GNCTD v LG : Supreme Court Refuses To Direct Centre To Respond To Delhi Dy CM's Affidavit Regarding Non-Cooperation By Officials

"We will freeze all pleadings now…Otherwise people will file affidavits till one day before the hearing."

The matter mentioned by Senior Advocate, Dr. A.M. Singhvi, appearing for the Delhi Government, was taken on Board by a Bench comprising CJI, Justice D.Y. Chandrachud and Hima Kohli.

Dr. Singhvi apprised the Bench that day before yesterday, the Deputy Chief Minister of Delhi Government has filed anaffidavit to put forth the factual aspects depicting paralysis in administration in the State.

Additional Solicitor General, Mr. Sanjay Jain retorted, that the affidavit and as well as the mentioning of the matter was a complete abuse of process. He alleged that the affidavit was widely shared with the press. It was also contended that the affidavit seeks direction to the Centre to file a response within a week, which Mr. Jain pointed out that it cannot be dictated by the Delhi Government.

"This affidavit as well as the mentioning, both is an abuse of process. Your lordships have already fixed the matter for 24th Nov. This affidavit is political…shared with the press…This affidavit says that we should be directed to file a response within a week before 24. This cannot be dictated like this."

The CJI, Chandrachud noted that the issue before the Constitution Bench deals with the matter of law. He indicated that the factual aspects depicted in the affidavit might give it a political colour.

"The issue before the constitution Bench is a matter of law. Now, whatever is happening on the ground for you to say that I am putting an affidavit..converting this into sort of a …"

Clarifying the reason for filing the affidavit, Dr. Singhvi submitted -

"This was filed because when your lordships say services,..today every bureaucrat is not sending the files, answering my calls, responding to me, that is because of the interpretation adopted by them."

The CJI specifically enquired, "Mr. Jain says that you have given it to the press."

Dr. Singhvi assured the Bench that the copy of the affidavit was not provided to the press by him.

"There is no question of giving it to the press. Your lordship knows today anything filed is known to the press. I have not given a single copy."

The CJI stated that the Bench would not issue directions to the Centre to file any response to the affidavit. It was made abundantly clear that the Constitution Bench would only deal with the constitutional issue.

"We will not direct them to file any reply. We will deal with the constitutional issue. Obviously underlying the constitutional issue there is a political issue, we are a democracy. We would like to deal with the constitutional issue."

On 19.10.2022, at the request of the Solicitor General of India, Mr. Tushar Mehta, the Supreme Court, deferred the hearing of the matter which was initially fixed for 9th November, 2022 before a Constitution Bench.

Mentioning the matter before a Bench comprising Justices D.Y. Chandrachud and Hima Kolhi, Mr. Mehta submitted that the Constitution Bench headed by Justice Chandrachud was to commence with the hearing on 9th November, 2021. However, stating that he would be travelling outside India from 7th November, 2022 to 13th November, 2022 for official work, he requested the Bench for some accommodation.

Dr. Singhvi appearing on behalf of the Delhi Government did not object given the nature of the request made by the Solicitor General.

As both the parties agreed to the proposition of deferment, Justice Chandrachud said he would talk to his colleagues on the Constitution Bench about the same. He asked the Counsels for a suitable date when the matter can be heard. Mr. Mehta suggested 24th November, 2022. As Dr. Singhvi did not raise any objection to the same, the Bench agreed to adjourn the hearing till 24th November, 2022.

On 27.09.2022, a 5-judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha had stated that the hearing would proceed on a day-to-day basis from 9th November, 2022. Prior to that, the Constitution Bench had posted the matter on 27th September, 2022 to fix the timeline for hearing and indicated that it will proceed with the hearing tentatively from 11th October, 2022.

In the matter pertaining to the legal dispute between the Delhi Government and the Central Government, a 3-Judge Bench led by the CJI, NV Ramana, on 06.05.2022, had referred to the Constitution Bench the limited questions regarding the control over administrative services in the National Capital Territory.

The 3-Jugde Bench had observed that the main contention relates to interpretation of phrases 'any such matter is applicable to UT's' and 'subject to provisions of this constitution' in Article 239AA(3)(a).

"The Constitution bench while interpreting 239AA didn't specifically interpret the impact of wording of the same with regard to entry 41 of state list. We deem it appropriate to refer the above limited question to the Constitution bench."

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 3-Judge Bench, which has now referred a limited question of law to the Constitution Bench led by Justice D.Y. Chandrachud.

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 Lieutenant Governor. The matter was referred to the Constitution bench by a Division Bench of the Apex Court by an order dated 15.02.2017.

Before the 3-Judge Bench led by CJI Ramana, the Union of India had urged that referral to a Constitution Bench is necessary for a holistic interpretation of Article 239AA which is central to the determination of issues involved. The Union's request for a referral was opposed by Senior Advocate AM Singhvi appearing for the Delhi Government. He had submitted that Union's request for referral of issues which have already been dealt with by the Constitution Bench would amount to reconsideration or review of 2018 Constitution bench judgment.