CASE COMMENTARY ON GOVT. OF NCT OF DELHI v. UNION OF INDIA (2023)

Date of JudgmentMay 11, 2023,
Petitioner’s NameGovernment of NCT of Delhi (National Capital Territory of Delhi)
Respondent’s NameUnion of India
Citation2023 SCC OnLine SC 606
CourtSupreme Court of India
BenchChief Justice D.Y. Chandrachud, Justice PS Narasimha, Justice Hima Kohli, Justice Krishna Murari, Justice M.R. Shah
Law InvolvedArticle 239 AA of the Constitution of India

BACKGROUND OF THE CASE:

The issue arose following a notification issued by the Union Ministry of Home Affairs on 21-05-2015, which stated that the Lieutenant Governor (‘LG’) of NCTD shall exercise control “to the extent delegated to him from time to time by the President” over “services” in addition to “public order”, “police”, and “land.” At his “discretion,” the LG may seek the views of the Chief Minister of NCTD.

The term “Services” is defined in Entry 41 of the State List of the Constitution’s Seventh Schedule. The 2015 notice eliminates from the scope of GNCTD’s authority Entry 41 of the State List, which includes as its topic “State Public Services; State Public Services Commission.”

According to the Delhi High Court, “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of the NCT of Delhi.” On appeal, a two-judge Supreme Court bench determined that the case raised a serious point of law about the interpretation of Article 239-AA, which deals with “Special provisions with respect to Delhi,” and referred the subject to a Constitution Bench.

FACTS OF THE CASE:

  • The National Capital Territory of Delhi also called Delhi is one of the union territories, which consists of the New Delhi capital of the country, along with Andaman and Nicobar Island, Chandigarh, Dadra and Nagar Haveli and Daman and Diu, Jammu and Kashmir, Ladakh, Lakshadweep, Puducherry.
  • Although the legislative and executive branches of government are divided among the Indian States, which have a federal connection with the Union Government, UTs have a more cohesive association with the Union Government because the Government of India holds all legislative and executive branches but that is not the situation of Delhi or NCT of Delhi.
  • The 1987 report issued by the Balakrishnan Committee, also known as the Committee on Reorganisation of the Delhi Setup, gave rise to an argument for statehood. The committee of inquiry examined the overlapping of powers in municipal governance issues and recommended the establishment of a legislative system. It was decided to grant particular status to the national capital and establish a legislative assembly in the UT alongside the authority to enact legislation on subjects covered by the state list, except those pertaining to public order, law enforcement, and land.
  • The Delhi government’s use of the Anti Corruption Bureau (ACB) was terminated by the Ministry of Home Affairs shortly after the AAP administration won 67 out of 70 seats in the 2015 Delhi Assembly elections. Due to this decision, the Delhi administration was no longer able to discipline or expel officials involved in misconduct, which led to Arvind Kejriwal demanding complete statehood
  • The root cause of the issues arises due to the removal of Entry 41 of the State List from the Government of NCTD’s sphere of influence. Entry 41 of the State List is related to ‘provisions relating to State Public Service’. The reason for the removal of Entry 41 is the lack of NCTD’s own State Public Services.
  • In 2018, the Same case was presented in front of a bench consisting of C.J. Dipak Misra, J. A.K. Sikri, J. A.M. Khanwilkar, J. D.Y. Chandrachud & J. Ashok Bhushan. The point of contention was how to interpret Article 239 AA of the Indian Constitution[1], specifically concerning the notice from 2015.
  • As an outcome, the Court reiterated that, in light of Article 239AA and the 2018 Constitution Bench ruling, the LG is obligated to heed the counsel and advise of the NCTD Council of Ministers about issues falling under NCTD’s legislative purview. Furthermore, under the applicable Rules, any reference to “Lieutenant Governor” with regard to services (apart from those pertaining to “public order,” “police,” and “land”) must signify LG acting on behalf of GNCTD[2].
  • After determining how Article 239-AA should be interpreted, the petitions for review were ordered to be listed before a regular Bench for the purpose of resolving the particular concerns. A.K. Sikri and Ashok Bhushan, JJ., a 2-judge bench, rendered two different rulings in 2019. Regarding whether “services” have been excluded from the legislative and executive branches of the GNCTD under Article 239-AA(3)(a), the judges couldn’t agree. The majority view in the 2018 Constitutional bench ruling did not understand the words “insofar as any such matter is applicable to Union Territories,” according to Justice Ashok Bhushan’s divided finding from 2019.

ISSUES RAISED:

Which authority, the Government of the National Capital Territory of Delhi or the Lieutenant Governor acting on behalf of the Union Government, would have legislative and executive responsibility over Entry 41 stated under list II of the seventh schedule of the Constitution in the NCT of Delhi?

CONTENTIONS FROM BOTH THE PARTIES:

  • On behalf of Petitioner:-
  • The title “State” alone cannot be used as justification for the exclusion of the NCTD legislative assembly.
  • The term “insofar as such matter applies to the Union Territories” is included as a restriction measure that gives the Union territory government limited legislative jurisdiction that is only applicable inside the Union territories.
  • With the exception of List II elements that are specifically excluded, the Legislative Assembly of NCTD has jurisdiction over items in Lists II and III.
  • In addition to the items in List I, Parliament possesses legislative authority regarding all subjects in Lists II and III concerning NCTD, including the entries that are excluded from NCTD’s legislative purview according to Article 239AA(3)(a).
  • On behalf of the Respondent:-
  • In the 2018 ruling, the Constitution bench refrained from providing a response to the question of whether Entry 41 of the State List is under legislative power.
     In order to properly read the State list, the context of interpretation must be taken into account. This will allow some items to be excluded from the Government of NCTD’s jurisdiction.
  • The term “insofar as such matter applies to the Union Territories” is included as a restriction measure that gives the Union territory government limited legislative jurisdiction that is only relevant inside the Union territory.
  • The NCTD’s executive authority is associated with its legislative authority, meaning it can be used to address any issue regarding which it can enact laws. Therefore, all topics in Lists II and III are within the legislative and executive purview of NCTD, with the exception of the ones that are expressly prohibited.
  • Nonetheless, in light of Article 239-AA(3)(b), Parliament is empowered to enact legislation pertaining to every topic on Lists II and III for NCTD.

RATIONALE OF THE CASE:

The bench concluded that, with the exception of matters pertaining to Public law, Police and land. The Government of the National Capital Territory of Delhi has legislative and executive jurisdiction over administrative services provided within the boundaries of the National Capital. Furthermore, with the exception of public order, law enforcement, and land, the Lieutenant Governor must follow any decisions made by the Delhi administration regarding operations. Nonetheless, the National Capital Territory of Delhi will continue to have authority over the legislative and executive branches concerning services like the Joint Cadre Services as well as the Indian Administrative Services, which are essential for the daily running of the area and the execution of policies.

The case of Advance Insurance Corporation Limited v. Gurudasmal[3] established that the definition of “State” under the General Clauses Act, as amended by the President through Article 372A[4], should be applied when interpreting the Constitution and Act as specified in Article 367[5] unless the circumstances require a different interpretation. A particular objective guided the interpretation of Article 367. A Union territory falls under the first schedule’s definition of “State,” as stated in Section 3(58) of the General Clauses Act, of 1897[6].

The concept of “State” in the General Clauses Act does not apply to Article 246. Therefore, the legislative assembly of NCTD would not have the authority to legislate on articles that utilize the term “State” when their interpretation deviates from the context. Consequently, the statement “insofar as such matter applies to Union Territories” expands the legislative assembly’s competence to all entries that include the word “State.”

The Court used the guidelines set out in its 2018 ruling, which clarified the real meaning of Article 239AA. It was noted that despite taking into account the Union of India’s national interests, Delhi’s citizens have been given a say in how the National Capital Territory is run through their representatives who are elected.

DEFECTS OF THE LAW:

Article 239 and 239AA’s interaction is the basis of the present political dispute about administrative authority over the area between the administration of the National Capital Territory (NCT) Delhi and the Union. Regarding the LG’s jurisdiction, the Supreme Court (SC) rendered a decision in 2018. Five judges ruled that the Legislative Assembly must abide by the advice and recommendations of the Council of Ministers when it has the authority to pass laws. Furthermore, they discovered that Council actions just require consultation; LG approval is not required.

In an attempt to overturn the Supreme Court’s ruling, the Union Government introduced the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment), which became effective on April 27, 2021. It prohibits the Legislative Assembly from debating matters related to the day-to-day administration of Delhi’s National Capital Territory and from conducting inquiries into administrative rulings. According to the Amendment, the President must recommend any bill passed by the Legislative Assembly that unintentionally covers topics outside of its jurisdiction to the LG for review. It also requires that before the government takes any executive action, the LG’s opinion must be obtained. On August 10, 2021, the Delhi Government filed a case with the Supreme Court challenging the validity of the Amendment.

In its appeal, the Delhi Government claims that the Amendment elevates the elected Legislative Assembly to a subservient role and designates it as the main administrative body responsible for managing all matters related to the Delhi NCT. They beseech the court to decide that this constitutional amendment is unconstitutional because it transgresses the fundamental principles of federalism, representative democracy, the separation of powers, and the rule of law. On May 11, 2023, the Supreme Court upheld the Delhi government’s authority to oversee civil personnel and the daily operations of the NCT of Delhi.

INFERENCE FROM THE CASE:

When it comes to topics under the legislative purview of the National Capital Territory of Delhi (NCTD), including Entry 41 in List II, the Lieutenant Governor is required to follow the advice and assistance given by the NCTD Council of Ministers. It appears incorrect to rely on the constitutional authorities in charge of Delhi’s administration. The various parties’ present interpretation of Article 239 AA (4) in the government of Delhi is entirely up to their own judgment. The conclusion is limited to constitutional principles and must address their practical application, which may result in more litigation. As such, there is still a great deal of friction between the Lieutenant Governor and the Delhi government even after the judgment was made.


Tanishka Jha

DES Sri Navalmal Firodia Law College, Pune


[1]Constitution of India, 1949, Art.239AA

[2] Government of NCT of Delhi v. Union of India (2018) 8 SCC 501.

[3] Advance Insurance Corporation Limited v. Gurudasmal 1970 AIR 1126

[4] Constitution of India, 1949, Art.372A

[5] Constitution of India, 1949, Art.367

[6]General Clauses Act, 1897, Art.3(58)