Opening its arguments against the Centre in their battle for control over the bureaucracy in the Capital, the Arvind Kejriwal government said Delhi was a “hybrid” with unique features leaning towards statehood.
Appearing before a Bench led by Chief Justice of India N.V. Ramana, senior advocate A.M. Singhvi, for Delhi, said a democratically elected government should not be left without powers to even transfer officials.
The NCT government’s predicament without power over the ‘services’ has been like that of a king without a kingdom. The situation was such that a “democratic representative government” has to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary.
Solicitor General Tushar Mehta made a prima facie submission that the case should be heard by a Constitution Bench and not a three-judge one as it involved several crucial constitutional questions of law.
But the CJI Bench decided to go ahead with Mr. Singhvi’s submissions for the Delhi government.
2018 verdict
Mr. Singhvi, with advocate Shadan Farasat, referred to a Constitution Bench judgment of 2018 in which the Supreme Court had unanimously held that the Lieutenant Governor (L-G) of Delhi was bound by the “aid and advice” of the popularly-elected Aam Aadmi Party (AAP) government and both have to work harmoniously with each other. It had noted that there was no room for anarchy or absolutism in a democracy.
Mr. Singhvi referred to the 2018 judgment which had held that except for issues of public order, police and land, the Lieutenant Governor was bound by the “aid and advice of the Kejriwal government, which has the public mandate.”
“Real authority to take decisions lie in the elected government. This is the meaning of ‘aid and advice.’ Titular head [L-G] has to act in accordance to aid and advice,” the Supreme Court had observed in the 2018 verdict which dealt with the power tussle between the L-G and the Delhi government.
The four-year-old judgment had concluded that there was no independent authority with the L-G to take decisions except in matters under Article 239 or those outside the purview of the National Capital Territory (NCT) government.
‘Collective, co-extensive’
Mr. Singhvi argued on Tuesday that the 2018 judgment had made it clear that the powers of the Centre and the Delhi government were collective and co-extensive.
“What collective responsibility will the Delhi govt have without the power to control the transfers and postings of the officers? Federalism is itself being eroded,” the senior lawyer argued.
He said the Delhi government lived in no ivory tower. “Look at the practicality. What control will the government have over an officer on whom it has no power to even transfer?” Mr. Singhvi argued.
Split opinion
The issue dates back to February 14, 2019 when an apex court Bench of Justices A.K. Sikri and Ashok Bhushan (both retired) gave a split opinion on the question of control over ‘services’ or bureaucracy in the Capital.
While Justice Bhushan had held that the Delhi government had no power over ‘services’, Justice Sikri, who was the lead judge on the Bench, took the middle path.
Justice Sikri had concluded that files on the transfers and postings of officers in the rank of secretary, head of department and joint secretary could be directly submitted to the Lieutenant Governor (L-G). As far as DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre was concerned, the files could be processed through the Council of Ministers led by the Chief Minister to the L-G. In case of a difference of opinion, the L-G prevailed.
The Delhi government has also sought the quashing of amendments to the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.
It has contended that the amendments violate the doctrine of basic structure of the Constitution and that the Centre, through these changes, has given more power to the Lieutenant Governor than the elected government of the people of Delhi.
