In Civil Appeal 2357 of 2012- SC – Delhi Govt. v Lieutenant Governor: The National Capital has legislative and executive powers over all ‘services’ except law & order, land, says  Supreme Court by accentuating Federal Structure of Indian Constitution
Chief Justice Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha [11-05-2023]

Read Order: Government of NCT of Delhi v Union of India

Simran Singh

New Delhi, May 11, 2023: A Constitution Bench of the Supreme Court, in a major victory for the Arvind Kejriwal-led Delhi Government, today ruled that the Government of the National Capital Territory of Delhi will have control over all services except law and order, and land.

The Constitution Bench comprising of Chief Justice Dhananjaya Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha delivered its unanimous verdict on 11-05-2023 pertaining to the issue:

1. Whether the Government of Delhi (‘GNCTD’) had legislative and executive powers in relation to ‘services’ under Schedule VII, List II and Entry 41 of the Constitution of India?

2. Whether the officers of various ‘services’ such as Indian Administrative Services (‘IAS’), Indian Police Service (‘IPS’), The Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (‘DANICS’) and The Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Police) Services (‘DANIPS’), who had been allocated to the National Capital (‘NCTD’) by the Union, came under the administrative control of GNCTD.

“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 vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD,” the bench said in its 105-page verdict.

The Constitution Bench elaborately discussed the role of civil services in a Westminster-Whitehall model of Parliament Government that India inherited from its British colonisers and was of the view that GNCTD had both legislative and executive power over the administrative services in NCTD, however, excluded their jurisdiction over matters relating to:

1. Public Order
2. Police
3. Land

The Court was, though quick to clarify that the Governor of NCTD shall be bound by the decision of GNCTD over other services (excluding the above stated matters), in the light of Article 239 AA and Entry 41, List 2 of the Constitution

The issue arose in the year 2016, when the Division Bench of  Justice A.K Sikri and Justice R.K. Agrawal referred the matter to the Constitution Bench which interpreted the insertion of Article 239 AA which provides for a special status to NCTD. The NCTD had contended that the insertion of Article 239AA was intended to eradicate the hierarchical structure with a functionally placed Lieutenant Governor (‘LG’) in a superior position to that of the Council of Ministers (‘CoM'). The Court in that judgment had rued that LG was bound by ‘aid and advice’ of the CoM of GNCTD .  The reference was further directed to be placed before a regular bench which pronounced its 2019 split verdict on power to transfer and appoint officers. The Constitution Bench had rendered a broad interpretation of article 239-AA and had provided the GNCTD with a vast executive and co-extensive legislative powers, except in some subjects.

The Constitution Bench disagreed with Justice Ashok Bhushan’s view in the aforementioned 2019 split verdict wherein he had stated that the ‘services’ were totally outside the purview of GNCTD and held that if ‘services’ were excluded from GNCTD’s legislative and executive domain, the Ministries who were charged with formulating policies in NCTD would be excluded from controlling the civil service officers who implemented the executive decisions.

The Bench was of the opinion that if the Ministers felt that they were insulated from the control of the Government, it will result in diluting the accountability and effective governance. In a democratic form of Government, real power of administration must rest on the elected arm of the Government. But the Court made it crystal clear that Article 239 AA excluded Entries 1, 2 and 18 of List II to Schedule VII (Public Order, Police and Land) from the power of GNCTD and stated that Article 239 AA balanced the interests between GNCTD and Union.

“The executive power of the Union “in a State” over matters on which both States and the Union of India can legislate is limited to ensure that the governance of States is not taken over by the Union. This would completely abrogate the federal system of governance and the principle of representative democracy.”

The Court stated that even if NCTD was not a full-fledged state, its Legislative Assembly was constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List. The Court emphasised on the importance of Federal Structure of the Country and stated that it had to ensure that the governance of State was not taken over by the Union.

The Bench emphasised on the triple chain of command that connected civil servant officers with the people of the Country at large who were:

1. Accountable to the ministers of an elected Government, under whom they function.
2. The Ministers were in turn accountable to the Parliament or the State legislatures
3. The Parliament was in turn accountable to the people

“Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability.”

The Court stated that an unaccountable and a non-responsive civil service may pose a serious problem of governance in a democracy. It could create a possibility that the permanent executive, consisting of unelected civil service officers, who played a decisive role in the implementation of Government policy, may act in ways that would 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. A constitutionally entrenched and democratically elected government needs to have control over its administration.”

Further the Bench stated that the administration comprised of several public officers, who  were posted in the services of a particular Government, irrespective of whether or not that Government was involved in their recruitment. If a democratically elected Government was 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.

“If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility 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 Court stated that the relationship between the Union and NCTD resembled an asymmetric federal model, where the latter exercised its legislative and executive control in specified areas of the State List and the Concurrent List.

“Article 239AA, which conferred a special status to NCTD 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 in how they are to be governed. It is the responsibility of the government of 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.”

The bench further went on to examine the features of Indian federalism in a multi- cultural, multi-religious, multi-ethnic and multi-linguistic Country.

"It is a means to reconcile the desire of commonality along with the desire for autonomy and accommodate diverse needs in a pluralistic society. Recognizing regional aspirations strengthens the unity of the country and embodies the spirit of democracy.”

The Bench stated that Constitution limits the executive authority of the Central Government in states in the interest of federalism. The executive power of the Union “in a State” over matters on which both States and the Union of India could legislate which was limited to ensure that the governance of States was not taken over by the Union. This would completely abrogate the federal system of governance and the principle of representative democracy.  It was with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence.

“The Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a “State”.

Conclusion

1. The Court was of the view that there does not exist a homogeneous class of Union Territories (‘UTs’) with similar governance structures.  The national capital was not similar to other UTs. By virtue of Article 239AA, the National Capital was accorded a “sui generis” status, setting it apart from other UTs.

2. It was stated that the Legislative Assembly of NCTD had competence over entries in List II and List III except for the expressly excluded entries of List II. In addition to the Entries in List I, Parliament had legislative competence over all matters in List II and List III in relation to NCTD, including the entries which had been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a).

3. The Bench stated that the executive power of NCTD was co-extensive with its legislative power which shall extend to all matters with respect to which it had the power to legislate. The Union of India had executive power only over the three entries in List II over which NCTD did not have legislative competence.The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament.

4. The Bench was of the view that the phrase ‘in so far as any such matter is applicable to Union Territories’ in Article 239AA(3) could not be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which had been expressly excluded.

5. With reference to the phrase ‘Subject to the provisions of this Constitution’ in Article 239AA(3), the  Court stated that the legislative power of NCTD was to be guided, and not just limited, by the broader principles and provisions of the Constitution.

6. NCTD had legislative and executive power over ‘Services’, that is, Entry 41 of List II of the 7th Schedule because:

1. The definition of State under Section 3(58) of the General Clauses Act 1897 applied to the term ‘State; in Part XIV of the Constitution. Thus, Part XIV was applicable to Union territories; and
2. The exercise of rule-making power under the proviso to Article 309 did not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List.