Delhi Govt v LG Services Dispute | Recap Of Arguments Raised Before Supreme Court Constitution Bench

The Supreme Court is set to pronounce tomorrow the judgment 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. The matter has been at the center of a constitutional dispute concerning the allocation of powers and delineation of responsibilities between the Delhi Government and the LG. The decision will likely have far-reaching implications for the functioning of the Delhi administration and may serve as a benchmark for the interplay between elected representatives and appointed officials in India.

This article seeks to provide an overview of the key arguments presented by both sides during the proceedings and sheds light on the fundamental issues at stake. 

What is the issue about?

The issue in the case is whether the Government of NCT of Delhi has 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 have been allocated to Delhi by the Union of India, come 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 are under the powers of Lieutenant General of Delhi; other officers are under the control of Delhi Govt. Justice Ashok Bhushan dissented to hold that "services" were totally outside the purview of Delhi Government.

In 2022, the then Chief Justice Of India, NV Ramana constituted a three judge bench to decide upon the dispute. Later, the three judge bench referred to a Constitution Bench limited questions pertaining to the legal dispute. Following this, the five-judge bench comprising Chief Justice DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha started hearing the dispute. 

Arguments raised by GNCTD

1. Accountability of civil servants to people must be ensured

GNCTD argued that the case was not merely about distribution of powers between the union and the NCT but was about whether civil servants serving in the NCT were accountable through the government to the people of Delhi who had elected the Delhi government. To establish the same, it was argued that there existed a chain, the first link of which was that civil servants must be accountable to ministers. The second link of the chain was that the ministers were accountable to the legislature. Finally, the members of the legislature were accountable to the people who elected them. This chain ensured that the accountability of the civil servants got fused ultimately with the people who elected the government.

2. A minimum dual set of governments operates in all federal systems

The Delhi Government stated that in any federal system there was at the minimum a dual set of governments operating. Further federalism was ultimately a vehicle for manifesting diversity. To further its submissions, Delhi government argued that national capitals in federal system across the world, irrespective of the model they followed of distribution of power between the federal government and the local government, did not envisage a situation where the local government was incapable of appointing and controlling civil servants/staff to the Government and to control their day to day functioning. 

3. A government cannot function without the power of managing civil services 

It was submitted that the power of creating and managing civil services and posts, appointing persons, transferring persons, and allocating persons to such posts was essential for a functioning Government and to ensure democratic accountability. Further, while the government is represented at the political level by ministers who created policies, the implementation of those policies depended only upon the civil servants. Thus, for the smooth functioning of a government, it must have the power to manage civil services.

4. No real interest of central government

It was contended that the ability to function of any civil servant who was under the Delhi government was limited by the competence of the Delhi government alone. Thus, the central government had no real interest in controlling civil services.

5. Scheme of Article 239AA provides GNCTD executive powers

GNCTD emphasized that Article 239AA granted the Legislative Assembly of Delhi significant executive powers to make laws on matters within its legislative competence. Further, the intent behind Article 239AA was to provide Delhi with a representative form of government, allowing the elected government to exercise executive powers over a range of subjects. It was also stated that the phrase "in so far as" under Article 239AA indicated a limitation on the LG's powers. Accordingly, the executive power of the union extended only to the three excluded subjects, that is, public order, land, and police. Per contra, the executive power of the NCT of Delhi extended to the subjects in the state list and the concurrent list to which the legislative power of the state assembly extended except the three excluded subjects.

Arguments raised by the Centre

1. Delhi holds strategic importance

The central government stated that it had a huge part to play in administration of Delhi. It argued that the LG's authority was necessary to maintain a balance between the elected government and the central government, as Delhi was the national capital and held strategic importance.

2. Primacy of LG as a constitutional functionary

The central government argued that the LG held the position of the administrator of the Union Territory of Delhi and had the ultimate executive authority. The LG was the representative of the President and a constitutional functionary, not just an officer. Thus, it was contended that the LG's role should not be restricted to mere concurrence and should include the power to review and approve decisions taken by the elected government.

3. Hybrid model of federalism applies

The centre argued that there was no question of federalism in union territories as there were mostly no elected government in union territories and the central government controlled them. Stating that legislative assemblies only existed in two Union Territories, namely, Puducherry and Delhi, the centre argued that in such cases, there would be a form of hybrid federalism with supremacy to the Centre. Stating that the UTs were an extension of the Union, centre contended that centre needed to have supremacy in administrative decisions.

4. Article 239AA imposes limitations on Legislative Assembly of Delhi

The central government contended that the legislative powers conferred upon the Legislative Assembly of Delhi under Article 239AA were subject to certain limitations. It asserted that the scheme envisaged by Article 239AA intended a cooperative and coordinated decision-making process between the elected government and the LG. Further, the LG's concurrence was necessary for effective governance and to prevent any potential conflicts or contradictions in decision-making. It was stated that under Article 239AA, the officers would be answerable to the ministers, the council of ministers, and the Chief Minister. However, so far as the administrative control was concerned, the central control was not only desirable but constitutionally permitted as Delhi was the capital.

5. Misconception regarding LG's powers

The central government argued that there was a misconception regarding the LG's powers, suggesting that the LG has absolute control and can unilaterally make decisions. It contended that the LG's role was not that of an autocratic administrator but rather that of a constitutional authority acting in accordance with the provisions of the Constitution. The central government asserted that the LG's powers were essential to maintain a balance between the elected government and the central government, particularly in matters of strategic importance, public order, and land. Further, the LG acted as a check to prevent any potential abuse of power or violation of constitutional provisions.

Senior Advocate Dr.Abhishek Manu Singhvi led the arguments for the GNCTD. Solicitor General of India Tushar Mehta appeared for the Central Government.