Public interest demands five-judge bench decide Delhi’s power over services: Centre

Larger public interest requires Delhi’s power under Article 239AA on matters concerning transfers and postings of officers in the Capital to be decided by a Constitution bench, said the Centre in a written note submitted to the Supreme Court which reserved orders on this issue on Thursday.

The note by the Centre, settled by Solicitor General Tushar Mehta and additional solicitor general (ASG) Sanjay Jain, said, “The issue involved herein is the edifice of Article 239AA and any consideration in its absence, would be incomplete and the same involves a substantial question of law, both by way of constitutional significance as well as larger public interest, and the same is not an ancillary or incidental issue, thus, meriting a reference to a Constitution Bench in terms of Article 145(3) of the Constitution.”

Mehta argued this point on Thursday, stating that a five-judge Constitution bench of the Supreme Court in July 2018 did not decide on whether Delhi or Centre will have competence to pass laws “in so far as any such matter is applicable to union territories” as occurring in Article 239AA(3).

The note said that as a consequence of this, when the matter of who can decide on “services” (which involves transfer, postings) under Entry 41 of List II of the Seventh Schedule to the Constitution came up before a two-judge bench in February 2019, they gave a split verdict, as one judge clearly held that this matter did not receive judicial determination by the Constitution bench.

A three-judge bench headed by Chief Justice of India (CJI) after hearing arguments by Delhi government and Centre had closed the matter for orders on whether the issue of Delhi Assembly’s competence to legislate on “services” required to be referred back to a five-judge bench. The Centre’s plea was opposed by Delhi which said that the attempt by Centre was not to refer but to review and reconsider the July 2018 verdict by a larger bench of 7 judges.

The note by the Centre added, “The significance of the issues involved in the present appeals is much greater, in view of the fact that Delhi is the national capital of our country and as such the model of governance of the NCT of Delhi will invariably require the Union government to play a central role, even if a Legislative Assembly or a Council of Ministers is introduced.”

The present matter, according to the note, involved the interpretation of Article 239AA, which is germane to the determination of the present issue on the determination of the legislative competence of the Delhi Assembly for entries contained in List II and List III of the Seventh Schedule.