1. Dispute over legislative and executive control of services in a Union Territory under Article 239AA and Entry 41 of the State List, following a notification excluding services from the Territory's powers. (Para 1 , 2 , 3 , 96 )
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2023 Supreme(SC) 501
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., M.R. SHAH, KRISHNA MURARI, HIMA KOHLI, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Government of NCT of Delhi – Appellant
Versus
Union of India – Respondent
Civil Appeal No 2357 of 2017
Decided on : 11-05-2023
Important Points
IMPORTANT POINTS
(1) Division of administrative powers between Union and NCTD – 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 – There does not exist a homogeneous class of Union Territories with similar governance structures.
(2) Legislative Assembly of NCTD has competence over entries in List II and List III except for expressly excluded entries of List II. In addition to Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including entries which have been kept out of legislative domain of NCTD by virtue of Article 239AA(3)(a).
(3) Executive power of NCTD is co-extensive with its legislative power – It shall extend to all matters with respect to which it has power to legislate.
(4) Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence.
(5) Executive power of NCTD with respect to entries in List II and List III shall be subject to executive power expressly conferred upon Union by Constitution or by a law enacted by Parliament.
(6) Phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude legislative power of NCTD over entries in State List or Concurrent List, over and above those subjects which have been expressly excluded;
(7) With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), legislative power of NCTD is to be guided and not just limited, by broader principles and provisions of Constitution.
(8) NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because:
(9) 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.
(10) Exercise of rule-making power under proviso to Article 309 does not oust legislative power of appropriate authority to make laws over Entry 41 of State List.
(1) Division of administrative powers between Union and NCTD – 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 – There does not exist a homogeneous class of Union Territories with similar governance structures.
(2) Legislative Assembly of NCTD has competence over entries in List II and List III except for expressly excluded entries of List II. In addition to Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including entries which have been kept out of legislative domain of NCTD by virtue of Article 239AA(3)(a).
(3) Executive power of NCTD is co-extensive with its legislative power – It shall extend to all matters with respect to which it has power to legislate.
(4) Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence.
(5) Executive power of NCTD with respect to entries in List II and List III shall be subject to executive power expressly conferred upon Union by Constitution or by a law enacted by Parliament.
(6) Phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude legislative power of NCTD over entries in State List or Concurrent List, over and above those subjects which have been expressly excluded;
(7) With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), legislative power of NCTD is to be guided and not just limited, by broader principles and provisions of Constitution.
(8) NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because:
(9) 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.
(10) Exercise of rule-making power under proviso to Article 309 does not oust legislative power of appropriate authority to make laws over Entry 41 of State List.
Subject
Constitutional Law - Federalism
Act Referred
CONSTITUTION OF INDIA: Art.309, Art.239(aa)(3), Art.239(aa), Art.324, Art.325, Art.326, Art.327, Art.329, Art.368, Art.239(b), Art.239(a)(1), Art.239(ab), Art.239(aa)(3)(a), Art.145(3), Art.239(aa)(4), Art.371, Art.239(aa)(7)(a), Art.239(aa)(7)(b), Art.246(a), Art.268, Art.269, Art.269(a), Art.279(a), Art.372(3)(a), Art.372(2), Art.73(1), Art.367(1), Art.372(2)(a), Art.243(w), Art.162
GENERAL CLAUSES ACT: S.3
GOVERNMENT OF INDIA ACT: S.93, S.241
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT: S.7, S.44
GUJARAT PANCHAYATS ACT: S.203
INDIAN ADMINISTRATIVE SERVICE CADRE RULES: R.3(1), R.2©
MINES AND MINERALS REGULATION AND DEVELOPMENT ACT: S.2
GENERAL CLAUSES ACT: S.3
GOVERNMENT OF INDIA ACT: S.93, S.241
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ACT: S.7, S.44
GUJARAT PANCHAYATS ACT: S.203
INDIAN ADMINISTRATIVE SERVICE CADRE RULES: R.3(1), R.2©
MINES AND MINERALS REGULATION AND DEVELOPMENT ACT: S.2
Headnote
(A) Constitution of India - Articles 239 and 239AA - Union Territories - The case addresses the contest of power between the Union Territory of Delhi and the Union Government regarding control over services and its legislative framework. The Supreme Court clarified that the National Capital Territory of Delhi (NCTD) is a sui generis entity, distinct from other Union Territories. It held that while NCTD has legislative competence over services as defined under Entry 41 of the State List, it must operate within the constitutional confines established by Articles 239AA(3)(a) which restricts legislative power over public order, police, and land. The legislative assembly's power extends to subjects in the State List except for express exclusions and operates in a federal structure alongside the Union's legislative authority. The judgments affirm that the execution of 'services' is under the purview of NCTD, although the Union retains legislative power over certain domains. (Paras 1-165)
(B) Federalism and Governance - Legislative Assembly Powers - The Constitution mandates a legislative assembly for NCTD, established by Article 239AA, entailing unique parameters that differentiate it from other Union Territories, confirming NCTD's legislative powers within its defined jurisdiction. Findings indicate that the governance structure must balance the local governance needs against the overarching interests of national governance. (Paras 1-165)
(C) Powers and Regulations of Services - Services, as encompassed within the legislative jurisdiction of NCTD, must adhere to the principles laid out by federalism, ensuring a balance of autonomy and accountability in governance. The 2018 Constitution Bench judgment reinforces the necessity of a cooperative federal framework where NCTD’s government must exercise its powers effectively while aligning with constitutional provisions. (Paras 1-165)
(B) Federalism and Governance - Legislative Assembly Powers - The Constitution mandates a legislative assembly for NCTD, established by Article 239AA, entailing unique parameters that differentiate it from other Union Territories, confirming NCTD's legislative powers within its defined jurisdiction. Findings indicate that the governance structure must balance the local governance needs against the overarching interests of national governance. (Paras 1-165)
(C) Powers and Regulations of Services - Services, as encompassed within the legislative jurisdiction of NCTD, must adhere to the principles laid out by federalism, ensuring a balance of autonomy and accountability in governance. The 2018 Constitution Bench judgment reinforces the necessity of a cooperative federal framework where NCTD’s government must exercise its powers effectively while aligning with constitutional provisions. (Paras 1-165)
Legal Category Hierarchy
-
constitutional law
- federalism
- division of powers
- constitutional interpretation
- democratic principles
-
administrative law
- governance of union territories
- civil service law
Advocates appeared:
For the Appellant(s) : Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Chirag M. Shroff, AOR Mr. Shadan Farasat, Adv. Mr. Rahul Mehra, Sr. Adv. Mr. Shourya Dasgupta, Adv. Ms. Hrishika Jain, Adv. Mr. Aman Naqvi, Adv. Mr. Mreganka Kukreja, Adv.
For the Respondent(s): Mr. Tushar Mehta, Solicitor General Mr. Sanjay Jain, A.S.G. Mr. R Bala, Sr. Adv. Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Saurabh Mishra, Adv. Mr. Rajesh Kumar Singh, Adv. Mr. Padmesh Mishra, Adv. Mr. Arkaj Kumar, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Gagan Gupta, AOR Mr. K.R. Sasiprabhu, AOR
For the Appellant(s) : Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Chirag M. Shroff, AOR Mr. Shadan Farasat, Adv. Mr. Rahul Mehra, Sr. Adv. Mr. Shourya Dasgupta, Adv. Ms. Hrishika Jain, Adv. Mr. Aman Naqvi, Adv. Mr. Mreganka Kukreja, Adv.
For the Respondent(s): Mr. Tushar Mehta, Solicitor General Mr. Sanjay Jain, A.S.G. Mr. R Bala, Sr. Adv. Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Saurabh Mishra, Adv. Mr. Rajesh Kumar Singh, Adv. Mr. Padmesh Mishra, Adv. Mr. Arkaj Kumar, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Gagan Gupta, AOR Mr. K.R. Sasiprabhu, AOR
Table of Contents
2. Whether the phrase 'in so far as any such matter is applicable to Union Territories' restricts NCTD's legislative power over services, and whether Part XIV applies to Union Territories. (Para 23 , 43 , 47 , 65 , 68 , 113 , 116 , 122 )
3. NCTD has legislative and executive power over services under Entry 41 of the State List, as it is not expressly excluded by Article 239AA(3)(a). (Para 96 , 164 , 165 )
4. Does the phrase 'in so far as any such matter is applicable to Union Territories' in Article 239AA(3)(a) restrict the legislative power of NCTD?
No. The phrase does not restrict NCTD's legislative power. It was used to facilitate automatic conferment of powers on NCTD over all matters including those relatable to the State List and Concurrent List, except excluded entries. (Para 24 , 25 , 26 , 28 , 30 , 64 )
5. Does NCTD have legislative power over 'services' under Entry 41 of the State List?
Yes. Entry 41 is not expressly excluded by Article 239AA(3)(a). NCTD has legislative power over all subjects in the State List and Concurrent List except the excluded entries (entries 1, 2, 18 and entries 64, 65, 66 insofar as they relate to entries 1, 2, 18). (Para 96 , 156 , 157 , 78 )
6. Is Part XIV of the Constitution applicable to Union Territories?
Yes. The definition of 'State' under Section 3(58) of the General Clauses Act, as amended, includes Union Territories. There is nothing in the subject or context of Part XIV to exclude its application to Union Territories. (Para 126 , 131 , 132 , 145 )
7. What is the extent of executive power of NCTD over services?
The executive power of GNCTD is co-extensive with its legislative power over services. The Lieutenant Governor is bound by the aid and advice of the Council of Ministers in matters within NCTD's legislative domain. (Para 85 , 86 , 95 )
8. Can the Balakrishnan Committee Report determine the scope of Article 239AA?
No. The report cannot be the sole basis for interpreting Article 239AA. The Court construed the text of Article 239AA contextually with reference to the constitutional structure envisaged for NCTD without relying on the Report. (Para 117 , 119 , 120 , 121 )
JUDGMENT :
Dhananjaya Y. Chandrachud, CJI.
| A. The Reference |
| B. Submissions |
| C. Interpretation of Article 239AA: The 2018 Constitution Bench judgment |
| (a) Delhi: A Sui Generis model |
| (b) Legislative and executive power of the Legislative Assembly of NCTD |
| (c) “Insofar as any such matter is applicable to Union Territories” |
| D. The ‘class’ of Union territories |
| E. Maintaining the balance of local interest and national interest |
| F. Inclusive interpretation of “insofar as any such matter is applicable to Union territories” |
| G. “Subject to the provisions”: A limitation? |
| H. The Constitution is not Unitary |
| I. Scope of Legislative and Executive Power between the Union and NCTD |
| J. Triple chain of accountability: Civil Servants in a Cabinet Form of Government |
| (A) Role of civil services in a modern government |
| (b) Accountability of civil servants in a Westminster parliamentary democracy |
| (c) Accountability of Civil Service Officers in a Federal Polity |
| K. Balakrishnan Committee Report |
| L. Applicability of Part XIV to Union Territories |
| (a) Meaning of “State” for the purpose of Part XIV of the Constitution |
| (b) Omission in Part XIV by the 1956 Constitution Amendment |
| (c) Existence of power and exercise of power M. Exercise of Legislative Power by NCTD on Entry 41 |
| N. “Services” and NCTD |
| O. Conclusion |
A. The Reference
1. This case before us deals with the asymmetric federal model of governance in India, involving the contest of power between a Union Territory and the Union Government. The issue is who would have control over the “services” in the National Capital Territory of Delhi1[“NCTD”]: the Government of NCTD2[“GNCTD”] or the Lieutenant Governor acting on behalf of the Union Government. The question arose subsequent to a notification3[“2015 notification”] dated 21 May 2015 issued by the Union Ministry of Home Affairs, which stated as follows:
“... in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that –
subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”
The notification provided that the Lieutenant Governor 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 Lieutenant Governor may seek the views of the Chief Minister of NCTD at his “discretion”.
2. “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 notification stipulates that the rationale for excluding “services” from the ambit of the legislative and executive power of NCTD is that NCTD does not have its own State public services:
“Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common servic
