‘What Is The Purpose Of Elected Govt. If The Administration Is To Be Carried Out Only At The Beck And Call of The Central Govt.?’: SC Asks SG in Govt Of NCT Vs UOI

SG: "Your lordships' question was who appoints and posts all the officers in the GNCTD. My answer would be, and I would substantiate at the end, entry 17 list 1- Union Public services, all India services, union Public service commission. Your lordships would be answering the question if the term 'services' would be hit by the phrase 'in so far as any such matter is applicable to Union territories' (in Article 239AA(3)(a)). Your lordships are deciding the question with regard to the national capital and it will have far-reaching consequences for the nation. So slightly, your lordships may require the historical background as to how Delhi was conceptualised and eventually constitutionally provided for in a different governmental format. Delhi was a chief commissioner's province, not a federated state. When your lordships would examine constitutional provisions, particularly with respect to services, you would find there are several amendments made through Constitutional Seventh Amendment Act. They have made provisions by way of amending service provision but there is a conscious decision to keep the union territories separate. For the first time, the concept of union territory comes under the seventh amendment and other amendments under the seventh amendment. But union territory is given a separate treatment and not the treatment which is given to other federated states"

SG: "The Provision of services is in part 14 of the constitution. Part 14 came to be amended by the seventh amendment. It says that In this part, unless the context otherwise requires, the expression 'state' means state as in part A or part B of the first schedule. Before the seventh constitutional amendment also, the expression 'state' meant a state specified in part A and part B of the first schedule. So even before, for part C states, the centrally-administered states (where the NCT falls), there were no separate services contemplated. When the Constitution was being amended under the seventh amendment and the concept of union territories was being introduced, if the framers of the Constitution, by the Parliament, wanted to have a separate union territory service, they would have done so because this is amended simultaneously- seventh amendment introduces union territory and also amends Article 308. 308 says unless the context otherwise requires, the expression 'state' does not include the state of Jammu and Kashmir. Meaning thereby that the very amendment which introduces union territories does not introduce the term union territory in the chapter which is under the heading of services under the union and the states. There is no contemplation of separate services for union territories. A conscious omission, a conscious legislative call that there would be union services and services of the state but not services for union territories"

SG: "Bureaucracy is not related to any party, any government, it is related to the Constitution of India. If the National capital is under siege and the arterial Road connecting to the capital is blocked with permanent structure and if the government of Delhi sends food, it is the responsibility of the bureaucrat to communicate to the LG that this is the capital and the capital cannot be under siege. If during the Covid period, the number of tests are brought down with a view to ensure that the figure is low, because it would affect the future course of action, the health secretary would have to bring it to the notice of the LG. I am not saying the bureaucracy should be loyal to the central government but the central government must have a say as to who will be appointed and who will head which department. They are bound by the transaction of business rules, reporting to the minister, taking orders from the minister, bound by the instructions of the minister, if any difference is there, it goes to the council of ministers, Council of ministers is supreme, collective responsibility, democratic functioning. But to say that once the officer comes under my jurisdiction, it is my decision as to what he deals with, that goes against the very spirit with which 239 AA is introduced. The test in my submission would be a subject matter wise selection of implied exclusion. The phrase is 'applicable to UTs'- plural. Whether Andaman and Nicobar can do it, whether diu and daman can do it, whether Lakshadweep can do it- that would be the test. Like your lordships said that for Delhi both state list and concurrent list are concurrent list, meaning thereby the Parliament can make a law even from the state list which is not permissible in case of Federating states. Legislative power under 239AA(3)(a) is subject to (3)(b) because (b) is also part of the Constitution and the Article starts with 'Subject to the provisions of this Constitution'. And legislative power is coextensive with the executive power...."

Justice Chandrachud: "For GNCTD, parliament can legislate on state list and concurrent list. Legislative assembly of Delhi cannot legislate on entries 1, 2 and 18 of List II, and 64, 65, 66 in so far as they relate to 1, 2 and 18 in so far as those entries are applicable to union territories. The third aspect, according to you, is that 'in so far as' is a limiting feature which has been noted by the majority in the GNCTD case (2018). No doubt about the fact that the Parliament has the power to legislate entirely in respect of the state list and the concurrent list. No dispute about the fact that the Delhi legislative assembly has no legislative jurisdiction over entries 1, 2, 18, 64, 65, 66. And third, even in respect of other entries in the state list and concurrent list other than 1, 2 and 18, the Delhi legislative assembly has the authority to legislate only in so far as those entries are applicable to union territories. The moot question is does the entry of services relate to the union territories, Are they applicable to union territories. Your argument is that the Delhi legislative assembly will not have legislative jurisdiction over services merely because entry 41 (of List II) uses the expression 'state' because you have been trying to bring it within the folds of my judgment (in the GNCTD case; 2018). I also say that merely because 'state' includes 'union territories' in 358, it does not mean every item in the state or concurrent list where 'state' is used includes 'union territories' because then the word 'insofar as' will cease to have meaning. So, according to you, if you look at part 14 of the Constitution which was amended by the seventh amendment to the Constitution, consciously a departure was made by amending the Constitution not to bring in union territories in part 14 of the Constitution. Now what you really need to focus on is how do you tell us that services were never intended to be for union territories, that the legislative control over services was never intended to be part of the legislative powers of the Delhi legislative assembly. Focus on that. Two, even if we concede to your argument that legislative authority over services is vested exclusively in Parliament, what about the executive power of the GNCTD?"

SG: "It is always coterminous"

Justice Chandrachud: "No. Even if Parliament has legislative control over certain areas, the executive control over those areas is still vested then with the states"

SG: "In the case of union territory, that would mean the LG, I will show"