SC verdict on Delhi govt's powers a shot in the arm for federalism

After a winding eight-year-long legal battle, a five-judge Constitution Bench of the Supreme Court on Thursday (May 11) finally pronounced that the elected government of Delhi has “legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services”, except in matters of public order, land, and police, which remain the exclusive domain of the Centre.

The apex court, in unambiguous terms, also held that the “involvement of the Union of India” in the administration of the National Capital Territory of Delhi (NCTD) is “limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance”.

Judgement is a blow to Centre, LG

This lucid exposition by Chief Justice of India DY Chandrachud, who authored the unanimous verdict, must displease a meddlesome BJP-led central government and its appointee, the Lieutenant Governor. As has been clear for some time now, the Centre and its LG have progressively emasculated powers of the Delhi government and the Delhi Assembly through evidently deliberate misinterpretation of the Constitution to misappropriate power over the administration of the national capital.

The CJI-led bench not only reiterated the conclusion reached by the apex court in 2018 that the “Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope” of the Delhi government but also laid down quite plainly that any reference to the Lieutenant Governor over services (excluding the restricted entries of public order, police, and land) “in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD”.

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For the sake of brevity and since Thursday’s (May 11) judgement has now hopefully untangled the labyrinth of Delhi’s administrative structure, let us skip a recap of the judicial twists and turns that played out in the Delhi High Court and the Supreme Court over the past eight years regarding the separation of powers between the Delhi government and the LG.

The extant case settles in favour of the Delhi government the question of who – the Delhi government or the Centre, through the LG of Delhi – enjoys executive powers over Services (to be read as administrative services, their transfers, postings, etc. and not ‘essential’ services) related to various Delhi government departments.

Win for democracy: AAP

That the case had a strong political dimension to it was evident in the sharp reactions to the verdict by the Delhi chief minister Arvind Kejriwal and his AAP colleagues, who variously hailed the judgement as a “win for democracy” and a rap on the knuckles for a “dictatorial” and “autocratic” central government bent on subverting the principles of federalism.

There is no doubt that the verdict will now allow Kejriwal’s AAP, besieged in recent months by controversies over the massive renovation bill for the Delhi CM’s residence, the liquor scam and the arrests of its key leaders like Manish Sisodia and Satyendra Jain, to go on the offensive against the BJP-led Centre. In the five years that the SC took to dispose the case, the Modi government used an amendment to the GNCTD Act to exponentially increase powers of the LG while reducing those of the elected Delhi government and the state assembly. As such, it is unlikely that this judgement will end the acrimony between Kejriwal and the Centre even though the CM now has judicial sanction for better and more autonomous administration of Delhi.

Verdict strengthens federalism and representative democracy

Be that as it may, what must stand out about Thursday’s (May 11) verdict – though this is unlikely given how politics always takes precedence over nuances of the law – is the seminal contribution it makes towards strengthening federalism and safeguarding representative democracy against threats of subversion by a regime that prefers centralisation of power.

Thursday’s judgement is distinct – and fortunately so – from the 2018 apex court verdict in its articulation. The 2018 verdict too had rapped the LG – and by extension, the Centre – for being “obstructionist” and concluded that the administrator has very limited powers of his own and must, on most counts, act upon the aid and advice of Delhi’s council of ministers. However, it fell into that familiar trap of rambling judgements that are as heavy on platitudes and homilies as they are on ambiguities, thereby allowing wide scope for misinterpretation or further litigation. CJI Chandrachud’s verdict, as opposed to the one authored in 2018 by then CJI Dipak Misra, brilliantly avoids that trap.

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The real majesty of Thursday’s verdict, however, lies in its pellucid affirmation of federalism, a liberal, and not conservative, interpretation of the Constitution vis-a-vis powers of a State Government and those of the Centre, and in the note of caution it sounds against the pitfalls of a central government not recognising these principles as essential for good governance in a country as vast and diverse as India.

Delhi’s special status under Article 239AA

The question of how the administration of Delhi, with its unique constitutionally-granted special status under Article 239AA of the Constitution, differs from that of other Union Territories has been the cause of political slugfests – though their intensity has varied – whenever different political parties have concurrently been in power in Delhi and at the Centre. Thursday’s verdict coherently settles this question – and hopefully for the final time.

The judgement notes that “Article 239AA creates a wide variation in structures of governance of NCTD as compared to other Union Territories, with differences even as regards the manner in which legislative powers have been bestowed upon them”.

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CJI Chandrachud then goes on to underscore such “variance in the constitutional treatment of Union Territories as well as the absence of a homogeneous class is not unique only to Union Territories” as the Constitution is “replete with instances of special arrangements being made to accommodate the specific regional needs of States in specific areas”.

Verdict refers to Article 371 – special provisions for different regions

What the verdict notes next is something that any votary of federalism must find heartening. “NCTD is not the first territory which has received a special treatment through a constitutional provision, but it is another example – in line with the practice of the Constitution – envisaging arrangements which treat federal units differently from each other to account for their specific circumstances. For instance, Article 371 of the Constitution contains special provisions for certain areas in various States as well as for the entirety of some States. The marginal notes to various articles composed under the rubric of Article 371 provide an overview of a number of States for which arrangements in the nature of asymmetric federalism are made in the spirit of accommodating the differences and the specific requirements of regions across the nation”, the verdict states.

Judgement lays ground for AAP to challenge GNCTD Act of 2021

The judgement then goes on to demolish the ugly edifice that the Centre has, over the past few years, tried to build either through executive actions or by bulldozing through Parliament controversial amendments to laws, expressly with the intent of emasculating powers of the Delhi Assembly and the party (AAP) that enjoys a majority in it. This penchant of centralising power, as was evident in the amended GNCTD Act of 2021, which surprisingly has still not been challenged by the AAP government in courts, has rendered elected MLAs of Delhi – those of the BJP included – ineffective public representatives.

As per the amended GNCTD Act, the Delhi Legislative Assembly “shall not make any rule to enable itself or its Committees” to consider the matters of day-to-day administration of Delhi “or conduct inquiries in relation to administrative decisions”. The Act also mandates that before taking any executive action in pursuance of the decision of the Council of Ministers or a Minister, to exercise powers of Government, “the opinion of the LG shall be obtained”.

These amendments clearly make a mockery of the principles of representative democracy. Though the GNCTD Act was not in challenge before the apex court, the judgement, arguably, provides enough grounds to the AAP to seek quashing of several of its provisions that evidently impinge upon the rights of the Delhi Assembly and the Kejriwal government.

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“Article 239AA establishes a Legislative Assembly for NCTD. The seats in the Assembly are filled by a direct election from the constituencies of NCTD. The Legislative Assembly of NCTD embodies the constitutional principle of representative democracy… The members of the Legislative Assembly of NCTD are selected by the electorate of Delhi to represent their interests. Article 239AA must be interpreted to further the principle of representative democracy… The members of the Legislative Assembly have been chosen by the electorate to act in their stead. Thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate,” the verdict states.

Among the arguments that Kejriwal and his lawyers had been making to seek power over Services was that in the absence of such powers being vested in it, how would a state government ensure that its vision and policies are conscientiously implemented by the civil servants working in its departments. This question, naturally, took on greater meaning when Services came under control of a central government, through the LG, that is not politically aligned with the vision and policies of the government in the state as was the case with the Modi government and the one led by Kejriwal.

‘Triple chain of accountability’ in parliamentary democracy

The SC has answered this riddle by canvassing the “triple chain of accountability”. The verdict notes: “The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service. The policies of the government are implemented not by the people, Parliament, the Cabinet, or even individual ministers, but by civil service officers… Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in turn accountable to Parliament or, as the case may be, the state legislatures. Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability. The triple chain of command is as follows: Civil service officers are accountable to Ministers; Ministers are accountable to Parliament/Legislature; and Parliament/Legislature is accountable to the electorate”.

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“An unaccountable and a non-responsive civil service may pose a serious problem of governance in a democracy. It creates a possibility that the permanent executive, consisting of unelected civil service officers, who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate… the ideal conclusion would be that GNCTD ought to have control over “services”, subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, the ministers and the executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions,” the judgment adds.

Each of these observations and conclusions by the Supreme Court strike hard against the manner in which the Centre has, over the past eight years through its Governors and Lieutenant Governors, sought to undermine the powers of governments in states ruled by the BJP’s rivals. It is true that the verdict is on the limited issue of power over Services and confined to the government of Delhi, but the conclusions it arrives at cover a much larger canvas. It is, what may rightly be called despite the taint of a cliché, a landmark judgment.