Amid the power tussle and growing hostility between the central and Delhi governments, the Delhi High Court on Monday said the Lt Governor must act on the “aid and advice of the council of ministers” and the “mandate of the people must be respected by the Lt Governor in respect of matters which fall within the domain of the legislative assembly”.
The HC’s observations come at a time when the AAP government in Delhi is considering challenging the recent notification of the Union Ministry of Home Affairs in court. The MHA notification had underlined that the Lt Governor is the “administrative head” of Delhi and “services” are out of the purview of the Delhi government.
Today’s HC judgement a huge embarassment for central govt. HC also said that the latest 21st May MHA notification is “suspect”
Congrats. Del HC strikes down centre’s effort to weaken Delhi’s ACB. Del HC- Centre has no jurisdiction to pass notification on ACB’s powers
— Arvind Kejriwal (@ArvindKejriwal) May 25, 2015
The observations were made by Justice Vipin Sanghi while dismissing a bail application filed by Delhi Police head constable Anil Kumar, arrested by the Delhi Anti-Corruption Branch (ACB) on bribery charges earlier this month. The arrest had led to a spat between the Centre and Delhi government regarding the ACB’s jurisdiction.
Senior advocate N Hariharan, who appeared on behalf of the head constable, had argued that the ACB did not have the jurisdiction to act on the alleged bribery complaint since the Delhi Police is not under the control of the Delhi government.
The MHA, in its notification issued last July and again last week, also maintained that the Delhi government did not have the jurisdiction to arrest central government employees.
However, while dismissing the bail plea, the HC observed that the July 2014 MHA notification restricting the ACB’s jurisdiction was “suspect”.
“The submission of the applicant that the ACB of the GNCTD (Government of National Capital Territory of Delhi) does not have the competence or jurisdiction to act on the complaint of the complainant is rejected. Since the applicant is a Delhi Police personnel serving the citizens in the NCTD and the functions of the Delhi Police personnel substantially and essentially relate to the affairs of the GNCTD, in my view, the ACB of the GNCTD has the jurisdiction to entertain and act on a complaint under the PC Act in respect of a Delhi Police officer or official, and to investigate and prosecute the crime,” the court said.
The court also accepted the argument by senior advocate Dayan Krishnan, who appeared for the Delhi government, that the issue of criminal law and criminal procedure were part of the concurrent list, and the Delhi legislature could pass laws regarding these matters.
“The LG must act on the aid and advice of the council of ministers in respect of matters which fall within legislative competence of the Delhi assembly. The NCT of Delhi shall not be administered by the President through the Lieutenant Governor in respect of matters over which the legislative assembly of the NCT has authority to make laws,” the court said.
“This position emerges from the constitutional scheme contained in Articles 239 and 239AA, read with Sections 41-44 of the GNCTD Act, 1991. The mandate of the people, with whom sovereign power resides, must be respected by the LG in respect of matters which fall within the domain of the legislative assembly, provided there is no other constitutional or legal fetter,” it observed.
“Union government could not have issued the notification of 23/07/2014 thereby seeking to restrict the executive authority of the GNCTD acting through its ACB to act on complaints under the Prevention of Corruption Act only in respect of officers and employees of the GNCTD. By an executive fiat, the Union government could not have exercised the executive power in respect of a matter falling within the legislative competence of the legislative assembly of the NCT, since the law made by parliament, namely the GNCTD Act read with Article 239AA, put fetters on the executive authority of the President,” the HC said.
The Delhi government was quick to laud the HC. “The move to curtail the original powers of the ACB through an ill-conceived notification by the Union home ministry on July 23 last year has been categorically rebuffed by the high court. The high court verdict will strengthen the resolve of the people of Delhi to fight corruption and it will go a long way in having an effective anti-corruption mechanism in the national capital,” it said in a statement.
“This is a victory for the people of Delhi. The rights of an elected government were being curtailed,” said a senior official.