The Centre on Saturday approached the Supreme Court seeking review of the May 11 Constitution bench judgement in which the apex court held that the Delhi government has “legislative and executive power over services” in the national capital.
The said judgement “suffers from errors apparent on the face of the record and fails to consider the case,” the Centre said in the petition. The Centre also filed an application for an open court hearing of the review petition in the interest of natural justice. “Under the constitutional scheme, the distribution of legislative powers is only envisaged with respect to the parliament and the legislatures of states.” There is no category of distribution of legislative power with respect to the legislative assemblies of Union Territories, and the sole source of legislative power in Union Territories is the Parliament alone,” the review plea submitted.
The Centre yesterday brought an ordinance to create for the first time a National Capital Civil Service Authority (NCCSA) that will have the power to recommend the transfer and posting of all Group A officers and officers of DANICS serving in Delhi. NCCSA will be headed by the Chief Minister of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi being the other two members. On Friday, the Centre brought an ordinance designating the Lieutenant Governor (LG) as the administrator of Delhi, who will have the final say on the postings and transfers of all bureaucrats serving the Delhi government.
The ordinance, promulgated by President Droupadi Murmu, seeks to amend the Government of National Capital Territory (NCT) of Delhi Act, 1991, and effectively negates the Constitution bench verdict that gave the Aam Aadmi Party (AAP) government the power to make laws and wield control over bureaucrats deputed to the Delhi government.
It said that all matters required to be decided by the authority shall be decided by a majority of the votes of the members present and voting. In case of a difference of opinion in the Authority, the final decision will lie with the Lieutenant Governor of Delhi, the ordinance said.
On 11 May, a five-judge Constitution bench unanimously said that the division of administrative powers between the Union and Delhi governments “must be respected” and held that the Delhi government has “legislative and executive power over services” in the national capital, including the bureaucrats, except those relating to public order, police, and land. The apex court, in its 105-page judgement, has said that the government of Delhi is not similar to other Union Territories. “By virtue of Article 239AA, NCTD is accorded sui generis” status, setting it apart from other Union Territories,” the bench stated in its verdict. Article 239AA provides the framework for the exercise of legislative powers by the legislative assembly of the Union territory of Delhi and the Parliament in respect of Delhi. Entry 41 of List II (State List) authorises a state government to frame laws on state public services and the state public service commission.
The executive power of the Delhi government is co-extensive with its legislative power; that is, it shall extend to all matters with respect to which it has the power to legislate, the bench has opined. The bench further said that “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 apex court has also reiterated that, in light of Article 239AA and the 2018 Constitution bench judgement, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Delhi government in relation to matters within the legislative scope of Delhi.
The judgement of the top court has further said that in a democracy, accountability lies with the people, who are the ultimate sovereign. The verdict of the apex court has come on the tussle between Delhi and the Central government on the contentious issue of who should control administrative services in Delhi over the transfers and postings of officers in the national capital.
