Touted as another blow to India’s federalist structure, the Supreme Court on Thursday upheld the Centre’s power to take cognisance of offences against civil servants in Delhi, and refused to hand the Arvind Kejriwal government any power over the Delhi Police.
The apex court also delivered a split verdict on whether it was the jurisdiction of the Centre or the AAP government to appoint and transfer civil servants. This has been a point of major contention between the two authorities who share executive powers in the national capital.
A two-judge bench comprising Justices A K Sikri and Ashok Bhushan was hearing a batch of petitions challenging notifications issued by the Arvind Kejriwal government in Delhi. It has referred the matter of control over ‘services’ to a larger bench of the court. On other matters under consideration, the judges delivered concurring verdicts.
Who controls law and order in Delhi?
The Centre’s executive power over Delhi is confined to three matters, namely public order, police, and land.
The and the Delhi government are in a tussle since last year over several key issues concerning the powers to set up commissions of inquiry and the Anti-Corruption Bureau (ACB), besides the posting and transfer of bureaucrats.
Chief Minister and AAP chief Arvind Kejriwal had even staged a widely hunger strike outside Lieutenant Governor (L-G) Anil Baijal’s office last June, to agitate for greater control over Delhi’s law and order.
Tussle in court
While the Centre has taken the stand that the L-G has the power to regulate services in Delhi, the AAP government has opposed it.
The court on Thursday observed that the Delhi government has powers to appoint special public prosecutors and directors under the Electricity Act. It is further entitled to charge revenue on agricultural land, although the L-G can refer it to the President.
In July 2018, a five-judge Constitution bench of SC had laid down broad parameters for governing Delhi, in the backdrop of this tussle.
The court had then ruled that Delhi cannot be accorded the status of a state; it also denied the L-G independent decision-making power, mandating that s/he must act on the aid and advice of the elected government.
The Centre had responded that considering Delhi’s extraordinary position as the national capital, its administration cannot be left to its government alone.
Last month, SC dismissed a petition against Kejriwal that sought to declare his protests outside the L-Gs office as unconstitutional.
However, in November 2017, the court had said Delhi’s L-G has more power than the governor of a state. The SC said the L-G can exercise his discretion according to Article 239AA of the Constitution.
How has the bench ruled this week?
Justice Sikri held that the transfer of officials of and above the rank of joint secretary will remain the L-G’s domain. Other offices will fall under the purview of the Delhi government. However, in case of a difference of opinion, the L-G’s view will prevail, he maintained.
Meanwhile, Justice Bhushan held a different view with respect to the posting of the bureaucrats. Therefore, a larger SC bench will take the final call on delegating the power of transfer and appointment of bureaucrats in Delhi.
Other issues
Both judges are in agreement about the constitution of the ACB; they ruled unanimously that the anti-corruption watchdog will remain under the L-G.
The bench has also upheld the Centre’s power to set up an inquiry commission; Justice Sikri said the Centre was the appropriate authority, going by the provisions of the General Clauses Act.
The AAP government did not receive these well; it immediately attacked the Centre for diluting the foundations of a federal distribution of executive powers and duties.
On the rates for agricultural land, the judges said the L-G can form an opinion, but not on every matter. L-G is not expected to differ routinely but in cogent cases, the judges said, according to the Hindustan Times. There may be contingencies where the L-G and ministers may differ; L-G is supposed to refer the difference to the President; a decision cannot be implemented without referring to the L-G.
The bench said the L-G must honour the wisdom of ministers and not stymie their decisions.
‘Practise collaborative federalism’
During the hearings, the Centre had told the court that the L-G has the power to regulate services in Delhi. These powers are delegated to him/her as administrator of the national capital, it had added.
On July 4, the Constitution bench had asked both Delhi and Centre to practise collaborative federalism, The Hindu reported. The court had restricted the jurisdiction of the L-G to matters of land, police and public order. On other matters, the L-G was asked to act on the aid and advice of Delhi government’s council of ministers.
The verdicts delivered this week have dealt a huge blow to the ongoing movement against corruption; the movement seeks decentralisation of power over matters concerning punitive action against administrative .
Earlier this month, West Bengal CM Mamata Banerjee had also cried foul; she had accused the of attacking the federal structure by orchestrating CBI raids against IPS officers in a state where it has no jurisdiction.
This time, SC’s intervention in crucial matters of the country’s nerve centre can prove to be instrumental in setting a precedent and the future course of social justice.
Prarthana Mitra is a staff writer at Qrius