Context
- The Supreme Court in a recent judgment held that the Delhi Government has legislative and executive powers over administrative services in the National Capital, excluding matters relating to public order, police and land.
- It also reiterated its stand The Lieutenant Governor shall be bound by the decision of Delhi government over services, apart from public order, police and land.
- In this context, this edition of the Burning Issue will expand this judgment in detail and the overall background of the issue.
Key Highlights of the Judgment
(1) Disagreement with Justice Bhushan’s Judgment
- The Supreme Court stated that it does not agree with Justice Ashok Bhushan’s judgment that the Delhi government has no power over services.
(2) Article 239A and Legislative Assembly for NCT
- The Supreme Court highlighted that Article 239A establishes a legislative assembly for the National Capital Territory of Delhi.
- The members of the legislative assembly are elected by the electorate of Delhi, and the interpretation of Article 239A should support representative democracy.
(3) Limits of Power
- The court clarified that the control over services does not extend to areas related to public order, police, and land.
- “The ideal conclusion would be that GNCTD ought to have control over services, subject to exclusion of subjects which are out of its legislative domain related to public order, police and land. However, legislative and executive power over services such as Indian Administrative Services or Joint Cadre Services which are relevant for the implementation of policies and the vision of NCTD in terms of day-to-day administration of the region, SHALL LIE WITH THE GNCTD”
– Supreme Court of India
(4) Delhi Government Represents Representative Form of Government
- According to the Supreme Court, the Delhi government, like other states, represents the representative form of government.
- Any expansion of the central government’s power would contradict the Constitutional scheme.
(5) Impact on Ministers’ Control
- The court noted that if administrative services are excluded from the legislative and executive domains, ministers would be excluded from controlling civil servants responsible for implementing executive decisions.
(6) Executive Power and Existing Law
- The court clarified that the executive power of the state is subject to existing union laws.
(7) Principle of Collective Responsibility
- The Supreme Court emphasized that if officers do not report to ministers or fail to follow their instructions, the principle of collective responsibility will be affected.
(8) Triple Chain of Accountability
- “If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability will be redundant. If the officers stop reporting to the Ministers or do not abide by their directions, the principle of collective responsibility is affected” — SC
- Chief Justice of India DY Chandrachud highlighted that denying democratically elected governments the power to control officers would render the principle of the triple chain of accountability redundant.
Background: Special Status for New Delhi-Article 239AA
- Article 239AA of the Constitution of India 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/territory (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.
The Centre-State Dispute
- Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991. Since 1991, Delhi had been made a UT with an assembly with “limited legislative powers”.
- Cordial relations have prevailed between the Central and Delhi governments since 1996 and all differences have been resolved through discussions and also because of the fact that both Centre and State had same political party rule.
- However, since 2015, delhi has been witnessing power struggle as Centre and State are under rule of different political parties.
- The disagreement arose when then L-G Najeeb Jung appointed officers as the acting chief secretary. CM Kejriwal objected to this action, deeming it unconstitutional.
- In May 2015, the Ministry of Home Affairs issued a notification stating that the Department of Services, responsible for the transfer and posting of Delhi government officers, fell under the jurisdiction of the Centre through the L-G.
- The Delhi government challenged this decision in the Delhi High Court, but the court ruled against them. Subsequently, the state approached the Supreme Court, which determined that the L-G must follow the advice of the cabinet of ministers.
- Despite the resolution of the previous issue, the matter of services remained unresolved. It was later referred to a two-judge bench of the Supreme Court, which reached a split verdict in 2019.
- A three-judge bench then forwarded the case to a five-judge bench in 2022 for further consideration.
Lt. Governor at the Centre stage
- The Article 239AA while conferring on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order – contained one sore point.
- It said that in case of a difference between the L-G and the council of ministers, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.
- It is this issue that the constitution bench of the Supreme Court resolved in 2018, when it said that the government does not have to seek the concurrence of the L-G on its decisions.
- Any differences between them should be resolved to keep in view the constitutional primacy of representative government and co-operative federalism. It is after this judgement, the Centre brought up NCT of Delhi (Amendment) Bill, 2021 Bill
NCT of Delhi (Amendment) Bill, 2021
- Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
- This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
- The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.
What was the 2018 Supreme Court Verdict?
- In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
- It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
- The L-G was bound by the aid and advice if the council of ministers, it had said.
- The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
- It had also pointed out that the elected government must keep in mind that Delhi is not a state.
Is the L-G left with no discretionary power?
- The L-G does have the power to refer any matter, over which there is a disagreement with the elected government, to the President under Article 239AA (4).
- The Delhi Law Secretary had in 2019 written in an internal memo that the elected government cannot use the SC verdict to keep the L-G in the dark about its decisions.
- But the SC had also categorically pointed out that the L-G should not act in a mechanical manner without due application of mind so as to refer every decision of the CM to the President.
Way forward
Delhi’s governance needs a new re-imagination. Learning from international examples, and conceptualizing a new structure, can be a way forward.
Delhi cannot be unitary
- What distinguishes Delhi from other federal districts is sheer size. Its population would subsume the populations of the above-mentioned cities.
- Its closest peer is Mexico City. In a significant development, Mexico City was upgraded from federal district to the country’s 32nd state in 2016.
- This was driven by the desire to provide more responsive government for residents.
Decentralisation of decision-making is important
- There are alternative ways in which both the central government as well as state authorities can partake jointly in the management of the city.
- This might be achieved by a two-tier metropolitan authority.
Control over police
- Control over policing has been a major point of contention in Delhi.
- With the lone exception of Abuja, in other federal districts, the local governments have jurisdiction over at least some aspects of policing.
Conclusion
- The apex court should intervene now and advantage of the current controversy to permanently settle the jurisdiction. India will only prosper if all of its states do as well.
- The solid foundations of federalism and democracy on which our country has thrived will begin to crumble if there is strife between the Centre and the states.
