Round one to Centre

For the Aam Aadmi Party (AAP) government in Delhi, it was a self-inflicted wound. Having erroneously invoked the jurisdiction of the Delhi High Court in 2015 to settle its dispute with the Centre over the powers of the Lieutenant Governor of Delhi, Najeeb Jung, it has had to suffer the ignominy of losing the first round. By the time the Delhi government realised that only the Supreme Court had the exclusive jurisdiction to hear and settle the dispute, it was too late, as the Delhi High Court had concluded its hearing and reserved its judgment on the issue. The Delhi government’s plea for a stay on the delivery of the judgment until the Supreme Court decided its original suit on the same matter went unheeded both by the High Court and the Supreme Court.

On August 4, the Delhi High Court bench comprising Chief Justice G. Rohini and Justice Jayant Nath delivered the judgment in Government of National Capital Territory of Delhi (GNCTD) vs Union of India , answering each and every contention raised by the AAP government in its turf war with the Lt Governor ever since it assumed office with a resounding mandate after the Assembly elections last year. The High Court heard the GNCTD’s petition along with eight other petitions raising similar issues. Of these, the GNCTD was the respondent in seven. The Union of India was the petitioner in one, while there were six individuals who had filed petitions against the Delhi government in the public interest.

Central to all the petitions is the interpretation of Article 239AA of the Constitution, which was inserted in 1991 through the Constitution 69th Amendment Act and came into effect from February 1, 1992. This provision created a Legislative Assembly and a Council of Ministers headed by the Chief Minister for Delhi.

However, as Article 239AA is placed under Part VIII of the Constitution, dealing with Union Territories, there is considerable ambiguity as to whether Parliament intended to create a full-fledged State of Delhi through this provision.

The ambiguity can be understood when one reads Article 239, which says that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator appointed by him with such designation as he may specify. Article 239AA is silent on whether Article 239 will continue to apply to Delhi, even after it came into force in 1992.

Further ambiguity is evident in Clauses 3 and 4 of Article 239AA. Clause 3(a) says that the Delhi Assembly shall not have the power to make laws with regard to public order, police and land, even though these are mentioned in the State List.

Clause 4 says that the Council of Ministers, comprising not more than 10 per cent of the total number of members in the Assembly, with the Chief Minister as the head, shall aid and advice the Lt Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion.

But Clause 4 is qualified by a proviso, which says that in case of difference of opinion between the Lt Governor and his Ministers on any matter, the Lt Governor shall refer it to the President for decision and act accordingly. Pending such decision, the proviso empowers the Lt Governor to take immediate action or give directions in matters which he deems to be urgent.

The Delhi government contended that by virtue of Article 239AA, the Lt Governor was bound to act only on the aid and advice tendered to him by the Council of Ministers of the GNCTD with regard to those subjects in respect of which exclusive legislative competence was conferred on the Assembly. It claimed that Article 239AA put in place a Cabinet form of government for Delhi wherein the Council of Ministers along with the Chief Minister was collectively responsible to the people of Delhi and, consequently, the Lt Governor was bound by the aid and advice of the Council of Ministers headed by the Chief Minister.

The Delhi High Court, however, rejected this contention by saying that unlike the Governor of a State, the Lt Governor of the GNCTD may act in his discretion with regard to all the matters in respect of which he was required to act in his discretion by or under any law. The discretion of the Governor of a State under Article 163(1) is confined only to the Constitutional provisions.

The High Court held that the discretion provided for the Lt Governor was wider than the discretion that may be exercised by the Governor of a State under Article 163(1). The Lt Governor, it held, could act on his own judgment without seeking the aid and advice of the Council of Ministers.

The High Court concluded that every decision taken by the Council of Ministers in Delhi shall be communicated to the Lt Governor for his views. It rejected the Delhi government’s contention that an order could be passed pursuant to the decision of the Council of Ministers without communicating such decision to the Lt Governor for his views/concurrence with respect to any of the matters in State or Concurrent Lists, except the three reserved matters, namely, public order, police and land in the State List.

Relying on the Parliament Debates during the passage of the 69th Amendment to the Constitution in 1991, the High Court held that Delhi, being the national capital, had special features.

It observed in paragraph 111: “The city is of vital importance to the Central government as it is the seat of a large number of important and vital institutions such as the head of the state, national legislature, national executive, apex judiciary, heads of armed forces, paramilitary forces, foreign diplomatic missions, international organisations, etc. It reflects the ethnic, cultural and sociopolitical diversity of the country and acts as a window for the rest of the world. The object of the amendment in view of the stated position of Delhi was to preserve the ultimate responsibility of administration on the President.”

Furthermore, the GNCTD had challenged the Centre’s notification issued on May 21, 2015, adding “services” as a subject in respect of which the Legislative Assembly cannot make law.

Similarly, the GNCTD also challenged the notification dated July 23, 2014, read with the May 21, 2015, notification, withdrawing the powers of its anti-corruption branch (ACB) from inquiring/investigating into offences committed by the employees of the Central government.

The Delhi government contended that the subjects which were beyond the legislative competence of the Legislative Assembly had been expressly mentioned in Article 239AA and that the same could not be altered by the Union Ministry of Home Affairs (MHA) by way of a notification. In other words, the MHA, the Delhi government said, sought to encroach on the legislative powers of the Assembly in respect of Entry 41 of the State List (State public services, State public service commission), without seeking the approval of Parliament, and therefore, the notification was illegal and unconstitutional.

The High Court, however, reasoned that all services under the NCT of Delhi, which is a Union Territory, were governed by Entry 70 of the Union List alone and thus fell beyond the legislative competence of the Legislative Assembly of the NCT of Delhi. Since the executive power is co-extensive with the legislative power, it goes without saying that the GNCTD cannot claim any executive power in relation to matters with respect to “services”. Therefore, it said, the Lt Governor was required to act in his discretion in respect of “services”.

The bench thus rejected the GNCTD’s challenge to the MHA’s notification dated May 21, 2015.

The Centre argued that the “police” was outside the purview of the Legislative Assembly of the NCTD and consequently, the ACB, which had been designated as a police station, was also outside the executive control of the GNCTD. But the Delhi government contended that the power of the ACB was traceable to Entries 1 and 2 of the Concurrent List (Criminal Law and Criminal Procedure) and therefore, within the competence of the Legislative Assembly.

The High Court held that Delhi continued to be a Union Territory despite the insertion of Article 239AA. It agreed with the Central government that even as per Article 239AA, the Centre’s direction to the ACB not to take cognisance of offences against Central government officers and employees was traceable to Entry 2 (Police) of the State List, which is exempted from the purview of the Delhi Assembly.

The High Court quashed the Delhi government’s notification dated August 11, 2015, appointing the Commission of Inquiry through the Directorate of Vigilance, because, in its view, only the Central government had the power to appoint such a Commission, and the Delhi government did so without seeking the views/concurrence of the Lt Governor. The Commission of Inquiry was to probe allegations of irregularities in the Delhi and District Cricket Association, which was to be headed by the senior advocate Gopal Subramanium.

There was just one relief to the AAP government in the judgment. The High Court held that the Lt Governor could appoint a public prosecutor only on the aid and advice of the Council of Ministers with the Chief Minister as the head.

With the Supreme Court listing the pending suit and the Delhi government’s impending appeal against the judgment for hearing on August 29, all eyes are now on how the senior counsel for the Delhi government will rebut the High Court’s conclusions in the apex court.