Supreme Court: In a matter concerning administrative control over transfers and postings of civil servants in National Capital Territory of Delhi (‘NCTD’), the Constitution bench of Dr. D.Y. Chandrachud*, C.J., M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J. held the following:
There does not exist a homogeneous class of Union Territory (‘UT’) with similar governance structures.
NCTD is not similar to other UTs, as by virtue of Article 239-AA it is accorded a sui generis status, setting it apart from other UTs
The legislative assembly of NCTD have competence over entries in List 2 and List 3 except over expressly excluded entries of List 2. In addition to entries in List 1 Parliament has legislative competence over all matters in List 2 and List 3 in relation to NCTD, including entries which have been kept out of the legislative domain of NCTD by virtue of Article 239-AA.
The Union has executive power only over the three entries in List 2, over which NCTD does not have legislative competence.
The executive power of NCTD will respect to entries in List 2 and List 3 shall be subject to the executive power on the Union conferred by the Constitution or law by the Parliament.
The phrase “insofar in any such matters applicable to UT ” in Article 239-AA (3)(a) cannot be read to further exclude the legislative power of NCTD over entries in State List and Concurrent List except which are expressly excluded.
NCTD has legislative and executive power over “services” that is Entry 41 of List 2 , Schedule 7 because the definition of State under Section 3(58) of the General Clauses Act, 1897, applies to the term ‘State’ in Part XIV of the Constitution, thus Part XIV is applicable to UT. The exercise of Rule making power under proviso to Article 309, does not oust the legislative power of the appropriate authority to make laws over entry 41 of the State List.
The issue in this case was, who would have control over the services in the NCTD: The government of the NCTD or the Lieutenant Governor (‘LG’) acting on behalf of the Union Government.
In this case, the Court dealt with the issue of asymmetric federal model of governance in India involving the contest of power between a Union territory and the Union Government
The Court said that this question arose subsequent to a notification in May, issued by the Union Ministry of Home Affairs. The limited issue only relates to the scope of the legislative and executive powers of the Centre and NCTD with respect to the term “services”, that is to say whether the NCTD or the Union Government has legislative or executive control over “services”.
While referring to the decision of Constitution Bench of 2018 , the Court said that it is unable to agree with the view of Justice Bhushan in 2019 split verdict , which has rendered a broad interpretation of Article 239- AA (3)(a) to provide NCTD with vast executive and co-extensive legislative powers, except in some subjects.
Further, the Court said that a combined reading of the majority opinion and the concurring opinions indicates that the phrase in so far as any such matters applicable to UT does not restrict the legislative powers of NCTD. While 2018 Constitution Bench Judgment provided sufficient clarity on the interpretations of the phrase, the Court find it necessary to deal with the arguments made by Union of India , that the phrase must be read in a restrictive manner to limit the legislative power of NCTD on certain subjects, in addition to already excluded subjects in List 2.
The Court said that Article 239-AA (3)(a) confers legislative powers to NCTD; however, it does not confer legislative powers to NCTD over all entries in List 2. Article 239-AA provides multiple safeguards to ensure that the interest of the UOI is preserved. Sub Clause a of Clause 3 removes three entries in List 2 from legislative domain of NCTD. It provides NCTD has no power to enact law on the matter with respect to entries 1,2, and 18 of the State List and entries 64,65 and 66 of the List insofar it relates to the entries 1, 2 and 18.
Further, the Court said that Sub-clause (b) of Clause 3 clarifies that Parliament has power to legislate on any matter for UT including on subjects with respect to which NCTD has legislative power under Article 239 AA (3)(a). Thus, Parliament has plenary power to legislate on subject in any of the three list of Schedule 7 for NCTD.
The Bench stated that where there is a repugnancy between a law enacted by the legislative assembly of NCTD and law enacted by Parliament, the latter will prevail. The law enacted by legislative assembly shall to the extent of the repugnancy be void. Unlike Article 254, which provides for the overriding power of parliament only on subjects in the concurrent list, the parliament has overriding power in relation to NCTD in both List 2 and List 3.
The Court noted that Second proviso to Article 239-AA (3)(c) provides that the parliament may enact at any time, any law with respect to the same matter by including a law adding to, amending, varying, or repealing a law so made by the legislative assembly. Under Article 239-AA (7a) Parliament may by law make provisions for giving effect to a supplementing the provisions in the foregoing clauses of Article 239-AA and to all matters incidental and consequential thereto.
The Bench said that the article stipulates that such law shall not be deemed to be an amendment to the Constitution for the purpose of Article 368 that deals with the power and procedure to amend the Constitution. Thus, Article 339-AA (3) (a) balances the interest of NCTD and the UOI. Article 239-AA expressly excludes entries 1,2,18 of List 2 from the legislative competence of the legislative assembly. It also stipulates that legislative power of NCTD is excluded entries 64,65,66 of List 2 insofar it is related to entries 1(public order),2 (police),18 (land).
Thus, the exclusion of entries 64, 65, 66 to the extent that it relates to entries 1,2,18 from the legislative competence of NCTD indicates that the governance structure envisages Article 239-AA for NCTD was only to exclude specific entries from its legislative competence. To read the phrase insofar as such matter is applicable to the UTs, as introducing an implied exclusion of legislative powers of NCTD with respect to certain other entries will be contrary to the plain meaning of the provision Article 239-AA which establishes the legislative assembly for NCTD.
The Court remarked that the seats in the legislative assembly are filled by the direct election from the constituencies of NCTD. It embodies the constitutional principle of a representative democracy like the legislative assembly of State. The members of the legislative assembly of NCTD are selected by the electorate of Delhi to represent their interests. Thus, Art 239-AA must be interpreted to further the principle of representative democracy to interpret the phrase “insofar to any such matters applicable to UTs” in a restrictive manner would limit the legislative power of the elected member of the assembly. Thus, the legislative competence of the NCTD must be interpreted to give full impetus to the will of the electorate.
The principles of democracy and federalism are essential features of our Constitution and form a part of our Basic Structure. Federalism in a multi-cultural, multi-ethnic, multi-religious and multi-linguistic country like India ensures the representation of diverse interest. It is a means to reconcile the desire of commonality, along with the desire to autonomy and accommodate diverse needs in the pluralistic society. Recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy, therefore in any Federal Constitution there is a dual polity, there is two sets of government that operate, one at the level of national Government, and the second at the level of the regional federal units. These two sets of Government elected by the people of India in two separate electoral processes is a dual manifestation of the public will. The priorities of these two sets of government which manifest in a federal system are not just bound to be different, but are intended to be different.
The Court said that while NCTD is not a full-fledged State, its legislative assembly is constitutionally entrusting with the power to legislate upon the subjects in the State and Concurrent List. NCTD is not a State under the first schedule to the Constitution, yet it is conferred with the power to legislate on subjects in List 2 and 3 to give effect to the aspirations of the people of NCTD. It has a democratically elected Government accountable to the people of NCTD. Under the Constitutional scheme, NCTD was given legislative power, which is limited but, in many aspects, similar to State. Thus, with addition to Article 239-AA, the constitution created a federal model, with the Union of India at the centre and NCTD at the regional level, this is the asymmetric federal model adopted for NCTD .While NCTD remains a UT, the unique constitutional stage conferred upon it , makes it a federal entity for the purpose of understanding the relationships between the Union and the NCTD.
After a combined reading of Article 73 and 162, the Court said that the Union has exclusive executive powers in entries under List 1, State has exclusive powers in entries under List 2, and under List 3, the Union shall have executive power only if provided by the Constitution or by the law of parliament. The State have executive power over the entries in List 3, however, a Central legislation or Constitution provision confers executive power to the Union with respect to List 3 subject, then the executive power of the State will be subject to such law or provisions.
The Bench said that the executive power of the Union and State over matters on which both can legislate, that is the concurrent list, is limited to ensure that the governance of States is not taken over by the Union. This will completely abrogate the federal system of governance and the principle of representative democracy. It is with this object in mind that the members of the Constituent Assembly thought it fit to limit the executive powers of the Union and State over matters, on which state legislature also has legislative competence. The principle in Articles 73 and 162 would equally apply to the scope of executive power over matters which are within the legislative competence of both the Union and the Government of NCTD. This is because the objective of the provision is to limit the executive power of the Union in the territorial limits where there is an elected Government of the federal unit. Both the Parliament and legislature of NCTD have legislative competence over List 2 and List 3; for the purposes of NCTD List 2 and List 3 are concurrent lists. Thus, the delimitation of executive powers between Parliament and Government of NCTD with respect to entries in List 2 and List 3 are guided by these principles.
Thus, both Parliament and legislature of NCTD have power to enact laws with respect to List 2 subject to the caveat that entries 1,2,18 and entries 64, 65,66 insofar it relates to entries 1,2,18 are carved out to the domain of the legislative assembly of NCTD and List 3.
The Bench said that the executive powers of NCTD shall extend to all entries of List 2 and List 3 other than expressly excluded entries in Article 239-AA. Such power shall be subject to executive power of the Union through the LG, only when Union has been granted such power by Constitution or law of Parliament. Therefore, the executive power of the NCTD, in absence of the law of parliament, shall extend to all subjects to which it has power to legislate.
Further, the Court said that the Government of NCTD ought to have control over services subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, then the ministers and executives who are charged with formulating policies in the territory of NCTD will be excluded from controlling the civil servants’ who implement such executive decisions.
The legislative and executive power of NCTD over entry 41 shall not extend over to service related to public order, police and land, however executive and legislative power over services such as Indian Administrative Services which are relevant for the implementation of policies and the vision of NCTD in terms of day-to-day administration of the region shall lie with the region.
The Court reiterated that considering Article 239-AA and the 2018 Constitution Bench Judgment, the LG is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD.
Thus, it was held that the Government of NCTD have legislative power over services (excluding power with respect to public order, police and land) under entry 41 List 2, the LG shall be bound by the decisions of Government of NCTD on services.
[Government of NCT of Delhi v. Union of India, 2023 SCC OnLine SC 606, decided on 11-05-2023]
*Judgment read by: Justice Dr. DY Chandrachud