The Bench further held that the mandate of the LG was to act on the ‘aid and advise’ of the Council of Ministers, except when a matter was referred to the President for decision. Accordingly, the executive power of the Delhi Government was co-extensive with its legislative powers, except for three subjects in the State List, i.e., public order, police and land. Accordingly, the Bench sent the specific appeal between the two governments to a regular bench for adjudication, which arose from a decision of the Delhi High Court upholding the notifications of the Ministry of Home Affairs. This is how the present case came to be heard.

The Bench of Justice A.K. Sikri and Justice Ashok Bhushan outlined five basic issues:

a. Whether the exclusion of ‘services’ from the legislative and executive domain of the NCTD, vide notification dated May 21, 2015, is unconstitutional and illegal?
b. Whether the exclusion of the jurisdiction of the Anti-Corruption Branch (‘ACB’) of Delhi to investigate offences committed under the Prevention of Corruption Act, 1987 by the officials of the Central Government and limiting the jurisdiction of ACB to the employees of the GNCTD alone is legal?
c. Whether the GNCTD is an appropriate government under the Commission of Inquiry Act?
d. Whether the power to issue directions with the Electricity State Commission is with the Government of NCT of Delhi?
e. Whether the Revenue Department of the GNCTD had the power to revise the minimum rates of Agricultural Land (Circle Rates) without the approval of LG?
f. Whether it is the LG or the GNCTD which has the power to appoint the Special Public Prosectors under Section 24, CrPC?


On the issue of ACB, the Apex Court held that since the Central Government has exclusive jurisdiction over ‘police’ under Article 239AA (3) of the Constitution, to the exclusion of GNCTD, it would extend to issuing administratice/executive directions to the police as well. Thus, the Centre has the power to demarcate and segregate the jurisdiction of the two forces, i.e., ACB and the police. The ACB was created by the LG, vide a 1993 notification, which was not challenged, and the 2015 notification was only a modification on the earlier one, to the extent it stated that the ACB could only investigate cases against the GNCTD employees, and not the Central government employees. Thus, the Court upheld the validity of 2015 notification. In a nutshell, it means that the Kejriwal Government cannot investigate corruption allegations against the Delhi police personnel or any Central Government employees, which was one of the biggest demands of the AAP government.

Even on the issue of appointment of Commission of Inquiry under the COI Act, the Court held that only the Central Government had the power to appoint any such commission, since the law under Section 2(60) of the General Clauses Act defines the state government for a union territory as the Central Government.

In terms of Delhi Electricity Regulatory Commission, the Court held that the Delhi Government had the power to issue directions to the DERC in matters of policies involving public interest. With respect to circle rates, the Court noted that the Government cannot issue notification without informing the LG of its decisions, though it could control the same. Regarding the appointment of SPPs, the Apex Court upheld the power of the Delhi Government for their appointments, and the LG had to act on the aid and advise of the Council of Ministers.

While the above issues were adjudicated by a consensus decision, the Court had a split decision with respect to services. Justice Sikri opined that“transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly” while “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to L-G” and in case of a difference, the view of the LG would prevail. However, Justice Bhushan differed and noted that the Delhi Government did not have any power over ‘services’ and relied on the Balakrishnan Committee Report, which had said that the Entry in question was not in the domain of the GNCTD. Accordingly, the Bench referred the issue of ‘services’ to a larger bench for adjudication.

It is noted that the judgment came to be criticised by the Delhi Government, owing to the fact that it would make the governance of Delhi by the Delhi Government quite restricted, if they did not have power over services or if ACB could investigate corruption allegations against central government employees or appoint commission of inquiries. One needs to wait for a final decision on the question of ‘services’, but till then, the people of Delhi have to make do with the current stalemate. Further, the Court ought to have noted the clear attempts made by the present Central Government to thwart the Delhi Government’s decision-making powers, in violation of the constitutional provisions. Strictures should have been passed by the Court in this realm. (IPA Service)