Case Analysis: Government of NCT of Delhi v. Union of India (2023) | Delhi Government has Control Over "Services" Excluding Public Order, Police & Land

The 'Case Analysis: Government of NCT of Delhi v. Union of India (2023)' is an important case that deals with how the Union Territories' legislative and executive control is to be maintained. The case particularly deals with the National Capital Territory of Delhi and the continuing anomaly with regard to the legislative and executive powers to be handed over to the Parliament and the LG or the Legislative Assembly.

Case Title: Government of NCT of Delhi v. Union of India

Court: Supreme Court of India

Citation: Civil Appeal No 2357 of 2017

Judges: Dr. D.Y. Chandrachud, C.J., M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, J.J

Date: 11th May 2023

Facts of the Case

In order to understand the facts involved in this case, it is imperative to understand the following series of events that led to the present case. Let us comprehend the same:

On 21st May 2015, the Union Ministry of Home Affairs issued a notification as per which the LG (Lieutenant Governor) was to exercise all control that is delegated to him by the President from time to time. This was with regards to specified subject matters such as “services, public order, police and land”. Chief Minister’s views could be sought by LG at his discretion.

This notification led to a series of petitions in the High Court questioning its validity. The Delhi High Court ruled in its favour stating that, “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi.” However, upon appeal, the two-judge bench of the Delhi HC referred the issue of interpretation of Article 239AA to a Constitution Bench on 15 February 2017.

Post the interpretation of Article 239AA by the Constitution Bench on 4 July 2018, the appeals were forwarded to a regular bench. When different views were adopted by the two-judge bench regarding whether “services” are excluded in view of Article 239AA(3)(a) from the legislative and executive domain of GNCTD, the matter was again referred for consideration to a three-judge bench. While dealing with the same, it was found by the three-judge bench that the interpretation order passed by the constitution bench in 2018 had refrained from dealing with the following two points:

(i) “in so far as any such matter is applicable to Union Territories”; and

(ii) “subject to the provisions of this Constitution''

These two points were then referred for adjudication to the Constitution Bench. This limited issue is dealt with in the present case that is, Government of NCT of Delhi v. Union of India. The present case is thereby dealing with the “scope of legislative and executive powers of the Centre and NCTD with respect to the term “Services”.

Issues Involved

From the facts as read above, it can be understood that the issue involved in the present case is to evaluate whether the NCTD or the Union government has legislative and executive control over “services”.

The Constitution Bench has elaborated on the “scope of legislative and executive powers of the Centre and NCTD with respect to the term “Services”.

Laws Applied

The provisions of relevant laws as applicable in the present case majorly involve Article 239AA which deals with “Special provisions with respect to Delhi”. Other laws which have been referred to while making the arguments and the judgement thereof include Section 7(5) of the GNCTD Act, Section 3(58) of the General Clauses Act, States Reorganization Act 1956 and the Government of Union Territories Act 1963.

Judgment/ Decision

After an elaborate discussion that scrutinized the various parts of the 2018 judgment of the Constitution Bench along with attempting to comprehend certain other aspects such as balancing of the local and national interest, inclusive interpretations of Article 239AA, the non-unitary form of the Constitution among others. The motive was to ascertain the scope of the legislative and executive powers between the Union and the NCTD. The following conclusions have been thereby been ascertained and have been extracted by the judgement passed by the Constitution Bench:

• With regards to the class of Union Territories, the Constitution Bench has denied the existence of a homogenous class of Union Territories which have governance structures similar to each other.
• NCTD has been granted a special status that is of “sui generis” which makes it different from the rest of the Union Territories.
• With regards to the power of NCTD, all entries as present in List II and III are under its ambit except for the ones that have been expressly excluded. The Parliament on the other hand has exclusive control over subject matters as mentioned in List I and also all such matters of List II and III which have been excluded from the purview of the GNCTD.
• The executive power of NCTD has been stated to be ‘co-extensive’ with its legislative power. This means that all matters which are under the legislative control of the NCTD shall also be under the executive control of the NCTD.
• With regards to List II and the Union of India’s power over its subject matters, the same is only 3, whereby NCTD is not granted any power.
• The executive powers of NCTD on subject matters as enlisted in List II and III shall be subject to the executive power that has been granted expressly to the Union by the Constitution or by any of the laws as enacted by the Parliament.
• The Constitution Bench has stated elaborately how the phrase “insofar as any such matter is applicable to Union Territories” in Article 239AA (3) cannot mean to exclude powers of the NCTD (apart from the ones which have been expressly excluded).
• Another phrase which had to be clarified by the present case is, “Subject to the provisions of this Constitution” in Article 239AA (3) has been made to mean that NCTD’s legislative power shall not be limited but rather guided by the principles and provisions of the Constitution.
• With regards to “Services” (Entry 41 of List II, Seventh Schedule), NCTD has been granted the power to legislative and executive powers.

Thus the order passed on 6th May 2023 by the Constitution Bench has answered the pending issues with the above explanations that had been referred to it for limited adjudication.

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