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As the battle intensifies between Kejriwal and Jung, the center rakes up an old case in an attempt to get more powers in the national capital. Which way will the tide change?

By India Legal Team

In the ongoing turf war between Delhi’s Lieutenant-Governor (L-G) Najeeb Jung and its chief minister, Arvind Kejriwal, the center found itself in a curious paradox. The central government, through its solicitor-general, Ranjit Kumar, claimed before the Supreme Court on May 29 that the apex court’s nine-judge Bench judgment in the New Delhi Municipal Committee vs State of Punjab, delivered in 1996, had settled the contentious issue of conflict of powers bet-ween the center and the Delhi government in favor of the former.

The issue in this case was whether property tax applied in the National Capital Territory (NCT) of Delhi would amount to union taxation or state taxation for the purpose of Article 289 of the constitution, which deals with the exemption of property and income of a state from union taxation. The court had then held that a union territory (UT) is not a state, and therefore, a tax levied under a law made by a legislature of a UT cannot be called “state taxation”. The court also held that though UTs have a separate identity within the constitutional framework, this would not enable them to avail of the privileges available to states.

Backed by this 1996 judgment, the central government had a valid ground to appear relaxed in the face of the Delhi government’s challenge to its May 21 notification, restricting the latter’s Anti-Corruption Bureau (ACB) from prosecuting its police personnel. But it did not. It was desperate to seek the Supreme Court’s intervention to stay the stray observations of a single judge of the Delhi High Court on May 25, which have a bearing on the case.

The center was aggrieved with the observations of this judge casting aspersions on the validity of its notification in a bail case. In this case, Anil Kumar vs GNCT of Delhi, Justice Vipin Sanghi described the center’s May 21 notification as suspect. The Supreme Court, while agreeing to hear the matter, clarified that Justice Sanghi’s observations are tentative, and therefore, ought not to influence the high court’s hearing of the Delhi government’s challenge against the notification, especially because Justice San-ghi did not hear the central government on this issue.

A Division Bench of the Delhi High Court, which heard the Delhi government’s challenge to the notification on May 29, posted it for further hearing on August 5, after issuing notices to the respondents, Union of India and others.

Meanwhile, on June 2, the L-G claimed that the ACB was under his authority, supervision and control in terms of the May 21 notification, thus inviting further controversy, when the matter is waiting to be adjudicated. Although Jus-tice Sanghi’s observations are tentative, the issues raised in the Anil Kumar’s bail case are extremely significant in the ongoing tug-of-war between Kejriwal and the L-G.

Anil Kumar was a head constable who was being prosecuted under the Prevention of Corruption Act (PCA). He argued that since he was not an employee of the Government of National Capital Territory of Delhi (GNCTD), the ACB of the Delhi government was incompetent to act on the complaint, to investigate the offence and prosecute him.

He further argued through his counsel that “Police” stands specifically excluded from the legislative competence of the legislative assembly of NCT as the Delhi police force is not part of NCTD. He claimed that the administrative, disciplinary and financial control over the Delhi Police vests in the union government.

He referred to Section 41 of the GNCTD Act, 1991, which states that the L-G shall act in his discretion in matters which fall outside the purview of the powers conferred on the legislative assembly, but in respect of which powers and functions are entrusted or delegated to him by the President.

He also relied on a notification issued by the Ministry of Home Affairs on July 23, 2014, amending a previous notification dated November 8, 1993. As per this amendment, the ACB is empowered to exercise jurisdiction only in respect of officers and employees of the GNCTD, and not in relation to officers of the Delhi Police, who are not
its employees.

Justice Sanghi held that the central government, by an executive fiat, cannot exercise the executive power when a matter falls within the legislative competence of the legislative assembly of the NCT, since the GNCTD Act read with Article 239AA of the constitution put fetters on the executive authority of the president. He, then, referred to the May 21 notification and concluded that if the 2014 notification is suspect, the 2015 notification reiterating it, is equally suspect.

Justice Sanghi also held that the Delhi government was competent to prosecute a Delhi Police official under the PCA as the matter is covered by Entries 1 and 2 of the Concurrent List, which deal with Criminal Law and Criminal Procedure respectively, and therefore, the L-G is not empowered to act in his discretion in these matters.

The central government has a valid grievance against Justice Sanghi’s judgment because it did not make the center a party to this case, even though the judge interpreted the impact of the 2014 and 2015 notifications, against it. Justice Sanghi chose not to make the central government a party in the case because it was just a bail matter, and prolonging the hearing on this ground would not have helped to hear the matter expeditiously. Justice Sanghi denied bail to Anil Kumar on the ground that he might misuse his official position to threaten or influence the complainant and the witnesses, and tamper with the evidence. But whether it was at all necessary for the judge to interpret the validity of the center’s notifications, without hearing it, remained.

There are other serious issues which Delhi’s turf-war has given rise to. In a legal opinion submitted to the Delhi government, senior advocate Gopal Subramanium observed that the proviso to clause (4) of Article 239AA of the constitution has the potential of diluting this clause and clause (6), which provides for a cabinet form of government for NCTD, and that it would be directly hit by the doctrine of basic structure, evolved in the Kesavananda Bharati case. (Article 239AA deals with special provisions for Delhi).

Clause 4 of Article 239AA says: “There shall be a council of ministers consisting of not more than 10 percent of the total number of members in the legislative assembly, with the chief minister at the head to aid and advice the L-G…except in so far as he is, by or under any law, required to act in his discretion.” The proviso to this clause states: “Provided that in the case of difference of opinion between the L-G and his ministers on any matter, the L-G shall refer it to the President…and pending such decision, it shall be competent for the L-G…to take such action or to give such direction in the matter as he deems necessary.”

Clause 6 of Article 239AA states: “The council of ministers shall be collectively responsible to the legislative assembly.”

In paragraph 237 of his legal opinion, Subramanium observed that the Supreme Court’s judgment in the NDMC vs State of Punjab case, overlooks the concept of democracy implicit in the creation of a legislature and the cabinet form of government.

Hence, it may be argued that it is inconsistent with the doctrine of basic structure. In paragraph 350, he has stated that the view taken by the court in the NDMC case is incorrect and requires reconsideration.

Given that the central government relies on this NDMC judgment to justify its notification regarding Delhi government’s powers, Subramanium’s view raises serious concerns about the merits of its position on the issue.
The May 21 notification makes it clear that the L-G shall in respect of matters pertaining to public order, police, land and services, exercise powers and discharge the functions of the central government to the extent delegated to him by the president. It also leaves matters pertaining to services of bureaucrats to be settled by the L-G, allowing him discretionary power to seek the opinion of the chief minister.

The notification has led to intense ego clashes between Kejriwal and Jung over the power to appoint the acting chief secretary, principal secretary and other civil servants in the Delhi administration.

Only an early adjudication of the case by the Supreme Court can end the stalemate in Delhi.

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