The AAP government’s fight for “statehood” to Delhi has not ended with the Delhi High Court’s verdict Thursday. The most important legal battle on this issue is yet to unfold before the Supreme Court which Friday will examine, and in all likelihood, reopen a host of issues sought to be settled by the judgment in favour of the Lt Governor.
On Friday, the Supreme Court will take up the AAP government’s original suit which has raised various questions claiming these are “federal in nature”.
Under Article 131, only the Supreme Court can decide any dispute between the Government of India and one or more States “so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.
In its 194-page judgment, the High Court, in its wisdom, opted to rule on individual notifications issued by the Delhi government as well as by the Central government, while stating that its decisions on these notifications did not interfere with the Supreme Court’s exclusive authority to adjudicate disputes that are federal in nature.
“As we could see, the subject matter of the dispute in W.P.(C) No.5888/2015 is not covered by the class of disputes which fall within Article 131 (original suit) so as to oust the jurisdiction of this Court under Article 226 (writ jurisdiction) of the Constitution,” the High Court said. By virtue of its authority under Article 226, the High Court also interpreted Article 229AA that had excluded ‘Services’ from the ambit of the Delhi Legislative Assembly.
Although the High Court held that issues involved in individual notifications were not federal disputes, the final word has to come from the Supreme Court where the Delhi government has argued that since these notifications infringed upon the constitutional rights vested with them to exercise their executive and legislative powers in terms of Article 239AA, only the apex court can judge them.
Describing Government of the NCT of Delhi as a “federal unit”, the AAP government has submitted before the top court that that GNCTD is a ‘State’ for the purposes of Article 131 of the Constitution — a contention vehemently opposed by the Central government.
Therefore, in order to claim exclusivity of the Supreme Court’s jurisdiction, the Delhi government will have to first establish before the top court that it is a ‘State’ for the purposes under Article 131. If the AAP government crosses this legal hurdle and makes its suit maintainable on merits, the second stage would be to satisfy the Supreme Court that the impugned notifications impacted its legal rights and that the fight between them is not just political.
In State of Rajasthan vs Union of India, 1977, the Supreme Court had ruled that existence or extent of legal right is a precursor before a suit under Article 131 is entertained, and that “mere wrangles between governments have no place in the scheme of that Article”. Hence, the onus on the Delhi government, which is the plaintiff in the matter, will be to show to the apex court that the impugned notifications affected not just certain executive powers that both the Centre and the Delhi government could exercise but these notifications impacted the constitutional relationship and curtailed its legal right as a ‘State’.
If the Delhi government crosses these hurdles in the Supreme Court Friday, it will be easier for its lawyers to puncture holes in the High Court judgment that has quashed most of its notifications. Notifications issued by the Centre concerning the administration of Delhi are also a matter of contention in the top court where the suit has sought a directive to declare them as unconstitutional “being in excess of authority” by the Central government.
In what would mean affirmation of its plea for full statehood, the suit has pleaded that the court should declare that the Union of India has no executive powers in relation to any of the items in List-II (state list), and these executive powers are vested exclusively in the NCT of Delhi. It has also asked for a declaration that aid and advice of the Council of Ministers will be binding on the Lt Governor in the same way it is binding on a Governor in a state.