SC delivers split verdict on Delhi government's powers on control of services

A Division Bench of the Supreme Court on Thursday delivered a split verdict on the issue of control of services between the Delhi government and the Centre, and referred the matter to a larger bench. While Justice A.K. Sikri said the transfers and postings of joint secretaries and officers above were the Lieutenant Governor's domain and those below them were controlled by the Delhi government, Justice Ashok Bhushan said services were totally outside the purview of the Delhi government.

Pointing to out that "Entry 41" relating to services in the list of State subjects of the Constitution was not available in the Delhi Assembly, Justice Bhushan said, "There is no occasion to exercise any executive power with regard to services by the GNCTD, since the executive power of the GNCTD as per Article 239AA(4) extends in relation to matters with respect to which the Legislative Assembly has the power to make laws." Holding that the Delhi government had no executive powers over services, Justice Bhushan said, "With regard to services, the GNCTD (Government of National Capital Territory of Delhi) can exercise only those executive powers, which can be exercised by it under any law framed by Parliament or it may exercise those executive powers which have been delegated to it."

The bench said the Centre alone can control the Anti-Corruption Bureau and pass orders under the Commission of Inquiry Act. The bench rejected the Centre's contention that it alone had independent powers to appoint special public prosecutor, and said the Delhi government had the power to appoint special public prosecutors and the Lt. Governor had to act on the aid and advice of the Council of Ministers under Article 239AA.

It said the Delhi government had the power to decide the minimum rate of agricultural land in the national capital and regulate electricity. Speaking for the Bench on issues other than services, Justice Sikri said there had to be mutual respect between the Delhi government and the Lieutenant Governor as it was an essential part of good governance.

The court asked both the Lieutenant Governor and the Delhi government to realise that they were there to serve the people and that the Lieutenant Governor must not routinely differ with the state government. Justice Sikri said on issues where differences are fundamental backed by cogent reasons, the Lieutenant Governor could refer the matter to the President for a decision, which would be binding.

The court also made it clear that the Lieutenant Governor should not unduly delay referring matters to the President in which there is a fundamental difference of opinion with the Delhi government. The court asked the Delhi government to give due deference to the unique nature of the role assigned to the Lieutenant Governor in the Constitutional scheme and described it "the facet of good governance".

The verdict referred to the Supreme Court's Constitution Bench judgment of July 2018 on the powers of the Lieutenant Governor and the Delhi government, which held that in all those matters that do not fall within the discretionary jurisdiction of the Lieutenant Governor, he is bound to act on the aid and advice of the Council of Ministers.