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 topublic 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.

 

[Civil Appeal No 2357 of 2017, Judgment dated 11/05/2023, Supreme Court of India]


Shubham Budhiraja, [LLB, ACS, Bcom(H)]

 

 

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