Today, a 5-Judge Constitution Bench led By Chief Justice D.Y. Chandrachud began hearing arguments in the tussle over the control of Delhi’s civil servants between the Union and the Delhi governments.
The dispute between the Union and Delhi governments over the control of the NCT of Delhi dates back to 2013 when the Aam Aadmi Party came to power in the national capital. Despite being a Union Territory, Article 239AA grants special status to Delhi by establishing its Legislative Assembly along with its Chief Minister and Council of Ministers—features normally possessed by a State. However, as a Union Territory, Delhi also has a designated administrator or the ‘Lieutenant Governor’ (LG).
Confusion arose over the unique relationship between these two government heads and the extent of the power they exercise over the NCT of Delhi. In 2018, a 5-Judge Constitution Bench of the Supreme Court ruled that the Lieutenant Governor is bound by the aid and advice of the NCT of Delhi’s Council of Ministers. In 2021, in an attempt to retain control over the national capital, the Union passed the Government of National Capital Territory Act (Amendment) Act, 2021 (the Act), which barred the Delhi Assembly from considering the day-to-day administration of the capital.
The Delhi government protested against the Act since it shifted the control of Delhi’s civil servants from itself to the LG, who is the Union’s representative. The Delhi government claims that it cannot implement policies in the NCT as the civil servants supposed to implement them are not under its control. They also argue that the Act diminishes the role of Delhi’s elected government, violating basic constitutional features of federalism, democracy, and the rule of law.
Sr. Adv. A.M. Singhvi: The Case Concerns Accountability of Civil Servants, Not Just the Tussle of Powers
Sr. Adv. A.M. Singhvi, appearing for the Delhi govt, began arguments today. He pointed out that the case was not a dispute concerning the distribution of powers between the Union and the Delhi governments. Instead, it concerned the accountability of Delhi’s civil servants. He explained that Civil Servants were accountable to the council of ministers, who are in turn accountable to the legislature. The legislature answers to the people who voted them to power.
Mr. Singhvi argued that this chain of accountability was broken in Delhi. Since Delhi’s civil servants were accountable to the Union instead of the NCT of Delhi’s Executive, the people of Delhi have no control over their civil servants. He highlighted that the function of any govt is to fulfil the will of the people. The govt can only formulate policies to do so. The implementation of these policies is done through civil servants.
Therefore, for a government to exist, Mr. Singhvi argued that it must have the ability to first, create posts for civil servants, second appoint staff to these posts, and third, interchange them according to the perceived sense of need and ability.
Excluding the Delhi govt from controlling its own civil servants negates the very purpose of the government. Mr. Singhvi argued that if civil servants are not answerable to the Delhi govt, it would create ‘complete insubordination and chaos’.
Sr. Adv. A.M. Singhvi: Union Cannot Usurp Delhi Government’s Powers Without Relevant Constitutional Amendment
Next, Mr. Singhvi addressed Art. 239AA which established the NCT of Delhi, its Legislature and its Lieutenant Governor (LG). He pointed out that the LG must exercise their powers on the ‘aid and advice’ of Delhi’s CM and council of ministers save for a few exceptions.
If the LG and the council of ministers disagree on any matter, then the LG must refer it to the President except in the ‘rarest of rare’ cases. He argued that the LG cannot assume the Delhi Executive’s powers on ‘every’ occasion. Further, the Delhi government had control over all matters in the State List except for public order, police and land. The Union, through the LG, cannot take away these powers from the Delhi government.
Mr. Singhvi pointed out that the Delhi govt’s powers originate from Schedule 7 of the Constitution which lays down the State and Union Territory List of powers. Only another Constitutional Amendment can change a power granted by the Constitution. A Constitutional Amendment requires a 2/3rd majority vote in the Parliament and ratification by at least 50% of the States to be approved. These criteria were not fulfilled to take away the Delhi govt’s powers.