The Delhi turf wars – A roundup of the Supreme Court & Delhi HC proceedings

The ongoing battle between the Delhi government and the Central government took place across multiple forums yesterday. And one had to be present inside courtroom No 2 in both Supreme Court as well as Delhi High Court to gauge the actual impact the turf war over the now-ubiquitous MHA notification of May 21st..Apex Court – (Challenge to Delhi High Court judgment).In a packed Court No 2 of the Supreme Court, Justices AK Sikri and UU Lalit issued notice to the Centre’s plea that had challenged a Single Bench order of the Delhi High Court. As reported by Bar & Bench, the Delhi High Court had held that the Anti-Corruption Bureau could exercise jurisdiction over officers of the Delhi Police. The High Court also termed the MHA notification as “suspect”..Not only did the Centre challenge the decision but also moved a stay application against the comments/observations made..Counsels: Solicitor General Ranjith Kumar for the Centre, Dayan Krishnan for Delhi government.Arguments and outcome: Ranjith Kumar prayed for staying the observations of the order to which the Bench sought a reply from the Delhi Government within a period of three weeks. The Bench also noted that the Delhi HC should remain “uninfluenced” over the aforesaid impugned remarks made by the Single Bench, while hearing the petitions against the MHA notification..There was an oral suggestion put forth by the Bench that a transfer of all cases could also be considered by the Delhi Government so that all significant issues pertaining to the dispute could be “heard and decided by the final Court.”.Delhi High Court Part I (PIL against the MHA notification).Yesterday, we had reported there were two petitions challenging the same notification before the Delhi High Court. While one was a PIL filed by law student Vibhor Anand, the Arvind Kejriwal-led Delhi Government had also moved the High Court..Counsels: ASG Sanjay Jain for the Centre, VK Anand for Vibhor Anand.Arguments and outcome: Today when the PIL was taken up for hearing, ASG Sanjay Jain submitted before the Division Bench of Justices BD Ahmed and Sanjeev Sachdeva that since the GNCT had already filed a petition with overlapping prayers, the PIL had ‘lost its sheen’. He said, “The offended party has already moved the High Court. Why carry your grudges on behalf of the Delhi Govt?”.Amidst a racous hearing which saw both sides exchanging barbs, Justice BD Ahmed renotified the AAP government’s petition before the court of Justice Rajiv Shakhder. Addressing the petitioner of the PIL he observed,.“Lets not play out political battles here. When both concerned parties are fighting so vehemently, then why are you agitating [before us]? The Government has filed a substantive petition so let it be argued before that Court. We will renotify this PIL.”.When Vibhor’s counsel commented that two constitutional authorities were fighting amongst each other ‘without caring for the public’ Justice Ahmed further said,. “When two constitutional authorities are fighting to exercise power over what they believe is their domain, then they need to be heard. Atleast they’re adopting a legal recourse while doing that.” .Delhi High Court Part II (Justice Shakdher’s court).Counsels: ASG Sanjay Jain for Central government, Indira Jaising for Delhi government.Ultimately the drama shifted to Court 7 where Senior Adocate Indira Jaising submitted that the impugned notification was ultra vires. The former ASG argued that that Services as listed under Entry 41 of the State List of Schedule VII of the Constitution were within the ‘exclusive legislative competence of the State.’.“There is no authority of law under which this notification can be issued. Art 239AA tells us the extent of legislative power of Delhi. There is an elected legislature in Delhi by adult franchise. The obvious argument here is that the Lieutenant Governor does not have the power to exercise discretion in service matters.”. She further went on to argue that if at all there arose a dissent between the L-G and the Council of Ministers over such affairs, the GNCT Act provided a comprehensive mechanism to resolution of such conflicts. Stating that how a ‘legal wrangle ought not to be allowed to let the city come to a standstill’ Jaising put forth a suggestion to the Bench in order to ‘break the conundrum’ :. “Because of this notification, officials are refusing to resume the charge that they’ve been given. We will send copies of our decision to the LG under Rules 10 and 11 of the Act. If he has a bonafide difference of opinion, then he can follow the conflict resolution process listed out in the Act. But you absolutely cannot short route through this process. Am willing to make an undertaking before this court that I will submit my decisions to LG. But the LG should also submit to the discipline. If the president agrees that XYZ officer will not be appointed, then the matter ends there. I will bow to his decision. But you can’t behave like an autocrat and not encourage discussion and dialogue.” .But you can’t behave like an autocrat and not encourage discussion and dialogue..Taking serious opposition to the proposition, Jain argued that Delhi remained a Union Territory, and that since the Union was the cadre controlling authority, administrative responsibilities rested with the Union..“Why are you trying to change that practice? It is for the Union to decide which officer needs to be appointed to which post. The cadre of UT officers is common to all UTs and also to some states that were erstwhile UTs. When we say that you will stay away from so and so items, we are talking about Services listed under Entry 70 of List I [over which state government does not have any control and authority] and not about Services under Entry 41 List II services because they are not in existence. This whole argument of the Delhi Government is fundamentally flawed. The Union has already allocated officers at the government’s disposal and for their functioning. The issue here is that this government does not like the posts occupied by such officers. What is the hurry in displacing officers like this? Then it reveals a political agenda.”.Jain also referred to the proposal made by the Kejriwal government to Lt-Governor Najeeb Jung on appointment of bureaucrats and shot back as to how can the Centre urge the LG to consider the proposal when the ‘power to make such a proposal did not rest with the government?’.However, the Bench differed in its direction. Justice Shakhder while issuing notice in the petition, directed the Lt-Governor to deliberate upon the proposal of the Delhi Government and offer his suggestions/comments on it to the Council of Ministers. He also called upon the Centre to file an affidavit, detailing as to how officers were moved by earlier Delhi governments, and factual data outlining the process followed by other states and UTs..Jaising also prayed for the Court to direct the officers to resume work in their respective departments. “Do not deprive Delhi of water and electricity services,” she stated. Justice Shakhder denied the prayer and commented in a lighter vein, “If only I had the power to issue such directions!”.After a marathon hearing that went on for two hours (Justice Shakhder commented once while looking at the clock, that such timings ‘were not unusual for this Court’), the Bench posted the matter for further arguments in August.