Chief Justice of India (CJI) Dhananjaya Y Chandrachud is expected to head a five-judge Supreme Court bench to hear cases regarding the power struggle between the National Capital Territory (NCT) Delhi government and the central government, on January 10.
On Monday, the Union government argued in the Supreme Court that coordination is essential for the administration of the national capital, not control over officers, while also accusing Delhi deputy chief minister Manish Sisodia of lying about bureaucrats’ lack of cooperation.
A constitution bench of at least nine judges is being requested by the Centre to outline the powers of the Delhi-elected government afresh.
According to a report by the Hindustan Times, on Monday, the Centre filed two separate documents with the top court, asserting its “legislative supremacy” and “overall executive control” over the NCT of Delhi, and seeking a reversal of a 2018 decision by a five-judge bench that restricted the Union government’s executive powers to three subjects, i.e., land, police, and public order. The Centre’s application argued that the 2018 judgement erroneously created a new class of territory through a “judicial fiction” by elevating Delhi into a state, by giving its elected government “executive supremacy” despite the Parliament’s undeniable “legislative supremacy”.
The Centre says that the 2018 judgment conflicts with a nine-judge bench ruling in the NDMC vs State of Punjab (1996) case, which declared that Delhi has the same legislative powers as any other Union Territory. According to the Centre, only a bench consisting of nine or more judges will be able to resolve the legal issue now.
The Centre, through Union home secretary Ajay Bhalla, also filed its response to an affidavit submitted by the AAP’s Sisodia last month, in which he complained that civil servants treat the elected government with an alarming degree of laxity and contempt. The affidavit sought a reference to the larger bench on the grounds that Delhi must remain a UT “under the legislative control and supremacy of the Parliament”.
“I am advised not to deal with individual illustrations which would have clearly shown the falsehood contained therein since the deponent of the affidavit is the hon’ble deputy chief minister and it may not be proper, appropriate or in good taste to deal with such assertions, more particularly, when I have found them to be not true,” stated Bhalla’s affidavit.
The home secretary further emphasised that Delhi is a UT and that according to the Constitution, no UT has its own services that are not under the control of the national government.
“The administration of any unit of the administration, be it central government, state government or Union territory requires very skillful coordination between the political executives and persons working in connection with the affairs of the respective unit. Such coordination takes place by effective administrative skills and not with the threat of control over the officers or employees,” added the affidavit.
Solicitor General Tushar Mehta told CJI Chandrachud on Monday morning, about the Centre’s new request to send the legal dispute between the two governments over the management of bureaucrats to a court with at least nine justices due to the significant legal and constitutional problems that the current application raises. He asked the CJI to allow the Centre to enter its argument into the record. “There are no facts that can be disputed. Only the legal point is being made here. I’ve submitted an interlocutory application (IA) in which I suggest that this case might need to be referred to a larger bench,” he said.
Senior attorney Abhishek Manu Singhvi spoke for the Delhi government when it disagreed with the Centre’s argument, stating that “such tactics cannot be allowed”, and that “this will only create delay”. He pointed out that when the case was referred to the bench of five justices in May, the same argument put forth by the Union government was rejected by a three-judge panel. As soon as the five-judge panel began hearing the matter, CJI Chandrachud informed SG Mehta that the plea might be taken into consideration. He said that when the Constitution Bench convenes to hear the IA, it will be decided what action must be taken.
Two connected cases have been brought before the Constitution Bench recently. The first issue concerns the conflict between the Union and Delhi governments over bureaucratic control, while the second is related to the 2021 Government of National Capital Territory of Delhi (Amendment) Act, which gives the lieutenant governor more authority in matters relating to Delhi’s administration.
The 2021 amendment adds a requirement that the Delhi government consult with the lieutenant governor before taking any executive action in accordance with decisions made by the council of ministers or any other decision made pursuant to any law in effect in the capital. The Aam Aadmi Party government has argued that this requirement is in conflict with prior Supreme Court rulings and constitutional provisions that support an elected government in Delhi.
A three-judge panel had referred the case to a Constitution Bench in May, stating that the larger panel would rule on the narrow question of services in Delhi, and that no other significant question regarding the interpretation of Article 239AA needed to be addressed because it had already been addressed by other orders. Three topics — land, police, and public order — are made clear as falling under the exclusive purview of the capital’s administration in Article 239AA, which also outlines the legislative and executive powers of the Delhi government.
The Centre has pushed for a new ruling by a Constitution Bench before the three-judge panel to establish the limits of the AAP government in Delhi, with regard to the removal and appointment of officials in the nation’s capital.
The Centre argues that there may be additional matters beyond the three that are clearly listed in sub-section 3 of Article 239AA, and that this issue should be clarified by a different Constitutional Bench after taking into account the nine-judge decision in the NDMC vs State of Punjab case. When it came to whether or not it had the authority to transfer and appoint bureaucrats in the capital, the Delhi government had, on its part, at the time disagreed with the Centre’s opinions and sought a prompt resolution. In an earlier hearing, the five-judge bench ruled in July 2018 that in accordance with sub-section 3 of Article 239AA, the Union government’s executive authority over the NCT of Delhi is restricted when it comes to land, police, and public order.
Following the announcement of the legal position, the Constitution Bench referred the case to a two-judge bench for decisions on each of the disputed points. The bench reached a consensus on all matters in this second round, however, the judges disagreed on the Delhi government’s legislative authority over “services” as defined in Entry 41 of List II of the Constitution’s Seventh Schedule. It was then referred to a bench of three judges, and finally to a bench of five judges.