The Union and the state government of Delhi fight in pinnacle court regarding Delhi government’s powers

13-04-2022

The Delhi government, on its part, opposed the Centre’s views, seeking a fast decision on whether or not it's the manager's power to transfer and appoint bureaucrats within the Capital.

The Delhi government is restricted from passing laws on subjects aside from 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 line the boundaries of the legislative powers of the Aam Aadmi Party government within the metropolis.

The Delhi government, on its part, opposed the Centre’s views, seeking a fast decision on whether or not it's the chief power to transfer and appoint bureaucrats within the Capital.

According to the Centre’s submissions before a bench headed by justice of India NV Ramana, there will be quite 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 chief 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, peace officer (SG) Tushar Mehta and extra lawman (ASG) Sanjay Jain made the fine point that the 2018 judgment has not specifically held that the Delhi government is empowered to create laws on all subjects aside from land, police, and public order.

“Entries 1, 2 and 18 in List-II (public order, police and land) aren't the sole restrictions against the NCT government. There are other matters further outside the legislative powers of the NCT government. The Constitution bench also talked about pragmatic federalism,” argued ASG Jain, adding the problems related 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 which the submissions by the Centre are aimed toward eroding the federal structure. 

Singhvi added that accepting the Centre’s submissions would render the Delhi law-makers 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 on who wields power in the Delhi bureaucracy. Therefore, the matter associated with Services (transfer and appointments of bureaucrats) was said to be the larger bench.

While the reference awaited a close hearing by the larger bench, in 2021, the central government came out with an amendment within the NCT of Delhi Act, giving more powers to the elected official by making it mandatory for the Delhi government to hunt his opinion before taking any executive action in pursuance of selections by the council of ministers, or the other decision under any law good within 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 doing away with power from their elected representatives. On March 3, the three-judge bench sought a response from the Centre to the current petition.

Both the matters came up for hearing on Tuesday. Because the central government failed to 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 listen to both the cases together, claiming the 2 cases (on Delhi bureaucracy and 2021 law) will have an overlapping effect on one another and thus, they must be heard together. “We also say that the dissent between the 2 judges (in 2019 judgment) should ideally move 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 require an opportunity arguing its case separately on the manager power to transfer bureaucrats whilst the 2021 law is taken into account valid and constitutional.

“There is not any central law on transfer and posting. Yet they are saying we are denied from framing legislation. The question is if the Delhi assembly will be denied from making a law while there's no rules of order on it subject. If such a submission were to be accepted, they (Centre) can control everything within the NCT through executive orders and no law is required in the least,” argued Singhvi.

He underscored that the Delhi government wants a solution in law on whether it's the facility to legislate under Entry 41 of the List-II which authorises a regime to border laws on state public services and state public service commission. “If i've got the facility, the following question to determine is whether or not my exercising power of transfer and posting of bureaucrats can have an incidental encroachment on use of Centre’s power with relation to land, police and public order,” he added.