Delhi Govt vs Centre : Supreme Court Issues Notice On Plea Challenging GNCTD (Amendment) Act 2021; 3 Judge Bench To Hear Issue Relating To Power Over Services

The writ petition has sought directions to quash Sections 21, 24, 33, 44 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the 2021 amendment Act.

A Bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna and Justice Hima Kohli issued the direction after considering submissions made by Senior Advocate AM Singhvi appearing for the Delhi Government.

The Bench has directed the Union of India to file a counter affidavit and decided to list the matter after four weeks.

The Bench also decided to take up the unsettled issue relating to the dispute between Centre and Delhi Government relating to power over administrative services in the national capital.

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 3-judge bench.

The split verdict was delivered by a bench of Justices A K Sikri and Ashok Bhushan(both retired) on the issue of who has powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution of India.

Justice Sikri held that transfers and posting of officers of and above the rank of Joint Secretary are under the powers of Lieutenant General of Delhi; other officers are under the control of Delhi Govt. On this aspect, Justice Bhushan dissented to hold that "services" were totally outside the purview of the Delhi Government.

Regarding this issue, Senior Advocate Singhvi submitted before the bench today : "I'm a Government but I can't transfer Officers. If I am the governmentt, and can't appoint & govern officers, and if they know, the discipline will be zero. This first matter is extremely urgent".

 Additional Solicitor General Aman Lekhi, appearing for the Centre, submitted that this matter required to be referred to a Constitution Bench. However, the CJI said that reference to Constitution Bench was not necessary.

"We don't think it is required. I think three of us can resolve the case. 3 Judge Bench will hear the matter", CJI said.

Details of the petition challenging GNCTD (Amendment) Act 2021 :

The Delhi Government through its petition has further sought quashing of Rules 3, 6A, 10, 14, 15, 19, 22, 23, 25, 47A, 49, 52 and 57 of Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, as amended/inserted by the Transaction of Business of the Government of National Capital Territory of Delhi (Amendment) Rules, 2021 as unconstitutional.

The Delhi Government has argued that the impugned Provisions of the GNCTD Act diminish the constitutionally guaranteed powers and functions of the elected legislative assembly and council of ministers of the NCT of Delhi, overturn the constitutionally stipulated balance between the Government of the National Capital Territory of Delhi and the Union Government, and impermissibly overrule the judgment of the Constitution Bench of Supreme Court in Government of NCT of Delhi v Union of India, (2018).

The petition has further stated that Article 239AA is a unique provision in the Indian Constitution in that it constitutionally guarantees to the Union Territory of the NCT of Delhi, a parliamentary form of democracy in the Westminster model.

"Essential features of this model include an elected legislature and a responsible executive, each one competent to act within their demarcated spheres of authority. Additionally, by virtue of Delhi's status as the national capital, a nominee of the Union Government - the Lieutenant-Governor - plays a limited role in the constitutional scheme under Article 239AA," the plea states

The Delhi Government has pointed out that in the case of Government of NCT of Delhi v Union of India , a Constitution Bench of the Supreme Court clarified that the provisions of Article 239AA - including those concerning the powers and functions of the LG - must be interpreted in light of the constitutional commitment to federalism, and to representative democracy.

"This Hon'ble Court interpreted Article 239AA so as to place limitations upon the power of the LG, in order to ensure that the default situation would remain that of a parliamentary democracy with an elected legislature and a responsible executive, while a certain space was retained for exceptional circumstances, where the LG would be required to play a limited role," the Delhi Government has stated.

The present petition has been filed through Senior Advocate Abhishek Manu Singhvi, Advocates Shadan Farasat, Namita Wahi, Talha A. Rehman, Prateek Chadha, Gautam Bhatia, Bharat Gupta, and Shourya Dasgupta

Case Title: Government of NCT of Delhi vs Union of India & Ors, WPC 887/2021

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