The Supreme Court Friday referred questions arising out of the dispute between the Delhi government and the Centre over control of the administrative services in the National Capital Territory to a five-judge Constitution bench.
Agreeing with the contention that a 2018 Constitution bench decision interpreting Article 239AA, which gives special status to Delhi, had not dealt with an aspect having a bearing on the dispute over services, a three-judge bench presided by Chief Justice of India N V Ramana said this limited question will be looked into by a Constitution bench.
The bench, also comprising Justices Surya Kant and Hima Kohli, said the matter will now be heard on May 11.
The proceedings have their genesis in the Delhi High Court judgment of August 4, 2017, whereby it held that for the purposes of administration of the NCT of Delhi, the L-G was not bound by the aid and advice of the Council of Ministers in every matter. On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.
By a majority decision on July 4, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament. It said that while the council of ministers must communicate all decisions to the L-G, this does not mean that the latter’s concurrence is required. In case of a difference of opinion, the L-G can refer it to the President for a decision.
The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the Council of Ministers or is bound to implement the decision of the President on a reference being made, it said.
The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.
Subsequently in 2019, a two-judge bench of the SC while dealing with some individual issues arising from the power tussle between the Centre and the NCT government, ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials, and the power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government.
In this regard, the two-judge bench upheld two notifications issued by the Centre on July 23, 2014, and May 21, 2015, which had the effect of excluding the jurisdiction of the Delhi government’s Anti-Corruption Branch from probing offences committed by the central government officials and limiting it to employees of the Delhi government.
The judges, however, differed on who should have control over administrative services.
This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question as the 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA. It urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.
The NCT government opposed this saying there was already a constitution bench decision in the matter.