11 May 2023 1:08 PM GMT
The Supreme Court of India on Thursday emphasised the importance of ensuring that the governance of states is not taken over by the central government, while delivering a crucial verdict confirming that the control over administrative services – barring those related to public order, police, and land – in the national capital belonged to the government of the national capital...
The Supreme Court of India on Thursday emphasised the importance of ensuring that the governance of states is not taken over by the central government, while delivering a crucial verdict confirming that the control over administrative services – barring those related to public order, police, and land – in the national capital belonged to the government of the national capital territory of Delhi.
A constitution bench comprising Chief Justice DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha, in arriving at this unanimous conclusion, extensively examined the features of Indian federalism and the domains of competence of the Centre and the states. Federalism – a basic structure of the Constitution – in a multi-cultural, multi-religious, multi-ethnic and multi-linguistic country like India ensured the representation of diverse interests, the bench said, before adding, “It is a means to reconcile the desire of commonality along with the desire for autonomy and accommodate diverse needs in a pluralistic society. Recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy.” It further observed:
“Thus, in any federal Constitution, at a minimum, there is a dual polity, that is, two sets of government operate: one at the level of the national government and the second at the level of the regional federal units. These dual sets of government, elected by ‘We the People’ in two separate electoral processes, are a dual manifestation of the public will. The priorities of these two sets of governments which manifest in a federal system are not just bound to be different but are intended to be different.”
The bench noted that the architects of our Constitution consciously chose to limit the executive authority of the central government in states in the interest of federalism. Chief Justice Chandrachud, who authored the judgement on behalf of his colleagues, wrote:
“The executive power of the union ‘in a state’ over matters on which both states and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of states is not taken over by the Union. This would completely abrogate the federal system of governance and the principle of representative democracy. It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a state over matters on which the state also has legislative competence. In the spirit of cooperative federalism, the Union of India must exercise its powers within the boundaries created by the Constitution.”
While the national capital territory of Delhi is not a full-fledged state, it can also not be brought within the common class of union territories, being accorded a ‘sui generis’ status by a constitution bench in 2018. “The Union and the NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a ‘state’,” the bench categorically stated. It added that interpreting Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism. In this connection, the apex court excerpted a paragraph from the majority judgement of the 2018 constitution bench:
“Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.”
The bench observed that the relationship between the union and the Delhi Government resembled an ‘asymmetric’ federal model under which the latter exercised its legislative and executive control in specified areas of the State List and Concurrent List of the Constitution’s Seventh Schedule. However, keeping in mind the ‘sui generis’ position of the national capital territory, and the importance of ensuring democratic accountability to the people being governed, the constitution bench concluded:
“Article 239AA which conferred a special status to the national capital territory of Delhi and constitutionally entrenched a representative form of government was incorporated in the Constitution, in the spirit of federalism, with the aim that the residents of the capital city must have a voice and how they are to be governed. It is the responsibility of the government of the 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 exclusion of subjects which are out of its legislative domain.”
This decision comes as a major relief to Delhi’s ruling Aam Aadmi Party (AAP), which has been engaged in a war of attrition with Lieutenant Governor VK Saxena over the division of authority and sharing of power in the national capital.
The issue in the case was whether the Government of NCT of Delhi had legislative and executive powers in relation to 'services' under Schedule VII, List II, and Entry 41 of the Constitution of India and whether the officers of the various 'services' such as IAS, IPS, DANICS, and DANIPS, who had been allocated to Delhi by the Union of India, came under the administrative control of the Government of NCT of Delhi.
In February 2019, two judges of the Supreme Court had expressed divergent views, pursuant to which, the matter was directed to be placed before a three-judge bench for resolution. Justice AK Sikri held that transfers and posting of officers of and above the rank of joint secretary were under the powers of lieutenant governor of Delhi; other officers were under the control of Delhi government. Justice Ashok Bhushan dissented to hold that ‘services’ were totally outside the purview of Delhi Government.
In 2022, the then-Chief Justice of India, NV Ramana constituted a three-judge bench to adjudicate on the dispute. Later, the three-judge bench referred to a constitution bench limited questions pertaining to the legal dispute. Following this, the five-judge bench headed by Chief Justice DY Chandrachud started hearing the dispute, which has finally been resolved today.
Government of NCT of Delhi v Union of India | 2023 LiveLaw (SC) 423
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