Citation:- Civil Appeal No 2357 of 2017

Parties: Appellant: Government of NCT of Delhi (National Capital Territory of Delhi) & Respondent: Union of India

Judges: Chief Justice of India D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli, Justice PS Narasimha

Judgment Date: May 11, 2023

INTRODUCTION

The intricate legal battle between the Government of the National Capital Territory of Delhi (GNCTD) and the Union of India, with the Lieutenant Governor (LG) at the center of the dispute, brings forth a complex narrative surrounding the constitutional and administrative dynamics within the National Capital Territory (NCT) of Delhi.

Delhi, an expansive metropolis and a union territory, holds a unique position with limited statehood, boasting an elected legislative assembly and an executive council of ministers. The crux of the conflict lies in the struggle for control between the ruling Aam Aadmi Party (AAP) Government led by Arvind Kejriwal and the Lieutenant Governor acting on behalf of the Union Government. At the heart of this legal entanglement is the question of which entity—GNCTD or the Union Government—should wield authority over critical “services” within the NCT of Delhi.

The genesis of the dispute traces back to a pivotal 2015 notification by the Union Government, excluding Entry 41 of the State List, pertaining to “State Public Services; State Public Services Commission,” from the purview of GNCTD’s powers. This exclusion, rooted in the absence of its own State Public Services, has sparked a contentious legal debate.

The landmark case of Government of NCT of Delhi v. Union of India (2018 judgment) becomes the focal point, where a distinguished panel of the Supreme Court delved into interpreting Article 239 AA of the Indian Constitution. Constitutional morality and governance principles emerged as central themes during the proceedings, emphasizing the need for aligning conduct with constitutional motivations.

The core issue revolves around the legislative and executive control over Entry 41 of the State List, with the Appellant arguing against the exclusion based solely on the term “State” and the Respondent contending for a contextual interpretation that justifies the exclusion.

In a significant ruling, the Supreme Court determined that GNCTD holds legislative and executive authority over administrative services within the NCT, except in matters of public order, police, and land. The Lieutenant Governor is obliged to adhere to the decisions of the Delhi government concerning services, barring the mentioned exceptionsThe court’s reliance on constitutional principles, federalism, and the co-equal status of the Center and the States, as articulated by Dr. B.R. Ambedkar, underscores the constitutional underpinnings guiding its decision-making.

However, defects in the law surface, as highlighted by the Delhi Government’s challenge against the Government of National Capital Territory (Amendment) Act, 2021. This amendment, enacted by the Union Government, restricts the Legislative Assembly’s authority over day-to-day administration matters, sparking concerns about its constitutionality.

As the legal saga unfolds, the Supreme Court’s pivotal decision on May 11, 2023, upholding the Delhi government’s authority to oversee civil servants and the day-to-day administration of the NCT of Delhi, marks a crucial milestone in this ongoing legal and constitutional discourse. The implications of this decision reverberate not only within the legal corridors but also resonate with broader principles of federalism, separation of powers, and representative democracy, shaping the contours of governance within the nation’s capital

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

From the Appellant Side

• The exclusion of the legislative assembly of NCTD cannot be justified solely based on the inclusion of the term “State.”
• The non-utilization of legislative authority by the NCTD government does not imply its cessation.
• 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.

From the Respondent’s Side

• The determination regarding the legislative jurisdiction of Entry 41 of the State List was left unanswered by the Constitution bench in the 2018 judgement.
• 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.
• 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 concluded that, with the exception of matters pertaining to public order, law enforcement, 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 the choices made by the Delhi administration regarding services. Nonetheless, the National Capital Territory of Delhi will continue to have jurisdiction over the legislative and executive branches concerning services like the Joint Cadre Services and the Indian Administrative Services, which are essential for the day-to-day administration of the area and the implementation of policies. 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 decision, the Court emphasized the importance of federalism as a key element of the Constitution’s basic framework. A quote from Dr. B.R. Ambedkar’s speech was used to emphasize this point, saying that “The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority.” The States and the Center have equal standing in this regard. In determining the real meaning of Article 239AA, the Court referred to the guidelines set forth in its 2018 ruling. It noted that while taking into account the national interests of the Union of India, the people of Delhi have been given a say in the management of the National Capital Territory of Delhi through their elected representatives.

DEFECTS IN THE LAW

A presidentially appointed administrator is responsible for overseeing Union Territories (UTs) in accordance with Article 239[9] of the Indian Constitution. For Delhi’s National Capital Territory (NCT), however, the Constitution (Sixty-ninth Amendment) Act, 1991 instituted Article 239AA, creating an elected Legislative Assembly and a Council of Ministers, which included a Chief Minister. With the exception of public order, law enforcement, and land problems, this Assembly has the power to pass laws pertaining to the NCT of Delhi that come under the jurisdiction of either the State List or the Concurrent List. As the Administrator of the NCT of Delhi, Delhi’s “Lieutenant Governor” (LG) has been appointed. The current political disagreement between the Union and the government of NCT Delhi regarding administrative jurisdiction over the territory is rooted in the interplay between Articles 239 and 239AA. The Supreme Court (SC) made a ruling in 2018 about the LG’s authority. According to a five-judge bench, in cases where the Legislative Assembly is empowered to enact laws, the LG is obligated to follow the Council of Ministers’ guidance and recommendations. Moreover, they found that merely consultation is necessary for Council decisions; LG approval is not mandatory. The Union Government passed the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment), which went into force on April 27, 2021, in order to overturn the Supreme Court’s decision. It forbids the Legislative Assembly from holding investigations into administrative decisions and from discussing issues pertaining to the day-to-day management of the National Capital Territory of Delhi. The Amendment requires that any law passed by the Legislative Assembly that inadvertently addresses subjects outside the purview of the Assembly be referred to the LG for consideration by the President. It also mandates that the LG’s opinion be sought before the government takes any executive action. The Delhi Government petitioned the Supreme Court on August 10, 2021, contesting the Amendment’s constitutionality.

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.

JUDGEMENT

When it comes to matters 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 officers in charge of Delhi’s administration. The various parties’ current interpretation of Article 239 AA (4) in the governance of Delhi is entirely up to their own judgement. The decision is limited to constitutional principles and must address their practical application, which may result in additional litigation. As such, there is still a great deal of friction between the Lieutenant Governor and the Delhi government even after the decision was made.

Reference

[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