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2022 Supreme(SC) 416
SUPREME COURT OF INDIA
N.V. RAMANA, CJI., SURYA KANT, HIMA KOHLI, JJ.
Govt. of NCT of Delhi – Appellant
Versus
Union of India – Respondent
CIVIL APPEAL No. 2357 of 2017 WITH WRIT PETITION (CIVIL) NO. 887 of 2021
Decided On : 06-05-2022
For the Appellant(s) :A.M. Singhvi, Rahul Mehra, Chirag M. Shroff, Amandeep Mehta, Shadan Farasat, Prateek Chadha, Bharat Gupta, Shourya Das Gupta, Tanvi Tuhina, Aman Naqvi, Amandeep Mehta, Advocates
For the Respondent(s):Arvind Kumar Sharma, K. R. Sasiprabhu, Advocates
IMPORTANT POINT
Constitutional bulwark for exercise of legislative powers by Legislative Assembly of Union Territory of Delhi and Parliament in respect of National Capital Territory of Delhi has to be authoritatively settled by a Constitution Bench of Supreme Court.
Headnote:
Constitution of India – Article 239AA(3)(a) – Constitutional bulwark for exercise of legislative powers by Legislative Assembly of Union Territory of Delhi and Parliament in respect of National Capital Territory of Delhi – Ongoing controversy relating to scope of legislative competence of Govt of NCT of Delhi in relation to subject matter of “services” cannot be authoritatively settled without reference to a Constitution Bench, as envisaged under Article 145(3) of Constitution – Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of Constitution, did not find any occasion to specifically interpret impact of wordings of same with respect to Entry 41 in State List – Question referred for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of Constitution. (Paras 5, 9 and 10)
Facts of the case:
Limited issue that has been referred to this Bench, relates to scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services”. The Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List.
Findings of Court:
Registry is directed to place the papers of the present appeal as well as connected writ petition before Hon’ble the Chief Justice of India on administrative side for constituting a Bench of five Judges.
Result : Matter referred to Larger Bench
JUDGMENT
1. In this third round of the lis between the present parties, at this juncture it is not imperative to delve deep into the history of the controversy. It suffices to succinctly set out the context of the current dispute before this Three-Judge Bench.
2. The first round of proceedings culminated into a reference dated 15.02.2017 to a Constitution Bench via order dated 15.02.2017, to decide the issues regarding the interpretation of Article 239AA of the Constitution. Article 239AA provides the constitutional bulwark for the exercise of legislative powers by the Legislative Assembly of the Union Territory of Delhi and the Parliament in respect of the National Capital Territory of Delhi. It governs the relationship between these two legislative bodies to enact laws in relation to corresponding subjects as well as the power of the Parliament to annul the laws made by the Union Territory through the doctrine of repugnancy. The relevant extract of Article 239AA of the Constitution reads as follows:
239AA. Special provisions with respect to Delhi.
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(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 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.
(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting 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.
xx xx xx xx
(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.
xx xx xx xx (emphasis supplied)
3. The Constitution Bench delivered three separate concurring opinions on the interpretation of Article 239AA of the Constitution in its final verdict dated 04.07.2018. The matter was thereafter placed before a two-Judge Bench of this Court to decide the remaining issues in light of the principles enunciated by the Constitution Bench.
4. In the second round of the proceedings, the two-Judge Bench vide its decision dated 14.02.2019, resolved all issues except for one, which was with regard to the legislative competence of the Govt. of NCT of Delhi in relation to the subject matter of ‘services’ as contained in Entry 41 of List II of the Seventh Schedule of the Constitution. Both the learned judges held divergent viewpoints on this issue, primarily hinged on the interpretation accorded b
