Delhi Govt advice binding on L-G: HC

R Sedhuraman

Legal Correspondent

New Delhi, May 25

The Delhi High Court today ruled that the Lieutenant Governor “cannot act in his discretion, and he is bound to act upon the aid and advice of the Council of Ministers”.

The HC came out with the finding while rejecting the bail plea of a Delhi police head constable charged with demanding and accepting a bribe of Rs 10,000 by the Anti-Corruption Branch (ACB) of the Delhi Government.

Legal experts viewed this ruling as a shot in the arm for Delhi Chief Minister Arvind Kejriwal in his confrontation with the Centre and Lieutenant Governor Najeeb Jung over the power to choose the Chief Secretary and other top officials. The accused constable, Anil Kumar, had pleaded that since he was an employee of the Union Home Ministry, the ACB of the city government had no power to prosecute him.

Further, the Home Ministry had amended the November 1993 notification, under which the ACB was set up, in July 2014, clarifying the ACB could probe corruption cases involving officials of the city government only. While the 1993 notification had been issued by the Lieutenant Governor, the amendment was made by the Union Home Ministry. An HC Bench of Justice Vipin Sanghi analysed Kumar’s contentions in the light of the powers of the Delhi Government, the Centre and the Lieutenant Governor under the Constitutional provisions.

Explaining the scope of Article 239AA, under which the Delhi Assembly was constituted, Justice Sanghi said this Constitutional provision had empowered the Assembly to make laws in respect of matters enumerated in the concurrent list of the Seventh Schedule to the Constitution.

“Therefore, in respect of matters dealt with by Entries 1 and 2 of the Concurrent List, the Lieutenant Governor cannot act in his discretion, and he is bound to act upon the aid and advice of the Council of Ministers.

“Thus, it appears to me, that the Centre could not have issued the notification on July 23, 2014 thereby seeking to restrict the executive authority of the Government of National Capital Territory of Delhi acting through its ACB to act on complaints under the Prevention of Corruption Act only in respect of officers and employees of the GNCTD.