Case: Government of NCT of Delhi v. Union of India

2023 SCC OnLine SC 606

Bench: Justice D.Y. Chandrachud, Justice C.J., M.R. Shah, Justice Krishna Murari, Justice Hima Kohli, Justice P.S. Narasimha

Introduction:

The Constitution Bench of the Supreme Court in Government of NCT of Delhi v. Union of India addressed the contentious issue regarding the control of "services" in the National Capital Territory of Delhi (NCTD). This case delves into the interpretation of Article 239-AA of the Constitution of India, which outlines the special provisions for Delhi, exploring the balance of power between the Union Government and the Government of NCTD. The decision focused on whether the Government of NCTD or the Lieutenant Governor (LG), acting on behalf of the Union Government, had the authority over "services," particularly in relation to recruitment, conditions of service, and control over the administration of services.

Facts of the Case:

The issue arose after the Union Ministry of Home Affairs issued a notification on 21 May 2015, delegating control over "services," in addition to public order, police, and land, to the Lieutenant Governor (LG) of NCTD. The notification effectively excluded the control over "services" from the legislative and executive powers of the Government of NCTD (GNCTD). The Delhi High Court had earlier declared that "services" fall outside the scope of the Legislative Assembly of NCTD. The matter was referred to the Supreme Court, which heard arguments about whether the legislative and executive powers of NCTD extended to "services" under Entry 41 of List II of the Seventh Schedule to the Constitution.

Issues:

1. Who has control over "services" in the NCTD – the Government of NCTD (GNCTD) or the Lieutenant Governor (LG) acting on behalf of the Union Government?

2. What is the scope of legislative and executive powers of NCTD under Article 239-AA of the Constitution?

3. Whether the phrase "insofar as any such matter is applicable to Union Territories" under Article 239-AA(3) excludes the legislative powers of NCTD over certain entries in the State and Concurrent Lists.

4. Whether Part XIV of the Constitution, dealing with services, applies to Union Territories, including NCTD.

Observations:

• The Supreme Court observed that the NCTD (National Capital Territory of Delhi) is not comparable to other Union Territories and holds a distinct status under Article 239-AA of the Constitution. The provision grants NCTD a special, "sui generis" status, thereby distinguishing it from other Union Territories. The Court noted that this special status is a result of the unique constitutional position that Delhi occupies, having both a Legislative Assembly and a functioning executive, which are accountable to the electorate.

• It was observed that the legislative and executive powers of NCTD are co-extensive. This means that NCTD has the authority to legislate and exercise executive power over all matters listed in the State and Concurrent Lists, except those explicitly excluded by the Constitution.

• The Court clarified that the Union Government’s executive power is confined to three entries in List II of the Seventh Schedule—public order, police, and land—over which NCTD does not have legislative competence.

• Regarding the phrase "insofar as any such matter is applicable to Union Territories" in Article 239-AA(3), the Court observed that this phrase should not be interpreted in a way that further restricts the legislative power of NCTD. The Court rejected the argument put forth by the Union Government that this phrase limits NCTD's powers to legislate on subjects within the State and Concurrent Lists. The Bench concluded that this phrase is not one of exclusion but should be seen as an inclusive term. Therefore, NCTD retains the legislative power over all subjects in these Lists, except those explicitly excluded by Article 239-AA(3)(a).

• The Court also dealt with the issue of "services," particularly whether NCTD has legislative and executive power over services as per Entry 41 of List II. It held that NCTD indeed has both legislative and executive authority over services, including matters such as recruitment, conditions of service, and administrative control, except for those services related to public order, police, and land.

• The Court further explained that the executive power of NCTD extends to all matters within its legislative competence, which includes services such as the Indian Administrative Service (IAS) or Joint Cadre services relevant to the governance and administration of NCTD. These services are essential for the day-to-day administration of Delhi, and therefore, NCTD has a right to make rules and regulations governing these services.

• Additionally, the Court observed that the interpretation of Articles 239-AA(3), 73, and 162 reflects the asymmetrical federal structure in India, wherein while NCTD is not a full-fledged state, it is still treated in a manner akin to a state, especially with respect to its legislative and executive powers.

• On the role of the Lieutenant Governor (LG), the Court highlighted that the LG's discretionary powers are limited to situations where the matter is beyond the scope of NCTD’s legislative competence, such as when issues involve subjects exclusively under the control of the Union. The LG may also act in his discretion in situations where laws require such action or where he exercises quasi-judicial or judicial functions. In all other cases within NCTD’s legislative domain, the LG must act according to the “aid and advice” of the Council of Ministers of NCTD.

• The Court also addressed the argument that the Union Government could exercise control over services under its executive power. It clarified that while the Union has executive authority over areas not within NCTD's legislative competence, such as public order, police, and land, its powers are not unlimited.

Implications:

• This judgment reaffirms the asymmetrical federal structure of India, where Union Territories like NCTD enjoy significant legislative and executive powers, albeit limited in certain areas.

• It clarifies that NCTD’s Legislative Assembly has a broad mandate over subjects in the State and Concurrent Lists, excluding only a few matters explicitly outlined by the Constitution.

• The ruling extends the application of Part XIV of the Constitution (relating to services) to NCTD, thereby allowing it to have control over services in its jurisdiction, except those related to public order, police, and land.

• The decision also underscores the significance of the aid and advice of the Council of Ministers of NCTD in the exercise of executive powers, limiting the discretion of the LG in matters within the scope of NCTD’s legislative competence.

• The judgment balances the Union's powers with the representative democracy in NCTD, thereby establishing a clearer understanding of the relationship between the Union Government and NCTD.