THE TUSSLE OVER ‘SERVICES’ IN DELHI 

Why in News:

The judgment of a Constitution Bench led by Chief Justice Chandrachud had limited the role of the Lieutenant Governor (L-G), an arm of the Centre, over bureaucrats in the capital to three specific areas — public order, police and land.

The ordinance has now wrested control over civil servants serving in Delhi from the Government of NCT of Delhi to the unelected Lieutenant Governor… It has done so without seeking to amend the Constitution, in particular Article 239AA, which holds that the power and control over services should be vested in the elected government".

Timeline of the Dispute:

• 2017 Judgement - Delhi High Court: The Delhi High Court had, in its judgment 2017 held that for administration purposes of the National Capital Territory (NCT), the Lieutenant Governor (L- G) is not bound by the aid and advice of the Council of Ministers in every matter. On appeal, the SC in 2017, referred the matter to decide the interpretation of Article 239AA of the Constitution.

• 2018 Judgement - Constitution Bench: A five-judge Constitution bench had unanimously held that the L-G of Delhi is bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.

• 2019 Judgement - Split Verdict: A two-judge Bench of the Supreme Court delivered a split verdict on the powers of the Government of NCT of Delhi and the Union government over services, referring the matter to a three-judge Bench. One judge ruled that the Delhi government has no authority over administrative services, while another judge held that the transfer or posting of top- level bureaucrats should be decided by the Central government.

• 2022 Case - Reference to Larger Bench: In April 2022, the Centre sought a reference to a larger Bench, arguing for its authority to transfer and post officers in Delhi due to its status as the national capital. The court acknowledged the need for a definitive pronouncement on the scope of legislative and executive powers, specifically regarding the term "services," by a Constitution Bench.

• 2023 Case - Supreme Court Decision: The Supreme Court, in May 2023, held that the Delhi government has the power to enact laws and administer civil services in the national capital, resolving the issue in favor of the Delhi government.

• Recent Developments: In response to the Supreme Court's decision, the Centre promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, asserting its claim of power over services in Delhi, further complicating the dispute.

Governance Model of New Delhi:

1. Status and Administration

• Delhi's Constitutional Status: Delhi is recognized as a Union Territory under Schedule 1 of the Constitution, but it is specifically designated as the 'National Capital Territory' under Article 239AA. This distinct categorization sets the framework for its governance and administration.

• Role of the Lieutenant Governor (L-G): The L-G of Delhi holds the administrative authority as per Article 239AA. They function based on the aid and advice of the elected legislative assembly, subject to certain exceptions and limitations.

• Scope of Aid and Advice: The 'aid and advice' provision is applicable to matters falling within the powers of the elected Assembly, as specified in the State and Concurrent Lists. However, issues related to public order, police, and land are excluded, creating a potential source of conflict.

2. Decision-Making Dynamics

• Powers of the Lieutenant Governor: According to Article 239AA, the L-G is required to act on the aid and advice of the Council of Ministers or implement decisions made by the President on reference. This grants the L-G a degree of discretion and decision-making authority.

• Mechanism for Resolving Differences: Article 239AA empowers the L-G to refer any disagreement with the Council of Ministers to the President. This mechanism serves as a means to resolve conflicts, but it can also contribute to delays and complications in decision-making processes.

• Power Struggles and Challenges: The coexistence of dual control between the L-G and the elected government leads to power struggles and challenges. The interpretation and implementation of the governance model have given rise to ongoing disputes, legal battles, and the need for clarification.

Special Status of Union Territory of Delhi - Articles 239AA and 239AB Article 239AA:

• The 69th Amendment Act, 1992 introduced Articles 239AA and 239AB, conferring a special status upon the Union Territory of Delhi.

• The Union Territory of Delhi is now referred to as the National Capital Territory of Delhi under Article 239AA.

• The administrator of Delhi is designated as the Lt. Governor.

• A legislative assembly is established for Delhi, granting it the authority to enact laws on subjects within the State List and Concurrent List, with certain exceptions:

• Excludes matters related to public order, land, and police from the assembly's jurisdiction.

Article 239AB:

• Article 239AB empowers the President to suspend the operation of:

Any provision of Article 239AA, or any provision of laws enacted in accordance with Article 239AA. This provision resembles Article 356, commonly known as President's Rule.

Additionally, Article 239AB mandates the formation of a Council of Ministers for Delhi, comprising a maximum of 10% of the total number of assembly members.

Functionality issues associated with the Administrative services in Delhi:

1. Bureaucratic Structure and Decision-Making

• Centralized Decision-Making: The centralized decision-making structure often leads to delays and inefficiencies in the administrative services of Delhi. The concentration of power at the higher levels can hinder effective governance and hinder timely decision-making.

• Lack of Autonomy for Local Administration: The limited autonomy of local administration in Delhi creates challenges in addressing the specific needs and priorities of the city. Decisions and policies crafted at the central level might not consistently correspond to the practical circumstances and needs of the local population.

• Interference in Administrative Appointments: Excessive interference in administrative appointments, particularly in the transfer and posting of officers, disrupts the functioning of administrative services. Political influences and external pressures can undermine meritocracy and hinder the efficient allocation of human resources.

2. Coordination and Collaboration

• Tussle between Centre and State: The ongoing power struggle and tussle between the Centre and the State government in Delhi adversely impact administrative services. Lack of coordination, conflicts of interest, and jurisdictional disputes impede effective governance and service delivery.

• Communication and Coordination Gaps: Inadequate communication and coordination between different departments and agencies within the administrative setup lead to inefficiencies and delays. Fragmented decision-making and a lack of cohesive strategies hamper the smooth functioning of services.

• Complex Interplay of Authorities: The complex interplay of authorities, involving the Lieutenant Governor, the elected government, and other central agencies, creates confusion and slows down administrative processes. Clarity and streamlining of roles, responsibilities, and decision-making mechanisms are necessary to address these challenges.

3. Service Delivery and Public Interface

• Inefficient Service Delivery Mechanisms: Inefficiencies in service delivery mechanisms, including delays, bureaucracy, and lack of accountability, hinder the effective functioning of administrative services in Delhi. Failing to streamline processes, lacking transparency, and neglecting the potential of technology hampers service delivery outcomes.

• Red Tape and Administrative Bottlenecks: Excessive red tape and administrative bottlenecks contribute to delays and corruption within the administrative services. Complicating procedures, disregarding accountability, and consistently delaying service delivery undermine efficient governance.

• Citizen Engagement and Grievance Redressal: Limited citizen engagement and inadequate mechanisms for grievance redressal hinder the responsiveness of administrative services. Encouraging active participation, strengthening feedback channels, and establishing robust grievance redressal systems can enhance public trust and improve service quality.

Arguments of the Central Government on Administrative Services in Delhi:

1. Necessity of Control over Administrative Services

• Effective Governance: The Centre contends that increased control over administrative services in Delhi is vital for efficient governance. It asserts that such oversight facilitates seamless operations, streamlined policy implementation, and enhanced coordination among government departments.

• National and International Responsibilities: The Centre asserts that Centre needs administrative control to effectively discharge its duties, represent the nation, and engage in international commitments.

• Upholding National Interests: By retaining control, the Centre can ensure that administrative decisions align with national objectives, priorities, and security concerns.

2. Sufficient Control through Transaction of Business Rules

• Ministerial Authority: The Centre argues that Delhi's ministers have sufficient control over the bureaucracy through the Transaction of Business Rules, 1993. These rules grant ministers supervisory and functional control, enabling effective decision-making, coordination, and implementation.

• Streamlining Administrative Processes: The Centre asserts that the existing framework provides an adequate mechanism to streamline administrative processes in Delhi. For example, through the Transaction of Business Rules, ministers have the authority to ensure efficient functioning, transparency, and accountability in the administration.

• Enhancing Efficiency and Accountability: The Centre contends that the Transaction of Business Rules empowers Delhi's government to enhance efficiency and enforce accountability as rules enable effective monitoring, performance evaluation, and corrective measures, leading to improved governance outcomes.

3. Importance of LG's Role as Union Territory Administrator

• Retaining Governance Structure: The Centre emphasizes the significance of the Lieutenant Governor (LG) retaining substantial power in Delhi as a Union Territory. The LG's authority ensures continuity, stability, and adherence to constitutional provisions, contributing to effective administration.

• Balancing State and Central Interests: The LG's involvement helps reconcile divergent perspectives, maintain harmony, and foster cooperative governance between the Centre and the Delhi government.

• Safeguarding National Security: LG’s involvement ensures seamless coordination, efficient decision-making, and effective implementation of measures related to national security.

4. Control over Administrative Services for National Capital's Image

• Preserving National Image: Effective control ensures the smooth functioning, efficient management, and timely execution of services, which contributes to a positive perception of the national capital.

• Coordinating National Programs: With administrative control, the Centre can ensure seamless implementation, coordination, and synchronization of various national-level projects and schemes.

• Ensuring Consistency and Uniformity: Central control enables the implementation of standardized policies, procedures, and guidelines, promoting uniformity in service delivery and governance practices.

Arguments of the Delhi Government on Administrative Services in Delhi:

1. Delhi Government's Authority for Policy Implementation

• Elected Government's Power: The Delhi government argues that as an elected government, they should have the authority to effectively implement their policies and hold civil servants accountable. It ensures the efficient execution of their proposed initiatives, enabling them to fulfill their promises to the electorate and deliver good governance.

• Constitutional Provision - Article 239AA: By invoking Article 239AA, the Delhi government establishes a legal basis for their claim to exercise powers and make decisions that align with the interests and aspirations of the people of Delhi.

• Challenging the 2021 Amendment Act: The Delhi government argues that the 2021 Amendment Act represents an overreach by the Centre into the administrative affairs of Delhi, undermining the powers of the democratically elected government. By highlighting the perceived overreach, the Delhi government seeks to safeguard its autonomy and preserve the integrity of the state's administrative processes.

2. Limiting Lieutenant Governor's Power

• Council of Ministers' Advice: The Delhi government advocates for the Lieutenant Governor (LG) to act on the "aid and advice" of the Council of Ministers, in line with the 2018 Supreme Court ruling, limiting their power to matters within the legislative assembly's scope.

• Authority over Transfers and Postings: The Delhi government argues that elected representatives must have the authority over transfers and postings of civil servants within their jurisdiction, in the interest of federalism and effective governance. Entrusting elected representatives with authority over transfers and postings raises concerns about accountability, potentially leading to nepotism and favoritism in the placement of civil servants.

• Violation of Constitutional Doctrine: The Delhi government contends that recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of the basic structure of the Constitution. By alleging the breach of the constitutional doctrine, the Delhi government underscores the dire consequences of disregarding the foundational principles and values enshrined in the Constitution.

3. Ensuring Effective Governance

• Ensuring Autonomy in Administrative Matters: The Delhi government emphasizes the need for autonomy in administrative matters to effectively govern and serve the people of Delhi. They argue that being accountable to the electorate, the elected government is best positioned to make decisions on administrative services.

• Upholding Democratic Principles: The Delhi government claims that democratic principles necessitate endowing elected representatives with administrative authority. They contend that democratic governance entails the ability to exercise control and ensure accountability over the administration.

• Strengthening Local Governance: The Delhi government asserts that possessing control over administrative services enhances local governance, enabling them to address the distinct needs and complexities of Delhi.

4. Safeguarding the Constitution's Basic Structure

• Constitutional Integrity: The Delhi government underscores the significance of preserving the constitutional bedrock in relation to administrative services. They assert that recent revisions and infringements on the authority of the elected government jeopardize the constitutional framework.

• Upholding Federalism: The Delhi government contends that entrusting administrative services to the elected government harmonizes with the essence of federalism. They assert that federalism involves a distribution of powers between the central and state governments.

• Empowering Local Representation: The Delhi government asserts that empowering local representation in administrative services ensures comprehensive resolution of people's aspirations and concerns. They argue that local representatives possess profound awareness of the local context, culture, and challenges.

Way forward:

1. Administrative Reforms

• Precision in Legislative and Executive Powers: Precisely defining the legislative and executive powers of the Delhi government and the central government will effectively tackle the challenges surrounding administrative services in Delhi. A clear delineation of powers allows both entities to function within their designated jurisdictions, reducing conflicts and ensuring efficient governance.

• Collaborative Approach: Foster a regular dialogue, consultations, and cooperation mechanisms, so that both entities can jointly devise policies and strategies for the betterment of Delhi's residents.

This can be facilitated through the establishment of joint committees, task forces, and frequent meetings dedicated to addressing and resolving administrative matters.

• Streamlining Administrative Processes: Introduce technology-driven platforms, digitizing records, and automating procedures to minimize bureaucratic delays and promote transparency.

2. Structural Reforms

• Empower Local Governance: Enhance the autonomy of local institutions in Delhi for effective management of administrative services. Devolve authority to municipal corporations and elected representatives, decentralizing decision-making and aligning with local needs and aspirations.

• Strengthen Accountability: Establish robust mechanisms to ensure transparency and prevent misuse of power. Implement monitoring, evaluation, and performance assessment systems for civil servants, maintaining professionalism and integrity.

• Enhance Human Resource Management: Implement merit-based recruitment, training programs, and performance-based incentives to attract and retain skilled professionals. Foster a culture of professionalism, accountability, and continuous learning for a motivated workforce.

3. Legal and Constitutional Considerations

• Judicial Interpretation: By seeking clarity through judicial interpretation of constitutional provisions related to administrative services in Delhi, a legal framework for resolution can be established. Engaging the judiciary in interpreting and providing guidance on issues concerning the distribution of powers between the central government and the Delhi government helps to establish precedents and ensure adherence to constitutional principles.

• Constitutional Amendments: Exploring constitutional amendments to resolve the administrative services issue in Delhi offers a sustainable solution. Conduct a thorough review and make required amendments to relevant provisions. It will clarify the powers and responsibilities of the central and Delhi governments, promoting efficient governance and seamless coordination.

• Mediation and Dialogue: Encourage constructive mediation and dialogue between the central government and the Delhi government to cultivate mutual understanding and consensus- building. Create a dedicated platform that includes representatives from both sides facilitates discussions on administrative services to enable the exploration of effective solutions.

4. Institutional Framework

• Enhance Inter-Governmental Coordination: Strengthen coordination among central government, Delhi government, and stakeholders to promote collaborative decision-making.

• Establish Expert Committee: Form a diverse committee of professionals, constitutional experts, and representatives from central and Delhi governments to gather recommendations and insights for addressing administrative services.

• Conduct Public Consultation and Participation: Involve residents of Delhi through consultations, surveys, and feedback to ensure policies align with their needs and aspirations.

• Institutional Capacity Building: Prioritize professional development in administrative institutions, offering training programs and workshops to enhance effectiveness and efficiency.

Mains Practice Question:

Constitutional morality is that fulcrum which acts as an essential check for Vibrant Democracy. But Recent Ordinance w.r.t Services matter in case of Delhi unfortunately disregards constitutional morality. Analyse.