Delhi Govt has control over bureaucrats, except for public order, police and land: SC on Delhi vs Centre row

New Delhi [India], May 11 : The Supreme Court on Thursday said that the division of administrative powers between the Union and Delhi government "must be respected" and held that the Delhi government has "legislative and executive power over services" in the national capital, including the bureaucrats, except those relating to public order, police and land.
A five-judge Constitution bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Justice Krishna Murari, Hima Kohli and PS Narasimha said, "The division of administrative powers between the Union and the Government of the National Capital Territory of Delhi (NCTD) as explained... must be respected."
The apex court in its 105-page-judgement said that the government of Delhi is not similar to other Union Territories.
"By virtue of Article 239AA, NCTD is accorded a "sui generis" status, setting it apart from other Union Territories," the bench in its verdict stated.
Article 239AA provides the framework for the exercise of legislative powers by the legislative assembly of the Union territory of Delhi and the Parliament in respect of Delhi. Entry 41 of the List-II (State List) authorises a state government to frame laws on state public services and state public service commission.
The executive power of the Delhi government is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate, the bench opined.
"The Union of India has executive power only over the three entries in List II over which the government of NCTD does not have legislative competence," it added.
In a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration, the bench said.
"The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected. A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance," it added.
The apex court also reiterated that in light of Article 239AA and the 2018 Constitution bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Delhi government in relation to matters within the legislative scope of Delhi.
"As we have held that NCTD has legislative power over "services" (excluding 'public order', 'police', and 'land') under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services, as explained above. To clarify, any reference to "Lieutenant Governor" over services (excluding services related to 'public order', 'police' and 'land') in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD," the judgement added.
The verdict of the apex court came on the tussle between Delhi and the central government on the contentious issue of who should control administrative services in Delhi over the transfers and postings of officers in the national capital.
The judgement of the top court further said that in a democracy, accountability lies with the people who are the ultimate sovereign.
The parliamentary form of government adopted in India essentially requires that Parliament and the government, consisting of elected representatives, to be accountable to the people.
It said that the civil servants are required to be politically neutral and they are accountable to the ministers of the elected government, under whom they function.
"Civil servants are required to be politically neutral. The day-to-day decisions of the Council of Ministers are to be implemented by a neutral civil service, under the administrative control of the ministers. In order to ensure that the functioning of the government reflects the preferences of the elected ministers, and through them the will of the people, it is essential to scrutinise the link of accountability between the civil service professionals and the elected ministers who oversee them," it added.
The verdict further stated, "Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in turn accountable to Parliament or, as the case may be the state legislatures. Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability."
An unaccountable and non-responsive civil service may pose a serious problem of governance in a democracy, the bench opined.
It creates a possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate, added the verdict.
On February 14, 2019, a two-judge bench of the top court had delivered a split verdict on the question of powers of the GNCTD and Union government over services and referred the matter to a three-judge Bench. The case was later sent to a five-judge Constitution bench.
In the two-judge bench, while Justice Ashok Bhushan had ruled the Delhi government has no power at all over administrative services. Justice AK Sikri, however, had said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the Lieutenant Governor would prevail in case of a difference of opinion for matters relating to other bureaucrats.
The two-judge bench which was hearing pleas on six matters pertaining to a long-running conflict between the Centre and the Delhi government, had given a unanimous order on the remaining five issues except the control over services.
Governance of the national capital has witnessed a power struggle between the Centre and the Delhi government since the Aam Aadmi Party (AAP) came to power in 2014.
Prior to February 2019 judgement, a five-judge constitution bench of the Supreme Court had on July 4, 2018, laid down the broad parameters for governance of the national capital. In the landmark verdict, it had unanimously held that Delhi cannot be accorded the status of a State but clipped the powers of the LG saying he has no "independent decision-making power" and has to act on the aid and advice of the elected government.
It had restricted the jurisdiction of the LG to matters pertaining to land, police and public order and on all other matters, it held that the LG would have to act on the aid and advice of the council of ministers.