Today , the Delhi High Court has dismissed the Public Interest Litigation (PIL) challenging appointment of Delhi Chief Secretary Vijay Dev as Election Commissioner for the upcoming municipal elections in the national capital.

The Division bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla dismissed the petition filed by former BJP MLA Nand Kishore Garg which alleged that the appointment was illegal and improper.

The Bench said there was no merit in the petition as the date when Dev shall take over as Election Commissioner, Vijay Dev would cease to be a government servant

The High Court observed since the appointment would be with effect from April 21, 2022, by then he would have retired from the Government of India.

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Garg had alleged in his plea that by its notification, the Delhi government has allegedly improperly earmarked the appointment of serving chief secretary of Government of National Capital Territory (NCT) of Delhi as Election Commissioner of Municipal Corporation of Delhi (MCD) with effect from April 21, 2022.

The petitioner claimed that the appointment was made in utter violation of the settled principles of law which mandates that important government post like election commissioner must be offered to a neutral and apolitical person and must not be the party to the several political as well as administrative decision of a particular government .

The Delhi government has defended the appointment of Dev as the Election Commissioner of MCDs, saying that the appointment has been made in accordance with law .

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According to the affidavit filed by Delhi Government , the Election Commissioner of National Capital Territory of Delhi (Conditions of service and tenure of office) Rules, 2019 expressly provide that the person to be appointed as an election commissioner must be a serving or retired officer belonging to the Indian Administrative Service has held the rank of Secretary to the Govt.

It has contended that the motive, objective, and purpose of the plea appeared to be to stall the elections to the three Municipal Corporations and tarnish the reputation of the officer.

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The Rajya Sabha on Wednesday passed the Government of National Capital Territory of Delhi (Amendment) Bill, 2021. It was passed by the Lok Sabha on Monday.

The Bill was passed in the presence of Deputy Chairman Harivansh Narayan Singh by a voice vote. However, a division was sought by the Opposition when the government moved the bill for consideration.

During voting in Rajya Sabha, 83 members were in favour while 45 opposed the bill.

The Government of National Capital Territory of Delhi Act, 1991 (1of 1992) was enacted to supplement the provisions of the Constitution relating to the Legislative Assembly and a Council of Ministers for the National Capital Territory of Delhi and for matters connected therewith or incidental thereto.

The Bill will promote harmonious relations between the legislature and the executive, and further define the responsibilities of the elected Government and the Lieutenant Governor, in line with the constitutional scheme of governance of National Capital Territory of Delhi, as interpreted by the Supreme Court , reads the statement of the object of the Bill.

The Bill seeks to increase the powers of Lieutenant Governor of Delhi by declaring him to be the “Government of Delhi”.

The opinion of the LG “shall be obtained” on all such matters as may be specified by the LG, before taking any executive action on decisions of the Council of Ministers of the Delhi Government.

The Opposition members alleged that the Bill will subvert the elected Government of Delhi by vesting overriding powers in the LG, who works at the instructions of the Centre, and will affect cooperative federalism.

It was stated that since Delhi has been conferred a special status under Article 239AA of the Constitution (Special provisions with respect to Delhi), any change in the powers of the Delhi Government should be brought by way of a Constitutional Amendment only.

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It was also alleged that the Bill is an attempt to circumvent the interpretation made by a Constitution Bench of the Supreme Court in the Delhi v. LG case, which held that the LG is an administrative head in the “limited sense” and that he is “bound by the aid and advise” of the Council of Ministers of Delhi Government, except in matters of land, Police and public order.

The Supreme Court today directed the Centre to ensure a common and uniform system of pass in the National Capital Territory of Delhi, State of Uttar Pradesh and State of Haryana within a week for interstate movement of citizens in NCR area during Lockdown.

The bench comprising Justice Ashok Bhushan, Justice Sanjay Kishan Kaul and Justice MR Shah has further directed the Centre to convene a meeting with the Uttar Pradesh, Delhi & Haryana and to reach a solution failing which the Centre’s guidelines will become redundant.

Justice Kaul emphasized that for the NCR region, there should be a consistent policy. The bench noted that no counsel has appeared for the Delhi government though it was served on the matter. “One policy, one path and one portal required”, said the bench.

The bench was hearing a petition by a Gurgaon resident Rohit Bhalla challenging the decisions of the Haryana and Uttar Pradesh administrations restricting movement for permissible activities in area falling within the NCR. The petitioner has alleged that the restriction imposed on the movement is unconstitutional.

The petitioner has also highlighted the difficulties being faced by the citizens due to the restriction which has also hampered industrial operations since the workers employed in these industries are not being able to travel across the borders.

The petitioner owing to the difficulty faced by people in getting passes has prayed that a common portal or mechanism be devised for issuance of movement passes within the NCR region for permissible activities.

-India Legal Bureau

The Delhi High Court while adjudicating between the Government of National Capital Territory of Delhi (GNCTD) and the Union of India has clarified that Delhi remains a union territory. It also noted that the Lieutenant Governor (LG) of a union territory exercises the powers of an administrator on behalf of the president. The High Court made it clear that LG’s powers are more than that of a governor of a state and the former is not so tightly bound by the “aid and advice” of the council of ministers as the latter.

Article 239 of the constitution deals with union territories. Article 239AA has been added especially for Delhi to have a legislative assembly, on the recommendations of the Balakrishnan Committee. This committee was constituted for “Reorganization of the Delhi Set-Up” and “formed the basis of the 69th Amendment to the Constitution as well as enactment of the Government of NCT of Delhi Act, 1991”.

The judgment pointed out that there are three different types of union territories. One, that does not have a legislature like the Andaman and Nicobar Islands, Dadra and Nagar Haveli and Chandigarh. The second, like Puducherry, has a legislature created under an act of parliament. The third category is the National Capital Territory of Delhi which has a legislature provided for in Article 239AA of the constitution.

The court cited various documents, such as the statement of objects and reasons of the Constitution (74^th Amendment) Bill, 1991, in which Delhi was clearly referred to as a union territory. It also went through NDMC vs State of Punjab in which the Supreme Court has held that Delhi is a union territory.

While the counsel for GNCTD argued that LG is bound by the aid and advice of the council of ministers, Additional Solicitor General Sanjay Jain, arguing for the Union of India, pointed out through constitutional provisions, various legislations as well as case laws that the position of the LG of a union territory and that of a governor of a state are different. He contended that the LG of a union territory has more discretionary powers and even Article 239AA (4) provides for greater powers to the LG.

GNCTD lawyers had cited the 13^th July judgment of the Supreme Court in the recent Arunachal case, Nabam Rebia and Bamang Felix vs Deputy Speaker & Ors, to show that the governor is bound by the aid and advice of the council of ministers. However, the Union of India cited Devji Vallabhbhai Tandel vs Administrator Goa, Daman & Diu; (1982) 2 SCC 222 to prove that the powers of the governor of a state are different from the powers of an LG.

The court held that the scope of “aid and advice” in Article 239AA (4) of the constitution is not comparable to the scope of “aid and advice” received by the governor of a state under Article 162 of the constitution. It observed that legislative powers have been given to some union territories only to ease the burden of work on the central government. But these legislative powers are not on par with the legislative competence of the states, the court held.

While dealing with the issue of civil servants, the court held that certain areas like “services” are out of the purview of GNCTD. It said Delhi is served by a civil service and police service—DANICS and DANIPs—that are shared with other union territories, hence these services come under the control of the union.

The court also held that “Notification S.O. 1368(E) dated 21.05.2015 that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws”.

Even as the case came up before the Delhi High Court, the government of Delhi had already filed a suit under Article 131 in the Supreme Court. GNCTD lawyers had taken the view that only the Supreme Court was competent to adjudicate between the centre and the states as per Article 131. However, the lawyers for the Union opposed this move of the Delhi government on the ground that the issue involved did not fall under the purview of Article 131. The Supreme Court had clearly pointed out in State of Rajasthan vs Union of India that Article 131 is not meant to sort “mere wrangles between governments”, but comes into effect when a legal right of a state is in dispute.

The hearing under Article 131 has been adjourned by the Supreme Court on August 5. The apex court will now take up the matter along with a Special Leave Petition that GNCTD plans to file against the Delhi High Court verdict.

—India Legal Bureau

Lead Picture: (L-R) Delhi CM Arvind Kejriwal and Najeeb Jung, LG, Delhi. Photos: UNI