However, with the Bharatiya Janata Party returning to power in Delhi after 27 years, these legal disputes look set to be put to rest.
“It (AAP) did a few things only for politics, so those will, of course, undergo review on a case-to-case basis, and the cases will reach their natural destiny,” a highly placed source in the newly formed government told ThePrint.
The legal tiff between the Delhi government and the Centre began early into the AAP’s first term in the national capital.
Questions over the administrative powers of the L-G in light of the special status of Delhi as a Union Territory under the Constitution reached the Delhi High Court through a batch of petitions in 2015. These included petitions filed by the Delhi government and the Centre. The matter reached the Supreme Court, and since then, several disputes have seen a similar recourse to litigation.
Delhi bureaucracy
The most important of these pending legal challenges is the Delhi government’s petition challenging the Government of National Capital Territory of Delhi (Amendment) Act, 2023, which created a new statutory authority to handle the transfer and posting of bureaucrats in the national capital.
Introducing the law overturned a Supreme Court judgment passed in May 2023. A five-judge Constitution bench of the Supreme Court had allowed the Arvind Kejriwal-led government to exercise its executive and legislative authority over the officers of various services, including those not recruited by it and allocated to Delhi by the Union of India. The same included the authority to transfer and post officers within the government, frame service rules for them or undertake any other measure for governance purposes, including passing a law in the legislative assembly.
An Ordinance was then promulgated days after the judgment and a law was passed to replace the Ordinance in August 2023. The ordinance created a new statutory authority to handle the transfer and posting of bureaucrats in the national capital.
This body will be headed by the elected chief minister of Delhi, along with the chief secretary and the principal secretary of the home affairs department. The authority will recommend the transfers and postings of officials and disciplinary matters to the L-G.
AAP was quick to challenge the Ordinance in the Supreme Court in June 2023. In July of that year, the Supreme Court referred the challenge to the law to a Constitution Bench.
In July last year, the Delhi government even urged the Supreme Court for an early hearing of its petition, saying that the law was creating hindrances on the state’s administration at a ground level. However, the petition remains pending.
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DERC chairperson, legal battle over lawyers
An offshoot of the 2023 ordinance was a tiff between the AAP government and the L-G over the Delhi Electricity Regulatory Commission (DERC) chairperson’s appointment. The post was especially contentious because AAP alleged that through its control, the BJP wanted to end Delhi’s power subsidy scheme, one of its flagship projects.
The post of the chairperson fell vacant in January 2023 when Shabihul Hasnain retired. While the Delhi government recommended the name of retired Madhya Pradesh High Court judge Justice Rajeev Kumar Srivastava, L-G V.K. Saxena returned the file.
Within months, AAP approached the Supreme Court over the appointment. Meanwhile, the Centre also promulgated the 2023 Ordinance, which, among other things, empowered the President to appoint the chiefs of autonomous commissions and boards—a power usually delegated to the L-G.
While the AAP government and L-G remained in a deadlock over the appointment for months, the Supreme Court in August 2023 nominated former Delhi High Court judge Justice Jayant Nath as the pro tem DERC chairperson.
However, the court clarified in October 2023 that the petition would remain pending till the Supreme Court decided the challenge to the 2023 law on control of services in the national capital by the Delhi government. Therefore, this petition effectively remains pending. In October last year, the Supreme Court also directed Justice Nath to continue as the chairman, even though he has crossed the age limit of 65 years.
Another petition pending in the Supreme Court challenges the Centre’s decision to vest in the LG the power to appoint government lawyers.
Another petition was filed by the Delhi government in March 2023 challenging the LG’s decision to allow sending school teachers to Finland for training but with riders. The court had issued notice on the petition in April 2023, but the plea remains pending.
In May 2022, a petition was also filed by the Delhi Commission for Protection of Child Rights, challenging the Centre’s 2021 amendments to the Juvenile Justice (Care and Protection) Act, 2015. The amendment made specific categories of offences committed against children non-cognizable. The petition didn’t involve the L-G but wasn’t an amendment passed by the Parliament.
The Supreme Court then suggested a meeting between the Delhi child rights panel and the Union Ministry of Women and Child Development “so that a discussion about “the grievance which has been raised in these proceedings” could take place. However, the matter has not come up before the court since.
NGT disputes
The erstwhile Delhi government also filed two appeals challenging orders of the National Green Tribunal in the Supreme Court.
In January 2023, the NGT appointed a high-level committee headed by the L-G to oversee the cleaning of the river.
In May 2023, the AAP government approached the Supreme Court, challenging the appointment of L-G as the chair of this committee. In July last year, the Supreme Court stayed the NGT order, only to the extent that it directed the L-G to be a committee member and chair.
In another order passed in February 2023, the NGT appointed the L-G as the head of the Solid Waste Monitoring Committee for handling solid waste management in Delhi. The committee included all other authorities concerned, including representatives from the Delhi government, the municipal corporation, the Delhi Development Authority (DDA), and the Central Pollution Control Board.
Both of these appeals are pending in the apex court.
DJB funds
Delhi Jal Board funds have also been a part of the tussle between the Delhi government and the Union government.
The AAP government approached the Supreme Court early last year, reportedly seeking the release of Rs 3,000 crore for Delhi Jal Board, alleging that its finance department was illegally blocking it, despite the state assembly passing the budget, provisioning the amount for maintaining and improving water supply to Delhiites. The LG was also made a respondent in this petition.
Representing the Delhi government, Senior Advocate A.M. Singhvi told the court that the funds would lapse if not released before 31 March 2024. However, in response, the bench told Singhvi that even if it heard the petition after 31 March, a court order in favour of the Delhi government would ensure the fund release.
An order passed on 1 April 2024 said that the DJB received Rs 4,578.15 crore for FY 2023-24—including Rs 760 crore on 31 March 2024, the last day of the financial year. However, while the Delhi government claimed that Rs 1,927 crore was still pending, the L-G’s lawyer told the court that the L-G had “nothing to do” with the non-release of the balance amount.
On the next hearing date, 5 April, the Supreme Court directed the finance department of the Delhi government to verify the amounts pending to the DJB and settle the dues. The petition, however, still shows as “pending” on the Supreme Court website.
(Edited by Madhurita Goswami)
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