The Delhi govt could be barred from passing laws on subjects other than land, police, and public order, according to the Union government’s submission to the Supreme Court on Tuesday.
Meanwhile, the Union government is seeking a new adjudication by a Constitution bench to determine the limits of the Aam Aadmi Party’s legislative powers in the national capital.
Moreover, the Delhi govt, on its part, has expressed opposition to the Centre’s position, pleading for a swift decision on whether it has the executive authority to transfer and appoint bureaucrats in the Capital.
Furthermore, there can be more than the three subjects specifically mentioned under subsection 3 of Article 239AA on which the Delhi govt is restricted from passing a law, according to the Centre’s submissions before a bench led by Chief Justice of India NV Ramana, and this aspect should be clarified further by another five-judge bench.
Authority in Delhi Govt?
In July 2018, a Constitution panel ruled that the Union government’s executive jurisdiction in the NCT of Delhi Govt is limited to land, police, and public order under subsection 3 of Article 239AA.
However, solicitor general (SG) Tushar Mehta and additional solicitor general (ASG) Sanjay Jain pointed out that the 2018 ruling did not expressly state that the Delhi govt had the authority to establish legislation on any issue other than land, police, and public order.
“Entries 1, 2 and 18 in List-II (public order, police and land) are not the only restrictions against the NCT government. There can be other matters as well outside the legislative powers of the NCT government. The Constitution bench also talked about pragmatic federalism,” ASG Jain contended, adding that matters related to the three entries would fall under parliamentary authority as well.
Senior advocate Abhishek Manu Singhvi, representing the AAP government, vehemently rebutted this argument, arguing that the Constitution bench’s 2018 decision is unequivocal in defining the powers of the Delhi govt and that the Centre’s submissions are aimed at weakening the federal structure.
In addition, Singhvi continued, by saying that accepting the Centre’s submissions would render the Delhi legislative assembly worthless.
The bench, which also included justices, Surya Kant and Hima Kohli, was considering a case from a two-judge bench in February 2019 in which two judges had opposing views on who controls the Delhi bureaucracy. As a result, the issue of Services (bureaucrat transfers and appointments) was referred to the bigger bench.
While the case was awaiting a full hearing by the larger bench, the central government amended the NCT of Delhi Act in 2021, giving the Lieutenant Governor more powers by requiring the Delhi government to seek his advice before taking any executive action in response to decisions by the council of ministers, or any other decision under any law in force in the Capital.
The Delhi govt has filed a separate challenge against the 2021 amendment law, claiming that giving the Centre’s nominee overriding powers over the Delhi legislature is unconstitutional and effectively disenfranchises the people of Delhi by removing power from their elected representatives.
Moreover, the three-judge bench asked the Centre to respond to the petition on March 3.
On Tuesday, both cases were scheduled for a hearing. The court ordered the Centre ten days to respond to the challenge to the 2021 law because the central government had not filed a response.
SG Mehta, on the other hand, requested the bench to hear both issues together, stating that the two cases (on Delhi bureaucracy and the 2021 law) will have overlapping effects and should hence be heard simultaneously.
In addition, he said, “We also say that the dissent between the two judges (in 2019 judgment) should ideally go to five judges.”
Singhvi frowned at the claim, calling it a “red herring.” Even if the 2021 law is found to be legitimate and constitutional, the senior counsel stated that the Delhi govt is willing to take a chance by arguing its case independently of the executive power to transfer bureaucrats.
“There is no central law on transfer and posting. Yet they say we are denuded from framing legislation. The question is if the Delhi assembly can be denuded from making a law even though there is no parliamentary law on that subject.”
“If such a submission were to be accepted, they (Centre) can control everything in the NCT through executive orders and no law is required at all,” argued Singhvi.
He emphasised that the Delhi govt needs a legal response on whether it has the authority to legislate under Entry 41 of List-II, which allows a state government to create laws governing state public services and the state public service commission.
In addition, he said, “If I have the power, the next question to decide is whether my exercising power of transfer and posting of bureaucrats can have an incidental encroachment on use of Centre’s power with respect to land, police and public order.”
However, the court then ordered the SG to guarantee that the Centre files a response on all parts of the case within 10 days, and set April 27 as the next hearing date.
