DELHI GOVERNMENT VS LIEUTENANT GOVERNOR - POLITY
News: SC holds Delhi government has control over administrative services
What is in the news:
● The
Supreme Court ruled unanimously in favour of the Delhi government on the issue
of who controls the bureaucracy in the national capital.
Key takeaways:
● Elected
government in the National Capital Territory of Delhi has the edge to appoint
and control bureaucrats more than the Union government.
Background of the issue:
● The
question of the regulation of services was a major part of the overall dispute
between the elected government in Delhi and the Lieutenant Governor (LG)
nominated by the Centre.
● On
May 6, 2022, a three-judge Bench headed by then CJI N V Ramana, acting on a
plea by the Centre, had referred this case to a larger Bench. The three-judge
Bench had decided that the question of control over administrative services
required “further examination”.
Timeline of the dispute:
2017 Judgement:
● The
Delhi High Court had, in its judgement 2017 held 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.
● On
appeal, the SC in 2017, referred the matter to decide the interpretation of
Article 239AA of the Constitution.
2018 Judgement:
● A
five-judge Constitution bench had unanimously held that the L-G of Delhi is
bound by the aid and advice of the elected government, and both needed to work
harmoniously with each other.
2019 Judgement:
● A
two-judge Bench of the SC delivered a split verdict on the question of powers
of the Government of NCT of Delhi and Union government over services and
referred the matter to a three-judge Bench.
● While
one judge had ruled the Delhi government has no power at all over
administrative services.
● Another
judge, however, had 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 L-G would prevail in case of a difference of
opinion for matters relating to other bureaucrats.
2022 Supreme
Court's verdict:
1. Elected government to control bureaucrats:
● A
constitutionally entrenched and democratically elected government needs to have
control over its administration.
● The
administration comprises several public officers, who are 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 is
not able to hold to account the officers posted in its service, then its
responsibility towards the legislature as well as the public is diluted",
Chief Justice Chandrachud reasoned
2. Legislative power of Delhi government:
● A
Constitution Bench however reiterated that the National Capital Territory of Delhi (NCTD) would not have power to
legislate on public order, police and land in the national capital.
● 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 the day-to-day
administration of the region, shall lie to the Local government.
3. Triple chain of collective responsibility:
● The
Supreme Court said a principle of “triple-chain
of collective responsibility” existed in the governance of the capital.
● This
three-cornered command included civil
service officers being accountable to Ministers, who are in turn accountable to
the Parliament/Legislature, which is ultimately answerable to the electorate.
4. Lieutenant Governor's role:
● The
Court held that the Lieutenant Governor was, according to Article 239AA, bound
by the aid and advice of the Council of Ministers of NCTD in relation to
matters within the legislative scope of NCTD, which included all ‘services’
coming under Entry 41 of the State List of the Seventh Schedule of the
Constitution except those related to public order, police and land.
● To
clarify, any reference to ‘Lieutenant Governor’ over services (excluding
services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules
shall mean Lieutenant Governor acting on behalf of GNCTD.
5.
Civil servants' role in the system of
responsible government:
● The
Court noted that the efficacy of the State and the system of responsible
government to a large part depend upon professionals, who embody the
institution of a competent and independent civil service.
● The
policies of the government are implemented not by the people, Parliament, the
Cabinet, or even individual Ministers, but by civil service officers. Effectiveness of the services is to a large
extent dependent upon the relationship between the Ministers and civil service
officers, it said.
● Civil
servants are required to be politically
neutral. The day-to-day decisions of the Council of Ministers are to be
implemented by a neutral civil service, under the administrative control of the
Ministers.
● Civil service officers
thus are accountable to the Ministers of the elected government, under
whom they function. Ministers are in turn accountable to Parliament or, as the
case may be. the State Legislatures.
Article 239AA of the constitution:
● Article 239 AA was
inserted in the Constitution by The Constitution (69th Amendment) Act, 1991
to give Special Status to Delhi following the recommendations of the S
Balakrishnan Committee that was set up to look into demands for statehood for
Delhi.
● It
says that the NCT of Delhi will have an Administrator and a Legislative
Assembly.
● Subject
to the provisions of the Constitution, the Legislative Assembly “shall have
power to make laws for the whole or any part of the NCT with respect to any of
the matters in the State List or Concurrent List in so far as any such matter
is applicable to Union territories” except
on the subject of police, public order, and land.
● Further,
the Article 239AA also notes that L-G
has to either act on the aid and advice of the Council of Ministers, or he is
bound to implement the decision taken by the President on a reference being
made by him.
● Also,
Article 239AA, empowers the L-G to refer a difference of opinion on ‘any
matter’ with the Council of Ministers to the President.
● Thus,
this dual control between L-G and the elected government leads to a power
tussle.
Government of National Capital Territory (GNCT) of
Delhi (Amendment) Act, 2021:
● It
amended the Sections 21, 24, 33 and 44 of the 1991 Act.
● States
that the “government” in the National
Capital Territory of Delhi meant the Lieutenant-Governor of Delhi.
● It
gives discretionary powers to the L-G even in matters where the Legislative
Assembly of Delhi is empowered to make laws.
● It
seeks to ensure that the L-G is “necessarily granted an opportunity” to give
her or his opinion before any decision taken by the Council of Ministers (or
the Delhi Cabinet) is implemented.
● It
bars the Assembly or its committees from making rules to take up matters
concerning day-to-day administration, or to conduct inquiries in relation to
administrative decisions.
Administration of Union Territory:
● Part
VIII (Articles 239 to 241) of the Constitution deals with the Union
Territories.
● UTs in India are
administered by the President through an administrator appointed by him/her.
The administrator is not elected but rather a representative of the President.
● In
some UTs, such as Delhi and Puducherry, the administrator holds significant
powers, including the ability to make laws and regulations for the UT.
● In
other UTs, such as Lakshadweep and Dadra and Nagar Haveli, the administrator's
powers are limited to providing advice to the elected government.
● The judiciary in UTs is
also governed by the Constitution and the laws made by the Parliament.
● However,
in some UTs, such as Delhi, the High Court has wider powers than in other UTs,
such as Lakshadweep.
Significance of the verdict:
1. Empower the Elected Government:
● The
ruling affirms the power of the elected
government in Delhi, enabling it to exercise greater control over the
bureaucracy.
● This
should, in theory, allow for more efficient and responsive governance, as the
government can directly hold officials accountable.
2. Boost to Federalism:
● By
affirming the powers of the elected government in Delhi, the ruling strengthens the principle of federalism in
India.
● It
balances the power between the Centre and the states (or in this case, Union
Territory), thereby upholding the spirit of cooperative federalism.
3.
Smoother policy implementation:
● The
elected government’s increased control over administrative services could lead
to more effective implementation of its
policies and schemes, as it now has the power to direct and manage the
civil servants responsible for executing these initiatives.
4.
Improved accountability of officials:
● The
Supreme Court said a principle of “triple-chain of collective responsibility”
existed in the governance of the capital.
● This
ruling will improve the responsibility
and accountability of the elected government and government servants.
WAY FORWARD:
1. Promote collaborative federalism:
● The
federal nature of the Constitution is its basic feature and cannot be altered,
thus, the stakeholders wielding power intend to protect the federal feature of
our Constitution.
● The
Delhi Government and the Centre must embrace
collaborative federalism and interdependence so as to avoid any disputes
which will impact the welfare of the common man.
2.
Ensure the principle of subsidiarity:
● The
Union government should give more powers to the elected government in the
implementation of policies and developmental plans. They are accountable to the
assembly/parliament and to the people.
3.
Working Through Constitutional Trust:
● The
apex court had rightly concluded that the scheme set out in the Constitution
and the Government of National Capital Territory of Delhi Act, 1991 envisages a
collaborative structure that can be worked only through constitutional trust.