A Supreme Court Bench comprising Justices AK Sikri and Ashok Bhushan on Thursday delivered a split verdict on the powers of the Delhi government vis-a-vis the Centre, through the Lieutenant governor (L-G).
Although a Constitution bench had broadly ruled in favour of the Delhi government in a judgment delivered on July 4 last year, specific issues arising from that case had to be adjudicated upon by a smaller Bench of two judges in the light of the broad principles laid down in that judgment.
The legislative power of the Government of the National Capital Territory of Delhi (GNCTD) extends to all subject matters contained in various entries of List II (State List) with the specific exclusion of entries 1, 2 and 18 (dealing with public order, police and land respectively). Likewise, it extends to all the entries in the concurrent list.
The controversy was, however, on the issue as to whether the executive power of GNCTD is to the exclusion of the power of the Centre. The majority judgment in the Constitution Bench answered this in the affirmative. Justice Ashok Bhushan, however, had held that it is co-extensive. Both Justices Sikri and Ashok Bhushan were part of the five-judge Constitution Bench which delivered the judgment last year.
There were a total of nine appeals against the Delhi High Court verdicts on the issue before the two-Judge Bench. Seven out of the nine appeals were filed by GNCTD and the remaining two by the Centre.
Justice Sikri held that since there is no State Public Service Commission in Delhi, insofar as service personnel in Delhi are concerned, that would come within the expression ‘State public services’ and it is the GNCTD which would exercise its administrative power over them.
On transfers, postings
The transfers and postings of secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the L-G and the file should be submitted to him directly. For other levels, the files can be routed through the Chief Minister to the L-G, he held. In case of difference of opinion between the L-G and the CM, the view of the L-G should prevail and the MHA can issue a suitable notification in this regard, he added.
Justice Ashok Bhushan, in his separate opinion, held that Entry 41 of List II – dealing with State public services; state public service commission – was not dealt with by the Constitution Bench, and therefore, it did not clarify whether this power is available to the Legislative Assembly of Delhi.
With regard to the services, he held, GNCTD can exercise only those executive powers, which can be exercised by it under any law framed by Parliament or which have been delegated to it.
“In the interest of good governance and smooth governmental function, we expect that efforts will be made by both the Chief Minister as well as the L-G for a harmonious working relation”, both the Justices held.
On anti-corruption bureau
Both the Judges agreed, however, that the Anti Corruption Bureau of the GNCTD is not empowered to investigate the offences of Centre’s employees, under the Prevention of Corruption Act. This investigation is carried out by the CBI. “Therefore, it obviates the duality and conflict of jurisdiction as well,” they held.
The Bench disagreed that the expression “state government” in Section 2(a) of the Commission of Inquiry Act means GNCTD, a Union Territory.
In all matters, which do not fall within the discretionary jurisdiction of the L-G, he is bound to act on the aid and advice of Council of Ministers. Thus, issues pertaining to the Electricity Reforms Act, revision of minimum rates of agricultural land, and the power to appoint a special public prosecutor would all lie within the GNCTD’s domain, the Bench unanimously held.
The disagreement between the two Judges on the ‘services’ issue may have to be resolved by a larger Bench, according to observers.