New Delhi: The Central government’s involvement in the administration of Delhi is limited by the Constitution and any further expansion would be contrary to the constitutional scheme of governance, the Supreme Court noted Thursday in a judgment that declared that the elected government of Delhi has administrative and legislative control over “services”.
This means the Arvind Kejriwal-led government can now exercise its executive as well as legislative authority over the officers of various services, including those who are not recruited by it and have been allocated to Delhi by the Union of India.
The power would include the authority to transfer and post officers within the government, frame service rules for them or undertake any other measure for governance purposes, including passing a law in the legislative assembly.
This control would, however, not extend to services related to police, public order and land. These three services shall remain under the administrative control of the Lieutenant Governor (L-G), who is the representative of the Centre.
The judgment delivered by a five-judge bench led by Chief Justice of India D.Y. Chandrachud, said the administrative control of the elected government shall extend to Indian Administrative Services (IAS) or Joint Cadre Services, which are relevant for the implementation of its “policies” and “vision” in terms of day-to-day administration of the national capital.
It also reiterated the SC’s 2018 ruling, which had held that the L-G was bound by the aid and advice of the cabinet of ministers in areas on which the Delhi Government can exercise its powers, which includes services. Reference to the President can only be made in case of a dispute between the two, in rare circumstances such as on matters of national interest and finance, the court asserted.
However, if Parliament enacts a law granting executive power the L-G or the Centre on any subject which is within the domain of the National Capital Territory of Delhi (NCTD), the executive power of the L-G shall be modified to the extent, as provided in that law, the court further said.
With the judgment providing clarity on the allocation of powers and delineation of responsibilities between the Delhi Government and L-G, all officers serving in the national capital, even if they are not recruited by the Delhi Government and are working on deputation, would now be accountable to their respective ministers to whom they report.
Moreover, the court held that references to “State Government” in the Indian Administrative (cadre) rules, 1954, shall mean Government of NCT, Delhi. The rules allow the state government to decide on postings of its officers in the state, as well as those from the joint cadre. Hence, now onwards the elected government in Delhi shall take a call on posting officers of all cadres working within it.
“If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted,” the court said.
The SC bench, also comprising justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha held that “Therefore, the ideal conclusion would be that GNCTD [Government of the National Capital Territory of Delhi] ought to have control over “services”, subject to exclusion of subjects (police, public order and land) which are out of its legislative domain”.
The case
The ruling came on a reference made to a five-judge bench last year to decide upon the dispute as to who has administrative and legislative control over the services in Delhi. The reference arose out of a split verdict delivered in February 2019 by a two-judge bench of justices A.K. Sikri and Ashok Bhushan.
While Justice Sikri held that transfers and posting of officers of and above the rank of joint secretary are under the L-G’s powers, and that of other officers are under the Delhi government’s control, in his dissent view, Justice Bhushan said that services were totally outside the purview of the Delhi government.
This is the second time that a Constitution bench of the top court is dealing with the power tussle between the Centre and the Delhi government. The earlier round of litigation in SC was in 2018, when the top court interpreted the scope of power of the Delhi assembly under Article 239AA of the Indian Constitution. The insertion of Article 239AA had led to the establishment of a legislative assembly in Delhi.
The 2018 judgment postulated the principle of constitutional governance for the elected government and also determined the broad contours of division of power between the Centre and Delhi government. Justices Sikri, Bhushan and CJI Chandrachud were part of this constitution bench that had delivered a unanimous verdict.
Conflict of power
The genesis of the conflict between the Centre and the Delhi government over who controls services lies in a May 2015 notification of the Union Ministry of Home Affairs (MHA) that empowered the L-G to exercise his powers and discharge the functions of the Central government in respect of matters connected with public order, police, land and services.
Issued immediately after the Arvind Kejriwal-led Aam Aadmi Party (AAP) government came to power in Delhi that year, the notification talked about Entry 41 in the State List of the Constitution that categorises the areas in which state governments and assemblies have exclusive authority to legislate. This List is also called List II.
List I of the Constitution allows the Centre to legislate and exercise administrative control on subjects mentioned under it. The third list or the concurrent list outlines the manner in which both Parliament and State share responsibility to frame laws over subjects listed in it.
Even though “services” is covered in the State List, on which a state government has exclusive authority, the May 2015 notification excluded it from the ambit of the legislative and executive power of Delhi’s elected government on the ground that Delhi does not have its own State public services.
The AAP government challenged the notification before the Delhi High Court, which upheld it. On an appeal, a two-judge bench of the apex court referred the matter to the constitution bench in February 2017 to interpret Article 239AA.
In a unanimous verdict, the 2018 SC judgment declared that besides land, police and public order — over which the elected government of Delhi has no authority — the L-G cannot act independently on his own. Consequently, the specific issue of who controls services was remitted back to a two-judge bench, which delivered a split verdict, leading to a second round of litigation before the Constitution bench.
ARTICLE 239 AA(3)
The arguments before the the present five-member Constitution bench hinged primarily on the interpretation of a phrase in Article 239AA(3).
According to the provision, “Subject to the provisions of the this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories, except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.”
The entries mentioned in the provision relate to public order, police and land. The main contention before the Constitution bench was if the phrase “in so far as any such matter is applicable to Union Territories” restricted the powers of the elected government in Delhi to control the services.
It was the Centre’s contention that the power of Delhi Government to control on entries mentioned in List II or the State List, is limited to the extent to which they are applicable to Union Territories.
Meaning thereby that even though Delhi has an elected government, it is not equipped with the powers that are invested in a state government but a Union Territory. And, since Delhi does not have a state service of its own, an elected government here cannot exercise any legislative or administrative control on the officers working here.
To buttress this contention, the Centre had relied upon Part XIV of the Constitution that deals with “services under the union and states”. It said the said chapter does not contemplate services for Union Territories.
NO RESTRICTIVE INTREPRETATION
However, Thursday’s judgment rendered a harmonious interpretation of some articles of the Constitution and the General Clauses Act of 1977, to hold that Part XIV of the Constitution does not specifically exclude the application of this chapter to Union Territories. It said the application of inclusive definition of ‘state’, as provided under the General Clauses Act would render the constitutional scheme envisaged for Union Territories workable.
It even rejected the Centre’s reading of Article 239AA (3) to hold that a restrictive interpretation of the phrase “in so far as any such matter is applicable to Union Territories” will “defeat the very purpose of granting a special status to NCTD”. Therefore, it added, that it would not be correct to exclude a greater number of entries from List II or state list than what is already excluded by Article 239AA(3) — which are public order, police and law.
The judgment referred to the 2018 verdict extensively to say it had unanimously opined that the said phrase of Article 239AA(3) is inclusive in nature and that the elected government in Delhi shall have the power to legislate on any subject in the State or Concurrent List, except the excluded subjects mentioned in Article 239AA (3)
Two concurring views in the 2018 verdict — one by the then Chief Justice Dipak Misra and justices A.K. Sikri and A.M. Khanwilkar (both are retired), the other by justices Bhushan (since retired) and CJI Chandrachud — had agreed to the purposive interpretation of the phrase “in so far as any such matter is applicable to Union Territories”.
JUSTICE BHUSHAN OPINED SERVICES IS UNDER DELHI
“[In the 2018 judgment] Justice Bhushan also agreed that the phrase “in so far as any such matter is applicable to Union territories” cannot be used to restrict the legislative power of the Legislative Assembly of Delhi. He held that the “phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except for excluded entries,” noted Thursday’s judgment.
However, in his opinion in the 2019 split verdict, Justice Bhushan took a contrary view and held that the majority opinion in the 2018 Constitution bench judgment did not interpret the phrase “insofar as any such matter is applicable to Union Territories.”
In the same judgement, Justice Bhushan had faulted the Delhi legislative assembly for enacting a law on Fire Services. However, Thursday’s judgment held otherwise and said that on an analysis of the provisions of the Delhi Fire Service Act, 2008 and the Rules of 2019 on the subject, it is clear that the statute includes posts, their recruitment process, salary and allowance, disciplinary power and control, all of which are constituents of a “service” under Entry 41 of the State List. Hence, the legislative assembly was duly authorised to enact the law.
‘L-G may act in his discretion only in two classes of matters’
In Thursday’s verdict the five-member SC bench examined the scope of legislative and executive powers of the centre and states under List I, II and III, in the context of the unique status of Delhi. It opined that in the case of other States, the Centre is completely barred from acting on subjects mentioned in List II or the State List. However, it is not the same for Delhi and that the Parliament can make law conferring administrative powers to the Centre over subjects listed in the state list.
The Union can extend its executive power, without any law, only in relation to three entries that are excluded from the legislative domain of Delhi Government, which is police, public order and land.
Hence, the court held that in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to these three issues, unless the Parliament approves a law conferring the power on the Centre to exercise its executive power on other subjects.
“Accordingly, the Lieutenant Governor may act in his discretion only in two classes of matters. Firstly, where the matter deals with issues which are beyond the powers of the Legislative Assembly and where the President has delegated the powers and functions to the Lieutenant Governor in relation to such matter; and secondly, matters which by law require him to act in his discretion or where he is exercising judicial or quasi-judicial functions,” the court held.
The above interpretation indicates that in matters in the executive domain of NCTD, it is the elected government of NCTD which is empowered to take decisions, it rule. The L-G “may request the Minister or the Council of Ministers to reconsider its decision.” It is only if difference persists even after attempts at resolution that he may refer the matter to the President, and await the decision, the court reiterated.
(Edited by Poulomi Banerjee)
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