29.4.2022, Thursday, New Delhi

Supreme Court reserves order on sending ‘services’ case to five-judge bench

A three-judge bench headed by CJI NV Ramana will decide on the limited question of whether a five-judge bench, which interpreted the power of the Delhi assembly under Article 239AA by its judgment of July 4, 2018, should also determine whether Delhi can legislate on ‘services’.

The Supreme Court on Thursday reserved its order on referring to a Constitution bench the power tussle between the Centre and the Delhi government on which of them has the legislative competence to transfer and appoint officers in the Capital.

A three-judge bench headed by Chief Justice of India (CJI) NV Ramana will decide on the limited question of whether a five-judge bench, which interpreted the power of the Delhi assembly under Article 239AA by its judgment of July 4, 2018, should also determine whether Delhi, which enjoys a unique place in the Constitution since it has an assembly despite being a Union territory, can legislate on “services”.

Earlier, a two-judge bench of the top court in February 2019 gave a split verdict on the issue, due to which the matter was referred to a three-judge bench. On Thursday, the bench, also comprising justices Surya Kant and Hima Kohli, asked the Delhi government if it had any objection to the matter being referred to five judges. Two days ago, the Centre moved an application stating that the matter on “services” should be considerated by a five-judge Constitution bench as it raised a substantial question of law on the interpretation of Article 239AA.

Senior advocate Abhishek Manu Singhvi, appearing for Delhi government submitted that the July 2018 verdict by a Constitution bench held the field by ruling that barring land, law and order, and police, the legislative competence of Delhi assembly extended to all other issues.

“Once the Constitution bench has decided the matter, there is no point in asking again and again for a reference. This amounts to saying we want a Constitution bench to consider the decision of another Constitution bench. If at all, a Constitution bench sits, the matter should then go to a seven-judge bench. This argument by Centre is an attempt to review and reconsider the earlier judgment on a plea of reference.”

Solicitor general (SG) Tushar Mehta, appearing for Centre, denied that there was any suggestion to refer the matter to a seven-judge bench. He referred to Article 239AA(3), which says, “Subject to the provisions of Constitution, the Legislative Assembly (of Delhi) shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories….”