SC refers Delhi-Centre dispute over controlling services to 5-judge Constitution bench

New Delhi [India], May 6 : The Supreme Court on Friday referred the issue regarding the control over administrative services in the national capital to a five-judge Constitution bench for adjudication.
A bench of Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli said that it appears that the five-judge bench had decided all issues of dispute between Centre and Delhi government, except the 'services' while referring the issue to the Constitution bench.
It listed for hearing on May 11 before the five-judge bench for hearing of arguments from both the Centre and Delhi government on who should control the 'services'.
The bench on April 28 had reserved the order on whether to refer to the Constitution bench on the issue of who should control administrative services in Delhi.
The Central government had sought a hearing by a five-judge bench on the matter pertaining to the legal dispute between the Delhi government and the Central government regarding the control over administrative services in the national capital. Aam Aadmi Party-led Delhi government had strongly opposed the plea of the Central government.
The Central government in its application sought a referral to a Constitution bench for a holistic interpretation of Article 239AA.
Solicitor General Tushar Mehta appeared for the Centre while senior advocate Abhishek Manu Singhvi represented the Delhi government.
The Delhi government had filed petitions in the apex court 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".
During the hearing, Solicitor General Tushar Mehta had contended that the case should be heard by a Constitution bench and not a three-judge one as it involved several crucial constitutional questions of law.
The Central government had contended that despite a Constitutional bench comprehensively evaluating a scheme of governance for the national capital, the administration continued to suffer on a daily basis due to a lack of clarity in relation to the executive authority.
Solicitor General Mehta had 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.
On the other hand, Singhvi had 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."
He had 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.
Earlier, the Arvind Kejriwal government had told the apex court that a democratically elected government should not be left without powers to even transfer officials. The NCT government's predicament without power over the 'services' has been like that of a "king without a kingdom", it had said.
The situation was such that a "democratic representative government" has to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary, Delhi government had said during the arguments against the Centre in the battle for control over the bureaucracy in the national Capital.
On February 14, 2019, a two-judge bench of the top court delivered a split verdict on the question of powers of the GNCTD and Union government over services and referred the matter to a three-judge Bench.
While Justice Ashok Bhushan had ruled the Delhi government has no power at all over administrative services. Justice AK Sikri, however, had 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 for matters relating to other bureaucrats.
The two-judge Bench which was hearing pleas on six matters pertaining to a long-running conflict between the Centre and the Delhi government had given a unanimous order on the remaining five issues except for the control over services.
Governance of the national capital has witnessed a power struggle between the Centre and the Delhi government since the Aam Aadmi Party (AAP) came to power in 2014.
The Delhi government has been at loggerheads with the LG and his predecessor.
Prior to February 2019 judgement, a five-judge constitution bench of the Supreme Court had on July 4, 2018, laid down the broad parameters for governance of the national capital. In the landmark verdict, it had unanimously held that Delhi cannot be accorded the status of a state but clipped the powers of the LG saying he has no "independent decision-making power" and has to act on the aid and advice of the elected government.
It had restricted the jurisdiction of the LG to matters pertaining to land, police and public order and on all other matters, it held that the LG would have to act on the aid and advice of the council of ministers.