New Delhi: The Centre Wednesday told the Supreme that the contentious issue of who should control administrative services in Delhi be referred to a Constitution Bench for a holistic interpretation. Solicitor General Tushar Mehta, appearing for the Centre, told a bench headed by Chief Justice N V Ramana that from a bare reading of the 2017 order making reference to the Constitution Bench, it can be gathered that the terms of reference required all aspects of Article 239AA to be interpreted.
"The Constitutional importance of the above reference stems from the fact that Article 239AA was enacted by the 69a Amendment to the Constitution providing for legislative body and a Council of Ministers for the NCT of Delhi. The significance of the same is much greater in view of the fact that Delhi is also the national capital and as such the model of governance of the NCT of Delhi would invariably require the Union Government to play a central role, even if a legislative assembly or Council of Ministers is introduced.
"It was for this reason, 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 democratic aspirations of the people," Mehta told the bench also comprising Justices Surya Kant and Hima Kohli. The Solicitor General submitted that unless the issue which prevented the decision on the dispute as regards legislative powers of the legislative assembly of NCT of Delhi over entry 41 of List II is decided by a bench of the same or larger strength, the dispute cannot effectively be decided.
He said that the issues involve a substantial question of law requiring interpretation of a provision of the constitution and the key issues involved in the present matter cannot be determined unless the same is decided by a constitution bench. The apex court had earlier asked the Centre if the 2018 judgement on the power row had said the assembly was redundant and the Lieutenant Governor (LG) can have power over legislative functions.
The top court had posed the question while commencing the hearing on the contentious issue, arising out of a split verdict over control of services, with the AAP government alleging that the Centre has been negating federalism by taking away its power of transfer and posting. The Centre had referred to Article 239AA (which deals with Delhi and its power) and said that it was a mirror image of a report which had said that Delhi being the national capital cannot be a full-fledged state and the Lt Governor is a stakeholder and this position has been not diluted.
The Centre had sought the hearing of the dispute about the control over services in the national capital to a constitution bench on several grounds including that the earlier judgements of the five-judge bench did not give any roadmap to decide as to whether the union or the Delhi government will have the competence to deal with the subject under dispute. The central government had also sought a joint hearing of two separate petitions of the Delhi government on control over services and challenging the constitutional validity of the amended GNCTD Act, 2021 and the Transaction of Business Rules, which allegedly give more powers to the Lieutenant Governor respectively, saying they are prima facie correlated.
The plea by the Delhi government arises out of a split verdict of February 14, 2019, in which, a two judge-bench of Justices A K Sikri and Ashok Bhushan, both retired since had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict. Justice Bhushan had ruled the Delhi government had no power at all over administrative services. Justice Sikri, however, made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the lieutenant governor would prevail in case of a difference of opinion on matters relating to other bureaucrats.
PTI
