Delhi Govt vs LG - Centre's Plea For Larger Bench Reference An Attempt To Review Constitution Bench Judgment : Singhvi Tells Supreme Court

The Government of National Capital Territory of Delhi(GNCTD) on Thursday submitted before the Supreme Court that the Central Government's request for reference of the dispute relating to the control over civil servants to a Constitution Bench is actually an attempt for a reconsideration or review of the 2018 Constitution Bench judgment.Senior Advocate Dr Abhishek Manu Singhvi, appearing for...

Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Delhi Government, made the submissions before a 3-judge bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli which is currently hearing the matter.

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 Lieutenant Governor.

Today, Mr Singhvi submitted that asking for a reference to the constitution bench, on issues which have been dealt with by a constitution bench may not amount to a referral; it actually amounts to saying that they want the Constitution bench reconsidered by another constitution bench.

Once Constitution Bench Decides, No Need To Ask For Multiple Referrals:

Singhvi submitted that the Union of India's argument is that a Constitution bench is required to interpret the phrase 'in so far as' in Article 239AA of the Constitution.

He submitted that the Constitution bench dealt with the Article in 2 paragraphs directly and held that unless there's an explicit exclusion, there can't be implied exclusion. Further, apart those two paras there 6-8 other references by the bench in this regard.

"Once constitution bench decides matter, there's no system, no need of asking again and again to refer," he said.

According to Mr Singhvi, the issue was dealt with by the constitution bench, and it will be a never ending procedure if court refers a matter every time the slightest thing is taken out.

"How does this matter if there's 3 or 5 judges' isn't the question. It's not question of why not, it's about why," Mr Singhvi said.

The Bench said, "If there are two material provisions in a constitution sub article, and have been interpreted by Constitution Bench then you are right that there's no need to time and again consider."

However, the Bench said that the difficulty arises when the there's no discussion and conclusion on a point referred, and in that situation it might be a necessity to refer it to larger bench in terms of Article 145(3).

Mr Singhvi responded saying that even then there's no obligation to refer the case. That the Constitution Bench may have dealt with it imperfectly, wrongly, or may have dealt with it 90% with 10% left out is no ground for 3 judge bench to make a reference.

According to Mr Singhvi, there is no rule that when a constitution bench is cited and one or two issues are found to be not decided or partially decided, the court is obliged to refer it.

"In this case issue being considered is decided by the constitution bench. Your lordships aren't obliged to refer, had the Constitution bench said something against, then it'd be different. If it is said that in case where one issue is decided and one not decided it has to be referred under Article 145, there will be many cases," he said.

The bench asked Mr Singhvi what prejudice will be caused to the Delhi Government if the matter is referred to a constitution bench.

"Its not about why not, it's about why! There's to be a demonstration of why," Mr Singhvi said.

How Many Bites of Apply Will Court Be Giving Them (Centre)? : Singhvi

While pointing out that the Centre's requests for referral have been heard multiple times by the court, Mr Singhvi submitted, "Your lordships are not hearing this for first time, multiple attempts have been made. How many bites of apple will lordships be giving them?"

"How many times? On a discretionary basis why should a bench refer it? Justice has been done one way or the other by reference," he said.

No Constitution Bench Can Refer To The Phrase More Than The 2018 Bench Has:

Mr Singhvi submitted that no Constitution Bench can refer to the phrase "in so far as any such matter is applicable to UT" more than the 2018 Constitution bench already has.

He submitted that the Constitution bench has comprehensively interpreted 239 AA 3a which contains the phrase. Further the Union of India' argument that the phrase places implicit limitation on power of Delhi Assembly in addition to limitation in relation to explicitly excluded entries was also raised by them before the bench.

"Your lordships aren't here to second guess, this is objecting to constitution bench, as it is said, the Supreme Court is right because its final, it's not final because it's right. The Constitution bench may have flaws, but that's irrelevant for three judge bench," Mr Singhvi said.

"But question is for the provision and the phrase to 'Subject to provision of constitution', either no argument wasn't raised, as we weren't there, we won't know. Or if it was raised it hasn't been explicitly decided," Justice Surya Kant said.

"Your lordships being there or not may not be a valid test of the Constitution bench, your Lordships are bound by Constitution bench just like everyone else," Mr Singhvi said.

Argument May Be Raised & Answered Imperfectly But Cant Justify Referral:

Mr Singhvi submitted that argument maybe raised howsoever imperfectly, may be answered howsoever imperfectly but it can't justify referral, as other no constitution bench will be sacrosanct.

"This is a constitution bench which has dealt with this subject in 8 paras, I don't think anymore extensive manner can be there. Even if there's a gross error & I don't there is slightest error, it is not open for my friend to argue to refer, or for the three judge bench to consider," he said.

Mr Singhvi submitted that the court is being asked to have a reference merely because the formulation isn't a certain way, just to have a better judgement, which is written better and is more comprehensive, that however is impermissible grounds for a reference.

There's No Case Of Constitution Which Can't Be Reformulated For Reference:

Mr Singhvi submitted that there is no case of constitution that can't be reformulated for reference to constitution bench, and if the same is done, the Supreme Court would only be sitting in constitution benches.

While referring to one of Supreme Court's earlier judgements, Mr Singhvi submitted that anyone can find a fault in any judgement, and if referrals are allowed this way is followed it would be eroding a constitution bench doctrine of precedent

Referral Is Being Sought For Subject Matter Where Constitution Bench Already Occupies The Are:

Mr Singhvi pointed out that considering the issue has already been dealt with by Constitution bench, the Union is technically asking for two Constitution benches.

"There's a difference between a new territory but territory occupied by constitution bench. Please remember he's asking for two constitution bench. There's vast diff between coming to the court for first time and when constitution bench is occupying the area."

Supreme Court Doesn't Have Luxury Of Manpower & Time, Constitution bench reference arising from another constitution bench is rarest of rare:

Mr Singhvi submitted that the Supreme Court doesn't have the luxury of manpower or time considering the overwhelming number of cases, specially after the covid pandemic.

"Does Your lordships have time that on a nuanced point by earlier constitution bench, the bench has to have another constitution bench?", Mr Singhvi remarked.

Balakrishnan commission Report Rejected As Aid Of Interpretation:

With regard to the Balakrishnan commission report relied on by the Union, Mr Singhvi submitted that even if its assumed that the commission adopts the anti-federal argument favoured by the Government of India, it is clear that it is referred to as a historical fact, only to be rejected as an aid of interpretation.

The Bench observed that, it will accept the principle laid down by the Constitution bench of 2018 which said that the Balakrishnan commission can't be utilised as an external aid for interpretation.

Argument Not Raised Before Constitution Bench Can Be Raised Subsequent To CB, That Can't Be Basis Of Referral:

Justice Kant pointed out that the other issue authoritatively laid down by the Constitution bench is the interplay between clause (a) on one hand vis-a-vis (b) and (c) of Article 239 AA as to what are the legislative powers of UT of Delhi and what are overriding powers of Parliament. To this extent, there's finding which is binding, and there is no question of reconsidering.

The bench further observed that the particular specific issue with regard to the limitation in exercise of power under sub clause a is that:

i) are there limitations or not?

ii) and if those limitations are there then what are those other provisions of constitution which have effect on exercise of power under sub clause a.

The Bench observed that these are the questions which weren't raised or answered by constitution bench, and the judgement has to be read in the context of which an issue is raised and answered.

Mr Singhvi submitted that the argument not raised before a constitution bench can always be raised subsequent to the constitution bench, and that can't be basis of 145 reference.

"My question to myself is, what prevents 3 judge bench from deciding those questions? Every time a question is raised just because there was a constitution bench earlier, your lordships would be asked to refer? Your lordships can decide it," he said.

The bench reserved orders on Centre's plea for reference after the arguments.

Solicitor General of India Tushar Mehta appearing for Union of India had yesterday 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. The SG said that the 2018 judgment however did not address all issues relating to Article 239AA.

Find details of Centre's arguments in favour of the referral here.

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

Click Here To Read/Download Order

Delhi Govt vs LG - Centre's Plea For Larger Bench Reference An Attempt To Review Constitution Bench Judgment : Singhvi Tells Supreme Court

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