Thread by @barandbench

#SupremeCourt special bench headed by CJI NV Ramana is hearing Delhi Government's plea challenging Constitutional validity of Government of NCT of Delhi (Amendment) Act 2021,which increased powers of Delhi Lieutenant Governor over elected Govt @LtGovDelhi #SupremeCourt

Sr Adv AM Singhvi: Issue contextually is, Can Delhi transfer post ABC belonging to Central services. Point two is, impugned notification after decades of Govt of NCT, for decades NCT has passed laws notifications for this purpose.

Singhvi: No body had idea to issue notifications like one now issued and challenged herein.

Sr Adv Singhvi: this notification is like a smuggling in a new head. Lt Gov will become centre for services also provided the Lt Gov obtains the views of Chief Minister of a state regarding services. So CM of a constitutionally elected govt is reduced to views

CJI: ....against officers, functionaries of Central govt ?

Singhvi: Delhi has stated ACB will investigate charges against Central govt functionary. Thereafter this was brought in.

CJI: So out of land, police and services, you are concerned about only services here

Singhvi: Then is Article 239AA.

Singhvi: 3 of these provisions and powers was always with LG, police, law and order and land. Services now it seems to suggest that it was always with the central govt.

ASG Sanjay Jain: This notification has been upheld by the division bench of Delhi HC

Singhvi: that is why here it is before 3 judges. We are arguing it fully

Singhvi: For Delhi a constitutional amendment was made. Delhi is a hybrid which is inclined more towards a state apart from the three areas of land, public order and police.

What does the Delhi govt do if it cannot even transfer officers within its own control. Perhaps he is a king without a kingdom!: Dr. Singhvi

Singhvi: Constitution bench said apart from land, public order, and police, the central govt has to act in aid and advice of the Delhi govt. Apart from this only thing can be a national security issue where one just cannot wait

Justice Surya Kant: What will be the effect of sub clause b and sub clause c?

Singhvi: whole of 3 is only the repugnancy document.

CJI: Why don't we start with the Constitution bench judgment?

Singhvi: Straightaway

Singhvi: Please see para 222.... Reveals that executive power of is co extensive with that of legislative power of the assembly

Singhvi: There is mention of federal or federalism in the constitution and yet federalism had been held to be a part of basic structure of the Constitution. That is why we give more importance to concepts.

Singhvi: This notification under challenge is not a symphony but disharmony. #DelhivsLG

Singhvi: What collective responsibility will the Delhi govt have without the power to control the transfers and postings of the officers. This is a question I pose myself.

Singhvi: Here I am arguing that federalism itself is being eroded

CJI: But once you argue this you have to argue other issues also

Singhvi: The joke now is that a cabinet minister and chief minister is of same rank. This is despite the CM has much more power .. but even then. Here state has no powers to even appoint.

Singhvi: we are not in ivory towers. Look at the practicality. What control will the govt have over an officer on whom it has no power to even transfer ? There is a Shakespearean saying servant of two masters. Here it is servant of one and master of the other

Matter to resume at 2 pm #DelhivsLG

Justice Surya Kant: But there is a law passed by the parliament..

Singhvi: that law does not relate to this.

Justice Kant: but it's the source of law

Singhvi: that law is not about services. Not at all

Singhvi: if Article 239AA allows the centre to make a law then does that State is denuded of its power ? That is the question I am taking now.

Singhvi: Suppose Assembly of Meghalaya wants to make a rule it is different than parliament. But Delhi is not allowed so, but let us take the law as it is..

Singhvi: I am assuming against myself that state govt law can be preceded by a central govt law unless assented by parliament. But here there is no law. We are concerned with services.

CJI: Assembly is redundant that is what you are saying?

ASG: 239AA is a replica of Bal Kishan committee recommendation which stated that Delhi cannot be a full fledged state.

CJI: We have to hear the reference case as it is and finish it. Isnt it

ASG: we are saying that the three are not only restriction on legislative assembly and it has to be seen in totality. Justice Ashok Bhushan also dealt with this. We have to consider the "incidentally covered" bit which includes whatever is outside state legislative assembly

CJI: Where in the five judges bench judgment did the court say that the assembly cannot legislate only on these three aspects?

Singhvi: a law not occupying the field on services will not denude the state govt to either make a law or exercise executive power. Incidental doctrine is not a new subject.

Singhvi: can it be shown how power to transfer people becomes incidental encroachment? It can only happen after it is held that I have power under 41.

Justice Kant: Don't you think the notification has been superseded by the law made by parliament where Centre has been replaced by the LG?

Singhvi: in a state act when passed the court will interpret it. Here no state law has been passed. But no central law also. What they are saying is state is as it is denuded to work in the services area.

Singhvi: Then there is no need for a constitutional legislature in Delhi at all.

Singhvi: All India services are as it is concurrent services and it serves both state and central govt. ASG says services are available for state and UT cannot claim this.

Singhvi: Delhi is a special UT and it cannot be compared with other Union Territories. I am concerned with services only under entry 41.

Singhvi: Upto the 2015 notification Delhi has passed innumerable notification, rules and laws dealing with services. For eg Delhi Fire Services Act, 2007. Please note Sections 6,7,8,10,11,14,16 and 63(2)(a).

Singhvi: If Justice Bhushan has given his judgment in dissent then it cannot be expanded.

Singhvi: suppose there is an issue with cattle in Delhi, and the Delhi govt is looking into it, why should the file be sent to the Centre ? The question is does services fall within the purview of Delhi Assembly

Singhvi: Justice Bhushan relies on Bal Krishna report and the constitution bench judgment has discarded the report. Justice Bhushan followed his dissent but the constitution bench judgment holds.

Singhvi: Central govt law also gives me power. Please look at joint cadre authority. Once the cadre is allocated to a state, transfer and posting of the same is done by the state.

Dr Singhvi concludes: I will submit rejoinder

CJI: You concluded ?

Singhvi: I said I will conclude today subject to rejoinder

SG: These are not matters of individuals but these are matters of principles. The bench is of the view that the act and this plea is different but we submit that it is the same. I would request for a reference to a constitution bench and we have already filed a review

SG Mehta: if both the issues are handled together then we can argue it in the composite way

CJI: It was projected that even though a law is there, his stand is there. We cannot make him concede.

CJI: He says even if there is a valid legislation, his case still holds.

Singhvi: you are in part heard for half of the day. He can rely on the 2021 act and we will rebut

Justice Kant: But what if ruling is against you?

Singhvi: but why should the bench not hear this case in anticipation of another hearing

Justice Kant: we are thinking that the hearing will be futile if we strike down the 2021 law? Should we entertain a plea and pass an empty decree

CJI: Mr Mehta. We have given almost 10 days. It will be over on April 26th. You argue both the matters then.

SG: please keep on April 27

CJI: Ok

SG: my friend has agreed for 27th

Singhvi: Sarcasm doesn't behove you after the 7th review petition Mr Mehta #SupremeCourt

Bench rises.
#DelhivsLG