Lt. Governor and NCT Delhi #3: Delhi Gov Argues 5-Judge Reference is ‘Delaying Tactic’

On April 28th 2022, Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli reserved Judgment in the Union government’s plea to refer the dispute over the control of the National Capital Territory (NCT) to a 5-Judge Constitution Bench. 

This dispute is the latest chapter in the decade-long tussle for control over NCT between the Aam Aadmi Party government of Delhi and the Union. Most recently, the Union attempted to expand the powers of the Lieutenant Governor, including their control over the transfer and appointment of members of Delhi’s civil services, at the cost of the elected Chief Minister’s powers. 

Delhi, by virtue of Article 239AA of the Constitution of India, 1950, holds a special status despite being a Union Territory—the Delhi government and the Union must share powers in the NCT. Delhi’s special status was confirmed in 2018 by a 5-Judge Bench of the Supreme Court tasked with interpreting Article 239AA. 

In 2019, a 2-Judge Bench of the SC consisting Justices A.K. Sikri and Ashok Bhushan delivered a split verdict on who controls Delhi’s civil servants. Unable to agree, the two Judges referred the matter to the current 3-Judge Bench. 

In the previous hearing, Solicitor General Tushar Mehta submitted to the Bench that the dispute must be referred to a new 5-Judge Constitution Bench. He contended that 2018’s Constitution Bench failed to address three crucial aspects pertinent to the civil services dispute. Since the interpretation of 239AA involves a substantial Constitutional question, these remaining aspects must be considered by a Constitution Bench as per Article 145(3). 

Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the Delhi government, responded to Mr. Mehta’s argument today. Dr. Singhvi stated that the 2018 Constitution Bench interpreted Article 239AA comprehensively. A demand for a new Constitution Bench was effectively a delaying tactic by the Union. 

Delhi Gov: 2018 Constitution Bench Interpreted Art. 239AA Comprehensively

Dr. Singhvi argued that the 2018 Constitution Bench had comprehensively dealt with all aspects of Article 2239AA. The Union previously argued that the Balakrishnan Committee Report (1989), which formed the basis of Article 239AA, was ignored by the Constitution Bench. Dr. Singhvi read out parts of the 2018 Judgment to indicate that the Bench had not ignored the Report but had rejected its use as an interpretative aid in this case. 

Mr. Mehta previously stated that Article 239AA(3a) placed implicit limitations on the Delhi government’s federal powers. Dr. Singhvi once again read out the 2018 Judgment to show that the Bench had addressed these arguments. Mr. Mehta, in his brief  rejoinder, argued that the 2018 Bench had merely restated the text of Article 239AA(3a) but had not interpreted it. Dr. Singhvi retorted that the current Bench was not operating in virgin territory—it was being asked to refer a settled question to a Constitution Bench. 

SC Wants to Settle Dispute Swiftly, Delhi Says 5-Judge Reference Will Cause Delays

The Bench asked Dr. Singhvi if the Delhi government would be prejudiced by referring this dispute to a larger Bench. Dr. Singhvi replied that Article 145(3) did not require all questions of constitutional interpretation to be referred to a 5-Judge Bench. If that was the case, it would be impossible to handle the administration and pendency of the Supreme Court. 

Constitution Benches are an increasingly rare sight at the Supreme Court. Five separate smaller Benches must be disrupted for a 5-Judge Bench to hear one case. Dr. Singhvi pointed out that the Court’s crushing pendency problem caused by the pandemic requires pragmatic solutions. Unnecessarily convening Constitution Benches will only exacerbate the pendency problem. 

Dr. Singhvi further warned that referral to a Constitution Bench was part of the Union’s delaying tactic. He stated that the question before the current Bench involved nuanced, fact-specific interpretations of a decision already laid down by 2018’s Constitution Bench. He indicated that the Union’s motive was to initiate a review of the 2018 decision. If the matter is referred to another 5-Judge Bench, the Union is likely to ask for further reference to a 7-Judge Bench.

This dispute joins a slew of long-pending cases CJI Ramana appears inclined to decide in the months leading up to his retirement in August. In the past month, he has expressed an inclination to decide the Hijab Ban appeal, the electoral bonds challenge, the abrogation of Article 370 petitions, and the challenges to the constitutionality of sedition. The Bench, like the Delhi government, appeared keen to settle this dispute swiftly. 

CJI Ramana stated that if the 5-Judge Bench reference is allowed, the Court will not allow further adjournments and will complete hearings on the matter before the Court’s summer break, which begins on May 23rd, 2022. An agreeable Dr. Singhvi encouraged the Court to strictly regulate the time each counsel will be given to present their cases to ensure minimum disruption of other Benches.