Delhi govt. has control over officers, says Supreme Court

Subject : Polity

Section: Federalism

Concept :

On 11th of May 2023, the Supreme Court said that the National Capital Territory (NCT) of Delhi has legislative and executive power over administrative services in the National Capital, other than the matters relating to public order, police and land.
According to the Supreme Court, the Delhi government, much like other States, represents the representative form of government and any further expansion of the Union’s power will be contrary to the Constitutional scheme.

Details

A Constitution Bench of the Supreme Court headed by the Chief Justice of India held that the Lieutenant-Governor (L-G) can exercise executive power on behalf of the Centre only in the three areas of public order, police and land in Delhi as mentioned in Article 239AA(3)(a).
The Bench said that the L-G does not have sweeping executive powers over the national capital, and the Centre should be mindful of the unique “asymmetric federal model” of governance adopted for Delhi.
The court also noted that the sui generis (special status) granted to Delhi should align with “cooperative federalism”.

Control over Administrative Services:

In 2019, a two-judge bench of the SC delivered a split verdict on the aspect of who controls administrative services in Delhi.
The two-judge bench had recommended that a three-judge bench be set up to decide the issue of control of administrative services.
Further, in May 2022, a three-judge Bench had referred this case to a larger Bench on the Central government’s plea.
The three-judge Bench had decided that the question of control over administrative services required “further examination”.

Central & State Government’s Arguments:

The Central Government has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
The Delhi government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of basic structure of the Constitution.
Legal Issues before the SC
There were two legal issues before the court –
The first arises from a reference made by a two-judge Bench in February 2019.
While deciding on the distribution of powers between the Delhi government and Centre, left the question of who will have control over the administrative services for consideration by a larger Bench.
Second issue is the Government of National Capital Territory of Delhi (Amendment) Act 2021, passed by the Parliament.
The Act provided that the term “government” referred to in any law made by the Legislative Assembly of Delhi will imply the Lieutenant Governor (L-G).
However, the Delhi government has challenged the constitutional validity of the Act.

Articles 239AA:

Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment by the Parliament.
It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly. Delhi was named as ‘National Capital Region (NCT) of Delhi’.
As per Article 239AA – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.
As per Article 239AA (4), in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision. In the meantime, if the Lt. Governor thinks that the matter is urgent he can take immediate action on his own.

Government of NCT of Delhi (Amendment) Act 2021

The Act basically gives more power to the Lieutenant Governor (LG) of the National Capital Territory of Delhi and diminished the elected government’s power.
The Act also seeks to bring in some clarity on certain subjects in the Government of National Capital Territory of Delhi Act, 1991.
The Act makes amendments to the Government of National Territory of Delhi Act, 1991.
It gives more power to the LG in some respects while ensuring the Delhi Legislative Assembly’s accountability.
As per the Act’s objects and reasons, it is aimed at ending the absence of clarity on what matters or proposals are needed to be submitted to the LG before orders could be issued.
It also aims to “further define the responsibilities of the elected government and Lieutenant Governor (LG) in Delhi”.

GNCT Act Provisions

Some of the important provisions of the Government of NCT of Delhi (Amendment) Act, 2021 are discussed below:
The term ‘government’ mentioned in any law enacted by the legislative assembly of Delhi shall mean the LG. The Act defines ‘government’ as the LG.
The Act provides discretionary powers to the LG even in matters where the Legislative Assembly is empowered to make laws.
An additional clause added to Section 44 of the 1991 Act makes it mandatory for the government to obtain the opinion of the LG on all matters before any executive action can be taken, ensuring accountability.
This means that the state government or cabinet would need to seek the LG’s opinion before implementing any decision.
The amendment also says that the “Legislative Assembly shall not make any rule to enable itself to consider the matters of the day-to-day administration of the Capital or conduct inquiries in relation to the administrative decisions”.