On July 4, a five-judge constitutional bench of the Supreme Court delivered three independent judgments, bringing finality to the interpretation of Article 239AA of the Constitution. The genesis for seeking an interpretation of the constitutional amendment emanated from a two-judge bench of the Supreme Court while it was hearing appeals questioning the fallout of the 2016 judgment of the Delhi High Court. The bench felt that the appeals involved substantial questions related to Article 239 AA and a constitutional bench should first interpret those matters; only then could the individual appeals be decided by appropriate benches of the apex court.
The three concurring judgments have nowhere alluded to specific areas of conflict, disagreement or doubts raised in the pending appeals. Drawing any inference on the basis of the judgments of a constitutional bench, which includes contentious issues relating to services (loosely called postings and transfers of officers), and control over the anti-corruption branch, would be premature.
It is interesting that all three judgments have referred in extensive detail to the Transaction of Business Rules (TBR), 1993, issued by the President of India (in this case the ministry of home affairs), setting out the processes to be followed by the chief minister, the council of ministers and officers while transacting government business. Nowhere in the three judgments has the jurisdiction of the central government to exercise this authority been questioned.
On the vexed question of “services”, the judgment of Justice Y Chandrachud makes the most direct reference to rule 46 of the TBR, 1993, under which the Lieutenant Governor (LG) has been assigned powers and functions for regulating the conditions of service of officers, starting with a consultation with Union Public Service Commission.
The 1993 rules specifically refer to the responsibilities of the chief secretary, home secretary and secretary (lands). A subsequent TBR of 2015, which requires officers’ postings to be done with the approval of the LG, has not been mentioned.