Why elected government in Delhi if control with you? Supreme Court to Centre

The Supreme Court on Thursday questioned the need for having an elected government in Delhi after the Centre asserted the Union Territories are an extension of the Union which wants to administer them.

A five-judge constitution bench headed by Chief Justice DY Chandrachud, while continuing the hearing for a third day on the vexatious Centre-Delhi government row over control of services, was told by Solicitor General Tushar Mehta, appearing for the central government, that Delhi being the national capital has a “unique status” and citizens of all states living there must have a “sense of belongingness”.

Referring to a judgement, the law officer said “Delhi is a cosmopolitan, miniaturised India- it belongs to India”.

During the day-long hearing, the bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, referred to the subjects on which the Delhi government is incapable of making laws, and asked about the legal and constitutional position with regard to control of services in the national capital.

“As a broad principle, Parliament has the power to legislate upon entries of State and the concurrent list (of the 7th schedule). The Delhi legislative assembly does not have the power to legislate upon lists 1,2,18,64, 65 (Public order, Police and Land etc) of state list,” the bench said.

It said the Delhi legislative assembly has the power to legislate in respect of all entries in the State and the Concurrent list as far as they are applicable to the Union Territory.

The bench then said in respect of other entries of the State and Concurrent lists, the Delhi assembly has the right to legislate on subjects applicable to the UT.

“Does the legislative entry of services relate to Union Territory?” the bench asked, adding if Parliament has the legislative control over certain areas, then what about the executive powers of the Delhi government.

The court wanted the solicitor general to tell how legislative control of services were never intended to be part of the legislative powers of Delhi.

“The Union Territories are an extension of the Union. The very purpose of creating a geographical area as a UT shows that the Union wants to administer the territory,” the solicitor general said.

“Then what is the purpose of having an elected government in Delhi at all? If administration is by central government only, why bother with a government,” the bench observed orally.

The law officer said certain powers are co-terminus and the functional control over the officers will always remain with the locally elected government.

“Functional control will be that of the elected government and we are concerned with administrative control,” he said.

If an officer is not discharging his role as desired, then the Delhi government will have no power to shift him and get someone else, the bench said, adding “can you say that they would not have any jurisdiction on where he should be posted”.

The law officer referred to the status of Delhi as the national capital and gave illustrations to buttress his submissions as to why the Centre needed to control the services.

“Let us examine the fundamental question, why that control is necessary. Suppose the central government posts an officer and ...as per a policy of the Delhi government, he starts having non cooperation with another state then there would be a problem,” he said.

Moreover, whenever a request is made with regard to an officer, the LG takes the action, he said, adding the power rests with the central government.

He then gave the details of the types of services and said All India officers are appointed under the All India Act and they are appointed through the examinations conducted by the UPSC.

“There is no separate cadre for the Union Territories. As far as Delhi administration is concerned, there are three layers- All India Services, DANICS and DANIPS and DASS. For the first two tiers, the appointment is made by the UPSC...,” he said.

Referring to the constitutional scheme, he said there are Central and State services and UTs have no public service commissions.

The hearing will resume on January 17.

Earlier, the top court had termed “collective responsibility, aid and advice” as the “bedrocks of democracy” and said it will have to find a balance and decide whether the control over services should be with Centre or the Delhi government or a median has to be found.

The apex court had said on August 22 last year a Constitution bench has been set up to hear the legal issue concerning the scope of legislative and executive powers of the Centre and the National Capital Territory government over control of services in Delhi.

On May 6, the top court had referred to a five-judge Constitution bench the issue of control of services in Delhi.

The apex court had said the limited issue of control over services was not dealt with by the Constitution bench which elaborately tackled all legal questions on the powers of the Centre and the Delhi government in 2018.

"The limited issue that has been referred to this Bench relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term services. The Constitution bench of this court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List.

"We, therefore, deem it appropriate to refer to the above-limited question, for an authoritative pronouncement by a Constitution Bench..., it had said.

Sub Article 3 (a) of 239AA (which deals with the status and power of Delhi in the Constitution, deals with the law-making power of the Delhi Legislative Assembly on the matters enumerated in the State List or the Concurrent List.

The plea by the Delhi government arises out of a split verdict of February 14, 2019 in which a two-judge bench of Justices A K Sikri and Ashok Bhushan, both now retired, had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital.

Justice Bhushan had ruled the Delhi government had no power at all over administrative services, while Justice Sikri made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the lieutenant governor will prevail in case of a difference of opinion on matters related to other bureaucrats.

In the 2018 judgement, a five-judge Constitution bench had unanimously held that the Lieutenant Governor of Delhi is bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.