LG and NCT of Delhi Constitution Bench Day #4: Does Art. 239AA Allow the NCT Government to Control its Officers?The Lieutenant Governor and the NCT Delhi
Today, in an unexpectedly lengthy hearing, the 5-Judge Constitution Bench led by CJI D.Y. Chandrachud heard SG Tushar Mehta’s concluding arguments for the Union govt for almost the entire day. He was initially allotted only one hour.
Sr.Adv. A.M. Singhvi, for the Delhi government, who was initially allowed 1.5 hours to present his response, argued for only about 40 minutes before the Bench rose for the day. He will conclude his arguments tomorrow.
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.
SG Tushar Mehta Argues That Federalism Cannot Apply to the National Capital
Solicitor General Tushar Mehta, for the Union, commenced by stating he would confine himself to legal submissions. He then immediately stated that certain incidents like protests have been occurring in Delhi which he termed an ‘embarassment’ since Delhi is visible to the world as the capital of the nation. Sr. Adv. A.M. Singhvi, for Delhi government, interjected, questioning the need for this ‘excursion’. Throughout the hearings, Mr. Singhvi repeatedly pleaded with the Bench to hold the Union to their allotted time.
Mr. Mehta claimed that the government of Delhi did not show the provisions granting them the power to control civil servants. Instead, they only highlighted certain administrative difficulties. He argued that Delhi’s significance as the national capital could not be ignored, and the Court must view his arguments through this lens. As such, the Union is a significant stakeholder in the administration of Delhi.
CJI Chandrachud pointed out that the Government of the National Capital Territory of Delhi Act, 2021 (GNCTD), which concerns areas detached from the capital, was also under consideration. The SG then referred to former CJI Dipak Misra’s majority opinion in the 2018 Judgment, claiming that it recognised federalism only for States, and Union Territories would have less control over administration in comparison.
The SG then argued that there was no concept of federalism between the Union and its extended areas. A Union Territory (UT) merely represents an extension of the Union. He then highlighted the strategic significance of Union Territories. Addressing CJI Chandrachud’s question from the previous hearings on whether limiting the Delhi Assembly’s powers would also restrict the Delhi government’s executive powers, SG Mehta argued that the two were coextensive. A restriction on the former would apply to the latter as well.
Mr. Mehta referred to the 2018 Judgment once more, which emphasised the need for political maturity between the Union and Delhi governments. He claimed that since 1992, the two governments worked closely together. It was only recently that trouble brewed between them. CJI Chandrachud disagreed, stating that ‘hybrid federalism’ exists between the Union and Union Territories. Further, the NCT of Delhi was carved out with a certain degree of federalism. The SG conceded, stating that Union Territories may have a quasi-federalism. However, supremacy must lie with the Union.
Mr. Mehta then referred to Art. 309 which discusses the recruitment and conditions of service of persons serving the Union or States. He highlighted the words ‘in connection with the affairs of the Union’ to argue that Union Territories were not separate from the Union.
Next, the SG referred to the 7th Amendment which introduced Union Territories. He argued that Parliament consciously omitted including separate public service commissions for Union Territories. CJI Chandrachud pointed out that the Jammu & Kashmir Reorganisation Act, 2019, interestingly introduced a public service commission for the Union Territory of Jammu & Kashmir. He asked where the Parliament would derive its power from to create a public service for a Union Territory.
SG Mehta responded that this power arises from Art. 4 of the Constitution. Article 4 refers to the powers of Parliament relating to creation of States and the allocation of Rajya Sabha seats under them. Justice Narasimha asked if the constitution of the service commission in Jammu and Kashmir was in the exercise of Parliamentary power or State Legislative power. Addressing Mr. Mehta’s response that it was a Parliamentary power, he questioned how it was relatable to Article 4.
The SG replied that Parliament possessed the power to create new States by uniting two states, splitting or altering an existing state’s boundaries, etc. After the Union Territory of Jammu and Kashmir was created, there was no question of State legislature.
CJI Chandrachud highlighted a problem with this argument. Entry 41 of the State List—power to create public service commissions—will not apply to a UT since the SG had earlier argued that a UT was not a State with regard to this provision. The CJI then asked the SG if he meant that the ‘affairs of the Union’ under Art. 309 would include all services. Alternately, if he meant those matters entrusted to the Union by Art. 239AA.
The SG then attempted to distinguish between functional and administrative control. He explained that functional control is day-to-day control. This power lies with the Delhi government. On the other hand, administrative control refers to where civil servants are posted, their transfers, etc. It is necessary for the Union to wield this power over the national capital.
CJI Chandrachud stated that it was important to consider where officers are posted. In Mr. Mehta’s scenario, the Delhi government cannot switch officers if they don’t function properly. SG Mehta said a letter could be sent through the LG to the Ministry of Home Affairs (MHA) in such instances. CJI Chandrachud highlighted that this was a matter of accommodation. The officers in question would be aware of this limitation.
Moving on, the SG explained that the performance of these officers would solely be evaluated by the CM and his Council of Ministers. In the last two years, the Delhi government had only given stellar reviews to the officers serving under them.
Sr. Adv. A.M. Singhvi Argues That Art.239AA Allows the NCT of Delhi to Control its Officers
Sr. Adv. A.M. Singhvi responded on behalf of the Delhi government. He stated that he was only seeking the realisation of the rights enshrined in Art. 239AA—specifically the legislative rights over public services. Mr. Singhvi explained that this includes all the executive powers, which flow from the legislative powers of the Delhi government. The Delhi government, he claimed, has the right to choose and exercise control over its officers.
Mr. Singhvi further highlighted that Art. 239AA specifically excluded only 3 subjects from the purview of the Delhi government. There cannot be additional ‘implied exclusions’ in this context. He argued that according to the SG’s submissions, Parliament could only exercise control over Union Territories and not public service commissions as it was currently doing.
CJI Chandrachud clarified that the SG meant Union Territories could not have separate public service commissions. Parliament, however, possessed the power to create new services. The CJI stated that the Parliament’s residuary power under Entry 97 was unlimited—hence is called a rag bag legislation.
The CJI questioned if the Delhi legislature could set up a state commission. Further, can it exercise executive authority over a state commission? Mr. Singhvi answered in the affirmative for both questions.
Mr. Singvi will complete his arguments tomorrow (January 18th, 2022)