The Supreme Court’s split decision on the question of whether the government of the National Capital Territory of Delhi (NCTD) has executive control over those in its service points to the inherent complexity of the relations between the Delhi government and the Centre. The disadvantages of not having full statehood status has been felt by many elected regimes in Delhi. But under Arvind Kejriwal’s Aam Aadmi Party government, and with the Narendra Modi government at the Centre, the extent of acrimony has been severe. Battles have been fought in the political and judicial spheres over whether some subject or the other falls under the Delhi government or is the exclusive preserve of the Centre. A Constitution Bench ruling last year provided a framework to resolve such issues. It held that the Lt. Governor has to act either on the aid and advice of the Council of Ministers, or abide by the decision of the President on a reference made by him. The power to refer “any matter” to the President did not mean “every matter” should go that way. Specific issues were left to a Bench of Justices A.K. Sikri and Ashok Bhushan, which has resolved most issues. It has upheld the Delhi government’s power to appoint prosecutors, levy and revise stamp duty on property transactions and issue notifications under the Delhi Electricity Reform Act.
Both judges agree that there is no ‘service’ in the Delhi government, as all its employees come under the ‘Central services’. Its civil servants are drawn from the DANICS cadre, a service common to various Union Territories. Justice Sikri believes that going by a Constitution Bench decision last year, the NCTD would indeed have the power to deploy officials within its own departments. However, the absence of a public service in Delhi means Entry 41 in the State List (services; service commissions) would imply that it is a matter inapplicable to ‘Union Territories’, and therefore, the LG need not act on the Delhi government’s aid and advice. Therefore, he favours a solution under which transfers and postings of officers in the rank of Joint Secretary and above could be directly submitted to the LG, and those of others be processed by the Council of Ministers and sent to the LG. In case of any dispute, the LG’s view will prevail. Justice Bhushan, on the other hand, has ruled that once it is accepted that there is no ‘service’ under the NCTD, there is no scope for its government to exercise any executive power in this regard. A larger Bench will now decide on the question relating to control over the services. The more significant challenge is to find a way out of the complexities and problems thrown up by the multiple forms of federalism and power-sharing arrangements through which relations between the Centre and its constituent units are regulated.
