Following the judgment of the constitution bench in Government of National Capital Territory of Delhi (GNCTD) vs Union of India last week, the news headlines screamed: ‘Supreme Court gives Delhi Government full control over services,’ ‘Big win for AAP’ and ‘AAP hails SC order.’
At first blush the order gives the impression that it is restoring the “glory of constitutional democracy” by coupling authority over the Services with the ideal of a representative and responsible government.
The judgment’s fundamental message is that the Union government should not wrest control of the services away from the Delhi government. Doing that would be a breach of representative form of government and parliamentary democracy.
However, a closer look at the five-judge bench’s unanimous 105-page decision reveals that it can be interpreted in two different ways.
The judgement does not constitutionally restrict the scope, application and reach of Article 239AA(3), which grants Union government the overriding control over GNCTD.
The order leaves the most pertinent question hanging in the balance: Is the Union government constitutionally barred from legislative and executive power over “Services” under Article 239AA(3)? The order appears to be providing a yes/no response to this query.
The judgment, at several places, states that federalism is part of the basic structure. But it stops short of stating that an elected government’s control over services is an attribute of the constitution’s basic structure.
What the judgement grants to the Delhi government with one hand, it appears to be taking away with the other. The order recognises that the constitution grants special status to NCTD and has entrenched in Delhi a representative form of government. But it also says in the same breath that the legislative and executive power of NCTD shall be subject to the legislative and executive power expressly conferred upon the Union by the constitution or by a law enacted by parliament.
Also read: Unfortunate That Battle Between Union, Delhi Governments Continues: Supreme Court
The court stops short from concluding that the Union government’s sweeping powers under Article 239AA(3) are subject to constitutional restraints and that it is not permitted to increase its participation in the affairs of GNCTD to the point where it undermines Delhi’s representative system of government.
The concern is that the Supreme Court has still left the door open to potentially additional rounds of litigation between the Union government and GNCTD over control of Services by not being more resolute in its conclusions.
On one hand the SC says, “GNCTD ought to have control over Services”, but it stops short of excluding the subject of Services from the legislative and executive competence of the Union government. In Para 161, the SC says that the postings of officers in GNCTD will be made by the Delhi government and follows up in Para 162 by stating that the Lieutenant Governor would be bound by the aid and advise of the Council of Ministers of the NCTD. But it fails to create a carve-out of the subject of Services from the authority of the Union government.
The only incontrovertible conclusion from the judgment is is that the subject of ‘Services’ is not automatically removed from Delhi government’s legislative and executive purview.
In other words the Union Government could not have, by notification, delegated the power over Services to the Lieutenant Governor of NCTD, as it did by its order dated May 21, 2015. Although the judgement does not invalidate the notification, this is the conclusion that can unequivocally be drawn. The five-judge bench was solely meant to settle constitutional questions, leaving the task of determining the validity of the notification to a smaller bench.
However, the Union government can equally construe the judgment’s reasoning that there would be no constitutional violation if the parliament, through legislation (including an ordinance), removed the subject of services from GNCTD’s legislative and executive domain. Paras 78 to 85, read with Para 164, make this interpretation legally tenable.
The constitutional scheme of NCTD is provided in Article 239AA and 239AB which were inserted in the constitution in 1991.
Despite the fact that NCTD is not a full-fledged state, the legislative assembly of NCTD is constitutionally empowered to pass laws on the topics listed in the State List (List II) and Concurrent List (List III). The executive power of NCTD is co-extensive with its legislative power, meaning it must extend to all matters with respect to which it has the power to legislate.
But Article 239AA which accord NCTD a sui generis status, setting it apart from other Union Territories by grating it legislative competence, also curtails its authority in three vital respects:
- By virtue of sub-clause (a) of clause 3, it excludes three crucial entries of ‘Public Order’, ‘Police’, and ‘Land’ of List II (over which full-fledged states have complete control) from the legislative domain of NCTD;
- By virtue of sub-clause (b) of clause 3 it empowers the parliament to make laws with respect to any matter in List II; In other words while Public Order’, ‘Police’, and ‘Land’ have been kept away from the authority of GNCTD by way of explicit text in the constitution. While any other subject matter can be excluded from its legislative domain by virtue of a union legislation.
- The L-G is not bound by the aid and advise of the council of ministers of NCTD in matters in which he is required to act in his discretion ‘under any law’
Where the Union government made a constitutionally fatal mistake in its bid to control Services is that it took the route of an official notification instead of a legislation. It justified the notification and the exclusion of “services” from the ambit of the legislative and executive power of NCTD on the grounds that NCTD did not have its own state public services. It was a bogus argument.
The other untenable argument pressed by the Union government before the Supreme Court was that the NCTD does not have legislative competence over the Services. This too was bound to be rejected.
Also read: AAP Claims Absence of Centre’s Approval Has Stalled Delhi Budget Presentation ‘For the First Time’
The subject of “Services” is covered under Entry 41 of the State List. And barring three explicitly excluded entries, NCTD does have power over all other entries in the State List, including Services.
But there is a catch.
In the case of full-fledged states the centre has no legislative or executive power over any entry listed in the State List. But “for the purposes of NCTD, both List II and List III are concurrent lists”, the SC states in Para 85. That is, both parliament and the Legislature of NCTD have legislative competence over List II and List III. The central law made by the parliament shall prevail over the law made by NCTD.
Similarly, though the executive power of NCTD shall extend to all entries in List II and List III.
“Such power shall be subject to the executive power of the Union (through the Lieutenant Governor) only when the Union has been granted such power by the constitution or a law of parliament. Therefore, the executive power of NCTD, in the absence of a law by Parliament, shall extend to all subjects on which it has power to legislate.” (page 59 of the judgment).
In para 95 (page 66) the five judge bench again repeats:
“In the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a)… However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law.”
But, Part J of the judgment titled, ‘Triple chain of accountability: Civil Servants in a Cabinet Form of Government’ makes a curious reading. The judgment is divided in 15 parts, A to O. Part J spells the triple chain of command as follows:
- Civil service officers are accountable to Ministers;
- Ministers are accountable to Parliament/Legislature; and
- Parliament/Legislature is accountable to the electorate.
Part ‘J’ end with the following conclusion:
“The ideal conclusion would be that GNCTD 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.” (para 111)
What does the SC mean by ‘ought to have’?
Is it a constitutional duty or a moral obligation? Or is it just the desired state of affairs? Or merely a judicial wish?
The SC had made similar high sounding observations in its 2018 judgment.
“The exercise of establishing a democratic and representative form of Government for NCT of Delhi …would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for NCT of Delhi,” the 2018 judgment had read.
That too was a unanimous verdict, delivered by three separate concurring opinions. But soon one of its authors Justice Ashok Bhushan ruled that NCTD did not have legislative power over Services.
Part O, which is the judgment’s conclusion, does not contain any of the sermonising rhetoric from Part J. In Para 164, Part O draws nine conclusions. None of them mention that as a matter of constitutional interpretation, the legislative and executive power over ‘Services’ ought to rest with NCTD.
Instead it says, “Parliament has legislative competence over all matters in List II and List III in relation to NCTD…The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament.”
So the question still remains if the Union government tomorrow brings an ordinance (and follows it up with a bill in the parliament) excluding ‘Services’ from the purview of NCTD, does the Delhi government have any legal remedy? Any such statute will undoubtedly be subject to judicial review, but it is unclear what the criteria, grounds and standards of that scrutiny will be.
Ashish Khetan is a former chairperson of the Dialogue and Development Commission of the Delhi government.
