SC refers issue of control of services in Delhi to constitution bench

The Supreme Court on Friday referred to a constitution bench the power tussle between the Centre and the Delhi government in connection with control over the administrative services.

A bench, headed by Chief Justice N.V. Ramana, said: “The limited issue that has been referred to this Bench, relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term ‘services’. The Constitution Bench of this court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List.”

The bench, also comprising Justices Surya Kant and Hima Kohli, said: “We therefore, deem it appropriate to refer the above limited question, for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.”

It directed the registry to place the papers of the present appeal as well as the connected writ petition before the Chief Justice on the administrative side for constituting a five-judge bench, and fixed the matter for consideration on May 11.

The Centre had moved an application seeking reference of the dispute to a constitution bench keeping in view Article 145(3), on the premise that the erstwhile constitution bench, while construing Article 239AA, has not elucidated on the true meaning and import of the expression “in so far as any such matter is applicable to Union Territories” as mentioned in subclause (a) clause (3) of Article 239AA.

In 2018, a constitution bench had ruled that police, land, and public order are the domain of the Centre, and the rest is under the Delhi government. Both have locked horns over control of several wings of administration in the capital.

Senior advocate Abhishek Manu Singhvi, representing the Delhi government, emphatically opposed the reference to a larger bench. He said Article 239AA (3) has been exhaustively interpreted by the erstwhile constitution bench, both in explicit as well as in implicit terms. Singhvi argued that the solitary unresolved issue could be conclusively decided by the present three judges’ bench, without any legal necessity to make a further reference to a constitution bench.

Singhvi also posited that the question of interpretation of Article 239AA (3), having been authoritatively settled by the earlier constitution bench, cannot be re-opened on the mere asking of the Centre, as the same would be contradictory to the doctrine of precedent.

The Centre filed the application seeking to refer the matter to a constitution bench for a holistic interpretation of Article 239AA.

The bench noted that from the reference application moved by the Union of India, as well as the rival contentions of the parties, the main bone of contention relates to the interpretation of the phrases: “in so far as any such matter is applicable to Union Territories” and “Subject to the provisions of this Constitution” as contained in Article 239AA(3)(a).

“On perusing the Constitution Bench judgment, it appears that all the issues except the one pending consideration before this bench, have been elaborately dealt with. Therefore, we do not deem it necessary to revisit the issues that already stand settled by the previous Constitution Bench,” said the top court.

On April 28, after a detailed hearing in the matter, the top court reserved its order on the Centre’s plea to refer its dispute with the Delhi government — on the transfer and posting of officers in the national capital — to a five-judge constitution bench.

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