Delhi-Centre Government dispute over control of services of NCT Region

Syllabus: General Studies Paper 2

Background

• The proceedings have their genesis in the Delhi High Court judgment of 2017, whereby it held that for the purposes of administration of the NCT of Delhi, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
• On appeal, the SC in 2017 referred the matter to decide on the interpretation of Article 239AA.
• By a majority decision in 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
• It said that while the council of ministers must communicate all decisions to the L-G, this does not mean that the latter’s concurrence is required. In case of a difference of opinion, the L-G can refer it to the President for a decision.
• The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the Council of Ministers or is bound to implement the decision of the President on a reference being made
• Thus the bench limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches
• In 2019 two judge benches upheld two notifications issued by the Centre which had the effect of excluding the jurisdiction of the Delhi government’s Anti-Corruption Branch from probing offences committed by the central government officials and limiting it to employees of the Delhi government.
• However, the judges, differed on who should have control over administrative services
• This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question as the 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA. Thus prompting SC to refer the issue to larger constitutional bench

Unresolved Areas in the 2018’s Judgement:

• Overlapping Areas: Though the court has settled that LG is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’. However, Public Order is a very wide connotation, which subsequently leads to overlapping executive powers.
• Still No Clarity on Article 239AA (4): The court did not very clearly delineate the issues in respect of which the LG can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the LG and the State government.
• Open-Ended Terminologies: In the event of referring any matter to the President, the Court enunciated that LG must adhere to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governance. However, these terms are very wide and open- ended. They are subject to different interpretations.

Latest Issues

The Delhi government has also separately sought the quashing of amendments to the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.

• It has contended that the amendments violate the doctrine of basic structure of the Constitution and that the Centre, through these changes, has given more power to the Lieutenant Governor than the elected government of the people of Delhi.

Delhi Government’s arguments:

The National Capital Territory government had compared its predicament without power over the ‘services’ like that of a king without a kingdom.

• For example, the government had to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary. This makes administration really difficult and undemocratic.

The government argues that without the power to control the transfers and postings of the officers, the Principle of “Collective Responsibility” will not be upheld.

Delhi Administration Under Constitution

Delhi is a Union Territory with a legislature and it came into being in 1991 under Article 239AA of the Constitution inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991.

• As per the parent Act, the legislative assembly of Delhi has power to make laws in all matters except public order, police and land.