Centre vs Delhi Govt: Justice Chandrachud- led Constitution Bench to hear issue of control over bureaucracy in national capital

Satya Prakash

New Delhi, August 22

A Constitution Bench led by Justice DY Chandrachud will adjudicate upon the tussle for control over bureaucracy in the national capital between the Centre and the Delhi Government that has remained unresolved despite several rounds of litigation.

Chief Justice of India NV Ramana – who is the master of roster – on Monday said the case has been assigned to a Constitution Bench headed by Justice Chandrachud after a counsel representing the Delhi Government mentioned the matter.

The five-judge Constitution Bench is expected to make an authoritative pronouncement on the scope and ambit of legislative and executive powers of the Centre and the Government of the NCT of Delhi with regard to control the bureaucracy in the capital.

Accepting the Centre’s demand, the Supreme Court had on May 6 referred the contentious issue to a five-judge Constitution Bench even as it said the issue related to ‘Services’ alone shall be decided by the Constitution Bench as it was not dealt with by the previous Constitution Bench.

The Centre had said the issue should be referred to a Constitution Bench for a holistic interpretation of Article 239AA. Describing Delhi as the “face of the nation”, Solicitor General Mehta had defended the Centre’s control over transfers and postings of bureaucrats in Delhi even as Delhi Government contested it.

The Delhi Government has challenged the validity of amended Government of NCT of Delhi Act, 2021 and Rule 13 of the Transaction of Business Rules, 1993 which allegedly gave more powers to Lieutenant Governor.

This is the third round of litigation before the top court on the power tussle between Lt Governor of Delhi—appointed by the Centre — and the elected Government led by AAP leader Arvind Kejriwal. The tussle between Delhi Lt Governor and the elected Government of NCT has remained unresolved despite two earlier verdicts – one each by a Constitution Bench and a two-judge Bench of the Supreme Court.

In July 2018, the top court had ruled that Delhi Lt Governor of Delhi did not have independent decision-making powers. A five-judge Constitution Bench had said the LG was generally bound to act on the aid and advice of the Council of Ministers, except on three subjects reserved for him or where he differs with the decision of the elected NCT government and decides to refer an issue to the President. All decisions of the NCT Council of Ministers have to be communicated to the LG. However, such communication does not mean LG’s concurrence is required, it said.

On February 14, 2019 delivered a split verdict on the issue of control of administrative services. A Bench of Justice AK Sikri and Justice Ashok Bhushan had different views as to who had powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution. In view of the split verdict, the issue of “services” was referred to a three-judge Bench.