Centre-Delhi row heads to Constitution Bench

5-judge Bench of the Supreme Court to deal with the issue of control over bureaucracy in Capital

May 06, 2022 12:26 pm | Updated 10:58 pm IST - NEW DELHI

Delhi Lt Governor Anil Baijal (L) andDelhi Chief Minister Arvind Kejriwal at Ramlila Maidan in New Delhi. File photo

Delhi Lt Governor Anil Baijal (L) andDelhi Chief Minister Arvind Kejriwal at Ramlila Maidan in New Delhi. File photo | Photo Credit: SHIV KUMAR PUSHPAKAR

The Supreme Court on Friday referred to a Constitution Bench the battle between the Centre and Arvind Kejriwal-led Delhi government for control over bureaucrats in the Capital.

A three-judge Bench led by Chief Justice of India N.V. Ramana said the tussle between the Union and Delhi governments over the limited question concerning ‘services’ or bureaucracy required an authoritative pronouncement by a five-judge Bench of the Supreme Court.

The court informed the lawyers that the case would be listed again on May 11.

The CJI, who read out the order in open court, said the court did not “deem it necessary to revisit” any other issues, between the Centre and the Delhi government, which had already been settled in the earlier judgment of the court in 2018.

Four years ago, a Constitution Bench had unanimously held that the Lieutenant Governor of Delhi was bound by the “aid and advice” of the popularly-elected Aam Aadmi Party (AAP) government and both had to work harmoniously with each other. It had noted that there was no room for anarchy or absolutism in a democracy.

However, reading the order, Chief Justice Ramana pointed out that the 2018 judgment had not specifically dealt with the issue of ‘services’.

‘King without a kingdom’

The National Capital Territory government had compared its predicament without power over the ‘services’ like that of a king without a kingdom. The situation was such that a “democratic representative government” had to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary, it had argued.

The 2018 judgment had made it clear that the powers of the Centre and the Delhi government were collective and coextensive, senior advocate A.M. Singhvi, for the Delhi government, had submitted.

“What collective responsibility will the Delhi govt. have without the power to control the transfers and postings of the officers? Federalism is itself being eroded,” the senior lawyer had argued.

Solicitor General Tushar Mehta, for the Centre, had argued in favour of referring the issue to a Constitution Bench.

The Centre had argued that Delhi, the nation’s capital and a sprawling metropolis, should be under its control. Delhi could not be left to the “small mercies and smaller resources” of a State legislature, the Centre reasoned.

On February 14, 2019, a Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan (both retired) gave a split opinion on the question of control over ‘services’ in the Capital.

While Justice Bhushan had held that the Delhi government had no power over ‘services’, Justice Sikri, who was the lead judge on the Bench, took the middle path.

Justice Sikri had concluded that files on the transfers and postings of officers in the rank of secretary, head of department and joint secretary could be directly submitted to the Lieutenant Governor. As far as DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre was concerned, the files could be processed through the Council of Ministers led by the Chief Minister to the Lieutenant Governor, Justice Sikri wrote. Again, in case of a difference of opinion, the Lieutenant Governor prevailed.

The Delhi government has also separately sought the quashing of amendments to the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.

It has contended that the amendments violate the doctrine of basic structure of the Constitution and that the Centre, through these changes, has given more power to the Lieutenant Governor than the elected government of the people of Delhi.

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