Reiterating that the Center had sole legislative and executive control over “services” related to public order, land and police as stipulated in Article 239AA of the Constitution which created a legislative assembly for Delhi, a college of the chief justice DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said, “NCTD’s legislative and executive power over Entry 41 (State Public Services) will not extend to ‘law enforcement, policing and land’ related services.” .
“However, legislative and executive power over services such as the Indian Administrative Services or Joint Cadres Services, which are relevant to the implementation of NCTD’s policies and vision in terms of day-to-day administration of the region, rests with NCTD,” said the five-judge panel in a 105-page unanimous ruling written by CJI Chandrachud, marking the end of the latest round of a long-simmering confrontation between the BJP-led Center and Arvind Kejriwal’s government.
Indeed, the SC stressed that the lieutenant governor would be bound by the elected government’s decision on the issue of controlling bureaucracy in the NCTD.
Since Delhi, unlike full states, does not have a separate public service commission for the recruitment of officers for its services, the bench fell back on the mechanism and arrangement as in the joint cadre services, whereby the central service officers are posted to the states. He said the joint cadre rules would also apply to the NCTD, which is similar to states, being governed by a representative form of government.
The SC stated: “Assignments within the state cadres as well as the joint cadres of a constituent state are to be carried out by the ‘government of that state’, ie the duly elected government. In our case, it will be the NCTD government. Accordingly, we believe that references to “State Government” in the relevant regulations of All India Services or Joint Cadres Services, of which NCTD is a part or which are in relation to NCTD, will mean the Government of NCTD.”
CJI Chandrachud said that this case was about the asymmetric federal government model in India which involved power competition between a union territory and the union government. The issue was who would have control over “services” in the NCTD – an NCTD Government or LG acting on behalf of the Union Government – an issue which arose following a May 21, 2015 notification by the Union Home Office which has given over to the Center on ‘services’ in relation to the NCTD government.
While establishing that the Delhi government had legislative and executive power over utilities except land, police and public order, the bench importantly stated that the GNCTD is unique (“sui generis”) in the territory of the Union, the Parliament would have the prevailing legislative power over all the subjects of List 2 (which are the exclusive competence of the state legislatures) and of List 3 (List concurrent matters on which both Parliament and the assemblies can legislate with the primacy of the laws passed by Parliament). This means that if the Delhi assembly passes a law on any subject, the Parliament can pass a bill that “adds, amends and repeals” the legislation passed by the Delhi assembly.
Focusing on federalism and the responsibilities of an elected government, the CJI affirmed: “In a democratic form of government, the real power of administration must reside in the elected branch of the state, subject to the boundaries of the Constitution. A constitutionally entrenched and democratically elected government must have control over its own administration. If a democratically elected government were not empowered to supervise seconded officials within its domain, then the principle underlying the triple chain of collective accountability would become redundant.” be accountable to Parliament/legislature and Parliament/legislature be accountable to the electorate.
“That is to say, if the government is unable to control and account for the officers assigned to its service, its accountability to the legislature and the public is diminished. The principle of collective accountability extends to the accountability of officers, who in turn report to ministers,” the CS said.
Taking into account the AAP government’s allegation that bureaucrats were not listening to ministers in the elected government due to interference from the Center, the panel of five judges said: “Whether officers stop reporting to ministers or not stick to their directions, the whole principle of collective responsibility.
“A democratically elected government can only function when there is an awareness on the part of officials of the consequences that could ensue if they fail to perform. If officers feel isolated from control of the elected government they are serving, then they become irresponsible or may show no commitment to their performance.”
Explaining the risks of an irresponsible bureaucracy in a democratic form of governance where accountability is well defined under the triple chain of command, the bench said: “An irresponsible and non-responsive civil service can pose a serious governance problem in a democracy . It creates the possibility that the permanent executive, made up of unelected civil servants who play a decisive role in implementing government policy, could act in ways that ignore the will of the electorate.”
