On the final and fifth day of arguments, prior to the SC reserving its verdict on the dispute between the Centre and Delhi government over control on ‘services’, solicitor general Tushar Mehta told a bench of Chief Justice DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha that the issue is crucial for governance of the national capital and so that “history may not remember us as having handed over the capital of our nation to complete anarchy”.
He also requested the court to consider the Centre’s plea for reference of the dispute to a “suitably larger bench”, citing a 9-judge bench’s decision relating to Centre-Delhi dispute in the NDMC case. This drew strong objections from senior advocate AM Singhvi, who argued on behalf of the Delhi government. Even the bench did not seem impressed by what it called the new phenomenon of filing written submissions, then additional ones, followed by more written submissions. “Everyday we get surprised with new written submissions,” the judges said even as they allowed the SG to file fresh submissions on the matter being referred to a larger bench.
The CJI did not appreciate the SG’s late raising of a plea for reference to larger bench. “You did not argue it at all during the day-to-day hearing. It would not be proper to raise the reference issue right now,” he said.
Singhvi had strongly objected to Mehta’s plea for a referral to a bigger bench. “This is an ambush argument to delay adjudication of the vexed issue. It is also unfortunate that the plea for reference to larger bench was raised at the fag-end of the five-day long argument, even though not even a whisper was made during the two and half-day long arguments advanced on behalf of the Union government,” he said.
He said, “The fundamental issue before the Constitution bench is the question of federalism and sharing of power between the Union and other constituents. Can the elected government and legislature of Delhi be not trusted with its legitimate exercise of legislative and executive powers over services?”
Referring to Article 239AA, insertion of which in 1991 created an assembly while a corresponding Act gave birth to separate Delhi government, the CJI-led bench said, “Article 239AA creates a legal fiction that Parliament can enact laws on all subjects of List-II (State List in Seventh Schedule) over which the Delhi Assembly can enact laws. Hence, Parliament has the power over the State List as far as Delhi is concerned.”
Singhvi conceded and said, “Parliament can surely pass laws to trump the laws passed by Delhi Assembly. I am saying so. But till Parliament passes such a law, should the Delhi government and assembly be debarred from making law on the subjects in the State List?” He said it would be the death knell for federalism, if an assembly and an elected government were barred from exercising legislative and executive powers over the state list, which in any case does not include public order, police and land for Delhi.
“The Union is seeking to obliterate the distinction between ‘Parliament’ and ‘Central Government’. Under the present scheme, the Legislative Assembly of NCT of Delhi has full play in any unoccupied field of an entry in List II. Acceptance of the Union’s arguments and upholding of the impugned notification would effectively endow the Union Government with an executive override over the Legislative Assembly of the NCT of Delhi. This is clearly opposed to the fundamental scheme of Article 239AA,” he said.