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Delhi vs Centre | Exclusion Of Power Over Civil Services Negates Purpose Of State Governance, Negates People's Will : Singhvi Tells SC
LIVELAW NEWS NETWORK
10 Jan 2023 4:15 PM GMT
The Supreme Court on Tuesday commenced 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 Justices D. Y. Chandrachud, M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard Senior Advocate Dr. Abhishek Manu Singhvi, for the government of NCT...
The Supreme Court on Tuesday commenced hearing on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of Delhi
The five-judge bench of Chief Justices D. Y. Chandrachud, M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard Senior Advocate Dr. Abhishek Manu Singhvi, for the government of NCT of Delhi. Last year, a 3-judge bench had referred the matter to the Constitution Bench.
Here is an account of today's hearing :
Dr. Singhvi: "There are four or five broad themes. This is the case at the core- it is not merely about distribution of powers and the balance between the government of India and the NCT. It is about whether civil servants serving in the NCT are accountable through the government, the ministerial responsibility, and through them to the people of Delhi which elected the Delhi government. Civil servants must be accountable to ministers. That is the first leg of the chain. The buck stops at the minister, he takes the responsibility, but they are accountable internally to the ministers. Second, the minister is accountable to the legislature. This is the heart of the whole system. Otherwise the whole system cannot function. Finally, the members of the legislature are accountable to the people who elected them. This is the triple basis of how the accountability of the civil servants gets fused ultimately with the people who elect the government"
Dr. Singhvi: "The second broad theme is that in any federal system, there are at the minimum a dual set of governments operating. Dual manifestation of public will goes along with dual governance. Intelligence of the electorate, especially in India, Your Lordships have noted in several judgments. Federalism is ultimately a vehicle for manifesting diversity. It is like a pressure cooker, it allows you to let off steam, to manage this cauldron of diversity, and India is the most diverse on planet Earth"
Dr. Singhvi: "The third broad facet arising here is that any government which seeks to fulfil the will of the people will have to have the ability to create posts, to appoint staff to those posts and to interchange them according to that government’s perceived sense of that person’s competence, ability, efficacy. Unless the government has the power of creating and managing civil services, appointing persons, transferring persons, a government cannot function. Government is represented at the political level by ministers who create policies, create decisions of a broad nature. But any government- central, state, municipal, whatever- the implementation of those policies depends only on the civil servants. Imagine a situation where those who are charged with the obligation of implementing, the political executive is excluded from dealing with them or controlling them. So the exclusion of civil services power from any government negates the purpose of any government, negates the purpose of giving it any autonomy, negates the purpose of state governance or local governance. Exclusion of the services means civil servants fail to be accountable to the people through the chain of command which I have just spoken about. You are negating the will of the people. Exclusion means an impossible-to-consider situation where I, at the ministerial level, am in charge of making policies but those who are implementing it are not responsible to the policymakers. Your civil servant is the servant of a different master, serving in my department but serving a different master. When you have no accountability of those in service, then you function on your own. There is complete insubordination, chaos. Is it even conceivable to argue or suggest that civil services be excluded? As has been done by the impugned notification? Then Your Lordships need not have created Article 239AA"
Dr. Singhvi: "There is a joint cadre, there is all India service and there are state services. In all India service also, you are always rooted and anchored in a state. Services are of India but you don’t hang in the air, you are employed in a given state. If All India cadre decides to release 'A' for the NCT or the state 'X', then how that person works, where he is posted tomorrow, is entirely an intrastate issue, intra- UT issue. It will never be an issue which a third party can decide, otherwise you can’t run any UT. All India services and central government services are designed to serve different states. But after being allocated, how they operate, how they implement the policy, where they go, which department, transfer or keeping XYZ at XYZ place is an intrastate issue. If you do not give that power to a UT, it is impossible to conceive of a functioning system. Like, Your lordships know we have a chamber of a lawyer or a senior counsel, he gets juniors, he decides this person's unique ability lies in this area of law and will be given these kinds of matters when they come, or that he will be in the Supreme Court or the High Court, the chamber head decides it. As the practice grows, he gets many more juniors. Tomorrow, he decides that you are not good in the Supreme Court so he sends you to the High Court. But here, the entire government is expected to work without civil services being in their control by a bizarre expression of Entry 41"
Dr. Singhvi: "In the most centralised of examples globally, such as London, even if the control of the city is with the central government, the civil servants are not excluded from the local government or the entity which governs that city. Even in Delhi, the Municipal servants are answerable to a standing committee and the municipal head. But the NCT government, which may or may not control the municipality depending on the elections, has no such power over civil servants. Delhi is a sui generis UT, being the capital, where it has been decided that 3 powers would be with the central government- safety, security, diplomatic buildings, and fourthly, in rarest of rare cases for significant issues if there is a disagreement with the GNCTD, the LG then has the power of doing nothing and referring it to the President. It is a carefully calibrated consideration. Your Lordships have also said that the Parliament can make laws for anything and it will trump other attempts, legislative or executive, to do something on that subject, but the Parliament's power to make law to specifically deal with something does not touch the Executive power of the NCT...."
Justice Chandrachud: "In the case of the NCT, the Parliament can enact law on any subject in the state list also- that is the difference between the NCT and a state. So in that sense, the state list and the concurrent list are both concurrent. That is why it is a UT. This is very interesting. If you see article 162 of the Constitution, the Proviso, what happens in the concurrent list. Take the case of Maharashtra or Odisha, forget the NCT- If the Parliament is operating on the concurrent list, then what is the executive power of the state in the Concurrent list? The same analogy will apply to the NCT in case of the state list because for the NCT, the state list is also the concurrent list"
Justice Chandrachud indicated that Article 162 says that subject to the provisions of the Constitution, the executive power of a state shall extend to the matters with respect to which the Legislature of the state has power to make laws. The judge indicated the Proviso appended to the Article which says that Provided that in any matter with respect to which the Legislature of a state and Parliament have power to make laws, the executive power of the state shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Dr. Singhvi: "The answer is in article 73 and article 239AA. 73 deals with the extent of the executive power of the Union- it says that subject to the other parts of this Constitution- 239AA is one of those parts- the executive power of the union shall extend to the matters with respect to which the Parliament has the power to make laws. Please read it along with 239 AA. This is exactly the balance which Your Lordships struck in the Constitution bench judgment"
Justice Chandrachud: "73 proviso is very important because it shows even in the concurrent list, the union government cannot take over the executive power (the proviso to article 73(1)(a) says that Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any state to matters with respect to which the Legislature of the state has also power to make laws"
Dr. Singhvi: "Even where you can legislate, you cannot dilute or take over the executive power. That is the point. That is the crux which is carried forward in your lordships' judgment"
Justice Chandrachud: "Take the case of, say, the Cr. P. C., which is in the concurrent list. So though the Parliament has the power to amend the Cr. P. C., the executive power, say, in the state of Karnataka, is wielded only by the government of Karnataka"
Dr. Singhvi: "I am grateful. It is very important because it is about nitty-gritties on the ground. It will lead to chaos otherwise"
Justice Chandrachud: "Article 254, in relation to Delhi, applies even with regard to the state list. Otherwise, 254 applies only with regard to the concurrent list. Normally, article 254 gives precedence to a law enacted by the Parliament only in the concurrent list. So this makes a difference here"
Dr. Singhvi: "Otherwise, it would not be a UT, it will be a full state"
Justice Chandrachud: "Though you have a legislative assembly, yet Parliament also has the power to legislate on all the subjects in the state list for Delhi"
Dr. Singhvi: "The Legislative powers are in one category. But the executive power is not trammelled by these provisions of the Constitution. Reading 73 and 239AA(4) makes it clear"
Justice Chandrachud: "There is only one caveat which will be the heart of the case. Clause (4) of 239 AA says that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the GNCTD has power to make laws, except in so far as he is, by or under any law, required to act in his discretion. What is the extent of the executive power of the council of ministers? To aid and advise the LG in respect of matters on which the legislative assembly has the power to make matters. Which is the Article which tells us the areas over which the legislative assembly of the NCT has the power to make laws? That is sub-article (3)(a) (to Article 239 AA). (3)(a) has two qualifications. The legislative assembly of Delhi has no power to make laws with regard to entry one, entry 2, entry 18 of the state list. Executive power of the government of the NCT does not extend to these three subjects. There is one more caveat, if you go back to (3)(a), it says the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories. So if a matter in the state list or in the concurrent list is not applicable to the union territories, then you have no power to make law and because you have no power to make law under (3)(a), you have no executive power over that particular subject. Now whether 'services' falls within that description is a different issue. But as a matter of first principle, therefore, the executive power of the GNCTD does not extend to 1, 2 and 18. Also, the executive power of the GNCTD extends to all other entries in list II and list III. But it will not extend to all other subjects in list II and III if that entry is not applicable to the union territories. (3)(a) uses the expression 'union territories'. It is not the union territory of Delhi. So we have to find out whether a particular entry in list II or list III has no application to the union territories in general because the Constitution deliberately uses the expression 'union territories'. So if any entry in the state list or the concurrent list does not apply to the union territories, then the legislative assembly of Delhi has no power to make a law with reference to that particular entry and because you have no power to make law with regard to that entry, you have no executive power over that entry. So the only point which is the whole crux of the matter is what is the meaning of the expression 'in so far as'"
Dr. Singhvi: "'In so far as' is not a term of enlargement. What it is actually meant to facilitate is the creation of 239 AA, saying that all the powers listed in the seventh schedule will be available to you without amending the seventh schedule and saying 'and UT'. And that is now read to say that they will select notification wise?"
Justice Narasimha: "If we could identify that some entries of List II are not falling within the remit of a union territory, if at all, we will have to examine and see which are those entries under list II which do not fall under the remit of a union territory"
Dr. Singhvi: "As a matter of interpretation, your lordships have already partially interpreted that your lordships do not go entry wise. The idea is that the UT is being created akin to a state but with special powers given to the Parliament. Now the Constitution makers have decided in their wisdom that three specific powers they are excluding. The fourth exclusion is that if there is something in your discretion, there also I can aid and advise you. Beyond that if you decide with regard to the phrase 'in so far as', that is wrong. That is the submission"
Dr. Singhvi: "'In so far as' is a term of inhibition, circumscription. 'In so far as' was put to deal with the accepted legal position that under article 246- the seventh schedule is created under 246- and under that, it is established age-old that state does not include union territories. It is to make sure that in the entirety of seventh schedule under 246, state does not include union territories. And if this 'in so far as' was not given to equate, you would have to amend the entire seventh schedule. The next point is that this position is restricted to 246 and the seventh schedule and not generally. It has been adopted by your lordships in several judgments. Number three, it would be a bizarre situation because amendments under 368 of the Constitution in this case would require 50% of the states to agree also because if you touch any list, for any minor amendment, theoretically you require 2/3 of the Parliament and 50% of the states....The NCT government is asserting full legislative power to legislate under entry 41 of the state list (state public services; state public srvice commission). The fundamental error even in the impugned notification is to confuse and conflate the existence of the power which is undeniable but point out to possible absence, alleged absence, of the exercise of the power"
Justice Chandrachud: "Does the union territory have a consolidated fund?"
Dr. Singhvi: "Yes. All the civil servants are paid by the NCT. Even today, with the LG asserting the power to create a post, appoint a post, transfer a post, it is nobody’s case that the entire thing is not paid for by me"
Justice Chandrachud: "entry 42 says state pensions, pensions payable out of the consolidated fund of state. It is Similar to entry 41. What about salaries and allowances of the ministers? The reason I ask is entry 41...."
Dr. Singhvi: "The salaries and allowances of ministers are again by the state"
Justice Chandrachud: "Delhi also undertakes a public debt, right?"
Dr. Singhvi: "it is common ground that Delhi has an assembly. You have created an assembly for all the other 8 UTs in India, for certain others by Parliament law, for us by constitutional amendment. This truncated version of Delhi assembly not being able to pass laws is provided in entries 1, 2 and 18...."
Justice Chandrachud: "You will have to concede One thing- this was felt in a conversation with brother Justice Shah- that entries 1, 2 and 18 are outside your purview. If the civil servants are posted in relation to 1, 2 and 18, then it will be outside your executive power also"
Dr. Singhvi: "I will not like to concede it. I cannot exercise power about land, public order and law...."
Justice Chandrachud: "If a civil servant is sent on deputation to deal with the land aspect...."
Dr. Singhvi: "On a theoretical basis, they were conscious of the query raised by My Lord, that yes, 1, 2 and 18 can have related things. But we are pointing out in our constitutional text that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the state List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the state List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18"
Justice Narasimha: "You can constitute a Delhi State Public service commission. Legislative power for constituting this commission is there"
Dr. Singhvi: "and nothing to stop us from dealing with civil services also"
Justice Chandrachud: "the logical corollary, according to you, is that whenever the word state is used in the entry in the seventh schedule, legislative assembly of Delhi will have no jurisdiction. Salaries and allowances of ministers of the state- You can’t legislate on it because the word state is used. State Public service commission. State pensions. Public debt of the state. All these things will completely go out of the...."
Justice Chandrachud: "Coming back to the nature of the services, we have to have some clarity. Which are the services which are deputed to the union territory? One would be IAS, IPS which are all India services"
Dr. Singhvi: "There are some central government services. DANICS- Delhi, Andaman Nicobar Island civil services. DANIPS- Delhi, Andaman Nicobar Island police services. But they are always anchored in a state. Suppose I am an officer in the Ministry of petroleum, central government, I am an IAS, whether I can be relieved from petroleum and sent to Delhi will be decided by a board. Request comes from Delhi that please post Mr. so-and-so. The board may say I cannot be excused. I may also be released and posted to Delhi. Once he enters Delhi, then where will he be posted, whether he will sit under the Ministry of culture or Ministry of sewerage or ministry of water, perhaps After six months if not finding him suitable for water, he is transferred to Sewerage, Getting the NCT policy of cleaning Yamuna implemented through him- all this will be done by the NCT, he is now an officer of the NCT"
Justice Chandrachud: "Take an example where a central officer, IAS, is sent to a state because that is his cadre. Now that officer goes to, say, the state of Telangana, on deputation, Telangana will decide where he will be posted and exercise all control on him"
Dr. Singhvi: "Deputation and cadre are two different things. The original cadre is always a state. You are always born in a cadre. When you fill up your form, you are given choices of cadre one, cadre two or three. Having got the choice of Telangana, then you will get deputation anywhere in the country including the central government. But your anchor remains that. Similarly for NCT. People are choosing danics and danips. Once you allocate Mr. Singhvi to the NCT, how do you decide what he does or how he is controlled in the NCT? You have relieved him. Where I am posted, who will write my CR, who will I report to- Today, the LG says I will decide all of this. This is a matter of moment because your lordships will have to decide whether Delhi's running will come to a standstill on every petty issue. Which is happening. There is a stalemate. Once a government servant knows that the officer he is supposed to be reporting to has no authority over him, you could not even deal with a clerk"
Dr. Singhvi then took the bench through judgments.
Justice Chandrachud: "So these judgments show that the Executive power of the union extends only to the three excluded subjects. The executive power of the NCT of Delhi extends to the subjects in the state list and concurrent list to which the legislative power of the state assembly extends except these three excluded subjects"
CASE TITLE: GOVT. OF NCT OF DELHI v. UNION OF INDIA
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