With the May 11 Supreme Court ruling that the elected government has legislative and executive powers over services and the Lieutenant Governor shall be bound by the decision of the Delhi government over services, except public order, police and land, the tug of war between the Delhi government and the Lieutenant Governor over administrative control appeared to have been abated for a while but not for too long as the Centre has come up with an ordinance to control Delhi services.
Just after one week of the SC order giving the Delhi government legislative and executive power over services, the Centre on May 19 issued an ordinance to establish the National Capital Civil Service Authority, which will be responsible for transferring Group-A officers from the DANICS cadre.
Earlier, Delhi Chief Minister Arvind Kejriwal had informed that the Centre was planning to bring an ordinance to overturn the apex court verdict. As per the ordinance, “There shall be an authority to be known as the National Capital Civil Service Authority to exercise the powers conferred on, and discharge the functions assigned to it.”
The authority will comprise the chief minister of the government of the National Capital Territory of Delhi as its chairperson, along with the chief secretary and the principal home secretary, who will be the member secretary to the authority, it said.
Earlier, the five-judge Constitution bench headed by Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha gave the verdict on the dispute over the control of administrative services in Delhi. “The executive power of Union in a state over matters on which both union and states can legislate is limited to ensure that governance of state is not taken over by the union. This would completely abrogate the federal system of governance and the principle of representative democracy,” Live Law cited the CJI as saying.
The SC also sought to distinguish NCTD from other Union territories. “NCTD, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution. The Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a ‘State’,” the bench said in a unanimous decision.
“The Legislative Assembly of NCTD has competence over entries in List II (state list) and List III (concurrent list) except for the expressly excluded entries of List II,” the bench said. The excluded entries are related to public order, police and land. Further, “The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate… The Lieutenant Governor shall be bound by the decisions of GNCTD on services,” it said.
As per the verdict, “In a democratic form of government, the real power of administration must reside in the elected arm of the state, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration.”
“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 is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected,” it said.
According to Praveen Rai who is a Political Analyst at the CSDS, Delhi, “The SC judgment in Government of National Capital Territory of Delhi (GNCTD) vs Union of India conferred the Kejriwal led state government full powers over administrative services. The order seemed fine on paper as it furthered the basic structure of federalism but in reality, it failed to constitutionalize control over services and provide legal exclusivity to AAP. The union government still retained the power to bring an ordinance/bill under Article 239AA (3) and exclude it from the purview of the state government, which it did immediately.”
“The judgement followed by an ordinance overriding it has both political and judicial fallout. The conflict between the LG and the AAP seems to have become an unending saga of constitutional litigation that seriously questions the capabilities of the mainstream political class in interpreting and implementing laws. The tug of war not only creates democratic and governance deficit, but also apathy and distaste for politics among the citizens of Delhi. Some of the judicial pronouncements of the apex courts in recent years have been ambiguous, contradictory and regressive, so it needs to navigate the grey areas more carefully and pursue progressive jurisprudence,” said, Rai. “
Prof. Iqbalur Rehman, Chairman Department of Political Science, AMU, said, “Part VIII of the Constitution deals with the Union Territories. The Constitution doesn’t provide for the uniformity in their administrative setups. Presently there are three Union Territories – Delhi, Puducherry and Jammu and Kashmir with provisions of Legislative Assemblies. The position of Delhi is different being the Capital of India. Therefore, Political issues between the Union and State Government remain controversial and tussle prone. This situation in the last few years has seen many dimensions of conflict and control of State Government by the Union Government.”
Prof. Rehman added, “The recent decision by the Supreme Court of India on Union state relations actually represents and strengthens the Federal Structural character of Our Constitution. Any Government elected by the people is meant to serve as a puppet’s regime. In Parliamentary system the head of the state is bound to function in accordance with the aid and advice the elected Government. The SC decision establishes this essential character of an elected government.”
Sajid Nomani of Business Services Companysaid,“The SC judgment on tug of war between LG and Delhi Government is a welcome sign. This will bring the administration and the government under one umbrella. The tussle has been ongoing for a long time. We have also witnessed abuse of power in the past which should never have been there. The Supreme Court has once again confirmed it definitely has the authority above the government. With the new verdict in place, we should see the changes coming in. Delhi government also has a bigger challenge since they cannot put any sort of blame on the Centre for not letting them to work.”
In yet another ruling, the Supreme Court on May 17 observed that giving the lieutenant governor the power to nominate aldermen in the Municipal Corporation of Delhi would mean that he can destabilise an elected civic body. A bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala made this observation while reserving its verdict on plea of the Delhi government challenging the LG’s power to nominate aldermen in the MCD.
“Is the nomination of 12 specialised people in MCD of that much concern to the Centre? Actually, giving this power to the LG would effectively mean that he can destabilise the democratically elected municipal committees because they (aldermen) will have voting powers also,” the bench observed.