The Supreme Court on Thursday sought the Centre’s response on a petition filed by the Aam Aadmi Party government challenging the sweeping amendments carried out by the Centre last year making the “government” in the national capital to mean Lieutenant Governor, whose concurrence was made mandatory on all crucial decisions to be taken by the Delhi government.

Issuing a notice on the Delhi government’s plea challenging the Government of National Capital Territory of Delhi (Amendment) Act, 2021, a bench headed by Chief Justice of India (CJI) NV Ramana directed the Centre to file its response in four weeks. The Court also agreed to list a pending petition filed by Delhi government to decide whether Centre or Delhi has the power to appoint and transfer officers in the Delhi government. A two-judge bench of the top court had delivered a split verdict on this issue in February 2019 and the same now required consideration by a three-judge bench.

Besides CJI, the bench comprising justices AS Bopanna and Hima Kohli posted the matter for April 6 before a three-judge bench, indicating that the two petitions would be taken together.

Presenting the twin petitions for the Court’s consideration, senior advocate Abhishek Manu Singhvi said, “Something is bizarre with this new Act that is under challenge. In the national capital territory there is a democratically elected government. But if I have to appoint a secretary, approval of lieutenant governor (L-G) is needed. This Court has held in a Constitution bench decision of 2018 that except on land, law and order and police, Delhi government has jurisdiction to decide on all issues. If I cannot appoint or transfer officers, governance is zero.”

The Government of National Capital Territory of Delhi (Amendment) Act, 2021 and the accompanying amendments to the Transaction of Business of the Government of National Capital Territory of Delhi (GNCTD) Rules, 1993 came into effect from March 28, 2021 by which crucial provisions of the Act stood amended.

By the new law, the term ‘government’ as referred to in any law passed by Delhi Assembly was amended to mean “Lieutenant Governor” (by adding a new clause (3) to Section 21 of the GNCTD Act) and opinion of L-G was made mandatory for executing any decision of the Minister or Council of Ministers on certain matters under any law in force (by adding a proviso to Section 44(2) of the Act). As host of other amendments were also introduced in the Rules.

The AAP Government claimed that the amendment to Section 44 gave LG executive power through the back door. Article 239AA of the Constitution recognizes Delhi as the National Capital Territory having L-G and an Assembly allowed to legislate on all other matters other than three excluded subjects – land, law and order and police, where Centre alone can legislate.

The petition said that the overriding powers given to L-G is unconstitutional as it has “disenfranchised” the people of Delhi by taking away power from their elected representatives which strikes at the root of representative democracy and violates the law-making power of Delhi Assembly recognized under the Constitution.

On the challenge to the amendments in the 1993 Rules, the petition filed through advocate Shadan Farasat said, “Introduction of a deeming provision in Rule 49 of 1993 Rules now allows for any and every matter to be referred by the LG to the Central Government.” It further stated that the effect of these amendments vested direct executive authority in the Secretaries of the Delhi government, allowing them to perform without reference to and even in derogation of the orders of the concerned Ministers or Council of Ministers. This, according to the AAP government, amounted to an impermissible encroachment on the “core legislative functions” of the Delhi Assembly.

“The impugned provisions as amended by the Amendment Act have in effect disenfranchised the people of Delhi, and violated their political rights under the Constitution in as much as the Amendment Act takes away the power from their elected representatives and gives it to an unelected official, being the LG,” the petition stated.

Additional solicitor general (ASG) Sanjay Jain appeared for the Centre and accepted notice on behalf of the Centre. He told the Court that as regards the pending issue on jurisdiction over transfer and appointment of officers in Delhi, the matter required to be considered by a constitution bench of five judges and should not go to a three-judge bench.

“The Centre would like to articulate on why the matter needs to be referred to constitution bench. He referred to the 2018 decision of the Supreme Court in Government of NCT of Delhi v Union of India which interpreted Article 239AA. According to him, even the aspect of “services” under Entry 41 being an aspect of Article 239AA should also be examined by five judges.”

The bench told Jain, “We do not think this matter requires to be considered by constitution bench. Three of us can resolve the case. If you show us why it has to go to constitution bench, we will see then. For the present, the three-judge bench will hear the matter.”

The 2018 decision was even referred to by AAP government in its fresh petition. It quoted from the judgment which said, “The exercise of establishing a democratic and representative form of government for NCT of Delhi… would turn futile if the government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi legislative assembly has power to legislate for NCT of Delhi.” The petition said that this decision stressed on harmonious working between the L-G and Delhi government and held that the power of L-G to recommend an issue to the President cannot be to obstruct the stream of governance.

The petition argued that Article 239AA has not been amended as the 2021 Act does not remove the basis of the 2018 judgment. It required the Court to clarify that even under the new amendments L-G should act only on the aid and advice of the Council of Ministers while exercising any power as “government” pursuant to a law passed by the Assembly.

(With inputs from agencies)