Supreme Court reserves its decision on posting rights of officers to constitutional bench for hearing

A bench headed by CJI NV Ramana in the Supreme Court today, reserved its decision on whether the Delhi government’s petition seeking transfer posting rights of officers should be sent to the Constitution Bench for further hearing.

On the issue of rights, the central government says that the matter should be sent to the Constitution Bench for hearing. Now the Supreme Court will decide whether the Constitution Bench will hear the matter or not?

The Supreme court also said that even if the matter is referred to the Constitution Bench, we will try to have both sides complete their arguments by May 15.

On this, SG Tushar Mehta said that he will take a maximum of 2 days. While advocate AM Singhvi, appearing for the Delhi government, said that both the parties can be given a day’s time to complete their arguments.

The Union Government has filed an application in the Supreme Court in the matter pertaining to legal dispute between the Delhi Government and the Central Government regarding legislative powers of the legislative assembly of NCT of Delhi , to refer the matter to a Constitution Bench for a holistic interpretation of Article 239AA.

Filed by Advocate Arvind Kumar Sharma , it is stated that Article 239AA was enacted by the 69th Amendment to the Constitution providing for a legislative body and a Council of Ministers for the NCT of Delhi . The significance of the same is much greater in view of the fact that Delhi is also the national capital and as such the model of governance of the NCT of Delhi would invariably require the Union Government to play a central role , even if a legislative assembly or Council of Ministers is introduced .

It was for this reason , the models of governance , provided for other Union Territories were not considered appropriate for NCT of Delhi and a committee called the Balakrishnan Committee was setup to suggest an appropriate governance model , which could balance the need of the Union’s role and at the same time provide platform democratic aspirations of the people , said the application.

“.. the Balakrishnan Committee suggested insertion of a new Article in Part VIII of the Constitution and the Parliament enacted the 69th Amendment Act , incorporating verbatim , Article 239AA , as suggested by the Balakrishnan Committee Keeping in mind the significance of the matter , a Constitution Bench , decided to confine itself to the interpretation of Article 239AA , leaving the individual issues to be decided by a regular bench based on the its judgment .’

It is averred that 04.07.2018 by way of three opinions , namely ( a ) Opinion of the then the Chief Justice , for himself , HMJ Dr.AK Sikri and HMJ AM Khanwilkar ; ( b ) Opinion of HMJ Dr. DY . Chandrachud ; and ( c ) Opinion of HMJ Ashok Bhushan , the constitution bench judgment was pronounced , however , as it was later noticed that the majority opinion authored by the then Chief Justice , did not interpret one of the most significant aspect of Article 239AA , which is the expression ” insofar as any such matter is applicable to Union Territories ” , as it occurs in Clause ( 3 ) of Article 239AA

In the above circumstances , when the 6 individual issues were taken up for adjudication , by the , the Division Bench ( comprising of HMJ Dr. AK Sikri and HMJ Ashok Bhushan ) , in the light of the decision of the Constitution bench judgment dated 04.07.2018 , the Division Bench vide its judgment dated 14.02.2019 could decide only 5 of them and found itself in disagreement as regards as the decision on one issue , which disagreement was solely premised on the aspect that the Constitution Bench did not interpret the expression ” insofar as any such matter is applicable to Union Territories ” , as it occurs in Clause ( 3 ) of Article 239AA . Accordingly the matter was referred to the larger bench , which is seized of the matter, the union argued.

It is submitted by the Union of India that unless the issue which prevented the decision on dispute as regards legislative powers of the legislative assembly of NCT of Delhi over entry 41 of List II is decided by bench of same or larger strength , the dispute cannot effectively be decided because the key question as to whether the legislative competence of a legislative assembly of a Union Territory in respect of List II ( State List ) , which as per the Constitution Bench itself , would depend on the context of the matter , which includes entry 41 , cannot conclusively be decided , unless the expression ” insofar as any such matter is applicable to Union Territories ” , which is a central part of a constitutional provision is interpreted by a bench of a same or larger strength .

Therefore the Central Government contended that issues involving a substantial question of law requiring interpretation of a provision of the constitution and the key issues involved in the present matter cannot be determined unless the same is decided by a constitution bench in terms of Article 145 ( 3 ) of the Constitution of India .

In February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the Government of National Capital Territory of Delhi (GNCTD) and Union Government over services and referred the matter to a larger bench.

The plea by the Delhi government arises out of a split verdict in which, a two judge-bench of Justices A K Sikri and Ashok Bhushan, both retired since, had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict.

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.

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