Lt. Governor and NCT Delhi #4: SC Refers Civil Services Dispute to 5-Judge Bench

On May 6th 2022, Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli referred the dispute over control of Delhi’s civil services to a 5-Judge Constitution Bench.

Delhi’s Aam Aadmi Party-led government has tussled with the Union government for control over the National Capital Territory (NCT) ever since it first came to power in 2013. Article 239AA of the Constitution of India, 1950, regulates power-sharing between the two governments. Unlike other Union Territories, by virtue of Article 239AA, Delhi has an elected government and a sizable share in power over the national capital. 

In 2018, a 5-Judge Bench of the Supreme Court interpreted Article 239AA and confirmed Delhi’s special status as a Union Territory. The 2018 Bench found that the elected Delhi government had power over all items in the State List except police, land, and public order—these remaining items would be controlled by the Union. 

Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the Delhi government, previously argued that the 5-Judge Bench had comprehensively interpreted Article 239AA. Referring the provision to another 5-Judge Bench was unnecessary and would waste the Court’s time and resources. 

Solicitor General Tushar Mehta, appearing for the Union, sought the reference, stating that while the 2018 Bench had indeed interpreted every other part of Article 239AA, it had left the issue of who controls civil servants unresolved. 

Today, Ramana CJI referred the limited question of who should control Delhi’s civil services to the 5-Judge Bench. Dr. Singhvi had earlier called the Union’s reference plea a delaying tactic. Constitution benches disturb the regular functioning of the other Benches on which the Judges sit—it also takes the Court a while to constitute one. Ramana CJI assured the parties that this Constitution Bench would be constituted immediately. He stated that the case will be heard next on May 10th, 2022. 

While Constitution Benches were all but non-existent in the COVID-19 years, Ramana CJI, months from his August 2022 retirement, is currently deciding whether to form another constitution bench in another case involving the constitutionality of sedition.