HC went beyond bail plea scope in calling MHA notifications suspect: Bench HC went beyond bail plea scope in calling MHA notifications suspect: Bench

The Supreme Court on Friday prevented the Delhi government from taking advantage of a Delhi High Court order, which had on May 25 called notifications issued by the Ministry of Home Affairs “suspect”.

The MHA had issued two notifications, in July 2014 and on May 21, 2015, giving the Lt Governor exclusive control over bureaucrats in Delhi and barring the Delhi anti-corruption bureau (ACB) from acting against central government employees.

The High Court had also said that the L-G must act on the “aid and advice of the council of ministers” and the “mandate of the people must be respected by the Lt Governor in respect of matters which fall within the domain of the legislative assembly”.

Buoyed by the High Court observations, the AAP government Thursday challenged the validity of the MHA notifications before a division bench of the HC.

But a Supreme Court bench of Justices A K Sikri and Uday U Lalit said the observations made in the High Court order cannot be relied upon in pertinent proceedings. It also issued a notice to the Delhi government asking why the entire order should not be formally stayed.

The observations by the High Court were made by a single judge bench of Justice Vipin Sanghi while dismissing a bail application filed by Delhi Police head constable Anil Kumar, arrested by the Delhi ACB on bribery charges earlier this month.

The arrest had led to a spat between the Centre and Delhi government regarding the ACB’s jurisdiction.

On Friday, the Supreme Court admitted the Centre’s appeal against the High Court order. The court said the impugned order appeared to have gone beyond the bail plea and had opted to lay down the entire law on the subject.

Solicitor General Ranjit Kumar, appearing for the Centre, complained that adverse comments were made against notifications by the MHA without even hearing them, and that the Delhi government now sought to draw authority from these observations and challenge the notifications in the High Court.

The Supreme Court bench asked senior advocate Parag Tripathi, representing the Delhi government, if he was willing to record a statement that the May 25 order would not impact the legal situation and that they would not rely on its observations.

As Tripathi expressed reluctance to do so, the bench said, “You can’t have it both ways. Either you tell us you won’t rely on these observations in your petition in the High Court or we will pass an order. These are important issues and can’t be wished away just like that.”

The bench said that denial of bail to the police personnel was “good”, but the May 25 order made observations beyond the scope of the bail plea.

“We clarify that the observations made therein were only tentative in nature, without expressing any opinion on the validity of notification dated May 21, 2015, and it would be open to the High Court to deal with the said petition (by Delhi government) independently without being influenced by any observations made in para 66, or for that matter in other paragraphs of the impugned order,” it said.In para 66, the order had termed the MHA notifications “suspect”.

The bench underlined that the single judge remarked against the May 21 notification even though the arguments on bail were concluded a day earlier. “Neither the Union of India was party who had issued this notification, nor was there any occasion to any hearing on the said notification,” it said.

Tripathi also made an oral appeal to restrain the Centre from issuing any further notifications but the bench turned it down and reminded him that the Delhi government has already moved the High Court.

“Who asked you to go to High Court? It could have been decided here once and for all. The issue before the HC and before us is essentially the same but you filed a writ petition there. If need be, we may call the records of that case at a later stage,” it observed while posting the matter after three weeks.

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