The Supreme Court recognised the control of the Delhi government over administrative services, emancipating the elected government from the interference of the Lieutenant Governor (LG) appointed by the Central government.

Issue

• The Central government had previously taken away the Delhi government’s control over services in 2015, leading to problems in governance and hindering relief efforts during the pandemic.
• The elected government was kept in the dark regarding decisions on appointments and transfers, leading to mismanagement and corruption.
• The Supreme Court’s decision restored the chain of accountability involving the people, legislature, government, and bureaucracy, paving the way for an efficient and accountable administration.
• However, the Services Ordinance introduced by the Central government nullifies the Supreme Court’s judgment and reverts control over services to the unelected LG.
• The ordinance undermines cooperative federalism, disregards the value of the citizen’s vote, and institutionalises the Center’s tendency to undermine democratically elected governments in non-BJP-ruled states/territories.
• The Supreme Court’s judgment will be remembered as a vindication for the elected Delhi government, while the ordinance will be seen as an attempt to disempower opposition-run governments and disenfranchise the people.

Provisions regarding Delhi under Art 239AA (69th Amendment) 1991 of the Indian Constitution

• It Enabled a Legislature in Delhi
• The Council of Ministers will aid and advise the L-G in matters where the Legislative Assembly has the power to make laws except where the L-G can exercise discretion (i.e. Police, public order and Land).
• Limitations of power of govt. In Delhi: It Precludes Delhi from control over land, police & public order.
• In case of a difference of opinion, the LG shall refer it to the President for decision, and pending such decision, it shall be competent for the LG to take action where the matter is so urgent that it is necessary for him to take immediate action.

Problems

• In executive: The Centre controlled the transfers and the appointment in the Delhi government, which often created friction between the officers and the elected counterparts.
• Legislative problems: The Centre had argued that since no UT has power over services, Delhi, too, could not exercise such power. Therefore, Delhi could only legislate on issues that other UTs are explicitly allowed to legislate upon.

2018 Supreme Court Verdict

• In its 2018 verdict, the five-judge Bench had held that the LG’s concurrence is not required on issues other than police, public order and land.
• It had added that decisions of the Council of Ministers will, however, have to be communicated to the LG.
• The L-G was bound by the aid and advice if the council of ministers, it had said.
• The Bench of then CJI status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor”.
• It had also pointed out that the elected government must keep in mind that Delhi is not a state.

The ordinance by the Central Government

• It mentions that using the powers of Article 239(1), Article 239AA(3)(b) and Article 239AA(7), an ordinance is being passed to provide for a comprehensive scheme of administration of services. Since Parliament is not in session, it is passed.

Amendments by the Ordinance

• It adds Section 3A to the GNCTD Act, 1999, which takes away the power of the legislative assembly to make laws in matters or Services (i.e. entry 41, List II – services).
• It creates a National Capital Civil Service Authority which will recommend the transfer and postings of officers/employees employed in the functioning of the GNCTD. It will consist of the CM of Delhi, Chief Secretary of Delhi and Principal Home Secretary of Delhi.
• It amends Section 41 of the NCTD Act, 1999, which lists the matters wherein the LG acts at his discretion. It amends the phrase ‘acts in his discretion’ to ‘acts in his sole discretion’ in the title of the Section and the body. It also adds that the LG will act in his sole discretion while discharging functions under Part IV of the ordinance which includes dealing with the recommendations of the National Capital Civil Service Authority.
• Therefore, the ordinance gives the LG primacy over the matter of services in Delhi.

Thus, recent judgement of Supreme Court has reinstated the balance between authority and responsibility of the Lieutenant Governor and minimised his absolutism. In the parliamentary form of democracy, CM is the real-executive / de-facto executive of the state. At the same time, given the special issues associated with Delhi (such as Capital of India, Seat of Union Executive, National Security etc.) it’s not desirable to treat it like rest of the states. SC judgment has upheld the federal scheme and spirit of the Constitution, while balancing the practicalities associated with governing the state and governing the country from Delhi.