IT is not exactly a disagreement between two judges of a bench that can lead to a case heard by them being referred to a larger bench. When Justices A.K. Sikri and Ashok Bhushan of the Supreme Court on February 14 referred to a larger bench the dispute involving the powers of Delhi’s elected Chief Minister and its Lieutenant Governor over its public services, their separate judgments hardly revealed the nature of their disagreement, which was hinted at by Justice Sikri in the reference order to be placed before the Chief Justice of India (CJI), Ranjan Gogoi.
Justices Sikri and Bhushan agreed on a mechanism to sort out the dispute in the spirit of cooperative federalism. Yet, both of them seemed to have been persuaded by the Centre’s argument that only a larger bench could clarify whether Delhi, despite being a Union Territory in form, could aspire to be a State in substance. Both of them were members of the five-judge Constitution Bench that had laid down broad principles in the case on July 4, 2018, leaving particular disputes to be adjudicated by a smaller bench. The other members of that bench were the then CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud.
As the judgments of Justices Sikri and Bhushan show, the conflict between the Delhi government and the Centre over their respective powers over Delhi’s services is not just about the ceding of certain powers by the Centre to the local government in order to enable the latter to have civil servants of its choice in various departments. At the heart of the dispute is the recognition of Delhi’s aspiration for full statehood, which would become irresistible if a provision of the Constitution is interpreted the way the Delhi government wants it to be interpreted. The Centre has successfully persuaded Justices Sikri and Bhushan not to adopt that interpretation on seemingly untenable grounds.
The Indian Constitution confers a unique status on Delhi. Article 239AA, inserted in 1991, envisages Delhi as a Union Territory with an elected Legislative Assembly, with powers over its subjects under the State List, except public order, police and land. The Constitution Bench recognised that the Assembly for the National Capital Territory of Delhi (NCTD) had the power to make laws for the whole or any part of the territory, with respect to any of the matters enumerated in the State List or in the Concurrent List. But the Assembly is debarred from making laws with relation to subject matters of Entries 1, 2 and 18 and Entries 64, 65 and 66 of the State List insofar as these entries related to Entries 1,2 and 18, which deal with public order, police and land respectively. The majority judges of the Constitution Bench had agreed that the Delhi government could exercise exclusive executive powers over the subjects listed under the State List.
Public services
The Sikri-Bhushan bench, while adjudicating specific disputes between the Delhi government and the Centre was, however, divided on whether the Constitution Bench’s decision would apply to Entry 41 of the State List. This entry deals with State public services and the State Public Service Commission. Justice Sikri was inclined to adopt a middle path, involving both the Chief Minister and the Lieutenant Governor in the selection of officers for individual departments, and it seemed that Justice Bhushan, too, endorsed the proposal. However, Justice Bhushan held categorically in his judgment that Delhi, being a Union Territory, did not qualify under Entry 41 of the State List.
The Centre had issued a notification on May 21, 2015, excluding “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCTD. This notification mentioned the Union Territories cadre consisting of Indian Administrative Service and Indian Police Service personnel. This cadre is common to all the Union Territories and Delhi is only one of them. It is administered by the Central government through the Ministry of Home Affairs.
The notification also referred to DANICS (Delhi, Andaman and Nicobar Islands Civil Service) and DANIPS (Delhi, Andaman and Nicobar Police Service), which are again common services catering to the requirement of various Union Territories, including the NCTD. These services are also administered by the Central government through the Home Ministry.
The Delhi government contended before the Supreme Court that once particular officers are allocated to the NCTD by the Home Ministry, it was within the powers of the Government of NCTD (GNCTD) to assign them to particular departments during their tenure in the NCTD. It was submitted by the Delhi government that posting was done by the State government once the Central government allocated particular employees to a particular State and since this principle of federalism was accepted and given imprimatur by the Constitution Bench in the case of the NCTD as well, the aforesaid principle should equally apply.
The Centre, however, submitted that public services in Delhi (being a Union Territory) was not covered by Entry 41 of List II and the Lieutenant Governor was not supposed to act on the aid and advice of the Council of Ministers of the GNCTD; he was entitled to use his discretion. Citing Section 41 of the GNCTD Act, the Centre argued that the matter fell outside the purview of the powers conferred on the Legislative Assembly of Delhi, and that the Lieutenant Governor could act at his discretion in the matter if such powers or functions were entrusted or delegated to him by the President. Therefore, the 2015 notification entrusting powers and functions in respect of “services” to the Lieutenant Governor was valid, the Centre contended before the Supreme Court.
The 2015 notification did away with the need for consultation by the Lieutenant Governor with the Chief Minister, which was the requirement earlier. The Delhi government rebutted the Centre’s stand by relying on the Supreme Court’s judgment in 1976 in Union of India vs Prem Kumar Jain and Others , wherein it had held that the “State” includes a Union Territory for the purposes of Article 312 of the Constitution, dealing with All India Services. The majority judgment of the Constitution Bench last year had noted this decision with approval.
In Paragraph 89 of the judgment, Justice Sikri, speaking on behalf of himself, and Justice Bhushan, has held: “The appellant (the Delhi government) has endeavoured to assume the executive power in respect of ‘services’ by relying on Entry 41 of List II, which may be doubtful. That situation may give discretionary powers to the L-G. On the other hand, it also cannot be said that once the manpower is allocated to Union Territory of Delhi, the GNCTD should not have any power to deal with such employees, in view of the Constitution Bench judgment. In such a scenario, and to avoid any conflict of exercise of powers between the L-G on the one hand and the Council of Ministers with Chief Minister as head on the other hand, we are of the opinion that for the smooth functioning of the system, it is necessary to carve out a just and fair mechanism.”
The bench then accepted the suggestion of the Centre’s counsel. It observed: “The transfers and postings of Secretaries, Head of the Departments, and other officers in the scale of Joint Secretary and above can be done by the L-G and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the C.M. to L-G. In case of difference of opinion between the L-G and the C.M., the view of the L-G should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. The services of U.Ts being under the Ministry of Home Affairs, an advisory can be given to that Ministry to provide consultation by the L-G. with the C.M. up to certain level of officers. In the interest of good governance and smooth governmental function, we expect that efforts will be made by both the C.M. as well as the L-G for a harmonious working relation.”
The Constitution Bench held that the power of the Delhi Assembly to make laws of the NCTD was with respect to matters enumerated in the State List and the Concurrent List except insofar as matters with respect to and which related to Entries 1, 2 and 18 of the State List.
In his separate opinion, Justice Bhushan said that the Constitution Bench did not bestow its consideration on the purpose and intent of expression “with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories” as found in sub-clause 3(a) of Article 239AA. He added: “The reason is not far to seek. Individual issues which had arisen in different appeals were not touched by the Constitution Bench, leaving it open to be decided by the regular bench after constitutional questions are answered.”
Interpreting the provision, he held that all entries in List II and List III (State and Concurrent Lists) were available to the Delhi Assembly for exercising its legislative power except when an entry is excluded by implication or by any express provision. He held that since the Constitution Bench’s majority opinion rendered by the then CJI, Dipak Misra, did not deal with this issue, it was required to be elaborately answered for deciding the issue before the bench. Relying on the Balakrishnan Committee Report, which was a prelude to the insertion of Article 239AA, Justice Bhushan underlined that apart from entries specifically excluded (Entry 1,2 and 18 of State List), there were other entries, which ipso facto fell outside the purview of the Delhi Assembly. The report had specifically opined that Entry 41 of List II of the Seventh Schedule was not applicable to the Union Territory.
The Constitution Bench had accepted that the Lieutenant Governor was to act on the aid and advice of the Council of Ministers in all his acts, except in respect of those functions where he/she was permitted to exercise his/her discretion. In addition, the bench had held that the executive power of the GNCTD was co-extensive with the legislative power and it extended over all the subjects except those mentioned in Entries 1, 2 and 18 and it also extended to all subjects in List III (Concurrent List). The controversy was over whether such executive power of the GNCTD excluded the power of the Centre. Justice Sikri interpreted the majority judgment to have held that such executive power of the Delhi government excluded the executive power of the Centre.
However, he also noted that Justice Bhushan, in a separate judgment in the case before the Constitution Bench, had held that the executive power of the Centre was co-extensive with that of the Delhi government. However, Justice Bhushan joined Justice Sikri in the February 14 judgment in affirming this majority view in the Constitution Bench judgment.
The Appeals
There were a total of nine appeals before the two-judge bench, arising from the judgment of the Delhi High Court on August 4, 2016, in the same matter. Seven out of nine were filed by the GNCTD, while the remaining two were filed by the Centre. Thus, the Sikri-Bhushan bench held that the Anti-Corruption Bureau police stations could not take cognisance of offences against officials of the Central government. This rationale behind the exclusion directly flowed from the unique position occupied by the NCTD as the nation’s capital and the seat of the Central government, the bench held.
It also held that the GNCTD was not empowered to set up a Commission of Inquiry of its own, as the Commission of Inquiry Act was silent on the powers of a Union Territory to set one up. The expression “State government” occurring in Section 2(a) of the Commission of Inquiry Act could not mean the GNCTD, a Union Territory, the bench held.
It clarified that the Lieutenant Governor has to act on the aid and advice of the Council of Ministers under the Delhi Electricity Reforms Act, which enables the Delhi government to issue directions to the Delhi Electricity Regulatory Commission on matters of policy involving the public interest. The expression “State government” under the Act, therefore, could not mean the Central government, as otherwise, there would be a conflict of jurisdiction in the NCTD insofar as the working of the Electricity Act/DER Act was concerned, the bench held.
The bench agreed with the Delhi High Court that the Delhi government’s revision of the rates of agricultural land (circle rates) was traceable to Entry 63 of List II and not to Entry 18 of List II. Circle rates, the bench said, were fixed for the purpose of payment of stamp duty. Therefore, they did not pertain to “land”, it clarified.
The bench endorsed the Delhi High Court’s categorical view that the power to appoint a public prosecutor was relatable to Entries 1 and 2 of List III, and therefore the GNCTD had legislative competence and the Lieutenant Governor should act on the aid and advice of the Council of Ministers.
The bench added that normally and generally, the Lieutenant Governor was expected to honour the wisdom of the Council of Ministers. He was also expected to clear the files expeditiously and was not supposed to sit over them unduly, it observed. Likewise, the executive was expected to give due deference to the unique nature of the role assigned to the Lieutenant Governor in the constitutional scheme, it opined. Observers wonder whether a larger bench of the Supreme Court would clarify the gaps in the February 14 judgment, before the tenure of the Aam Aadmi Party (AAP) government in Delhi was over, and help remove the uncertainty over the sharing of powers between two constitutional authorities in the interest of Delhi.
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