Delhi Govt v. LG- Constitutionally Entrenched & Democratically Elected Government Needs To Have Control Over Its Administration: SC

While dealing with the asymmetric federal model of governance in India, involving the contest of power between a Union Territory and the Union Government, and after considering Article 239AA of the Constitution and the 2018 Constitution Bench judgment [(2018) 8 SCC 501], the Supreme Court held that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of National Capital Territory of Delhi (NCTD) in relation to matters within the legislative scope of NCTD.

While holding that NCTD has legislative power over “services” (excluding ‘public order’, ‘police’, and ‘land’) under Entry 41 in List II, the Constitution Bench of Chief Justice Dr. D.Y Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha clarified that "any reference to Lieutenant Governor over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of Government of NCTD (GNCTD)".

Advocates Chirag M. Shroff & Shadan Farasat appeared for the Appellant, Whereas Solicitor General Tushar Mehta and Advocate Arvind Kumar Sharma appeared for the Respondent.

The background of the case is that after a Notification dated May 21, 2015 issued by the Union Ministry of Home Affairs, which stated 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”, and the Lieutenant Governor may seek the views of the Chief Minister of NCTD at his “discretion”, and which 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, a dispute arose as to who out of the Government of NCTD or the Lieutenant Governor acting on behalf of the Union Government, would have control over the “services” in the National Capital Territory of Delhi, even though 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.

This Notification when challenged before the Delhi High Court, the validity of the same was upheld and it was declared that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi. The High Court therein also held that the matter involved a substantial question of law about the interpretation of Article 239AA, which deals with “Special provisions with respect to Delhi”, and hence reference on the issue of interpretation of Article 239AA was made to the Constitution Bench.

After considering the arguments and the 2018 Constitution Bench decision, the Apex Court observed that even though NCTD has legislative and executive power with respect to “services” under Entry 41, the legislative and executive power of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and “land”.

However, “the 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”, added the Court.

The Apex Court therefore, concluded that there does not exist a homogeneous class of Union Territories with similar governance structures and NCTD is not similar to other Union Territories.

By virtue of Article 239AA, the Apex Court clarified that NCTD is accorded a “sui generis” status, setting it apart from other Union Territories, and therefore, the Legislative Assembly of NCTD has competence over entries in List II and List III except for the expressly excluded entries of List II.

Further, the Apex Court highlighted that 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 239AA(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”, added the Court.

With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), the Apex Court made it clear that the legislative power of NCTD is to be guided, and not just limited, by the broader principles and provisions of the Constitution.

Therefore, the Apex Court concluded that NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because: (a) 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, and thus, Part XIV is applicable to Union territories; & (b) 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.

Cause title: Government of NCT of Delhi vs. Union of India

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