Portal:Supreme Court of India

“ In a democratic form of Government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. [37] A constitutionally entrenched and democratically elected government needs to have control over its administration. The administration comprises of several public officers, who are posted in the services of a particular government, irrespective of whether or not that government was involved in their recruitment. For instance, an officer recruited by a particular government may serve on deputation with another government. ”

“ Civil services form an integral part of modern government. Professor Herman Finer, in his classic work titled “The Theory and Practice of Modern Governance”, states that “the function of civil service in the modern state is not merely an improvement of government; for without it, indeed, government itself would be necessarily impossible.” [29] The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service. ”

“ It is a means to reconcile the desire of commonality along with the desire for autonomy and accommodate diverse needs in a pluralistic society. Recognizing regional aspirations strengthens the unity of the country and embodies the spirit of democracy. Thus, in any federal Constitution, at a minimum, there is a dual polity, that is, two sets of government operate: one at the level of the national government and the second at the level of the regional federal units. ”

“ While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution. ”

“ The States shall have executive power over the entries in List III. However, if a Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union “in a State” over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. ”

“ The judgment of the majority [New Delhi Municipal Council v State of Punjab] also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has “special features” under Article 239- AA. Though the Union Territory of Delhi “is in a class by itself”, it “is certainly not a State within the meaning of Article 246 or Part VI of the Constitution”. ”

“ This view is reinforced by the fact that the Constitution divides public services in India into two categories, namely, services in connection with the affairs of the Union and services in connection with the affairs of the State as is clear from the various provisions in Part XIV of the Constitution. There is no third category of services covering the services of the Union territories. ”

“ NCTD, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution. The Union and NCTD share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a “State”. As the opinion of the majority in 2018 Constitution Bench judgement held:
“Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.” ”

“ In that sense, the principles of federalism and democracy are interlinked and work together in synergy to secure to all citizens justice, liberty, equality and dignity and to promote fraternity among them. The people’s choice of government is linked with the capability of that government to make decisions for their welfare. ”

“ The power to make adaptations and modifications was granted to the President by Article 372A to bring the provisions of law in accordance with the Constitution, as amended by the 1956 Constitution amendment. If Article 367 is interpreted as excluding modifications under Article 372A, there would be an apparent inconsistency between the interpretation of the Constitution and the interpretation of statutes. While in the case of the former, the definition of State prior to the 1956 amendment would apply, in the case of the latter, the definition as amended by the 1956 amendment would apply. ”

“ If there is something which is repugnant in the subject or context, the inclusive definition in Section 3 (58) will not apply. This is made clear in the precedent emanating from this Court. In certain contexts, it has been held that the expression “State” will not include Union Territories while in other contexts the definition in Section 3 (58) has been applied. Hence, the expression “insofar as any such matter is applicable to Union Territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.” ”

“ By a constitutional fiction, as if it were, Parliament has legislative power over Concurrent as well as State List subjects in the Seventh Schedule. Sub Clause (c) of Clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the legislative assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by the legislative assembly... ”

“ State Public Services may be constituted or established either by a law made by the State legislature or by rules made under the proviso to Article 309 of the Constitution or even by an executive order made by the State Government in exercise of its powers under Article 162 of the Constitution. ”

“ The design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and Union territories, it preserves the local aspirations of different regions. “Unity in diversity” is not only used in common parlance, but is also embedded in our constitutional structure. Our interpretation of the Constitution must give substantive weight to the underlying principles. ”

“ Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance... All Ministers are bound by a decision taken by one of them or their departments. ”
106. Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in turn accountable to Parliament or, as the case may be. the state legislatures. ”

“ Which would be the appropriate Legislature to enact laws or the appropriate authority to frame rules would depend upon the provisions of the Constitution with respect to legislative competence and the division of legislative powers. ”

“ But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression “States” means the State specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union territories. ”

“ After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories. ”

“ The spirit of cooperative federalism requires the two sets of democratic governments to iron out their differences that arise in the practice of governance and collaborate with each other. The Union and NCTD need to cooperate in a similar manner to the Union and the States. ”