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Delhi Govt v LG : Centre Presses For Reference Of Services Issue To Constitution Bench For Holistic Interpretation Of Article 239AA

Srishti Ojha
27 April 2022 3:37 PM GMT
Delhi Govt v LG : Centre Presses For Reference Of Services Issue To Constitution Bench For Holistic Interpretation Of Article 239AA
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The Central Government on Wednesday argued before the Supreme that the matter pertaining to legal dispute between the Delhi Government and the Central Government regarding the control over administrative services in the national capital, be referred to a Constitution Bench for a holistic interpretation of Article 239AA which is central to the determination of issues involved.It may be...

The Central Government on Wednesday argued before the Supreme that the matter pertaining to legal dispute between the Delhi Government and the Central Government regarding the control over administrative services in the national capital, be referred to a Constitution Bench for a holistic interpretation of Article 239AA which is central to the determination of issues involved.

It may be recalled that in February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the GNCTD and Union Government over services and referred the matter to a larger bench. Last month, a 3-judge bench led by CJI Ramana had decided to take up the case.

In July 2018, a 5-judge bench of the Supreme Court had laid down broad parameters for governance of the national capital, amid the differences between the elected government and the LG. The matter was referred the Constitution bench by a Division Bench of the Supreme Court by an order dated dated 15th February 2017. 

Solicitor General of India Tushar Mehta appearing for Union of India today submitted before a bench headed by CJI NV Ramana, that on 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.

However, the majority opinion of the constitution bench judgment authored by the then Chief Justice did not interpret one of the most significant aspect of Article 239AA, which is the expression "insofar as any such matter is applicable to Union Territories" as it occurs in Clause (3) of Article 239AA.

Solicitor General submitted that there are three important elements with regards to Article 239 AA 3(a): 

i) The article says it is 'subject to provisions of constitution', and therefore there is category of powers which is excluded which, for example, would be Article 309 (Service)

ii) The phrase "In so far any such matter is applicable to Union Territories": In NDMC judgement, a 9 judge bench of the Supreme Court concluded that Delhi is a Union Territory with Legislature, and 239 AA is finding place in Part A, which is part dealing with UT.

iii) There are also three specific exclusions, Entry 1,2 and 18 in State List(public order, police and land).

According to SG, there's no clarity on the first two issues, therefore it may finally be decided by a constitution bench. 

Referral to 5 Judges In Accordance with Article 145(3): It has been submitted on behalf of Union of India that as per Article 145(3) of the Constitution, a substantial question of law as to the interpretation of a provision of a Constitution ought to be referred to bench of not less than five judges.

Delhi Being Capital, Its Governance Would Require Centre To Play Central Role:

The Union of India has submitted before the Court that Article 239AA was enacted by the 69th Amendment to the Constitution providing for legislative body and a Council of Ministers for Delhi, which is significant as Delhi is also the national capital 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 Council of Ministers is introduced. 

"The Legislature wanted to do something about Delhi as it is the capital territory. The world looks at Delhi like they look at India. All Ambassadors of foreign nations stay in Delhi", the SG submitted.

Balakrishnan committee report was Verbatim accepted by Parliament: SG 

The Solicitor General informed the court the Parliament had enacted the 69th Amendment Act, incorporating verbatim, Article 239AA, as suggested by the Balakrishnan Committee.

He submitted that committee's suggestions had come after examining capitals of countries and how they were managed and administered, and all this was examined by the Parliament.

He pointed out that the Committee in its report had stated that, in respect of Delhi, certain exceptions should be made to the power of legislative assembly to make laws, and the same was recognised during debates in constituent assembly and in parliament.

"It is one thing to administer and manage Lakshwadeep or Puducherry and it is another thing to manage Delhi which is the capital of the country", the SG said.

The report says that It is not constitutionally possible to get services under Union Territory and there cannot be a public service commission also under UT. The SG stressed that the report is of great "sanctity" as the Parliament has adopted its suggestion verbatim while incorporating Article 239AA.

Delaying Tactics By Centre: Senior Advocate AM Singhvi

Senior Advocate AM Singhvi,  appearing for the Delhi Government, submitted that the Centre's plea for referrral was a "delaying tactic".

"It is regrettable that Centre has spent 2-3 hearings to ask the court to refer it to be constitution bench. Its a delaying tactic, this matter should've been over by now" he said

The hearing will continue tomorrow.

Case Title: Govt Of NCT Delhi vs Union of India: CA 2357/2017

Click Here To Read/Download Order


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