New Delhi: In a major setback to the Delhi government, the Delhi High Court on Thursday ruled that Lt. Governor (LG) was not bound by the aid and advice of the council of ministers. The Delhi government said it will challenge the judgement in the Supreme Court.
A division bench of Chief Justice G. Rohini and Justice Jayant Nath ruled that decisions taken by Delhi’s council of ministers had to be communicated to the LG and if the LG took a different view on the issue, a reference to the central government was required. “Policy direction can’t be issued without communicating to Lt. Governor,” the judges said, giving primacy to the Lt Governor over Delhi’s administration of Delhi.
“The contention of the government of NCT of Delhi that the Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the council of ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution is without substance and cannot be accepted,” said the bench.
“On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of NCT of Delhi Act 1991… it becomes manifest that Delhi continues to be a Union Territory,” the bench said.
Article 239AA gives special provisions with respect to Delhi as a union territory. Limiting the Arvind Kejriwal government’s power over appointment of central government officials, the court said matters connected with ‘services’ fall outside the purview of the Delhi assembly. It also ruled in favour of the home ministry notification that declared that the Anti-Corruption Branch (ACB) cannot initiate any action against central government employees and that its power was limited only to Delhi government officials.
Terming “illegal”, the court also quashed the commission of inquiry set up by the Delhi government to look into all aspects of the award of work related to grant of CNG Fitness Certificates in the transport department and the commission of inquiry to inquire into the allegations regarding irregularities in the functioning of Delhi and District Cricket Association as it was set up “without seeking the views/concurrence of the LG”. It also set aside the appointment of nominee directors of Delhi government on Board of BSES Rajdhani Power Ltd, BSES Yamuna Power Ltd and Tata Power Delhi Distribution Ltd as it was made without communicating to the LG.
On the issue of appointment of Special Public Prosecutor (SPP), the bench said though the LG was competent to appoint them, such power had to be exercised on the aid and advice of the council of ministers. The issue cropped up in various cases including the bail hearing of JNU student leader Kanhaiya Kumar where the Delhi government had objected to the appointment of SPP by the LG.
The court also said that the Delhi government’s direction to the Delhi Electricity Regulatory Commission to compensate consumers in case of unscheduled power cuts is “illegal” as such policy directions cannot be issued without communicating to the LG.
The court’s judgement came on nine different petitions arising out of the spat between the LG and Delhi’s Aam Aadmi Party government over the power to appoint bureaucrats in the national capital and other issues. The judgement came after about a year-long hearing over the Centre’s two notifications which is behind the bitter turf war between LG Najeeb Jung and Chief Minister Arvind Kejriwal over the Delhi administration.
In one of the petitions, the Delhi government challenged the Centre’s May 21, 2015 notification giving the LG absolute powers in appointing bureaucrats in the city. The Delhi government had also challenged the July 23, 2014 notification of the Centre which limited the ACB’s jurisdiction to Delhi government officials.
On Thursday, the high court upheld both the notifications of the Centre.
