The Centre has told the Supreme Court that the model of governance of the NCT of Delhi will invariably require the Union government to play a central role even if a legislative assembly or a council of ministers is introduced. The Union government told the apex court that the contentious issue of who should control administrative services in Delhi be referred to a Constitution Bench.
“The significance of the issues involved in the present appeals, is much greater, in view of the fact that Delhi is the national capital of our country and as such the model of governance of the NCT of Delhi would invariably require the Union government to play a central role, even if a legislative assembly or a council of ministers is introduced,” the Centre said. In a written note filed before the top court, the Centre said that from a bare reading of the 2017 order making reference to the Constitution Bench, it can be gathered that the terms of reference required all aspects of Article 239AA to be interpreted.
“The Union of India has made a prayer seeking reference to a Constitution Bench, in view of the fact that the majority judgment of the Constitution Bench did not bestow its consideration on the purpose and intent of the expression ‘insofar as any such matter is applicable to Union Territories’ as it occurs in Article 239AA(3) of the Constitution, which is the pivotal and crucial aspects of the said provision,” the Centre said. The Union government further submitted that the interpretation of Article 239AA (which deals with Delhi and its power) by the Constitution Bench would remain incomplete till such time the same does not interpret all aspects of Article 239AA brought by the 69th Amendment, which was aimed to provide for the administrative setup of the Union Territory of Delhi.
“The above submission is premised on the need that there ought to be adequate clarity on the crucial aspect of legislative competence of the legislative assembly of NCT of Delhi as regards List II and List III of the Seventh Schedule keeping in view that as per Article 246, entries of List II and List III are available to Legislative Assemblies of States (as distinct from Union Territories as per Article 1 read with the First Schedule), basis which the individual issues, including that of Entry 41 of List II could be decided,” it said. The note said it is noteworthy that in the Constitution Bench judgment, the status of the NCT of Delhi, to the effect that the same continues to be a union territory governed by Part VIII of the Constitution, even after the incorporation of Article 239AA is an accepted proposition.
“It is respectfully submitted that the present matter involves the interpretation of a provision of the Constitution which is germane to the determination of the present issue and is not merely ancillary or incidental issue. The determination of the legislative competence of the Legislative Assembly of NCT of Delhi for entries contained in List II and List III of the Seventh Schedule,” it said. The top court on Thursday had reserved its order on the Centre’s submission that the dispute around the control over the services in the national capital be referred to a five-judge bench, a plea which was strongly opposed by the AAP-led Delhi government.
The central government had also sought a joint hearing of two separate petitions of the Delhi government on control over services and challenging the constitutional validity of the amended GNCTD Act, 2021 and the Transaction of Business Rules, which allegedly give more powers to the lieutenant governor respectively, saying they are prima facie correlated. The plea by the Delhi government arises out of a split verdict of February 14, 2019, in which a two judge-bench of justices A K Sikri and Ashok Bhushan, both retired since, had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict.
Justice Bhushan had ruled the Delhi government had no power at all over the administrative services. Justice Sikri, however, made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government, and the view of the lieutenant governor would prevail in case of a difference of opinion on matters relating to other bureaucrats.
In a 2018 judgement, a five-judge Constitution bench had unanimously held that the lieutenant governor of Delhi is bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.