Delhi Govt vs LG | Won't Lack Of Posting Power Dilute Functional Control Over Civil Servants? Supreme Court Asks Centre

The Supreme Court on Tuesday resumed hearing on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of DelhiThe five-judge bench of Chief Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard SG Tushar Mehta for the Centre and Senior Advocate Dr. Abhishek Manu Singhvi for the GNCTDSG: "We cannot lose sight of the fact that we are dealing with the capital of the nation. The central government has a huge part to pay in administration"Justice Chandrachud: "Recognising the executive power of the GNCTD over the civil services would detract from the status of Delhi as a national capital territory?"SG: "Delhi has also a sui generis nature, so a hybrid model is chosen. Normally, the Parliament's power is with respect to List I and List III...."Justice Chandrachud: "And you are saying that in the case of union territories, that power is in lists 1, 2 and 3?"SG: "Yes, in case of union territories, supremacy is given in case of list II also. Otherwise, no other unit of governance has this"Justice Chandrachud: "The concept of federalism applies only in case of the Union and state? There is a hybrid federalism between union territories and the Centre and some aspects of federalism apply there. It is not in relation to a full-fledged state, but in carving out a constitutional amendment for the union territory of Delhi, it was also a reflection of a certain degree of federal aspiration. It is obviously not a state. It does not have all the trappings of a state. But it has some trappings of a state if we have to imply the federal concept even in relation to the Centre"SG: "The principle of federalism will not be completely ousted in the relationship between the Union and the union territory, but the principles which govern the relationship between union and the state, that would not be the federalism. It would be kind of a hybrid federalism with supremacy to the Centre"Justice Chandrachud: "Why do you postulate federalism, other than an abstract constitutional theory? It is a demarcated polity where governance is distributed, both in Executive and Legislative terms, on different levels between the Centre and the states and between units within a state also. These characteristics of federalism are prevalent even in relation to a union territory. Say, even the panchayats or municipal corporations, which have now come in by way of a constitutional amendment, are reflective of a need for local governance"SG: "I am not saying complete absence of federalism between the Union and a union territory. The way the majority considers it, akin to federalism between a full-fledged state and the Union, that may not be correct. In a union territory, you have a hybrid kind of federalism with centralisation of power. What are the fundamentals of federalism? The federating unit is not dependent on the Union for its power, the Constitution is the source of power. I am not pitching that, that would be unrealistic. It would be different from a state"Justice Kohli: "You are saying that there will be boundaries where the Centre will keep its powers?"SG: "There is no question of any federalism in union territories. Mostly, there is no elected government in UTs, we control them. Only, in Puducherry and in Delhi, in these 2, there is a legislative assembly. And here, as Your Lordships said, the threshold would be low, it would not be all-encompassing. India is otherwise also not a complete federal or complete unitary. It is quasi federal, quasi unitary"Justice Chandrachud: "Interestingly, the J&K Reorganisation Act incorporates a Public service commission for the UTs of Jammu and Kashmir"SG: "There is a clear cut answer. Please take 239 AA. The Parliament can say that for the NCT of Delhi, there will be a separate state Public service commission, or that even police will be under the Delhi administration. The J & K State Reorganisation Act is a Parliamentary Act"Justice Chandrachud: "So they can constitute an institution for the public services, according to you"?SG: "Yes. Please see Article 4"Justice Narasimha: "Constitution of the service commission in the UTs of Jammu and Kashmir is an exercise of Parliamentary power or the state legislative assembly has done? If it is the Parliamentary power, then how is it related to article 4?"SG: "It is the Parliamentary state reorganisation act. After the UT of J&K, there is no legislative assembly as of now"Justice Chandrachud: "The Parliament, under Entry 70 of List I, can legislate to constitute a union Public service commission. So under entry 70 of list I, they cannot constitute a Public service commission for union territories. Entry 41 of list II refers to the state Public service commission and that, according to you, will not apply to a union territory. Therefore, even Parliament cannot legislate under entry 41 of list II to constitute a union territory...

Delhi Govt vs LG | Won't Lack Of Posting Power Dilute Functional Control Over Civil Servants? Supreme Court Asks Centre

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