Lt. Governor and NCT Delhi #2: SG Seeks Reference to 5-Judge Bench

The Lieutenant Governor and the NCT Delhi

On April 27th 2022, Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli heard the Union government’s plea to refer the dispute over Delhi’s civil services to a 5-Judge Bench. 

Delhi’s ruling Aam Aadmi Party and the Union have jostled for control over the National Capital Territory (NCT) since 2013. Most recently, the Union attempted to expand the powers of its representative in the NCT, the Lieutenant Governor, including their control over the transfer and appointment of members of Delhi’s civil services. 

Ordinarily, Union Territories (UT) are governed directly by the Union government, unlike States that are run by elected State governments. Delhi, by virtue of Article 239AA of the Constitution of India, 1950, holds a special status despite being a Union Territory—the Delhi government and the Union must share powers in the NCT. Delhi’s special status was confirmed in 2018 by a 5-Judge Bench of the Supreme Court tasked with interpreting Article 239AA. 

According to Article 239AA, the Governor must defer to the Chief Minister in all but three matters listed in subsection 3—police, land, and public order. The Union claims that the civil services are an extension of ‘public order’ and within the domain of its control. In the previous hearing, Senior Advocate Dr. Abhishek Manu Singhvi refuted this claim on behalf of the Delhi government. The conflict was referred to the current Bench by a 2-Judge Bench which delivered a split verdict on this question in 2019. 

Today, Solicitor General Tushar Mehta argued that the 2018 5-Judge Bench was meant to interpret Article 239AA in its entirety. He contended that the Bench had failed to address three crucial aspects of the provision—the remaining issues must be heard by a 5-Judge Bench. 

SG: Balakrishnan Report Formed Basis for Article 239AA, Ignored by 5-Judge Bench

Mr. Mehta argued that Article 239AA, inserted into the Constitution through the Constitution (Sixty-Ninth Amendment) Act 1991, was based on the recommendations of the Balakrishnan Committee(1989). The Committee was tasked by the Union government to study the administration of other national capitals and subsequently devise a power sharing structure for the efficient governance of Delhi. Mr. Mehta argued that based on similar models in many other countries, the Committee suggested that Delhi’s civil servants be controlled by the Union government. 

Mr. Mehta stated that the Committee Report was an essential interpretative tool while dealing with Article 239AA. Even though the 2018 5-Judge Bench was meant to interpret Article 239AA, it had not considered the Committee Report or the parliamentary debates discussing it. Mr. Mehta argued that a new 5-Judge Bench must hear the current dispute and consider the Committee Report. 

CJI Ramana appeared unconvinced by this argument, stating that Mr. Mehta should confine himself to making arguments arising after the 5-Judge Bench’s decision. Dr. Singhvi briefly mentioned that the 5-Judge Bench had considered the Committee Report and deemed it unnecessary to interpret Article 239AA. Dr. Singhvi will elaborate on this argument in the next hearing. 

SG: 5-Judge Bench Did Not Address Two Parts of Provision

Mr. Mehta further argued that the Article 239AA specifies that the Delhi government’s special powers are both subject to the other parts of the Constitution that affect it and are limited to matters pertaining to Union Territories. He submitted that the 5-Judge Bench did not consider these provisions of the Constitution that affect Article 239AA. He further stated that Article 239AA gives Delhi special powers on matters pertaining to the Union, not to all matters in the ‘State’ list. This too, Mr. Mehta argued, was ignored by the 5-Judge Bench. 

Dr. Singhvi sought half an hour to reply to these contentions. He stated that the demand for a 5-Judge Bench was a delaying tactic. The Bench will hear Dr. Singhvi on April 28th 2021.