Delhi Govt vs LG | Democratically Elected Govt Should Have Power To Control Its Officers To Ensure Accountability: Supreme Court
If the officers feel that they are insulated from the control of the elected government, then they become unaccountable: Supreme Court
The Supreme Court of India on Thursday delivered a crucial judgement confirming that the legislative and executive control over administrative services – barring those related to public order, police, and land – in the national capital belonged to the government of the national capital territory of Delhi. Notably, in this unanimous verdict, a constitution bench comprising...
The Supreme Court of India on Thursday delivered a crucial judgement confirming that the legislative and executive control over administrative services – barring those related to public order, police, and land – in the national capital belonged to the government of the national capital territory of Delhi.
Notably, in this unanimous verdict, a constitution bench comprising Chief Justice DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha discussed the role of civil services in a Westminster-Whitehall model of parliamentary government that India has inherited from her British colonisers. The bench, speaking through Chief Justice Chandrachud, noted that the efficacy of the State and the system of responsible government depended upon professionals who embodied the institution of a competent and independent civil service. “The policies of the government are implemented not by the people, parliament, the cabinet, or even individual ministers, but by civil service officers,” it observed.
In this connection, the constitution bench laid emphasis on the triple chain of command that connects a civil servant with the people of the country at large or any of its federal units. Civil service officers are accountable to the ministers of an elected government, under whom they function. The ministers are in turn accountable to the parliament or, as the case may be. the state legislatures, which are in turn accountable to the people. And, in a parliamentary form of democracy, it is the people in whom sovereignty vests. The bench headed by Chief Justice Chandrachud remarked, “Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability.”
Therefore, an ‘unaccountable’ and a ‘non-responsive’ civil service may pose a serious problem of governance in a democracy, the bench cautioned before adding, “It creates a possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate.”
“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,” the bench further observed, after discussing the essential features of Indian federalism. It added, “A constitutionally entrenched, and democratically elected government needs to have control over its administration.”
The bench also clarified that the administration comprised of several public officers who are posted in the services of a particular government, irrespective of whether that government was involved in their recruitment. If a democratically elected government was not provided the reins of the civil servants operating within their jurisdictional domain, the constitution bench cautioned, the principle underlying the triple chain of collective responsibility would become redundant. It held:
“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 principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers.”
The bench cautioned:
“If the officers stop reporting to the ministers or do not abide by the directions, the entire principle of collective responsibilities is affected. A democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue, if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.”
The bench observed that the relationship between the union and the Delhi Government resembled an ‘asymmetric’ federal model under which the latter exercised its legislative and executive control in specified areas of the State List and Concurrent List of the Constitution’s Seventh Schedule. However, keeping in mind the ‘sui generis’ position of the national capital territory, and the importance of ensuring democratic accountability to the people being governed, the constitution bench concluded:
“Article 239AA which conferred a special status to the national capital territory of Delhi and constitutionally entrenched a representative form of government was incorporated in the Constitution, in the spirit of federalism, with the aim that the residents of the capital city must have a voice and how they are to be governed. It is the responsibility of the government of the NCTD to give expression to the will of the people of Delhi who elected it. Therefore, the ideal conclusion would be that GNCTD ought to have control over services, subject to exclusion of subjects which are out of its legislative domain.”
This decision comes as a major relief to Delhi’s ruling Aam Aadmi Party (AAP), which has been engaged in a war of attrition with Lieutenant Governor VK Saxena over the division of authority and sharing of power in the national capital.
Background
The issue in the case was whether the Government of NCT of Delhi had legislative and executive powers in relation to 'services' under Schedule VII, List II, and Entry 41 of the Constitution of India and whether the officers of the various 'services' such as IAS, IPS, DANICS, and DANIPS, who had been allocated to Delhi by the Union of India, came under the administrative control of the Government of NCT of Delhi.
In February 2019, two Judges of the Supreme Court had expressed divergent views, pursuant to which, the matter was directed to be placed before a three-judge bench for resolution. Justice AK Sikri held that transfers and posting of officers of and above the rank of Joint Secretary were under the powers of the lieutenant general of Delhi; other officers were under the control of the Delhi government. Justice Ashok Bhushan dissented holding that 'services' were totally outside the purview of the Delhi Government.
In 2022, the then-Chief Justice of India, NV Ramana constituted a three-judge bench to adjudicate upon the dispute. Later, the three-judge bench referred to a constitution bench limited questions pertaining to the legal dispute. Following this, a five-judge bench headed by Chief Justice DY Chandrachud began hearing the dispute, which has now been finally resolved.
Other reports about the judgment can be read here.
Case Title : Government of NCT of Delhi vs Union of India
Citation : 2023 LiveLaw (SC) 423