In a setback to Arvind Kejriwal-led government, the Supreme Court on Friday refused to grant an interim stay on the Delhi High Court verdict which has held that Lieutenant Governor is the administrative head whose prior consent is needed in all administrative decisions.
The apex court, which sought response within six weeks from the Centre on seven appeals of AAP dispensation against the 4 August verdict of the High Court, also declined to stay the recent decision of LG Najeeb Jung to set up a three-member committee to scrutinise over 400 files and past orders of the elected city government.
"Every day there would be some order, we cannot pass orders on a daily basis," a bench comprising Justices AK Sikri and NV Ramana said when the LG's recent decision to examine government files was referred to.
"No stay, we will fix the matters for final hearing on 15 November," the bench said. The bench, simultaneously, did not concur with preliminary objections of Attorney General Mukul Rohatgi that the appeals needed to be dismissed at the threshhold on several grounds including that instead of a Chief Secretary or a secretary, the pleas were supported by the affidavit of Deputy Chief Minister Manish Sisodoia.
"This is against the rules of the business. The affidavit in the High Court was sworn by the Secretary, but here it is sworn by the Deputy CM. Just because you are the Deputy CM, you cannot flout the Rules. How can the SLP filed by NCT be maintainable? How can a minister represent a Union Territory," Rohatgi said, adding "even assuming that he is competent to swear the affidavit, the decision to file a SLP is to be decided by the LG".
The court, however, said it was an important issue where a decision from the apex court was needed. Rohatgi said it has been "unequivocally" held by a 9-judge bench that Delhi is a Union Territory. Indicating that it may refer the cases to a larger bench after hearing arguments, it said, "This is in our mind, but that will be decided at later stage after hearing the parties."
Senior lawyer KK Venugopal, appearing for AAP government, said the Centre and LG Najeeb Jung, who enjoy a "master and servant" relationship, have "tied the hands of the elected government" and the refusal of public servants to sign the petition has created a situation where the Minister has to swear the affidavit.
Initiating arguments, Venugopal said "this is the whole case that for filing the appeal, the permission of LG is needed as no official is willing to sign." "This will affect all future governments. All future relationships will be directly affected. LG has no qualification to govern Delhi. He enjoys a master-servant relationship. He is only an employee of the Centre and can be asked to leave by the Centre at any moment," he said.
He said the consequence of the High Court verdict is that the Centre through the LG has taken over the governance, reducing an elected government into "some interim arrangement".
During the hearing, Rohatgi, who said the issue as to whether Delhi is a state or a UT has been settled by a 9-judge bench verdict, submitted that if the cases are to be referred to a larger bench,then they will have to be heard by a 11-judge Bench of the Supreme Court.
"This is because a nine-judge Bench of the court, in 1996, in the NDMC versus State of Punjab case, recognised Delhi as a Union Territory for taxation purposes, he said.
Besides Venugopal, abattery of senior lawyers including PP Rao, Rajiv Dhawan, Gopal Subramaniam and Indira Jaising appeared for the AAP government in different appeals filed against quashing of its various orders by the Delhi High Court in its historic verdict delivered on 4 August.
Subramaniam, echoing the views of Venugopal, said the LG had gone ahead with appointing a three-member panel to examine the decisions of the Delhi government which were taken without Jung's prior permission.
"This is being done to fix criminal liability on an elected government," he said. "There cannot be a committee finding fault with the previous decisions of the elected government...on the basis of the judgement of the high court, legitimacy cannot be given to a committee to look into them," he said. "You can challenge that order. Every day some order will be passed. Everyday we cannot say that this order is bad or good," the bench said.
The committee has taken away all the files, then how will the government function without files, Subramaniam said. The AAP government also alleged that the action of the LG has restricted its right to access to justice. "We cannot go to court now because we need his permission. This is what we have been reduced to," Venugopal submitted.