Arvind Kejriwal vs L-G Najeeb Jung: Key highlights of the Delhi HC order

Arvind Kejriwal vs Najeeb Jung: Highlights of the Delhi High Court order.

By: Express Web Desk | New Delhi | Published:August 4, 2016 1:01 pm
Arvind Kejriwal, kejriwal high court verdict, Najeeb Jung, Delhi High Court, LG Delhi, AAP Delhi High Court, Kejriwal vs Jung, NCT Delhi, The Delhi High Court verdict comes as a major setback for the Arvind Kejriwal AAP government that’s hoping to attain full statehood for Delhi. File Photo

In what comes as a huge setback for the Arvind Kejriwal government, the Delhi High Court on Thursday held that the LG is the administrative head of National Capital Territory and that the AAP Government’s contention that he is bound to act on the advice of Council of Ministers was “without substance”.

The decision by the Delhi High Court comes after a long turf war between LG Najeeb Jung and Arvind Kejriwal over who has the final say in the administration of Delhi. A bench of Chief Justice G Rohini and Justice Jayant Nath dismissed the AAP government’s plea challenging the Centre’s May 21, 2015, notification giving absolute powers to LG in appointing bureaucrats in the national capital.

The court also quashed several notifications issued by Kejriwal after returning to power last year, saying they were illegal as they were issued without concurrence of LG. The bench, in its 194-page judgement, said the AAP Government’s contention that the LG is bound to act on the aid and advice of Council of Ministers was “without substance and cannot be accepted”.

Delhi Government’s senior standing counsel Rahul Mehra said they will immediately file a Special Leave Petition against the judgement in the Supreme Court. Additional Solicitor General Sanjay Jain said the Delhi High Court judgment is in line with constitutional provisions, and that the L-G is the Chief Executive Officer of Delhi.

Here are the highlights of the Delhi High Court order:

Delhi is Union Territory With LG as Administrator; ‘Special Status’ of Assembly does not change UT status

On a reading of Article 239 and Article 239AA of the Constitution, together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA that makes special provisions with respect to Delhi.

Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of Article 239AA has not diluted the application of Article 239 in any manner.

The contention of the Government of NCT of Delhi that the Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the Council of Ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution is without substance and cannot be accepted.

It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi.

All decisions must be communicated to the LG for approval

“After considering in detail the purport of Article 239AA of the Constitution and the provisions of GNCTD Act, 1991 and the Rules made thereunder, we have concluded that every decision taken by the Council of Ministers shall be communicated to the Lt. Governor for his views and that the orders in terms of the decision of the Council of Ministers can be issued only where no reference to the Central Government is required as provided in Chapter V of the Transaction of Business Rules.”

‘Services’ and Powers of LG

“There is no separate service cadre of any Union Territory. The services of all Union Territories including NCT of Delhi are services of the Union. Therefore, the services under NCT of Delhi are necessarily the services of the Union.

“Entry 41 of State List providing for “State Public Services” and “State Public Service Commission” has no application to NCTD. Hence, there is no basis for the claim of the petitioner/GNCTD that the Legislative Assembly of NCTD has been conferred with the power to make laws in respect of “services” under clause (3) of Article 239AA.”

“impugned Notification dated 21.05.2015 directing that the Lt. Governor shall in respect of matters connected with ‘services’ exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President cannot be held to be illegal on any ground whatsoever”

Jurisdiction of ACB- MHA notification is correct- ACB cannot investigate central govt officials

“jurisdiction of ACB is limited to curbing corruption in various departments of the Delhi Administration as well as other statutory bodies over which the Lt. Governor exercises control. In other words, the officers and employees of the Central Government have not been brought within the purview of ACB, GNCTD. The mere fact that under the Notifications dated 01.08.1986 and 08.11.1993, it was declared that ACB can take cognizance of the offences committed within the limits of the NCTD does not amount to expanding the jurisdiction of ACB to proceed against the officers/employees of the Central Government.”

On issue of appointment of commission of inquiry into CNG fitness scam and DDCA

The Delhi High Court has held that “central government is the appropriate government to appoint such commissions. Notification of appointment of the commissions could not have been issued without seeking views of the L-G. Both notifications to set up commissions of inquiry held to be ‘illegal’ and have been set aside.

“Having given our thoughtful consideration to the rival submissions made on behalf of both the parties, it appears to us that the contention of GNCTD that on a combined reading of Section 2(a)(ii) of the Commission of Inquiry Act and Section 3(58) of the General Clauses Act, the expression “appropriate Government” under Section 3 of the Commission of Inquiry Act shall be read as the Union Territory, is far fetching. In the light of the clear and unambiguous definitions of the Central Government and State Government under Section 3(8) and Section 3(60) respectively of the General Clauses Act, 1897, we are of the view that the expression “appropriate Government” in respect of Union Territories shall be the Central Government only.”

Appointment of Special Public Prosecutors: HC says LG should have consulted Delhi govt as PPS are appointed by notification

This is the sole case where Delhi government has been granted relief by the Delhi High Court.

The Delhi government had filed a plea against the appointment of Special Public Prosecutor in the CNG fitness scam cases. The issue of appointment of SPPs has come up in a number of other cases also where the Delhi Police and Delhi government have opposed each other, including the JNU sedition cases, and the plea filed against ‘atrocity’ by police.

“We are unable to accept the contention of the Union of India that the Council of Ministers have no role to play in exercise of the powers under Section 24(8) of Cr.P.C. In our considered opinion, the Lt. Governor under Section 24(8) of Cr.P.C. does not act eo-nominee but exercises the executive functions of the State.

Hence, the said power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution. 302. For the above reasons, we are of the view that it is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers.

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