Union v Local Government: Battle for Delhi’s Governance

Who should have the power to govern Delhi? In this episode of SCO Explains, we dive into the clash over control, and try and understand why

Spandana: Hello and Welcome to SCO Explains. I’m Spandana and today we’ll be talking about the clash between the Union and Delhi governments over the control of our country’s capital. I have Joyston D’Souza with me. Joyston has been tracking the case very closely, and is our in-house expert on the matter.

Joyston: Thank you Spandana. I’m glad to be here.

Spandana: Okay, so let’s start by providing some context to our viewers. What are we really talking about when we say the Union and Delhi Governments are fighting over Delhi’s administrative services? 

Joyston: So Delhi has two identities. As the country’s capital, Delhi plays a crucial role in the national scheme of things. It houses important government buildings, headquarters of numerous institutions of national importance. It even hosts foreign dignitaries. 

At the same time, for the local residents of Delhi, the situation is slightly different. They have to deal with the day-to-day demands of life like water, electricity, roads, just like any other citizen residing in any other city.

Spandana: So to me it seems like the question here is : Who has control over Delhi – The nationally elected Union government or a locally elected Delhi government?

Joyston: Exactly. So, Lawmakers have struggled with this question for decades. For example, from 1952 to 1956, Delhi had a Legislative Assembly and a Chief Minister. In 1956, the Assembly was abolished. In the decades that followed, Delhi’s citizens kept demanding for Statehood.  Others gave more importance to Delhi’s role as the entire country’s capital.

Finally, after decades of debates, Parliament introduced Article 239AA  in 1991. So what this did is it established the Legislative Assembly, and the  Council of Ministers for Delhi. It had the power to make laws on all subjects on the State list except three which is public order, police, and land. So these the Union government would continue to control. 

Spandana: So it looks like this is pretty clear to me matters of national importance would be taken care of the nationally elected Union government, and local matters would be dealt with by the locally elected government. So, what is the confusion here?

Joyston: Well, it’s one thing to keep different matters, different subject matters separate on paper. It’s a completely different matter to do this in practice. So essentially what this amendment did was that it give Delhi ‘state-like’ features without granting it actual statehood. 

Spandana: So this created the conflict? 

Joyston: Exactly. But let’s try to understand the setting first. States usually have a locally elected government and a Governor appointed by the Union to run the State. Here, the Governor’s powers are usually minimal  and he can interfere only in certain select circumstances. 

On the other hand, Union Territories are governed through an Administrator appointed by the Union. For Delhi, this Administrator is the Lieutenant Governor.

So to sum up, Delhi has a locally elected government along with its Council of Ministers and Chief Minister and at the same time it also has a Lieutenant Governor who is the Administrator appointed by the Union. The challenge here basically boils down to balancing the powers of both these authorities.

Spandana: So, like you said, this is not a new conflict in any sense, but now why did it come before the Supreme Court? 

Joyston: Well, actually, this is not the first time it has come before the Supreme Court. In 2018, the Supreme Court has to decide on a similar matter where the question then was is the Lieutenant Governor bound by the aid and advice of the Council of Ministers just like other State Governors. The Supreme Court held that he is. 

Spandana: And in the present case, the question is a little bit more specific right? It concerns primarily who has control over civil services in Delhi?

Joyston: Yes. So the main point of contention here is entry 41 of the ‘State list’, which concerns ‘state public services’ and ‘state public service commissions’. 

So,  Delhi does not have its own Public Services Commission. Civil servants in Delhi came from centrally administered cadres like the All India Service, DANICS, and the Delhi Administration Subordinate Services (DASS).

The Union government argues that since Delhi is a Union Territory and since it civil servant come from Union cadres, the “Union” must continue to control civil servants in the National Capital Territory.

Spandana: So, the Union government is saying that they should control administration because Delhi is the national capital. And the Delhi Government is saying that they are the locally elected representatives, so they must control services in Delhi. 

Joyston: That’s right.

Spandana: And how did the Supreme Court address this issue?

Joyston: Well, the SC’s decision does a number of things. It reaffirms Delhi’s unique or sui generis status, it reiterates the importance of a federal structure, and recognises the extent and limits of both the Delhi government and the Union government. . 

Spandana: Okay, so let’s address these one by one. First, can you tell us what the  the sui generis status of Delhi means?

JS: Well, Delhi is a Union Territory, but it also has some State-like features. For example, Delhi has a Legislative Assembly and a Council of Ministers But, it also has an Administrator appointed by the Union government just like other Union Territories. 

Sui Generis here essentially means that Delhi is unique. It cannot be fully considered a Union Territory and it cannot be fully considered a State. 

Spandana:  So, what does this mean exactly? Who then controls civil servants or services in Delhi? 

Joyston: Let’s think about how policies take effect in a democratic government. So elected Ministers normally formulate laws and policies. But who implements these policies? Civil servants!

Delhi’s difficulty is that it does not have its own cadre of civil servants. They borrow from Union-controlled cadres. 

The Delhi government said that it should control these civil servants since these civil servants are working to implement Delhi government policies.

Spandana: This is the triple chain of accountability, right? Voters elect their chosen representatives. These representatives formulate policies, and civil servants implement policies. So to sum up, civil servants, answer to ministers, who answer to the voters—forming the triple chain.

Joyston: Exactly. If civil servants in Delhi are not accountable to the ministers that they work under, then Delhi’s electorate essentially has no control over policies being implemented in their own constituencies. This is exactly what the court considered when it ruled that Delhi’s civil servants must be accountable to the Delhi government they work under.

Spandana: And next you said that the court extensively spoke about the extent of the Union and Delhi government’s powers?

Joyston: Yes, So this goes back to the division of powers through the Union, State, and Concurrent lists. Put simply, the Union exclusively makes laws on subjects under the Union lists. The same goes for State governments and state lists. Subjects under the Concurrent lists are shared by the Union and States.

In Delhi’s case, the situation is slightly different. The Constitution permits Parliament, the Union legislature, to also make laws on the State list for Delhi. In case of a clash between the Delhi government and parliament, the parliament prevails, just like in a concurrent list. However the Supreme Court’s Judgement clarifies that while Parliament has this power the Union “executive” does not.

Essentially the Court held that Parliament along with the Delhi government can make law to control services in Delhi, but the Union executive cannot. 

Spandana: So one would think that all questions are answered, and everything is clear, but this is where the story takes another turn. Just days after the Judgement, the Union issued an Ordinance that basically contradicted the judgement, right?

Joyston: That’s right. Just 8 days after the Court’s decision, the Union executive issued an Ordinance that amended the Government of the National Capital Territory of Delhi Act. The Ordinance does 3 things.

First, it explicitly bars the Delhi government from making any law on services or entry 41 of the State List, no matter what any Court says.

Second, it creats a 3 member committee called the National Capital Civil Services Authority who by internal voting will control services in Delhi. However, their decisions must be approved by the Lieutenant Governor.

Spandana: Wait, in effect doesn’t this essentially vest the power in the Lieutenant Governor bringing the power back to the Union!

Joyston: Yes. So two things are notable here. First that the 3 member committee has only one representative from the Delhi government who is Delhi’s Chief Minister and two Union appointees. So the Delhi government is in minority on this committee. Second, the Ordinance explicitly states  that, if the Lieutenant Governor disagrees with any decision of the the committee, he has the sole discretion to override that decision. 

Spandana: Can the Union Government even pass such a law going directly against a Constitution Bench judgement? 

Joyston: Well, Parliament can still make laws for Delhi that override the Delhi government and the judgement acknowledges this. 

However, since Parliament was not in session, the Union passed the Ordinance which is now pending Parliamentary approval.  

It is worth noting here though that an Ordinance is an executive move, not a legislative one and until it is validated by Parliament, it raises questions on whether it can override the Supreme Court’s decision.

Additionally, on top of issuing this Ordinance, the Union also filed a review petition against the SC’s judgement.

Spandana: Wow, it’s such an interesting thing to watch the Court and the Government battle this out. But really the question I think will always come back to the people of Delhi who are kind of stuck in a power struggle. 

Joyston: Yes, and regardless of whether the Court accepts this review petition or not, it seems likely that the matter will return to the Supreme Court.  

Spandana: Well alright! That concludes our explainer on the conflict over the services in Delhi. Thank you so much for that, Joyston. Thank you all for watching this episode of SCO Explains! 

Drop a comment and let us know what you think about who should have the power to govern Delhi? The Union or the local government. Visit our website for the judgement summary, matrix and much more.