The Supreme Court had been hearing the Delhi government’s appeal against a Supreme Court division bench’s inconclusive verdict of 2019 on civil servants posted in the Delhi cadre. The matter was referred to a Constitution bench in May last year.
ON the last day of hearing arguments on who controls Delhi’s civil servants, the Solicitor General of India (SGI), Tushar Mehta, asked the five-judge bench of the Supreme Court to refer the case to a larger bench, making a last ditch attempt to prevent the National Capital Territory (NCT) of Delhi from getting any closer to statehood.
The Constitution bench, comprising Chief Justice of India (CJI) Dr. D.Y. Chandrachud, and Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, allowed the SGI to file the application seeking reference, without revealing any predilection to accept it.
Before reserving its judgment on Wednesday, the Supreme Court had been hearing the Delhi government’s appeal against a Supreme Court two-judge bench’s inconclusive verdict of 2019 on civil servants posted in the Delhi cadre. The matter was referred to a Constitution bench in May last year.
Last week, senior advocate Abhishek Manu Singhvi argued on behalf of the Delhi government that once a civil servant is allotted to the Government of NCT of Delhi, the power to allocate them work, to appoint them to departments within Delhi and transfer them between various departments must rest solely with the Delhi government.
“You are giving me a gear system which I cannot change… All the levers of the gear movement are in somebody else’s hand. This system can’t work. The car can’t move,” he had complained, introducing a car metaphor that has turned into a cavalcade.
The SGI had framed the matter as a mere “perception issue” on the second day of hearing, stating that “a perception has been created that the Lieutenant Governor is supreme and officers have their allegiance elsewhere”. Retorting to Singhvi’s driving metaphor, Mehta had said, “It is the elected body which is in the seat of driving.”
Car-driving metaphors continued in the later days of the hearings, with Justice Shah remarking, “You are saying the steering wheel, clutch, driving seat are all with the Delhi government, but the directions and GPS are with the Centre.”
The SG responded, “Only the make of tyres is decided by the LG and if you cannot drive, then there are serious issues with your driving and not the tyre.“
Changing the finish line: CJI points out the lack of a request for reference
At the outset of the hearing, Mehta stated that he had filed an application the previous day seeking the reference to a larger bench, claiming there is a need to “relook at the contours of federalism between the Centre and states”,
“But we haven’t heard any arguments on a reference,” the CJI said as Senior Advocate Dr. Abhishek Manu Singhvi was about to begin his final submissions. “We would have looked at the matter differently had there been a request for reference,” he later added.
Singhvi, representing the Government of NCT of Delhi, opposed the plea for a reference to a larger bench, asking why it had not been raised before.
“We are dealing with the capital of the nation,” replied Mehta, imputing a “tremendous hurry” being exercised by Singhvi. “We may not be remembered as handing over the capital to complete anarchy,” he added.
The clutch—Clause 3 (a) of Article 239AA
The NCT of Delhi has a legislative assembly (provided for by Article 239AA 2(a) of the Constitution) that is permitted to make laws with respect to any of the matters contained in the State List or the Concurrent List (except for public order, police and land) of the Seventh Schedule of the Constitution, under clause 3(a) of Article 239AA.
One of the provisions that the bench was called to adjudicate on is Entry 41 of the State List contained in the Seventh Schedule, which relates to ‘State public services and State Public Service Commission’. The Union Government had issued a notification in May 2015 excluding ‘services’ under Entry 41 from the legislative and executive domain of the Government of NCT of Delhi.
It is the Government of NCT of Delhi’s argument that since its legislative assembly has power to make laws with regard to the list that carries Entry 41, and a Constitutional bench had held in 2018 that the executive power of the Government of NCT of Delhi is co-extensive with its legislative power, the control over Government of NCT of Delhi’s civil servants must rest solely with the elected government. It has, therefore, asked the Supreme Court to declare the 2015 notification unconstitutional and illegal.
The SG, at one point submitted that “merely” saying that Delhi has power to make laws on matters from the State List, which contains Entry 41, “doesn’t cut it”.
Nevertheless, the main provision whose interpretation was under question is clause 3(a) of Article 239AA, owing to the wording employed by the Parliament that appears to create incidental caveats on the Government of NCT of Delhi’s powers.
Clause 3(a) reads, “subject to the provisions of this Constitution”, the legislative assembly has power to make laws on matters contained in the State list or the Concurrent list “in so far as any such matter is applicable to Union territories (UT)”, except matters with respect to Entries 1, 2 and 18 of the State List (public order, police and land) and Entries 64, 65 and 66 of that list to the extent they relate to Entries 1, 2 and 18.
The questions before the Constitution bench were: Which provisions of the Constitution is Article 239AA contingent on? How far are the Government of NCT of Delhi’s powers restricted by the caveat ‘in so far as…applicable to UTs’? What implications, if any, does it have on the powers of other UTs with legislatures?
On the phrasing of this provision, Singhvi contended that Article 239AA specifically excluded only three subjects from the purview of the Government of NCT of Delhi. “There cannot be additional implied exclusions in this context”, he said.
Mehta, also presenting his argument as a straightforward interpretation of the Constitution, stated that it has “very consciously restricted (the NCT of Delhi legislature’s) powers only to those entries which are applicable to UTs.”
The GPS—comparisons with the J&K UT situation
On the first day of hearing, Singhvi had cited the example of the Jammu and Kashmir Reorganisation Act, 2019 which bifurcated the erstwhile state of Jammu and Kashmir into two UTs (Jammu and Kashmir, and Ladakh) and gave the Jammu and Kashmir Union Territory Legislative Assembly the power to make laws on ‘public service’ as proof that a UT may also independently maintain a Public Service Commission.
“The provisions of this Act authoritatively disprove the argument that Entry 41 is not available to a UT,” Singhvi had said.
The SG contended that a UT does not have the power to constitute a Public Service Commission under Part XIV of the Constitution, unlike states; and since the Government of NCT of Delhi cannot constitute one, it is constitutionally excluded from legislating on Entry 41 of the State List, or from possessing the co-extensive executive power over matters relating to civil servants.
Though, in light of the provisions of the J&K Reorganisation Act and the bench taking cognisance of its provisions, Mehta clarified that, according to his interpretation, the Parliament alone can provide for the constitution of a public service commission in a UT.
Singhvi stated that, indeed, the Parliament has power to enact a legislation to constitute a public service commission for a state or UT, but alleged that the Union Government has been equating the Parliament with itself. “Parliament can make any law but here it is an executive notification on services,” he said, referring to the May 2015 notification excluding ‘services’ under Entry 41 from the legislative and executive domain of the Government of NCT of Delhi.
(With inputs from Ritisha Sinha, a student at National Law University, Delhi interning with The Leaflet)