The constitution bench of the Supreme Court (SC) is now hearing a dispute between the Delhi government and the Centre over the control of administrative services. This hearing comes after an earlier Constitution Bench ruled in favor of the State government in a similar issue about five years ago. The debate involves the 69th amendment to the Constitution of India and Article 239AA of the Constitution, which deal with collective responsibility.
The Timeline of the Dispute
The dispute dates back to a 2017 judgement by the Delhi High Court, which stated that for administration purposes of the National Capital Territory (NCT), the Lieutenant Governor (L-G) is not bound by the aid and advice of the Council of Ministers in every matter. This judgement was appealed in the SC in the same year, leading to the matter being referred for the interpretation of Article 239AA of the Constitution.
In 2018, a five-judge Constitution bench held unanimously that the L-G of Delhi is bound by the aid and advice of the elected government, suggesting both parties needed to work harmoniously.
A split verdict was delivered in 2019 by a two-judge Bench of the SC concerning the powers of the Government of NCT of Delhi and Union government over services. This resulted in the matter being referred to a three-judge Bench.
In 2022, the Centre sought a reference to a larger Bench, arguing for the power to make transfers and postings of officers in Delhi due to its status as the national capital. The court agreed that the scope of the legislative and executive powers of the Centre and NCT of Delhi required authoritative pronouncement by a Constitution Bench.
Arguments and Counterarguments
While the Centre argues for control over administrative services citing Delhi’s position as the national capital, the Delhi government counters that such power should lie with the elected representatives in the interest of federalism. The Delhi government also contends that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the basic structure doctrine of the Constitution.
Governance Model of New Delhi
The governance model of Delhi is unique. Though a Union Territory under Schedule 1 of the Constitution, it is recognized as the ‘National Capital Territory’ under Article 239AA. The 69th amendment introduced Article 239AA, declaring that the Union Territory of Delhi is to be administered by an L-G who works on aid and advice of the elected legislative assembly. However, this only applies to matters on which the elected Assembly has powers under the State and Concurrent Lists, excluding public order, police, and land.
Article 239AA empowers the L-G to either act on the aid and advice of the Council of Ministers or implement the decision taken by the President on a reference made by him. This dual control leads frequently to power tussles between the L-G and the elected government.
Way Forward
Preserving the federal nature of the Constitution is crucial and cannot be altered. Therefore, those wielding power must protect the federal feature of our Constitution. India, being a diverse and large country, needs a balance between autonomy of states, national integration, centralisation, decentralisation, nationalisation, and regionalisation.
The ultimate resolution lies not merely in the statutes but in the conscience of those in power. With collective responsibility and advice serving as democracy’s pillars, it’s essential to establish whether the central or Delhi government should exercise control over services within Delhi.
