The recent judgment of the Supreme Court holding that the Government of NCT of Delhi has the executive and legislative control over “administrative services” has ruffled some feathers in the national capital. The Supreme Court held that the executive and legislative powers in relation to “administrative services” under List II Entry 41 of the Seventh Schedule of the Constitution can be exercised by the Delhi government since there is no law passed by Parliament conferring such power on the Lieutenant-Governor (L-G) or the Union government. The judgment was followed up almost immediately by an ordinance that created the National Capital Civil Service Authority (NCCSA) constituting the Chief Minister of Delhi, Chief Secretary of Delhi and Principal Home Secretary of Delhi. This authority has been tasked with the responsibility of recommending transfers, postings and matters concerning the vigilance of Group ‘A’ officers serving in the affairs of the Government of National Capital Territory of Delhi. The files regarding transfers, postings, etc of such officers are then placed before the L-G who shall either give effect to the recommendation or send it back to the Authority for reconsideration. If a difference of opinion crops up between the Authority and the L-G, the decision of the L-G is said to be final and binding on all. Therefore, the effect of the judgment of the Supreme Court has been nullified by the promulgation of this ordinance. This ordinance has altered the fine balance envisaged in Article 239AA of the Constitution in favour of the Union government.
Delhi has been conceptualised in the Constitution neither as a state nor as a union territory. The National Capital Territory of Delhi is short of a state inasmuch as the executive and legislative powers in relation to land, public order and police rest with the Centre and Parliament respectively. The powers in relation to all other fields of legislation remained with the Delhi Government. However, this came with a rider. Article 239AA(3)(b) confers power on Parliament “to make laws with respect to any matter” for Delhi as if it were a UT. Even though the Legislative Assembly for NCT of Delhi could legislate in relation to fields covered in State and Concurrent Lists, such a law will have to make way for Parliament-made laws to the extent of repugnancy. Therefore, Delhi has essentially one Union List and two Concurrent Lists. This created an asymmetric federal model that is tilted heavily in favour of the Centre.
Although the Constitution provides for a system where the Union government has additional powers to legislate even on items in State List, the Supreme Court has sounded a note of caution in its 2018 judgment in Govt of NCT of Delhi v. Union of India. The SC held that the ideas of pragmatic federalism and collaborative federalism will fall to the ground if it were to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers.
The Court clarified that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List — police, public order and land. The Court further held that an interpretation must be adopted that would thwart any attempt on the part of the Union government to seize all control and to allow the concepts of pragmatic federalism and federal balance to prevail. The ordinance empowering the L-G to come back to the driving seat on matters relating to “administrative services” strikes at the root of the Supreme Court’s 2018 decision where it has been held clearly that the Union cannot override the powers of the state riding roughshod over pragmatic and collaborative federalism.
The proviso to Article 239AA(4) of the Constitution states that the L-G can refer “any matter” to the President, where there is a difference of opinion with the Delhi government. This dispute on the extent of discretionary powers of the L-G resulted in the five-judge Constitution Bench deciding conclusively on the powers of L-G. Then Chief Justice of India, Dipak Misra, speaking for the court held, “The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality”.
On the question of discretion of L-G, if “any matter” appearing in Article 239AA(4) cannot be read as “every matter”, the same interpretation will have to be employed in Article 239AA(3)(b) which permits the Parliament “to make laws with respect to any matter for a Union territory or any part thereof.” Therefore, this interpretation can be viewed as an implied limitation on Parliament. If Parliament has unfettered powers to make law and usurp power from the state government on any subject, it will wreak havoc on the system.
The power conferred on Parliament to make laws for Delhi on “any aspect” is not unqualified. If an interpretation is adopted that advances the cause of federalism, then the ordinance shall necessarily fail the test of constitutionality. Parliament must also stay its hand and not allow the ordinance to obtain the shape of an Act. Delhi has been granted a sui generis status in the Constitution keeping in mind the ever-expanding needs of the public. Any attempt to deface the Delhi model would take it back to its earlier UT status. The Centre should be mindful of the words of Benjamin Cardozo who said: “A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future.”
The writer is an Advocate-on-Record at the Supreme Court of India
