SC refers Delhi services tussle to 5-judge bench

NEW DELHI: Five years on, a Constitution bench will once again delve into the power tussle between the Centre and the Delhi government, as the Supreme Court sets about to decide which of the two governments has the power to transfer and appoint bureaucrats in the Capital.

On Friday, a three-judge bench, headed by Chief Justice of India NV Ramana, preferred a larger bench to adjudicate finally on interpretation of Article 239AA(3), which outlines the power of the Aam Aadmi Party (AAP) government to make laws to administer Delhi.

According to the bench, which also comprised justices Surya Kant and Hima Kohli, the previous five-judge Constitution bench verdict in 2018 did not provide authoritative interpretation of certain parts of Article 239AA(3), which led to rival contentions from both sides with respect to their power to control bureaucrats in the national capital. The previous constitution bench was set up in 2017.

The bench clarified that the new five-judge bench shall adjudicate the limited issue relating to ‘Services’ in Delhi and that no other substantial issue on interpretation of Article 239AA will be adjudicated afresh since they stand settled by the 2018 judgment. “The limited issue that has been referred to this bench relates to the scope of legislative and executive powers of the Centre and NCT of 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. We therefore, deem it appropriate to refer the above limited question, for an authoritative pronouncement by a constitution bench in terms of Article 145(3) of the Constitution,” stated the court order.

Article 239AA provides the framework for the exercise of legislative powers by the legislative assembly of the Union territory of Delhi and the Parliament in respect of Delhi. Entry 41 of the List-II (State List) authorises a state government to frame laws on state public services and state public service commission. After the CJI read out the operative part of the order on reference, senior advocate Rahul Mehra, appearing for the Delhi government, made a request for an early hearing of the matter after constituting the larger bench. CJI Ramana responded that the matter would likely come up for a hearing before a Constitution bench on May 11.

As a fall out of the Friday order on reference, the Delhi government’s separate challenge to the 2021 amendment in the NCT of Delhi Act will have to wait till the Constitution bench’s decision on ‘Services’.

A five-judge bench had by a judgment of July 4, 2018 interpreted the power of the Delhi assembly under Article 239AA while clarifying that three specific subjects, namely land, police and public order, shall remain under the exclusive domain of the Centre in the Capital. At the same time, the verdict ruled that Delhi’s Lieutenant Governor cannot act independently and must act on aid of the AAP government without creating obstructions.

Later, a division bench in 2019 delivered a ruling on specific points of contentions between the Centre and Delhi but the two judges had contrasting opinions. Therefore, the matter related to Services (transfer and appointments of bureaucrats) was referred to a three-judge bench.

Arguing on behalf of the Centre, solicitor general Tushar Mehta said last month that the larger public interest required Delhi’s power under Article 239AA on matters concerning transfers and postings of officers in the Capital to be decided by a Constitution bench.

THE BENCH WILL ADJUDICATE ON INTERPRETATION OF ARTICLE 239AA(3), WHICH OUTLINES THE AAP GOVT’S POWER TO MAKE LAWS TO ADMINISTER DELHI