Centre, state spar in Supreme Court over Delhi govt’s powers
The Delhi government, on its part, opposed the Centre’s views, seeking a quick decision on whether or not it has the executive power to transfer and appoint bureaucrats in the Capital.
The Delhi government can be restricted from passing laws on subjects other than just land, police and public order, the Union government submitted before the Supreme Court on Tuesday while demanding a fresh adjudication by a Constitution bench to set the boundaries of the legislative powers of the Aam Aadmi Party government in the national capital.
The Delhi government, on its part, opposed the Centre’s views, seeking a quick decision on whether or not it has the executive power to transfer and appoint bureaucrats in the Capital.
According to the Centre’s submissions before a bench headed by Chief Justice of India NV Ramana, there can be more than the three subjects specifically mentioned under subsection 3 of Article 239AA on which the Delhi government is restricted from passing a law, and this aspect should be clarified further by another five-judge bench.
A Constitution bench in July 2018 held that the executive power of the Union government in respect of NCT of Delhi is confined to land, police and public order under subsection 3 of Article 239AA.
However, solicitor general (SG) Tushar Mehta and additional solicitor general (ASG) Sanjay Jain made the fine point that the 2018 judgment has not specifically held that the Delhi government is empowered to make laws on all subjects other than land, police, and public order.
“Entries 1, 2 and 18 in List-II (public order, police and land) are not the only restrictions against the NCT government. There can be other matters as well outside the legislative powers of the NCT government. The Constitution bench also talked about pragmatic federalism,” argued ASG Jain, adding the issues incidental to the three entries would also come under the ambit of parliamentary powers.
Senior advocate Abhishek Manu Singhvi, appearing for the AAP government, vehemently countered this submission, arguing the 2018 verdict by the Constitution bench is unequivocal in demarcating the powers of the Delhi government and that the submissions by the Centre are aimed at eroding the federal structure. Singhvi added that accepting the Centre’s submissions would render the Delhi legislative assembly meaningless.
The bench, which also comprised justices Surya Kant and Hima Kohli, was hearing a reference from a two-judge bench in February 2019 when two judges had contrasting opinions as to who wields power on the Delhi bureaucracy. Therefore, the matter related to Services (transfer and appointments of bureaucrats) was referred to the larger bench.
While the reference awaited a detailed hearing by the larger bench, in 2021, the central government came out with an amendment in the NCT of Delhi Act, giving more powers to the Lieutenant Governor by making it mandatory for the Delhi government to seek his opinion before taking any executive action in pursuance of decisions by the council of ministers, or any other decision under any law in force in the Capital.
The 2021 amendment law was separately challenged by the Delhi government, contending overriding powers to the Centre’s nominee over Delhi legislature is unconstitutional and virtually disenfranchises the people of Delhi by taking away power from their elected representatives. On March 3, the three-judge bench sought a response from the Centre to this petition.
Both the matters came up for hearing on Tuesday. As the central government did not file its response to the challenge to the 2021 law, the court gave the Centre ten days to submit its reply.
However, SG Mehta urged the bench to hear both the cases together, claiming the two cases (on Delhi bureaucracy and 2021 law) will have an overlapping effect on each other and therefore, they should be heard together. “We also say that the dissent between the two judges (in 2019 judgment) should ideally go to five judges,” he added.
Singhvi opposed the contention, calling it a “red herring”. The senior counsel emphasised that the Delhi government is willing to take a chance arguing its case separately on the executive power to transfer bureaucrats even as the 2021 law is considered valid and constitutional.
“There is no central law on transfer and posting. Yet they say we are denuded from framing a legislation. The question is if the Delhi assembly can be denuded from making a law even though there is no parliamentary law on that subject. If such a submission were to be accepted, they (Centre) can control everything in the NCT through executive orders and no law is required at all,” argued Singhvi.
He underscored that the Delhi government wants an answer in law on whether it has the power to legislate under Entry 41 of the List-II which authorises a state government to frame laws on state public services and state public service commission. “If I have the power, the next question to decide is whether my exercising power of transfer and posting of bureaucrats can have an incidental encroachment on use of Centre’s power with respect to land, police and public order,” he added.
At this, the court asked the SG to ensure the Centre files a response within 10 days on all the aspects of the matter and fixed April 27 as the next date of the hearing.
