The Supreme Court has referred to a Constitution Bench the battle between the Centre and the Delhi government for control over bureaucrats in the Capital.

What is a Constitution Bench?

• The constitution bench is the name given to the benches of the Supreme Court of India.
• The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

Constitution benches are set up when the following circumstances exist:

1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
2. President of India seeking SC’s opinion: When President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.

• The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
• Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:

1. K. Gopalan v. State of Madras (Preventive detention)
2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Why in news now?

• A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
• The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
• On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.

What is the 2018 Judgment all about?

• By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
• It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
• In case of a difference of opinion, the L-G can refer it to the President for a decision.
• The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
• The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.

When power tussle began

• Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
• It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
• The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.

Issue over control of administrative services

• The judges, however, differed on who should have control over administrative services.
• This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
• The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
• The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.

Back2Basics: Article 239AA

• Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
• It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
• That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
• As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
• For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

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