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A five-judge Constitution Bench of the Supreme Court is hearing a dispute between the Delhi government and the Centre over the control of services. Almost five years ago, another Constitution Bench had ruled in favour of the Aam Aadmi Party-led state government in a similar tussle. What is the protracted legal battle and what does the Supreme Court have to decide now?
The present case
A Bench headed by Chief Justice of India (CJI) D Y Chandrachud, and also comprising Justices M R Shah, Krishna Murari, Hima Kohli, and P S Narasimha, is hearing the dispute between the Centre and the Delhi government over matters pertaining to control over the transfers and the overall functioning of administrative services in the National Capital Territory (NCT) of Delhi.
On May 6 last year, a three-judge Bench headed by former CJI N V Ramana had referred this case to a larger Bench on the Centre’s plea. The three-judge Bench had decided that the question of control over administrative services required “further examination”.
The reference
The Centre on April 27, 2022 sought a reference to a larger Bench, arguing that it needed the power to make transfers and postings of officers in Delhi on account of it being the national capital and the “face of nation”.
The court agreed that the limited question relating to the scope of the legislative and executive powers of the Centre and NCT of Delhi, with respect to the term “services”, would need an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.
The court noted that the primary contention related to the interpretation of Article 239 AA(3)(a) of the Constitution, which deals with special provisions for the NCT of Delhi. In its order of May 6, the court said: “The Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List (State public services; State Public Service Commission).”
Article 145(3) deals with the setting up of a Constitution Bench comprising at least five judges “for the purpose of deciding any case involving a substantial question of law as to the interpretation” of the Constitution.
The case had come before the three-judge Bench because a two-judge Bench had earlier delivered a split verdict on the issue of services. In this judgment, delivered in 2019 by a two-judge Bench of Justices A K Sikri and Ashok Bhushan, several issues relating to the powers of the Lieutenant Governor (LG) were settled; however, on the issue of control over services, the two judges ruled differently.
The 2019 verdict
After the 2019 split verdict, the case came up before the CJI for listing so that the case could be heard afresh. Split verdicts are rare but not uncommon. When a split verdict is delivered, the case is heard afresh by a larger Bench assigned by the CJI.
Justice Bhushan had held that the Delhi government has no power over administrative services at all, whereas Justice Sikri was of the view that “transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly”, but “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to LG”.
The 2019 verdict also dealt with five other issues arising from the power tussle, relating to the power of the Anti-Corruption Branch of the Delhi government to investigate corruption cases against central government officials and appoint commissions of inquiry.
The 2019 verdict was essentially delivered to decide the contentious issues based on the law settled by the five-judge Constitution Bench in 2018.
The 2018 verdict
In 2018, a five-judge Bench comprising then CJI Dipak Misra and Justices Sikri, Bhushan, A M Khanwilkar, and (now CJI) Chandrachud interpreted Article 239AA of the Constitution which contains special provisions for the national capital.
The court laid down broad parameters for the governance of Delhi; it held that although Delhi cannot be given the status of a state, the powers of the LG can be curtailed as he has no “independent decision-making power” and has to act on the aid and advice of the elected government.
“Thus, in this hue, the Constitution Bench has also accepted that the Lieutenant Governor is to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor is permitted to exercise his own discretion,” the court held.
The court also restricted the jurisdiction of the LG to matters involving land, police, and public order, while holding that for all other matters, he will have to act on the aid and advice of the council of ministers.
Prior to this, the Delhi High Court had, in its judgment of August 4, 2017 on the same issue, held that for administration purposes of the NCT, the LG is not bound by the aid and advice of the Council of Ministers in every matter. On appeal, the SC in 2017, referred the matter to decide the interpretation of Article 239AA of the Constitution.
Article 239AA(3)(a)
Article 239 AA was inserted in the Constitution by the 69th Amendment Act, 1991, and conferred Special Status upon Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.
According to this provision, the NCT of Delhi will have an Administrator and a Legislative Assembly. Subject to the provisions of the Constitution, the Legislative Assembly, “shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” except on the subjects of police, public order, and land.
