Breaking| Delhi Govt Has Legislative And Executive Power Over 'Services', Constitution Bench Holds

The Supreme Court today allowed the Civil Appeal filed by the Government of N.C.T. of Delhi seeking control of services in the National Capital. The Court found that the scope of legislative and executive powers between the Centre and the Delhi government with respect to the terms of services lies with the Delhi government.

The Constitution Bench consisting of Chief Justice DY Chanrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha held, "NCTD has legislative and executive power over services, that is entry 41 of list 2 of the 7th schedule because the definition of the state under Section 358 of the Delhi Clauses Act, 1897 applies to the term state in part 14 of the Constitution. Thus part 14 is applicable to UTs 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 Court has asked the Registry to place the matter before the regular bench in the light of the answers given to the questions placed before the Constitution Bench.

The Judgement was pronounced by Chief Justice DY Chandrachud. He read some portions of the judgment.

The case before us deals with the asymmetric federal model of governance in India, involving the contest of power between a UT and the Union Government. The issue is who would have the control over services in the national capital territory of Delhi, the government of the NCTD or the Lieutenant Governor acting on behalf of the Union government. The question arose subsequent to a notification of 21.05.2015 issued by the Union Ministry of Home Affairs. The limited issue for the consideration of this Constitution Bench only relates to the scope of legislative and executive power of the centre and the NCTD with respect to the term "services". That is to say, whether the NCT or the Union Government has the legislative and executive control over services, the CJI read.

The Court said that it has dealt with the Constitution Bench's decision of 2018 and said that we are unable to agree with the view of Justice Ashok Bhushan in the 2019 split verdict. "As indicated previously, the majority decision in the 2018 judgment rendered a broad interpretation of Article 239AA (3a) to provide NCTD with vast executive and coextensive legislative powers except in the excluded subjects. A combined reading of the majority opinion indicates that the phrase in so far as any such matters applicable to UTs does not restrict the legislative powers of NCTD. While the 2018 Constitution Bench Judgement provides sufficient clarity on the interpretation of the phrase, in so far as any such matters applicable to UTs, we find it necessary to deal with the arguments made by the Union that the phrase must be read in a restricted manner to limit the legislative power of the NCTD on certain subjects in addition to excluded subjects in list two", the CJI pronounced.

The Court also read out thus: "Article 239AA (3a) confers legislative power to the NCTD. However, it does not confer legislative power to NCTD over all entries in list 2. Article 239AA (3a) provides multiple safeguards to ensure that the interest of the Union is preserved. Sub clause (a) of Clause 3 removes three entries in list two 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, 2 and 18 of the state list and entry 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 239AA (3a). In other words, the Parliament has the plenary power to legislative power to legislate on a subject in any of the three lists of the 7th schedule for the NCTD. It provides that where there is a repugnance between a law enacted by the legislative assembly and the law enacted by Parliament, the latter will prevail. The law enacted by the legislative assembly shall to the extent of the repugnancy be void. Unlike Article 254, which provides for the overriding power of the Parliament only on subjects in the concurrent list, Parliament has overriding power in relation to the NCTD over subjects in both list 2 and list 3. The second proviso to Article 239AA (c) provides that the Parliament may enact anytime any law with respect to the same matter by including a law adding to, amending, varying or repealing the law so made by the legislative assembly. Under 239 AA (7a), Parliament may by law make provisions for giving effect to a supplementing provision in the forgoing clauses in 239AA and for all matters incidental and consequential thereto. The Article stipulates that such law shall be deemed to be an amendment to the constitution for the purposes of Article 368 which deals with the power and procedure to amend the constitution. Thus Article 239AA (3a) balances the interest of NCTD and the Union of India".

"A combined reading of Articles 73 and 162 of the Constitution indicates that the union has exclusive executive power over entries in list one. The states have exclusive executive power over entries of list 2. With respect to list 3 that is the concurrent list, the Union shall have executive power only if provided by the constitution or by a law of the parliament. The state shall have executive power over the entries in list 3. However, if a central legislation or the constitution confers executive power to the union with respect to a list 3 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 can legislate, there is a concurrent is limited to ensure that the governance of the state 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 matter in which the 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 GNCTD. This is because of 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 a federal unit. Both Parliament and the legislature of NCTD have legislative competence over list 2 and 3. For the purposes of NCTD, both the list 2 and list 3 are concurrent list. Thus delimitation of the executive power between the Parliament and the NCTD with respect to entries in list 2 and 3 are guided by these principles. Both Parliament and legislature of the NCTD have th power to enact laws with respect to list 2, subject to the caveat that entries 1, 2 and 18 and entries 64, 65 and 66 in as much as they relate to entries 1, 2 and 18 are carved out of the domain of the legislative assembly of GNCTD and list 3", the CJI read.

Chief Justice Chandrachud also read out from the Judgment thus: "The executive power of NCTD is coextensive with the legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Union of India has executive power only over the three entries in list 3 over which NCTD does not have legislative competence. The executive power of NCTD with respect to entries in list 2 and list 3 shall be subject to the executive power expressly conferred upon the union by the Constitution or by a law enacted by Parliament. The phrase, 'any such matter' applicable to union territories in Article 239AA (3) cannot be read to further exclude the legislative power of NCTD over entries in the state list or the concurrent list over and above those subjects which have been expressly excluded".

Background

The plea by the Delhi government arises out of a split verdict of February 14, 2019, in which, a two judge-bench of Justices A K Sikri and Bhushan, both retired since, had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital in view of its split verdict. Justice Bhushan had ruled the Delhi government had no power at all over administrative services. Justice Sikri, however, made a distinction.

On May 6, 2022, the issue was referred to a five-judge Constitution bench by the three-judge Bench comprising of the then Chief Justice N V Ramana, Justice Surya Kant and Justice Hima Kohli. The Bench, however, said that all other issues, except the issue of control over services, had been elaborately dealt with by the previous Constitution bench in 2018 and they will not be revisited.

The Supreme Court had on January 18, 2023, reserved its verdict on the Centre-Delhi government row over control of services in the national capital. The Constitution Bench heard Solicitor General Tushar Mehta and Senior Advocate A M Singhvi for the Central and the Delhi government respectively for almost four-and-half days before reserving the judgment.

The Constitution bench that heard the matter was a "green bench", as announced by the CJI, and no papers were used in the proceedings.

The issue for consideration before the Constitution Bench was the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term services. Sub Article 3 (a) of 239AA which deals with the status and power of Delhi in the Constitution, deals with the law-making power of the Delhi Legislative Assembly on the matters enumerated in the State List or the Concurrent List.

The Court was to decide that transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can be done by whom and whether the view of the lieutenant governor would prevail in case of a difference of opinion on matters relating to other bureaucrats.

The Solicitor General had argued that the said model of governance of the NCT of Delhi would invariably require the Union government to play a central role, even if a legislative assembly or council of ministers is introduced. Senior Advocate AM Singhvi had argued that the civil servants serving in the NCT were accountable through the government to the people of Delhi who had elected the Delhi government.

Cause Title: Govt. Of Nct Of Delhi v. Union Of India [C.A. No. 2357/2017]