[Delhi Government v. LG - Day 1] State list is effectively concurrent list for Delhi since Union can legislate on State list: Supreme Court

A Constitution bench of the Supreme Court today began hearing the Delhi government v. the Lieutenant Governor case concerning administrative control over transfers and postings of civil servants in the national capital. .The bench of Chief Justice of India (CJI) DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha observed during the hearing that the executive power of the State cannot be taken away by the Central government .In this regard, the Court stressed on the significance of Article 73 of the Constitution."Article 73 of the Constitution shows that the Union cannot take away the executive power of the State. Like Code of Criminal Procedure (CrPC) falls in concurrent list, though parliament has power to frame CrPC, executive power to be wielded by Karnataka can only be done by Karnataka government," CJI observed. Pertinently on legislative powers with respect to Delhi, the CJI remarked that Delhi is unique in that the parliament has power to enact laws with respect to State list also when it comes to the national capital."But in respect of Delhi, Union can legislate on State list also. So State and Concurrent lists are both (effectively) concurrent list," he remarked..The case arose in 2018, 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.During the hearing today, Senior Advocate Abhishek Manu Singhvi, appearing for the Delhi government, argued that a State or Union Territory cannot function when it does not control civil services and that such an exclusion could not have been brought in by a notification. Singhvi was referring to a May 2021 notification by which the power to assign posts, effect transfers within the Government of NCT of Delhi, and discipline civil servants came to be vested in the Central government."When you have no accountability you function on your own and there is complete chaos and insubordination, that is the natural corollary. Can this court imagine a UT with a legislature with no control over civil services? that is the heart of the case," Singhvi summarised. .CJI Chandrachud observed that Delhi government cannot legislate on public order, law and order and land, and that as per another caveat in 239AA (3)(a), "any matter which is in state list or concurrent list which is applicable to the union list, NCT cannot exercise executive power on this. So we have to see if services fall within this.".Singhvi argued that the notification under challenge meant that if Delhi government has the power to legislate and it does not excercise such a power, then in that case, it "stands denuded of exercising such a right."."This is a matter of moment to see if Delhi always has to come to a standstill on every issue. The press is always saying Delhi and Lieutenant Governor are in a stalemate. Ek Mayan me do talwar kaise?" he asked.."Absolutely," the CJI replied.The hearing will continue tomorrow..[Track the live thread on Day 1 hearing here].[Read Written Submissions by Delhi Government]