Delhi v. Central Govt. - The battle of legislative competence
Who
has control over the ‘services’ in the National capital territory of
Delhi or the LG on behalf of the Govt?
whether
NCTD has the power to legislate under Entry
41 of
the State List, and
Meaning
of the term “in so far as any such matter is
applicable to Union Territories” in Article
239AA(3)(a).
Facts: 2015
Notification says LG can exercise control:
(i)
“to the extent
delegated to him from time to time by the President” over “services” in
addition to “public order”, “police”, and
“land.”
(ii)
The Lieutenant Governor may seek the views of
the Chief Minister of NCTD at his “discretion”.
(iii)
The “Services”
are covered under Entry 41 of the State List of the Seventh Schedule to the Constitution. The 2015
notification 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.
(iv)
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.
(v)
Justification by the Govt: where there is no legislative power, there can be no
executive power since executive power is co-extensive with legislative power.
And whereas matters relating to Entries 1, 2
& 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’
respectively and Entries 64, 65 & 66 of that list in so far as they relate
to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of
Legislative Assembly of the National Capital Territory of Delhi and consequently the Government
of NCT of Delhi will have no executive power in relation to the above and
further that power in relation to the aforesaid subjects vests exclusively in
the President or his delegate i.e.
the Lieutenant Governor of Delhi.
Hon’ble Delhi High
Court upheld the validity of this notification and held that
matter connected with the services is not in legislative competency of the
Delhi Govt.
Hon’ble Supreme Court referred
the matter to constitution bench for deciding interpretation of Article 239AA
which deals with special powers with respect to Delhi.
Delhi
Govt. arguments
1.
NCTD has legislative power and executive power
over all entries in List II other than entries 1,2, and 18 which have been
expressly excluded by Article 239AA
2.
NCTD has the power to enact laws under Entry
41 of List II of the Seventh Schedule.
3.
The power cannot
be excluded merely because the entry uses the term “state public services”
and not “Union Territory public services”.
4.
In fact, the Delhi Legislative Assembly has
enacted laws that fall within Entry 41
5.
The phrase “insofar
as such matter is applicable to Union Territories” in Article 239AA is inclusionary and not exclusionary.
6.
Multiple entries in List II and List III use
the term “State.”
7.
The phrase “insofar
as such matter is applicable to Union Territories” is a facilitative phrase which permits such entries being made available to
the Union Territory of NCTD without an amendment of the Lists in the Seventh
Schedule.
8.
Without the facilitative phrase, NCTD would
not have legislative competence over those entries in Lists II and III which
use the term “State”,
9.
NCTD is sui generis. It
cannot be brought within the common class of ‘Union Territories.
10.
This Court in Union of India v. Prem Kumar
Jain has recognised that the provisions of Part
XIV of the Constitution extend to Union territories.
11.
The report of
the Balakrishnan Committee opined
against the inclusion.
12.
That regardless of the level of devolution of
power in countries across the world, even in countries with centralized forms
of government, the power to control “services”
has been devolved upon the local government of the National Capital Territory.
Central
Govt. arguments
1. Entry
41 of List II is not available to Union Territories, as it cannot have either a
State Public Service or a State Public Service Commission.
2. The
2018 Constitution Bench judgment did not decide whether NCTD has legislative
competence over Entry 41 of List II.
3. Delhi, being the national capital,
enjoys a special status which requires the Union
to have control over services, in the absence of which it would
become impossible for the Union to discharge its national and international
responsibilities.
4. The
expression “in so far as any such matter is applicable to Union Territories”
in Article 239AA means that the entries contained in List II are available
to NCTD to the limited extent to which they are applicable to Union
Territories. The legislative powers of NCTD shall
extend to only those matters which are ‘applicable’ to Union Territories.
5. The
Transaction of Business Rules 1993 provide enough powers to Ministers of GNCTD
to ensure supervisory and functional control over civil services to ensure
their proper functioning.
Court’s observations
1. The
2018 Constitution Bench judgment held that the constitutional status of NCTD is
not similar to other Union Territories, which are covered under Part VIII of
the Constitution.
2. The
decision elucidates the manner in which the insertion of Article 239AA accorded
a “sui generis” status to NCTD setting it apart from other Union Territories.
3. It
becomes imperative to adopt an interpretation
which upholds the spirit of the unique constitutional democratic mandate provided to the Government of NCTD
by the inclusion of Article 239AA.
4. Article
239AA(3)(a) stipulates that the Legislative Assembly of Delhi shall have the
power to make laws for the whole or any part of NCTD with respect to matters in
the State List and the Concurrent List “insofar as any such matter is
applicable to Union Territories” except for certain subjects expressly
excluded. The provision expressly excludes entries 1, 2, and 18 of the State
List, and entries 64, 65 and 66 of List II insofar as they relate to the
entries 1, 2, and 18.
5. Article
239AA(3)(b) confers on Parliament the power “to make laws with respect to any
matter” for a Union Territory or any part of it. Thus, while the Legislative
Assembly of NCTD has legislative competence over entries in List II and List
III except for the excluded entries of List II, 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).
6. This
is where there is a departure from the legislative powers of Parliament with
respect to States. While Parliament does not have
legislative competence over entries in List II for States, it has the power to
make laws on entries in List II for NCTD. This was the view taken in
the 2018 Constitution Bench judgment.
7. Thus,
the executive power of NCTD shall extend over
entries in List II, except the excluded entries. After analysing
the provision of Article 239AA(4), it was held in the opinion of the majority
in the 2018 Constitution Bench judgment that the Union has executive power only
over the three entries in List II over which NCTD does not have legislative
competence, that is, entries 1,2, and 18 in List II.
8. The
2018 Constitution Bench judgment held that 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.
9. The
2018 Constitution Bench judgment authoritatively held that the legislative and
executive power of NCTD extends to all subjects in Lists II and III, except
those explicitly excluded. However, in view of Article 239AA(3)(b), Parliament
has the power to make laws with respect to all subjects in List II and III for
NCTD.
10. A
combined reading of the majority opinion and the concurring opinions of Justice
Chandrachud and Justice Bhushan indicates that the phrase “in so far as any such matter is applicable to Union
Territories” does not restrict the legislative powers of NCTD.
11. When
the Indian Constitution was adopted, the States
of the Indian Union were classified into Part A, Part B, and Part C States.
Delhi was a Part C State and was governed by the Government of Part C States
Act 1951. The Act provided for a Council of Ministers and a
legislature of elected representatives for Delhi with the power of making laws
with respect to any of the matters enumerated in the State List or the
Concurrent List except for the subjects which were expressly excluded. The
excluded subjects corresponded to those in Article 239AA along with the subject
of ‘Municipal Corporations.’ These powers were limited in nature and subject
to the legislative power of Parliament.
12. The Constitution (Seventh Amendment) Act 1956, based broadly on
the recommendations of the Fazl Ali Commission and designed to implement the provisions of the
States Reorganization Act 1956, inter alia did away with the erstwhile
classification of States into Part A, Part B, and Part C States, and Part D
territories. Instead, it introduced States and Union Territories
13. Soon thereafter, in 1962, Article 239A was inserted in the
Constitution by the Constitution (Fourteenth Amendment) Act 1956. This
envisaged the creation of local legislatures or a Council of Ministers or both
for certain Union Territories. Thus, a significant change
was introduced in the governance structure for Union Territories. Article 239A
created a separate category of Union Territories since all Union Territories
were no longer envisaged to be administered only by the President.
14. The introduction of Article 239A was followed by the Government
of Union Territories Act 1963. Currently, the Union Territory of
Puducherry is administered in terms of the governance structure envisaged by
this enactment.
15. By the Constitution (Sixty-ninth Amendment) Act 1991, Article 239AA
was inserted in the Constitution. It introduced a unique
structure of governance for NCTD vis-à-vis the Union Territories.
16. The
1991 Constitution Amendment brought a fresh dimension to the governance of
Union Territories. By virtue of the provisions of Article 239AA, NCTD
became the only Union Territory with a special status of having a
constitutionally mandated legislature and Council of Ministers. This was a
departure from the earlier model of governance for Union territories.
Article 239AA, in contrast, constitutionally mandates a legislature and
prescribes the scope of legislative and executive power for NCTD
17. Article 239A provides that Parliament “may” create a legislature for
Puducherry. On the other hand, for NCTD, the Constitution itself (in terms of
Article 239AA) has created a Legislative Assembly and a Council of Ministers. The
constitutionally coded status of NCTD results in a creation of a significant
degree of variance in the governance structure when compared to other States
and Union territories.
18. This
variance in the constitutional treatment of Union Territories as well as the
absence of a homogeneous class is not unique only to Union Territories. The
Constitution is replete with instances of special arrangements being made to
accommodate the specific regional needs of States in specific areas. Therefore,
NCTD is not the first territory which has
received a special treatment through a constitutional provision, but it is
another example - in line with
the practice of the Constitution - envisaging arrangements which treat federal
units differently from each other to account for their specific circumstances.
For instance, Article 371 of the Constitution contains special provisions for
certain areas in various States as well as for the entirety of some States. The marginal notes to various articles
composed under the rubric of Article 371 provide an overview of a number of
States for which arrangements in the nature of asymmetric federalism are made
in the spirit of accommodating the differences and the specific requirements of
regions across the nation.
19. The design of our Constitution is such that it accommodates the
interests of different regions. While providing a larger
constitutional umbrella to different states and Union territories, it preserves
the local aspirations of different regions. “Unity in diversity” is not only
used in common parlance, but is also embedded in our constitutional structure.
Our interpretation of the Constitution must give substantive weight to the
underlying principles. There is no homogeneous
class of Union territories with similar governance structures.
20. The Union of India has submitted that the phrase “in so far as any such matter is
applicable to Union Territories” in Article 239AA cannot be interpreted
inclusively as the Union has a preponderance of interest in the governance of
the national capital and therefore the phrase must be read in a narrow manner.
It has submitted that as Delhi is the seat of the
Union Government, national interests take precedence over and
beyond the quibbles of local interests. We find
that this argument does not hold merit in light of the text of Article
239AA(3).This argument was already addressed in the 2018 Constitution Bench
judgment.
21. Article
239AA(3)(a) confers legislative power to NCTD. However, it does not confer
legislative power to NCTD over all entries in List II. Article 239AA(3)
provides multiple safeguards to ensure that the interest of the Union is
preserved. First, sub-clause (a) of clause (3) removes three
entries in List II 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 entries 64, 65 and 66 of that List in so far as
they relate to the said entries 1, 2 and 18
22. Article 239AA(3)(c) provides that where there is a repugnancy
between a law enacted by the Legislative Assembly of NCTD and a law enacted by
Parliament, the latter will prevail, and the law enacted by the
legislative assembly shall, “to the extent of the repugnancy, be void”.
23. Unlike
Article 254, which provides for the overriding power of Parliament only on
subjects in the Concurrent List, Parliament has
overriding power in relation to the NCTD over subjects in both List II and List
III. Fourth, the second proviso to Article 239AA(c) provides
that Parliament may enact “at any time any law with respect to the same matter
including a law adding to, amending, varying or repealing the law so made by
the Legislative Assembly” of NCTD.
24. Thus,
Article 239AA(3) balances between the interest of
NCTD and the Union of India.
25. Any
amendment to the State List as well as the Concurrent List, being an amendment
to the Seventh Schedule must be in accordance with Article 368 of the
Constitution. The proviso to Article 368(2) of the Constitution stipulates that
an amendment to the Seventh Schedule would need a special majority of
two-thirds of the members of each House of Parliament present and voting. The
amendment would also need to be ratified by the legislatures of not less than
one-half of the States.
26. If the phrase “insofar as such matter is applicable to Union
Territories” was not included in Article 239AA, Parliament and the Legislature
of States would have been required to amend all entries in the Seventh Schedule
where the term “State” is used to “State and Union territories”.
This would have required a special majority. It was to avoid this time-consuming
process that the expansive phrase of “insofar as such matter is
applicable to Union Territories” was used in Article 239AA.
27. ‘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 by the provision.
Shubham Budhiraja, [LLB, ACS, Bcom(H)]
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