Delhi Govt vs LG| Centre's Plea For Larger Bench Reference At Fag End Of Hearing Takes Supreme Court By Surprise

The Supreme Court on Wednesday expressed surprise at the plea made by the Central Government to refer the 2018 judgment in the GNCTD vs Union of India case to a larger bench, at the fag end of the hearing in the dispute relating to control of civil services in the Delhi Government.

A 5-judge bench led by Chief Justice of India DY Chandrachud had been hearing the matter since January 10, 2023. Senior Advocate Dr Abhishek Manu Singhvi completed his arguments for the Delhi Government and Solicitor General of India Tushar Mehta made arguments on behalf of the Central Government over the last few days. Today, the matter was posted for the rejoinder arguments of Dr.Singhvi.

As the bench commenced the sitting, Solicitor General raised the plea for reference. "I have already filed an application seeking reference. I have already argued the point. I am seeking permission to file a written note".

Expressing surprise at this request, CJI Chandrachud said, "But we did not hear any argument on reference! It was never argued. We are in rejoinder".

"But the reference is needed. I have already argued", SG replied.

"Mr.Solicitor, now you can't...Dr.Singhvi is in his rejoinder. Reference has to be argued at the outset", CJI said. CJI further pointed out that the arguments in the case would have been over yesterday itself, and the matter is posted today for rejoinder only.

Solicitor General submitted that when he mentioned the application filed seeking reference in December 2022, CJI gave permission to raise the point during the final hearing.

"The reference is on the ground that the contours of federalism between Union and Union Territory requires a relook. I am not repeating anything. It is covered in my arguments. I just need to put a two-page note", SG urged.

CJI reiterated that the reference ought to have been argued at the beginning.

"We would have looked at the matter differently if there was an issue of reference. Reference has never been argued. Your side has completed arguments", CJI told the SG.

"We will consider", CJI told the SG before asking Singhvi to commence his arguments.

As Singhvi started his arguments, SG interrupted to make the request again. "I would earnestly request my lord the Chief Justice. When I mentioned, my lords said you can always cover it in your arguments".

"But it was not covered in the arguments! That is the point", CJI repeated.

"All points are covered, without using the word 'reference'", SG replied.

Dr.Singhvi then said that the reference is a "dilatory tactic" adopted by the Union. He said that the plea to refer the 2018 judgment to larger bench was never raised during the ten postings of the case and was raised for the first time in December 2022, few weeks before the final hearing was set to begin. He also said that the reference application is identical to the review petition filed in 2021 against the 2018 judgment.

"Identical prayer made in the review filed three and half years after the Constitution Bench judgment is repeated few weeks before this bench is to convene. A Constitution Bench does not allow this. This will be hugely dilatory. This bench has spent considerable time", Singhvi said.

Refuting Singhvi, SG made a high-pitched argument, "It will be anything but dilatory. We are dealing with the capital of the nation. Therefore whether it is done better today or tomorrow hardly makes a difference. My learned friend may be in a tremendous hurry to do certain things. We are more on the future course of action. We many not be remembered in history for having handed over the national capital to a complete anarchy. I will just put a two-page note".

In response, Singhvi said that the "mantra" of national capital need not be repeated always. "Of course, it is a capital. A capital with a legislature and representative democracy. Today, after your lordships have dealt with so many paragraphs, suddenly at the end of my arguments they have asked for reference. That would be very unprecedented for a Constitution Bench".

SG repeated his request for permission to place a two-page note, to which Singhvi objected saying that it will go on as a "never-ending process".

CJI Chandrachud, after a brief discussion with the other members of the bench- Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha- allowed the SG to submit a note.

"No difficulty, you can circulate a note. It is a question of law", CJI told SG.

"It should not be an ambush procedure", Singhvi said.

After hearing Singhvi's rejoinder arguments, the bench reserved judgment in the case.

The larger bench reference is sought by the Centre on the ground that the 2018 judgment of the Constitution Bench in the case GNCTD vs Union of India is inconsistent with the nine-judge bench judgment in the case NDMC VS State of Punjab (1996) which held that Delhi was on the same footing as a Union Territory. In the 2018 judgment, the Constitution Bench asserted the principle of supremacy of elected government and held that the LG should act as per the aid and advise of the Council of Ministers in respect of the matters over which the Delhi Government has executive and legislative powers and that the LG's reference to the President should only be made in exceptional circumstances.

On May 6, a bench comprising the then CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli had referred the issue relating to services to the Constitution Bench, observing that the 2018 judgment did not consider this aspect while interpreting the ambit of Article 239AA of the Constitution.

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