As Delhi Govt. Completed 100 days in power, to mark the special occasion, Aam Aadmi Party held a public ‘cabinet’ meet at Connaught Place on 25th May, to highlight their achievements. What they chose to highlight instead was their apparent victory over the Centre citing that day’s Delhi HC order, allegedly ‘striking down’ a MHA notification regarding Delhi ACB.
Now most of the Media too proceeded to report same of how HC had quashed MHA notification regarding Delhi’s ACB (Anti Corruption Bureau) having limited jurisdiction over the Delhi Police which falls under the Central MHA. (Read here)
My inquisition began after Kejriwal claimed that the MHA Notification has been struck down by a judgment of Delhi HC. Since Kejriwal does not really enjoy the reputation of being honest with facts, it prompted me to study the judgment he bragged about.
Facts about the Judgement itself
The judgment relates to a regular bail application filed under Section 439 of the Code of Criminal Procedure. The matter is titled as Anil Kumar Vs. Govt of NCT of Delhi and registered as Bail Application No. 878/2015.
The fact which needs to be underscored at the outset is that the court was proceeding under a criminal jurisdiction and not under the Constitutional or Writ jurisdiction. Therefore, the constitutionality of the Notification could not have been decided while exercising merely criminal jurisdiction.
Therefore, the only issue which the court was seized of was whether the applicant was entitled to the relief of bail or not. No other issue was under the consideration of the court. Hence, it goes without saying that the legality / constitutionality of the MHA Notification was far from being under the consideration of the court.
In Paragraph 34 of the judgment, the court made it explicitly restricted its findings and conclusions only to the extent of that case, i.e. the bail application under consideration.
Para 34. The court restricted it’s findings & observations ONLY for the purpose of that case, i. e. bail application pic.twitter.com/3XBWTeagNW
— Ketan C Bhate (@BhateKetan) May 25, 2015
Union of India was not a party to said proceeding. Union of India was therefore not heard. Therefore, the legality / constitutionality of the MHA Notification could not have been decided without hearing the Union of India which is the issuing authority. The court was mindful of the said position. Therefore the following observations made by the court assume significance and debunk the claims of Kejriwal and coterie that MHA Notification has been struck down- “This is an important constitutional issue which has bearing on executive authority of Union and the said issue cannot be finally determined without hearing Union and examining its stand”
Thus without slightest of doubt it is clear that the court did not decide the constitutionality / legality of the MHA Notification and the findings of the court do not go beyond the said particular bail application.
Hence the judgment has no bearing whatsoever on the Constitutionality / legality of the Notification.
Another important aspect of the matter is that the Notification which was discussed was the one issued on 23/07/2014 as can be seen from Paragraph 16 of the judgment.
Moreover the Notification under consideration was the one issued on 23/07/2014 as can be found in Para 16 of judgment pic.twitter.com/QFlO3rzgCy
— Ketan C Bhate (@BhateKetan) May 25, 2015
The latest Notification of 21/05/2015 was not considered by the court. Only a fleeting, cursory reference is made to it in Paragraph 66 of the judgment.
Two cardinal principles of law also make it abundantly clear that the judgment does not affect the MHA Notification. The first principle is known as Audi AlteramPartemwhich means that no party can be condemned unheard and no decision which materially affects the right of a party can be given without affording opportunity of hearing to it. Since Union was never heard in the said case, the court was not empowered to strike down the MHA Notification. The court was also mindful of the constraints and rightfully refrained. The second principle is that the court cannot travel beyond the scope of the case and cannot grant any such relief which is not claimed by any party. In the case in hand, the only relief claimed by the applicant was that of bail and the only contrary demand of the Govt of NCT of Delhi was to refuse bail. Therefore, the court had no other issue to decide and certainly not the issue of the constitutionality of MHA notification.
Thus the latest MHA Notification which is the bone of contention nowadays was not considered in with any seriousness in the said judgment. This further falsifies Kejriwal’s claim that the Notification has been struck down.
Therefore after a thorough reading of the judgment and with the understanding of law at my command, I say it without doubt that the claim made by Kejriwal is completely spurious and false.
The legal position as it stands today is that the MHA Notifications of 2014 as well as 2015 hold their ground. They have not been struck down by any court.
Despite this clear position, Kejriwal as usual twisted the facts and went on to peddle falsehood. It did not come as any surprise to see the main stream media readily lapped those claims up and painted a totally false picture that MHA Notification has been struck down. Some overzealous media houses even portrayed it as a huge victory of Delhi Govt over the Center which is far from truth.
That Kejriwal will twist the facts and make false claims is not at all surprising. Politicians do that quite often and a politician like Kejriwal has built his political career on such oblique practices. But really dismaying is the inability of media to comprehend the legal niceties. This brings out their desperation to stay ahead in the rat race by being the “quickest” or “fastest” in “Breaking” a news. While doing that all the basic journalistic principles of verifying the news, testing its authenticity, seeking expert opinion if the news is technical in nature (such as legal news, as is the case here) are thrown to the winds.
The real news and truth bear the brunt ultimately.
– by @BhateKetan. ILS alumnus. Lawyer. ( In co-operation with @RpG_89 )