Lt. Governor vs. Elected Government: Officers Accountable to Democratically Elected Government, holds Supreme Court [Read Judgment]

NEW DELHI: The Supreme Court on Thursday ruled in favour of Delhi government on its dispute with the Centre on appointment and postings in civil services, saying a democratically elected government should have control over its officers.

"Our model of federalism expects a sense of cooperation between the Union at the centre, and the regional constitutionally recognised democratic units. The spirit of cooperative federalism requires the two sets of democratic governments to iron out their differences that arise in the practice of governance and collaborate with each other. The Union and NCTD need to cooperate in a similar manner to the Union and the States. Our interpretation of the Constitution must enhance the spirit of federalism and democracy together," it said.

The top court declared a constitutionally entrenched and democratically elected government needs to have control over its administration and the administration comprises several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment.

A five-judge Constitution bench led by Chief Justice of India D Y Chandrachud gave its ruling on the issue as to who would have control over the services in the National Capital Territory of Delhi.

The court said the Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a State.

"If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant" the Constitution bench said in its judgement.

The triple chain of command is: a. Civil service officers are accountable to ministers; b. Ministers are accountable to Parliament/legislature; and c. Parliament/legislature is accountable to the electorate, it said.

The bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha emphasised that if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted as an officer recruited by a particular government may serve on deputation with another government.

"If the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected, the bench said.

It further said a democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance, it added.

With regard to Lieutenant Governor, the bench said: in light of Article 239AA and the 2018 Constitution bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD. As we have held that NCTD has legislative power over services (excluding public order, police, and land) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services.

The bench said that the legislative and executive power of NCTD over Entry 41 shall not extend over to services related to public order, police, and land.

However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD, the bench said.

The bench observed that Article 239AA, which conferred a special status to NCTD and constitutionally entrenched a representative form of government, was incorporated in the Constitution in the spirit of federalism, with the aim that the residents of the capital city must have a voice in how they are to be governed.

If services are excluded from its legislative and executive domain, the ministers and the executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decision, the court noted.

In May last year, when the matter was referred to a five-judge bench, the apex court clarified that the bench shall adjudicate the limited issue relating to services in Delhi and that no other substantial issue on interpretation of Article 239AA shall be adjudicated afresh.

Referring to 2018 Constitution bench judgement, the court said, "The decision elucidates the manner in which the insertion of Article 239AA accorded a sui generis status to NCTD setting it apart from other Union Territories. The judgment noted that the constitutional entrenchment of a Legislative Assembly, Council of Ministers, and Westminster style cabinet system of government balancing the national interests of Union of India."

[Read Judgment]