Delhi government, not LG, controls bureaucracy: Supreme Court verdict

The Supreme Court said that the Delhi government’s responsibility towards the legislature and the public is diluted if it can’t control and hold to account officers posted in its service, excluding public order, police and land.

THE Delhi government, not the lieutenant-governor (LG), controls the national capital’s bureaucracy— that is the verdict of a five-judge Constitution Bench of the Supreme Court.

[I]f 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,” the court observed on Thursday. 

The Bench, headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, ended the years-long wait for an authoritative ruling on who controls the ‘services’ under Entry 41 of List II of the Seventh Schedule of the Constitution in the context of National Capital Territory of Delhi (NCTD).

While upholding the Delhi government’s legislative and executive power, the court clarified that the same shall not extend over services related to “public order”, “police” and “land”, subjects specifically excluded by Article 239AA.

Though, as a further clarification, the Supreme Court held that the legislative and executive power over ‘services’ such as the Indian Administrative Service, 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 with Delhi government, and officers, though not recruited by it, would still serve under the state government.

While upholding the Delhi government’s legislative and executive power, the court clarified that the same shall not extend over to services related to “public order”, “police” and “land”, subjects specifically excluded by Article 239AA.

In the Bench’s view, a democratically elected government can perform only when officers know the consequences that may ensue if they do not perform.

If officers feel that they are insulated from the control of the elected government which they are serving, they become unaccountable or may not show commitment towards their performance,” the court said, accepting the Delhi government’s argument.

Before reserving its judgement on January 18, the court had been hearing the Delhi government’s appeal against its two-judge Bench’s inconclusive verdict of 2019 on civil servants of the Delhi cadre. The matter was referred to a Constitution Bench last May.

Upholding the principles of federalism, the court held that Article 239AA, which relates to special provisions regarding Delhi, must be interpreted to further the principle of representative democracy. 

Democracy and federalism

The principles of democracy and federalism are essential features of the Constitution and form a part of the basic structure, and federalism in a “multi-cultural, multi-religious, multi-ethnic and multi-linguistic country like India” ensures the representation of diverse interests, the court observed. Recognising regional aspirations “strengthens the unity of the country and embodies the spirit of democracy”, it added. 

In any federal Constitution, two sets of government operate: one at the national level and the second at regional level. The court called this “a dual manifestation of the public will”.

In its view, the priorities of these two sets of governments, which manifest in a federal system, are not just bound to be different but are intended to be different.

While noting that NCTD is a Union territoryand not a full-fledged state, the “unique constitutional status conferred upon it makes it a federal entity to understand the relationship between the Union and NCTD, the top court observed.

It was also noted that the majority of the Constitution Bench in Government of NCT of Delhi versus Union of India & Anr. (2018) had held that while NCTD could not be accorded the status of a state, the concept of federalism would still apply to NCTD.

Case before the Supreme Court

In 2016, a Delhi High Court judgment held that the LG exercised “complete control of all matters regarding the National Capital Territory (NCT) of Delhi”.

Overturning the high court judgement, the Supreme Court in Government of NCT of Delhi versus Union of India & Anr. (2018) interpreted the provisions of Article 239AA to hold that the LG has no independent decision-making powers and is bound to follow the aid and advice of the NCTD’s council of ministers in all matters on which it is permitted to enact laws.

In the Bench’s view, a democratically elected government can perform only when officers know the consequences that may ensue if they do not perform.

The Bench stated that Article 239AA accords a “sui generis” status to the NCT of Delhi, setting it apart from other UTs.

The Bench had clarified that the GNCTD’s legislative power extended to all matters in the State List except Entries 1 (public order), 2 (police) and 18 (land) and also to the Concurrent List. However, the court confirmed the LG’s power to refer any matter to the President, in case of a dispute of opinion between the LG and the GNCTD, under Article 239AA(4). Additionally, the Delhi government’s executive power was held to be co-extensive with its legislative power. 

The Union government had introduced the GNCTD (Amendment) Act, 2021, which states, among other things, that the expression ‘government’ shall mean the LG, instead of the GNCTD. The Act was also challenged through a different petition before the top court.

Since the Constitution Bench had left specific matters to be decided later by regular Benches, a division Bench comprising Justices Ashok Bhushan and AK Sikri was set up. One of the issues before the Bench was whether the exclusion of ‘services’ related to Entry 41 from the legislative and executive domain of the NCTD, vide the notification of the Union Government dated May 21, 2015, was unconstitutional or illegal.

Neither of the two judges showed a predilection to grant control over civil servants solely to the GNCTD. Justice Bhushan categorically held that Delhi, being a Union territory, did not qualify under Entry 41 of the State List and hence, the GNCTD had no power over the administrative services. 

Justice Sikri was inclined to adopt a middle path involving both the chief minister and the LG but held that the transfer or postings of top bureaucrats (joint director and above) could only be done by the Union government.

In view of the inconclusive verdict on ‘services’, the matter was first referred to a three-Judge Bench and then to the Constitution Bench at the Centre’s request on May 6 last year.

Under review

In the present case, the court was called upon to interpret Article 239AA in the context of Entry 41 of the State List in the Seventh Schedule, which relates to ‘State public services and State Public Service Commission’. 

The court also tested the validity of the Centre’s May 2015 notification excluding ‘services’ under Entry 41 from the legislative and executive domain of the Delhi government.

Nevertheless, the specific provision which required the court’s interpretation was clause 3(a) of Article 239AA owing to the wording employed by the Parliament that appears to create incidental caveats on the GNCTD’s powers. 

Clause 3(a) reads: “Subject to the provisions of this Constitution”, the legislative assembly has the power to make laws on matters contained in the State List or the Concurrent List “in so far as any such matter is applicable to Union territories” except matters with respect to Entries 1, 2 and 18 of the State List (public order, police and land) and Entries 64, 65 and 66 of that list to the extent they relate to Entries 1, 2 and 18.

The court held on Thursday that the phrase “in so far as any such matter is applicable to Union territories”, if read in a restrictive manner, would limit the legislative power of the elected members of the assembly. “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.

In its interpretation, to read the said phrase broadly would be to introduce implied exclusions to the legislative powers of the Delhi government and would be “contrary to the plain meaning of the provision”.

The court made a reference to CJI Chandrachud’s observation in Government of NCT of Delhi versus Union of India & Anr. (2018) that the phrase “in so far as any such matter is applicable to Union territories is an inclusive term and “not one of exclusion”.

Overturning the high court judgement, the Supreme Court in Government of NCT of Delhi versus Union of India & Anr. (2018) interpreted the provisions of Article 239AA to hold that the LG has no independent decision-making powers and is bound to follow the aid and advice of the NCTD’s council of ministers in all matters on which it is permitted to enact laws.

On the phrase “subject to the provisions of this Constitution”, the court held that it implies that the Delhi government’s legislative power under Article 239AA(3) is to be guided by the Constitution’s broader principles and provisions. “The said phrase in Article 239AA(3) must be interpreted to give effect to the underlying principles in the Constitution,” the court added.

The phrase is used to indicate that the legislative power and competence exercised by a legislature must be within the limits circumscribed by the Constitution. Those boundaries may differ on a case to case basis,” it further observed.

Though it may also be pertinent to note that the NCTD’s legislative powers are further differentiated from states since the Parliament is permitted to “make laws with respect to any matter” for a Union territory, as per Article 239AA(3)(b). Therefore, Parliament’s legislative power extends to all subjects in the State List and the Concurrent List in relation to NCTD besides, of course, the Union List. 

In case of a repugnancy between a law enacted by Parliament and a law made by the Legislative Assembly of NCTD, the former prevails in terms of Article 239AA(3)(d).

The position that emerges from Article 239AA(3) is that NCTD has legislative power over entries in List II with limits (as excluded by the provision) but Parliament’s legislative power extends to subjects in all three lists in relation to NCTD,” the court noted.

Conclusions drawn

The Bench drew the following conclusions:

  • NCTD’s status: NCTD is not similar to other Union territories. By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union territories.
  • On legislative power: The legislative assembly of NCTD has competence over entries in List II and List III except for the expressly excluded entries of List II (public order, police and land). In addition to the Entries in List I (Union List), the Parliament has legislative competence over all matters in List II (State List) and List III (Concurrent List) in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a).
  • On executive power: The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. The Union government has executive power only over the three entries in List II over which NCTD does not have legislative competence. 

The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by the Parliament.

  • On the phrasing of Article 239AA: The phrase “in so far as any such matter is applicable to Union territories” in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded.

The phrase “Subject to the provisions of this Constitution” in Article 239AA(3) is an indication to be guided by the broader principles and provisions of the Constitution, and not just limit.

  • On power over ‘services’: The NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because:
    • (I)  The definition of State under Section 3(58) of the General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution. Thus, Part XIV is applicable to Union territories; and
    • (II)  The exercise of rule-making power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List.

Click here to read the Supreme Court’s full judgment in Government of NCT of Delhi versus Union of India (Civil Appeal No 2357 of 2017)

The Leaflet