20 May 2023 12:12 PM GMT
The Central Government, in its petition seeking review of the Supreme Court's judgment holding that the Government of National Capital Territory of Delhi (GNCTD) has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land, has stated that the Constitution Bench judgement suffers from various errors...
The Central Government, in its petition seeking review of the Supreme Court's judgment holding that the Government of National Capital Territory of Delhi (GNCTD) has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land, has stated that the Constitution Bench judgement suffers from various errors apparent on the face of the record. The Centre, along with the Review Petition, has also filed an application for an open/oral hearing in the matter.
This article details reasons provided by the Centre in its review petition–
I. Delhi remains to be a "Union Territory" and is not a "State"
The Centre has argued that despite the insertion of Article 239AA in the Constitution, the NCT of Delhi is not elevated to the status of a State and it remains to be a Union Territory. Accordingly, it states that as per Chapter I of Part XI of the Constitution, so far as Union Territories are concerned, there is no such thing as List I, List II, or List III. It adds–
"The only legislative body is Parliament – or a legislative body created by it. The same is clear from the fact while recording the said findings, the Court has itself held that Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a)."
The Centre has argued that the Supreme Court's judgment ignores the clear exercise of power of the Parliament over the subject matter. Further, it states that the constitutional scheme envisages the distribution of legislative powers only with respect to the parliament and the legislatures of States. As per the Centre, there is no category of distribution of legislative power with respect to the legislative assemblies of Union Territories.
II. The judgement elevates Delhi to the status of a "State"
Through the review petition, the Union has further argued that the Supreme Court's judgement effectively elevates Delhi's status to that of a full-fledged state by giving its legislative assembly the legislative competence over all entries in List II and List III (except 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). As per the Centre, this creates "an anomaly" as by virtue of Article 239AA the Parliament still enjoys legislative supremacy, yet the council of ministers of GNCTD would now enjoy the executive supremacy, which means that as regards the executive powers, Delhi despite being a Union Territory has been elevated to the status of a State. In this context, the petition has cited the 9-judge bench judgement in NDMC vs. State of Punjab (1997) 7 SCC 339, wherein it was held the NCT of Delhi remains a Union Territory.
III. Constitutional Principles flow both ways
The Centre argues that the judgement creates a situation where–
"One government would have automatic co-extensive executive authority; whereas one government, despite having superior legislative authority, will only have executive authority if it explicates the same by way of a legislation. The above position is an error apparent on the face of the record, because constitutional principles flow both ways, and what is sauce for the goose, must be sauce for the gander. If the Executive Authority for the GNCTD is co-extensive to the legislative Authority of the Legislative Assembly for the NCT of Delhi; the same must also be true for the Executive Authority of the Union Government; once it has been held that List II is also a Concurrent List for the NCT of Delhi."
IV. Functioning of National Capital affects whole Nation
It is argued by the Union that the judgement ignores the fact that the working and functioning of the Capital Government affects the nation as a whole. Thus, the centre must have control over services in the NCT of Delhi. It further argues that the judgment works on the premise that the issue under reference was solely to consider whether Entry 41 of List II is available to the GNCTD. It adds–
"However, the entirety of the issue, when viewed from the perspective of the submissions of either side is not only the availability of Entry 41 of List II to the GNCTD, but also whether services in the NCT of Delhi, being a Union Territory, would be Union Public Services and thus governed by the Entry 70 of List I."
V. LG, Centre are also manifestations of democracy
The review petition argues that the Supreme Court judgement is erroneous as it wholly ignores that the nominee of the President, the Lt. Governor or the Central Government, both are also manifestations of democracy, "exhibiting the democratic conscience of the country as a whole when compared to the elected government of Delhi." In ignoring the same, it is argued, that the Supreme Court ignores that working and functioning of the Capital Government affects the nation as a whole.
Because the said judgment suffers from an error apparent on the face of the record as it wholly ignores as Constitution is clear that the legislative jurisdiction would extend only those matters which are “applicable” to Union Territories. The use of expression “applicable” again reflects the intention of the Constitution to put a higher threshold while selecting particular entries in the State List or in the Concurrent List and making the same available to a Union Territory with a Legislature. The Constitution does not use the word “relating to the Union Territories”. The expression “applicable” would necessarily mean it should be clearly and unequivocally applicable to Union Territories.
VI. Constitution never contemplated a separate service cadre for Union territories.
The Union contends that the Constitution has never contemplated a separate service cadre of UTs as a Union Territory is a mere extension of Union of India and persons working in Union territories are working in “services and posts in connection with the affairs of the Union”. It adds that the Public Service Commission is a constitutionally established institution and its functions are set out in Article 323 which are designed to insulate appointment of the civil services from the political executive. The office of member of public service commission is a protected office and the removal of such person is protected by Article 317. Thus, without a Public Service Commission, there cannot be a civil service.