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Supreme Court takes on board Centre versus Kejriwal row over Delhi

May,29,2015: Meanwhile orders Delhi HC to consider MHA notification dispassionately.

AAP vs Lt Governor
AAP vs Lt Governor

Without directing a stay on the Delhi High Court's remarks calling the Centre's May 21 notification 'suspect', the Supreme Court on Friday said the observations made were only 'tentative' in nature and did not comment on the validity of the notification giving the Lieutenant Governor absolute powers over senior bureaucratic appointments to the Delhi government.

A vacation bench of Justices A.K. Sikri and U.U. Lalit asked a Division Bench of the Delhi High Court to go ahead and consider a writ petition filed by the Delhi government challenging the legality of the May 21 notification issued by the Ministry of Home Affairs afresh and 'independently' and pay no attention to the Single Judge's comments calling it 'suspect'.

The High Court hearing on the State government's writ challenging the notification as bad in law and a ruse by the Centre to usurp governance powers of a popularly elected AAP government will be considered later in the day.

The bench issued notice to the Delhi government, represented by senior advocate Parag Tripathi, on both the Centre's special leave petition challenging the remarks made against the notification. The State has to file its counter in six weeks. The apex court also issued notice to the State on a separate application seeking a stay on the remarks. On this, the State has three weeks to file its response.

The hearing saw the bench ask the AAP government to either pursue their case in the apex court or the High Court.

"This is a matter of the moment. You take a call on whether you want us to decide or the HC to decide," Justice Sikri told Mr. Tripathi.

Solicitor General Ranjit Kumar for the Centre submitted that the entire law formulated for the governance of the National Capital Territory of Delhi has come into question.

"If this is the case, even for Republic Day we will have to ask their permission…The Delhi Legislative Assembly has passed resolution that they want clarity… the entire law requires consideration… the Single Judge discussed the entire law on the bail application of a constable…" the SG pressed.

At one point, the bench even suggested the delhi government to transfer the writ to the Supreme Court, so a final decision can be arrived at.

On Thursday,while the Centre claimed supremacy to administer the National Capital before the Supreme Court, the Delhi High Court saw the Arvind Kejriwal government claim unfettered right to run Delhi as its popularly-elected government.

Multiple arenas of litigation opened up in the highest courts with both the Centre and the Delhi government simultaneously approaching the Supreme Court and the Delhi High Court,respectively, after days of impasse over who actually is constitutionally empowered to administer the National Capital Territory of Delhi.

The trigger for these identical litigations came in the form of a May 25 order by a Single Judge of the Delhi High Court calling the Ministry of Home Affairs' May 21 notification "suspect" for giving the Lieutenant Governor absolute powers over appointments, postings and transfers of senior officials as well as matters relating to the police and public order. The notification denied the Delhi government's Anti-Corruption Branch power to probe and prosecuteCentral government employees for corruption.

The Delhi government complained in the High Court that the MHA's notification had made it “virtually impossible for a democratically-elected government to carry out its day-to-day administrative functions and responsibilities”.

Centre's petition in the apex court argues that the Single Judge failed to appreciate that the NCT of Delhi is a “centrally-administered territory of the Union”.

It said the observations were made on the notification against all norms of natural justice as the Centre was not given an opportunity to be heard first. Besides, the Single Judge went ahead to comment despite knowing that a Division Bench of the same High Court was already considering the legality of the May 21 notification.

The petition said the legislative and executive powers of the Delhi government is restricted constitutionally. It said Article 239AA (3)(a) gives Parliament supremacy over the Delhi Legislative Assembly to make laws for the National Capital Territory, and in case of conflict, the law of the parliament prevails over that of the Legislative Assembly.

One of the questions the Centre wants the Supreme Court to authoritatively answer is whether the Delhi Assembly has unfettered powers under Article 239AA. If so, does such power to a State government “derogate” the power of the Parliament under the Constitution to make laws with respect to any matter for a Union territory under Article 246(4).

On the other hand, the Kejriwal government argued in the High Court that May 21 notification deprives the State's executive authority. It said a democratic set-up does not allow two centres of power – the Lieutenant Governor and Chief Minister.

It said that the LG cannot be placed at a higher pedestal as the May 21 notification does. It said the LG has to certainly act in tandem with the advice of the Council of Ministers.Hindu

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