GNCTD vs LG: Supreme Court Holds Delhi Govt Has Control Over "Services" Excluding Public Order, Police & Land

The Supreme Court today held that the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land. The Lieutenant Governor shall be bound by the decision of Delhi government over services, apart from public order, police and land, it held.

A Constitution Bench comprising Chief Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha disagreed with Justice Ashok Bhushan's view in the 2019 split verdict, where he said that "services" were totally outside the purview of Delhi Government.

If services are excluded from its legislative and executive domain, the Ministers and the Executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions, the Court held.

"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....The legislative and executive power of NCTD over entry 41 shall not extend over to services related to public order, police and land. However, legislative and executive power over services such as Indian Administrative Services or Joint Cadre Services which are relevant for the implementation of policies and the vision of NCTD in terms of day-to-day administration of the region, shall lie with the NCTD", the Court held.

The judgment pronounced by CJI Chandrachud further held :

"We reiterate that in the light of Article 239AA  of the Constitution and the 2018 Constitution Bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD, as we have held that NCTD has legislative power over services excluding public order, police and land"

"Under Entry 41 List 2, the Lieutenant Governor shall be bound by the decisions of GNCTD on services as explained above. To clarify, any reference to Lieutenant Governor over Services excluding services relating to public order, Police and land in relevant rules shall mean Lieutenant Governor acting on behalf of NCTD".

The CB said the legislative assembly of Delhi embodies the principle of representative democracy, the Delhi assembly is given powers to legislate to represent the will of the people. Thus, Article 239AA of the Constitution must be interpreted in a manner to further the interest of representative democracy.

It observed,

"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 legislative and executive domain, the Ministers would be excluded from controlling the civil servants who are to implement the executive decisions."

The Court was of the opinion that if the officers feel they are insulated from the control of the government, it will dilute accountability and affect governance. Thus, the CB remarked that in a democratic form of govt, real power of administration must rest on the elected arm of the government.

However, the Constitution bench made it clear that legislative structure of Article 239AA excludes Entries 1, 2 and 18 of List II to Schedule VII (public order, police and land) from the power of the Delhi legislative assembly. The Union of India has executive power only over these three entries, it said.

The CB emphasized that Delhi government, similar to other states, represents the representative form of Government and any further expansion of Union's power will be contrary to Constitutional scheme. It clarified that Article 239AA is only meant to balance the interests between Delhi government and Union of India. "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."

The bench also elaborated on the importance of Federal structure of the country. It observed that while Delhi government is not a full fledged State, yet it is empowered to legislate under List II and III, except the specifically excluded entries. Thus, Court said It has to be ensured that governance of State is not taken over by the Union. "The principle of democracy and federalism form a part of basic structure. Federalism ensures survival of diverse interests and accommodate diverse needs."

The development comes in the matter pertaining to the dispute between the Delhi government and the Union government regarding control of administrative services in the National Capital Territory of Delhi. A summary of arguments raised in the matter can be found here.

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.

The root cause of the matter is a notification issued by the Ministry of Home Affairs on May 21, 2015, which stated that the LG will have power over "services".