In a major win for the AAP government, the Supreme Court on Thursday in a unanimous verdict ruled that the Delhi government has legislative and executive powers over services except for public order, police and land.
Asserting that an elected government needs to have control over the administration, a five-judge constitution bench, headed by Chief Justice DY Chandrachud, said the Union territory of Delhi has ”sui generis (unique) character” and refused to agree with the 2019 judgement of Justice Ashok Bhushan that the Delhi government has no power over the issue of services.
”Further expansion of the Union’s power will be contrary to the Constitutional scheme…Delhi is similar to other states and has a representative form of government,” the top court said in its verdict over the contentious issue of administrative control over services between the Centre and the Delhi government.
”The National Capital Territory of Delhi government has legislative and executive powers over services sans…public order, police and land,” said the bench, which also comprised Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.
The primacy of the Centre in administrative issues would abrogate the federal system and the principle of representative democracy it said, adding if ‘services’ are excluded from the legislative and executive domain, then ministers would be excluded from controlling civil servants.
Democracy and federalism are part of the basic structure of the Constitution, the CJI said while reading out the judgement in a packed courtroom.
The order also said if officers stop reporting to ministers then the principle of collective responsibility is affected, and added that in a democratic form of governance, the real power of administration must rest on the elected arm of government.
The bench said the Union government’s power in matters where both the Centre and States can legislate is limited to ensure that the governance is not taken over by the Central government.
The Constitution bench was set up to hear the legal issue concerning the scope of legislative and executive powers of the Centre and the National Capital Territory government over control of services in Delhi after the Union home ministry issued a notification in 2015, stating that it has control over services in Delhi. The notification was challenged by the Arvind Kejriwal government in the Delhi high court.
The SC bench had reserved its order on January 18 after hearing the submissions of Solicitor General Tushar Mehta and senior advocate A M Singhvi for the Centre and the Delhi government respectively for almost four-and-a-half days.
On May 6 last year, the top court referred the issue of control of services in Delhi to a five-judge Constitution bench.
The plea moved by the Delhi government arises out of a split verdict of February 14, 2019, in which a two-judge bench of Justices A K Sikri and Ashok Bhushan, both now retired, had recommended to the CJI that a three-judge bench be set up to finally decide the issue of control of services in the national capital.
Justice Bhushan had ruled that the Delhi government had no power at all over administrative services, while Justice Sikri had made a distinction.
He had said the transfer or posting of officers in the top echelons of the bureaucracy (joint director and above) can only be done by the Centre and the lieutenant governor’s view will prevail in case of a difference of opinion on matters related to other bureaucrats.
In a 2018 judgment, a five-judge Constitution bench had unanimously held that the Delhi LG was bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.