Reaffirming that the Centre had exclusive legislative and executive control over ‘services’ relating to public order, land and police as envisaged under Article 239AA of the Constitution that created a legislative assembly for Delhi, a bench of Chief Justice D Y Chandrachud and Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha said, “The legislative and executive power of NCTD over Entry 41 (state public services) shall not extend over to services related to ‘public order, police and land’.”
“However, legislative and executive power over services such as Indian Administrative Services, or joint cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region, shall lie with NCTD,” the five-judge bench said in a unanimous 105-page judgment authored by CJI Chandrachud, marking the end of the latest round of a long-simmering confrontation between the BJP-led Centre and the Arvind Kejriwal government.
The SC, in fact, emphasised that the lieutenant governor would be bound by the decision of the elected government on the issue of controlling the bureaucracy in the NCTD.
As Delhi, unlike fully fledged states, does not have a separate public service commission for recruitment of officers for its services, the bench fell back on the mechanism and arrangement as in joint cadre services, under which central services officers are posted in states. It said the joint cadre rules would also apply to NCTD, which is similar to states, being governed by a representative form of government.
The SC said, “Postings within the state cadre as well as joint cadre of a constituent state shall be made by the ‘government of that state’, that is, by the duly elected government. In our case, it shall be the government of NCTD. We, accordingly, hold that references to ‘state government’ in relevant rules of All India Services or joint cadre services, of which NCTD is a part or which are in relation to NCTD, shall mean the government of NCTD.”
CJI Chandrachud said this case dealt with the asymmetric federal model of governance in India involving the contest of power between a Union Territory and the Union government. The issue was who would have control over ‘services’ in NCTD — a government of the NCTD or the LG acting on behalf of the Union government — a question which arose subsequent to a May 21, 2015, notification by the Union ministry of home affairs that gave the upper hand to the Centre on ‘services’ in relation to the government of NCTD.
While ruling that Delhi government had legislative and executive power over services except on land, police and public order, the bench, importantly, said GNCTD being one of its kind (“sui generis”) Union Territory, Parliament would have overriding legislative power over all subjects in List 2 (which are exclusive domains of state legislatures) and List 3 (Concurrent List subjects on which both Parliament and assemblies can legislate with primacy given to Parliament-enacted laws). This means, if the Delhi assembly enacts any law on any subject, Parliament can pass a law “adding, amending and repealing” the legislation passed by the Delhi assembly.
Dwelling on federalism and responsibilities of an elected government, the CJI said, “In a democratic form of government, the real power of administration must reside in the elected arm of the state, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration. If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple chain of collective responsibility would become redundant.” It explained the triple chain as civil service officers being accountable to ministers, ministers being accountable to Parliament/legislature and Parliament/legislature being accountable to the electorate.
“That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers,” the SC said.
Taking into account the AAP government’s allegation that bureaucrats were not listening to ministers in the elected government because of the Centre’s interference, the five-judge bench said, “If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected.
“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.”
Explaining the risks of an unaccountable bureaucracy in a democratic form of governance where accountability is well defined under the triple chain of command, the bench said, “An unaccountable and 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 implementation of government policy, may act in ways that disregard the will of the electorate.”
