Supreme Court Reserves Order On Centre's Plea To Refer GNCTD-LG Dispute On Services To Constitution Bench; Wants To Wrap Up Hearing In May

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli reserved orders on an application filed by the Union of India seeking referral to a Constitution Bench for a holistic interpretation of Article 239AA. The writ petition filed by the Delhi Government last year challenging the GNCTD(Amendment) Act 2021 was also listed along with the main case (the 2017 case which was referred to larger bench by a 2-judge bench in 2019).

The Bench observed that it will consider the submissions made by Solicitor General Tushar Mehta appearing for Union of India and Senior Advocate AM Singhvi appearing for Delhi Government and take a call as early as possible.

The Bench opined that in case a Constitution bench is constituted, it would want the hearing to conclude by 15th May.

Both sides agreed that the hearings can be completed before the court closes for summer vacations by the end of May. While Mr Singhvi suggested that one day each be given to both sides to argue, the SG stated that 1.5-2 days may be needed for Centre to conclude its arguments.

It may be recalled that in February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the GNCTD and Union Government over services and referred the matter to a larger bench. Last month, a 3-judge bench led by CJI Ramana had decided to take up the case.

In July 2018, a 5-judge bench of the Supreme Court had laid down broad parameters for governance of the national capital, amid the differences between the elected government and the LG. The matter was referred the Constitution bench by a Division Bench of the Supreme Court by an order dated dated 15th February 2017.

The Union's request for a referral was opposed by Senior Advocate AM Singhvi appearing for the Delhi Government. He submitted that Union's request for referral of issues which have already been dealt with by the Constitution bench may not amount to referral, but a reconsideration or review of Constitution bench judgement

"Their plea today is not a mere reference but review/reconsideration of constitution bench judgement", he said. He submitted that a Constitution Bench reference cannot be made at the mere asking of a party and that a 3-judge bench was competent to consider the issues. He further said that this is not the first time the Centre is making the plea for reference.

"Your are not hearing this for first time, multiple attempts have been made. How many bites of apple will lordships be giving them, is my humble submission. Justice has been done one way or the other by reference, attempt made prior, referred, attempt made subsequently was rejected."

The bench asked Mr Singhvi as to what prejudice would be caused to the Delhi Government if the matter is referred to a larger bench.  

"Its not about why not, it's about why! Law develops by increment, every case will have slight different nuance", Mr Singhvi responded.

"I'd implore, a constitution bench reference arising from another constitution bench is rarest of rare! I'm not disputing your lordships' power to refer it. It has been argued like there's no been no constitution bench at all" Mr Singhvi added.

Senior Advocate AM Singhvi, had yesterday submitted that the Centre's plea for referrral was a "delaying tactic".

"It is regrettable that Centre has spent 2-3 hearings to ask the court to refer it to be constitution bench. Its a delaying tactic, this matter should've been over by now" he said

Solicitor General of India Tushar Mehta appearing for Union of India had yesterday submitted before a bench headed by CJI NV Ramana, that on a bare reading of the 2017 order making reference to the Constitution Bench, it can be gathered that the terms of reference required all aspects of Article 239AA to be interpreted. The SG said that the 2018 judgment however did not address all issues relating to Article 239AA.

Find details of Centre's arguments in favour of the referral here. 

Case Title: Govt Of NCT Delhi vs Union of India: CA 2357/2017