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Centre has power on order, police and land, NCT of Delhi has power to posts, appoint and transfer officials: SC verdict in Delhi govt vs LG tussle

CJI said that the legislative assembly of NCTD embodies the principle of representative democracy. The members of the assembly are elected by the people of Delhi. Thus, Article 239AA must be interpreted in a manner to further the interest of representative democracy.

On May 11, a five-judge Constitution bench led by Chief Justice of India (CJI) DY Chandrachud pronounced the verdict in the Government of NCT of Delhi vs Union of India. In the unanimous judgment, CJI said, “unable to agree with Justice Ashok Bhushan in the 2019 split verdict.” The court cleared that the Centre has power over only three subjects which are order, police and land and gave the Government of Delhi the power to create posts, appoint officials and transfer them.

The matter reached the apex court over administrative control over transfers and postings of civil servants in the national capital. The bench comprising CJI Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha reserved its verdict on the matter on January 18, 2023.

In the judgment, CJI Chandrachud said the bench was unable to agree with the view of Justice Bhushan in the split judgment where he said that the NCT of Delhi has no power at all over services. However, the bench found it necessary to deal with the arguments of the Union that phrase must be read in a restrictive manner. Article 239AA 3(A) confers legislative power to NCTD but not over all subjects. The interest of the Union has to be preserved.”

CJI Chandrachud said added, “Subclause b clarifies that parliament has the power to legislate on any subject of NCTD in any of the three lists. if there is a repugnancy in a law enacted by legislative assembly and union. The one by assembly will be void.”

He further said that the article stipulates that such law shall not be deemed to be an amendment to the constitution and 239AA Sub-clause 3 balances the interests of the NCT of Delhi and the Union of India.

CJI said that the legislative assembly of NCTD embodies the principle of representative democracy. The members of the assembly are elected by the people of Delhi. Thus, Article 239AA must be interpreted in a manner to further the interest of representative democracy.

The court further pointed out that while NCTD is not a full-fledged state, it is empowered to legislate under lists 2 and 3. Article 239AA created a federal govt and this is an asymmetric federal model.

He added though the NCT of Delhi is a Union Territory, a federal entity, It has to be ensured that the governance of states is not taken over by the union. “In a democratic form of govt, the real power of administration must rest on the elected arm of the government,” he said.

CJI pointed out that, “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.” CJI said if the officers felt they were insulated from the control of the government that would dilute accountability and affect governance.

The apex court said, “The control over services shall not extend to entries related to public order, police and land.” The court added, “NCTD similar to other states represents the representative form of Government. Any further expansion of Union’s power will be contrary to the Constitutional scheme.” The CJI categorically said that the public order, police and land powers will remain with the LG. He added, “The NCT of Delhi is not similar to the other Union Territories.”

Background of the case

In 2018, a Constitution Bench of the Supreme Court looked into the special provisions under Article 239AA of the Constitution for the National Capital Territory (NCT). The interplay of the peculiar status of the NCT, the powers of the Delhi Legislative Assembly, and the LG were debated during the hearing. The court said in its judgment that the LG could not act independently without the aid and advice of the Council of Ministers. It further added that LG has to work harmoniously with the elected Government of the NCT.

Based on the judgment by the Constitution Bench, appeals were placed before a regular bench of the apex court in regard to the individual aspects, including the services. On April 14, 2019, the 2-judge regular bench comprising Justice AK Sikri and Justice Ashok Bhushan could not agree on the issue of the services under Schedule VII, List II, Entry 41 of the Constitution of India.

The issue that the court considered was if the exclusion of the services relatable to the Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi vide the notification of the Government of India dated May 21, 2015, was unconstitutional and illegal. As the judges differed on their verdict, the matter was referred to a 3-judge bench. However, the bench then referred it to the Constitution Bench after the Centre requested it.

In the arguments on behalf of the Delhi Government, Senior Advocate Abhishek Manu Singhvi said that the elected Government should have the power to create posts, appoint staff and transfer officials. He further said that the exclusion of civil service power from a government negates the purpose of the Government. He claimed the LG office derailed the governance of the NCT. Furthermore, he claimed the officials were not attending the meetings called by the ministers. They stopped responding to the ministers’ calls and disobeyed the ministers’ directions. The officials were getting transferred frequently, which also affected the policy implementation.

SG Tushar Mehta appearing for the Union Government argued that the reason behind the constant friction between the Centre and Delhi government was because of the lack of “political maturity” on the part of the Arvind Kejriwal-led Delhi government. He added that they created a wrong perception that LG was running the show. He further said different ideologies have worked with the Centre harmoniously for several years in Delhi till Kejriwal came as CM. He condemned Delhi CM’s street protest at the time when SC was hearing the matter.

He said, “The entire argument proceeds as if the Central Government is interfering in the legislative and administrative field of a full-fledged “State”, thus, violating the federal structure. The significance of Delhi as a Capital and its control by the State Government is recognized both prior to the Constitution and after the Constitution. Article 239AA is also so structured that while providing for a democratic government in the NCT of Delhi, the major control of the major stakeholder, i.e., the Government of the entire nation, is retaining over the Capital of the country. The entire issue deserves to be viewed keeping this backdrop in mind”.

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