TaxTMI 
TaxTMI 
2023 (5) TMI 1462
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.... Constitution Bench judgment 15 (a) Delhi: A Sui Generis model 15 (b) Legislative and executive power of the Legislative Assembly of NCTD 19 (c) "Insofar as any such matter is applicable to Union Territories" 23 D. The 'class' of Union territories 30 E. Maintaining the balance of local interest and national interest 35 F. Inclusive interpretation of "insofar as any such matter is applicable to Union territories" 38 G. "Subject to the provisions": A limitation? 47 H. The Constitution is not Unitary 50 I. Scope of Legislative and Executive Power between the Union and NCTD 56 J. Triple chain of accountability: Civil Servants in a Cabinet Form of Government 68 (A) Role of civil services in a modern government 68 (b) Accountability of civil servants in a Westminster parliamentary democracy 69 (c) Accountability of Civil Service Officers in a Federal Polity 73 K. Balakrishnan Committee Report 75 L. Applicability of Part XIV to Union Territories 80 (a) Meaning of "State" for the purpose of Part XIV of the Constitution 80 (b) Omissio....
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....es: "Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, 'Services' will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being 'Public Order', 'Police' and 'Land' respectivel....
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....bly of the National Capital Territory and the Members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the Members thereof respectively; and any reference in Articles 326 and 329 to "appropriate legislature" shall be deemed to be a reference to Parliament. (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. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after th....
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.... Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution. (8) The provisions of Article 239-B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union Territory of Puducherry, the Administrator and its legislature, respectively; and any reference in that Article to "clause (1) of Article 239-A" shall be deemed to be a reference to this Article or Article 239-AB, as the case may be." 5. The Constitution Bench pronounced its judgment ["2018 Constitution Bench judgment"; (2018) 8 SCC 501] on 4 July 2018. The judgment contained three judicial opinions. The opinion of the majority was authored by Chief Justice Dipak Misra, in which Justice A.K. Sikri, and Justice A.M. Khanwilkar joined. ["Judgment of the majority"] One of us (Dr. D.Y. Chandrachud, J.) and Justice Ashok Bhushan delivered separate concurring opinions. The Constitution Bench dealt with the constitutional status of NCTD and the modalities of its administration based on the division of powers, functions a....
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....e above reference forms the subject of adjudication before this Constitution Bench. The limited issue for the consideration of this Constitution Bench only relates to the "scope of legislative and executive powers of the Centre and NCTD with respect to the term "Services." That is to say, whether the NCTD or the Union government has legislative and executive control over "services." We will now turn to the arguments made by counsel on opposing sides. B. Submissions 8. Dr. A M Singhvi, learned Senior Counsel appearing for the appellant, made the following submissions: a. The Legislative Assembly of NCTD has the power to enact laws under Entry 41 of List II of the Seventh Schedule. The power cannot be excluded merely because the entry uses the term "state public services" and not "Union Territory public services". In fact, the Delhi Legislative Assembly has enacted laws that fall within Entry 41; b. Even if it is found that 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; c. NCTD has legislative power and executive power over all entries in List II other than ....
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....n national capital territories across the world. He argued that regardless of the level of devolution of power in countries across the world, even in countries with centralized forms of government, the power to control "services" has been devolved upon the local government of the National Capital Territory. 10. Mr. Tushar Mehta, learned Solicitor General, made the following submissions on behalf of the Union of India: a. 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; b. The 2018 Constitution Bench judgment did not decide whether NCTD has legislative competence over Entry 41 of List II; c. Delhi, being the national capital, enjoys a special status which requires the Union to have control over services, in the absence of which it would become impossible for the Union to discharge its national and international responsibilities; d. 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 Unio....
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...., through their elected representatives, afforded a voice in the governance of NCTD, while balancing the national interests of Union of India. The majority decision, speaking through Chief Justice Dipak Misra, held: "196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal [...] S. Essence of Article 239-AA of the Constitution 206. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239-AA... 207. At the outset, we must declare that the insertion of Articles 239-AA and 239-AB, which specifically pertain to NCT of Delhi, is reflective of the intention of Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239-A is singularly applicable as on date. The same has been authoritatively held by the majority judgment in NDMC case to the effect that the NCT of Delhi is a class by itself... 209. The exercise of establishing a democratic....
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....shall", makes it mandatory for Parliament to create by law a Legislative Assembly for the National Capital Territory of Delhi. Further, sub-clause (a) of clause (2) declares very categorically that the Members of the Legislative Assembly of the National Capital Territory of Delhi shall be chosen by direct election from the territorial constituencies in the National Capital Territory of Delhi. Unlike Article 239-A clause (1) wherein the body created by Parliament by law to perform the functions of a legislature for the Union Territory of Puducherry may either be wholly elected or partly elected and partly nominated, there is no such provision in the context of the Legislative Assembly of NCT of Delhi as per which Members can be nominated to the Legislative Assembly. This was a deliberate design by Parliament. 215. We have highlighted this difference to underscore and emphasise the intention of Parliament, while inserting Article 239-AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of NCT of Delhi and to treat the Government of NCT of Delhi as a represen....
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....while Part VIII brings together a common grouping of all Union territories, the Constitution evidently did not intend to use the same brush to paint the details of their position, the institutions of governance (legislative or executive), the nature of democratic participation or the extent of accountability of those entrusted with governance to their elected representatives..." (emphasis supplied) 16. Thus, it is evident from the 2018 Constitution Bench judgment that the constitutional status of NCTD is not similar to other Union Territories, which are covered under Part VIII of the Constitution. 17. The judgment of the majority in the 2018 Constitution Bench decision underscores the importance of interpreting the Constitution to further democratic ideals. It was held: "284.1. While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The co....
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....ed by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by the legislative assembly... " 19. The 2018 Constitution Bench judgment held that the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Article 239AA(4) provides that the Council of Ministers shall aid and advise the Lieutenant Governor in the exercise of the functions of the latter in relation to matters with respect to which the Legislative Assembly has the power to make laws. Thus, the executive power of NCTD shall extend over entries in List II, except the excluded entries. After analysing the provision of Article 239AA(4), it was held in the opinion of the majority in the 2018 Constitution Bench judgment that the Union has executive power only over the three entries in List II over which NCTD does not have legislative competence, that is, entries 1,2, and 18 in List II. It was held: "222. A conjoint reading of Article 239-AA(3)(a) and Article 239-....
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....atters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution." 20. The judgment of the majority, however, clarified that if Parliament makes a law in relation to any subject in List II and List III, the executive power of GNCTD shall then be limited by the law enacted by Parliament. It was held: "284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239-AA divulges that the executive power of the Government of NCTD 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. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must confor....
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....at the expression "State" in Article 246 does not include a Union Territory. The expression "insofar as any such matter is applicable to Union Territories" cannot be construed to mean that the Legislative Assembly of NCT would have no power to legislate on any subject in the State or Concurrent Lists, merely by the use of the expression "State" in that particular entry. This is not a correct reading of the above words of Article 239-AA(3)(a). As we see below, that is not how Parliament has construed them as well. 462. Section 7(5) of the GNCTD Act provides that salaries of the Speaker and Deputy Speaker of the Legislative Assembly may be fixed by the Legislative Assembly by law. Section 19 provides that the Members of the Legislative Assembly shall receive salaries and allowances as determined by the Legislative Assembly by law. Section 43(3) similarly provides that the salaries and allowances of Ministers shall be determined by the Legislative Assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacted the above provisions unless legislative competence resided in the States....
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....rent List is hedged by phrase "in so far as any such matter is applicable to Union territories". 552. A look of the Entries in List II and List III indicates that there is no mention of Union Territory. A perusal of the List II and III indicates that although in various entries there is specific mention of word "State" but there is no express reference of "Union Territory" in any of the entries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42 and 43, there is specific mention of word "State". Similarly, in List III Entry 3, 4 and 43 there is mention of word "State". The above phrase "in so far as any such matter is applicable to Union Territory" is inconsequential. The reasons are two fold. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatabl....
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....the 2019 split verdict, Justice Bhushan was of the contrary view. He held that the majority opinion in the 2018 Constitution bench judgment did not interpret the phrase "insofar as any such matter is applicable to Union Territories": "187. As noticed above, the Constitution Bench in para 39 extracted above has noticed the submissions of the counsel for the respondent that words "insofar as any such matter is applicable to Union Territories..." in Article 239-AA(3)(a) restrict the legislative power of the Legislative Assembly of Delhi to only those entries which are only applicable to Union Territories and not all. The elaborate discussion on its answer is not found in the majority opinion expressed by Justice Dipak Misra, C.J. (as he then was). The submission having been made before the Constitution Bench which submission was considered in other two opinions expressed by Dr Justice D.Y. Chandrachud and myself, it is useful to notice as to what has been said in other two opinions in the Constitution Bench... 191. Dr D.Y. Chandrachud, J., thus, held that the expression "State" is by itself not conclusive of whether a particular provision of the Constitution would ap....
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.... reference to the historical background which led to the conceptualization of Union Territories would be useful to assess the argument of the Union that there exists a class of Union territories. When the Indian Constitution was adopted, the States of the Indian Union were classified into Part A, Part B, and Part C States. Delhi was a Part C State and was governed by the Government of Part C States Act 1951. The Act provided for a Council of Ministers and a legislature of elected representatives for Delhi with the power of making laws with respect to any of the matters enumerated in the State List or the Concurrent List except for the subjects which were expressly excluded. The excluded subjects corresponded to those in Article 239AA along with the subject of 'Municipal Corporations.' These powers were limited in nature and subject to the legislative power of Parliament. 33. The Constitution (Seventh Amendment) Act 1956, ["1956 Constitution Amendment"] based broadly on the recommendations of the Fazl Ali Commission and designed to implement the provisions of the States Reorganization Act 1956, inter alia did away with the erstwhile classification of States into Part A, Part B, a....
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.... fresh dimension to the governance of Union Territories. By virtue of the provisions of Article 239AA, NCTD became the only Union Territory with a special status of having a constitutionally mandated legislature and Council of Ministers. This was a departure from the earlier model of governance for Union territories. Article 239AA, in contrast, constitutionally mandates a legislature and prescribes the scope of legislative and executive power for NCTD. 38. Article 239AA creates a wide variation in structures of governance of NCTD as compared to other Union Territories, with differences even as regards the manner in which legislative powers have been bestowed upon them. For instance, Article 239A provides that Parliament "may" create a legislature for Puducherry. On the other hand, for NCTD, the Constitution itself (in terms of Article 239AA) has created a Legislative Assembly and a Council of Ministers. The constitutionally coded status of NCTD results in a creation of a significant degree of variance in the governance structure when compared to other States and Union territories. 39. The concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment expres....
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.... Gujarat 371-A. Special provision with respect to the State of Nagaland 371-B. Special provision with respect to the State of Assam 371-C. Special provision with respect to the State of Manipur 371-D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana] 371-E. Establishment of Central University in Andhra Pradesh 371-F. Special provisions with respect to the State of Sikkim 371-G. Special provision with respect to the State of Mizoram 371-H. Special provision with respect to the State of Arunachal Pradesh 371-I. Special provision with respect to the State of Goa 371-J. Special provisions with respect to State of Karnataka" 41. The design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and Union territories, it preserves the local aspirations of different regions. "Unity in diversity" is not only used in common parlance, but is also embedded in our constitutional structure. Our interpretation of the Constitution must give substantive weight to the und....
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....icle 254, which provides for the overriding power of Parliament only on subjects in the Concurrent List, Parliament has overriding power in relation to the NCTD over subjects in both List II and List III. Fourth, the second proviso to Article 239AA(c) provides that Parliament may enact "at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly" of NCTD. Fifth, under Article 239AA(7)(a), Parliament may by law make provisions for giving effect to, or supplementing the provisions in the forgoing clauses of Article 239AA and for "all matters incidental or consequential thereto". Article 239AA(7)(b) stipulates that such law shall not be deemed to be an amendment of the Constitution for the purposes of Article 368, which deals with the power and procedure to amend the Constitution. Thus, Article 239AA(3) balances between the interest of NCTD and the Union of India. 45. This constitutional balance has been analyzed in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment in the following terms: "While bearing [...] fundamental constitutional principle....
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....tories" is specifically a term of exclusion and not a term of inclusion. It argued that the phrase was introduced to limit the legislative and executive power over entries in List II over and beyond the entries which have been expressly excluded by Article 239AA. We shall now refer to other provisions of the Constitution to analyse the above arguments. 48. The power of Parliament and legislatures of States to legislate upon entries in the Union List, State List and Concurrent List flows from Article 246 of the Constitution. Article 246(3) confers exclusive power to the legislatures of States to make laws for that State with respect to the matters enumerated in the State List. Article 246(4) provides that Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. 49. Article 366 provides meanings of various expressions used in the Constitution, unless the context otherwise requires. The provision stipulates that unless the context otherwise requires, the expressions defined in an Article shall have the meanings respectively assigned to....
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....d with respect to the period after the amendment shall include a State specified in the First Schedule to the Constitution and shall include a Union Territory: "(58) "State"- (a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory;]" 54. In Advance Insurance Corporation Limited v. Gurudasmal (1970) 1 SCC 633, the question before a Constitution Bench of this Court was whether the word 'State' in Entry 80 of List I could be read to include Union territories. Entry 80 read as follows: "80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to an....
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....ions of the General Clauses Act as modified by the President in exercise of the power under Article 372A shall apply to the interpretation of the Constitution. It cannot be held otherwise merely because Article 367 does not refer to Article 372A. To interpret Article 367 in such a manner would render Article 372A and the amendments in the Constitution by the 1956 Constitution Amendment otiose. The power to make adaptations and modifications was granted to the President by Article 372A to bring the provisions of law in accordance with the Constitution, as amended by the 1956 Constitution amendment. If Article 367 is interpreted as excluding modifications under Article 372A, there would be an apparent inconsistency between the interpretation of the Constitution and the interpretation of statutes. While in the case of the former, the definition of State prior to the 1956 amendment would apply, in the case of the latter, the definition as amended by the 1956 amendment would apply. Thus, a literal interpretation of Article 367 would render the Constitution unworkable and would not give effect to the 1956 Constitution Amendment. This Court must render a purposive interpretation of Articl....
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....uld be repugnant to the subject and context of Article 246: "4. Parliament has plenary power to legislate for the Union territories with regard to any subject. With regard to Union territories there is no distribution of legislative power. Article 246(4) enacts that "Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the state list." R.K. Sen v. Union it was pointed out that having regard to Article 367, the definition of "State" in Section 3(58) of the General clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under that definition, the expression "State" as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 "shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory". But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression "States" means the State specified in the First Schedule. There is a distribution of legislative power....
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....islatures of not less than one-half of the States. If the phrase "insofar as such matter is applicable to Union Territories" was not included in Article 239AA, Parliament and the Legislature of States would have been required to amend all entries in the Seventh Schedule where the term "State" is used to "State and Union territories". This would have required a special majority. It was to avoid this time consuming process that the expansive phrase of "insofar as such matter is applicable to Union Territories" was used in Article 239AA. 62. Article 239AA expressly excludes entries 1,2, and 18 of List II from the ambit of the legislative competence of the Legislative Assembly of NCTD. Article 239AA also stipulates that the legislative power of NCTD is excluded with respect to entries 64,65, and 66 of List II insofar as they relate to entries 1,2, and 18. Entry 1 deals with public order, Entry 2 deals with police, and Entry 18 deals with Land. Entry 64 deals with "offences against laws with respect to any of the matters in this List", Entry 65 states "jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List", and Entry 66 state....
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....een used in twenty-two provisions of the Constitution. Notably, the phrase has also been used in the provisions dealing with the legislative power of Parliament and the State Assemblies (Article 245)^1as well as in the provisions dealing with the executive power of the Union (Article 73(2))^2 and of the States (Article 162(3))^3. The phrase is used to indicate that the legislative power and competence exercised by a legislature must be within the limits circumscribed by the Constitution. Those boundaries may differ on a case to case basis. For instance, a law made by a legislature cannot violate the fundamental rights of citizens. Another instance is that Parliament can only enact laws on subjects within its legislative competence. Furthermore, any law made by Parliament or a State Legislature shall be subject to the power of judicial review under Article 32 or Article 226. A Constitution Bench of this Court in the case of Rajendra Diwan v. Pradeep Kumar Ranibala [2019] 17 SCR 1089 held: "Parliament and the State Legislatures derive their power to make laws from Article 245(1) of the Constitution of India and such power is subject to and/or limited by the provisions of the....
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....ution. Such limitations fall under two heads- (i) The Fundamental Rights contained in Part III. The effects of the contravention of a Fundamental Right have been fully discussed under Art. 13. [...] (ii) Not merely the provisions included in Part III, but any other provision contained in the Constitution (even though it does not confer any fundamental right) constitutes a limitation upon legislative power on two conditions: (a) That the provision in question is justiciable, that is to say, intended to be and capable of being judicially enforced. (b) That the provision is mandatory, e.g., Arts. 255: 286, 301, 303-4. III. In the case of State legislation, there are further limitations, viz., that (a) its operation cannot extend beyond the boundaries of the State, in the absence of a territorial nexus; Another limitation on the legislative power or a ground of unconstitutionality is that the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution and has made an excessive delegation of that power to some other body. (b) it must be for the purposes of the State."....
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....he operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution." (emphasis supplied) 71. It emerges from the speeches of Dr Ambedkar in the Constituent Assembly that India adopted a federal model, in which the Union and the States were meant to operate within their assigned legislative domains. The States are not subservient to the Union. The legislative domain of the States was exclusive, and cannot be interfered with by the Union. This principle has been reiterated in judgments of this Court. 72. Justice B.P. Jeevan Reddy, in his separate opinion, in S R Bommai v. Union of India (1994) 3 SCC 1, where federalism was held to be part of the basic structure, held that, the States were independent and supreme in the sphere allotted to them, even if the Constitution has a centrai....
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....not a full-fledged state, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List. It is not a State under the First Schedule to the Constitution, yet it is conferred with power to legislate upon subjects in Lists II and III to give effect to the aspirations of the people of NCTD. It has a democratically elected government which is accountable to the people of NCTD. Under the constitutional scheme envisaged in Article 239AA(3), NCTD was given legislative power which though limited, in many aspects is similar to States. In that sense, with addition of Article 239AA, the Constitution created a federal model with the Union of India at the centre, and the NCTD at the regional level. This is the asymmetric federal model adopted for NCTD. While NCTD remains a Union Territory, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union and NCTD. The majority in the 2018 Constitution Bench judgment held that while NCTD could not be accorded the status of a State, the concept of federalism would still be applicable to NCTD: ....
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....ralism. I. Scope of Legislative and Executive Power between the Union and NCTD 78. Article 239AA(3)(a) indicates that the Legislative Assembly of Delhi shall have the power to make laws for the whole or any part of NCTD with respect to matters in the State List and the Concurrent List, except for entries 1, 2, and 18 of the State List, and entries 64, 65 and 66 insofar as they relate to the entries 1, 2, and 18. Therefore, the legislative power of NCTD is limited to entries it is competent to legislate on. 79. Article 239AA(3)(b) provides that Parliament can "make laws with respect to any matter" for a Union Territory or any part of it. Therefore, the legislative power of Parliament shall extend to all subjects in the State List and the Concurrent List in relation to NCTD, besides of course the Union List. In case of a repugnancy between a law enacted by Parliament and a law made by Legislative Assembly of NCTD, the former shall prevail in terms of Article 239AA(3)(d). 80. The position that emerges from Article 239AA(3) is that NCTD has legislative power over entries in List II with limits (as excluded by the provision) but Parliament's legislative power extends to subj....
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....ined reading of Articles 73 and 162 indicates that the Union has exclusive executive power over entries in List I. The States have exclusive executive power over entries in List II. With respect to List III, that is, the concurrent list, the Union shall have executive power only if provided by the Constitution or by a law of Parliament. The States shall have executive power over the entries in List III. However, if a Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union "in a State" over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. This would completely abrogate the federal system of governance and the principle of representative democracy. It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence. 84. The princ....
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....majority that: "284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution... 284.17. 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 Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the "aid and advice" of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words "any matter" employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean "every matter"." 87. In matt....
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....he aid and advice of his Council of Ministers. It also provides for rules to ensure convenient transaction of business with the Ministers, including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. In exercise of the power under Section 44, the President framed the Transaction of Business Rules of the Government of National Capital Territory of Delhi 1993. In his concurring opinion in the 2018 Constitution Bench judgment, Justice Chandrachud held that these Rules provide a mechanism to be followed in matters relating to the executive functions of GNCTD. It was held: "428. A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the Government of NCT, decision-making is by the Government comprised of the Council of Ministers with the Chief Minister at its head... Rule 24 deals with an eventuality when the Lieutenant Governor may be of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenan....
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....h the rules concerning transaction of business." (emphasis supplied) 91. The Rule provides that the Lieutenant Governor may issue standing orders relating to "his executive functions", which must be consistent with the Rules of Business as a whole. As an exception to the Rule, only "in respect of matters connected with 'public order', 'police' and 'land'", which are matters outside the legislative domain of NCTD under Article 239AA(3)(a), he may "exercise his executive functions to the extent delegated to him by the President". The second part of this proviso further indicates that in matters outside the legislative domain of NCTD, the Lieutenant Governor may be required to consult with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. This Rule thus clarifies that the Lieutenant Governor may exercise his executive function in relation to matters outside the legislative purview of NCTD only "to the extent delegated to him by the President". As a matter of principle, in the discharge of executive functions within the domain of NCTD, the Lieutenant Governor must abide by the "aid and advice" of the Coun....
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....discretion or to exercise any judicial or quasi-judicial functions". The term "administration" cannot be understood as the entire administration of GNCTD. Otherwise, the purpose of giving powers to a constitutionally recognised and democratically elected government would be diluted. 93. Therefore, the phrase "persons serving in connection with the administration of the National Capital Territory" in Rule 46 shall refer only to those persons, whose administration is linked with "public order", "police", and "land" which are subjects outside the domain of NCTD. 94. However, as noted in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment, Section 49 of the GNCTD Act confers an overriding power of general control to the President. According to Section 49, "the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by, the President." The directions of the President are in accordance with the "aid and advice" of the Council of Ministers of the Union of India. 95. Thus, the scope of the legislative and executive powers of the Un....
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....sive opinion on the issue. The subsequent sections of this judgment deal with the above questions. J. Triple chain of accountability: Civil Servants in a Cabinet Form of Government 97. Before discussing the question regarding the applicability of Part XIV to NCTD, it would be appropriate to discuss the principles which will guide our analysis on Part XIV. A discussion on the role of civil services in a Westminster-style Cabinet Form of Government is necessary to understand the issues at stake. (a) Role of civil services in a modern government 98. Civil services form an integral part of modern government. Professor Herman Finer, in his classic work titled "The Theory and Practice of Modern Governance", states that "the function of civil service in the modern state is not merely an improvement of government; for without it, indeed, government itself would be necessarily impossible." [Herman Finer, The Theory and Practice of Modern Governance (New York: The Dial Press, 1932) at page 1163]. The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service. ....
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....India essentially requires that Parliament and the government, consisting of elected representatives, to be accountable to the people. The Cabinet consisting of elected representatives is collectively responsible for the proper administration of the country and is answerable to the legislature for its actions. The Constitution confers the legislature the power to enact laws and the government to implement laws. The conduct of the government is periodically assessed by the electorate in elections conducted every five years. The government is formed with the support of a majority of elected members in the legislature. The government responsible to the legislature is assessed daily in the legislature through debates on Bills, or questions raised during Question Hour, resolutions, debates and no-confidence motions. The government is responsible for the decisions and policies of each of the ministers and of their departments. This creates a multi-linked chain of accountability, where the legislature is accountable to the people who elected them, and the government is collectively responsible to the legislature. This establishes a link between the electorate and the government. The gover....
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....ial responsibility." 105. In the concurring opinion in the 2018 Constitution Bench decision, Justice Chandrachud highlighted the intrinsic link between government accountability and the principle of collective responsibility. The judgment underscored the responsibility of an individual minister to the legislature for any and every action undertaken by public officials in the department which the minister oversees: "327. Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments... 343. ... Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance... All Ministers are bound by a decision taken by one of them or their departments. " 106. Civil service officers thus are accountable to the ministers of the elected government, under whom they function. Ministers are in turn accountable to Parliament or, as the case may be. the state legislatures. Under ....
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....rnment is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected. A democratically elected government can perform, only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance. 111. We have already held that the relationship between the Union and NCTD resembles an asymmetric federal model, where the latter exercises its legislative and executive control in specified areas of the State List and the Concurrent List. Article 239AA, which conferred a special status to NCTD and constitutionally entrenched a representative form of government, was incorporated in the Consti....
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....on man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories. 2. The Bill seeks to give effect to the above proposals." 114. The Balakrishnan Committee specifically dealt with Entry 41 (relating to services) of the State List. Its report notes that Entry 41 is not available to the Union Territories, as (i) the Entry only mentions 'State' and not 'Union Territory'; (ii) Part XIV of the Constitution only refers to services in connection with the affairs of the State and services in connection with the affairs of the Union; and (iii) administration of the Union Territories is the responsibility of the Union and thus it falls within the purview of 'affairs of the Union'. The Report stated: "8.1 PUBLIC SERVICES IN THE DELHI ADMINISTRATION 8.1.2. Entry 41 of the State List mentions "State Public Services: State Public Services Commission". Obviously, this Entry is not applicable to Union territories because it mentions only "State" and not "Union territories". This view ....
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.... an external aid for construing or understanding the statute. However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee." (emphasis supplied) 118. Contrary to the suggestion in the report, the 2018 Constitution Bench judgment provided that NCTD shall have legislative power over all subjects in List II, except the excluded subjects provided in Article 239AA(3)(c). 119. The report of the Balakrishnan Committee was referred to in the Statement of Objects and Reasons of 1991 Constitution Amendment. The Statement of Objects and Reasons can only be referred to the limited extent of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the amendment, and the purpose of the amendment. [State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Bhaiji v. Sub-divisional Officer Thandla, (2003) 1 SCC 692] In RS Nayak v. AR Antulay (1984) 2 SCC 183,a Constitution Bench of this Court held that the reports of a committee which preceded the enactment of a legislation, ....
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....egislative competence of NCTD. By that logic, all the entries in List II would be impliedly excluded from the legislative competence of NCTD because list II of the Seventh Schedule is titled 'State list'. 121. Furthermore, the conclusion of the Balakrishnan Report that Entry 41 of the State List of the Seventh Schedule is not available to Union Territories because the Constitution does not envisage a third category of services covering the services of Union territories is contrary to the judgment of this Court in Prem Kumar Jain (supra), which had upheld services for NCTD. The judgment in Prem Kumar Jain (supra) was rendered prior to the Balakrishnan Committee Report of December 1989. The Balakrishnan Committee did not refer to the said judgment. Thus, the report of the Balakrishnan Committee cannot be relied upon determine if "Services" is available to NCTD. L. Applicability of Part XIV to Union Territories 122. The Union of India has submitted that NCTD does not have legislative competence over Entry 41 of List II because Part XIV of the Constitution does not contemplate any services for Union Territories. It has been argued that the legislative power of NCTD can be rest....
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.... Union Territory by holding that the definition of "State" would include Union territories for the purpose of Article 312 of the Constitution. The Union has argued that the decision in Prem Kumar Jain was limited for the purpose of the IAS (Cadre) Rules 1954 [1954 Cadre Rules] read with the All-India Services Act 1951. Furthermore, it was argued that the reference to Article 312 made therein has been made without any reference to the import of Article 308. It is the contention of the Union that interpreting the ratio of Prem Kumar Jain in a broad sense would cause violence to the machinery envisaged in Part XIV of the Constitution. 128. In Prem Kumar Jain, the judgment of the High Court of Delhi setting aside the establishment of a joint cadre exclusively for the Union Territories in the IAS was challenged. Article 312 stipulates that Parliament may by law create "All India Services" common to the Union and the States. A joint cadre of all the Union Territories was created under Rule 3(1) of the Indian Administrative Service (Cadre) Rules 1954 ["1954 Cadre Rules"]. The creation of a new joint cadre was challenged before the High Court on the ground that it was contrary to Articl....
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....C States. It follows, therefore, that they are also expressly excluded from the definition of "State" in Part XIV. There is nothing particular in the context of Article 313 which would require the word "State" therein to include a Union Territory. ... Article 367(1) of the Constitution applies to the interpretation of the Constitution the provision of the General Clauses Act as adapted under Article 372(2) of the Constitution. In view of Article 372(2)(a) such an adaptation had to be made within three years from the commencement of the Constitution. The definition of a "State" in section 3(58) of the General Clauses Act as adapted by the Adaptation of laws Order, 1950 issued under Article 372(2) of the Constitution [...]" (emphasis supplied) 130. In appeal, this Court set aside the judgment of the High Court of Delhi. Firstly, this Court held that in view of the amended definition of the expression "State" under Section 3(58) of the General Clauses Act, as adapted by the Adaptation of Laws Order 1956, there was nothing repugnant to the subject or context to make that definition inapplicable to Part XIV of the Constitution. This Court reasoned that Arti....
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....ere no such governments in the Union territories." (emphasis supplied) 131. In Prem Kumar Jain (supra), this Court did not find anything repugnant to the subject or context of Part XIV of the Constitution or Article 312 specifically to make the definition of 'State' in terms of amended Section 3(58)(b) of the General Clauses Act inapplicable. Hence, the expression 'State' as occurring in Part XIV was held to include Union Territories. In the preceding section of this judgment, we have approved the decision in Advance Insurance (supra) and held that the definition of "State" in Section 3(58) of the General Clauses Act as amended by Adaptation of Laws (No. 1) Order, 1956 must be applied for the interpretation of the Constitution unless the context otherwise requires. 132. The definition provided in the definition clause article should be applied and given effect to for the purposes of the relevant Part of the Constitution. However, when the definition clause is preceded by the phrase 'unless the context otherwise requires', there may be a need to depart from the normal rule if there is something in the context in which such expression occurs to show that the definition....
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....terms of Section 29 of the 1956 Constitution amendment, Parliament provided for "consequential and minor amendments and repeals in the Constitution'' as directed in the Schedule. One of the amendments made in terms of the Schedule was to omit the phrase "Part A or Part B of the First Schedule '', and "Rajpramukh", as occurring in the Constitution. It is necessary to note that the expressions "Part A", "Part B" and "Rajpramukh" were not necessarily substituted by another expression by Parliament. 136. Article 239 as it was amended by the 1956 Constitution Amendment states that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by them with such designation as they may specify. It is relevant to note that the term 'administrator', at the time of the amendment was not added to any provision of the Constitution other than Article 239. Even within Article 239, the provision did not use the term 'administrator' as a designation. Instead, Article 239 provides that: "239. Administration of Union Territories (1) Save as otherwise provided by Parliament by law, ev....
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....ound to exercise the power of making a law laying down the principles on which such owners should be compensated for their loss. ...While certain powers may be granted in order to be exercised in favour of certain persons who are intended to be benefited by their exercise, and on that account may well be regarded as coupled with a duty to exercise them when an appropriate occasion for their exercise arises, the power granted to a legislature to make a law with respect to any matter cannot be brought under that category, It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the court against a legislative body." (emphasis supplied) 140. Similarly, in State of Haryana v. Chanan Mal (1977) 1 SCC 340, while upholding the constitutional validity of the Haryana Minerals (Vesting of Rights) Act, 1973, after noticing the declaration made in Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, as envisaged by Entry 54 of the Union List, it was held that exercise and existence of power cannot be conflated: "24. In the two ca....
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....ution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor 2 *** of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act." 142. The rule-making function under the proviso to Article 309 is transitional. The President with respect to the posts in connection with the affairs of the Union, and the Governor in connection with the affairs of State shall have the power to make rules under the proviso only until a statute is enacted in this connection. Any rule that is made ....
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....ms and conditions of service. Reliance was placed upon different state services, such the Delhi Fire Services under the Delhi Fire Service Act 2007, Delhi Commission for Safai Karamcharis Act, 2006, Delhi Minorities Commission Act, 1999, Delhi Finance Commission Act, 1994, Delhi Lokayukta and UpaLokayukta Act, 1995, Delhi Commission for Women Act, 1994, and Delhi Electricity Reform Act, 2001. It was argued that these statutes which inter alia, create posts and details of salary, was enacted in exercise of the subject referable to Entry 41 of the State List. 147. However, Justice Ashok Bhushan in the 2019 split verdict rejected this argument related to Delhi Fire Service Act 2007, as he held that the statute falls under Entry 5 of the State List and not under Entry 41 of the State List. Justice Bhushan held: "208. We may first notice that the word "services" used in the Act has been used in a manner of providing services for fire prevention and fire safety measures. The word "services" has not been used in a sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act, 1957 conta....
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.... List II of the Seventh Schedule to the Constitution, as mentioned earlier, also refers to State Public Services suggesting that there can be more than one State Public Service under the State... We have indeed a number of such services under a State e.g. police service, educational service, revenue service etc. State Public Services may be constituted or established either by a law made by the State legislature or by rules made under the proviso to Article 309 of the Constitution or even by an executive order made by the State Government in exercise of its powers under Article 162 of the Constitution. The recruitment and conditions of service of the officers and servants of the State Government may also be regulated by statute, rules or executive orders. The administration of a service under a State involves broadly the following functions: (i) the organisation of the Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in it; (ii) the manner of admitting persons to civil service; (iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove ....
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....ne. In terms of Section 5(b), the recruitment to, and the pay, allowances and all other conditions of service of the members of the Fire Service shall be such as may be prescribed. Section 3 stipulates that there would be one fire service for the whole of Delhi and all officers and subordinate ranks of the fire service shall be liable for posting to any branch of the Fire Service. Chapter II of the Act provides for the organization, superintendence, control and maintenance of the fire service. Chapter III provides for the control and discipline of the fire service. 153. The Delhi Fire Service is constituted under the Delhi Fire Service Act 2007, enacted by the Legislative Assembly of NCTD. Provisions relating to administration, recruitment and conditions of service have been provided in the framework of the Act. In terms of Section 4, the superintendence of, and control over, the Fire Service vests in the Government, as defined in the Act. Section 6 provides for the classification of posts of the Fire Service into Group A, B, C and D posts. Section 7 stipulates that the Government shall make appointments to any Group A or Group B posts after consultation with the Union Public Se....
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.... NCTD and the Union in relation to NCTD. The distinction must be drawn keeping in mind the ambit of legislative and executive power conferred upon NCTD by the Constitution, and the principles of constitutional governance for NCTD laid down in the 2018 Constitution Bench judgment. 158. This Court has laid down that the scope of an Entry in the Seventh Schedule needs to be read widely. In IK Saksena v. State of Madhya Pradesh (1976) 4 SCC 750, a four judge Bench of this Court held that the entries in Schedule VII have to be read in their widest possible amplitude. The Bench held that the area of legislative competence defined by Entry 41 is far more comprehensive than that covered by Article 309: "32. It is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each general word used in such entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more....
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....54 provides for the constitution of cadres for each State or group of States "as a 'State Cadre' or, as the case may be, a 'Joint Cadre'". Rule 5 empowers the Central Government to allocate cadre officers to various cadres. In terms of Rule 5(1), the allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Government concerned. Rule 7 stipulates that all appointments to cadre posts shall be made "on the recommendation of the Civil Services Board" - by the State Government "in the case of a state cadre", and by the State Government concerned, as defined in Rule 2(d), "in the case of a joint cadre". Under Rule 11A, the "Government of that State" is provided with powers to take decisions under Rule 7 (and other mentioned rules) in relation to the members of the Joint Cadre Service "serving in connection with the affairs of any of the Constituent States". A combined reading of Rules 2, 7, and 11A indicates that the postings within the State Cadre as well as Joint Cadre of a Constituent State shall be made by the "Government of that State", that is, by the duly elected government. In our case, it sh....