG’s approval. We hope that better sense has prevailed upon him and he has decided to now follow the orders of Hon’ble Supreme Court. Delhi Government will now initiate the process of implementation of Rs 50 crore welfare fund of the advocates.
OFFICE OF THE LAW MINISTER