LG and NCT of Delhi Constitution Bench Day #5: Sr. Adv. A.M. Singhvi Argues That Cadre Rules Recognise the NCT’s Administrative Powers

The Lieutenant Governor and the NCT Delhi

Today, the 5-Judge Constitution Bench led by CJI Chandrachud concluded hearing arguments in the dispute between the Union and Delhi governments over the control of the NCT of Delhi’s civil servants and reserved Judgment.

Background

The dispute between the Union and Delhi governments over the control of the NCT of Delhi dates back to 2013 when the Aam Aadmi Party came to power in the national capital. Despite being a Union Territory, Article 239AA grants special status to Delhi by establishing its Legislative Assembly along with its Chief Minister and Council of Ministers—features normally possessed by a State. However, as a Union Territory, Delhi also has a designated administrator or the ‘Lieutenant Governor’ (LG). 

Confusion arose over the unique relationship between these two government heads and the extent of the power they exercise over the NCT of Delhi. In 2018, a 5-Judge Constitution Bench of the Supreme Court ruled that the Lieutenant Governor is bound by the aid and advice of the NCT of Delhi’s Council of Ministers. In 2021, in an attempt to retain control over the national capital, the Union passed the Government of National Capital Territory Act (Amendment) Act, 2021 (the Act), which barred the Delhi Assembly from considering the day-to-day administration of the capital. 

The Delhi government protested against the Act since it shifted the control of Delhi’s civil servants from itself to the LG, who is the Union’s representative. The Delhi government claims that it cannot implement policies in the NCT as the civil servants supposed to implement them are not under its control. They also argue that the Act diminishes the role of Delhi’s elected government, violating basic constitutional features of federalism, democracy, and the rule of law. 

SG Tushar Mehta Seeks Reference to a  Larger Bench

Before Senior Advocate A.M. Singhvi could resume his rejoinder arguments from yesterday, Solicitor General Tushar Mehta pitched an extraordinary request to the Bench. He wanted to refer the 2018 Judgment over the Special Status of Delhi to a 9-Judge Bench. Mr. Mehta reasoned that the contours of federalism between the Union and Union Territories (UTs) need to be revisited.

Taken aback, CJI Chandrachud questioned how a reference question, an argument not raised even once so far, could be brought up when the hearings were almost concluded. Reference to a larger Bench must be mentioned right at the beginning of the hearings as the Court will have to keep completely different considerations in mind. The Bench refused to hear arguments on the question of reference. However, they allowed the SG to submit a 2-page note on his request.

Sr. Adv. A.M. Singhvi Highlights Similarities in Administrative Powers Between States and the NCT of Delhi

Sr. Adv. A.M. Singhvi, for the Delhi government, began today’s arguments by reading out the service rules for Arunachal Pradesh-Goa-Mizoram-Union Territories (AGMUT Rules). He pointed out that contrary to the SG’s claims, allocations in the AGMUT cadre are done by a joint cadre authority (comprising the Union and the States) and not the Ministry of Home Affairs.

Further highlighting the Rules, Dr. Singhvi claimed Delhi has been treated on par with States and not Union Territories. State representatives in the joint cadre authority include representatives from the Delhi government.

Next, Dr. Singvhi argued that the scope of Entry 41 in the state list—power over public service commissions—is wider than Art. 309 which discusses the legislative power over the recruitment of public service personnel.

CJI Chandrachud made an observation. Art. 239AA, which introduced the NCT of Delhi, created a legal fiction that effectively makes the entire State List into a Concurrent List for the NCT of Delhi. Parliament, therefore, has the power to make laws on the NCT’s civil servants.

Dr. Singhvi agreed. When Parliament possesses this check and balance, the Union cannot override the Delhi Assembly’s legislative powers through a Notification as they had. He claimed that the Union, instead of relying on Parliamentary power, was trying to create an executive override instead.

Upon hearing Dr. Singhvi’s arguments, the Bench reserved Judgment.