LG and NCT of Delhi: Constitution Bench Day #3: SG Mehta Argues That The National Capital Must Be Subject to Special Restrictions
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, the 5-Judge Constitution Bench led by CJI Chandrachud heard Solicitor General Tushar Mehta’s arguments that special provisions for the division of power over the national capital were justified.
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.
Solicitor General stated that some of his written submissions must be flagged but not read to save the Court’s time. He then took the Bench through the history of administration in Delhi.
Mr. Mehta referred to Justice Krishna Iyer’s Judgment in Jagadish Saran v Union of India (1980) where he described Delhi not just as a part of India, but as ‘miniaturised India’. Delhi, therefore, holds special significance compared to other States and Union Territories. He argued that Delhi must have a special responsibility since a ‘nation is known by its capital’. As a capital city, Delhi possessed strategic importance. As such, the capital must be under the effective control of the national government.
Mr. Mehta then referred to the 7th Constitutional Amendment which introduced the concept of Union Territories (UT). He pointed out that if the Parliament had wished to constitute a special UT service, it would have done so through the Amendment.
Next, Mr. Mehta attempted to refute Sr. Adv. A.M. Singhvi’s request to the Bench to not rely on the Balakrishnan Committee report. Mr. Mehta argued that the Report was the basis for introducing Article 239AA which established the NCT of Delhi and its Legislative Assembly and was thus relevant.
The SG claimed that the Delhi Legislative Assembly was excluded from making laws on only 3 subjects: public order, police, and land. He referred to the 2018 Constitution Bench Judgment which declared that the Chief Minister, and not the Lieutenant Governor of Delhi was the executive head of the NCT.
Further he stated that CJI Chandrachud himself, in the 2018, held that the Delhi Legislative Assembly could make laws to the extent ‘a Union Territory’ could, and not ‘Union Territories’ as a whole. This meant that only the Delhi Assembly had limited powers. However, CJI Chandrachud corrected him— ‘a’ Union Territory meant ‘any’ Union Territory.
CJI Chandrachud instructed the SG to read further paragraphs from his 2018 Judgment. These paragraphs explained that Delhi Legislative Assembly was only restricted from making laws on public order, police, and land. There were not further restrictions on its powers.
Before rising for lunch, the CJI posed 2 questions to the SG:
1) How do you argue that the Delhi Assembly’s Legislative powers did not extend to legislative control of services?
2) Even if the Assembly did not possess Legislative control over services, what about the Delhi government’s Executive control?
After lunch, the SG read Justice Ashok Bhushan’s concurring opinion in the 2018 Judgment. He argued that all UTs are administered by Central Civil Offices.
CJI Chandrachud questioned the purpose of having an elected government in Delhi if all administration was to be done by the Union government. The SG explained that the Union was only concerned with administrative control. Functional control remains with the elected government of the NCT of Delhi.
Justice Narasimha questioned Mr. Mehta on the difference between States and UTs, and UTs and the NCT of Delhi. The SG responded that the Lieutenant Governor was the administrator of Delhi. On the other hand, all India Officers come through the UPSC exams, after which they choose their cadre. The SG continued that UTs do not have separate cadres. However, the Delhi administration has 3 layers: The All India Service, DANICS (Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli) and DASS (Delhi Administration Subordinate Services). Appointment to the first two layers is made by the UPSC. The Central Government’s Service Selection Board makes the appointments for the third layer.
Following this, the SG read the Indian Administrative Service Cadre Rules and the Allocation of Business Rules at length. The Bench asked the SG how much more time he required and rose early at 3:15 PM
Mr. Mehta will continue his arguments for an hour on Tuesday (January 17th). Mr. Singhvi will have 1.5 hours for rejoinder after the SG.