Without staying the Delhi High Court’s observations calling the Centre’s May 21 notification ‘suspect’, the Supreme Court on Friday told the government that the remarks made were only ‘tentative’ in nature and the HC did not comment on the validity of the notification that gave the Lieutenant Governor absolute powers over senior bureaucratic appointments to the Delhi government.

A vacation bench headed by Justice A K Sikri while issuing notice to the Delhi government against the HC’s single judge’s order, which made damaging observations against Ministry of Home Affairs (MHA) notifications on delegation of powers. However, it asked the division bench of the HC not to be influenced by the May 25 order of its single judge and hear the Delhi government’s petition against MHA May 21 notifications on merits and without paying attention to the single judge’s remarks calling it ‘suspect’.

The notification accorded the Lt Governor exclusive authority to take decisions relating to services of bureaucrats in Delhi, besides barring Anti-Corruption Branch to act against cenatral government officers.

As the Delhi government’s counsel opposed a plea to stay the observations, the bench said: “You can’t have it both ways. Either you tell us you won’t rely on these observations in your writ petition or we will pass an order. These are important issues and can’t be wished away just like that.”

The bench also asked the AAP government, represented by senior counsel Parag Tripathi, to either pursue their case in the apex court or the HC. “This is a matter of the moment. You take a call on whether you want us to decide or the HC to decide,” Justice Sikri told Tripathi.

Solicitor General Ranjit Kumar, appearing for the Centre, submitted that the entire law formulated for the governance of the National Capital Territory of Delhi has come into question. “If this is the case, even for Republic Day we will have to ask their permission…The Delhi Legislative Assembly has passed resolution that they want clarity… the entire law requires consideration… the single judge discussed the entire law on the bail application of a constable…” the SG argued.

The Centre told the SC that the legislative and executive powers of the Delhi government is restricted constitutionally. According to it, Article 239AA (3)(a) gives Parliament supremacy over the Delhi legislative assembly to make laws for the National Capital Territory, and in case of conflict, the law of the parliament prevails over that of the legislative assembly.

Meanwhile, the Arvind Kejriwal government claim unfettered right to run Delhi as its popularly-elected government before the Delhi High Court. It complained that the MHA’s notification had made it “virtually impossible for a democratically-elected government to carry out its day-to-day administrative functions and responsibilities”.

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