New Delhi: The central government has sought a review of a recent Constitution Bench judgment of the Supreme Court, which declared that the elected government of Delhi has both legislative and executive competence over officials serving in the capital, even if they are appointed by the central government. have been allotted.
Filed by an under-secretary of the Union Home Ministry, the review petition states that the May 11 judgment suffers from “manifest errors on the face of the record”. It was filed on Friday, the same day the central government brought in an ordinance that virtually nullifies the Constitution Bench verdict on the division of powers between the Lieutenant Governor (LG) of Delhi and the elected government.
“Grievous injustice will be done if the application for oral hearing of the review petition is not allowed,” submitted the plea, decided by Solicitor General Tushar Mehta.
The Constitution Bench’s verdict, the review petition states, accords the status of a state to the NCT of Delhi, without calling it a state. It states that this is contrary to the decision of a nine-judge bench of the Supreme Court. The 1997 judgment in NDMC v. State of Punjab held that despite 69th The amendment introducing a Legislative Assembly for Delhi, remains the Union Territory of NCT of Delhi.
Further, the position of the LG, as head of the executive of a Union Territory under Article 239, has been largely equated with the Governor of the State, being a representative of the President, thereby defeating the purpose of Part VIII of the Constitution. was thwarted. starring.
69th The amendment introduced Article 239AA in the Constitution which gave special status to Delhi, a union territory with a legislature, with the LG – the representative of the central government – as the administrative head.
The May 11 decision, the central government said, gives legislative competence to the Legislative Assembly of Delhi over all entries in List II and List III, except in three areas – public order, police and land. This declaration is made irrespective of whether any entry is otherwise applicable to the Union Territory.
Therefore, the central government argued, the judgment is “in the teeth” of the 1997 judgment. List II lays down the subjects on which the states have exclusive power to legislate, while List III defines the areas on which both the Center and the states can legislate. Article 239AA granted special status to Delhi, a Union Territory with a Legislative Assembly, with the LG as its administrative head.
The review states that the judgment “suffers from a fundamental fallacy,” which ignores the fact that the working and functioning of the Delhi government “affects the entire country”. It ignores the fact that the President’s nominee, who is the LG or the central government, are both manifestations of a democracy in comparison to the elected government in Delhi “demonstrating the conscience of the whole country”.
“It is submitted that the Central Government is administered by the people of the entire country, who have a vital and vital interest in the governance of the capital of the entire country,” the review said.
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‘No separate cadre for UT’
The judgment is also wrong because it does not deal with the contention of the Central Government that the Constitution never envisaged a separate service cadre for the Union Territories. “It is for the simple reason that Union Territories are mere extensions of the Union of India and persons working in Union Territories are holding ‘services and posts in connection with the affairs of the Union’,” the central government said.
In other words, the constitutional scheme does not envisage a separate “Service” of the Union Territory and it envisages only Union Services or State Services. “Civil servants working in the administration of Union Territories (which are carried out under the overarching control of the Union) belong to the Union Services under the Central Government,” the plea said.
It said the judgment is self-contradictory. On the one hand, it reiterates that the LG is the executive head of Delhi, Delhi is a Union Territory and Parliament is the principal legislative body with respect to the NCT of Delhi.
Nevertheless, it curtails the powers of the LG as the administrator of the Union Territory of Delhi. After the decision, the authority of the Lieutenant Governor has been limited only to public order, law and land. It aims to eliminate the role of the Lieutenant Governor as an administrator, the central government has submitted.
In effect, it takes away the authority of the President to administer the Union Territory and virtually renders Article 239 of the Constitution – which deals with the administration of Union Territories – Obsolete (obsolete).
The review petition also blames the SC judgment for declaring that only the elected government in Delhi will have executive power over “services”, while the LG has no powers.
It cited the judgment that the court itself has opined that both the Parliament and the Legislative Assembly of Delhi have legislative competence vis-à-vis the functioning of Delhi. And, when both governments have concurrent legislative power, then both governments have concurrent executive power.
“If the executive authority for the GNCTD is co-extensive with the legislative authority of the Legislative Assembly for the NCT of Delhi; The same must be true of the executive authority of the Union Government; Once it is decided that List II (State List) is also a Concurrent List for NCT of Delhi,” submitted petition,
Furthermore, the decision, the central government argued, has the effect of destroying the “basic structure” of the Constitution. It limits the powers of the Union to only three areas – public order, law and land – with reference to Delhi, despite its overarching legislative powers extending to the whole of List II and List III.
‘LG bound to follow the advice of the Council of Ministers’
The review petition has also raised concerns over the 2018 Constitution Bench judgement, which held that the LG is bound by the aid and advice of the Council of Ministers. review petition of the Central Government against He The decision is still pending.
Certain observations in the 2018 judgment, if not reviewed, would defeat the intention of the framers of the Constitution to divide India’s territories into states and union territories. said in the review petition.
Implementation of the 2018 judgment would “inevitably upset the delicate balance contemplated” in the Constitution, which retains the Union of India’s broad control over matters relating to Delhi. This control is in spite of the provision to form a Legislative Assembly. By subjecting the office of the Lieutenant Governor 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 the erosion of the constitutional office of the Lieutenant Governor, which under Article 239 is the representative of the President of India. acts as the administrator of the UT as,
Other than this, petition Added, the 2018 judgment was contrary to the 1997 judgment in NDMC vs State of Punjab. Therefore, the bench which delivered the May 11 judgment should have referred the dispute governing services in Delhi to a larger bench, it said,
It is submitted that the judgment does not deal with a dispute between two judges and is, therefore, even more relevant now in the context of a larger bench.
(Edited by Smriti Sinha)
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