NEW DELHI -- The tussle for power in the Capital between the state and central government is going into esoteric legal territory.
Both governments have approached the Supreme Court and High Court separately to determine whether the notification issued by the Ministry of Home Affairs on May 21, in which the union government decreed the Lieutenant Governor had supremacy over appointments, is constitutionally sound.
The legal tussle has become a proxy war between the Aam Aadmi Party government in Delhi and the Modi government at the Centre. AAP supporters believe the BJP is meddling in the national capital's affairs to retaliate for the humiliating electoral defeat it handed the BJP in local elections in February. BJP president Amit Shah has said the tussle was a question of interpreting the constitution and not a political one.
Nonetheless, it now looks set to become a protracted legal battle that will take a while to resolve.
Last week, the Centre moved to support the lieutenant governor Najeeb Jung when he appointed IAS officer Shakuntala Gamlin as acting chief secretary without chief minister Arvind Kejriwal's consent. The MHA issued a notification saying the LG has jurisdiction over matters connected with services, public order, police and land, and could choose to consult the CM at his "discretion". The MHA notification also restricted Delhi government's anti-corruption branch (ACB) from taking action against central government officers, effectively stopping it from acting against Gamlin, who they accuse of lobbying for Reliance-owned companies during her tenure as power secretary.
The Centre approached the SC on Wednesday, while the state government had approached the high court—first on Monday, and then again on Thursday, filing a fresh petition. As both sides bring on the heat by battling it out in court, here's a look at where things stand, legally.
SC Notice To Delhi Government
Delhi Government has three weeks to submit their reply to Supreme Court on why the apex court shouldn't stay the high court judgment. The HC had termed the MHA notification "suspect" on Monday, 25 May, after it declared that the lieutenant governor had the final say in all bureaucratic postings and transfers.
No Stay On HC Judgment
There is no stay on any of the high court observations yet, the SC has clarified. "We are not inclined to go into the issue of stay at this stage and after getting the reply, we will look into it," said a vacation bench comprising Justices A.K. Sikri and U.U. Lalit on Friday.
SC hs only said dat para 66 of HC judgment shuld nt influence d petition HC is scheduled 2 hear 2day on notification https://t.co/Fip5xb0uvV— Adv. Somnath Bharti (@attorneybharti) May 29, 2015
The Centre has also filed an appeal in the SC against the high court judgment. The apex court has issued a notice to the Delhi government on this, seeking their response within six weeks.
Delhi Government's Fresh Petition
Delhi government on Thursday filed a fresh petition in the high court, challenging the MHA notification, as well as all notifications issued by the Centre in the past. The HC will do so independent of the observations made by a single judge verdict at the high court on May 21.
The new petition challenges the appointment of Shakuntala Gamlin as acting chief secretary by the LG, and also sought quashing of an MHA notification from July last year as it was issued when Delhi did not have an elected government and was being ruled by the Centre.
While the SC has left it up to the Delhi government to decide which court they want to pursue the matter in, the vacation bench suggested that the matters be transferred from the high court to the apex court. "Let it be decided for once and all by the final court," the bench said.
The Delhi high court will also be hearing a public interest litigation on August 5, filed by a law student who has challenged the MHA notification.
Meanwhile, the high court has said both the central and state government is fighting the notification "in the right way" by approaching the court to clear it out.
(with PTI inputs)