Five years ago, a Constitution Bench of the Supreme Court advised the Centre, acting through the Lieutenant-Governor, and the Delhi government led by Chief Minister Arvind Kejriwal to follow the path of “collaborative federalism”.
The term, coined by the court in its July 2018 judgment, merely meant that the Centre and the Delhi government should lay aside their differences, show mature statesmanship in their relationship. The five-judge Bench had held that the two powers — Centre and Delhi government — were “inter-dependent”.
“In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it,” the Constitution Bench had observed. It had advised “continuous and seamless” interaction between the Union and the State Governments”.
The advice seemed to have gone unheeded as a second Constitution Bench, led by Chief Justice of India D.Y. Chandrachud, is scheduled to deliver another judgment in the Delhi versus Centre dispute, this time over who has control over the bureaucrats.
The July 2018 judgment had declared that the Delhi government had exclusive executive powers, except under Entries 1 (public order), 2 (police) and 18 (land) of the State List. It had cautioned the L-G to only intervene in matters “fundamental” to Delhi which could be escalated to the President. The five-judge Bench had asked the L-G not to delay official files sent to him by the Cabinet. In this way, the Constitution Bench had mellowed an August 4, 2016 judgment of the Delhi High Court which had declared the L-G to have “complete control of all matters regarding National Capital Territory of Delhi, and nothing will happen without the concurrence of the LG”.
However, the Constitution Bench, while laying down the law, had left questions raised in individual appeals — like who would wield control over “civil services” in Delhi — to be decided by a smaller Bench.
In February 2019, a Division Bench of Justices Ashok Bhushan and AK Sikri heard these appeals but delivered a split decision. Justice Bhushan held that the Kejriwal government had no power over civil services or the bureaucrats deployed in various Delhi government departments. Justice Sikri tried to strike a balance by deciding 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. DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre files could be processed through the Council of Ministers led by the Chief Minister to the L-G, the judge had observed.
As the case remained pending in the apex court after the split verdict, the Centre went ahead and got the Government of National Capital Territory of Delhi (Amendment) Act 2021 and the Transaction of Business of Government of National Capital Territory of Delhi (Amendment) Act passed in Parliament.
This saw the Delhi government challenge the amended sections of the GNCTD Act, contending that they diminish the constitutionally-guaranteed powers and functions of the elected Legislative Assembly and Council of Ministers of Delhi. It argued that the new statutes were a blatant attempt to overrule the July 2018 Constitution Bench judgment as they treated the L-G as the “default administering authority over the NCT of Delhi by equating the position of the L-G with that of the government.
It took till May 2022 for a three-judge Bench of the Supreme Court to refer the case over to a Constitution Bench for an authoritative pronouncement on the question of functional and administrative control over ‘civil services’.
A Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha began hearing the reference from September last year.
The Delhi government complained that the Centre was driving the erosion of federalism. “What collective responsibility will the Delhi government have without the power to control the transfers and postings of the officers?” senior advocate A.M .Singhvi had asked the Constitution Bench.
The Centre, on the other hand, represented by Solicitor General Tushar Mehta, countered that the national capital was a sprawling metropolis. The Union government should control it. Delhi cannot be left to the “small mercies and smaller resources” of a State legislature, the Centre had reasoned.
Mr. Mehta had argued that Union Territories were actually extensions of the Central government. “The very purpose of demarcating a particular geographical area as a Union Territory by itself suggests that the Union itself wants to administer the territory through one of its officers,” the top law officer had contended.
