Thread by @barandbench

A Constitution Bench of the #SupremeCourt led by Chief Justice of India DY Chandrachud to hear petitions regarding the tussle between the AAP-led Delhi government vs the LG over control over services in the national capital.

@AamAadmiParty @LtGovDelhi #SupremeCourtofIndia

Matter to commence now

@AamAadmiParty
@LtGovDelhi
#SupremeCourtofIndia

Sr Adv Harish Salve: there is an intervention by the IAS officers association as well

CJI: We will take it up. let us begin now
@AamAadmiParty
@LtGovDelhi
#SupremeCourtofIndia

Sr Adv AM Singhvi: this is a case just not about distribution of powers between Delhi govt and Centre but at the core it is about civil servants being responsible to the delhi govt and in a way to the people of Delhi who elected the govt

@AamAadmiParty @LtGovDelhi

Sr Adv AM Singhvi: It has been held that civil servants are answerable to the ministers. buck stops there. ministers responsible to the legislature and legislature ultimately to the people.

@AamAadmiParty @LtGovDelhi
#SupremeCourtofIndia

Sr Adv AM Singhvi: In any slightly federal or more than slightly federal system there are dual sets of govt operating. one is national sovereignty and one is state government, dual manifestation of public will with dual governance

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: just see the intellect of the electorate. one is decision of national election and totally opposite decision in state level. this is a vehicle for managing diversity, like a pressure cooker to let off steam

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: federalism is a vital vehicle for managing diversity. any govt which fulfills the will of the people will be to create post, appoint staff to the post and interchange them

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: unless a govt has the power to create manage or transfer these civil servants the govt cannot function. implementation of policies depends on civil service.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: those who are charged with obligation to serve the will of people, political executive is excluded to manage them and negates the power or purpose of giving them autonomy.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: what happens when civil service is excluded and civil servants ceases to be accountable to people. so you are negating the will of we the people.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: when you have accountability you function on your own and there is complete chaos and insubordination, that is the natural corollary.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: can civil service be even excluded from the control of NCT govt. is it even conceivable saying it is excluded and might as well not have created 239AA.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: Can this court imagine a UT with a legislature with no control over civil services? that is the heart of the case.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: it is a joint cadre and there is all India services and even there you are anchored in a particular state.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: All India service cadre does not hang in air lile a trishanku. they are also anchored in a state.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: this is an intra state administration issue and then it is impossible to conceive of a UT functioning.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: there is a chamber of a senior counsel and he has juniors and he sees abilities of juniors and chamber heads allocate the cases. Here entire govt is working without control over civil servants

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: where your lordship lives is itself 42 square kilometres in Delhi. Rest of Delhi is 1400 square kilometres, but Delhi govt has no control over civil servants. NCT which may or may not control municipality does no control civil servants

@AamAadmiParty

Sr Adv AM Singhvi: are civil servants excluded from local governance? Govt is the creation of the will of people but has no control over civil services.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: Delhi was always intended to be the UT. Respondents have devoted pages to it. It is a UT but with a legislature and three exceptions. By a notification they have created a 4th constitutional amendment

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: such an amendment by giving a damn to the intent of the framers of the constitution. This is a sui generis UT.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Sr Adv AM Singhvi: Out of 9 UTs in India there is only one with a constitutionally created legislature. Puducherry and J&K have parliamentary created ones. No other UT has a legislature

@AamAadmiParty @LtGovDelhi
#SupremeCourt

CJI: in case of NCT, Parliament can enact a law in state list also.. and in concurrent list also.. but in aspect of Delhi, union can legislate on state list also. so state and concurrent are both concurrent list

@AamAadmiParty @LtGovDelhi
#SupremeCourt

CJI: forget state list. if parliament is working in concurrent list then what are the executive powers of state legislature.

Singhvi: regular states has all co-terminus powers of list 2.

@AamAadmiParty @LtGovDelhi
#SupremeCourt

Singhvi; Please see Article 79 and 239AA of the Constitution of India. Both of them have the answer. extent of executive power of union subject to other parts of constitution (239aa is a part)...

@AamAadmiParty @LtGovDelhi #SupremeCourt

CJI: proviso is important which shows that Union cannot take away the executive power of the state. Like CrPC falls in concurrent list, though parliament has power to frame Crpc, executive power to be wielded by karnataka can only be done by karnataka

@AamAadmiParty @LtGovDelh

Singhvi: yes that is the most imp point. Please see Article 239AA now. #DelhivsLG

CJI: Article 254 in relation to Delhi also applies to the state list. That is not an issue you are correct. But normally Article 254 gives precedence to law enacted in concurrent list.

Singhvi: else it would have been a full state

#DelhivsLG

CJI: So parliament has the power to legislate on everything where there is executive power also.

#DelhivsLG

Singhvi: a conjoint reading of Article 73 and 239AA (3) & (4) that legislative power is one category and executive power is untrammeled unless you embark upon it and frame a law.

#DelhivsLG

CJI: please 239AA(4) says council of ministers shall aid and advise the CM in matters which legislative assembly of NCT has powers to. 3A has that category and assembly has entry cannot legislate on public order, law and order and land.

#DelhivsLG

CJI: Another caveat is again in 3A, any matter which is in state list or concurrent list which is applicable to the union list, NCT cannot exercise executive power on this. so we have to see if services fall within this.

#DelhivsLG

CJI: 3A uses the expression union territories and not UT of Delhi. constitution deliberately uses the term territories, then legislative assembly of Delhi has no power to make a law over that entry. what is the meaning of "in so far as"

#DelhivsLG

Singhvi: under Article 246 state is not a UT and not vice versa. when special powers was given to Delhi, entire paraphernalia of list 2 was made applicable to it.

#DelhivsLG

Singhvi: what was actually meant to facilitate the creation of 239AA that is now meant to read that they (union) will select notification wise.

#DelhivsLG

Justice PS Narasimha: we have to see which are the entries in list 2 which is not applicable to a Union Territory

#DelhivsLG

Singhvi: they say we have the power but since we did not exercise our power they can legislate on it. We have power on state public service commission but we have not exercised our power does that mean we have no power on creating it?

#DelhivsLG

Singhvi: We don't have to be taught by this notification what your lordships said in Ram Jawaya in 1955. I cant deal with civil services, cannot pass a law on that... if this is so there is a negation of 239AA and decentralization of popular governance

#DelhivsLG

Singhvi: "in so far as" means even if you have an entry in list 2 which authorizes delhi assembly to pass a law, so even if Delhi assembly can and it does not have a law, the power is denuded and Lt gov can do so

CJI: Can you give us some examples of such matters

Justice Narasimha: let us see if there are matters which are not within the remit of UT

Singhvi: there are none but let us see.

Constitution bench to re-assemble at 2 pm
#DelhivsLG

Some overriding administrative issues which the Chief Justice has to deal with. apologies for assembling late. Sincerely: CJI DY Chandrachud #DelhivsLG

Singhvi: What we're discussing is- insofar as is a term of restriction; and what does it mean for UTs and what it means for Delhi.... it would be bizarre since amendment under 368 would require 50 percent of the states to agree.

#DelhivsLG

Singhvi: Judgment by Justice Chandrachud as he then was has held it to be so. It is not res integra and nothing wrong. even former Chief Justice Dipak Misra too had held the same.

#DelhivsLG

Singhvi: there is nothing conceptually so alarming in list 2 that your lordships cannot look at it.

#DelhivsLG

Singhvi: fundamental error of the notification (on control over civil services) is to confuse and conflate.

CJI: Does the UT has a consolidated fund?

Singhvi: yes it has and all civil servants are paid from NCT fund. entire thing is paid by me

#DelhivsLG

CJI: What about salaries and allowances of ministers?

Singhvi: same it is by the NCT fund

#DelhivsLG

CJI: you need to concede one thing which Justice Shah pointed out that you dont control public order, land and law and order. if civil servants are posted for land or public order then there is no state control #DelhivsLG

CJI: Light travels faster than sound and sound travels faster than judges pen. so some of the points are lost between 5 to 8...

Justice Shah: what CJI is saying you have to go a little slower

Singhvi: i will make sure you get all the points

#DelhivsLG

Justice Narasimha: state public service commission can be constituted by the Delhi govt

CJI: natural corollary is that wherever state is used in 7th schedule NCT cannot legislate.. so all like allowances, state debt etc.. all goes away....

#DelhivsLG

SG: It is not my case that the word "state" takes away the power of the legislative assembly of the UT (NCT)

#DelhivsLG

CJI: which are the services deputed to All India Cadre?

Singhvi: DANIPS, Police services all are central but always anchored in a state.

#DelhivsLG

CJI: take the case where an IAS officer is sent to home state on deputation ..

Singhvi: one is original cadre (state) abd it has to be his own state

Singhvi: this is a matter of moment to see if Delhi always has to come a standstill on every issue. The press is always saying Delhi and LG are in stalemate. Ek Mayan me do talwar kaise?

CJI: absolutely

Singhvi: it is chaos

Singhvi: Why will an officer listen to the govt of NCT when they are not accountable to the UT? Delhi women's commission, lokayukta are all laws passed by Delhi govt. What is the use of policy if it cannot be implemented ? #delhivslg

Singhvi reads a judgment by former CJI Dipak Misra.

#DelhivsLG

CJI: so 2 judgments indicate that powers of GNTCD extends to state and concurrent list apart from public order, law and order and land and that power of centre vests over those three areas.

Singhvi: civil services out you go is through a notification #delhiVsLG

Singhvi: these civil services are not serving in the air but are serving the Centre. Prior to 239 Delhi was seviced by All India Cadre.
#delhiVsLG

Singhvi: Tomorrow I will show Article 368 and the Prem Singh judgment.

CJI: how long will you take?

Singhvi: couple of hours

Justice MR Shah: Couple of hours ? That is dangerous

Singhvi: 2 hours

CJI: We will take 15 mins of mentioning and then assemble tomorrow #DelhivsLG