Thread by @barandbench

[DAY 3] Delhi Govt vs LG

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

@AamAadmiParty @LtGovDelhi

#AAP #LG

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#delhiVsLG #SupremeCourt

CJI: If we go to written submissions and take us through that so that you can emphasize and then take us through cases etc

SG Tushar Mehta: certain portions may be flagged and not read so that there is not wasting of court's time

#DelhivsLG

SG Tushar Mehta: Q was who appoints and posts the officers in GNCTD. Answer is Entry 17 List 1.

#DelhivsLG

SG Tushar Mehta: Union services. Union public services and union public service commission are All India Services under the rules framed by president in ref to proviso to Art 309 of the Constitution

#DelhivsLG

SG Tushar Mehta: whether term services will be hit by term in so far as with regard to the UT. This question is about capital of the nation and will have far reaching ramifications. There was diff historical framework for Delhi

#DelhivsLG

SG Tushar Mehta: SC noted this special status of Delhi while examining the validity of reservation of seats in medical colleges for local candidates in Delhi,in Jagadish Saran v. Union of India. #DelhivsLG

SG: Delhi is a miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially vis-à-vis regional, minorities.” #delhivslg

SG: It is submitted that the Government of India Act, 1935, recognised, in the circumstances in which it was enacted, three categories of components of the erstwhileUnion,namely,

SG: SG: (i) Governors' provinces, (ii) federating Indian States and (iii) the Chief Commissioners' provinces #DELHIVSLG

SG continues reading: #DelhiVSLg

SG on what Justice Fazal Ali committee found on Delhi: #DelhivsLG

SG: UT is nothing but an extension of the Union. Ultimately the supremacy and control of the UT is not only the need of the hour but always thought to be so #DelhivsLG

SG on what Justice Fazal Ali committee found on Delhi: #DelhivsLG

SG continues reading the Justice Ali commission report: #DelhivsLG

SG: the report says that "municipal autonomy for Delhi in the form of a corporation would appear to be the most appropriate method of meeting and reconciling the broader requirements of the national Government as well as the local needs and the wishes of the people……… "

SG: Justice Ali commission report says ", if Delhi is to continue to be seat of Centre, it must adopt a model which is sound in principle and administratively workable. People residing in national capitals enjoy advantageous position and they must prepared to pay price for it"

SG: for the first time the term UT comes constitutionally under the seventh amendment #DelhivsLG

SG reads Article 1 after the 7th amendment: #DelhivsLG

SG: provision of services comes in Part 14 of the Constitution and it was amended in the 7th amendment: SG refers to the chart below to show the difference 👇👇 #DelhivsLG

SG: when the constitution was amended in the 7th amendment, when framers wanted to have services for UT it would have done so #DelhivsLG

SG: there was no contemplation for a different service for the Union Territory #DelhivsLG

SG: A conscious omission and legislative call was taken to have union services and services of the state and not for the union territory #DelhivsLG

SG: On the Balakrishnan report, the report was substantially prepared by Justice Sarkaria but joined press council later so the report was prepared by the third member, Balakrishnan and is thus known as the Balakrishnan report. It was basis of 69th constitutional amendment

SG: The 69th constitutional amendment bill was infact based on the Balakrishnan committee report #DelhivsLG

SG reads the parliamentary debate while introducing the 69th constitutional amendment bill which brought in Article 239AA #DelhivsLG

SG: The word used here is Union Territories and can such be claimed by Lakshwadeep etc. Bureaucracy is not headed by any party but the Constitution of India. I take offence to that line that civil servants are strictly monogamous. #DelhivsLG

SG: Bureaucracy should not be loyal to the Central govt but centre must have a say on who should be appointed and where he is posted or transferred. Then transaction rules can take care of his conduct etc... council of ministers can take a call. #delhivsLG

SG: since legislative power is coexistent with executive power would not it be in ref to section 3a, 3b, 3c

SG Tushar Mehta on paperless hearing: Milord has changed us all...

CJI: COVID changed us ..

Sr Adv AM Singhvi: But the pleasure of writing with a thick nibbed pen on papers is lost

Justice Narasimha: you can still do that #supremecourt

CJI DY Chandrachud: Brother Shah and I had a different PC where used to log in to chat, then we had a breakout session

Justice Shah: we have to change with time and we cannot be static

CJI: At the height of pandemic we used this method and learnt it

#supremecourt

Singhvi: on power of digital media, every pandemic has its own share of advantages

SG: Now all seniors etc have virtual conferences and it saves time and resources

Justice Shah: there is good in everything and we must imbibe it #supremecourt

CJI DY Chandrachud recalls an incident where a senior lawyer in Bombay used to use "burgundy ink" to write

CJI: It was his own ink by mixing the black and pink available and thereby using burgundy ink to write #supremecourt

SG: I have 2 serious constitutional objections. UT is extension of union and there is no concept of federalism between union and its own limb. merely saying union cease the control, it is not question on control but question on constitution of India #DelhivsLG

CJI: To crystallize this: Parliament in the case of GNCRD, it can legislate on state and concurrent list. Delhi assembly does not have the power to legislate 1, 2, 18 and 62-64 in relation to the 3 exclusions.

CJI: Delhi assembly has the legislative power to make laws with respect to all in state and concurrent list in so far as it is applicable to the UTs. Moot Q: Does legislative entry of services applicable to the union territory?

SG: It is an implied exclusion:

CJI: according to you if you see part 14 amended by 7th amended concious departure was made to exclude UT from the fold of services, you submit this. now say how services were never intended to be under UT

CJI: please focus on if we accept that if legislative power of UT is on assembly what about the executive control?

SG: It is co terminus

CJI: It is not so..

CJI: See Article 162 of the Constitution. See the proviso to Article 162.

Justice Shah: point out with respect to UTs how administrative functions are being carried out

SG: Through administrators, will show it

CJI: So if a subject is allotted exclusively to the state under list 1, does the state exercise executive control over it?

SG: only if there is a parliamentary act. LG is the authority for GNCTD. We will show it #DelhivsLG

Constitution Bench to re-assemble at 2 pm #DelhivsLG

SG refers to Justice Ashok Bhushan's view in the Delhi vs LG case

CJI: We shall go back to your written submissions after that

#delhiVsLG

CJI: How do we decide independent of services whether one particular thing is applicable to the UT or not?

SG: UT is an extension of the Union administer the Union through its own offices

#delhiVsLG

CJI: If everything is at the beck and call of the central government then what is the use of an elected government?

SG: When an administrator takes a decision he is answerable to the minister and thus elected. But we are on administrative control like who posts, who transfer etc

CJI: If an officer is not discharging his function properly. delhi govt will have no role to say that have the govt transferred. you say there is no jurisdiction of delhi govt in such postings like in education, environment etc? what is the use? #delhiVsLG

SG: Suppose centre posts an officer as industries secretary , delhi is the capital and there are neighbouring states. suppose that officer is having disagreement with officers of such rank in such states. should not then govt transfer him.. say health? #delhiVsLG

Justice Narasimha: please tell us the distinction between state and UT and difference between UTs and the NCT.

SG: It is only on administrative control and LG has that. All India officers are appointed under the All India Act, exams are conducted by UPSC.

SG: When exam is cleared there is an option to choose my cadre. Depending upon my ranking I get cadre. All are state cadres except the one cadre which includes NCT and others. then there is DANIPS #DelhivsLG

SG: i would like to show that NCT cannot have a state public service commission and thus no question of bifurcating services. it is the state which can have state public service commission and not a UT. This is under Article 308 of the Constitution #DelhivsLG

Justice Narasimha: you are driving at the point that constitution does not contemplate services for UT and only the one is..

SG: Union services and state services..

Justice Shah: otherwise it becomes state service only if UT also gets it

#DelhivsLG

SG: "working in the affairs of the union" is the word used and that is why the disciplinary authority in this case will be the central government #delhiVsLG

SG now refers to the cadre rules

Justice Narasimha: you are reading Union of Indian allocation of service rules.

SG: Yes

#DelhivsLG

CJI: How much time will you take?

SG: One hour more

Singhvi: I need two hours for rejoinder

CJI: If we start this on Tuesday, then

SG: We can finish in one session

CJI: Today?

SG: we can

CJI: I dont want to break the constitution bench

CJI: we will rise by 3:30

SG: lordships can rise now since it is 3:15

Justice Narasimha: cadre controlling authority is here (laughs)

SG: Mr Salve wants to argue for 20 minutes for DANIPS

CJI: We will have it on January 17 now and we will start at 10:30 am and wrap up by 1 pm. 2 pm we will have mentioning. my court master is smart, he suggested mentioning at 2 pm instead #delhivslg

CJI: The court master is so well versed with the procedural aspect. also the same at company law board etc.

Bench rises

#DelhivsLG