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Government of NCT of Delhi v. Union of India

Case Comment, Publications

Date of the Case: May 11, 2023
Appellant: Government of NCT of Delhi (National Capital Territory of Delhi)
Respondent: Union of India
Bench: Chief Justice of India D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli, Justice PS Narasimha
Legal Provisions: Constitution of India, 1949, Article 239,  Constitution of India, 1949, Article 239 AA
Citations: 2023 SCC OnLine SC 606

Facts of the Case:

  • Delhi, officially known as ‘The National Capital Territory of Delhi’ (NCTD), is a metropolis and union territory encompassing the capital of India, New Delhi.
  • Unlike other union territories directly governed by the Union Government, Delhi was granted a form of limited statehood and possessed an elected legislative assembly and an executive council of ministers.
  • The aforementioned limited statehood status of Delhi has engendered a power struggle between the presently governing Kejriwal-led Aam Aadmi Party (AAP) Government and the Lieutenant Governor, who acts on behalf of the Union Government.
  • The current legal case revolves around determining which entity, either the Government of NCTD or the Union Government, should exercise control over the “services” within the National Capital Territory of Delhi.
  • Additionally, the case deliberates on whether the officers of various ‘services’ such as IAS, IPS, DANICS, and DANIPS, assigned to Delhi by the Union of India, fall under the administrative jurisdiction of the Government of NCT of Delhi.
  • The present issue arises from a notification issued by the Union Government in 2015, which excludes Entry 41 of the State List from the purview of the powers of the Government of NCTD.
  • Entry 41 concerns the matter of “State Public Services; State Public Services Commission” and is excluded because the NCTD lacks its own State Public Services.
  • The case of Government of NCT of Delhi v. Union of India[1] (from now on referred to as the 2018 judgement), which was presented before a panel comprising former Chief Justice of India Dipak Misra and Justices Kumar Sikri, Ajay Manikrao Khanwilkar, A Bhushan, DY Chandrachud, and A Sikri of the Supreme Court of India, pertained to the matter of the National Capital Territory of Delhi (NCTD) and specifically, the administration of NCTD, the powers, and functions of the elected Government of NCTD (GNCTD) concerning the Central Government (or, in other words, the Lieutenant Governor (LG) of GNCTD, as a nominee of the President of India).
  • The crux of this dispute revolved around interpreting Article 239 AA[2] of the Indian Constitution, particularly about the 2015 notification.
  • In this case, the Court noted that constitutional morality encompasses the morality enshrined in the constitutional standards and the conscience of the constitution itself. Any conduct that seeks justification must possess the capacity to align with constitutional motivation.
  • To realize our constitutional vision, it is imperative for all individuals, especially those in positions of authority, to imbue a sense of constitutional morality that rejects the concentration of power in the hands of a few.
  • All three branches of the State must uphold the Constitution’s trust in them by remaining faithful to its principles.
  • The choices made by constitutional officials and how they are made must be normatively sound and acceptable.
  • Consequently, such decisions must be based on constitutional objective principles and in harmony with the essence of the Constitution.
  • The Constitution, the supreme legal document, embodies the concept of constitutional governance, encompassing the notions of fiduciary public authority and the system of checks and balances.
  • This form of governance, in turn, fosters the essential constitutional trust that all constitutional officials must exhibit when carrying out their official duties.
  • Suppose any provision of a law enacted by the Legislative Assembly to a particular matter conflicts with any provision enacted by Parliament.
  • In that case, the latter will prevail, and the former will be abolished. This pertains to the issue above, regardless of whether it was enacted before or after the law enacted by the Legislative Assembly or of a previous law, excluding a law passed by the Legislative Assembly.
  • Let the legislation enacted by the Legislative Assembly have been reserved for the consideration of the President and have obtained their consent. In that case, it will affect the National Capital Territory.
  • This shall not hinder Parliament from enacting any legislation on the same matter at any time, including a bill that supplements, modifies, alters, or repeals the law established by the Legislative Assembly.

Issues Raised

Does the Government of NCTD or the Lieutenant Governor have legislative & executive control over Entry 41 mentioned under list II of the seventh schedule of the Constitution?

Contentions

  1. From the Appellant Side
  2. The exclusion of the legislative assembly of NCTD cannot be justified solely based on the inclusion of the term “State.”
  3. The non-utilization of legislative authority by the NCTD government does not imply its cessation.
  4. The inclusion of the phrase “insofar as such matter applies to Union Territories” serves as a facilitating provision that grants the Government of Union Territories the ability to legislate under the State List.
  5. From the Respondent’s Side
  6. The determination regarding the legislative jurisdiction of Entry 41 of the State List was left unanswered by the Constitution bench in the  2018 judgement.
  7. To appropriately construe the State list, it is imperative to consider the contextual interpretation, thereby enabling the exclusion of specific entries from the purview of the Government of NCTD.
  8. The inclusion of the phrase “insofar as such matter applies to the Union Territories” serves as a restrictive provision, granting the Government of Union territories the authority to enact legislation to a limited extent, which is applicable solely within the Union territories.

Rationale

The bench determined that the Government of the National Capital Territory of Delhi possesses legislative and executive authority over administrative services within the confines of the National Capital, excluding matters of public order, police, and land. Additionally, the Lieutenant Governor is obligated to adhere to the decisions made by the Delhi government regarding services, except public order, police, and land. However, the legislative and executive power over services such as the Indian Administrative Services or Joint Cadre Services, which are crucial for the implementation of policies and the realization of the vision of the National Capital Territory of Delhi in terms of day-to-day administration of the region, shall remain under the jurisdiction of the National Capital Territory of Delhi.

In Advance Insurance Corporation Limited v. Gurudasmal,[3] it was decided that, unless the context dictates otherwise, the definition of “State” under the General Clauses Act as modified by the President through Article 372A[4] should be used to interpret the Constitution and Act as mentioned in Article 367.[5] Article 367 was interpreted with a specific goal in mind. According to Section 3(58)[6] of the General Clauses Act, 1897, a Union territory is included in the definition of “State” given in the first schedule.

In the case of TM Kanniyan v. CIT,[7]  if a union territory is included in the definition of “State” under Article 246,[8] then the parliament will not have the authority to legislate concerning the subjects of union territories mentioned under the state list until a legislative assembly is created under Article 239A, which would mean that there would be no legislature. Therefore, the definition of “State” under the General Clauses Act does not apply to Article 246. Therefore, the legislative assembly of NCTD’s authority to legislate would not apply to entries that utilise the phrase “State” when construction is leading in a manner that is contrary to the context. Therefore, the phrase “insofar as such matter applies to Union Territories” is used to expand the legislative assembly’s authority to all entries that refer to the word “State”.

In its ruling, the Court highlighted the significance of federalism as an integral component of the fundamental structure of the Constitution. This was underscored by referencing a portion of a speech by Dr. B.R. Ambedkar, which states that “The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter.” The Court relied on the principles established in its 2018 judgement, where the true essence of Article 239AA was elucidated. It observed that the inhabitants of Delhi have been granted a voice in the governance of the National Capital Territory of Delhi through their elected representatives while also considering the national interests of the Union of India.

Defects in the Law
Under Article 239[9] of the Indian Constitution, the governance of Union Territories (UTs) is entrusted to an administrator appointed by the President. Nevertheless, the Constitution (Sixty-ninth Amendment) Act, 1991 introduced Article 239AA, establishing an elected Legislative Assembly and a Council of Ministers, including a Chief Minister, for Delhi’s National Capital Territory (NCT). This Assembly possesses the authority to enact legislation about the NCT of Delhi concerning matters falling within the purview of either the State List or the Concurrent List (excluding public order, police, and land matters). Delhi’s “Lieutenant Governor” (LG) has been designated as the Administrator of the NCT of Delhi.

The interplay between Articles 239 and 239AA constitutes the basis for the ongoing political dispute between the Union and the government of NCT Delhi concerning administrative control over the territory. In 2018, the Supreme Court (SC) adjudicated the extent of the LG’s powers. A five-judge Bench opined that the LG is bound by the aid and advice of the Council of Ministers in matters where the Legislative Assembly has legislative competence. Furthermore, they determined that the LG’s concurrence is optional, but only consultation is required for decisions made by the Council.

To circumvent the Supreme Court’s ruling, the Union Government enacted the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment), which came into effect on April 27, 2021. It prohibits the Legislative Assembly from deliberating on matters of the day-to-day administration of the NCT of Delhi and from conducting inquiries into administrative decisions. The Amendment mandates that any bills passed by the Legislative Assembly must be sent to the LG for consideration by the President if they incidentally cover matters beyond the Assembly’s jurisdiction. Furthermore, it stipulates that all executive actions undertaken by the government must first obtain the LG’s opinion. On August 10, 2021, the Delhi Government filed a petition in the Supreme Court challenging the constitutional validity of the Amendment.

In their petition, the Delhi Government contends that the Amendment curtails the powers and functions of the elected Legislative Assembly, establishing the LG as the default administrative authority for all matters about the NCT of Delhi. They urge the court to declare that this constitutional amendment undermines the fundamental principles of federalism, separation of powers, the rule of law, and representative democracy, rendering it unconstitutional. On May 11, 2023, the Supreme Court upheld the Delhi government’s authority to oversee civil servants and the day-to-day administration of the NCT of Delhi.

Inference

The Lieutenant Governor is obligated to abide by the assistance and guidance provided by the Council of Ministers of the National Capital Territory of Delhi (NCTD) to matters within the legislative authority of the NCTD, which includes Entry 41 in List II. The act of relying on the constitutional officers responsible for Delhi’s administration seems erroneous. In the governance of Delhi, the current interpretation of Article 239 AA (4) by the various parties solely depends on their discretion. The decision pertains exclusively to constitutional principles and needs to address the practical implementation, possibly leading to further litigation. Consequently, despite the issuance of the decision, there remains a significant amount of tension between the Delhi administration and the Lieutenant Governor.

Name: Tanishka Tiwari

College: Shambhunath Institute of Law, Prayagraj

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

[2] Constitution of India, 1949, Art.239AA [inserted by The Constitution (sixty-ninth) Amendment Act,1991]

[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, s.3(58)

[7] TM Kanniyan v. CIT 1968 AIR 637

[8] Constitution of India, 1949, Art.246

[9] Constitution of India 1949, Art.239