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Legally Explained: How the HC resolved the knotty turf war between Kejriwal & Lt Governor (and why it still ain‘t over)

Kejriwal lost in the high court on most fronts
Kejriwal lost in the high court on most fronts

So, finally, the Delhi high court ruled in favour of the Lt. Governor of Delhi, Najeeb Jung, and the Central Government, in their turf war with Delhi’s Chief Minister, Arvind Kejriwal.

Today, Kejriwal has said he’d appeal to the Supreme Court but it took a long time to even get this far and it’s unlikely to be finished.

We untangle the messy turf war that involves numerous petitions, parties and decisions.

How many petitions did the high court dispose of in this case?

There were nine petitions before it, each dealing with some aspect of this turf war.

Was the Delhi Government petitioner in all these nine cases?


The Government of the National Capital Territory of Delhi (GNCTD) was a petitioner in two.

In the remaining seven, the GNCTD was a respondent.

What were the main issues that were raised and resolved in these cases?

In the seven cases where the GNCTD was a respondent, some of its orders were challenged primarily on the ground that they were passed without placing the decision of the Council of Ministers before the Lt Governor for his concurrence or views. Therefore, argued the petitions, all those GNCTD decisions were illegal and unconstitutional.

Of those seven petitions, one was filed by the Centre itself, whereas the remaining six were more or less PILs filed by private individuals.

What about the two petitions filed by the Delhi government?

In one, the GNCTD’s grievance was that the legislative and executive powers it got under Article 239AA of the Constitution (in respect of matters relating to services) had been withdrawn and were sought to be exercised by the Central Government.

Another grievance was the curtailment of the powers of the Anti Corruption Branch of the GNCTD to take cognizance of offences against officers, employees and functionaries of the Central Government.

The Central Government’s notifications, which led to these grievances, were challenged as contrary to the Constitutional scheme.

In the second petition, the GNCTD challenged the appointment of a Special Public Prosecutor by the Lt Governor contending that he was not competent to do so.

There was also the related issue of whether the Lt Governor was bound by the aid and advice of the Council of Ministers under clause (4) of Article 239AA.

So what does Article 239AA do?

Article 239 deals with administration of Union Territories.

Article 239AA is a special provision with respect to Delhi alone. It was inserted by the Constitution (69th Amendment) Act, 1991 with effect from 1 February 1992.

239AA describes how the Union Territory of Delhi came to be called NCTD and its administrator was designated as the Lt Governor.

As per clause (2) of Article 239AA, there would be a Legislative Assembly for the NCT and the seats in the assembly would be filled by members chosen by direct election from territorial constituencies in the NCT

What did the Delhi high court now hold about Article 239AA? Is Delhi a union territory?

The high court held that Article 239 would still apply to GNCTD and that it would not be diluted by Article 239AA

So, according to the high court, Delhi continues to be Union territory.

It found that the words “subject to the provisions of the Constitution” in Clause (3) of Article 239AA, conveyed the idea of a provision yielding place to another provision to which it is made subject to, the high court has reasoned.

Therefore, Article 239 continues to apply.

How did the high court answer the Delhi Government’s claim that it wasn’t competent to hear the cases?

The GNCTD argued that under Article 131, only the Supreme Court could hear a federal dispute.

The GNCTD in response filed three applications with a prayer to stay all further proceedings in the cases heard by the high court until the Supreme Court ruled on an Original Suit about Article 131, which was to settle that exact question.

The GNCTD alleged that the Central Government was attempting to infringe upon its constitutional right to exercise its executive and legislative powers in terms of Article 239AA

Although the GNCTD raised objection to the jurisdiction of the high court at a belated stage of the hearing, the GNCTD claimed that there was no inherent jurisdiction in the high court to deal with federal disputes, and therefore, judgments rendered by a high court would be void from the get-go (ab initio).

The high court, however, rejected this contention, saying the cases before it did not raise a federal dispute. Nor did the case concern the existence of extent of a legal right of GNCTD

“None of the noticed issues are exclusively triable under Article 131 of the Constitution”, the high court held.

What are the other rulings by the court that favoured the Lt Governor?

One conclusion was that Council of Ministers’ decisions must be communicated to the Lt. Governor, even in matters where the power to make laws was conferred on the Legislative Assembly of the NCTD

Furthermore, orders implementing decisions of the Council could only be issued where the Lt Governor does not disagree with the council.

So, which of the Council’s decisions were illegal then?

The court struck down the NCTD’s appointment of Nominee Directors to DISCOMs (power distribution companies), which was challenged in one of the petitions.

The high court also declared that the appointment of a Commission of Inquiry merely on the basis of the Cabinet decision without approval of the Lt Governor was without jurisdiction.

Therefore the high court struck down the appointment of a Commission of Inquiry into allegations of irregularities in the Delhi and District Cricket Association, which was to be headed by senior advocate Gopal Subramanium.

What other conclusions did the high court make?

Another was that matters connected to ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi.

The high court also upheld the notification issued by the Central Government that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government.

Is there anything at all in the judgment which went in favour of Kejriwal?

Maybe there was one silver lining.

The high court held that the power to appoint a Public Prosecutor could be exercised by the Lt Governor only on the aid and advice of the Council of Ministers with the CM at the head.

Therefore, it rejected the contention of the UOI that the Council of Ministers had no role to play in exercise of the powers for appointing a PP

What about the Supreme Court?

Funny you should ask.

The GNCTD already has a petition pending in the Supreme Court on this issue (Original Suit No 2 of 2016).

In that, Kejriwal wants the Supreme Court to state that after Article 239AA came into force, Article 239 was not applicable to Delhi.

Isn’t that kind of a pointless question to ask after the high court already dealt with the same issue?

Indeed, the Supreme Court bench of justices AK Sikri and NV Ramana, asked senior counsel for the Delhi Government, Indira Jaising, exactly that when the suit came up for hearing this morning (i.e., did the high court judgment make the separate Supreme Court suit infructuous (pointless)?).

Jaising told the bench that the GNCTD would file a separate special leave petition (SLP) against the high court judgment soon, and that the suit would not become infructuous.

How did Jaising explain her stand?

She said that if the Supreme Court were to decide the SLP in favour of the Delhi Government (i.e., by finding that the high court had no jurisdiction to even hear the matter, and therefore, its judgment is not valid), then the suit has to be heard.

Therefore, the suit has to be kept pending until the SLP was heard and disposed of by the Supreme Court.

Isn’t that giving the Delhi government potentially two remedies - the SLP appeal as well as the suit?

The Attorney General, Mukul Rohatgi, submitted today that the Delhi Government can’t have both remedies (the suit as well as the SLP) and that they have to choose one.

But Jaising contended that both should be heard together by the same bench, whichever bench was asked to hear the SLP

Justice Sikri agreed with her that both should be heard together, and if another bench was likely to hear the SLP, then this bench would transfer the suit to that bench.

But he added that it should be the CJI who would decide which bench would hear the SLP, and to transfer the suit to that bench.

Justice Sikri added that if the SLP was assigned to this bench, then this bench would hear both together.

Is there a possibility that the SC will hear both the SLP and the Original Suit?

If what Rohatgi told the court is any indication, ultimately, the SC will settle for the suit and ignore the SLP, if it decides that Article 131 (the Supreme Court’s federal jurisdiction) applies.

Rohatgi cited the Mullaperiyar case, in which the court heard Tamil Nadu’s Original Suit against Kerala and transferred the pending writ petitions in the Madras and Kerala high courts to itself in that case.

There was just one verdict in the suit, which was applicable to the transfer petitions, since issues were common.

But this would happen only if the SC were to decide that the Delhi high court had no jurisdiction to decide the matter.

If, on the other hand, it were to decide that the high court did have jurisdiction to hear the matter, then it is likely that the suit would become infructuous, as a suit would require exclusive jurisdiction for the Supreme Court under Article 131.

Right now, the high court’s view that this is not a federal dispute can certainly still be debated and argued against.

So, what’s next?

The case will get heard on 29 August by the apex court, before which we can expect the Delhi Government to file its SLP and get it listed before the same bench, if possible.

The question of the Delhi Government availing of two remedies is certainly bound to be revisited by the parties on that day.

Photo by https://en.wikipedia.org/wiki/File:ArvindKejriwal4.JPG TY

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