The Supreme Court today agreed to consider setting up a five-judge constitution bench to urgently hear the AAP government’s appeals against the high court order holding the Lieutenant Governor as the administrative head of Delhi. The Arvind Kejriwal-led government has been seeking early adjudication of its appeals against the Delhi High Court verdict, after a two-judge bench of the apex court on February 15 referred them to Chief Justice J S Khehar for setting up of the larger bench. “We will post it and consider setting up the bench,” a bench comprising the Chief Justice and Justice D Y Chandrachud said, when senior advocate Gopal Subramanium, representing the Delhi government, mentioned the matters for early adjudication.
Subramanium said a two-judge bench had earlier referred the appeals to a constitution bench which is to be set up. The bench, which assured Subramanium that it would consider setting up the bench, also said, “…this is a very difficult and complicated problem. However, we will do it”. The Delhi government had on February 23 and April 17 approached the apex court for setting up of the constitution bench and once, the CJI had said it might be set up “possibly” after the summer vacation.
On February 15, a bench comprising Justices A K Sikri and R K Agrawal had referred a batch of pleas filed by the AAP government against the high court verdict, which had held that Delhi is not a state and that the Lieutenant Governor (LG) is its administrative head, to a Constitution Bench. The bench had said that important questions of law and the Constitution are involved in the matter and it should be adjudicated upon by a Constitution Bench. However, it did not frame questions to be deliberated upon by the Constitution Bench, to be set up by Chief Justice J S Khehar, in the matter and had asked the Centre and the Delhi government to argue their case before the larger bench.
The Delhi government had on February 2 told the apex court that it has exclusive executive powers in relation to matters falling within the purview of the Legislative Assembly and neither the Centre nor the President or the LG can encroach upon these. The apex court, however, had said it was correct that the elected government should have some powers but whether it will be as per the Delhi High Court verdict or as it is being perceived by the Delhi government, needed to be looked into.
The city government had told the bench that the Government of National Capital Territory of Delhi (GNCTD), except for public order, land and police, possesses exclusive powers in relation to all other entries in state and concurrent lists and neither the central government nor the President or the LG has any role or power with regard to all other matters. “We are seeking only the special status as contemplated under Article 239AA of the Constitution. It is a narrow issue but requires interpretation. We need to see what are the limitation and amplitude of the LG’s power under the Article 239AA,” it had said.
The Constitution has given a face and identity to a government in Delhi after inclusion of Article 239AA and the executive decisions taken and implemented by it cannot be reversed by the LG, it had contended. The government, through its counsel Gopal Subramanium, had said that the LG cannot exercise its power with respect to services as it does not fall under the purview of the Centre under the state list.
The AAP government had said that since the law rules out the LG’s discretion on all matters that fall within the purview of the elected government, there is no occasion for him to differ or have an opinion on these matters. The apex court had on December 14 observed that the Delhi government should have some powers otherwise it cannot function while hearing the appeals of the city government. On September 9, the apex court had refused to grant an interim stay on the verdict of the Delhi High Court of August 4 last year.