On 11th May 2023, the Supreme Court of India ruled unanimously favouring the government of Delhi regarding the question of who controls the bureaucracy in the national capital. The National Capital Territory (NCT)’s legislative authority does not extend to areas where bureaucrats administer services, according to the five-judge constitutional bench led by Chief Justice of India DY Chandrachud. Public order, police, and land are the three areas that are not under the control of the Delhi government. Surprisingly, 8 days after this judgement, the President of India, Draupadi Murmu issued an ordinance, which is inscribed in the Article 123 of the Constitution of India, in favour of the Central govt. overturning the judgement given by 5 judges Constitutional bench of the Supreme Court, which was in favour of the Delhi government. Interestingly the ordinance was issued hours after the commencement of the Supreme Court’s six-week summer vacation. The reason for this might be to get some time, further, an ordinance issued by the President of India can be in effect for a maximum of six months and six weeks. So, the government will have an eye to making this ordinance an Act in the monsoon session of the Parliament.
RECENT JUDGEMENT OF THE SUPREME COURT
Chief Justice of India D.Y. Chandrachud led a constitutional bench comprising Hima Kohli, Justices Krishna Murari, P.S. Narsimha and M.R. Shah held that The National Capital Territory’s (NCT) legislative authority does not extend to locations where bureaucrats administer services. According to Chief Justice of India DY Chandrachud, Public order, police, and land are the three areas that are not under the control of the Delhi government. The CJI stated that the best outcome would be for the Delhi government to have authority over services, except for those that fall outside of its legislative purview. He further mentioned, “If services were removed from the Delhi government’s legislative and executive domain, then the ministers of the Delhi government and executives, whose duty is to formulate policies in the National Capital Territory of Delhi would not be able to control the civil service employees who are responsible for executing executive decisions”.
HOW THE TUSSLE HAS STARTED?
The tussle between the Centre and Delhi government starts from a notification issued by the Central Home Ministry, which says the Lieutenant Governor of Delhi will have control over services in its legislative domain. Delhi government challenged this notification in the Delhi high court. In 2017, Delhi High Court in its judgement said “The Lieutenant Governor is obligated to follow the aid and advice of the council of ministers”. Then the matter was contested in The Supreme Court, and the Constitutional Bench in its judgement said “Lieutenant Governor is bound to follow the aid and advice of the council of ministers except in matters relating to public order, land, and police”. Then comes a split verdict by a division bench of the Supreme Court in another case relating to this matter, which was later heard by a three-Judge Constitutional bench, and now a five judges Constitutional bench has given its judgement.
WHAT IS IN THE ORDINANCE ISSUED BY THE PRESIDENT?
The Ordinance has inserted Sub-section A in section 3 of Article 239AA of the Indian Constitution. This insertion has overruled the judgment of the Supreme Court by making an exception in the powers of the Legislative Assembly of Delhi, so it cannot make rules in any matter listed in entry 41 of List II of the 7th schedule of the Indian constitution. Entry 41 is related to the transfer, posting, and services of IAS officers and DANICS (Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and. Dadra and Nagar Haveli (Civil) Services) Officers. And under Section 41 of the Government of National Capital Territory of Delhi Act, 1991 marginal headings for the words “act in his discretion” have been changed to “act in his sole discretion” that means now, the Lieutenant Governor of Delhi does not need to act as per the advice of the council of ministers, which was earlier also stated in the judgements of the Supreme Court in the year. This ordinance has also mentioned setting up a National Capital Civil Services Authority, which will manage the posting of IAS and DANICS officers, which will be chaired by the Lieutenant Governor of Delhi.
WHAT IS ARTICLE 239AA OF THE CONSTITUTION OF INDIA?
Article 239AA was inserted in the Indian Constitution by the 69th Amendment Act. This clause stipulates that the NCT of Delhi shall have a Legislative Assembly and an administration. The Legislative Assembly “shall have the power to make laws for the whole or any part of the NCT concerning any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories,” pursuant to the provisions of the Constitution, with the exception of the laws governing land, public order, and police. In July 2018 and May 2023, the Supreme Court’s Constitutional Benches addressed the topic of the Delhi government’s authority. These two rulings concern the interpretation of Constitutional Article 239AA, which addresses the national capital’s governmental system. To establish a foundation for the Assembly’s and Delhi’s government’s operations, the Parliament also passed the Government of National Capital Territory of Delhi Act, 1991 in 1991, the same year that Article 239 AA was added.
As per the provision of Article 239AA, “In the event that the Lieutenant Governor and the ministers disagree, the LG shall bring the matter to the President of India for a judgement and act in accordance with it”. Even so, the court ruled that there should be a “sound rationale” for any difference of opinion. “Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution,” the court said.
The court further interpreted that the LG lacks any authority to make decisions independently and that “he has to either act on the ‘aid and advice’ of the Council of Ministers or he is bound to implement the decision.” Additionally, the court ruled that the LG should consult the President regarding every Council of Ministers decision rather than acting mechanically without thinking things through.
Delhi has always been the power centre of India for centuries be it ruled by the Mughals, the Tughlaqs, or the Britishers, all had an eye to conquer Delhi to rule over all of India. The conflict between the Delhi government and the Central government is continuing for a long time and had taken many twists and turns. It is going to continue in the near future as well, as the Central government has filed a review petition in the Supreme Court against the verdict of the Supreme Court which gave control over services to the Delhi government. Whereas the Delhi government will challenge the ordinance issued by the President of India. The central government will try to pass a bill in the Lok Sabha and Rajya Sabha to make the recent ordinance passed by the President of India, Draupadi Murmu into an Act. It also arises a question, of whether the action of the central government to pass an ordinance by the President of India to overrule the judgment given by the five-judge Constitutional bench of the Supreme Court is correct and whether there is any point of a review petition filed by the Central government if they have already nullified the effect of the judgement by an ordinance.
Author(s) Name: Siddhant Samaiya (National Law Institute University, Bhopal)