Govt Of NCT Vs UOI | No National Capital in Federal Systems Across World That Allows Services In Local Govt To Be Controlled By Centre: Adv Shadan Farasat Submits Before SC

The Supreme Court of India on Wednesday resumed 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 Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard Senior Advocate Dr. Abhishek Manu Singhvi and Advocate Shadan Farasat for the for the government of NCT of Delhi, and SG Tushar Mehta for the Centre. This article details submissions made by Advocate Shadan Farasat. Read submissions made by other counsels here.

Advocate Shadan Farasat commenced his arguments by posing a question to the bench. He asked– what is the interest of central government in controlling the services of a Union Territory of Delhi? While stating that there was none, he said–

"What the central government is seeking in this matter, it's a kind of an argument of red herring. The civil servant who is functioning in my government, his ability to function, is limited by the competence of the government itself. Whatever I can do in my constitutional competence, that is exactly what the civil servant can do. He cannot go beyond the competence of that. What is the real interest, if any at all? There is none."

In this context, Advocate Farasat referred to the experience of global capitals across the world. He stated that they were different kinds of capitals–

1. The capital which was a federated district of the Union; for example, Abuja for Nigeria, Addis Ababa for Ethiopia, and Washington DC for US.

2. The capital which was a completely federated unit/independent federated unit; for example, Berlin for Germany and Brussels for Belgium.

3. The capital which was in the province of a full fledged State; for example, Ottawa is in the province of Ontario.

4. States which had no formal capital; for example, South Africa.

Looking at the divergence of administrative structure in global capitals, Advocate Farasat sought to measure federalism in each State by first, the area of competence given to the local government; second, existence of legislative override and; third, existence of executive override. He stated that at the most federated level was something like Berlin which consisted of a higher degree of competence with no legislative or executive override. At the other end of the spectrum, he said, was very low competence and legislative as well as executive override. He remarked–

"In none of them are the services in the local government sought to be controlled by the Centre."

He argued that National Capitals in Federal System across the world, irrespective of the model they follow of distribution of power between the Federal Government and the Local Government, do not envisage a situation where the Local Government is incapable of appointing and controlling civil servants/staff to the Government and to control their day to day functioning.

He gave the example of London, which he described as the most centralised democracy, not just in the western world but in the whole world. He said that London passed the Greater London Authority Act, 1999. As per Section 67-Section 73 of the 1999 Act the Mayor and Assembly had the power to appoint staff and officials for the Authority. "This is not even a federated system", he added.

He also gave the example of the Delhi Municipal Corporation Act, 1957. He submitted that under Sections 89 and 90 of the DMC Act, 1957, the Corporation and Standing Committee, had the power to make/approve appointments/posts that are crucial for the functioning of the Municipal Corporation. Similar provisions exist in Section 33-34 of the NDMC Act, 1994.

"Both these Acts are Parliamentary laws. Thus, in view of the Parliament, even the municipal bodies in the NCT of Delhi have control over their services. Surely, a parliamentary form of democracy with Westminster style system with federalism in play, we can't be worse than the municipal corporation of Delhi," he added.

Advocate Farasat also added that even if there was any concern that arose, it could be taken care of by Article 239AA (4) – the power of reference. He contended–

"In cases of extreme importance, the matter could be referred to the President and the president's decision would be binding. The same will apply in cases of services. We are not in a position to damage any interest of the union. We are only protecting our house."

Accordingly, Advocate Farasat requested for the grant of Entry 41, both for the purpose of legislative and executive, and the power to transfer and post officials who may belong to central service. 

At this juncture, Justice MR Shah enquired–

"What do you mean by legislative power with respect to the entry? Because this is a cadre post. The services are allocated to the Delhi government. Where is the question of legislature? What do we legislate?"

Here, Advocate Farasat stated that as per the impugned notification, the Delhi government would not have Entry 41 qua its legislature. He stated that the same was necessary even for the creation of a post. He added–

"Certain posts, top posts will be cadre posts, yes. But for every thing else, for creating post we need this. For example I'm creating a hospital, I will need to create posts for that. I need Entry 41 for that."

When asked about the ministerial posts by CJI Chandrachud, he said–

"Post 2015, it's different. Earlier, the way it used to happen was that the ministers concerned would do it and the matter would go to the LG as a normal communication. Now, the situation is so bad that the Speaker of the Assembly cannot appoint a secretary. I'm not in a position to create any more posts. Whatever was there pre-2015 is continuing. Now LG decides."

Through Advocate Farasat's arguments, it was contended that the right to create posts, make appointments, transfers, and allocations to such posts was essential for a functioning Government and to ensure democratic accountability. Further, there could not be two levels of functional control in respect of day to day work of the administration and governance in the Government of NCT of Delhi. Much worse, there could also not be control over civil service by one political executive and work to be carried out by another political executive. 

Read Written Submissions Here

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