Supreme Court: In the matter dealing with the asymmetric federal model of governance in India, involving the contest of power between a Union Territory and the Union Government, 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 Territories with similar governance structures.
• NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union Territories.
• The Legislative Assembly of NCTD has competence over entries in List II and List III except for the expressly excluded entries of List II. In addition to the Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a).
• The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate.
• The Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence.
• The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament
• The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239-AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded
• With reference to the phrase “Subject to the provisions of this Constitution” in Article 239-AA(3), the legislative power of NCTD is to be guided, and not just limited, by the broader principles and provisions of the Constitution;
• NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule 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 Union territories; and the exercise of rule-making power under the 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 question arose after a notification dated 21-05-2015 issued by the Union Ministry of Home Affairs, that provided that the Lieutenant Governor (‘LG’) of NCTD shall exercise control “to the extent delegated to him from time to time by the President” over “services”, in addition to “public order”, “police”, and “land.” The LG may seek the views of the Chief Minister of NCTD at his “discretion”.
The term “Services” are covered under Entry 41 of the State List of the Seventh Schedule to the Constitution. The 2015 notification excludes Entry 41 of the State List, which has as its subject, “State Public Services; State Public Services Commission”, from the scope of powers of GNCTD.
The Delhi High Court declared that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi.”1 On appeal, two-Judge Bench of Supreme Court opined that the matter involved a substantial question of law about the interpretation of Article 239-AA, which deals with “Special provisions with respect to Delhi”, and hence referred the issue of interpretation of Article 239-AA to a Constitution Bench.
In 2018 Constitution Bench judgment, (2018) 8 SCC 501, it was held that NCTD is not similar to other Union Territories and the constituent power of Parliament was exercised to treat the Government of NCT of Delhi as a representative form of Government. It was held that the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Thus, the legislative and executive power of NCTD extends to all subjects in Lists II and III, except those explicitly excluded. However, in view of Article 239-AA(3)(b), Parliament has the power to make laws with respect to all subjects in List II and III for NCTD. Further, it was held that the phrase “insofar as any such matter is applicable to Union Territories” is an inclusive term, and “not one of exclusion”. and cannot be used to restrict the legislative power of the Legislative Assembly of Delhi.
Upon deciding the interpretation of Article 239-AA, the appeals were directed to be listed before a regular Bench to decide the specific issues. In 2019, a two-Judge Bench of A.K. Sikri and Ashok Bhushan, JJ. delivered two separate judgments. The judges differed on whether “services” are excluded in view of Article 239-AA(3)(a) from the legislative and executive domain of GNCTD.
In 2019 split verdict, Justice Ashok Bhushan held that the majority opinion in the 2018 Constitution bench judgment did not interpret the phrase “insofar as any such matter is applicable to Union Territories”
Who would have control over the “services” in the National Capital Territory of Delhi-The Government of NCTD (‘GNCTD’) or the Lieutenant Governor acting on behalf of the Union Government?
The Bench while disagreeing with the view of Justice Bhushan in the 2019 split verdict, said that the 2018 Constitution Bench judgment rendered a broad interpretation of Article 239-AA(3)(a) to provide NCTD with vast executive and co-extensive legislative powers except in the excluded subjects. A combined reading of the majority opinion and the concurring opinions of Justice Chandrachud and Justice Bhushan indicates that the phrase “in so far as any such matter is applicable to Union Territories” does not restrict the legislative powers of NCT.
The Court also disagreed with the argument of the Solicitor General that the legislative power of NCTD does not extend to those subjects which are not available to Union Territories as a class because Article 239-AA employs the term “any such matter is applicable to Union Territories”. Thus, it was held that there is no homogeneous class of Union territories with similar governance structure.
The Court said that Article 239-AA(3)(a) confers legislative power to NCTD. However, it does not confer legislative power to NCTD over all entries in List II. Article 239-AA (3) provides multiple safeguards to ensure that the interest of the Union is preserved. Such as:
• Sub-clause (a) of clause (3) removes three entries in List II from the legislative domain of NCTD. It provides that NCTD shall not have the power to enact laws on matters with respect to entries 1(Public order), 2(Police) and 18(Land) of the State List and entries 64, 65 and 66 of that List in so far as they relate to the said entries 1, 2 and 18.
• Sub-clause (b) of clause (3) clarifies that Parliament has the power to legislate on “any matter” for a UT including on subjects with respect to which NCTD has legislative power under Article 239-AA(3)(a).
• Article 239-AA(3)(c) provides that where there is a repugnancy between a law enacted by the Legislative Assembly of NCTD and a law enacted by Parliament, the latter will prevail, and the law enacted by the legislative assembly shall, “to the extent of the repugnancy, be void”.
• The second proviso to Article 239-AA(c) provides that Parliament may enact “at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly” of NCTD.
• Under Article 239-AA(7)(a), Parliament may by law make provisions for giving effect to or supplementing the provisions in the forgoing clauses of Article 239AA and for “all matters incidental or consequential thereto”.
Thus, Article 239-AA(3) balances between the interest of NCTD and the Union of India.
The Bench said that it is evident that the Legislative Assembly of NCTD does not exercise exclusive legislative powers over all the entries in the State List. It is only in a demarcated constitutional sphere that it is able to exercise its legislative power. The Constitution confers powers to Parliament to such an extent that it would have the effect of amending the Constitution. Further, the legislative powers of NCTD are limited. If the phrase “in so far as any such matter is applicable to Union Territories” is interpreted in a manner to exclude a greater number of entries than what is already excluded by Article 239A(3), it will defeat the very purpose of granting a “special status” to NCTD.
The Court also said that Article 239AA establishes a Legislative Assembly for NCTD. The seats in the Assembly are filled by a direct election from the constituencies of NCTD. The Legislative Assembly of NCTD embodies the constitutional principle of representative democracy similar to the Legislative Assembly of the State. The members of the Legislative Assembly of NCTD are selected by the electorate of Delhi to represent their interests.
Thus, the Court held that the phrase “insofar as any such matter is applicable to Union Territories” in Article 239-AA (3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded by the provision.
Further, on the argument by Union of India, that Article 239AA not only restricts the powers of the Legislative Assembly of NCTD through the phrase “insofar as any such matter is applicable to Union Territories” but also through the restrictive phrase of “Subject to the provisions of this Constitution” the Bench said that the phrase “Subject to the provisions of this Constitution” is not unique to Article 239-AA. It has been used in twenty-two provisions of the Constitution.
Thus, the legislative power of NCTD under Article 239-AA(3) is to be guided by the broader principles and provisions of the Constitution. The said phrase in Article 239-AA(3) must be interpreted to give effect to the underlying principles in the Constitution.
On the Union’s submission that as far as UTs are concerned, the Constitution is unitary in form and in spirit, the Court after referring to the discussions of the Constituent Assembly and its judgments, said that the Constitution provides States with power to function independently within the area transcribed by the Constitution. The Union and the States were meant to operate within their assigned legislative domains. The States are not subservient to the Union. The legislative domain of the States was exclusive, and cannot be interfered with by the Union
The Bench further stated that, while NCTD is not a full-fledged state, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List. It has a democratically elected government which is accountable to the people of NCTD. Under the constitutional scheme envisaged in Article 239-AA(3), NCTD was given legislative power which though limited, in many aspects is similar to States. In that sense, with addition of Article 239-AA, the Constitution created a federal model with the Union of India at the centre, and the NCTD at the regional level. This is the asymmetric federal model adopted for NCTD.
After a combined reading of Articles 239-AA, 73 and 162, the Court said that 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. This would completely abrogate the federal system of governance and the principle of representative democracy. It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence.
Thus, 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 GNCTD. This is because the objective of the provisions is to limit the executive power of the Union in the territorial limits where there is an elected government of a federal unit.
The Court, thus, said that both Parliament and the Legislature of NCTD have legislative competence over List II and List III. For the purposes of NCTD, both List II and List III are “concurrent lists”The Bench further said that the LG may act in his discretion only in two classes of matters:
Firstly, where the matter deals with issues which are beyond the powers of the Legislative Assembly and where the President has delegated the powers and functions to the Lieutenant Governor in relation to such matter.
Secondly, matters which by law require him to act at his discretion or where he is exercising judicial or quasi-judicial functions.
Further, after referring to the Section 44 of the Government of NCTD Act, 1991 and Rule 45 of the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the Bench said that the LG may exercise his executive function in relation to matters outside the legislative purview of NCTD only “to the extent delegated to him by the President”. Further, in the discharge of executive functions within the domain of NCTD, the LG must abide by the “aid and advice” of the Council of Ministers
Thus, it was held that under Article 239-AA(3)(a), the legislative power of NCTD extends to all subjects under the State List and the Concurrent List, except the excluded entries.
Moreover, on the argument of the Union, that NCTD does not have legislative competence over Entry 41 of List II because Part XIV of the Constitution does not contemplate any “services” for Union Territories, the Court said that there is nothing in the subject or context of Part XIV of the Constitution which would exclude its application to UTs. Rather, the application of the inclusive definition of “State” as provided under Section 3(58) of the General Clauses Act would render the constitutional scheme envisaged for UTs workable. Thus, it was held that Part XIV is applicable to Union territories as well.
Further, the Bench while examining the exercise of Legislative Power by NCTD on Entry 41, said that to determine whether the power to enact a legislation is traceable to Entry 41 of the State List, it is necessary to examine whether that legislation contains provisions regulating the recruitment, conditions of service, and exercise of control including power to transfer, and suspend. Thus, held that NCTD has legislative and executive power with respect to “services” under Entry 41.
The Bench while providing a distinction between “services” to be controlled by NCTD and the Union in relation to NCTD, said that Entry 41 in relation to NCTD cannot be read in the widest possible sense because all entries in List II (including Entry 41) need to be harmonized with the limitation laid down in Article 239AA(3)(a) on NCTD’s legislative and executive power by excluding matters related to ‘public order’, ‘police’, and ‘land’. Thus, the legislative and executive power of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and “land”. However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD. Therefore, the Bench held that references to “State Government” in relevant Rules of All India Services or Joint Cadre Services, of which NCTD is a part or which are in relation to NCTD, shall mean the Government of NCTD.
The Court reiterated that considering Article 239AA 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. Further, any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean LG acting on behalf of GNCTD.
[Government of NCT of Delhi v. Union of India, 2023 SCC OnLine SC 606, decided on 11-05-2023]]
*Judgment Authored by: Justice Dr. DY Chandrachud