Delhi government officers to be under state control
4 min read . Updated: 12 May 2023, 12:35 AM IST
PremiumThe top court said this decision aims to ensure that elected governments have control over their officers, allowing them to express the people’s will
The Supreme Court on Thursday ruled that Delhi government officers, excluding those in departments related to public order, land, and police departments under the Union government’s control, will be subject to the administrative and legislative control of the elected Delhi government.
The top court said this decision aims to ensure that elected governments have control over their officers, allowing them to express the people’s will.
In a unanimous verdict, a five-judge Constitution bench led by Chief Justice of India Dhananjaya Y. Chandrachud ruled in favour of the Delhi government’s petition challenging a 2015 notification that restricted the legislative scope of the Delhi Assembly regarding “state public services" under Entry 41 of List II. “The government of the national capital territory of Delhi (NCTD) has legislative and executive power over “services", that is, Entry 41 of List II of the Seventh Schedule," the bench said.
Stating that control over officers is vital to the performance of an elected government, the bench, also comprising justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, said, “It is the responsibility of the government of NCTD 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 the exclusion of subjects which are out of its legislative domain."
The judgment clarified that this power over Entry 41 would not extend to services related to public order, police and the land of the State List as Article 239AA of the Constitution, providing the powers of the Delhi Assembly, places them under the legislative control of the Union government.
“However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD ( National Capital Territory of Delhi) in terms of the day-to-day administration of the region shall lie with NCTD."
This is the second Constitution bench decision on the contours of Article 239AA of the Constitution, after the first that came in July 2018 authoritatively held that the Lieutenant Governor (L-G) of Delhi is to act on the aid and advice of the Council of Ministers of Delhi government and not independently on all matters except the three excluded areas. The court reiterated this principle and held that in matters of “service", too, the L-G shall be bound by the aid and advice of the Delhi government.
The Union Government, through Solicitor General Tushar Mehta, justified its 2015 notification on multiple grounds, including being that Delhi is a Union territory and does not have its own public service akin to states. It was further argued that control over bureaucracy ought to rest with the Centre owing to the national and international implications on account of Delhi being the national capital.
The bench responded by saying, “A constitutionally entrenched and democratically elected government needs to have control over its administration," while adding, “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."“An unaccountable and non-responsive civil service may pose a serious problem of governance in a democracy," it added.
Writing the 105-page judgment for the bench, CJI Chandrachud said that the government’s policies are implemented not by the people, Parliament, the Cabinet, or even individual ministers but by civil service officers, who are required to be “politically neutral".
“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," added the bench
Noting further dangers of accepting the Centre’s submissions, the bench said, “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 they are serving, the bench added, “they become unaccountable or may not show commitment towards their performance."
The Union government relied on the words “in so far as any such matter is applicable to Union territories," occurring in Article 239AA(3) to limit legislative and executive control of the Delhi government. The court said that Article 239AA provides sufficient safeguards by limiting the role of Delhi’s legislative assembly to decide on subjects under State List and Concurrent List.