Analysis: How Delhi HC verdict may scuttle Centre’s plan to take over anti-corruption agency

The Delhi high court ruling that the anti-corruption branch can probe Delhi Police officers, may end up scuttling the home ministry’s plan to get the Lieutenant Governor take charge of the anti-graft agency.

The high court had rejected the plea of a Delhi policeman arrested on bribery charges, who cited a July 2014 home ministry notification to claim that he was outside the jurisdiction of the Delhi government’s anticorruption branch.

Justice Vipin Sanghi also observed that a May 21 notification reiterating the July 2014 order restricting the anti-corruption branch’s powers also appeared to be flawed.

The high court had rejected the argument that the anti-corruption branch could be prevented from arresting central government employees by the home ministry since police and public order did not come under the AAP government, but the LG.

Instead, Justice Sanghi ruled that Delhi’s elected government had the powers over the anti-corruption branch since criminal law and criminal procedure - Entry 1 and 2 in the Concurrent List - were within the legislative competence of the Delhi assembly.

The Centre has moved the Supreme Court against the high court verdict but there is grudging admiration for Justice Sanghi’s interpretation.

“We hadn’t thought about this,” an official said, conceding that the government’s argument in recent years was only centered around the fact that the home ministry would have the last word because the anti-corruption branch was a police station.

Attorney General Mukul Rohatgi too had reflected this view last week when he told HT: “If police is a subject which is with the LG under the constitution, how can the anti-corruption branch as a police station be with the NCT government (council of ministers headed by the CM)?”

The high court’s ruling now explains how.

An immediate implication of this ruling is that the home ministry, or the Lieutenant Governor, are unlikely to try pushing the envelope till the Supreme Court settles the dispute.

The official, however, added that the verdict was on a sticky wicket when it held that the Lieutenant Governor was bound by the aid and advice of the council of ministers on matters where the assembly was competent to enact laws. This is contrary to the constitutional provision that empowers the Lieutenant Governor to have a difference of opinion with the council of ministers. In case the differences are irreconcilable, the constitution requires the LG to refer the dispute to the Centre for a final view. In more than one case, this view has been upheld by the Supreme Court in context of the 1963 Union Territories Act, which had similar provision.

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