Government of NCT of Delhi v. Union of India

Government of NCT of Delhi v. Union of India
Court Supreme Court of India
Full case name Government of NCT of Delhi versus Union of India & Another
Argued
Decided 4 July 2018 (2018-07-04)
Citation(s) C. A. No. 2357 of 2017
D. No. 29357-2016
Legislation cited
Case history
Prior action(s) Government of National Capital Territory of Delhi v. Union of India
Appealed from High Court of Delhi
Court membership
Judge(s) sitting Dipak Misra, CJI; Arjan Kumar Sikri, J; Ajay Manikrao Khanwilkar, J; Dhananjaya Y. Chandrachud, J; and Ashok Bhushan, J
Case opinions
Decision by Dipak Misra
Majority Dipak Misra, joined by A. K. Sikri and A. M. Khanwilkar
Concurrence D. Y. Chandrachud and Ashok Bhushan
This case overturned a previous ruling
Government of National Capital Territory of Delhi versus Union of India by Delhi High Court

Government of NCT of Delhi versus Union of India & Another [C. A. 2357 of 2017] is a civil appeal heard before the Supreme Court of India, by a five-judge constitution bench of the court. Filed as an appeal to an August 2016 verdict of the Delhi High Court, which ruled that the lieutenant governor of Delhi exercised "complete control of all matters regarding National Capital Territory of Delhi", the case was heard throughout 2017 and 2018.

The supreme court pronounced its judgment in July 2018, therein it said that the lieutenant governor of Delhi did not have any independent decision making powers and was bound to follow the "aid and advice" of the Delhi chief minister-headed council of ministers of the Government of Delhi on all matters barring 'police', 'public order' and 'land'. The verdict was received almost unanimously favourably by politicians from multiple parties.

Background

The Government of India Act 1919 and the Government of India Act 1935 classified Delhi as a chief commissioner's province during the British rule in India,[1][2] which meant that Delhi was ruled directly by the governor-general, through his/her representative, titled chief commissioner.[1] The chief commissioner of Delhi used to be an appointed civil servant and was reported directly to the governor-general.

After India's independence and with the passing of the Government of Part C States Act, 1951, Delhi was classified as a Part C state,[1][2][3] with an appointed chief commissioner and an elected chief minister-led council of ministers responsible to the Delhi Legislative Assembly,[1][2][3] having powers over 'public utilities', 'sanitation', 'water supply' et al.,[3] but not over 'police', 'public order', 'land' et al.[1][3] Although vested with the powers of making laws, the assembly only served as in an advisory role to the chief commissioner of Delhi.

However, after the passing of the States Reorganisation Act, 1956 and the Constitution (Seventh Amendment) Act, 1956 on the recommendations of the Fazal Ali-headed States Reorganisation Commission, tier-classification of states was done away with and top-level subdivisions of India ended up being categorised as either states or union territories (UT), with Delhi being classified a UT,[1][2][3] as a result its council of ministers and legislative assembly stood dissolved.[1][2] To give Delhi some elected leadership, the Municipal Corporation of Delhi Act, 1957 was passed by the parliament, establishing the now-trifurcated Municipal Corporation of Delhi.[1] However, Delhi did not come under the Government of Union Territories Act, 1961, which allowed for legislative assemblies and council of ministers in certain big union territories.[2] There were widespread demands for Delhi to get statehood and more representation of the electorate in its general governance.[1]

The Delhi Metropolitan Council was formed as a compromise in 1966 with the passing of the Delhi Administration Act, 1966 by the Parliament of India; the council had fifty-six directly elected members (called councillors) and five members nominated by the newly-created position of lieutenant governor.[1][2][3][4] The council only had advisory powers regarding legislative proposals, budget proposals, and any other matters referred to it by the lieutenant governor.[1][3][4] The lieutenant governor succeeded the chief commissioner as the administrator of Delhi.[3] The Delhi Metropolitan Council's chairman and deputy chairman acted as speaker and deputy speaker for the council, whereas the council elected a chief executive councillor and three executive councillors,[1][4] much akin to a state chief minister and council of ministers elected by—and responsible to—vidhan sabhas.[4]

After widespread demands for a legislative assembly, Delhi was granted further autonomy with the passing of the Constitution (Sixty-ninth Amendment) Act, 1991 and the Government of National Capital Territory Act, 1991 by the parliament,[1][2][3][4] which established the Delhi Legislative Assembly, allowing for the reintroduction of the chief minister and the council of ministers, replacing the chief executive councillor and executive councillors, respectively.[3] Further the speaker and deputy speaker of the Delhi Legislative Assembly replaced the chairman and deputy chairman of the Delhi Metropolitan Council, respectively.

Premise

Najeeb Jung, the lieutenant governor of Delhi from July 2013 to December 2016

In April 2015, then Delhi lieutenant governor, Najeeb Jung told that it was not mandatory for him to sent files regarding his three reserved subjects of 'police', 'public order' and 'land' to the chief minister's office.[5] Jung's was backed by the Ministry of Home Affairs in May 2015 which through a government notification, said that the LG had the last say on matters related to 'police', 'public order', 'land' and 'services', adding that the Delhi Anti-Corruption Branch (ACB) could not investigate central government employees.[6][7]

In June 2015, presenting the Delhi budget for approval to the Delhi Legislative Assembly, the deputy chief minister, Manish Sisodia—acting as the finance minister—announced the government's intention to hike circle rates on agricultural land throughout the National Capital Territory of Delhi.[8] In August 2015, Lieutenant Governor Jung opposed the government's move on circle rate and stayed it.[9] The Delhi government, in response, reasserted its intention to raise the circle rate, saying that the LG had no say on the matter and was bound to follow the government's aid and advice.[10][11]

In August 2015, the Delhi government ordered for the creation of a commission of inquiry, headed by retired Delhi High Court judge, S. N. Aggarwal, to investigate the alleged CNG fitness scam, which occurred during the chief ministership of Indian National Congress member Sheila Dikshit.[12] The move was opposed by Jung, who referred the matter to the Ministry of Home Affairs, asking whether it was legal for the government to form a commission of inquiry without his approval.[13] The home ministry later ruled that the Government of National Capital Territory of Delhi was "not the competent authority to set up" an inquiry commission, thus holding that the Delhi government order was "legally invalid and void ab initio".[14][15]

In December 2015, the Delhi government formed a one-member commission of inquiry comprising former solicitor general, Gopal Subramanium to look into an alleged scam in the Delhi & District Cricket Association.[16] Lieutenant Governor Jung asked for the Government of India's opinion on the legality of the inquiry commission.[17] Chief Minister Kejriwal maintained that commission of inquiry was legal, asking the Government of India to move the Delhi High Court if it had any issue with the commission's formation.[18] In January 2016, the Ministry of Home Affairs wrote to Jung that the commission was not valid, as, Delhi government did not have the power to form an inquiry commission because Delhi was not a state.[17]

In August 2016, on the Delhi government's petition, a division bench of the High Court of Delhi, comprising Chief Justice G. Rohini and Justice Jayant Nath, ruled that the LG had "complete control of all matters regarding National Capital Territory of Delhi".[19][20][21] The court also pronounced that all commissions of inquiry set up by the Government of Delhi were "illegal",[19][20][21] in addition, it ruled that directions issued by the government to the Delhi Electricity Regulatory Commission and the directors nominated by it to the boards private electricity companies as illegal.[19][20][21] Further, the court upheld the May 2015 Ministry of Home Affairs notification which ruled that the Delhi ACB could not investigate central government employees.[19][20][21] The court, however, did say that the LG was bound by the aid and advice of the Delhi council of ministers on matters related to the appointments of special public prosecutors.[21] Not satisfied with the high court's decision, the Delhi government ministers, Kejriwal, Sisodia and Satyendra Jain, decided to move the supreme court.[19][20][21][22]

Civil servants

In May 2015, after the Delhi chief secretary and Indian Administrative Service (IAS) officer, K. K. Sharma, went on a leave for ten days, Lieutenant Governor Jung ordered for IAS officer and principal secretary in charge of Delhi government's departments of power and industries, Shakuntala Gamlin, to officiate as the chief secretary in Sharma's absence.[23][24][25] This was opposed by Kejriwal, who accused Gamlin of lobbying for power companies.[23][24] Gamlin proceeded to write to LG Jung that industries minister, Satyendra Jain, was putting pressure on her in a matter related to industrial plots.[26]

Delhi government's principal secretary for its services department and IAS officer Anindo Majumdar was locked out of his office on the direction of the chief minister's office,[27][28][29] the order added that Majumdar had been replaced by Kejriwal's principal secretary, Rajendra Kumar and Majumdar had been divested of all his charges;[29] the order, however, was declared null and void by Lieutenant Governor Jung, saying his approval was not taken for transferring Majumdar.[30][31] Majumdar subsequently said that he opposed the "politicisation" of senior bureaucratic appointments and refused to follow any "unconstitutional" orders from Kejriwal.[32]

In June 2015, seven officers of the Bihar Police joined Delhi ACB on deputation;[33][34] in opposition to the move, Lieutenant Governor Jung said that the ACB was solely under his jurisdiction,[33] this resulted in the officers not being assigned any assignment for months.[35] This was followed by Jung naming Indian Police Service (IPS) officer M. K. Meena, an inspector general-ranked Delhi Police joint commissioner heading its New Delhi range, as the ACB's head.[36][37] This was in contravention to Kejriwal's demands, who had appointed deputy inspector general-ranked IPS officer S. S. Yadav as the ACB chief.[36][37] The Delhi High Court, in June 2015, refused to set aside Meena's appointment, but, asked him to act in "accordance with law".[38] Consequently, Delhi government trimmed down Meena's mandate, asking him to look after training and cases undergoing trial, whilst Yadav was asked to handle investigations and functioning of the agency, among other things.[39][40]

On 9 June 2015, Jung vetoed Kejriwal's transfer of IAS officer Dharam Pal from Delhi government's principal secretary in charge of its home and land and buildings departments, citing the April 2015 home ministry notification which transferred the power over 'services' to LG.[41][42][43]

In August 2016, post-Rajender Prashad v. Govt. of NCT of Delhi, Delhi government-appointed, non-IAS secretaries in charge of health and PWD, Indian Revenue Service officer, Tarun Seem and a former engineer-in-chief of the PWD, Sarvagaya Srivastava, respectively, were replaced by Jung with IAS officers, Chandraker Bharti and Ashwani Kumar, for health and PWD, respectively, as principal secretaries.[44][45][46] The move was opposed by Kejriwal, who said that deputy chief minister, Manish Sisodia, had "begged" Jung to not transfer health and PWD secretaries before March 2017.[44][45][46] Kejriwal added that files for the transfer of bureaucrats was not shown to him or any other minister of the government.[44] In response, Jung's office said Seem and Srivastava's postings were "illegal", as, they were in contravention with Indian government's cadre rules, adding that even posting Seem to a position in the Delhi government was "illegal", as the LG's approval was not taken to post him.[46]

In October 2016, Jung gave IAS officer Alka Diwan the additional charge of being the Delhi Commission for Women's (DCW) member-secretary, Diwan proceeded to stop salary payments to contractual employees of the DCW and asked the commission's chairperson, Swati Maliwal, to regularise contractual employees by sending a proposal to the Delhi government's finance department.[47][48] This led to Kejriwal asking Jung to remove her.[49] Jung then replaced Diwan with another IAS officer, Dilraj Kaur,[50] conflicting with Kejriwal's wishes who had nominated the commission's legal adviser P. P. Dhal to act as the DCW's officiating member-secretary.[51] This caused Kejriwal to compare Jung with Adolf Hitler.[52][53]

In February 2018, Delhi's chief secretary and IAS officer, Anshu Prakash, was allegedly assaulted by some members of the Delhi Legislative Assembly (MLA) from the AAP.[54][55][56] In response, the AAP released a statement saying that Prakash said he was not answerable to MLAs or the CM, but, only the LG, the statement further added that he "used bad language against some MLAs and [had] left without answering any questions".[57]

Proceedings

Chief Justice of India, Dipak Misra was a member of the five-judge constitution bench that presided over Government of NCT of Delhi v. Union of India & Another
Building of the Supreme Court of India

The supreme court heard arguments for fifteen days from 2017 to 2018.[58] The supreme court started hearing arguments on 2 November 2017,[59][60] and heard them for fifteen days till 5 December 2017.[59] On 6 December 2017, the court reserved its verdict on the matter.[58][61]

The Government of India (GoI) was represented by additional solicitor general, Maninder Singh; and former additional solicitor general and senior advocate, Sidharth Luthra.[59] Whereas, the Government of National Capital Territory of Delhi (GNCTD) was represented by Indian National Congress member, union minister and senior advocate, P. Chidambaram; former solicitor general and senior advocate, Gopal Subramanium; senior advocate, Satya Mitra; former additional solicitor general and senior advocate Indira Jaising; senior advocate, Rajeev Dhavan; and senior advocate, Shekhar Naphade.[59]

For GNCTD, Chidambaram argued that Delhi's lieutenant governor was not like a viceroy, but, just the president's representative and his or her powers were dependant on the president's pleasure. Chidambaram also argued that per the Government of National Capital Territory of Delhi Act, 1991, the LG was "required to act on the aid and advice" of the council of ministers of the Delhi government.[60] Whereas, Subramanium argued that the Delhi government was not debating the parliament's supremacy, but said that the legislative assembly also had an "elbow room" in Delhi's governance, adding that the LG was misusing the powers assigned to his or her office to refer "differences of opinion" to the president and said that the LG's "extraordinary discretion" was to be used in exceptional circumstances and not in day-to-day governance of Delhi,[60] whilst also saying that the chief secretary and other officers did not exercise volition on the government's welfare schemes and proposals, but, simply used to mechanically defer matters for the lieutenant governor's disposition.[61]

For the GoI, Singh argued that the Delhi government's role was only limited to that of municipal governance, backing his argument up by pointing out that the Delhi, Andaman and Nicobar Islands Civil Service and the Delhi Fire Service came under the GoI's jurisdiction, not Delhi government's. Singh further said that as Delhi did not have its own public service commission, it was not state. Singh further argued that the GNCTD's executive powers were not binding on the lieutenant governor. Singh also said that as the Article 239AA of the Constitution of India came under the section for union territories, Delhi was a union territory.[60]

Whilst hearing the case, the supreme court opined that Delhi's lieutenant governor had more powers than state governors, who were supposed to generally follow the aid and advice of the state chief minister-led council of ministers.[62]

Judgment

The supreme court ruled that according to the Article 239AA of the Indian constitution, that although the government had to keep him/her informed of its decisions, Delhi's lieutenant governor did not have any independent decision-making powers and had to follow the "aid and advice" of the chief minister-led council of ministers of the Government of Delhi on matters which the Delhi Legislative Assembly could legislate on, viz., all items on the State List (items on which only state legislatures can legislate) and the Concurrent List (items on which both the Parliament of India and the state legislatures can legislate) barring 'police, 'public order' and 'land'.[3][63][64][65][66][67] The court added that on matters referred to him/her, the LG was bound to follow the orders of the president.[64]

Although, the court further ruled that the lieutenant governor still had the right to seek the president's opinion in case of a disagreement between him/her and the government, the president (who himself/herself is bound by the aid and advice of the prime minister-headed Union Council of Ministers) would be the final authority in case of a conflict, with his/her opinion being binding on both the LG and the Delhi government, it cautioned the LG to use this power only in exceptional circumstances and not in a "routine or mechanical manner".[64][65][66][67] The court, however, did not define what "trivial" differences in opinion meant.[68]

The court ruled that there was "no room for absolutism and there is no room for anarchism also" in the governance of the National Capital Territory of Delhi.[63][65][66]

At the same time, the supreme court—citing the report of the Balkrishnan Committee of 1987—ruled, that, although having a special status, Delhi was not a state,[64][69] hence, unlike state governors, Delhi's lieutenant governor was not a mere constitutional figurehead, but, also bore the title of 'administrator'.[64]

Reactions

Delhi's chief minister, Arvind Kejriwal, called the judgment a "big victory" for the people of Delhi and democracy
Member of the Lok Sabha for North East Delhi, Manoj Tiwari, asked Chief Minister Kejriwal to stop spreading anarchy "start following [the] constitution"

The supreme court's rulings were almost unanimously received favourably.

Aam Aadmi Party (AAP) convener and chief minister of Delhi, Arvind Kejriwal, welcomed the verdict and said—through a tweet—that it was a "big victory" for democracy and the people of Delhi.[65][70] AAP member and Delhi's deputy chief minister and minister of finance and education, Manish Sisodia said, "[o]n behalf of the people of Delhi I [sic] thank the hon'ble Supreme Court wholeheartedly. The people's chosen government can now take decisions for the people of Delhi."[70] Sisodia also said that the supreme court verdict "did not leave any chance for misinterpretation."[71]

National Democratic Alliance's largest constituent, the Bharatiya Janata Party (BJP), claimed the opposite, with one of its spokespersons, Sambit Patra, saying that the court verdict "upheld the constitution" and was "a decision against anarchy."[70] Delhi BJP president and a member of the Lok Sabha (House of the People) from North East Delhi, Manoj Tiwari asked Kejriwal to stop spreading anarchy and "start following constitution [sic]".[70] Whereas, a nominated member of the Rajya Sabha (Council of the States) and BJP member, Subramanian Swamy, said that while the lieutenant governor had to follow Delhi government's decisions, he/she could still oppose any "anti-national security or ant-constitutional decision" of the government and labelled its political leadership as a group of "Naxalite type [sic] people".[70]

A member of largest constituent party of the United Progressive Alliance, the Indian National Congress (INC), and three-time Delhi chief minister, Sheila Dikshit, said that "[i]f the Delhi government and the lieutenant governor (LG) don't work together then [sic] Delhi will face problems".[70] An INC spokesperson and a senior advocate, Abhishek Singhvi said the supreme court was good "in principle", adding that there was no reason for the lieutenant governor to exercise discretion beyond his/her three reserved powers.[70]

Communist Party of India (Marxist) general secretary and politburo member, Sitaram Yechury, said that there was no reason for governors and lieutenant governors to "usurp the rights of elected" governments and powerful governors and lieutenant governors appointed by the centre were in contravention with the constitution's federal structure.[70] Former attorney general and a supreme court advocate, Soli Sorabjee, said that the supreme court judgment was "good" and that the lieutenant governor and the Delhi government had to "work harmoniously", adding that regular confrontation between the two was "not good for democracy."[70][72]

References

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