AAP vs Centre: Why the Supreme Court is Keeping Off the Turf War. For Now.

The Kejriwal government had initially moved the Delhi high court, not realising that its claim of Delhi being a state locked in a federal dispute with the Modi government is best heard before the apex court.

Najeeb Jung and Arvind Kejriwal. Credit: PTI

Najeeb Jung and Arvind Kejriwal. Credit: PTI

New Delhi: The turf war between the Arvind Kejriwal government in Delhi and the lieutenant governor of Delhi, Najeeb Jung, took an interesting turn on July 8. The Supreme Court declined to entertain the former’s plea to restrain the Delhi high court from pronouncing a judgment on the merits of the dispute between them without first deciding whether it has the jurisdiction to do so.

The Supreme Court bench comprising justices Dipak Misra and U.U. Lalit argued that the high courts are competent enough to decide jurisdictional issues and, in any case, the appellate remedy is always available to the aggrieved litigant.

In a sense, the Delhi government’s two special leave petitions (SLPs) – disposed of by the Supreme Court bench after hearing Delhi counsel Indira Jaising and attorney general Mukul Rohatgi – were very unusual.

The Delhi government, which first sought to resolve the dispute in 2015 by moving the Delhi high court, belatedly realised that the Supreme Court (under article 131 of the Constitution) is the only forum that can adjudicate federal disputes. The Delhi government then had three options: to withdraw the petition it had filed in 2015, seek a stay on the delivery of the judgment on the merits of the case till the Supreme Court decides on the jurisdiction issue, or file a suit in the Supreme Court under article 131, raising a federal dispute with the Centre.

Since the high court hearing of the case was almost complete when it realised its folly, the Delhi government could not withdraw its petition. Moreover, as there was another petition filed by the Union of India against the Delhi government in the same case before the high court, the latter contended before the Supreme Court on July 8 that it could not have withdrawn its petition as it would be a respondent in the other case anyway.

Therefore the Delhi government chose the other two options – seeking a stay of the high court judgment on the merits of the case, and simultaneously filing suit in the Supreme Court under Article 131 of the Constitution.

The options chosen

The high court, after hearing the application for stay, reserved its judgment on it, having already reserved its judgment on the merits of the petition, on the same day, May 24, 2016. Thus, when the Delhi government sought an urgent hearing from the Supreme Court on its SLPs, Misra and Lalit were surprised that what it was appealing against were two brief orders ‘reserving the judgments’ after hearing the parties.

Reserving judgments in a case is the normal immediate outcome once the hearing concludes. By reserving the judgment, the bench gives itself time to reflect on the arguments of the counsel, apply its mind and research the issues before giving a reasoned judgment within a reasonable time. Therefore, there can be nothing controversial about the order reserving a judgment.

But the Delhi government contended before the Supreme Court that the high court, having refused to list its application for judgment on the preliminary issue on jurisdiction, is deemed to have rejected its application for stay of the delivery of its judgment.

What the Delhi government could not convince the Supreme Court of was this: Even if it is a case of deemed rejection of its application for stay of the judgment on the merits, how could the ‘prejudice’ caused to its case become irreversible when the high court formally delivers its judgments in both the cases?

The Delhi government argued that its application for stay of the merits judgment, before resolving the jurisdiction issue, would become infructuous. This would deprive it of an opportunity to appeal against an adverse order refusing stay, if any, passed along with a judgment on the merits.

The Delhi government’s major contention in the Supreme Court was that the high court’s delivery of its judgments in the merits case – before resolving the preliminary issue of jurisdiction – would jeopardise its rights to a determination of the issues in the suit which it has filed in the Supreme Court, yet to be listed for hearing. This apprehension is based on an assumption that the high court’s judgment could go against the Delhi government.

Others may argue, however, that both parties could rely on the high court’s reasoning in the judgments to be delivered in the pending suit before the Supreme Court. It is premature to expect that it would jeopardise only the rights of one party and favour another.

The Delhi government also submitted that once the Supreme Court had issued summons on its suit against the Union of India, and when it filed a copy of the suit before the high court, propriety demanded that the latter, on its own, stay its proceedings to enable the issues raised in the suit to be decided by the Supreme Court. Both during the oral arguments and in its formal order after the hearing on July 8, the Supreme Court chose to be silent on this plea.

During the arguments before the Supreme Court, Misra repeatedly pointed out that it was the Delhi government that first invoked the jurisdiction of the high court to resolve its dispute with the Centre. He hinted that its present SLPs questioning the same jurisdiction are thus not in the least convincing. The Delhi government’s answer to this was that consent of the parties does not confer jurisdiction on the high court, which is ousted by the Constitution itself, by virtue of Article 131. But the Supreme Court was not inclined to consider this answer on July 8.

The burden of precedents

The Delhi government cited State of Punjab vs Union of India, in which a full bench of five judges of the Punjab and Haryana high court had held that under article 131 of the Constitution, the Supreme Court has exclusive jurisdiction to decide a dispute between a state government and the Union of India. During the arguments on July 8, Misra questioned whether this judgment is binding on the Delhi high court or whether it would only have persuasive value, and later held that even if the high court does not find it binding, the appellants could come back to the Supreme Court with a fresh challenge.

In another judgment, the Supreme Court held that disputes of the nature described in Article 131 are usually urgent and their decision can brook no delay. It is, therefore, expedient in the interest of justice that they should, as far as possible, be brought before and decided by the Supreme Court so as to obviate the dilatoriness of a possible appeal. “An original proceeding decided by this court is decided once and for all,” the Supreme Court held in State of Karnataka vs Union of India, 1977.

The Delhi government further contended that its petitions before the high court raised the question of the distribution of legislative powers between the National Capital Territory (NCT) of Delhi and the Union of India under Article 239AA of the Constitution. As the Delhi government and the Union of India have both claimed legislative and executive powers exclusive to each other, a dispute of a federal nature has arisen between the two parties, which can be adjudicated only by the Supreme Court, its argument goes.

Both before the high court and the Supreme Court, the Delhi government has claimed that it is a state for the purposes of Article 131 and that it has executive powers co-extensive with its legislative powers, in relation to which it can act independently of any approval by the lieutenant governor.

The Delhi government conveyed its grievance to the Supreme Court that every decision it takes is being questioned on the grounds that the LG alone has decision-making power with regards to matters relating to it. It referred to problems having arisen whereby two public prosecutors, one appointed by it with the consent of the high court and the other by the Union of India, have appeared in a matter, causing immense confusion in the administration of justice.

The Delhi government boldly claimed before the Supreme Court that it is a state, having been established under Article 239AA of the Constitution, inserted by the Constitution (69th Amendment) Act, 1991, read with the Government of NCT Delhi Act 1991, and in terms of the definition carried in Section 3(58) of the General Clauses Act, 1897, read with Article 367 of the Constitution.

Section 3(58) of the General Clauses Act, 1897, defines ‘state’ as the following:

“(a) as respects any period before the commencement of the Constitution (Seventh Amendment ) Act, 1956, to mean a Part A State, a Part B State, or a Part C State, and

(b) as respects any period after such commencement, to mean a State specified in Schedule 1 to the Constitution and include a Union Territory.”

Article 367 makes it clear that the General Clauses Act, 1897, applies for the interpretation of the Constitution.

In its order rejecting the Delhi government’s plea, the Supreme Court on July 8 pointed to a pending case in which it had asked the Delhi high court to finalise the matter with regard to the interpretation of article 239 AA by July.

Jaising pointed out to the bench that this order does not relate to the batch of petitions being appealed in the Supreme Court. But the Supreme Court found merit in Rohatgi’s argument that having asked the Delhi high court to expedite hearing, it would be inconsistent to now tell it to stay the judgment in that matter.

That case, NCT of Delhi vs Rabia @ Mamta, which appears to have tilted the scales against the Delhi government’s favour, was about a custodial death in Delhi. On October 20, 2015, justice Siddharth Mridul of the Delhi high court directed the special investigative team formed to investigate the case to expedite its probe and ascertain the identity of the unknown persons who perpetrated the crime. The Supreme Court granted a stay on this order, assuming that the interpretation of article 239AA of the Constitution is crucial to resolve the dispute.

When the Supreme Court bench comprising justices Dipak Misra and Shiva Kirti Singh came to know that the Delhi high court was already hearing some challenges that have a bearing on the interpretation of article 239AA, the court deferred its hearing and asked the high court to complete its own expeditiously.

Contrary to what the Supreme Court suggested in its July 8 order, this case only illustrates how such pending cases could endlessly delay the outcome in cases of federal nature that, according to the Supreme Court itself, can brook no delay.