Supreme Court Clarifies Delhi Government’s Control Over Services: Government of NCT of Delhi vs. Union of India (2023)

LEGAL ISSUE: Scope of legislative and executive powers of the Government of National Capital Territory of Delhi (GNCTD) over “services.”
CASE TYPE: Constitutional Law, Federalism
Case Name: Government of NCT of Delhi vs. Union of India
[Judgment Date]: May 11, 2023

Date of the Judgment: May 11, 2023
Citation: [To be updated when available in INSC format]
Judges: Dr. Dhananjaya Y Chandrachud, CJI; MR Shah, J; Krishna Murari, J; Hima Kohli, J; Pamidighantam Sri Narasimha, J. The judgment was unanimous, with the opinion authored by Chief Justice Dr. Dhananjaya Y Chandrachud.

Who controls the bureaucracy in Delhi? This was the central question before the Supreme Court in a recent case that delves into the complex power dynamics between the Delhi government and the Union government. The core issue was whether the elected government of Delhi has control over its administrative services, or if that power rests with the Lieutenant Governor, representing the Union government. This judgment clarifies the extent of the Delhi government’s authority over its “services,” a crucial aspect of its governance.

Case Background

The dispute arose from a notification issued by the Union Ministry of Home Affairs on May 21, 2015. This notification stated that the Lieutenant Governor of Delhi would have control over “services,” in addition to “public order,” “police,” and “land.” The Lieutenant Governor could consult with the Chief Minister on “services” at his discretion. This notification was challenged by the Delhi government, arguing that “services” fall under the purview of the elected government. The High Court of Delhi upheld the notification, leading to an appeal to the Supreme Court.

Timeline

Course of Proceedings

The High Court of Delhi had upheld the Union government’s notification, stating that “services” fall outside the purview of the Delhi Legislative Assembly. This decision was appealed to the Supreme Court. A two-judge bench of the Supreme Court, recognizing the substantial legal question regarding the interpretation of Article 239AA of the Constitution, referred the matter to a Constitution Bench. After the Constitution Bench gave its interpretation of Article 239AA, the matter was placed before a regular bench. The two-judge bench gave a split verdict, and the matter was again referred to a three-judge bench. The three-judge bench then referred the limited question of the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services” to a Constitution Bench.

Legal Framework

The core of the dispute revolves around Article 239AA of the Constitution, which provides special provisions for Delhi. Specifically, Article 239AA(3)(a) states:

“(3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18.”

This clause grants the Delhi Legislative Assembly the power to make laws on subjects in the State List and Concurrent List, except for “public order,” “police,” and “land” (Entries 1, 2, and 18 of the State List), and matters related to these entries. The key phrases in contention are “insofar as any such matter is applicable to Union Territories” and “Subject to the provisions of this Constitution.” The Union government argued that these phrases limit Delhi’s legislative power. The Supreme Court also considered Entry 41 of the State List, which deals with “State Public Services; State Public Services Commission”.

Arguments

The arguments presented by both sides were as follows:

Arguments by the Government of NCT of Delhi:

• ✓ The Legislative Assembly of NCTD has the power to enact laws under Entry 41 of List II of the Seventh Schedule.
• ✓ Even if the legislature of NCTD has not exercised legislative power related to Entry 41 of List II, it does not imply that the power ceases to exist.
• ✓ NCTD has legislative and executive power over all entries in List II other than entries 1,2, and 18.
• ✓ The phrase “insofar as such matter is applicable to Union Territories” in Article 239AA is inclusionary and not exclusionary.
• ✓ NCTD is sui generis and cannot be brought within the common class of ‘Union Territories’.
• ✓ The provisions of Part XIV of the Constitution extend to Union territories.
• ✓ The Balakrishnan Committee report, which opined against the inclusion of “services” within the legislative and executive ambit of NCTD, is irrelevant.
• ✓ Personnel belonging to All-India Services and Central Government Services are governed by specific rules, and the posting of officers within the departments of GNCTD is the prerogative of the latter.

Arguments by the Union of India:

• ✓ 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.
• ✓ The 2018 Constitution Bench judgment did not decide whether NCTD has legislative competence over Entry 41 of List II.
• ✓ Delhi, being the national capital, enjoys a special status which requires the Union to have control over services.
• ✓ 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 control of Union of India over “services” has not led to any issue pertaining to the governance of NCTD.
• ✓ The Transaction of Business Rules 1993 provide enough powers to Ministers of GNCTD to ensure supervisory and functional control over civil services.

The innovativeness of GNCTD’s argument lies in its emphasis on the unique status of Delhi as a National Capital Territory with a representative form of government, arguing for an interpretation of Article 239AA that empowers the elected government. The Union government’s argument is innovative in its attempt to restrict the legislative power of GNCTD by interpreting the phrases “insofar as any such matter is applicable to Union Territories” and “subject to the provisions of the constitution” restrictively.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issue for consideration:

1. What is the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services”?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered various authorities to arrive at its decision. These are categorized by the legal point they address:

On the special status of NCTD:

• New Delhi Municipal Council v. State of Punjab [(1997) 7 SCC 339] – Supreme Court of India: Established that all Union Territories are not on the same footing and NCT of Delhi is a class by itself.

On the interpretation of Article 239AA:

• Government of National Capital Territory of Delhi v. Union of India [(2018) 8 SCC 501] – Supreme Court of India: The 2018 Constitution Bench judgment laid down the principles for interpreting Article 239AA.

On the interpretation of the term “State”:

• T.M. Kanniyan v. CIT [(1968) 2 SCR 103] – Supreme Court of India: Held that the expression “State” in Article 246 does not include a Union Territory.
• Advance Insurance Corporation Limited v. Gurudasmal [(1970) 1 SCC 633] – Supreme Court of India: Held that the amended definition of ‘State’ under General Clauses Act applies to the interpretation of the Constitution.
• Shiv Kirpal Singh v. VV Giri [AIR 1970 SC 2097] – Supreme Court of India: Held that definitions under the General Clauses Act do not apply to the interpretation of the Constitution, but this decision was held to be per incuriam.
• Prem Kumar Jain v. Union of India [(1976) 3 SCC 473] – Supreme Court of India: Held that the definition of “State” includes Union Territories for the purpose of Article 312.
• New Delhi Municipal Council v. State of Punjab [(1997) 7 SCC 339] – Supreme Court of India: Reiterated that the word “State” used in entries in the Seventh Schedule would not include Union Territories.

On the application of General Clauses Act:

• Section 3(58) of the General Clauses Act 1897: Defines “State” to include a Union Territory.

On the nature of legislative power:

• State of Bihar v. Maharajadhiraja Sir Kameshwar Singh [1952 SCR 889] – Supreme Court of India: Held that the power to make a law is not coupled with a duty to exercise that power.
• State of Haryana v. Chanan Mal [(1977) 1 SCC 340] – Supreme Court of India: Held that the existence of power and the actual exercise of power are distinct concepts.

On the scope of Entry 41 of the State List:

• State of Gujarat v. Raman Lal Keshav Lal [(1980) 4 SCC 653] – Supreme Court of India: Defined the scope of a ‘service’ under Entry 41 of the State List.
• IK Saksena v. State of Madhya Pradesh [(1976) 4 SCC 750] – Supreme Court of India: Held that entries in the Seventh Schedule should be interpreted with the widest amplitude.

On the interpretation of Article 309:

• Union of India v. Tulsiram Patel [(1985) 3 SCC 398] – Supreme Court of India: Discussed the ubiquitous nature of civil services and the legislative competence under Article 309.
• B.S. Vadera v. Union of India [(1968) 3 SCR 575]– Supreme Court of India: Held that the rules made under the proviso to Article 309 are subject to the Act made by the appropriate legislature.
• A.B. Krishna v. State of Karnataka [(1998) 3 SCC 495]– Supreme Court of India: Held that the rule making power under the proviso to Article 309 is transitional.

The court also considered the report of the Balakrishnan Committee, but ultimately did not rely on it for the interpretation of Article 239AA.

Judgment

The Supreme Court ruled in favor of the Delhi government, clarifying the extent of its control over services.

The Court’s reasoning was based on the following:

• ✓ Constitutional Scheme: The Court emphasized the unique status of Delhi as a National Capital Territory with a representative form of government, as enshrined in Article 239AA.
• ✓ Interpretation of Article 239AA: The Court interpreted Article 239AA(3)(a) to mean that the Delhi Legislative Assembly has the power to make laws on all subjects in the State List and Concurrent List, except for the expressly excluded entries. The phrase “insofar as any such matter is applicable to Union Territories” was interpreted as inclusive, not exclusionary.
• ✓ Executive Power: The Court held that the executive power of the Delhi government is co-extensive with its legislative power. This means that the elected government has control over the bureaucracy in matters where it has the power to legislate.
• ✓ Federalism and Democracy: The Court emphasized the principles of federalism and democracy, stating that the elected government of Delhi must have the power to implement its policies through control over its bureaucracy.
• ✓ Rejection of Union’s Arguments: The Court rejected the Union government’s arguments that Delhi’s status as the national capital necessitates Union control over services. The Court held that the constitutional safeguards in Article 239AA adequately protect the Union’s interests.

The Court observed that:

• ✓ The phrase “insofar as any such matter is applicable to Union Territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.
• ✓ The legislative power of NCTD under Article 239AA(3) is to be guided by the broader principles and provisions of the Constitution.
• ✓ The Constitution provides States with power to function independently within the area transcribed by the Constitution.
• ✓ The phrase “Subject to the provisions of this Constitution” must be interpreted to give effect to the underlying principles in the Constitution.

The Court underscored the importance of democratic accountability in a parliamentary system:

• ✓ Civil servants are accountable to Ministers.
• ✓ Ministers are accountable to Parliament/Legislature.
• ✓ Parliament/Legislature is accountable to the electorate.

The Court also clarified that:

• ✓ The Lieutenant Governor is bound by the aid and advice of the Council of Ministers in matters within the legislative domain of NCTD.
• ✓ The Lieutenant Governor cannot refer every matter to the President.
• ✓ The Lieutenant Governor may act in his discretion only in two classes of matters: (i) matters outside the powers of the Legislative Assembly and where the President has delegated powers; and (ii) matters which require him to act in his discretion or where he is exercising judicial or quasi-judicial functions.

The Court also held that the definition of “State” in Section 3(58) of the General Clauses Act, which includes Union Territories, applies to Part XIV of the Constitution. The Court noted that:

• ✓ The exercise of rule-making power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List.
• ✓ The Delhi Fire Service Act 2007 was enacted by the Legislative Assembly of NCTD in exercise of its power under Entry 41 of the State List.

The Court also clarified the extent of NCTD’s control over services:

• ✓ NCTD’s legislative and executive power over Entry 41 does not extend to services related to “public order,” “police,” and “land.”
• ✓ Legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD.
• ✓ References to “State Government” in relevant Rules of All India Services or Joint Cadre Services, of which NCTD is a part or which are in relation to NCTD, shall mean the Government of NCTD.
• ✓ Any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘ police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD.

The Court quoted from the judgment:

“…the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List.”

“The meaning of “aid and advise” employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA.”

“The triple chain of command is as follows: (a) Civil service officers are accountable to Ministers; (b) Ministers are accountable to Parliament/Legislature; and (c) Parliament/Legislature is accountable to the electorate.”

There was no minority opinion in this judgment. The judgment was unanimous.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to uphold the principles of representative democracy and federalism. The Court emphasized that an elected government must have control over its bureaucracy to effectively implement its policies and be accountable to the people. The Court also sought to balance the interests of the Union government and the Delhi government, ensuring that while the Union’s concerns are addressed, the autonomy of the elected government is not undermined. The Court was also guided by the need to give a purposive interpretation to Article 239AA, which was inserted into the Constitution to accord a special status to Delhi.

Key Takeaways

• ✓ The Delhi government has control over its administrative services, except for those related to “public order,” “police,” and “land.”
• ✓ The Lieutenant Governor is bound by the aid and advice of the Council of Ministers in matters within the legislative domain of NCTD.
• ✓ The Supreme Court has reaffirmed the importance of representative democracy and federalism in the governance of Delhi.
• ✓ The judgment clarifies the power dynamics between the Delhi government and the Union government, providing a framework for future governance.

Directions

The Supreme Court directed the Registry to place the papers of this appeal before the Regular Bench for disposal after obtaining the directions of the Chief Justice of India on the administrative side.

Development of Law

The ratio decidendi of this case is that the Government of NCTD has legislative and executive power over “services” (Entry 41, State List), excluding “public order,” “police,” and “land.” This judgment clarifies the extent of the Delhi government’s authority over its “services,” a crucial aspect of its governance and is a change from the previous position where the Union Government had control over the services.

Conclusion

In conclusion, the Supreme Court’s judgment clarifies that the elected government of Delhi has control over its administrative services, except for those related to “public order,” “police,” and “land.” This decision upholds the principles of representative democracy and federalism, ensuring that the elected government can effectively implement its policies and be accountable to the people. The judgment provides a clear framework for the division of powers between the Delhi government and the Union government, resolving a long-standing dispute and setting a precedent for the governance of otherUnion Territories with similar constitutional arrangements.