The Central Government has filed a Review Petition challenging the Judgement pronounced by the Constitution Bench consisting of Chief Justice DY Chanrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha on May 11, 2023. The Supreme Court had in its judgement held that the legislative and executive powers with respect to the terms of services in Delhi NCTD lie with the Delhi government.

In the Review Petition filed under Article 137 of the Constitution by C.P. Vinod Kumar, Under Secretary to the Central Ministry of Home Affairs, the Centre has sought an open/oral hearing, in the interest of natural justice. The Review Petition states that "The Court has itself held that Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a). Despite holding the same, the said judgment ignores the clear exercise of power of the Parliament over the subject matter".

The Union of India has further stated that while holding that the Parliamentary legislation and/or Constitutional provision can curtail the powers of the Executive and Legislative power of NCTD, the said judgment wholly ignores the position emanating from Part XIV of the Constitution. Relying on these aspects the Union of India states that the judgment has inherent irreconcilable contradictions.

The Central Government further contends that the "judgment dated 11.05.2023 neither deals with the conflict between the 2018 Constitution Bench Judgment and the need for reference to a larger bench and even more pertinently, considers the issue of services from any asymmetric lens of access to Entry 41 of List II; as opposed to seeing the same from the lens of balancing Entry 41 of List II with Entry 70 of List I."

It is also added in the Review Petition that the judgement upset the basic tenets of the constitutional idea of Federalism; inasmuch as the NCT of Delhi has been equated to a State, by granting it legislative and executive authority akin to a State, leaving the Parliament with recourse only to its plenary powers to legislate for a territory, that is its own and not an independent federal unit; as though it were to legislate for a State.

The Union of India has relied upon the following grounds in their Review Petition seeking to set aside the Judgement of the Constitution Bench:

A. Judgment doesn't deal with the outcome of IA (D) No. 190006/2022, placed before the Constitution Bench: The Government says that Court was apprised by way of the said Application, that the judgment rendered by the Constitution Bench in 2018, was in conflict with the decision in NDMC v. State of Punjab (supra) and that “unless the anomalies as pointed out above, are harmonized by a Bench of a competent strength, the issue cannot be conclusively adjudicated.” Therefore, the Judgment d suffers from an error apparent on the face of the record inasmuch as neither the main judgment nor the accompanying Record of Proceedings deal with the same.

B. The decision in NDMC v. State of Punjab (supra) inter alia, opines: Despite the insertion of Article 239AA, the Union Territory of NCT of Delhi is not elevated to the status of a State and Under Chapter I of Part XI of the Constitution, so far as Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament — or a legislative body created by it. Also, the legislature of a Union Territory of NCT of Delhi is a Territory governed by Clause (4) of Article 246.

C. The judgment under review itself recognizes that the 2018 judgment went beyond the scope and purview of the Constitution: The Government submits that until such transgression is reconciled, any adjudication made by this Court attempting to “divide legislative power between the Parliament and the Legislative Assembly of NCT of Delhi”, is an exercise contrary to the dictum in NDMC v. State of Punjab.

The Central Government also submits that the Judgement wholly ignores that Article 239AA read with the Government of National Capital Territory of Delhi Act, 1991, Delhi continues to be “Union Territory”. They further state that "even if the subjective complexity of such nonconsideration of the reference application is taken away; the rendering of a decision on the reference by the Three Judges, without considering the Application for Reference to a Larger Bench-which in its cause title itself states that it is for the consideration of a Constitution Bench, by itself tantamounts to an error apparent on the face of the record, meriting review of the judgment dated 11.05.2023."

The Government of India highlights the following errors apparent on record in the impugned Judgement:

A. "Error apparent as to Delhi being accorded status of a full-fledged state";

B. "On the face of the record regarding co-extensive executive power";

C. "Consideration of the issue of services for a union territory as an issue of access to Entry 41 of list ii without considering the arguments in relation to Entry 70 of list i is an error apparent on the face of the record";

D. "The rendition of constitutional phrases as otiose, by judicial interpretation is an apparent record forming part of the record";

E. "Attribution of an enlarging meaning to an otherwise grammatically restrictive phrase “subject to provisions of the constitution” is an error apparent on the face of the record.";

F. "Non-consideration of the Lieutenant Governor and the President as democratic representatives- who represent the will of the nation, is an error apparent on the face of the record" and

G. "Error apparent on the face of the record as to the decision on services falling under the powers on the GNCTD".

Cause Title: Union of India v. Govt. of NCT of Delhi

Delhi-Centre RowArticle 239AAArvind KejriwalMinistry of Home Affairs

Ramey Krishan Rana