New Delhi: The central government has sought review of the Supreme Court’s recent constitution bench verdict which declared that the elected government of Delhi has both legislative as well as executive competence over officers serving in the Capital, even though they have been allocated by the central government.
Filed by an under secretary of the Union Ministry of Home Affairs, the review petition said that the 11 May judgment suffers from “errors apparent on the face of the record”. It was filed Friday, the same day that the central government brought an ordinance that virtually nullifies the constitution bench verdict on the division of powers between the Lieutenant Governor (L-G) of Delhi and the elected government.
“A grave injustice would ensue if the application for oral hearing of the review petition is not allowed,” submitted the plea, settled by solicitor general Tushar Mehta.
The constitution bench verdict, the review petition said, elevates the NCT of Delhi to the status of a state, without calling it a state. This, it added, is contrary to a decision by a nine-judge bench of the Supreme Court. Delivered in 1997, the judgment in the case of NDMC vs state of Punjab had held that notwithstanding the 69th amendment introducing a legislative assembly for Delhi, the NCT of Delhi remains a Union Territory.
Moreover, the status of the L-G as the head of the executive of a Union Territory under Article 239, being a delegate of the President has substantially been equated with a Governor of a state, thereby defeating the purpose for which Part VIII of the Constitution was enacted.
The 69th amendment had introduced Article 239AA in the Constitution that granted unique status to Delhi, a Union Territory with a legislative assembly, having the L-G — the central government’s representative — as the administrative head.
The 11 May verdict, the central government said, gives legislative competence to Delhi’s legislative assembly over all entries in List II and List III, except in three areas — public order, police and land. This declaration has been done irrespective of whether an entry is otherwise applicable to a Union Territory or not.
Hence, the central government argued, the ruling is in “teeth” of the 1997 verdict. List II spells out subjects on which a state has exclusive right to legislate, while List III defines areas on which both Centre and state can legislate. Article 239AA granted the unique status to Delhi, a Union Territory with a legislative assembly, having LG as its administrative head.
The review added that the judgment “suffers from a fundamental fallacy,” which ignores that the working and functioning of the Delhi government “affects the nation as a whole”. It ignores that the nominee of the President, which the L-G or the central government, both are also manifestations of democracy, “exhibiting conscience of the country as a whole” when compared to the elected government of Delhi.
“It is submitted that the central government is administered by the people of the entire country who have a vital and preponderant interest in the governance of the capital of the entire country,” the review maintained.
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‘No separate cadre for UTs’
The judgment is also erroneous because it does not deal with the central government’s argument that the Constitution never contemplated a separate service cadre for Union Territories. “This is for the simple reason that a Union Territory is a mere extension of the Union of India and persons working in Union Territories are working in ‘services and posts in connection with the affairs of the Union’,” the central government said.
In other words, the constitutional scheme does not envision a separate “service” of the Union Territory and it only envisages a Union Services or state services. “The civil servants functioning in the administration of the Union Territories (which is carried out under the overarching control of the Union) belong to the Union Services under the central government,” the petition said.
It said the judgment is self-contradictory. On one hand, it reiterates that the L-G is the executive head of Delhi, Delhi is a Union Territory and Parliament is the predominant legislative body in respect of NCT of Delhi.
Yet, it dilutes the powers of the L-G as administrator of the Union Territory of Delhi. After the judgment, the L-G’s authority has been confined only to public order, law and land. This purports to extinguish the L-G’s role as an administrator, the central government has submitted.
This, in effect, takes away the authority of the President to administer a Union Territory and virtually renders Article 239 of the Constitution — which deals with administration of a Union Territory — obtiose (obsolete).
The review petition also faults the SC verdict for declaring that only the elected government in Delhi would have executive power over “services,” whereas the L-G does not have any.
It quoted from the judgment to say that the court itself has opined that both Parliament and legislative assembly of Delhi have legislative competency vis-à-vis the functioning of Delhi. And, when the two governments have concurrent legislative authority, then both governments would have concurrent executive authority.
“If the executive authority for the GNCTD is co-extensive to the legislative authority of the legislative assembly for the NCT of Delhi; the same must also be true for the executive authority of the Union Government; once it has been held that List II (state list) is also a Concurrent List for the NCT of Delhi,” submitted the petition.
Further, the judgment, the central government contended, has the effect of destroying the “basic structure” of the Constitution. It confines the powers of the Union to only three areas — public order, law and land — in the context of Delhi, notwithstanding its over-riding legislative powers that extend to the entire List II and List III.
‘L-G bound by advice of council of ministers’
The review petition has also raised concerns over a 2018 Constitution Bench judgment that held that the L-G is bound by the aid and advice of the council of ministers. The central government’s review petition against that judgment is still pending.
Certain observations in the 2018 judgment, if not reviewed, will defeat the intent of constitution makers in dividing the territories of India into states and Union Territories, said the review petition.
The implementation of the 2018 judgment would “inevitably disturb the delicate balance contemplated” in the Constitution, which retains the overarching control of the Union of India in matters pertaining to Delhi. This control is notwithstanding the provision for creating a legislative assembly. By subjecting the LG’s office to the aid and advice of the council of ministers on all entries in List II and List III of the Seventh Schedule, the 2018 judgment has resulted in eroding the constitutional office of the LG, who by virtue of the power under Article 239 acts as an administrator of UT as a delegate of the President of India, it said.
Moreover, the petition added, the 2018 judgment was in conflict to the 1997 judgment in the NDMC vs state of Punjab case. Hence, the bench that delivered the 11 May verdict should have referred the dispute over who controls services in Delhi to a larger bench, it said.
The judgment, it said, does not deal with the conflict between the two judges and, therefore, reference to a large bench is even more pertinent now.
(Edited by Smriti Sinha)
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