The Supreme Court's judgment today declaring that the elected government in Delhi and not the Lieutenant Governor, who is the Centre's representative in the national capital, has power over services except for land, police and pubic order comes as a huge moral victory for the Kejriwal regime that has been engaged in a long-running tug of war with the Union government.
The court's order is the culmination of an eight-year-long legal battle whose origins lay in the political tussle for control of the affairs of Delhi between the Aam Aadmi Party government and the BJP-ruled Centre.
It had begun on May 21, 2015, when in the midst of a brewing tussle for power between the Delhi government and the Centre, the Union Ministry for Home Affairs had issued a notification that had stated that apart from Land, Police and Public Order, Services too were within the jurisdiction of the Lt Governor and not within the purview of the Delhi government.
The rationale cited for the notification was that the Delhi government does not have its own state public services.
The issue was of great political significance, with the Delhi government and the Centre often at loggerheads over appointment and transfer of officers. Delhi government had challenged the notification in the Delhi High Court, which in its order passed on August four, 2016 upheld the notification. It ruled that the Lt Governor as the administrator was not bound by cabinet aid and advice.
The Delhi government filed an appeal against the high court's order in the Supreme Court, and a five-judge Constitution Bench of the apex court stated in its order passed on July four, 2018 that the Lt Governor is bound by the aid and advice of the Council of Ministers.
The matter of Services was referred by a three-judge bench of the Supreme Court to a five-judge bench in May 2022, which delivered its verdict in the matter today.
In what comes as a vindication of the AAP government's claims in its turf war with the BJP-ruled Centre, the Supreme Court said that in a democratic form of government, the real power of administration must reside in the elected arm of the State.
“A constitutionally entrenched and democratically elected government needs to have control over its administration. The administration comprises of several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment,” the court said.
It said a democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. “If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance,” it said.
“It is the responsibility of the government of NCTD to give expression to the will of the people of Delhi who elected it. Therefore, 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,” it said.
In what could have an effect on the tussle for power between the Delhi government and the Lt Governor, the court said the executive power of Delhi government extends to all subjects on which its Legislative Assembly has power to legislate. The legislative power of the Union, it said, extends to all entries under the State List and Concurrent List, in addition to the Union List. The court further said that the executive power of the Union, in the absence of a law upon it executive power relating to any subject in the State List, shall cover only matters relating to the three entries which are excluded from the legislative domain of Delhi government, which are land, public order and police.
