TUSSLE OVER SERVICES IN DELHI

5. Central & State Government’s Arguments

• The Central Government has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
• On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
• The Delhi government had also contended that the recent amendments to the Government of National Capital Territory of Delhi (Amendment) Act, 2021, violate the doctrine of the basic structure of the Constitution.

6. Does the Ordinance go against the Supreme Court judgment? 

• The Ordinance is based on the argument that the Supreme Court has acknowledged the superior authority of Parliament makes laws for the national capital.
• A review petition filed by the Centre in the Supreme Court claimed that Delhi is not a “full-fledged State” but only a Union Territory which is an extension of the Union.
• The Parliament is Delhi’s true legislature, the Centre has argued. However, the May 11 judgment addresses this contention by acknowledging that though Delhi is not a full­fledged State, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List.
• The unanimous judgment held that though Delhi is not a State under the First Schedule to the Constitution, it is conferred with the power to legislate upon subjects “to give effect to the aspirations of the people of NCTD”.
• It has a democratically elected government that is accountable to the people of the NCTD.
  Under the constitutional scheme envisaged in Article 239AA(3), NCTD was given legislative power which though limited, in many aspects is similar to States.
• In that sense, with the addition of Article 239AA, the Constitution created an “asymmetric federal model” with the Union of India at the center, and the NCTD at the regional level. 
• The May 11 judgment also referred to how the majority in a 2018 Constitution Bench judgment had held that while NCTD could not be accorded the status of a State, the concept of federalism would still apply to NCTD.
• The court had held that the executive power of the Delhi government was “coextensive” with its legislative power.
• That is, the executive arm of the government covers all the subjects, including services, except public order, police, and land, for which the legislative arm can make laws.

7. What do the Ordinance and the judgment say about the LG’s powers?

• The Ordinance has put the LG back in the driver’s seat by giving him the power to take a final call on any decision taken by the NCCSA regarding services.
• This is even though the LG’s powers were curtailed way back in 2018 by another Constitution Bench judgment. 
• On May 11, the court agreed with its conclusions in 2018 that the LG was bound by the aid and advice of the Council of Ministers under Article 239AA(4) while exercising executive powers in relation to matters falling within the legislative domain of the legislative assembly of NCTD.
• The court had held that even the “limited discretionary power” afforded to the LG “ought to be exercised in a careful manner in rare circumstances such as on matters of national interest and finance.