The CJI said an ideal conclusion would be that the Delhi government ought to have control over services, subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, the ministers and the executive, who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions, he said.
The CJI said, “The legislative and executive power of the Government of National Capital Territory of Delhi (GNCTD) over entry 41 shall not extend over to services related to public order, police and land. However, legislative and executive power over services such as IAS or joint cadre services, which are relevant for the for the implementation for the policies and the vision of NCTD in terms of day to day administration of the region shall lie with the NCTD.”
The question of the regulation of services was a major part of the overall dispute between the elected government in Delhi and the Lieutenant Governor (LG) nominated by the Centre. The legal battle has been protracted, and the verdict of the Supreme Court will have far-reaching implications. Almost five years ago, another Constitution Bench of the court had ruled in favour of the Aam Aadmi Party-led state government in a similar tussle.
The CJI-led Bench in the present matter also comprises Justices M R Shah, Krishna Murari, Hima Kohli, and P S Narasimha. The verdict is unanimous, and has been written by the CJI. Here’s the background of the case.
First, how did the matter come before the CJI-led Bench?
On May 6, 2022, a three-judge Bench headed by then CJI N V Ramana, acting on a plea by the Centre, had referred this case to a larger Bench. The three-judge Bench had decided that the question of control over administrative services required “further examination”.
The Centre had sought the reference to a larger Bench on April 27, 2022, arguing that it needed the power to make transfers and posting of officers in Delhi on account of it being the national capital and the “face of nation”.
The court had agreed that the limited question relating to the scope of the legislative and executive powers of the Centre and NCT of Delhi, with respect to the term “services”, would need an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution. Article 145(3) deals with the setting up of a Constitution Bench comprising at least five judges “for the purpose of deciding any case involving a substantial question of law as to the interpretation” of the Constitution.
The three-judge Bench had noted that the primary contention in the case related to the interpretation of Article 239 AA(3)(a) of the Constitution, which deals with special provisions for the NCT of Delhi. In its order of May 6, 2022, the court said: “The Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of the Constitution [in 2018], did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List (State public services; State Public Service Commission).”
Who had filed the case before the three-judge Bench?
The case had come before the three-judge Bench because a two-judge Bench comprising Justices A K Sikri and Ashok Bhushan had, earlier in 2019, delivered a split verdict on the issue of services.
This two-judge Bench had in its decision settled several issues relating to the powers of the LG, but on the issue of control over services, the two judges on the Bench had ruled differently. Once the split verdict was passed in 2019, as per procedure, the case came up before the then CJI for listing so that it could be heard afresh by a larger Bench. Split verdicts by two-judge Benches are not common, but not unheard-of either.
So what did the judges on the two-judge Bench hold?
Justice Bhushan held that the Delhi government has no power over administrative services at all.
Justice Sikri, however, was of the view that “transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly”, but “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to LG”.
The 2019 verdict also dealt with five other issues arising from the power tussle between the Centre and the Delhi government, relating to the power of the Anti-Corruption Branch of the Delhi government to investigate corruption cases against central government officials and appoint commissions of inquiry.
And what led to these issues coming before the two-judge Bench?
The 2019 verdict was essentially delivered to decide the contentious issues based on the law settled by a five-judge Constitution Bench in 2018 [to which (then) CJI Ramana referred in 2022].
In 2018, a five-judge Bench comprising then CJI Dipak Misra and Justices Sikri, Bhushan, A M Khanwilkar, and (now CJI) Chandrachud interpreted Article 239AA of the Constitution which contains special provisions for the national capital.
The court laid down broad parameters for the governance of Delhi; it held that although Delhi cannot be given the status of a state, the powers of the LG can be curtailed as he has no “independent decision-making power” and has to act on the aid and advice of the elected government.
“Thus, in this hue, the Constitution Bench has also accepted that the Lieutenant Governor is to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor is permitted to exercise his own discretion,” the court held.
The court also restricted the jurisdiction of the LG to matters involving land, police, and public order, while holding that for all other matters, he will have to act on the aid and advice of the council of ministers.
Prior to this, the Delhi High Court had, in its judgment of August 4, 2017 on the same issue, held that for administration purposes of the NCT, the LG is not bound by the aid and advice of the Council of Ministers in every matter. On appeal, the SC in 2017, referred the matter to decide the interpretation of Article 239AA of the Constitution.
Finally, what is Article 239AA(3)(a) of the Constitution?
Article 239AA was inserted in the Constitution by the 69th Amendment Act, 1991. It conferred Special Status upon Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.
According to this provision, the NCT of Delhi will have an Administrator and a Legislative Assembly. Subject to the provisions of the Constitution, the Legislative Assembly, “shall have the power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union territories” except on the subjects of police, public order, and land.
Vinai Kumar Saxena being greeted by Delhi CM Arvind Kejriwal during the formers oath taking ceremony as 22nd Lt Governor of Delhi at Raj Niwas in New Delhi, Thursday, May 26, 2022. (Express Photo By Amit Mehra) 
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