Delhi-Centre Power Row: SC Reserves Its Order On Referring Dispute To Five-Judge Bench

The Supreme Court on Thursday reserved its order on the Centre’s submission that the dispute about the control over services in the national capital be referred to a five-judge bench, a plea which was strongly opposed by the AAP-led Delhi government.

“We will consider and take a call as early as possible,” a bench comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli said after hearing Solicitor General Tushar Mehta, appearing for the Central government and senior advocate A M Singhvi who was representing the Delhi government.

While reserving the order, the bench said in the case, that it decides to constitute a five-judge bench to hear the issue then the hearing has to be concluded before May 15 so that the vacation time can be used for preparing the judgement.

Singhvi said “This court is not here to refer every time the slightest thing is pointed out. How does this matter, if there were three or five judges. It is not about why not, it is about why.”

The bench said there were two parts of the constitutional provision, “the problem arises when they refer to a provision but there is no conclusion, then it becomes a necessity to refer it to a larger bench.”

Singhvi said though there was no ambiguity in the previous 2018 constitution bench judgement, but, if there was any, even then it can be decided by the present bench.

The existence of a substantial question of law does not weigh on the stakes of the case. Here there is a constitution bench judgement already. There have been six requests for adjournment and now they want it to be referred to a larger bench, Singhvi said.

The solicitor general, on the other hand, said that the matter needed to be sent to a constitution bench on grounds including that the earlier judgements of the five-judge bench did not give “any roadmap” to decide as to whether the union or the Delhi government will have the competence to deal with the subject under dispute.

There has been a finding of the bench that there was no consideration on certain aspects by the larger constitution bench and hence the dispute needed to be referred, Mehta said.

The law officer referred to the observations made by Justice Ashok Bhushan (since retired) in the subsequent judgement dealing with the division of power between the Centre and the Delhi government and said that a case of reference was made out from that interpretation only.

“Ignore both the interpretations (of counsel for Delhi and Centre). The best interpretation is of the learned judge who was party to that constitution bench judgement,” Mehta said, adding that it was not for the first time the aspect of referring a matter to a constitution bench was being considered and referred to the Sabarimala case where the case was referred to a seven-judge bench.

The solicitor general said that there was no intention to delay the proceedings and that some reasonable time for preparation may be given if the court decides to constitute a five-judge bench to deal with the dispute.

Opposing the plea of the Centre, the Delhi government said the bench does not have “the luxury of time” and said, “ Does Your lordships have time to have constitution bench on issues nuanced by the earlier constitution bench.”

The Centre on Wednesday had told the bench that it needed to have control over administrative services in Delhi as it is the national capital and the face of the country.

The solicitor general also said 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.

It was not meant to be about any particular political party, he said. The law officer said the contentious issue of who should control administrative services in Delhi be referred to a Constitution Bench for a holistic interpretation.

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 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 the 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.