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AAP-Centre tussle Cannot be called a federal dispute – Delhi High Court

Cannot be called a federal dispute – Delhi High Court – By doing this, the High Court has struck a pre-emptive blow to the Kejriwal government’s likely appeal in the apex court.

delhi high courtThe Delhi High Court judgment on Thursday dismissed the AAP-Centre tussle as a mere “political” wrangle concerning “services” issues which hardly qualify to be called a dispute of a federal nature between the Union of India and a State. By doing this, the High Court has struck a pre-emptive blow to the Kejriwal government’s likely appeal in the apex court. The government has been portraying the case as an infringement by the Union upon the constitutional right vested with his government to exercise its executive and legislative powers over the NCT of Delhi in terms of Article 239AA.

At one point, after the High Court had reserved the case for judgment in May, the Delhi government had made an unsuccessful foray to the Supreme Court saying that the Delhi High Court had no jurisdiction under Article 226 to hear or pass verdict. It had contended that the apex court should call the case to itself and only the Supreme Court under Article 131 has jurisdiction to decide “classic” federal disputes like this one.

But the apex court chose to dismiss the Kejriwal government’s plea, saying “you [Delhi government] were the one who knocked on the doors of the Delhi High Court and now you don’t want it to decide after having reserved its verdict?”

Now, stamping its authority to decide the case and dismissing the claims of the AAP government of this dispute being anywhere near “federal” in nature, the High Court observed that not all disputes between the Centre and a State can be casually termed ‘federal’.

“Every dispute which may arise between the State on the one hand and the Union of India on the other in discharge of their respective executive powers cannot be construed as a dispute arising between the State and the Union of India attracting Article 131 of the Constitution. It is clear that Article 131 is attracted only when a dispute arises between or among States and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing therefrom,” the High Court clarified.

“The purpose of Article 131 is to provide a forum for resolution of disputes which must involve a question based on the existence or extent of a legal right and not a mere political issue,” the Delhi High Court quoted from the 1977 precedent.

However, the AAP government’s fight for “statehood” to Delhi has not ended with the Delhi High Court’s verdict Thursday. The most important legal battle on this issue is yet to unfold before the Supreme Court which Friday will examine, and in all likelihood, reopen a host of issues sought to be settled by the judgment in favour of the Lt Governor.

On Friday, the Supreme Court will take up the AAP government’s original suit which has raised various questions claiming these are “federal in nature”.

Under Article 131, only the Supreme Court can decide any dispute between the Government of India and one or more States “so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends”.

Describing Government of the NCT of Delhi as a “federal unit”, the AAP government has submitted before the top court that that GNCTD is a ‘State’ for the purposes of Article 131 of the Constitution — a contention vehemently opposed by the Central government.

Therefore, in order to claim exclusivity of the Supreme Court’s jurisdiction, the Delhi government will have to first establish before the top court that it is a ‘State’ for the purposes under Article 131. If the AAP government crosses this legal hurdle and makes its suit maintainable on merits, the second stage would be to satisfy the Supreme Court that the impugned notifications impacted its legal rights and that the fight between them is not just political.

In State of Rajasthan vs Union of India, 1977, the Supreme Court had ruled that existence or extent of legal right is a precursor before a suit under Article 131 is entertained, and that “mere wrangles between governments have no place in the scheme of that Article”. Hence, the onus on the Delhi government, which is the plaintiff in the matter, will be to show to the apex court that the impugned notifications affected not just certain executive powers that both the Centre and the Delhi government could exercise but these notifications impacted the constitutional relationship and curtailed its legal right as a ‘State’.

If the Delhi government crosses these hurdles in the Supreme Court Friday, it will be easier for its lawyers to puncture holes in the High Court judgment that has quashed most of its notifications. Notifications issued by the Centre concerning the administration of Delhi are also a matter of contention in the top court where the suit has sought a directive to declare them as unconstitutional “being in excess of authority” by the Central government.

In what would mean affirmation of its plea for full statehood, the suit has pleaded that the court should declare that the Union of India has no executive powers in relation to any of the items in List-II (state list), and these executive powers are vested exclusively in the NCT of Delhi. It has also asked for a declaration that aid and advice of the Council of Ministers will be binding on the Lt Governor in the same way it is binding on a Governor in a state.

Source: The Hindu