By
Amritananda Chakravorty
The tussle between the Government of
National Capital Territory of Delhi and the Central Government looks unlikely
to end, with a recent Supreme Court decision rendered on the power sharing
arrangment between the two. This judgment came in the backdrop of the
Constitution Bench decision in the Government of NCT of Delhi vs. Union of
India (decided on 04.07.2018), which discussed in detail the ‘status’ of Delhi
in the constitutional structure, the powers of the Legislative Assembly and the
Lieutenant Governor (‘LG’). The Constitution Bench had held that the status of
NCT of Delhi was sui generis, a class apart, and the status of the LG was not
of a Governor of a State, but he remained an administrator, in a limited sense.
The Bench further held that the
mandate of the LG was to act on the ‘aid and advise’ of the Council of
Ministers, except when a matter was referred to the President for decision.
Accordingly, the executive power of the Delhi Government was co-extensive with
its legislative powers, except for three subjects in the State List, i.e.,
public order, police and land. Accordingly, the Bench sent the specific appeal
between the two governments to a regular bench for adjudication, which arose
from a decision of the Delhi High Court upholding the notifications of the
Ministry of Home Affairs. This is how the present case came to be heard.
The Bench of Justice A.K. Sikri and
Justice Ashok Bhushan outlined five basic issues:
- Whether the
exclusion of ‘services’ from the legislative and executive domain of the NCTD,
vide notification dated May 21, 2015, is unconstitutional and illegal? - Whether the
exclusion of the jurisdiction of the Anti-Corruption Branch (‘ACB’) of Delhi to
investigate offences committed under the Prevention of Corruption Act, 1987 by
the officials of the Central Government and limiting the jurisdiction of ACB to
the employees of the GNCTD alone is legal? - Whether the GNCTD
is an appropriate government under the Commission of Inquiry Act? - Whether the power
to issue directions with the Electricity State Commission is with the
Government of NCT of Delhi? - Whether the Revenue
Department of the GNCTD had the power to revise the minimum rates of
Agricultural Land (Circle Rates) without the approval of LG? - Whether it is the LG or the GNCTD which has the power to appoint the
Special Public Prosectors under Section 24, CrPC?
On the issue of ACB, the Apex Court
held that since the Central Government has exclusive jurisdiction over ‘police’
under Article 239AA (3) of the Constitution, to the exclusion of GNCTD, it
would extend to issuing administratice/executive directions to the police as
well. Thus, the Centre has the power to demarcate and segregate the
jurisdiction of the two forces, i.e., ACB and the police. The ACB was created
by the LG, vide a 1993 notification, which was not challenged, and the 2015
notification was only a modification on the earlier one, to the extent it
stated that the ACB could only investigate cases against the GNCTD employees,
and not the Central government employees. Thus, the Court upheld the validity
of 2015 notification. In a nutshell, it means that the Kejriwal Government
cannot investigate corruption allegations against the Delhi police personnel or
any Central Government employees, which was one of the biggest demands of the
AAP government.
Even on the issue of appointment of
Commission of Inquiry under the COI Act, the Court held that only the Central
Government had the power to appoint any such commission, since the law under
Section 2(60) of the General Clauses Act defines the state government for a
union territory as the Central Government.
In terms of Delhi Electricity
Regulatory Commission, the Court held that the Delhi Government had the power
to issue directions to the DERC in matters of policies involving public
interest. With respect to circle rates, the Court noted that the Government
cannot issue notification without informing the LG of its decisions, though it
could control the same. Regarding the appointment of SPPs, the Apex Court
upheld the power of the Delhi Government for their appointments, and the LG had
to act on the aid and advise of the Council of Ministers.
While the above issues were
adjudicated by a consensus decision, the Court had a split decision with
respect to services. Justice Sikri opined that“transfers and postings of
Secretaries, HODs and other officers in the scale of Joint Secretary to the
Government of India and above can be done by the Lieutenant Governor and the
file submitted to him directly” while “for other levels, including DANICS
(Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be
routed through the Chief Minister to L-G” and in case of a difference, the view
of the LG would prevail. However, Justice Bhushan differed and noted that the
Delhi Government did not have any power over ‘services’ and relied on the
Balakrishnan Committee Report, which had said that the Entry in question was
not in the domain of the GNCTD. Accordingly, the Bench referred the issue of ‘services’
to a larger bench for adjudication.
It is noted that the judgment came to
be criticised by the Delhi Government, owing to the fact that it would make the
governance of Delhi by the Delhi Government quite restricted, if they did not
have power over services or if ACB could investigate corruption allegations
against central government employees or appoint commission of inquiries. One
needs to wait for a final decision on the question of ‘services’, but till
then, the people of Delhi have to make do with the current stalemate. Further,
the Court ought to have noted the clear attempts made by the present Central
Government to thwart the Delhi Government’s decision-making powers, in
violation of the constitutional provisions. Strictures should have been passed
by the Court in this realm. (IPA
Service)
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