Delhi government has control over services except for public order, police and land, Supreme Court says on Delhi-Centre power row

Satya Prakash

New Delhi, May 11

Noting that the real power of administration must rest with the elected arm of the government, the Supreme Court on Thursday ruled that the Delhi Government has control over ‘services’ in the National Capital Territory, excluding the matters relating to public order, police and land.

A five-judge Constitution Bench led by Chief Justice of India DY Chandrachud held that the Delhi Lt Governor shall be bound by decisions of the Government of NCT of Delhi over the bureaucracy, except the three subjects, ie, public order, police and land – on which the Centre exercises its authority through the L-G.

“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. If “services” are excluded from the legislative and executive domain (of the elected government of NCT Delhi), ministers would be excluded from controlling the civil servants who are to implement the executive decisions,” the top court said.

If the officers felt that they were insulated from the control of the elected government, it would dilute accountability and affect governance, said the Bench – which also included Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha.

The Bench said Article 239AA  – which created a separate assembly for the NCT of Delhi — excluded Entries 1, 2 and 18 of List II to Schedule VII (public order, police and land) from the power of the Delhi legislative assembly as the Union of India has executive power over these three entries. However, it said Article 239AA must be interpreted in a manner that furthered the interest of representative democracy as the provision was only meant to balance the interests of both Delhi government and the Centre.

The Bench disagreed with the view of Justice Ashok Bhushan (since retired) in the 2019 split verdict that “services” were not under the control of the elected government of Delhi.

Maintaining that the Government of NCT of Delhi was similar to representative form of governments in other states, the top court said any further expansion of the Union’s power would be contrary to the constitutional scheme.

Discussing the Union’s powers, the top court said the executive power of the Union in a state over matters on which both union and states can legislate was limited to ensure that governance of a state was not taken over by the Union as it would completely abrogate the federal system of governance which was a part of the basic structure of the Constitution.

“The principle of democracy and federalism form a part of the basic structure. Federalism ensures survival of diverse interests and accommodates diverse needs,” it emphasised.

Noting that Delhi was not a full-fledged state, the Bench, however, clarified that it’s empowered to make laws under List II and III of the Seventh Schedule of the Constitution and it has to be ensured that its governance was not taken over by the Union.

This was the third round of litigation before the top court on the power tussle between Lt Governor of Delhi — appointed by the Centre — and the elected Government led by AAP leader Arvind Kejriwal. The tussle between Delhi Lt Governor and the elected Government of NCT has remained unresolved despite two earlier verdicts – one each by a Constitution Bench and a two-judge Bench of the Supreme Court.

In July 2018, the top court had ruled that Delhi Lt Governor did not have independent decision-making powers. A five-judge Constitution Bench had said the L-G was generally bound to act on the aid and advice of the Council of Ministers, except on three subjects reserved for him or where he differs with the decision of the elected NCT government and decides to refer an issue to the President. All decisions of the NCT Council of Ministers have to be communicated to the L-G. However, such communication does not mean L-G’s concurrence is required, it said.

On February 14, 2019 the court delivered a split verdict on the issue of control of administrative services. A Bench of Justice AK Sikri and Justice Ashok Bhushan had different views as to who had powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution. In view of the split verdict, the issue of “services” was referred to a three-judge Bench and then to a five-judge Bench.