The story so far: On Friday May 4, a three-judge Bench of the Supreme Court headed by Chief Justice of India N.V. Ramana referred the dispute between the Arvind Kejriwal-led Delhi government and the Centre over who controls the Capital’s bureaucracy to a five-judge Constitution Bench to give an “authoritative pronouncement” on the matter.
The apex court listed the matter for hearing by the Constitution Bench on May 11, adding it must be concluded before May 15, allowing for a judgement to be prepared during the Court’s summer vacations beginning May 23.
What is the current dispute between the Centre and the Delhi government?
The Delhi government has argued in the Supreme Court against its exclusion from exercising control over administrative services like the IAS in the nation’s capital. These services are currently controlled by the Lieutenant Governor (L-G) of the Union Territory appointed by the Centre.
The question of who controls services was left undecided by a two-judge Bench of the apex court in 2019, which gave a split verdict and referred the matter to a three-judge Bench. As per a 2016 judgement of the Delhi High Court, however, control of ‘services’ is not under the ambit of the Kejriwal government, known as the National Capital Territory (NCT) government.
The NCT government told the current Bench led by the CJI that its predicament without power over the ‘services’ was like that of a “king without a kingdom”. The situation is such that a “democratic representative government” had to get the approval of the L-G to appoint a Health Secretary or a Commerce Secretary, it argued.
The Centre, on the other hand, argued in the Court on April 27 that the nation’s capital, which was the “face of the nation” and “a sprawling metropolis”, should be under its control. It contended that Delhi could not be left to the “small mercies and smaller resources” of a State legislature.
Solicitor General Tushar Mehta, representing the Centre, submitted in the Supreme Court that the matter of ‘services’ should be referred to a five-judge Constitution Bench as it involved a substantial question of interpretation of the law. This submission was strongly opposed by the Delhi government.
The root of the dispute
This dispute over the control of administrative services is part of a long-standing power spat between Arvind Kejriwal’s government and the Central government.
In August 2016, dismissing the Kejriwal government’s plea seeking statehood for Delhi, a Delhi High Court Bench had ruled that NCT would continue to be a Union Territory, with the Lieutenant Governor (L-G) as its administrative head. It had also dismissed the Delhi government’s contention that the L-G was bound by the “aid and advice” of the Council of Ministers of the Delhi government.
Additionally, it had dismissed nine other petitions of the AAP government centered on issues relating to the exercise of legislative power and executive control in the administration of Delhi.
Then too, the matter of ‘services’ had come up, where the court had decided that a 2015 direction by the Centre, giving the L-G the authority to transfer and discharge administrative service officers was legal, adding that the control of ‘services’ was outside the purview of the NCT government. The High Court had declared illegal the appointments made by the NCT government to some service posts.
The Delhi government filed an appeal to the Supreme Court against the High Court Judgement. The Supreme Court in February 2017 referred the matter to a five-judge Bench, entrusting it with correctly interpreting Article 239AA of the Constitution, which gave Delhi its special status. The rest of the matters on power-sharing were referred to a general Bench.
What is Article 239AA?
Article 239AA of the Constitution gives Delhi its special status, stating that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and designating its administrator as the Lieutenant Governor. The article was inserted into the Constitution by the Constitution (69th Amendment) Act, 1991.
This Article provides that Delhi would have a Legislative Assembly and the seats would be filled by elected representatives.
Section 3 and 4 of the Article are at the centre of the debate in the Court. Section three says that “subject to the provisions of this Constitution, the Legislative Assembly shall have the 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 insofar as any such matter is applicable to Union territories,” except for the subjects of public order, police, and land. This is why the control of Delhi’s police falls under the purview of the Union Home Ministry.
Section 4 of the Article says that the Council of Ministers of the NCT government, headed by the Chief Minister, would “aid and advise” the L-G in the exercise of his functions with regard to areas where the Legislative Assembly has the power to make laws. It said that the L-G could use his discretion when required by or under any law, and if there was a difference of opinion with the Council of Ministers on any matter, the Lieutenant Governor would have to refer to the President for a decision and act according to the whatever decision is made by the President.
Tracing the case through 2018 and 2019
The five-judge Bench, to which the interpretation of Article 239AA matter was referred in 2017, had given its verdict in July 2018. The Bench had unanimously decided that except for issues of public order, police and land, the L-G was bound by the “aid and advice of the Kejriwal government, which has the public mandate.”
“Real authority to take decisions lies with the elected government. This is the meaning of ‘aid and advice.’ Titular head [L-G] has to act in accordance to aid and advice,” the Supreme Court had observed. The Bench had added that there was no independent authority with the L-G to take decisions except in matters under Article 239 or those outside the purview of the National Capital Territory (NCT) government.
Article 239 deals with the administration of UTs by the President and grants the President the power to appoint a Governor as the administrator for a UT.
While the five-judge Bench dealt with Article 239AA, a two-judge bench comprising of Justices A K Sikri and Ashok Bhushan (both now retired) dealt with other matters pertaining to power-sharing, like whether the Delhi government could control ‘services’, and whether its Anti-Corruption Branch could investigate corruption cases against Central Government employees.
The Bench gave a split opinion in 2019 on the question of control over ‘services’ or bureaucracy in the Capital. While Justice Bhushan held that the Delhi government had no power over ‘services’, Justice Sikri, who was the lead judge on the Bench, took the middle path.
Justice Sikri concluded that files on the transfers and postings of officers in the rank of secretary, head of the department and joint secretary could be directly submitted to the Lieutenant Governor (L-G). As far as DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre was concerned, the files could be processed through the Council of Ministers led by the Chief Minister to the L-G. In case of a difference of opinion, the L-G prevailed.
It was after this split verdict that the matter was referred to a three-judge Bench. This Bench has now further referred the matter to a five-member Constitution Bench, with the hearing set for May 11.
Other matters raised by the Delhi government before the SC
The Delhi government moved the Supreme Court last year seeking the quashing of four amended sections of the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’. The Centre had brought in these amendments in March and July last year.
The Kejriwal government contended that the amendments violated the doctrine of basic structure of the Constitution and that the Centre, through these changes, gave more power to the Lieutenant Governor than the elected government of the people of Delhi.
