SC stamp on elected govt’s powers in victory for AAP

The order laid down that officers working in all departments except those relating to public order, land and police fell within the administrative and legislative control of the Delhi government

The Delhi government has control over bureaucrats assigned to departments under its purview, a Constitution bench of the Supreme Court ruled on Thursday, giving chief minister Arvind Kejriwal a significant boost at a time when his administration has been locked in a bruising fight with the Union government for executive control over the Capital.

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While the legal battle was about services, the bench reiterated Delhi’s unique status, and listed the powers of its elected government, effectively elaborating on a 2018 judgement. With the passage of a new law in Parliament in 2021, the Union government, through the lieutenant governor (LG), had taken on more powers unto itself — a practice that Thursday’s judgment will likely end.

The order laid down that officers working in all departments except those relating to public order, land and police fell within the administrative and legislative control of the Delhi government, capping a dispute that began with a notification issued eight years ago by the Union government, and led to a protracted court battle with split verdicts.

“If a democratically elected government is not allowed to control its officers and hold them to account, then its responsibility towards legislature and the public is diluted. If an officer is not responding to government, the collective responsibility is diluted… if officers feel they are insulated to the elected government, they feel they are not accountable,” said the five-judge bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, in a unanimous verdict.

The judgment laid down that the “government of national capital territory of Delhi (NCTD)” has legislative and executive power over “services”, that is, those listed under Entry 41 of List II of the Seventh Schedule of the Constitution.

It clarified that the order does not extend to what are known Entries 1, 2 and 18 of the State list — police, land and public order — since Article 239AA of the Constitution, which provides for the powers of the Delhi Assembly, specifically excludes these subjects and places them under the legislative control of the Union Government.

Kejriwal welcomed the verdict, saying it will “lead to many fold jump in the progress of Delhi”.

“The Supreme Court has sternly said that the powers of the Delhi government snatched by the Centre in 2015 was unconstitutional and its only motive was to fail the AAP government,” Kejriwal, who is AAP’s national convener, said. His reference is to a 2015 notification of the Union government that laid down that the Delhi government will have no powers over services as is the case under Entry 41 of State list under the constitution, which gives state assemblies the prerogative on state public services.

The LG’s office did not comment on the Supreme Court ruling but contested Kejriwal’s remarks on Thursday that the LG had held up work.

The bench also held that references to “state government” in relevant rules of All India Services or Joint Cadre Services, of which the Delhi government is a part or which are in relation to it, shall mean the UT’s elected government.

This relates to the Government of National Capital Territory of Delhi (Amendment) Act passed by Parliament in 2021, which made the LG’s nod mandatory prior to executing any policy approved by the Delhi government’s council of ministers. The amendment laid down that references to the state government would mean the LG, which now become inoperative.

This is the second Constitution bench decision on the power balance between the Union and the Delhi government in the Capital, which has two power centres: one in the chief minister’s office and the other at that of the LG, a functionary who virtually reports to the Union home ministry.

The two power centres have been locked in an increasingly bitter confrontation, which at one point prompted bureaucrats to go on a protest alleging they were caught in the crossfire, involved an alleged attack on the chief secretary, and snowballed into criminal cases that have led to the arrests of two Delhi ministers in cases AAP says is false. Federal agencies that have filed these cases, accusing Kejriwal’s former deputy Manish Sisodia and cabinet colleague Satyender Jain, have said the probes were genuine.

The Union government through Solicitor General Tushar Mehta justified its 2015 notification on multiple grounds, one of them being that Delhi is a Union territory and does not have its own public service like other states do.

It also argued that control over bureaucracy ought to rest with Centre owing to the national and international implications on account of Delhi being the national capital.

The bench responded by saying: “A constitutionally entrenched and democratically elected government needs to have control over its administration,” and added that “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.”

The court examined the role played by civil servants under the Westminster parliamentary democracy where officers are accountable to ministers, who in turn are collectively responsible as an elected government to the people. It said: “an unaccountable and a non-responsive civil service may pose a serious problem of governance in a democracy.”

Writing the 105-page judgment for the bench, CJI Chandrachud said the policies of the government are implemented not by the people, Parliament, the Cabinet, or even individual ministers, but by civil service officers, who are required to be “politically neutral”. “If the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted,” added the bench.

Seeing further dangers of accepting the Centre’s submissions, the bench said: “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 they are insulated from the control of the elected government, which they are serving, the bench added, “they become unaccountable or may not show commitment towards their performance”.

The Union government had relied on the words “in so far as any such matter is applicable to Union territories” in Article 239AA(3) to limit legislative and executive control of Delhi government. The court said Article 239AA provides sufficient safeguards by limiting the role of Delhi’s legislative assembly to decide on subjects under state and concurrent lists but if a wider interpretation was to be made, it would defeat “the very purpose of granting a special status to NCTD”.

The court said that its earlier 2018 judgment gave a broad and expansive meaning to Article 239AA in the interest of representative democracy and federalism, which are part of the basic structure of the Constitution.

“The members of the legislative assembly have been chosen by the electorate to act in their stead. Thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate,” it said.

The court also asked Centre to act in a spirit of “cooperative federalism”.

“NCTD, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution. 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,” the court ruled.