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Can’t strip us of our powers to transfer, post officials: Delhi govt argues in Supreme Court

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In the absence of any law, the State Government cannot be denuded of its powers to make transfers and posting of officers within its territories, the Delhi Government has told the Supreme Court in the hearing on the legal dispute between it and the Centre over the control of administrative services in the capital.

Pressing the point, Senior Advocate Abhishek Manu Singhvi, appearing for the Aam Aadmi Party, asked the bench that in the absence of any law can the Central government act?

“In List II there must be a law made by Parliament, there is no such law. A law not occupying the field on services, can Central Government act? If I am arguing whether the Central Government can act under Entry 41, where the Central Government hasn’t made the law, is this possible?”

-Singhvi pointed out.

He gave an example, “Today, Milord, have, for example, take a List III entry Trust and Trustees, on Trust And Trustees the Central Government and UP doesn’t pass a law, both have powers, my argument is in the absence of law, the State cannot be denuded of its powers to act.”

“Today, the problem is that NCT of Delhi doesn’t have the power,” he submitted before the Supreme Court Special Bench headed by Chief Justice of India N.V. Ramana.

Another connected writ petition was also listed with this regarding challenge to the constitutional validity of the Government of NCT of Delhi (Amendment) Act 2021, which increased the powers of the Delhi Lieutenant Governor over the elected government.

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When the hearing started, Solicitor General Tushar Mehta informed the bench that in a petition challenging the constitutional validity of the GNCTD Amendment Act, he is yet to file his counter-affidavit and sought adjournment for two weeks to file his reply.

Secondly, Mehta pointed out, so far as the main “services matter” is concerned; two judges bench there is a split, which is the difference of opinion. It should be sent to a larger bench. It should be heard by a five-judge bench.

SG Mehta: “Against the five-judge bench judgement, we have filed the review. The difficulty is this today.”

Singhvi: “Milordship has constituted a special bench. I have to start and my learned friend can file a reply later. Item 302 (challenge to the GNCTD Amendment Act) is not for arguments, today.”

Singhvi: “My learned friend has filed a review against the five-judge bench judgment. Which is different? Kindly allow me to open my arguments. By the impugned notification of 2015, within the NCT, so called Delhi Govt, cannot transfer from Department A to B.”

Singhvi: “My lordship has a general experience of Administration. What efficiency can this Govt extract, if it does not have this power.”

CJI Ramana: “Let me talk to my colleagues.”

SG Mehta: “Item 302, Is the amendment act.”

Singhvi: “Today the law will apply as it is, the act is not stayed.”

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CJI: “The act is in tune with the five-judge bench judgment. There is no question, as you have amended an act on the basis of this judgment. If you say that the first matter has no bearing with the second, we hear that separately.”

SG: “Both have interconnections.”

Singhvi: “The law is as it is, today.”

CJI: “So far as writ petition is concerned, two weeks time has been granted to the Centre to file the counter, Rejoinder, within one week thereafter. Okay start 301, 2357/2017…”

CJI: “We have made a number of adjournments. Let us hear the matter.”

SG: “The difficulty is that matter is listed and we were not aware. Another thing…”

CJI: “It has to come yesterday. We are hearing and not passing any order. Every day we accommodate you, let us hear the matter. Let us see how he (Singhvi) puts the case before us.”

SG: “Reserve my right to move this matter to the five-judge bench. Can he just point out how both are interconnected?”

Singhvi: “It’s very personal.”

SG: “I would not be personal, it’s not my nature. I am an officer of the court.”

CJI: “We are not going to do anything.”

Singhvi: “So the first submission is… factual Issue- whether NCT has power in relation to transfer and posting of officials belonging to Indian Administrative Services, DANICS or not.”

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CJI: “This object falls in the concurrent list.”

Singhvi: “In list 2, State public services. Am I Denuded of the power to transfer A-B-C, belonging to central services. The impugned notification, for decades, the govt passed the notification. This power of transfer, positing etc. is always exercised by it.”

Singhv: “I will give it milord. Three of these powers are always with the Lieutenant Governor. This one for the first time adds that it’s always together with three.”

ASG Sanjay Jain: “This notification is upheld by the division bench.”

Singhvi: “It comes after 23 years. According to Article 239AA, for Delhi they have constituted a legislature. I am concerned with 3, 4, and 6. (3) (a) Subject to the provisions of this Constitution, 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.

(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:

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Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (All this in list three, Singhvi.)

(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.

Singhvi pointed out that Justice D.Y. Chandrachud also said about the collective responsibility. Today, collective responsibility is that the Delhi Government cannot transfer ‘A’ department to ‘B’ department.

Singhvi: “3A, 4 and 6 says that NCT has full power in the State list. Milords are right that Section 3 to deal with the repugnancy…”

Singhvi: “Referring to Govt. Of NCT Of Delhi vs Union Of India (14/02/2019) 223-Article 239-AA(3)(a) reserves Parliament’s legislative power on all matters State List & Concurrent List, but clause (4) nowhere reserves executive powers of the Union with respect to such matters

On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers.

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Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment.

  1. Article 239-AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with Parliament’s legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239-AA(3)(a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving NCT of Delhi. some degree of required independence in its functioning subject to the limitations imposed by the Constitution. (I would emphasis upon this, Singhvi)

284.1. While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our. Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution.

284.2. In a democratic republic, the collective who are the sovereign elect their law-making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner.

Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies.

284.3. Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse.

In order to realise our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few.

284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them.

The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability.

Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution. (This is not a symphony at all, I must say, Singhvi)

284.5. The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances.

Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties.”

Singhvi: “Federalism is important to me, it’s the backdrop. I won’t read all the paras.”

Now read point, 284.14. The interpretative dissection of Article 239-AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List.

At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.

284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded.

In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution.

Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.

Singhvi: “The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the “aid and advice” of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.”

Singhvi: “I will skip a lot of paragraphs and now come to judgment of Justice DY Chandrachud.”

Singhvi: “Now the joke is, State Chief Minister and the Cabinet Minister of the same rank now, but in fact the State Chief Minister is much more powerful. Now there are two million ladies sitting in panchayats, it’s all because of federalism.”

Singhvi: “If I can’t even transfer an Officer then what respect I have??”

Justice Kant: “If there is a law enacted by the parliament referring to Article 239AA, related to subsection 3!!”

Singhvi: “No it’s not that what my petition relates to.”

Justice Kant: “According to you, subject matter is not dealt with new law.”

Singhvi: “There are four amendments, in New GNCTD Act.” (Reading from the Act)

Justice Kant: “Who would exercise powers related to Services? In the absence of any law, how are the powers to the entry 41 to be exercised?”

CJI: “Mr Jain, how it has bearing with other matter (Challenge to GNCTD Amendment Act).”

ASG Sanjay Jain: “According to us, this Constitution Bench judgment doesn’t let us to any road whether the entry 41 list II gives us power or not.”

ASG: “Article 239AA, Delhi being a capital is not a full-fledged State. LG is the stake holder in the Government of Delhi, which is not diluted.”

CJI: “Read the paragraph 284 from the judgment.”

ASG: “It says the subject to the provision of this Constitution, the state has the power to legislate under list 1 and 2. He hasn’t argued on the exception. This judgment hasn’t dealt with the issue which is here. I am referring to most crucial line which is a distinction.”

ASG: (Reading the Justice Sikri opinion) The Amendment Bill requires the LG to also reserve those Bills for the President which “incidentally” covers any of the matters outside the purview of the powers of the Legislative Assembly.

Singhvi: “I am not on merits. Item 302 (challenge to GNCTD Amendment Act), law to be passed by the Parliament, that on List II subject Parliament and I both have powers.”

Singhvi: “In List II, there must be law made by Parliament, there is no such law. A law not occupying the field on services, can Central Govt act. If I am arguing whether the Central Govt can act under Entry 41, where the Central Govt hasn’t made the law, is this possible?”

Justice Kant: “Legislative power under Entry 41 is not occupied by any law.”

Singhvi: “Today Milord have, for example take a list III entry Trust and Trustees, on Trust And Trustees the Central Govt and UP doesn’t pass a law, both have powers, my argument is in the absence of law the State cannot be denuded of its powers to act.”

Singhvi: “Today, the problem is that NCT of Delhi doesn’t have the power. Can a land incidentally encroached upon services? Can a police incidentally encroached upon services? The question is first to be decided whether I have the incidental powers or not? Do I have the power under Entry 41? Then incidental encroachment will be in every case.”

Justice Kant: “Now don’t you think that this new act has superseded it?”

Singhvi: “I will answer Milords query. Answer no 1, this is not relevant today as it refers to “law to be made”, the law is not today. 2- It is nothing but the LG is the nominal head of the Government. 3- Without a law by Mr Jain, in the absence of any law in Entry II, can they be acted, it’s a presumption.”

New GNCTD Amendment Act cannot purport to touch Clause 4 and 6 under Article 239AA: Delhi Government

Singhvi: “This new act doesn’t say, “in its discretion”. Can this act purport to touch Clause 4 and Clause 6, under Article 239AA? Suppose a Central Govt passed an order Entry No 17, that the State Govt doesn’t have the power. Then there is no need of legislature in Delhi.”

Singhvi: “Milord I have power under Entry 41, first have to decide that. Much of this has been clarified in the Points I have made.”

Singhvi: “On merits, our case is based on Entry 41. This power of 41 traces back to 14 which meant Services, Article 308 onwards. Now this is the General topic of Services under the Union and the States.”

Singhvi: “Now the point arising in Prem Kumar judgment, I am a UT can’t invoke 41 because only a state can invoke. Lordships have directly held that all UTs covered under the Services. For Services the State will include UT. My friend ASG doesn’t answer this.”

Singhvi: “Don’t forget Delhi is UT only but it has its own constitution and powers. The point is clearly mentioned in the Prem Kumar Judgment. My case is only allowing me to transfer my own officers from one department to another within Delhi. Even I am not asking to transfer police personnel.”

Delhi is a special UT, it’s sui generis: Delhi Govt

Singhvi: “Delhi is a Special UT, it’s sui generis. My learned friend has mentioned Balakrishnan Committee; the Constitution bench rightly rejects the Balakrishnan Committee. Since 2015, of the impugned notification, the Delhi Government has passed a numerous laws. For example, Delhi Fire Services Act, Section 6,7,8,10,11,14, 16 & 63(2)(a), makes different post, grade, pay allowances.”

Singhvi: “And 63(2)(a) gives the power to make rule only relatable to Entry 41 nothing else. Entry 41 why I am emphasizing because it’s also in the Karnataka Fire Services Act.”

Justice Kant: “Justice Sikri view was based upon a concession.”

Singhvi: “Either way milord does have to iron out the difficulty. I need three points, whether I have the power under 41 or not? If I have the power can I be denuded to make transfer? As per Justice Sikri if I have the power under 41, can it be right to say I can make transfer only of Officer below joint secretary? The Constitution bench rejects the Balakrishnan Committee.”

Singhvi: “Kindly see the Central Government power as well. Two propositions, I am showing what is the joint cadre authority…this is to show how in a joint cadre system works. If you have made a law, act by it. Concluded arguments, subjected to rejoinder.”

SG Tushar Mehta: “Milords the act has correlation with this matter. This is not a matter between individuals…

CJI: “What is it you want to propose?”

SG: “Both must be listed together. Or, I would like that difference of opinion may be heard by the Constitution Bench.”

CJI: “Option for you is better you finish this.”

SG: “I may have to rely upon the Act.”

CJI: “His argument is this, assuming there is a legislation his case based on it, you may say not it’s not.”

Singhvi: “What else milord I say?”

Justice Kant: “What is the challenge to the act?”

Singhvi: “The law stands today as it is. What is stopping my lord to hear this case? That challenge to law has no connection to this case.”

Justice Kant: “Should we entertain this to pass an empty decree?”

Singhvi: “No milord, not at all, that shouldn’t be an empty decree.”

SG: “What will be the prejudice if both heard side by side.”

CJI: “Mr Mehta, we have given you 10 days. It will be over by 22 April. It will be on 27, you argue both the matters.”

The Supreme Court was hearing the issue of “services” under Schedule VII, List II, Entry 41 of the Constitution of India and the stand-off between the Delhi Lieutenant Governor and the Aam Aadmi Party government in Delhi.

Earlier in February 2019, a two-judge bench of Justices A.K. Sikri and Ashok Bhushan had differed on the question of powers of the GNCTD and the Union Government over services, and thus referred the matter to a three-judge bench.

The judges differed on whether the exclusion of “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide notification of the Government of India, dated May 21, 2015, is unconstitutional and illegal. Therefore, this aspect was referred to a larger bench.

“It is a matter pertaining to issue of services which find mention in entry 41 of list II. Pursuant to Constitutional Bench judgement, only three subjects were kept in domain of Union government – Police, land and public order. The two-judges Bench expressed divergent views about the matter and it was referred to 3-Judge Bench. Since entire administrative control vests currently with Central Government, it is an important issue and impedes on the ability of Delhi government to govern and implement its policies”

-the plea stated.

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