Verdict clarifies SC’s 2018 ruling on legislative powers of Delhi govt

The need to clarify Article 239AA arose as the Centre took a stand that the 2018 Constitution bench judgment t did not decide whether Delhi has legislative competence over Entry 41 of List II

The Supreme Court on Thursday, while affirming the elected government’s control of services in the Capital, laid down what Article 239AA of the Constitution implied, and clarified its own 2018 decision by a five-judge bench that first touched upon the dispute between the Delhi government and the Centre by laying down broad contours on how this provision is to operate.

The bench tested the Centre’s argument by examining the 2018 decision to see whether it dealt with the issue of services. This was germane to the dispute before the bench as the matter was referred to it by a three-judge bench following a split verdict delivered in February 2019. (Sanchit Khanna/HT Photo)

Article 239AA delineates the legislative and executive powers of the Delhi government while clarifying three subjects, namely land, police and public order, shall remain under the exclusive domain of the Centre in the capital.

The need to clarify Article 239AA arose as the Centre, through solicitor general Tushar Mehta, took a stand that the 2018 Constitution bench judgment did not decide whether the National Capital Territory of Delhi has legislative competence over Entry 41 of List II, which deals with “state public services” and “state public service commission”.

By a May 2015 notification, the Centre had held that Delhi government will have no legislative control over services. In court, it argued that Delhi, being the national capital, enjoys a special status that requires the Union to have control over services. The absence of this control would render it impossible for the Union to discharge its national and international responsibilities, it said.

The Centre further claimed that it was not true that the Delhi government had no control over the bureaucracy. It said that the Transaction of Business Rules, 1993, provides enough powers to Delhi’s ministers to ensure supervisory and functional control over civil services to ensure their proper functioning. Mehta even produced annual confidential reports (ACRs) of some of officers which had top grades from chief minister Arvind Kejriwal “without any mention of insubordination recorded on the files”.

The bench tested the Centre’s argument by examining the 2018 decision to see whether it dealt with the issue of services. This was germane to the dispute before the bench as the matter was referred to it by a three-judge bench following a split verdict delivered in February 2019.

In the split verdict, then justice Ashok Bhushan took the view that the 2018 decision (majority view) did not interpret the phrase “insofar as any such matter is applicable to Union Territories”. This phrase in Article 239AA(3) was relied upon by the Centre to justify excluding services from the legislative ambit of Delhi assembly. The other judge, justice AK Sikri decided that the legislative functions of Delhi government will extend to “services” too.

Justice Bhushan had placed reliance on the K Balakrishnan Committee report, based on which, Article 239AA was inserted in the Constitution in 1991.

The judgment delivered on Thursday clarified its earlier decision and said, “We are unable to agree with the view of justice Bhushan in the 2019 split verdict.” It held that the majority decision in 2018 “rendered a broad interpretation of Article 239AA(3)(a) to provide NCTD with vast executive and co-extensive legislative powers except in the excluded subjects”.

On a combined reading of the majority opinion, then Chief Justice of India Dipak Misra, justice AK Sikri, and justice AM Khanwilikar, and the concurring opinions of then justice Chandrachud and justice Bhushan, the bench said on Thursday that the phrase “in so far as any such matter is applicable to Union Territories” does not restrict the legislative powers of Delhi.

Quoting from the 2018 verdict, the bench said that while Delhi could not be accorded the status of a state, the concept of federalism would still be applicable. “The spirit of cooperative federalism requires the two sets of democratic governments to iron out their differences that arise in the practice of governance and collaborate with each other,” the bench held.

It added, “Our interpretation of the Constitution must enhance the spirit of federalism and democracy together. This approach of interpretation is located in the 2018 Constitution Bench judgment.”