In a dispute between the Centre and the Delhi government, the Supreme Court held on Thursday, 11 May, that the Delhi government has control over the bureaucracy in the National Capital Territory (NCT) of Delhi.

A democratically elected government needs to have control over its administration, the Supreme Court said while ruling that the Delhi government has legislative and executive powers over services except for public order, police and land.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud said 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 administration comprises of several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment.

‘Article 239A establishes legislative assembly for NCT’

The Supreme Court says: “Article 239A establishes legislative assembly for National Capital Territory of Delhi. Members of the legislative assembly are elected by Delhi electorate. Art 239A must be interpreted so as to further the representative democracy.”

Principle of triple chain of collective responsibility 

“For instance, an officer recruited by a particular government may serve on deputation with another government. If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant,” the bench said.

The apex court said if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.

“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,” said the bench, which also comprised Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.

The top court said it is the responsibility of the Delhi government to give expression to the will of the people of Delhi who elected it.

“Therefore, 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,” the bench said.

Asserting that an elected government needs to have control over the administration, the top court, said the Union territory of Delhi has “sui generis (unique) character” and refused to agree with the 2019 judgement of Justice Ashok Bhushan that the Delhi government has no power over the issue of services.

The case: 

The bench had deliberated over a dispute between the Union and Delhi government over legislative and executive powers over who had administrative control over the officers of the various ‘services’ (IAS, IPS, DANICS, and DANIPS)  who had been allocated to Delhi by the centre.

“This case deals with the asymmteric model of federal governance in the country. The issue is who will have the power to control administrative services in Delhi,” the bench said.

Background of the case: 

The case came up in 2018 when a Constitution bench of the apex court said that the Lieutenant governor cannot act without the advice of the Council of Ministers and has to work in tandem with the NCT government.

The petitions pertaining to disputes over individual aspects, including administrative services were passed on to a two-judge bench based on the Constitution bench verdict.

However, the two judges on the Bench – Justices AK Sikri and Ashok Bhushan – disagreed over ‘services’ under Schedule VII, List II, Entry 41 of the Constitution of India.

After the judges differed, the case related to administrative services was placed before a three-judge bench. The new bench, however, referred the case to the current Constitution Bench on the centre’s request.

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By Srishti

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