Asymmetry, power

Top court ruling on services is a boost for representative government in Delhi

Asymmetric federalism has been a positive feature of India’s polity, but even the most pragmatic arrangement may not always guarantee harmonious relations between the Centre and its constituent units. The wrangling between the Union government and the Government of the National Capital Territory of Delhi (GNCTD) has been an endless saga for years, and the Supreme Court has repeatedly sought to lay down the terms of their relationship in the way the territory is governed. In the latest verdict, a Constitution Bench has ruled that the elected government does indeed have control over administrative services. However, it is limited to services related to the extent of its current executive and legislative powers, which extend to all subjects under the State and Concurrent Lists, except for the three excluded ones — public order, police and land. The Centre’s argument, that in the absence of a Public Services Commission for Delhi and in view of the phrase “insofar as such matter is applicable to Union Territories” the subject of ‘services’ will not fall under the Delhi government’s remit, was rejected. The Court’s unanimous verdict rejects the attempt to read the phrase as one that imposes an additional limitation on its legislative and executive powers. The Court has emphasised the sui generis nature of Delhi, so that its Union Territory status is not used to limit the role of the elected government. The five-judge Bench ruling again underlines the principle that a representative regime should not be undermined by an unelected administrator.

Delhi Chief Minister Arvind Kejriwal, who has been embroiled in a prolonged tussle with the Lieutenant Governor over several issues, will be elated with the Court’s ruling that “the involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance”. However, even yet another Constitution Bench verdict underscoring the representative character of the GNCTD may not be enough to end the underlying power struggle in Delhi, as long as the Centre continues with its efforts to clip the powers of the government because of its antagonism towards the Aam Aadmi Party. It is five years since the Court observed that constitutional trust between high functionaries is needed to resolve matters, but there is no sign of the conflict abating. In practical terms, the provisions of the GNCTD (Amendment) Act, 2021, which sought to strengthen the hand of the Lt. Governor in running Delhi, may continue to be a source of conflict. The validity of its provisions is also under challenge before the Supreme Court, an indication that the legal tussle is hardly over.