Trajectory of the tussle

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Chief Minister Kejriwal and then Lieutenant Governor Najeeb Jung during a meeting in New Delhi in October 2016. Photo: PTI

The origins of the standoff between the Arvind Kejriwal-led Aam Aadmi Party (AAP) government in Delhi and the Centre can be traced to 2014, when the United Progressive Alliance (UPA) was in power. It was Kejriwal’s first term in office and he was running a minority government with the Congress supporting it from outside out of political compulsions, when a first information report (FIR) was lodged against Reliance Industries Ltd’s (RIL) Mukesh Ambani and then Union Ministers M. Veerappa Moily and Murli Deora accusing them of “fixing” gas prices. The FIR was filed by the Delhi government’s Anti-Corruption Branch (ACB), which owes its existence to a notification issued by the Centre in 1993. The Centre challenged the FIR in the Delhi High Court on the grounds that the ACB had no jurisdiction to probe Union Ministers.

Shortly after the Narendra Modi-led National Democratic Alliance (NDA) came to power, the Centre issued a notification taking away the Delhi government’s jurisdiction to investigate Central government employees. This was a serious setback to the AAP government’s FIR against RIL and the Union Ministers too.

Meanwhile, in the Assembly elections held in February 2015, the AAP returned to power in Delhi with a thumping majority, bagging 67 of the 70 seats.

On May 25, 2015, Justice Vipin Sanghi of the Delhi High Court observed that the Centre’s May 21, 2015, notification barring the ACB from acting against its officers in criminal offences was “suspect”. The High Court held that the Lieutenant Governor (L.G.) was bound by the aid and advice of the Council of Ministers, who are directly elected by the citizens of Delhi. The High Court observed that the mandate of the people must be respected by the L.G. if there was no other constitutional or legal fetter. This was a precursor to the July 4, 2018, judgment. The High Court intervened while dismissing the bail application of a head constable arrested by the ACB in a corruption case.

The May 21, 2015, notification amended a notification issued by the Centre on November 8, 1993, so as to deny the ACB police station any power to take cognisance of the charges made against officers, employees and functionaries of the Central government. The May 21, 2015, notification still stands and has not been set aside by the Supreme Court or withdrawn by the Centre in the wake of the recent judgment.

Justice Sanghi held that the Centre lacked the executive authority to act in respect of matters dealt with in Entries 1 and 2 of List III (Concurrent List) of the Seventh Schedule to the Constitution. These entries deal with criminal law and criminal procedure. The Centre, however, argued that the ACB would come under Entry 2 of the State List, dealing with police, which has been exempted from the purview of the Delhi Assembly.

The May 21, 2015, notification also gave powers to the L.G. to appoint bureaucrats in Delhi. The AAP government challenged this in the Delhi High Court, which, however, refused to stay it. Meanwhile, the L.G., exercising his discretionary power, appointed an officer of his choice as the ACB chief.

On August 4, 2016, the Delhi High Court delivered a verdict saying that the L.G. was not bound by the aid and advice of the Council of Ministers and that he was the administrative head of the National Capital Territory of Delhi (NCTD). The High Court also made the L.G.’s concurrence mandatory to implement the decisions of the Delhi government. The Delhi government appealed against this in the Supreme Court.

On December 23, 2016, Najeeb Jung, who was at the centre of the controversy over the issue of crippling the Delhi government’s powers, quit as L.G., paving the way for Anil Baijal to assume office. Baijal’s style of functioning made no difference to the L.G.’s arbitrary exercise of powers over the elected government.

On February 15, 2017, the Supreme Court’s two-judge bench referred the Delhi government’s appeal against the Delhi High Court’s verdict in favour of the L.G. to the Constitution Bench. Despite the urgency involved in hearing the case, the court set up a five-judge bench to hear it only in November 2017, which reserved its judgment on December 6, 2017, after hearing rival contentions for over 15 days.

On July 4, the bench delivered its judgment, after seven months of inexplicable delay since reserving it. The three separate judgments were unanimous that the L.G. was bound to act on the aid and advice of the Council of Ministers. Justice D.Y. Chandrachud said the L.G. could only as a last resort refer any matter with which he has a disagreement with the Council of Ministers for the President’s decision.

Justice Ashok Bhushan, too, agreed that on exceptional matters, the L.G. could refer a matter decided by the Council of Ministers to the President. But he cautioned that the L.G. could not sit on a decision of the Council of Ministers indefinitely and if he has a disagreement he should refer the matter to the President within a reasonable time frame. If the L.G. has not made any reasoned reference to the President within that period, the Council of Ministers can go ahead and implement its decisions, as the L.G.’s concurrence is not required, Justice Bhushan held.

But despite clarity in the July 4 judgment, the crisis in Delhi is far from over, as the Centre has not displayed the requisite statesmanship to accept it with grace and take the consequential steps to comply with it.

 

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