HISTORY OF TUSSLE: After see-saw battle in various courts, final word from SC
New Delhi: It was a carefully worded notification issued by the Union ministry of home affairs (MHA) in May 2015 that led to Thursday's ruling of the Supreme Court on who holds the reins of power in Delhi.
Faced with an ongoing tussle between the lieutenant governor and the newly elected Delhi Chief minister over the appointment of bureaucrats in 2015, the Central government responded with the notification making the LG effectively the person in charge of the capital and handed him full control of 'service', or the administrative prerogative to post or transfer civil servants in Delhi.
Three key subjects-public order, police and land-were under the jurisdiction of the central government, while sectors such as health, education, agriculture, forest and transport fell under Delhi's elected government. Robbed of the authority it had shared with the LG since 1991, when an elected legislature was put in place for the capital, the AAP government approached Delhi High Court.
After several hearings, in 2016 the high court came out with the first comprehensive ruling on the vexed constitutional status, but decided against the AAP government, concluding that LG was the de-facto boss of Delhi who wasn't bound by the aid and advice of the state cabinet.
The court upheld the MHA notification ad quashed those issued by the state government, ruling them illegal because they were issued without the LG's concurrence even when several of these were not related to police, public order or land, the explicit no-go areas. The court also upheld the barring of Delhi government employees, while setting aside the AAP government's commission of inquiry into CNG fitness and Delhi and District Cricket Association, again because of the absence of the LG's concurrence.
The high court also held as illegal the appointment of the elected government's nominee directors on the boards of BSES Rajdhani Power Ltd, BSES Yamuna power Ltd and Tata Power Delhi Distribution Ltd by Delhi power company Ltd on the recommendations of the chief minister without communicating the decision of the LG for his Views. The only consolation for the elected government was the court saying the LG could appoint special public prosecutors only on the aid and advice of the council of ministers.
The battle moved to the Supreme court where a constitution bench took up the clutch of petitions and delivered a landmark ruling in 2018 reversing the high court's decision. The apex court was categorical that beyond the excluded categories of land, public order and police, the LG did not have independent decision-making powers and was bound to act on the aid and advice of the ministers. The bench made it clear that though the decisions of the communicated to the LG, this did not mean his concurrence was required in every case.
The Supreme court bench also clarified that issues of the various notifications published by Delhi government in exercise of its administrative and legislative powers would be dealt with separately by an appropriate smaller bench. While a huge boost for the AAP government, the constitution bench verdict still left the contentious issue of control of 'services' open, ending with a two-judge bench delivering a split verdict in February 2019.
After the Centre sought a re-interpretation of Article 239AA of the constitution by a constitution bench on who controlled 'services, the Supreme Court's ruling on Thursday divested the LG of the power crystallised first by the 2015 MHA notification.