The 2015 Notification added Entry 41 under the exception of Article 239AA(3)(a) and gave power to the Lieutenant Governor of Delhi to make laws on it, which denied the power to the Government of NCTD to the same. The notification was upheld by The High Court of Delhi that the Government of NCT of Delhi cannot make laws for Entry 41 - "Services" as it is outside the purview of the legislative assembly of NCTD. The Constitution bench of the Supreme court gave power back to the Government of NCTD for control over Entry 41 under List II. The analysis of the Constitution bench judgment is discussed below.

Case Details:

Government of NCT of Delhi V. UOI, 2023

Bench: D.Y. Chandrachud, CJ., M.R. Shah, J., Krishna Murari, J., Hima Kohli, J., P.S. Narasimha, J.
Date: 11.05.2023
Citation : 2023 SCC OnLine SC 606

Issue:

• Whether the Government of NCTD or the Lieutenant Governor has legislative & executive control over Entry 41 mentioned under list II of the seventh schedule of the Constitution.

Submissions
Union of India

1. The Constitution bench of 2018 did not decide on the issue of who will have legislative competence over Entry 41 of the State List.
2. The State list has to be interpreted contextually so that certain entries can be excluded from the domain of the Government of NCTD.
3. The phrase "insofar as such matter is applicable to the Union Territories" is a limitation phrase that allows the Government of Union territories to make laws to a limited extent that apply to the Union territories.
    

Government of NCTD

1. The legislative assembly of NCTD cannot be excluded just because of the use of the word "State".
2. The legislative power not used by the government of NCTD does not mean it ceases to exist.
3. The phrase "insofar as such matter is applicable to Union Territories" is a facilitative phrase that allows the Government of Union territories to make law under the State List.

Analysis of the 2018 Constitution bench judgment: Interpretation of Article -239AA
Representative Form of Government

1. By providing a "Sui generis" status to the Government of NCTD through the insertion of Article 239AA which only talks about the NCTD shows the intent of the legislation to give the NCTD a special status in comparison to other union territories as a consequence created a representative government for the voice of the people of Delhi.
2. The use of the word "Shall" in Article 239AA is a constitutional mandate which shows the intent to give power to the hand of the government of Delhi to make laws for NCTD.
3. Also, it is made very clear in Article 239AA that the Government of NCT of Delhi shall be chosen by the people of Delhi by direct elections with no provision where the members of the Legislative Assembly can be nominated by the Parliament or the President, which gives representative character to the Government of NCT of Delhi, therefore they must be given the power to make laws for the area of NCT of Delhi.

Legislative and executive power of the Government of NCT of Delhi

1. The combined reading of Article 239AA(3)(a) and Article 239AA(4) indicates that the executive power of the Government of NCTD coexists with the legislative power of the Government of NCTD. Thus, the executive power of the government of NCTD extends to all those subjects, it has the legislative power of the legislative assembly of Delhi.
2. Whereas the executive power of the union is limited to the three entries excluded from the list II whereas the executive power of the NCTD extends to all entries in the list II except the three excluded entries.
3. The Union cannot be given executive power in relation to the legislative power already granted to the Government of NCTD would lead to collaborative federalism failing.
4. Parliament has the power to make laws under List 2 and List 3 to which the executive power of the government of NCT of Delhi must conform.

"Insofar as any such matter is applicable to Union Territories"

1. The use of the word "State" in itself does not exclude the Legislative Assembly of NCTD from making laws on the entries of the state list as it does not lead to the correct reading of the phrase in Article 239AA(3)(a). For instance, if the GNCTD Act recognizes the legislative competence of the Legislative Assembly of NCTD for deciding the salaries and allowances of the members of the legislative assembly of the state under Entry 38 & Entry 40 in List II just by the use of the word "state" does not divert the jurisdiction of Legislative Assembly of NCTD to decide on the matter.
    
2. The interpretation of this phrase should be inclusive, not exclusionary therefore the legislative assembly of NCTD has the power to make laws on the matter of state list except the entries excluded and it does not restrict the legislative power of the government of NCTD.
    
3. The above phrase is used to facilitate the automatic conferment of power to the Union territories to make laws on the matter of List II and List III, because at the time of the commencement of the constitution, there was no concept of Union territories, later through amendments such words and phrases were added to facilitate their inclusion.

The 'Class' of Union Territories
Through the Sixty-ninth amendment to the constitution of India, special status was granted to Delhi as a national capital territory through the insertion of Article 239AA which constitutionally mandates the formation of a legislative assembly for NCTD, Hence the government of NCTD does not form part of the 'Class' of Union Territories hence the legislative power of NCTD does extend to the subjects which are not available to Union Territories as a class.

Maintaining the balance between the local interests and national interests.
By carefully reading the text of Article 239AA(3) it can be seen that by providing enough safeguards to the parliament to protect the national interest like the exclusion of the three entries 1, 2 & 18 of Public Order, Police & Land and by giving overriding legislative power in relation to NCTD shows the balance of interest is maintained.

Inclusive interpretation of "insofar as any such matter is applicable to Union territories"

1. To interpret the phrase in a restrictive sense would limit the power of the legislative assembly of NCTD which was given to them by the Constitution and by the electoral votes of the people of Delhi. So, it cannot be read to exclude the power of the legislative assembly of NCTD from the entries of List II and List III of the seventh schedule.

In Advance Insurance Corporation Limited V. Gurudasmal, 1970

1. It was held that the definition of "State" under the General Clauses Act as modified by the President through Article 372A shall be applied to the interpretation of the Constitution and Act as mentioned under Article 367 unless the context otherwise requires. A purposive interpretation was given to Article 367.
    
2. The definition of "State" under Section 3(58) of the General Clauses Act 1956 states that the State specified in the first schedule shall include a Union territory.

In T.M. Kanniyan V. CIT

1. The definition of "State" under the General Clauses Act does not apply to Article 246 as such interpretation would be repugnant to the subject and context of Article 246
    
2. Because if union territory is included in the definition of "State" under Article 246, then the parliament will have no power to legislate with respect to subjects of union territories mentioned under the state list until a legislative assembly is created under Article 239A there would be no legislature to make laws on those matters.
    
3. Therefore, where construction is leading repugnant to the context, then in that case, the legislative assembly of NCTD's power to legislate would not extend to the entries which use the word "State". Thus, the phrase "insofar as such matter is applicable to Union Territories" is used to extend the power of the legislative assembly of NCTD to all entries which mention "State".

"Subject to the provisions": A limitation
This phrase simply states that power granted by the Constitution is to be exercised within the permissible limits of the provisions of the Constitution of India. If violative of such provisions will be ascertained by the court and if found the court will declare it to be void. Thus, the phrase must be read to give effect to the underlying principles of the Constitution of India.

The Constitution is not unitary
The concept of federalism states that both the Union and the state are co-equals in terms of their legislative and executive power in their respective domains because of the partition of authority between the two. While NCTD is a Union territory, it is still been given special status and should be treated on par with the state in terms of a federal entity. Thus, the Union and NCTD have a federal relationship, because of which the union cannot take away the autonomy of NCTD as a federal entity just because it is not a "State". This Interpretation will expand the basic structure of federalism.

Scope of Legislative & Executive power between the Union and NCTD.

1. The Combined reading of Article 73 and Article 162 shows that both have exclusive executive power over their respective lists, List I for the Union and List II for the State. With respect to list III, the Union will only have executive power if provided by law through Parliament or by the Constitution, thus creating a limitation on the power of the Union with respect to executive power in List III only to keep intact the federal governance and the principle of representative democracy. So, applying the same principles to NCTD, the executive power of NCTD will extend to all subjects in which NCTD has legislative powers only in the absence of law created by Parliament or by the Constitution.
    
2. In Article 239AA(4) there has been executive power granted to NCTD in respect of which it has the power to make laws. In the same clause, there is a use of the word "aid and advice", could simply mean that the Lieutenant Governor of NCTD is bound by the aid and advice of the Government of NCTD and the Lt. Governor can refer the matter to the president in a careful manner and in rare circumstances.
    
3. Regarding the legislative power of the legislative assembly of NCTD on the subject of Entry 41 of the State list, NCTD shall have the legislative power as it is not expressly excluded from Article 239AA(3)(a). So, NCTD having legislative power, shall have executive power over Entry 41 of the State list

Triple chain of accountability: Civil Servants in a cabinet form of government
Civil servants are known as the "soul of administration". The policies of the government are implemented and administered by them. There follows a triple chain of accountability. Civil Service officers are accountable to Ministers, the ministers are accountable to the legislature and the legislature is accountable to the electorate.

If the government of NCTD is not provided control over the civil service officers posted in its domain, the principle of the triple chain of accountability would become ineffective and an unaccountable officer may act to disregard the will of the people represented by the elected government of NCTD and would lead to non-implementation of the policies formulated by the Government of NCTD.

Balakrishnan Committee Report
The Report stated that the Union territories are the responsibility of the union as there does not exist any third category of service belonging to the services of Union territories under Part XIV of the Constitution. The interpretation of Article 239 has been dealt with by the 2018 Constitution Bench judgment there is no need to be guided or bound by the Balakrishnan Committee Report to determine if "Services" is available to NCTD.

Applicability of Part XIV to Union Territories

1. The argument here is that, as Part XIV of the Constitution does not talk about the services for Union territories, the NCTD does not have any legislative power over "Services" of Entry 41 of List II.
    
2. The definition of the word "State" under Section 3(58) of the General Clauses Act will apply for the interpretation of Part XIV of the constitution as the application of such definition does not make the subject or context of Part XIV of the constitution repugnant. Hence, for the applicability of Part XIV of the constitution, the definition of "State" was held to include Union territories.
    
3. There was a conscious omission to not include services for Union territories in Part XIV of the Constitution. The court held that Parliament could not have foreseen at the time of omission that in the future the Union territories would have been given diverse governance models.
    
4. The rules made by the President or by the Governor in the exercise of his power under proviso to Article 309, the NCTD power to legislate on "services" cannot be excluded as such rules do not substitute the legislative power granted by Article 309.

Exercise by NCTD of its Legislative Power on Entry 41

In State of Gujarat V, Raman Law Keshav Lal, 1980

1. The legislative power to enact legislation under Entry 41 of List II was determined by examining whether the said legislation contains provisions 'regulating the recruitment, exercise of control including the power to transfer & suspend and conditions of service' - all of which are constituents of a "service" under Entry 41 of the list II.
    
2. On examining the provisions of the Delhi Fire Service Act 2007, it was held that the legislative assembly of NCTD with respect to its legislative power has created the Delhi Fire Service Act 2007 under Entry 41 of List II.

"Services" and NCTD

In IK Saksena V. State of Madhya Pradesh, 1976

1. It was held that the entries in Schedule VII must be read in the widest possible meaning than that covered by Article 309 of the Constitution, but in the context of Entry 41 in relation to NCTD, it may not be read in the widest possible sense because of the limitation laid down in Article 239AA(3)(a) which are related to 'public order', 'police', and 'land'.
    
2. A Combined reading of Rules 2, 7, and 11A of Indian Administrative Service (Cadre) Rules, 1954 indicates that posting within State Cadre or Joint Cadre of a Constituent State shall be decided by the "Government of that State" which means a duly elected government which in our case shall be Government of NCTD. So, the reference to "State Government" for All India Services or Joint Cadre Services which is a part of NCTD shall mean the Government of NCTD.

Conclusion
The Lieutenant Governor shall be bound by the aid and advice of the Council of Ministers of NCTD for the matters which NCTD has the power to legislate, including Entry 41 in List II.

References

1. (1970) 1 SCC 633
2. (1968) 2 SCR 103
3. (1980) 4 SCC 653
4. (1976) 4 SCC 750

Award Winning Article Is Written By: Mr.Mohit Sharma

Authentication No: MY351544541937-29-0523