New Delhi: Control of the Delhi Anti-Corruption Bureau? Check. Revising agricultural land rates? Check. Power to set up commissions of inquiry? Check. Control of civil services in the national capital? The jury is still out.
It’s closing on two years, but the Supreme Court is yet to settle a contentious matter with respect to the distribution of powers between the Delhi government and the central government as regards the administration of the national capital. This is the question of who has control over ‘services’ in Delhi, a union territory (UT).
The matter of distribution of powers in Delhi has been at the centre of a raging debate for years — since it is the national capital, the central government has retained rights over certain matters, such as public order.
Many other jurisdictional matters, like those mentioned above, have been taken up by the judiciary, and settled one way or the other.
For example, the Supreme Court ruled in February 2019 that the power to appoint a special public prosecutor will lie with the Delhi government, while also stating that the central government holds exclusive authority over the ACB.
The issue of services, however, divided the bench that delivered this order and the matter was referred to a three-judge bench of the Supreme Court.
Since then, the case has seen just three one-line orders, all deferring the matter to different dates.
At the core of the tussle between the Union and Delhi governments is Article 239 AA, which was effected through the Constitution (Sixty-ninth Amendment) Act 1991.
The provision granted Delhi special character as a union territory with a legislative assembly that has a lieutenant governor (L-G) — a representative of the central government — as its administrative head. This was also when Delhi was named the National Capital Region (NCT) of Delhi.
Meanwhile, Article 239 of the Constitution deals with the administration of union territories and stipulates that every UT is to be administered by the President acting, to such extent as he/she thinks fit, through an administrator to be appointed by him.
The legal issues surrounding the administrative powers of the L-G of Delhi in light of the special status of Delhi as a UT reached the Delhi High Court in 2015.
Earlier that year, the Aam Aadmi Party (AAP) had assumed office in Delhi on the back of a landslide victory. After facing a few run-ins with the lieutenant governor over jurisdictional issues — including on whether the Delhi government has the power to launch ACB inquiries against central employees posted in the capital — the Arvind Kejriwal administration moved court.
The moot question before the high court was — what are the powers of the elected government of Delhi vis-a-vis the lieutenant governor of Delhi?
On 4 August 2016, the high court ruled that the NCT of Delhi remains a UT despite Article 239AA, and that the lieutenant governor is its administrative head in accordance with Article 239.
The high court rejected the contention that the L-G is bound to act on the aid and advice of the council of ministers on the matters on which the Delhi government has power to make laws. It also ruled that ‘services’ fall outside the purview of the Delhi government. Services, it said, “is a matter in respect of which the Lt Governor is required to act in his discretion”.
‘A class apart’
Appeals were filed against this decision in the Supreme Court, which referred certain issues to a Constitution bench.
On 4 July 2018, a five-judge Constitution bench ruled that Delhi is not a state, and that “the status of NCT of Delhi is sui generis, a class apart, and the status of the lieutenant governor 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”.
As the L-G is the administrator of Delhi, the bench said, he/she has to act on the aid and advice of the council of ministers on all matters except land, public order and police.
The court held that Delhi is not a state, but cited its special character and the fact that it has a legislative assembly to state that the executive powers of the Delhi government will extend to all subjects on which the assembly has powers to make laws.
The proviso to Article 239AA(4) allows the L-G to reserve “any matter” for consideration of the President where the L-G has a difference of opinion with the council of ministers. The bench now clarified that this power can only be exercised in exceptional circumstances.
“The lieutenant governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President,” the bench added.
ACB with Centre, public prosecutors with Delhi govt
After laying down the broader principles, the constitutional bench asked a two-judge bench to look into the individual and specific issues raised in the appeals, while keeping these principles in mind.
A bench comprising Justice A.K. Sikri and Justice Ashok Bhushan subsequently looked into different areas of conflict between the central and the Delhi governments. These included the power of appointments and transfer of civil servants, control of the ACB, setting up commissions of inquiry, and revisions of circle rates of agricultural land.
The two judges agreed on most points. For instance, they ruled that the power to appoint a special public prosecutor will lie with the NCT government. It added that the L-G, while appointing the special public prosecutor, is to act on the aid and advice of the council of ministers.
On the issue of revision of minimum rates of agricultural land, it said the Delhi government can take a decision on circle rates. However, it added that in case of a difference of opinion, the L-G can refer the matter to the President.
The bench also ruled that the central government holds exclusive authority over the ACB and the power to set up commissions of inquiry.
The split verdict
This bench, however, delivered a split verdict on the issue of ‘services’.
Delhi does not have a Public Service Commission. Since it is a UT, the public servants assigned to Delhi are either those who belong to the All India Services such as Indian Administrative Service or Indian Police Service or those who are recruited for UTs via DANICS or the Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu, and Dadra & Nagar Haveli Civil Service.
So, both the central and the Delhi governments agreed that the former could determine which officers are to be posted in Delhi. The bone of contention was about the “mobility” of officers, that is, their posting within Delhi, from one place or department to another.
The question, therefore, was whether such posting orders are to be passed by the President of India (or for that matter the Lieutenant Governor) or if the Delhi government is competent to exercise this power once officers are assigned to it.
Justice Sikri was of the view that transfers and postings of officers of and above the rank of joint secretary should be under the purview of the Lieutenant Governor, while others should be under the Delhi government. However, Justice Bhushan was of the view that this was outside the purview of the Delhi government.
‘Should be decided sooner than later’
In view of the split verdict, the matter was referred to a three-judge bench, which has only passed three single-line orders in two years, according to the Supreme Court website.
The first order, passed on 10 April 2019, said, “At the request of learned counsel appearing for the appellant, list the matter after two weeks.”
The second order, passed on 29 January 2020, directed the matter to be listed after two weeks at the request of the central government’s lawyers.
The case was listed again on 18 February last year. This order said, “At the request of Mr K.V. Vishwanathan, learned senior counsel appearing for the appellant (Delhi government), list the matter after the ensuing Holi Holidays, 2020.”
Highlighting the importance of the issues raised in the case, Advocate Rahul Mehra, standing counsel for the Delhi government, said, “Services is the critical aspect, because the Delhi government can really perform in a much better manner if the officers obviously are subordinate to the executive. Therefore, to that extent, everything is hampered if they are not reporting to the chief minister and the cabinet.”
Mehra, however, blamed Covid for the delay, and added: “We are hoping that the Supreme Court will take it up because it is a very serious issue, and we do want that this should be addressed sooner rather than later.”