Delhi-Centre power row; SC to take decision on referring dispute to five-judge bench

The Supreme Court on Thursday said it would decide on the Centre’s submission that the dispute about the control over services in the national capital be referred to a five-judge bench, a plea which was strongly opposed by the AAP-led Delhi government.

“We will consider and take a call as early as possible,” a bench comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli said after hearing Solicitor General Tushar Mehta, appearing for the Central government and senior advocate A M Singhvi who was representing the Delhi government.

Singhvi said “This court is not here to refer every time the slightest thing is pointed out. How does this matter, if there were three or five judges. It is not about why not, it is about why.” He said though there was no ambiguity in the previous 2018 constitution bench judgement, but, if there was any, even then it can be decided by the present bench.

The solicitor general, on the other hand, said that the matter needed to be sent to a constitution bench on 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.

There has been a finding of the bench that there was no consideration on certain aspects by the larger constitution bench and hence the dispute needed to be referred, Mehta said.

The Centre on Wednesday had told the bench that it needed to have control over administrative services in Delhi as it is the national capital and the face of the country.

The solicitor general had also said 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 not meant to be about any particular political party, he had said.

The plea 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.

In the 2018 judgement, a five-judge Constitution bench had unanimously held that the Lieutenant Governor of Delhi is bound by the “aid and advice” of the elected government, and both needed to work harmoniously with each other.