GOVERNMENT OF NCT OF DELHI vs UNION OF INDIA, 2023
Case Title and Citation: Government of NCT of Delhi vs. Union of India Civil Appeal No 2357 of 2017 (Decided on May 11, 2023).
Factual Background
The case deals with the contest of power over “services” in the National Capital Territory of Delhi (NCTD) between the Government of NCTD (GNCTD) and the Lieutenant Governor (LG) acting on behalf of the Union Government. The issue arose following a notification issued by the Union Ministry of Home Affairs on May 21, 2015, which directed the LG to exercise control over “services,” in addition to “public order,” “police,” and “land”. This notification excluded Entry 41 of the State List (State Public Services) from the legislative and executive power of GNCTD. The validity of this notification was upheld by the Delhi High Court. Following a previous 2018 Constitution Bench interpretation of Article 239AA, a two-Judge Bench split in 2019 on whether “services” were excluded from the domain of GNCTD. Consequently, a limited question regarding the scope of legislative and executive power over “services” was referred to the present Constitution Bench.
Issue(s)
The limited question referred for authoritative pronouncement was the scope of legislative and executive powers of the Centre and NCTD with respect to the term “Services” (Entry 41 in the State List).
Decision of the Supreme Court
The Supreme Court held that the National Capital Territory of Delhi (NCTD) Government has legislative and executive control over “Services” (Entry 41 of List II of the Seventh Schedule).
Reason for the Decision
- Exclusionary Principle and Legislative Competence: The Legislative Assembly of NCTD has the power to make laws over entries in the State List, except for the expressly excluded Entries 1 (Public Order), 2 (Police), and 18 (Land). Since “Services” (Entry 41) is not expressly excluded by Article 239AA(3)(a), legislative competence lies with NCTD.
- Co-extensive Executive Power: The executive power of NCTD is co-extensive with its legislative power. Because NCTD has legislative power over services, it also has the executive power to control them.
- Interpretation of Limiting Phrases:
- The phrase “insofar as any such matter is applicable to Union Territories” in Article 239AA(3) is an inclusionary/facilitative phrase intended to make List II entries (which use the term “State”) applicable to NCTD, and cannot be read to imply further exclusion of legislative power.
- The phrase “Subject to the provisions of this Constitution” in Article 239AA(3) requires the legislative power to operate within constitutional limits but does not act as an independent limitation excluding subjects like services.
- Federalism and Accountability: NCTD has a “sui generis” status and an asymmetric federal relationship with the Union. For the principles of representative democracy and collective responsibility to function, the elected government (GNCTD) must have control over the civil service officers (the permanent executive) responsible for implementing its policies.
- Applicability of Part XIV: Part XIV of the Constitution (“Services under the Union and the States”) is applicable to Union Territories because the definition of “State” under Section 3(58) of the General Clauses Act includes a Union Territory for purposes of interpretation. The mere existence of Presidential rule-making power under the proviso to Article 309 does not substitute or oust the legislative power of the appropriate authority over Entry 41.
Conclusion
The Government of NCTD has both the legislative and executive power over “Services” (Entry 41 of the State List), subject only to the constitutional exclusion of matters related to ‘public order’, ‘police’, and ‘land’. Consequently, the Lieutenant Governor shall be bound by the aid and advice of the Council of Ministers of NCTD on subjects relating to services that fall within the legislative scope of NCTD. This interpretation upholds the unique constitutional democratic mandate provided to GNCTD.
Case Materials:
Day 1 of Arguments: 10 January 2023 | (Video Recording)
Day 2 of Arguments: 11 January 2023 | (Video Recording)
Day 3 of Arguments: 12 January 2023 | (Video Recording)
Day 4 of Arguments: 17 January 2023 | (Video Recording)
Day 5 of Arguments: 18 January 2023 | (Video Recording)
