[Delhi government vs LG - Day 4] Central government says Union Territories cannot have public service commissions; Supreme Court says J&K has one

The concept of federalism applies to Union Territories as well and it would be incorrect to say that the principles of federalism with clear demarcation of powers between governing units apply only to Central government and States, the Supreme Court observed on Tuesday [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 said that there is also the concept of hybrid federalism with such units having some trappings of a State. "Federalism operating only qua Union and States is a difficult proposition to accept. There is something known as hybrid federalism also. May not have all trappings of a State but it has some trappings of a State for the principle of federalism to apply," CJI Chandrachud remarked.He further said that federalism applies when there is no unitary form of government. "These characteristics of federalism also apply to Union Territories. Even Panchayats are recognised by local self governance," the CJI added.Pertinently, the Court also questioned whether it would be correct to argue that Union Territories cannot have public service commissions at all. In this regard, the bench cited the example of Union Territory of Jammu and Kashmir (J&K)."Interestingly , J&K Reorganization Act incorporates a public service commission for the UT of J&K," the CJI said.Solicitor General (SG) Tushar Mehta, appearing for the Central government, responded by stating that Article 239AA, which confers special status to Delhi, does not apply to J&K. Further, he said that the parliament in its wisdom chose to continue with a public service commission for J&K since it already had one when it was a State. .The Court 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..Background.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..Arguments today.The hearing today revolved around the legal status of Delhi and the nature of power conferred on the elected government of Delhi..SG Tushar Mehta contended that the Constitution has given a sui generis position to Delhi since it is the capital of the country. "The Union Territories are retained under the control of the Union because of different strategic significance of each Union Territory be it defence or such other significance. Delhi has the distinct significance of being the capital of the nation. Constitution has very consciously restricted its powers only to those Entries in List II which can be applicable to a Union Territory," Mehta said.There is only one place in the entire Constitution where the supremacy of Parliament is constitutionally recognized by conferring jurisdiction even on List II subjects and that is with respect to Union Territories, he added..Mehta also underlined that the Constitution does nor envisage separate public service commissions for Union Territories and"It is required to be pointed out that the provisions of 'service' are made in Chapter XIV of the Constitution having the title 'services under the Union and the State'. The Constitution, which is fully aware of three units of governance i.e. 'The Union', 'State' and 'Union Territory', categorically excludes the Union Territory from the separate chapter under the heading 'Services under The Union and The States'," Mehta said.Thus he contended that there is no contemplation of any separate and independent services for Union Territories since any Union Territory [whether with or without legislature] is constitutionally an extension of the Union. "Though Article 308 came to be amended simultaneously with introduction of Union Territory and the contemplation of an Administrator to administer the same, the Parliament did not incorporate 'Union Territory' within the meaning of the expression 'the State'," the SG maintained..At this juncture, the CJI cited the example of J&K's public service commission despite being a Union Territory.The SG responded by citing Article 239AA which, he said, does not apply to J&K."Please see the clear cut answer in the Constitution. Please see Article 239AA (3)," he submitted.The SG also said that J&K is a sui generis example. "Parliament wanted continuance of the public service commission since it existed before. Parliament by law said that there is no restriction," the SG said.The Court then questioned the government on where parliament derived its powers with regard to the same."The problem with the submission is parliament under List I of the Constitution can form a Union Public Service Commission. Entry 41 of List II will not apply to Union Territory. So there is neither power of parliament and nor power under Entry 41," the CJI observed.He further said that the only possible answer is Entry 97."The answer possibly is Entry 97 which is any matter which is not there under any of the lists," the CJI stated. The SG said that even if the provision of J&K Reorganization Act is assumed to bad in law, it would not be applicable to Delhi"Even if my friend is correct, it means that provision of J&K Reorganization Act is bad in law but that does not mean it applies to Delhi," the SG said."That is why it is dangerous when you argue that Union Territory cannot have public service commissions at all," the CJI replied..The SG maintained that the Constitution has consciously restricted the Delhi government's powers only to those Entries in List II (of the State) that can be applicable to a Union Territory.The SG elaborated how, in the case of Delhi, functional control vests with the elected wing and all officers/employees are required to function under the administrative control and supervision of the same, while administrative control is vested constitutionally under the order of the President who exercises the same through the Lieutenant Governor."Almost a fiction is created by way of a public perception that they have absolutely no control of the elected Government over the officers and employees working in Delhi," the SG said. Justice Shah then quipped, "You are saying steering wheel, clutch, driving seat is all with Delhi government, but the directions and GPS is with the Centre and that if they want to go straight they cannot go."The SG responded in a lighter vein saying,"Only make of tyres is decided by the LG and if you cannot drive then there are serious issues with your driving and not make of the tyre."The CJI then flagged the issue that the elected government cannot even change its officers without approval from the Union Home Ministry."Will that not dilute even the functional control? Question is about posting?"The SG replied saying, "They can send to LG through the MHA and it is never refused.".Senior Advocate Abhishek Manu Singhvi, appearing for the Delhi government, said that the Delhi government is only seeking its constitutional rights as an elected government, towards 'realisation and actualisation of the animated purpose of 239AA'."The Delhi government must have the right to post and transfer officers." He added that parliament cannot interfere with subjects in the State just because Delhi is a Union Territory.The verdict in the matter is likely to be reserved tomorrow after arguments are heard for an hour. .Read our coverage of Day 1 of the hearing here.Read our coverage of Day 2 of the hearing here.Read our coverage of Day 3 of the hearing here.[Follow our coverage of today's hearing]