LG and NCT Delhi Constitution Bench Day #2: Adv. S. Farasat Argues Restrictions on NCT’s Powers Are Impractical
The Lieutenant Governor and the NCT DelhiJudges: D.Y. Chandrachud CJI, M.R. Shah J, Krishna Murari J, Hima Kohli J, P.S. Narasimha J
Today, a 5-Judge Constitution Bench led by CJI Chandrachud continued hearing arguments in the dispute between the Union and Delhi governments over the control of the NCT of Delhi’s civil servants. The government of Delhi argued that they were restricted from performing the most basic functions. The Union claimed that the division of power between the Union and the NCT were practical and reasonable.
Background
The dispute between the Union and Delhi governments over the control of the NCT of Delhi dates back to 2013 when the Aam Aadmi Party came to power in the national capital. Despite being a Union Territory, Article 239AA grants special status to Delhi by establishing its Legislative Assembly along with its Chief Minister and Council of Ministers—features normally possessed by a State. However, as a Union Territory, Delhi also has a designated administrator or the ‘Lieutenant Governor’ (LG).
Confusion arose over the unique relationship between these two government heads and the extent of the power they exercise over the NCT of Delhi. In 2018, a 5-Judge Constitution Bench of the Supreme Court ruled that the Lieutenant Governor is bound by the aid and advice of the NCT of Delhi’s Council of Ministers. In 2021, in an attempt to retain control over the national capital, the Union passed the Government of National Capital Territory Act (Amendment) Act, 2021 (the Act), which barred the Delhi Assembly from considering the day-to-day administration of the capital.
The Delhi government protested against the Act since it shifted the control of Delhi’s civil servants from itself to the LG, who is the Union’s representative. The Delhi government claims that it cannot implement policies in the NCT as the civil servants supposed to implement them are not under its control. They also argue that the Act diminishes the role of Delhi’s elected government, violating basic constitutional features of federalism, democracy, and the rule of law.
Senior Advocate A.M.Singhvi, for the Delhi government, claimed that they wished to control civil servants only within the NCT of Delhi. He pointed out that the Union may choose to transfer civil servants to any State or UT as they wished.
The Delhi government wished to control civil servants appointed to service in Delhi in 3 aspects:
a) appointment to a department within Delhi
b) transfer of civil servants between different departments
c) allocation of work
He asserted that the Delhi government was interested in these aspects for the effective implementation of policies. The Union may take up other aspects such as disciplinary powers.
Advocate Shadan Farasat continued arguments for the Delhi government after Mr. Singhvi. He argued that the Union did not have any legitimate interest in controlling civil services within the NCT of Delhi. Mr. Farasat grounded his arguments by taking the Courts through the administrative systems in different national capitals across the world. He pointed out that even in the most centralised governments, the power to appoint and control civil services lay with the local government and not the central government.
Mr. Farasat claimed that the Delhi government’s powers were so limited that the Speaker of the Delhi Assembly could not even appoint a secretary to his own office.
Next, Solicitor General Tushar Mehta began arguments for the Union government. He agreed with Mr. Singhvi that elected representatives should be answerable to the people. However, he stated that the present issue was of perception of the law and not a question of constitutional law.
The SG argued that there was no scope for misuse of power by the Lieutenant Governor. He referred to the various laws and rules governing the relationship between the NCT of Delhi’s ministers and the Lieutenant Governor (Lieutenant Governor) to substantiate his arguments. The Lieutenant Governor referred only seven disagreements between the Lieutenant Governor and the Delhi government to the President since 1992. In all other instances, Mr. Mehta claimed that the Lieutenant Governor and the Delhi government had a harmonious relationship.
Mr. Mehta argued that the Lieutenant Governor is not bound to the Council of Ministers in the same manner State Governors are. This allows the Lieutenant Governor to refer disagreements with the council of ministers directly to the President.
Mr. Mehta will continue arguments for the Union tomorrow (January 12th)