The Centre on Wednesday said that the Delhi government’s argument that the lieutenant governor was running the Capital was as hollow as a “castle in the air”, and countered the Aam Aadmi Party’s charge that the elected government has been rendered powerless.
The Supreme Court. (ANI)
Solicitor general Tushar Mehta said it is about the perception being created more than a question of the constitutional law. “I want to clear the impression that everything is done by the LG and the ministers (in the Delhi government) are simply whiling away their time. The test to see if secretaries are working as per the instructions of the concerned ministries is their Annual Confidential Reports (ACR). The office which writes their ACR is that of the chief minister. I have ACRs of the secretaries in the past three years, and all of them have scores of 9 or 9.5 out of 10,” Mehta told a a five-judge Constitution bench of the Supreme Court which is hearing the tussle between the AAP government in Delhi and the Centre over who controls transfer and posting of bureaucrats in Delhi.
He said that Centre, which is the cadre controlling authority of the joint cadre of All India Service and DANICS, has not received any complaint of insubordination by officers. “We (Centre) have not received a single complaint that an officer is not listening to the authority. This is a castle built in air and not the real situation.”
Dispelling the impression that the power to transfer and post officers was taken away from the Delhi government, Mehta said, “Whenever they have requested the LG to transfer officers, it has been done. But the attempt here is something else.”
The senior law officer argued whatever happens in Delhi not only impacts the country but has global implications as well. “This court is made to deal with perception and not constitutional law. A perception is being shown that we (Delhi government) have no power and the power lies elsewhere, which they mean is the Centre.....People of Delhi have reposed faith in us too, the government at the Centre. The Capital belongs to the country. Anything happening in Delhi not only has an impact within the country but globally too.”
Mehta said that the special provision of Article 239AA , which defines the legislative powers of the Delhi government, was introduced in 1992 and since then on only seven occasions, the LG has referred a matter to the President due to difference of opinion between him and the elected government.
“This is testimony to the fact that the Constitutional right to differ and refer is not used by the LG casually or for any extraneous reason, and the decisions are essentially to promote harmony in administration based upon the constitutional comity rather than strife,” Mehta argued.
The Centre dwelt on the fact that the Constitution does not envisage a separate services for a Union Territory unlike states and the executive power over all civil servants working in Delhi vests in the President of India.
Mehta clarified that even after the 2018 Constitution bench ruling interpreting Article 239AA, the legislative power of Delhi government over subjects other than the exempted entries of public order, land and police will have to be determined “contextually”.
The bench of Chief Justice Dhananjaya Y Chandrachud, justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha observed that while determining whether services has to rest with Union government or the Delhi government “one way to harmonise is to say that the executive control of Delhi will be exempted from the three areas (public order, police and land)”.
In his closing arguments, Delhi government’s counsel Abhishek Singhvi said, “Except those exceptions, this Court must ensure that Union Territory is not converted into a fiefdom of Centre by incremental expansion of exceptions to its legislative power.”
Advocate Shadan Farasat who supplemented Singhvi’s submissions referred to federal capitals in Germany, Australia, United States and Canada where the capital is situated within the territory of the Union or outside (in a separate province). He said that in none of these capital cities the local government is sought to be controlled by the Union. They even have autonomy in appointing officers, Farasat said.
He also gave the example of London, a non-federal capital where there is a Greater London Authority having a Mayor and a body of 25 members having independent powers to appoint staff. Back home, he referred to the legislative set up in the Municipal Corporation of Delhi (MCD) to show how the civic body in Delhi has powers to appoint officers or create posts. “Surely a democratically elected body created by Parliament cannot be worse off than the municipal corporation,” he added.
The court will continue hearing the matter on Thursday.
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