Constitution Bench to hear Centre-Delhi govt. battle for control over bureaucrats on September 27

September 07, 2022 11:46 am | Updated 11:47 am IST - NEW DELHI:

Delhi Lt. Governor Vinai Kumar Saxena with Chief Minister Arvind Kejriwal during a meeting, in New Delhi.  File photo

Delhi Lt. Governor Vinai Kumar Saxena with Chief Minister Arvind Kejriwal during a meeting, in New Delhi. File photo | Photo Credit: PTI

A Constitution Bench led by Justice D.Y. Chandrachud on Wednesday, September 7, 2022 listed the dispute between the Centre and Arvind Kejriwal-led Delhi government for control over bureaucrats in the Capital on September 27 for fixing the dates of hearing.

The five-judge Bench however said the hearing may tentatively begin from October 11.

Lawyers appearing for both parties, senior advocate A.M. Singhvi, for the Delhi government, and Solicitor General Tushar Mehta, for the Centre, said they were appearing before another Constitution Bench led by the Chief Justice of India, which may begin hearing on the question of reservation for the economically weaker section (EWS) of the society from September 13. They requested the Justice Chandrachud to list the Delhi versus the Centre case after the CJI's Constitution Bench wraps up.

"There is a possibility of a spill-over," Mr. Mehta said.

"We have to give priority to the Honourable CJI's Bench. We will convene on September 27 for directions and fix the dates of our hearings… We could tentatively begin on October 11," Justice Chandrachud said.

The Bench said the hearing would be completely paperless. "This would be a Green Bench. So don't carry any papers with you. Both the Bench and the arguing counsel shall not rely on any hard copies," Justice Chandrachud told the lawyers.

The Bench said the Supreme Court Registry would scan the records of the case and pass them to the lawyers. Justice Chandrachud said special training classes on how to use the new paperless technology would be arranged for lawyers in the case during the weekend.

In May, a three-judge Bench led by Chief Justice Ramana had, in a judgment, referred to a Constitution Bench the limited question concerning ‘services’ or bureaucracy for an authoritative pronouncement.

Four years ago, another 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, the 2018 judgment had not specifically dealt with the issue of ‘services’.

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, Mr. Singhvi had submitted.

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

Mr. Mehta had contended 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) had given 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, had opined that files on 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 had written.

The Delhi government has 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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