Thread by @barandbench

[DAY 2] Delhi Govt vs LG

Constitution Bench of the #SupremeCourt led by Chief Justice of India DY Chandrachud to continue hearing pleas regarding the tussle between the AAP-led Delhi government vs @LtGovDelhi over control over services in the national capital

@AamAadmiParty

Read our coverage of yesterday's hearing.

barandbench.com/news/litigatio…

#SupremeCourtofIndia
#SupremeCourt
@AamAadmiParty
@LtGovDelhi
#AAP #Delhi

Sr Adv AM Singhvi: Let me read Article 368 once. Amendment requires 2/3rd of parliament and 50 percent states to ratify it #DelhiVsLG

Justice Narasimha: Has any services been constituted at all.. Central Secretariat services etc. Any acts passed with regard to the services ?

Singhvi: there is no need for a services act

Any law on entry 1,2 and 18? Not entry 41: Justice Shah

#DelhiVsLG

Singhvi: I am not legislating on public order, law and order, land..

Justice Shah: including creation of service posts

Singhvi: No I am not. I am saying reverse point. #DelhiVsLG

Justice Narasimha: Have you made any 301 rules. Which are the rules which govern the services ? The CCS rules?

Justice Hima Kohli: Delhi subordinate services board..

#DelhiVsLG

SG: All are recruited by UPSC and rules are approved by the President of India. For DSSB it is by service selection board #DelhiVSLG

Singhvi: No separate act on services. i am not asserting right on public order, law and order and land. All the services are joint cadre services, it cannot work like state on one side and centre on another. Always anchored in state or UT though all India service

CJI: we will have to see the rules which create the rules. Either by central legislation or the rules framed. We have to see the IAS rules, IPS rules, DANIPS rules etc.n

Once a person has been allocated a cadre the state govt decides the transfers postings etc.. but does the same principle apply to the UT. We want to see the statutory provisions: CJI

The statutory regime will be of significance: CJI

We want to see which is the cadre controlling authority as per the rules: Justice Narasimha

Singhvi: On the Balakrishnan report, Balakrishnan was an advisor to the home minister. It is of not much value.

CJI: what does the report say in services?

Singhvi: a constitutional amendment came with 3 exclusions, discretionary powers and certain disagreements

Singhvi: Balakrishnan never anticipated that 239AA will exclude only land, public order and law &order. It can have no relevance today.

Singhvi: there was a fundamental conceptual error that services only for state or union and that it cannot be UT Ever. Before coming to this fallacious understanding, in Prem Kumar judgment SC had reversed HC ruling that UT cannot have services. Thus the report is infirm

Singhvi: Basis of Prem Kumar Jain is the joint cadre system and it is between UT and the state.

Singhvi: Balakrishnan report is the one which was rejected by the Supreme Court Constitution Bench. #DelhivsLG

CJI: Balakrishnan report was before the Constitutional amendment and that cannot be the basis to determine the validity of the amendment. It is not a statute or something like that. Just because Balakrishnan is wrong does not mean notification is incorrect #DelhiVsLG

Singhvi: now on implications of collective responsibility qua governance with focus on Delhi. Westminster model , collective responsibility and aid & advice of ministers..these 3 concepts were synthesized by the court. #DelhiVsLG

Singhvi: civil servant is anonymous. Buck stops there and the blame is taken by the minister
#DelhivsLG

Singhvi: now please link collective responsibility to aid and advice of the minister. truncated does not mean dilution to a vanishing point.

Singhvi reads a judgment by CJI Chandrachud: .... Founding fathers and mothers of the Constitution... this is I am reading for the first time

SG : In fact for the first time..

CJI: I used this line so that the women who contributed in drafting the Constitution is given due

CJI: The women contributed and gave such important suggestions for the drafting of the Constitution #Supremecourt

CJI: land, public order and law & order represents the national scenario and hence excluded. now on control of services: does it lie in any of these three or there is a median?

#DelhivsLG

CJI: concern that there is a representative democracy must be when services lie with UT, that is your submission and you will not have control over governance. But then we have to see where and when it enters national realm

#DelhivsLG

CJI: one way to harmonize that will be that control over services in land, public order and law & order will not lie with Delhi Govt.

SG: Even they are not claiming it.

#DelhivsLG

CJI: Show us the statutory scheme and then difference of opinion between Justice Sikri and Justice Bhushan #DelhivsLG

Singhvi reads an article "civil servants are serial monogamists"

CJI: Yes it is beautifully put. loyalty to the government till it lasts.

Singhvi: .... expected to respect the law of parliament. #delhivsLG

Singhvi: federalism is vital because it is telling how to share sovereignties.. national, local and state level. number of manifestations of panchayat to down below. all democratic will cannot be centered around one sovereignty #DelhivsLG

Singhvi: with the diversity of this country, federalism is the way to preserve it and this has been held by Supreme Court #DelhivsLG

Singhvi: pluralism and democracy are hallmarks of a representative government. #DelhivsLG

Singhvi: whether municipal taxes imposed by NDMC on state govt properties is union taxation? The majority held that exempt if non commercial is state property
#DelhivsLG

Singhvi: NDMC makes it clear that Delhi remains a UT
and not all UTs are on the same pedestal. #delhivslg

Constitution bench to re-assemble at 2 pm #DelhivsLG

CJI: Mr Singhvi you cannot bat for one and a half day. We need to complete the matter by tomorrow evening. Bench is not available after this

Justice MR Shah: We are very serious
Finish by tomorrow evening

CJI: Please divide with SG Tushar Mehta #DelhiVsLG

Singhvi: All that I am seeking in this case is that civil servants once serving in UT if Delhi, if were to post them in Dept X or Ministry Y, all when and how to transfer, work allocation and reporting to which minister. I am not seeking disciplinary power as under MoP

Singhvi: but transfers and postings have to be with Delhi Govt, intra NCT
#delhivsLG

CJI: yes your point is clear that once the officers are here, the executive govt takes a call. We got it

Sr Adv AM Singhvi: if joint cadre system is not there then state will say why have all India service and have services state wise only

Singhvi: the country has been a single party democracy and also that states have different parties. Can we allow each state to have it's own services? All these live and let live will only remain as lectures then #DelhivsLG

To not have a service at all has far reaching ramifications let alone federalism etc: Singhvi #DelhivsLG

Singhvi: The payment is by the NCT to these services but the answerability is somewhere else #DelhivsLG

Please see the larger picture. One person is trying to save his burning house and not encroaching another house (that is land, public order and law and order). Constitutional gearbox is to have services under NCT : Singhvi #DelhiVsLG

I am asking for minimalistic power which no one should ask for and this is implicit in creation of NCT or not have NCT at all : Singhvi #DelhivsLG

Adv Shadan Farasat: what govt wants here is kind of red herring. Civil servants cannot go beyond the competence of the government. I want to cite what is the experience of global capitals across the world #DelhiVsLG

Adv Farasat: I see no concern of the union in day to day functioning of the Delhi government. #DelhiVsLG

Farasat: Grant us Entry 41 and the powers to transfer and post civil servants under the rules which governs them under All India service rules

Justice Shah: what legislative power ?

Farasat: regarding creation of posts under 41.

Farasat: Like a hospital is made and then posts are created, we should be allowed to create under entry 41.

CJI: what about the schools and all ?

Farasat: it all depends on LG and state cannot create any new posts after 2015. Posts which were there exists as on now

SG Tushar Mehta begins: capital of any country always has a sui generis position. I agree it is an elected govt and collective responsibility principle has to be respected. What is being dealt here is perception and not the Constitution

Perception created is LG is supreme and that officer has allegiance elsewhere. It is not so. This constitutional structure came to being in 1992: SG

SG: even when Centre and Delhi govt parties are different l, everything has been working till now smoothly with political maturity. It is the elected body which is in the driving seat

CJI: When you say an elected body is in driving seat then what are the powers which it has ?

SG: I am answering it. I have gathered into and you will be shocked. From 1992 till now there are only 7 matters registered by the LG to the president to show difference of opinion

SG: From 2017 till now, 18,000 files have come to the LG from Delhi Govt and all files have been cleared. #DelhiGovtvsLG

Justice Shah: Who creates the posts ?

SG: Central Govt creates the posts and that is the law.

Justice Shah: Running is different and creating, transfer etc is different

SG: That also they can do. If LG differs then it is different

SG: I have the ACRs of all officers for last 3 to 3.5 years and it is all 9 to 9.5 out of 10.

SG: Anything happening in Delhi does not have an impact only in India but also globally. #DelhivsLG

SG: Whenever they want to transfer , they can ask the LG and LG always does so. Attempt is something else and that is what I am driving at #DelhivsLG

SG: It is the CM who decides which proposals will be before the council and which will be before the ministers.

SG: Capital belongs to the nation and the national government has a role to play in accordance with a scheme. The scheme has worked perfectly till now. The Minister can say that his dept will work like this. Standing instruction can be given to the officer #DelhiVsLG

Justice Shah: we got your point that business rules govern it all. We got this point and move forward. Rule 23 and proceed further.

CJI: Read the specific provisions concerning services #DelhivsLG

CJI: are you suggesting that once an officer is allocated to NCT, it is the LG who takes a call on transfers, postings etc..

Justice Shah: Read Rule 23 also..

Justice Shah: When the council of ministers reiterate a call ?

SG: then the LG will refer it to the Centre for a decision by the President

CJI: Rule 46 is regarding services in the NCT. Only entrustment to LG concerning services is limited to Rule 46

SG: Every country has its own sui generis system of functioning. Why can't we have only states ? Why do have UTs. Due to strategic location it has to be under the administration of the Union. Constitution framers felt so.

SG: Delhi is ultimately an extension of the union since it is a Union Territory.

SG: Now I come to the next point..

Justice Shah: come to the next point tomorrow now

Hearing ends for today #DelhivsLG