Lt. Governor and NCT Delhi #1: Delhi Govt Says Union Control Over Administrative Services Violates Principles of Federalism

On April 12th 2022, Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli heard the Delhi government’s arguments in a case deciding who controls the administrative services in the National Capital Territory (NCT). 

The Union government has locked horns with the Delhi government for control over the region ever since the Aam Aadmi Party came to power in the capital in 2013.  Typically, Union Territories like the NCT are governed directly by the Union government— States are governed by elected State governments. 

In July 2018, a five-Judge Bench led by erstwhile CJI Dipak Misra confirmed that the elected Chief Minister was the Executive head of Delhi, not the Governor representing the Union government. Even though Delhi was a Union Territory, it had special status by virtue of Article 239AA of the Constitution. As per its provisions, the Governor must defer to the elected Chief Minister in all but three matters listed in subsection 3—police, land, and public order. 

The question before the current CJI’s Bench is whether ‘services’, or the appointment and transfer of bureaucrats, are within the exceptions to the Delhi government’s powers. This question was first raised before Justices Ashok Bhushan and A.K. Sikri. In a split decision delivered in February 2019, Justice Sikri held that the Delhi government had power over services, while Justice Bhushan dissented. The question was then referred to the present three-Judge Bench in 2019. 

While the reference was still pending before the Bench, the Union passed the Government of National Capital Territory of Delhi (GNCTD) Amendment Act, 2021. The Act enhances the Governor’s powers over and above the Chief Minister’s. This Act is also under challenge from the Delhi government before the current Bench. However, arguments on its validity were not heard today as the Union is yet to file its response to the challenge. 

Union: Services Issue Must Be Decided By Five Judge Bench

Solicitor General Tushar Mehta, appearing for the Union government, informed the Court that the Union intended to file a petition seeking the review of the 2018 ruling establishing the Chief Minister as Delhi’s executive head. Mr. Mehta argued that the review, the challenge to the 2021 Amendment Act, and the services issue are all connected matters—and that all three ought to be heard together by a five-Judge Bench. 

Senior Advocate Dr. Abhishek Manu Singhvi, representing the Delhi government, argued that the issues were separate. A five-Judge Bench reference would merely delay hearings on the services issue. The Bench proceeded to hear Mr. Singhvi’s arguments on the matter. 

Delhi Government: Without Control Of Bureaucrats, Elected Government Is King Without Kingdom

State governments have the power to frame laws on State public services under Entry 41 of List II of Constitution. Dr. Singhvi argued that the Delhi government had this power too, by virtue of its special status under Article 239AA. He submitted that the 2018 five-Judge Bench’s decision clearly stated that the Union only had executive control over land, police, and public order issues in Delhi. The Delhi government was held to be the elected executive head of the State. Without control of public servants’ transfers and appointments, Dr. Singhvi argued that the Delhi government was virtually powerless. The attempt to shift control of public services from the elected government to the unelected Governor violated the principles of federalism. 

Additional Solicitor General Sanjay Jain, appearing for the Union Government, argued that the 2018 decision did not state that the Delhi government controlled all matters except police, land, and public order. He stated that the Union could control all matters related to these three issues as well. 

The Court will continue to hear this case on April 26 2022.