May,26,2015: Delhi High Court says it can also arrest police personnel.
In a shot in the arm for the Aam Aadmi Party, the Delhi High Court ruled on Monday that the Delhi government’s Anti-corruption Branch (ACB) has the jurisdiction to arrest police personnel. The ruling comes in the middle of a high-stakes jurisdiction battle between the Delhi and the Union governments.The court said the Centre’s recent notification barring the ACB from acting against Union government employees was “suspect” as it could not exercise executive power over matters falling under the legislative competence of the Delhi government. Delhi Chief Minister Arvind Kejriwal hailed the judgment, saying it would give his party new strength and resolve to fight against corruption.
“The ACB has been in existence for 40 years. The ACB was entitled to act against officers of any department in the territory of Delhi, be it the Delhi Police, the Municipal Corporation or the Delhi government. But during our 49-day government, we filed a case against one of the most powerful persons in the country, Mukesh Ambani. Things changed after that,” Mr Kejriwal said.
The court’s ruling was part of a judgment denying bail to a head constable arrested by the ACB on a bribery charge. Anil Kumar had contested his arrest, pointing to a notification passed by the Home Ministry last July saying the Branch’s jurisdiction extended only to employees of the Delhi government. It was contested that entries 1 and 2 on the State List of the Constitution — Public Order and Police — stood excluded from the legislative competence of the Delhi government under the Constitution.
Dhayan Krishnan, senior lawyer appearing for the Delhi government, said the powers of the State government to investigate corruption stemmed not from the State List but from the Concurrent List (matters under both the State and the Union governments). Entries 1 and 2 on the Concurrent List covered criminal law, including all matters included in the Indian Penal Code and the Code of Criminal Procedure at the “commencement of this Constitution”. He argued that offences of corruption, now covered under the Prevention of Corruption Act, were originally part of the IPC and could, therefore, be investigated by the State government.
Judge Vipin Sanghi agreed with Mr. Krishnan’s argument, saying the reliance placed by the applicant (Anil Kumar) on matters 1 and 2 on the State List was “misplaced”.
Court comes down heavily on Centre
The Delhi High Court came down heavily on the Union government on Monday for issuing a notification last July that sought to limit the powers of the Delhi government’s Anti-Corruption Branch (ACB).
The court, in its judgment, examined the executive powers of the Centre vis-a-vis the Delhi government and the powers of the Lieutenant-Governor since the notification was issued in his name.
It observed that the State government was empowered to make laws in respect of matters on the Concurrent List and as such, with regard to entries 1 and 2 (Criminal Law and Code of Criminal Procedure), the Lieutenant-Governor could not act in his discretion and was bound to act upon the aid and advice of the Council of Ministers.
Thus, the Union government could not have issued the notification seeking to restrict the executive authority of the Delhi government to act on complaints through its ACB under the Prevention of Corruption Act only in respect of its officers and employees. By an executive fiat, the Union government could not have exercised the executive power in respect of a matter falling within the legislative competence of the Legislative Assembly, the court said. For the same reason, it termed “suspect” the Centre’s May 21 notification barring the ACB from acting against its officers. Late in the evening, the Home Ministry issued a statement saying it would study the judgment and take “appropriate legal recourse” in the matter.
“Members of the Legislative Assembly are directly elected by the citizens from territorial constituencies in the NCT of Delhi, and the Council of Ministers is collectively responsible to the Legislative Assembly. The mandate of the people, with whom the sovereign power resides, must be respected by the Lieutenant Governor,” the court said.Hindu