SC issues notice to Kejriwal Govt; terms HC’s observation on MHA notification as tentative

download-orderSupreme Court of India has issued notice to the Government of NCT of Delhi on the Special Leave Petition to Appeal filed by the Union of India against the 25 May judgment of the Delhi High Court wherein it had made certain observations on the MHA notifications and power of the Union on NCT of Delhi . Supreme Court has also asked the Delhi High Court not to be influenced by the said judgment while dealing with the Delhi government’s writ petition against 21 May notification of the Ministry of Home affairs by which Lt. Governor of Delhi has been granted discretionary powers to make appointments in NCT of Delhi.


Case
  • Special Leave to Appeal (Crl.) 4744 of 2015
  • Union of India v. Govt. of NCT of Delhi & Anr.
Counsels
  • For Union of India:  Ranjit Kumar, Solicitor General of India
  • For Govt of NCT of Delhi:  Parag P. Tripathi, Senior Advocate

Background

On 25 May 2015, while dismissing the bail application of a police constable, single bench of the Delhi High Court had observed that Union lacks the executive authority to act in respect of matters dealt with in Entries 1 & 2 of List III of the Seventh Schedule and had termed the 21 May MHA notification as “suspect”. The Delhi High Court was then dealing with the 1993 notification of MHA which was modified on 23 July 2014.


Union of India approaches Supreme Court

Union of India which was not a party to the above bail application, challenged the observations made by the Delhi High Court in para 44 and para 65 to 67 before the Supreme Court. The Petition was filed on 27 May and was mentioned before the vacation by Additional Solicitor General Maninder Singh, who said that the observations made by the High Court led to total uncertainty and made everyday administration of national capital difficult.

Notice but no stay

The petition challenging the High Court judgment was heard by the vacation bench comprising of Justices AK Sikri and UU Lalit. Solicitor General Ranjit Kumar also requested the bench to stay the observations made by Delhi HC in paras 44 and 65 to 67.

Bench issued a notice in the petition and the stay application, and asked the Delhi Government to file its counter affidavit in six weeks.

When the Delhi government’s counsel opposed the plea to stay the observations, the bench said:

“You can’t have it both ways. Either you tell us you won’t rely on these observations in your writ petition or we will pass an order. These are important issues and can’t be wished away just like that.” [Indian Express]

While discussing the observations in para 66 of the Delhi HC’s judgment, bench noted that they pertain to the 21 May Notification which was issued after the judgment was reserved by the High Court and that neither the Union of India was party who had issued such Notification nor was there any occasion to any hearing on the said Notification. Bench was also informed that Delhi Government has challenged the said Notification by filing a Writ Petition in the Delhi High Court under Article 226 of the Constitution of India.

Bench then passed the following order:

We, therefore, clarify that the observations made therein were only tentative in nature without expressing any opinion on the validity of Notification dated 21.5.2015 and it would be open to the High Court to deal with the said petition independently without being influenced by any observations made in para 66, or for that matter in other paragraphs of the impugned order.


What were the observations of Delhi High Court

Para 44 Thus, in my view, the GNCTD acting through the ACB has the executive power/authority to enforce criminal law, which includes the PC Act, within the NCT.
Para 65 Thus, it appears to me, that the Union Government could not have issued the notification dated 23.07.2014 thereby seeking to restrict the executive authority of the GNCTD acting through its ACB to act on complaints under the PC Act only in respect of officers and employees of the GNCTD. 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 of the NCT, since the law made by Parliament, namely the GNCTD Act read with Article 239 AA put fetters on the executive authority of the President.
Para 66 66. After the judgment was reserved in the present application, the Ministry of Home Affairs has issued a notification bearing No. SO 1368(E) on 21.05.2015 thereby further amending the notification dated 08.11.1993 and, inter alia, providing that “ACB police station shall not take any cognizance of the offences against officers, employees and functionaries of the Central Government”. In my view, since the Union lacks the executive authority to act in respect of matters dealt with in Entries 1 & 2 of List III of the Seventh Schedule, the further executive fiat issued by the Union Government on 21.05.2015 is also suspect.
Para 67 67. In the light of the aforesaid discussion, the submission of the applicant that the ACB of the GNCTD does not have the competence or jurisdiction to act on the complaint of the complainant is rejected. Since the applicant is a Delhi Police personnel serving the citizens in the NCTD and the functions of the Delhi Police personnel substantially and essentially relate to the affairs of the GNCTD, in my view, the ACB of the GNCTD has the jurisdiction to entertain and act on a complaint under the PC Act in respect of a Delhi Police officer or official, and to investigate and prosecute the crime. This would also be in consonance with the guidelines issued by the CVC as contained in para 1.5.2(b) set out herein above.

 

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