Refer case over division of powers in Delhi to larger bench, Centre requests SC

Solicitor general Tushar Mehta said history should not remember them for having handed over power in the Capital to “total anarchy”

Solicitor general Tushar Mehta on Wednesday said history should not remember them for having handed over power in the Capital to “total anarchy” as he requested the Supreme Court to refer the case related to the division of powers between Delhi’s lieutenant governor (LG) and the chief minister to a larger bench.

The Supreme Court. (ANI)

The Delhi government was responding to the Centre’s submissions on the concluding day of arguments when Mehta made the request before a Chief Justice of India (CJI) Dhananjaya Y Chandrachud-led five-judge Constitution bench that began hearing the case last week.

Read| Kejriwal's attack on LG continues for 2nd day: 'Not my headmaster'

Senior advocate Abhishek Manu Singhvi, representing the Delhi government, opposed the request. “It is hugely dilatory on part of the Centre. Today we have gone into all submissions. Even during the time of reference, no argument was made on this aspect.”

Mehta, the Centre’s second-highest law officer, argued the matter related to the Capital of the country. “...we may not be remembered in history to have handed over the Capital to total anarchy.”

Mehta said constitutional functionaries should avoid resorting to “theatrics” when the matter is pending before the court. He added it was rare that protests over the division of powers were being held when the five-judge bench is considering the issue.

Delhi chief minister Arvind Kejriwal on Tuesday again questioned LG Vinai Kumar Saxena’s alleged interference in governance in a hard-hitting speech in the Delhi Assembly on Tuesday. The ruling Aam Aadmi Party earlier held protests against Saxena’s alleged move to block a schoolteachers training programme abroad.

The court on Wednesday said it would have looked at the matter differently if there was an argument of reference to a larger bench earlier. “There was no argument made by you [the Centre]. Such an argument had to be made at the outset.”

Mehta said they filed an application seeking the reference to a larger bench before the matter was to be heard. “At that time, we were told to make it part of our submissions. Allow us to make a two-page note. The court may consider it as part of our submissions.”

The application for reference in the matter was filed in December. It held that the earlier Constitution bench decision of 2018 on the matter went against a 1997 Supreme Court ruling of a nine-judge bench in the New Delhi Municipal Council (NDMC) case, which held Delhi is a Union Territory and not a state despite having a legislative assembly.

Read| Kejriwal’s claim: LG said he helped boost BJP’s civic tally

In light of that judgment, the Centre sought control over services to be referred to a bench of nine or more judges.

The application for reference raised a preliminary objection on the five-judge bench hearing the dispute over “services” borne out from a May 2015 notification issued by the Centre putting Entry 41 under List II dealing with “public services” out of the legislative scope of the Delhi government.

The Delhi government argued this was contrary to the judgment of the Supreme Court. In July 2018, the court held that land, police, and public order come under the Union government and, therefore, the LG, with the rest under the elected government of Delhi. The Delhi government has argued it should have legislative and consequently executive power.

Singhvi told the court that the prayer for reference was similar to the Centre’s review petition in May 2021 challenging the 2018 verdict. The 2018 verdict held that the LG should act on the aid and advice of the council of ministers of the Delhi government except on matters of public order, land, and police.

He said that the nine-judge bench’s decision in the NDMC case has been considered in the 2018 verdict as well.

The bench, also comprising justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha, permitted the Centre to file a note. “You can give your note. It is a question of law.”

Read| Delhi govt not sharing CAG reports in House: LG office

Mehta said his written submissions filed in the matter though do not mention the word reference, it contained all submissions centered around their reliance on the nine-judge bench NDMC case and how the 2018 verdict went against the same.

The proceedings went on for an hour before the five-judge bench reserved orders on the Delhi government’s plea.