[Delhi government v. LG - Day 3] What is the point of elected government if everything at Central government's beck and call: Supreme Court

The Supreme Court on Thursday asked what purpose would be served in having an elected government for Delhi if its administration and control over bureaucrats are under the control of the Union government [Government of NCT of Delhi vs Union of India]..A Constitution bench of Chief Justice of India (CJI) DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha was hearing the case between the Central government and Delhi government regarding the administrative control over transfers and postings of civil servants in the national capital.During today's hearing when Solicitor General (SG) Tushar Mehta argued that a Union Territory like Delhi, is an extension of the Union, administered by the Union through its own officers. To this the CJI responded asking, "If everything is at the beck and call of the central government, then what is the use of an elected government?"Solicitor General (SG) Tushar Mehta, appearing for the Central government, said that while an administrator is answerable to the minister, the administrative control as regards officers vests with the Central government."When an administrator takes a decision, he is answerable to the minister. But we are on administrative control like who posts, who transfer etc," SG Mehta said."If an officer is not discharging his function properly, Delhi government will have no role to say have that officer transferred. You say there is no jurisdiction of Delhi government in such postings like in education, environment etc? What is the use," the CJI persisted."Suppose Central government 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 the government then transfer him to say 'health'," SG Mehta asked..The case arose in 2018, when a Constitution Bench of the Supreme Court had interpreted Article 239AA of the Constitution, which contains special provisions with respect to the National Capital Territory. The peculiar status of the NCT and the powers of the Delhi Legislative Assembly and the LG and their interplay were debated in the case.The Court in that judgment had ruled that the LG cannot act independently without the aid and advice of the Council of Ministers, and has to work harmoniously with the NCT government.The appeals relating to individual aspects including services were then placed before a regular Bench for adjudication based on the Constitution Bench judgment.The regular bench had on April 14, 2019, pronounced its verdict on various individual aspects relating to the tussle between the Delhi government and the LG.However, the two judges on the Bench - Justices AK Sikri and Ashok Bhushan - had differed on the issue of 'services' under Schedule VII, List II, Entry 41 of the Constitution of IndiaThe issue considered by the Court was whether the exclusion of “services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide a notification of the Government of India dated May 21, 2015, is unconstitutional and illegal.Since the judges on the Bench differed, that aspect was referred to a larger Bench and it came up before a three-judge bench.The three-judge bench then referred the matter to the Constitution Bench on Centre's request.The primary basis of the prayer to refer it to a five-judge bench was that the majority judgment of the Constitution Bench did not consider purpose and intent of the expression “insofar as any such matter is applicable to Union Territories” as it occurs in Article 239AA(3) of the Constitution, which is the pivotal and crucial aspect of the said provision..The SG began his submissions today by asserting that the issue concerns capital of the nation and would have far-reaching ramifications."There was a different historical framework for Delhi ... Delhi is a miniaturised India, a fact often forgotten by the administration," he said. Mehta added that there is no legal contemplation for a different service for the Union Territory."A conscious omission and legislative call was taken to have union services and services of the State and not for the Union Territory."The SG underscored that the bureaucracy is not headed by any party but the Constitution, and took objection to a reference Delhi government's argument yesterday that civil servants are 'strictly monogamous'. "Bureaucracy should not be loyal to the Central government but the 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."CJI Chandrachud then asked if the Delhi assembly has the legislative power to make laws with respect to all items in State and concurrent list. "Is legislative entry of services applicable to the union territory?""It is an implied exclusion," the SG replied. The CJI also asked what was the point of Delhi government having legislative powers if the executive control was with the UnionThe SG argued that it is co-terminus to which the CJI disagreed."See Article 162 of the Constitution. See the proviso to Article 162.....So if a subject is allotted exclusively to the state under list 1, does the state exercise executive control over it?" the bench queried."Only if there is a parliamentary Act. LG is the authority for GNCTD. We will show it," the SG responded..Elaborating on the same, the SG argued that when the LG takes decisions, he is answerable to ministers and, therefore, the elected government. Mehta pointed out that Delhi being a Union Territory, cannot have its own cadre of officers as per Article 308 of the Constitution The hearing will continue on January 17, Tuesday with the hearing likely to conclude on that day. .Read our coverage of Day 1 of the hearing here.Read our coverage of Day 2 of the hearing here.