New Delhi: A constitutional bench of the Supreme Court began hearing a petition concerning the row over control of administrative services in Delhi Wednesday.
A five-judge bench headed by Justice D.Y. Chandrachud said it will fix the schedule for the hearing of the Arvind Kejriwal-led Delhi government’s plea on the contentious issue on 27 September.
The issue concerns the scope of the legislative and executive powers of the Centre and the Delhi government over control of administrative services, which include appointments and transfers, in the national capital. A bench headed by Chief Justice of India (CJI) U.U. Lalit had said Monday that the matter required urgent examination.
A constitutional bench is one that comprises at least five judges of the Supreme Court and decides matters of substantial importance, related to the interpretation of the Constitution.
This is the second time that a constitutional bench has been set up to decide on issues between the Aam Aadmi Party (AAP) government and Delhi’s lieutenant governor — the Centre’s representative in the capital — in the past four years.
ThePrint takes a look at past verdicts to understand why the issue remains a bone of contention between the Centre and the Delhi government.
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What gave rise to the Delhi dispute?
Delhi enjoys special status in India, being a Union territory with the features of a state, having an elected legislature.
Article 239 of the Constitution empowers the lieutenant governor (L-G) of any Union territory to act independently of the council of ministers.
But in 1992, through the 69th constitutional amendment, the Parliament inserted Article 239AA in the Constitution, which mandated an elected assembly for Delhi.
However, in the past few years, governance in the national capital has often been a subject of conflict between the Delhi government and the L-G.
In 2015, Delhi chief minister and AAP national convenor Arvind Kejriwal got embroiled in a conflict with then L-G Najeeb Jung over the appointment of the chief secretary and institution of corruption enquiries.
The matter had reached the Delhi High Court, which had ruled that Delhi continued to be a Union territory despite the enactment of Article 239AA, which rendered all commissions of enquiries set up without the concurrence of the L-G illegal. The concurrence of the L-G was mandatory for decisions, the Delhi HC had said.
The Kejriwal government had then challenged the Delhi High Court decision in Supreme Court, which had referred it to a constitutional bench.
‘LG bound by aid & advice of elected govt, council of ministers’
The SC verdict was contrary to that of the Delhi HC.
In 2018, a constitutional bench of apex court in the Government of NCT of Delhi v Union of India had held that the chief minister is the executive head of Delhi.
The L-G was bound by the aid and advice of the elected government or the council of ministers, it said.
“The limited issue that has been referred to this Bench relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term services. 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 (sic),” the apex court had said in 2018.
After laying down the broader principles, the constitutional bench asked a two-judge bench to look into the individual and specific issues raised in the appeals, while keeping these principles in mind.
Following this verdict, the matter was taken up by a two-judge bench of the Supreme Court, which dealt with control over administrative services.
Control over administrative services
However, in 2019, the bench of Justice A.K. Sikri and Justice A.K. Bhushan (now retired), delivered a split verdict on the aspect of who controls administrative services in Delhi.
The bench gave a unanimous opinion on the remaining five issues, except for the control over administrative services, which include appointments and transfers. For instance, they ruled that the NCT government was empowered to appoint a special public prosecutor. And, if the L-G wanted to appoint a special public prosecutor, then he should act on the aid and advice of the council of ministers.
On the issue of revision of minimum rates of agricultural land, the two-judge bench agreed that the Delhi government can take a decision on circle rates. But in case of a difference of opinion, the L-G may refer the matter to the President.
The bench also ruled that the central government holds exclusive authority over the Anti-Corruption Bureau (ACB) and the power to set up commissions of inquiry.
On the subject of transfers in services, Sikri opined that it can be done only by the Centre, whereas Bhushan said the Centre had no power at all to rule on administrative services.
The two-judge bench had recommended that a three-judge bench be set up to decide the issue of control of administrative services.
However, at the Centre’s request, the plea was referred to a five-judge constitutional bench in May this year. The reference was done when the bench noticed that the five-judge bench decision of 2018 did not rule on the issue of “control of services”.
Keeping in view no decision on the limited question of services, they referred the issue of control of services to a constitutional bench.
Arguments and counter-arguments
The Centre has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
“The world views India through Delhi… the models of governance, provided for other Union territories were not considered appropriate for NCT of Delhi and a committee called the Balakrishnan Committee was set up to suggest an appropriate governance model, which could balance the need of the Union’s role and at the same time provide platform for democratic aspirations of the people,” Solicitor General Tushar Mehta had said in April.
On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
The Kejriwal government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of basic structure of the Constitution.
(Edited by Poulomi Banerjee)
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Source: The Print
