GOVERNMENT OF NCT OF DELHI versus UNION OF INDIA on 11 May 2023

[2023] 9 S.C.R. 493 : 2023 INSC 517

GOVERNMENT OF NCT OF DELHI

v.

UNION OF INDIA

(Civil Appeal No. 2357 of 2017)

MAY 11, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI, M R SHAH,KRISHNA MURARI, HIMA KOHLI ANDPAMIDIGHANTAM SRI NARASIMHA, JJ.]

Constitution of India: Seventh Schedule – List II, Entry 41 –Art.239AA(3(a)) – NCT Delhi – Control Over Services – Distributionof Power Between Union and State – IAS (Cadre) Rules, 1954 –The Indian Administrative Service (Fixation of Cadre Strength)Regulations, 1955 – r.2(c) – All India Services (Joint Cadre) Rules1972 – Union Ministry of Home Affairs issued a notification dated21 May 2015 which provided that the Lieutenant Governor of NCTDelhi shall exercise control over “services”, in addition to “publicorder”, “police”, and “land” – Notification was challenged beforethe High Court which in turn upheld the constitutionality of thenotification – High Court declared that “the matters connected with‘Services’ fall outside the purview of the Legislative Assembly ofNCT of Delhi” – On appeal being filed, two judge bench of thiscourt delivered a split verdict – Hence, the question came forconsideration before the Constitution Bench – Held: The referencesto “State Government” in relevant Rules of All India Services orJoint Cadre Services, of which National Capital Territory of Delhi(NCTD) is a part or which are in relation to NCTD, shall mean theGovernment of NCTD – It is evident that the Legislative Assemblyof NCTD does not exercise exclusive legislative powers over all theentries in the State List – It is only in a demarcated constitutionalsphere that it is able to exercise its legislative power – It is theresponsibility of the government of NCTD to give expression to thewill of the people of Delhi who elected it – Therefore, the idealconclusion would be that Government of National Capital Territoryof Delhi (GNCTD) ought to have control over “services”, subjectto exclusion of subjects which are out of its legislative domain –NCTD has already exercised its legislative power relating to Entry41 of the State List – NCTD has legislative and executive power

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Awith respect to “services” under Entry 41 – The legislative andexecutive power of control of NCTD over Entry 41 shall not extendover to services related to “public order”, “police”, and “land” –However, legislative and executive power over services such asIndian Administrative Services, or Joint Cadre services, which areBrelevant for the implementation of policies and vision of NCTD interms of day-to-day administration of the region shall lie with NCTD– Officers thereunder may be serving in NCTD, even if they werenot recruited by NCTD – The Lieutenant Governor is bound by theaid and advice of the Council of Ministers of NCTD in relation tomatters within the legislative scope of NCTD – As NCTD hasClegislative power over “services” (excluding ‘public order’, ‘police’,and ‘land’) under Entry 41 in List II, the Lieutenant Governor shallbe bound by the decisions of GNCTD on services – Any referenceto “Lieutenant Governor” over services (excluding services relatedto ‘public order’, ‘police’ and ‘land’) in relevant Rules shall meanDLieutenant Governor acting on behalf of GNCTD.Constitution of India: Article 239AA, 239AA(3(b)) &239AA(7) – Interpretation of phrase “insofar as such matter isapplicable to Union Territories” in Art.239AA – Held: The intentand purpose of Article 239AA(3(b)) and Article 239AA(7) is to conferEan expanded legislative competence upon Parliament, when it comesto Government of National Capital Territory of Delhi (GNCTD)clearly since it is the capital of the country and therefore, must bedealt with different considerations – To interpret the phrase “insofaras any such matter is applicable to Union territories” in a restrictiveFmanner would limit the legislative power of the elected members ofthe assembly – Thus, the legislative competence of National CapitalTerritory of Delhi (NCTD) must be interpreted to give full impetusto the will of the electorate – The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to allmatters with respect to which it has the power to legislate – TheGphrase ‘insofar as any such matter is applicable to Union Territories’in Article 239AA(3) cannot be read to further exclude the legislativepower of NCTD over entries in the State List or Concurrent List,over and above those subjects which have been expressly excluded– Union Territories – NCT of Delhi.

Constitution of India – Art. 239AA – Phrase “Subject to theprovisions of this Constitution” in Article 239AA(3) – Held: Withreference to the phrase “Subject to the provisions of thisConstitution” in Article 239AA(3), the legislative power of NationalCapital Territory of Delhi (NCTD) is to be guided, and not justlimited, by the broader principles and provisions of the Constitution.

Constitution of India – Federalism and Democracy –Cooperative Federalism – Held: Our model of federalism expects asense of cooperation between the Union at the centre, and theregional constitutionally recognised democratic units – The Unionand National Capital Territory of Delhi (NCTD) need to cooperatein a similar manner to the Union and the States – The interpretationof the Constitution must enhance the spirit of federalism anddemocracy together – In the spirit of cooperative federalism, theUnion of India must exercise its powers within the boundaries createdby the Constitution – NCTD, having a sui generis federal model,must be allowed to function in the domain charted for it by theConstitution – The Union and NCTD share a unique federalrelationship – It does not mean that NCTD is subsumed in the unitof the Union merely because it is not a “State”.

Constitution of India – Interpretation – Held: The design ofthe Constitution is such that it accommodates the interests of differentregions – While providing a larger constitutional umbrella todifferent states and Union territories, it preserves the localaspirations of different regions – “Unity in diversity” is not onlyused in common parlance, but is also embedded in our constitutionalstructure – The interpretation of the Constitution must givesubstantive weight to the underlying principles.

Constitution of India: Part XIV – Arts. 308 & 367 – GeneralClause Act, 1897 – s.3(58) – Inclusion of Union Territory – In theDefinition of State – Whether Union Territory is a State for thePurpose of Part XIV of Constitution of India – Held: s.3(58) of theGeneral Clauses Act, by virtue of Art.367(1) of the Constitution,applies to the construction of the expression ‘State’ in theConstitution, unless there is something repugnant in the subject orcontext of a particular provision of the Constitution – There isnothing in the subject or context of Part XIV of the Constitutionwhich would exclude its application to Union territories – Rather, AB

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Athe application of the inclusive definition of “State” as providedunder Clause 3(58) would render the constitutional schemeenvisaged for Union Territories workable.

Union Territories – There does not exist a homogeneous classof Union Territories with similar governance structures.B

Union Territories – Constitution of India – Art. 239AA –National Capital Territory of Delhi (NCTD) – Held: Is not similar toother Union Territories – By virtue of Article 239AA, NCTD isaccorded a “sui generis” status, setting it apart from other UnionTerritories – The Legislative Assembly of NCTD has competenceCover entries in List II and List III except for the expressly excludedentries of List II – In addition to the Entries in List I, Parliament haslegislative competence over all matters in List II and List III inrelation to NCTD, including the entries which have been kept outof the legislative domain of NCTD by virtue of Article 239AA(3)(a).

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Union Territories – National Capital Territory of Delhi(NCTD) – Executive power of NCTD – Held: The executive powerof NCTD is co-extensive with its legislative power, that is, it shallextend to all matters with respect to which it has the power to legislate– The Union of India has executive power only over the three entriesEin List II over which NCTD does not have legislative competence –The executive power of NCTD with respect to entries in List II andList III shall be subject to the executive power expressly conferredupon the Union by the Constitution or by a law enacted byParliament.FUnion Territories – National Capital Territory of Delhi(NCTD) – Legislative and executive power over “Services” – Held:NCTD has legislative and executive power over “Services”, that is,Entry 41 of List II of the Seventh Schedule because: (i) The definitionof State under Section 3(58) of the General Clauses Act 1897 appliesto the term “State” in Part XIV of the Constitution – Thus, Part XIVGis applicable to Union territories; and (ii) The exercise of rule-making power under the proviso to Article 309 does not oust thelegislative power of the appropriate authority to make laws overEntry 41 of the State List – Constitution of India – Art. 309 andSeventh Schedule, List II, Entry 41.

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Answering the reference, the Court

Conclusion

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Answering the reference, the Court

HELD: 1.1 The legislative and executive power of NCTDover Entry 41 shall not extend over to services related to “publicorder”, “police”, and “land”. However, legislative and executivepower over services such as Indian Administrative Services, orJoint Cadre services, which are relevant for the implementationof policies and vision of NCTD in terms of day-to-dayadministration of the region shall lie with NCTD. Officersthereunder may be serving in NCTD, even if they were notrecruited by NCTD. In such a scenario, it would be relevant torefer, as an example, to some of the Rules, which clearlydemarcate the control of All India or Joint-Cadre services betweenthe Union and the States. NCTD, similar to other States, alsorepresents the representative form of government. Theinvolvement of the Union of India in the administration of NCTDis limited by constitutional provisions, and any further expansionwould be contrary to the constitutional scheme of governance.[Para 160][579-H; 580-A-C]

1.2 The example of the Indian Administrative Service(Cadre) Rules, 1954, which deal with the posting of IAS Officers.Rule 2(a) defines ‘cadre officer’ to mean a member of IAS. Rule2(b) defines ‘Cadre post’ as any post specified under item I ofeach cadre in the schedule to the Indian Administrative Service(Fixation of Cadre Strength) Regulations, 1955. Rule 2(c) defines‘State’ to mean a State specified in the First Schedule of theConstitution and includes a Union Territory. Rule 2(d) defines‘State Government concerned’, in relation to a Joint cadre, tomean the Joint Cadre Authority. The constitution and compositionof a ‘Joint Cadre Authority’ is understood with reference to theAll India Services (Joint Cadre) Rules 1972. The 1972 Rulesapply to a “Joint Cadre constituted for any group of States otherthan the Joint Cadre of Union Territories.” Rule 3 of the IAS(Cadre) Rules 1954 provides for the constitution of cadres foreach State or group of States “as a ‘State Cadre’ or, as the casemay be, a ‘Joint Cadre’”. Rule 5 empowers the CentralGovernment to allocate cadre officers to various cadres. In termsof Rule 5(1), the allocation of cadre officers to the various cadres ABC

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Ashall be made by the Central Government in consultation withthe State Government or the State Government concerned. Rule7 stipulates that all appointments to cadre posts shall be made“on the recommendation of the Civil Services Board” — by theState Government “in the case of a state cadre”, and by the StateGovernment concerned, as defined in Rule 2(d), “in the case of aBjoint cadre”. Under Rule 11A, the “Government of that State” isprovided with powers to take decisions under Rule 7 (and othermentioned rules) in relation to the members of the Joint CadreService “serving in connection with the affairs of any of theConstituent States”. A combined reading of Rules 2, 7, and 11ACindicates that the postings within the State Cadre as well as JointCadre of a Constituent State shall be made by the “Governmentof that State”, that is, by the duly elected government. In ourcase, it shall be the Government of NCTD. It is accordingly heldthat references to “State Government” in relevant Rules of AllIndia Services or Joint Cadre Services, of which NCTD is a partDor which are in relation to NCTD, shall mean the Government ofNCTD. [Para 161][580-C-H; 581-A-B]

1.3 In light of Article 239AA and the 2018 ConstitutionBench judgment, the Lieutenant Governor is bound by the aidand advice of the Council of Ministers of NCTD in relation toEmatters within the legislative scope of NCTD. As NCTD haslegislative power over “services” (excluding ‘public order’,‘police’, and ‘land’) under Entry 41 in List II, the LieutenantGovernor shall be bound by the decisions of GNCTD on services.To clarify, any reference to “Lieutenant Governor” over servicesF(excluding services related to ‘public order’, ‘police’ and ‘land’)in relevant Rules shall mean Lieutenant Governor acting on behalfof GNCTD. [Para 162][581-C-D]

2. In view of the discussion above, the conclusions are asfollows: (a) There does not exist a homogeneous class of UnionGTerritories with similar governance structures; (b) NCTD is notsimilar to other Union Territories. By virtue of Article 239AA,NCTD is accorded a “sui generis” status, setting it apart fromother Union Territories; (c) The Legislative Assembly of NCTD

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has competence over entries in List II and List III except forthe expressly excluded entries of List II. In addition to the Entriesin List I, Parliament has legislative competence over all mattersin List II and List III in relation to NCTD, including the entrieswhich have been kept out of the legislative domain of NCTD byvirtue of Article 239AA(3)(a); (d) The executive power of NCTDis co-extensive with its legislative power, that is, it shall extendto all matters with respect to which it has the power to legislate;(e) The Union of India has executive power only over the threeentries in List II over which NCTD does not have legislativecompetence; (f) The executive power of NCTD with respect toentries in List II and List III shall be subject to the executivepower expressly conferred upon the Union by the Constitutionor by a law enacted by Parliament; (g) The phrase ‘insofar as anysuch matter is applicable to Union Territories’ in Article 239AA(3)cannot be read to further exclude the legislative power of NCTDover entries in the State List or Concurrent List, over and abovethose subjects which have been expressly excluded; (h) Withreference to the phrase “Subject to the provisions of thisConstitution” in Article 239AA(3), the legislative power of NCTDis to be guided, and not just limited, by the broader principlesand provisions of the Constitution; and (i) NCTD has legislativeand executive power over “Services”, that is, Entry 41 of List IIof the Seventh Schedule because: (i) The definition of State underSection 3(58) of the General Clauses Act 1897 applies to theterm “State” in Part XIV of the Constitution. Thus, Part XIV isapplicable to Union territories; and (ii) The exercise of rule-making power under the proviso to Article 309 does not oust thelegislative power of the appropriate authority to make laws overEntry 41 of the State List. [Para 164][581-E-H; 582-A-F]

Shiv Kirpal Singh v. VV Giri AIR 1970 SC 2097 : [1971]2 SCR 197 – held per incuriam.

NDMC v. State of Punjab 1997 (7) SCC 339 : [1996]10 Suppl. SCR 472; SR Bommai v.Union of India (1994)3 SCC 1 : [1994] 2 SCR 644 – followed.

Advance Insurance Corporation Limited v. Gurudasmal(1970) 1 SCC 633 : [1970] 3 SCR 881; T.M.Kanniyan AB

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Av. CIT [1968] 2 SCR 103; Rajendra Diwan v. PradeepKumar Ranibala [2019] 17 SCR 1089; RS Nayak v. ARAntulay (1984) 2 SCC 183 : [1984] 2 SCR 495; Unionof India v. Prem Kumar Jain (1976) 3 SCC 473 : [1976]Suppl. SCR 166 – relied on.

BIK Saksena v. State of Madhya Pradesh (1976) 4 SCC750 : [1976] 3 SCR 237; Union of India v. TulsiramPatel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131;Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1: [2017] 5 SCR 160; Amarinder Singh v. Punjab VidhanCSabha (2010) 6 SCC 113 : [2010] 4 SCR 1105;Secretary, Jaipur Development Authority v. Daulat MalJain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; SKGupta v. KP Jain (1979) 3 SCC 54 : [1979] 2SCR 1184; Ichchapur Industrial Coop. SocietyLtd. v. Competent Authority, Oil & Natural GasDCommission (1997) 2 SCC 42 : [ 1996] 10 Suppl. SCR416; Ratnaprova Devi v. State of Orissa [1964] 6 SCR301; State of Bihar v. Maharajadhiraja Sir KameshwarSingh [1952] SCR 889; State of Haryana v. ChananMal (1977) 1 SCC 340 : [1976] 3 SCR 688; A.B.EKrishna v. State of Karnataka (1998) 3 SCC 495 :[1998] 1 SCR 157; B.S. Vadera v. Union of India [1968]3 SCR 575 and State of Gujarat v. Raman Law KeshavLal (1980) 4 SCC 653 : [1981] 1 SCR 144 – referredto.

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Case Law Reference

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357of 2017.

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From the Judgment and Order dated 04.08.2016 of the High Courtof Delhi at New Delhi in W.P. (C) No. 5888 of 2015.

Dr. A.M. Singhvi, Rahul Mehra, Dr. Abhishek Manu Singhvi, RahulMehra, Sr. Advs., Shadan Farasat, Chirag M. Shroff, Prateek Chaddha,Chaitanya Gosain, Anand Thumbayil, Shailendra P. Singh, Sushant Mehra,Shadan Farasat, Prateek Chadha, Amit Bhandari, Gautam Bhatia, ShouryaDasgupta, Ms. Hrishika Jain, Aman Naqvi, Siddharth Seem, Ms. Ashima,Ms. Mreganka Kukreja, Shadan Farasat, Advs. for the Appellant.

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Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian, Sr.Adv., Rajat Nair, Kanu Agarwal, Saurabh Mishra, Rajesh Kumar Singh,Padmesh Mishra, Arkaj Kumar, Ms. Tanya Aggarwal, Gaurang Bhushan,Ms. Harshita Sukhija, Shivam Shukla, Nakul Rai, Ms. Ashima Gupta,Arvind Kumar Sharma, Gagan Gupta, K.R. Sasiprabhu, Advs. for theRespondent.

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[2023] 9 S.C.R.

H*Ed. Note: Pagination in the Index is as per the original judgment.

(b) Omission in Part XIV by the 1956 ConstitutionAAmendment ................................................................ 87*

(c) Existence of power and exercise of power ................ 89*

M.Exercise of Legislative Power by NCTD on Entry 41.......... 93*

N.“Services” and NCTD .......................................................... 99*O.Conclusion ............................................................................103*

B

A. The Reference

1. This case before us deals with the asymmetric federal modelof governance in India, involving the contest of power between a UnionTerritory and the Union Government. The issue is who would have controlover the “services” in the National Capital Territory of Delhi[1]: theGovernment of NCTD[2] or the Lieutenant Governor acting on behalf ofthe Union Government. The question arose subsequent to a notification[3]dated 21 May 2015 issued by the Union Ministry of Home Affairs, whichstated as follows:

“... in accordance with the provisions contained in article 239 andsub-clause (a) of clause (3) of 239AA, the President hereby directsthat –

subject to his control and further orders, the Lieutenant Governorof the National Capital Territory of Delhi, shall in respect of mattersconnected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’as stated hereinabove, exercise the powers and discharge thefunctions of the Central Government, to the extent delegated tohim from time to time by the President.

Provided that the Lieutenant Governor of the National CapitalTerritory of Delhi may, in his discretion, obtain the views of theChief Minister of the National Capital Territory of Delhi in regardto the matter of ‘Services’ wherever he deems it appropriate.”

The notification provided that the Lieutenant Governor of NCTDshall exercise control “to the extent delegated to him from time to time CD

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1 "NCTD”2 "GNCTD”3 "2015 notification”

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Aby the President” over “services”, in addition to “public order”, “police”,and “land.” The Lieutenant Governor may seek the views of the ChiefMinister of NCTD at his “discretion”.

2. “Services” are covered under Entry 41 of the State List of theSeventh Schedule to the Constitution. The 2015notification excludes EntryB41 of the State List, which has as its subject, “State Public Services;State Public Services Commission”, from the scope of powers ofGNCTD. The notification stipulates that the rationale for excluding“services” from the ambit of the legislative and executive power of NCTDis that NCTD does not have its own State public services:

C“Further, the Union Territories Cadre consisting of IndianAdministrative Service and Indian Police Service personnel iscommon to Union Territories of Delhi, Chandigarh, Andaman andNicobar Islands, Lakshadweep, Daman and Diu, Dadra and NagarHaveli, Puducherry and States of Arunachal Pradesh, Goa andMizoram which is administered by the Central Government throughDthe Ministry of Home Affairs; and similarly DANICS and DANIPSare common services catering to the requirement of the UnionTerritories of Daman & Diu, Dadra Nagar Haveli, Andaman andNicobar Islands, Lakshadweep including the National CapitalTerritory of Delhi which is also administered by the CentralEGovernment through the Ministry of Home Affairs. As such, it isclear that the National Capital Territory of Delhi does not have itsown State Public Services. Thus, ‘Services’ will fall within thiscategory.

And whereas it is well established that where there is no legislativeFpower, 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 StateList being ‘Public Order’, ‘Police’ and ‘Land’ respectively andEntries 64, 65 & 66 of that list in so far as they relate to Entries 1,G2 & 18 as also ‘Services’ fall outside the purview of LegislativeAssembly of the National Capital Territory of Delhi andconsequently the Government of NCT of Delhi will have noexecutive power in relation to the above and further that power inrelation to the aforesaid subjects vests exclusively in the Presidentor his delegate i.e. the Lieutenant Governor of Delhi.”

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3. The above notification was assailed through a batch of petitionsbefore the High Court of Delhi. The validity of the notification was upheldby the High Court as it declared that “the matters connected with‘Services’ fall outside the purview of the Legislative Assembly of NCTof Delhi.”[4 ]On appeal, a two-Judge Bench of this Court was of the opinionthat the matter involved a substantial question of law about theinterpretation of Article 239AA, which deals with “Special provisionswith respect to Delhi”, and hence referred the issue of interpretation ofArticle 239AA to a Constitution Bench on 15 February 2017.

4. Article 239AA provides as under:

“239-AA. Special provisions with respect to Delhi.—

(1) As from the date of commencement of the Constitution(Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhishall be called the National Capital Territory of Delhi (hereafterin this Part referred to as the National Capital Territory) andthe Administrator thereof appointed under Article 239 shall bedesignated as the Lieutenant Governor.

(2) (a) There shall be a Legislative Assembly for the NationalCapital Territory and the seats in such Assembly shall be filledby Members chosen by direct election from territorialconstituencies in the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, thenumber of seats reserved for Scheduled Castes, the divisionof the National Capital Territory into territorial constituencies(including the basis for such division) and all other mattersrelating to the functioning of the Legislative Assembly shall beregulated by law made by Parliament.

(c) The provisions of Articles 324 to 327 and 329 shall apply inrelation to the National Capital Territory, the LegislativeAssembly of the National Capital Territory and the Membersthereof as they apply, in relation to a State, the LegislativeAssembly of a State and the Members thereof respectively;and any reference in Articles 326 and 329 to “appropriatelegislature” shall be deemed to be a reference to Parliament.

4 Government of National Capital Territory of Delhi v. Union of India (“Delhi HighCourt judgment”), (2016) 232 DLT 196.

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

(b) Nothing in sub-clause (a) shall derogate from the powersof Parliament under this Constitution to make laws with respectto any matter for a Union Territory or any part thereof.

(c) If any provision of a law made by the Legislative Assemblywith respect to any matter is repugnant to any provision of alaw made by Parliament with respect to that matter, whetherpassed before or after the law made by the LegislativeAssembly, or of an earlier law, other than a law made by theLegislative Assembly, then, in either case, the law made byParliament, or, as the case may be, such earlier law, shall prevailand the law made by the Legislative Assembly shall, to theextent of the repugnancy, be void:

Provided that if any such law made by the Legislative Assemblyhas been reserved for the consideration of the President andhas received his assent, such law shall prevail in the NationalCapital Territory:

Provided further that nothing in this sub-clause shall preventParliament from enacting at any time any law with respect tothe same matter including a law adding to, amending, varyingor repealing the law so made by the Legislative Assembly.

(4) There shall be a Council of Ministers consisting of not morethan ten per cent of the total number of Members in theLegislative Assembly, with the Chief Minister at the head toaid and advise the Lieutenant Governor in the exercise of hisfunctions in relation to matters with respect to which theLegislative Assembly has power to make laws, except insofaras he is, by or under any law, required to act in his discretion:

Provided that in the case of difference of opinion between theLieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decisionand act according to the decision given thereon by the Presidentand pending such decision it shall be competent for theLieutenant Governor in any case where the matter, in hisopinion, is so urgent that it is necessary for him to take immediateaction, to take such action or to give such direction in the matteras he deems necessary.

(5) The Chief Minister shall be appointed by the President andthe other Ministers shall be appointed by the President on theadvice of the Chief Minister and the Ministers shall hold officeduring the pleasure of the President.

(6) The Council of Ministers shall be collectively responsibleto the Legislative Assembly.

(7) (a) Parliament may, by law, make provisions for giving effectto, or supplementing the provisions contained in the foregoingclauses and for all matters incidental or consequential thereto.

(b) Any such law as is referred to in sub-clause (a) shall not bedeemed to be an amendment of this Constitution for thepurposes of Article 368 notwithstanding that it contains anyprovision which amends or has the effect of amending, thisConstitution.

(8) The provisions of Article 239-B shall, so far as may be,apply in relation to the National Capital Territory, the LieutenantGovernor and the Legislative Assembly, as they apply in relationto the Union Territory of Puducherry, the Administrator and itslegislature, respectively; and any reference in that Article to“clause (1) of Article 239-A” shall be deemed to be a referenceto this Article or Article 239-AB, as the case may be.”

5. The Constitution Bench pronounced its judgment[5] on 4 July2018. The judgment contained three judicial opinions. The opinion of themajority was authored by Chief Justice Dipak Misra, in which JusticeA.K. Sikri, and Justice A.M. Khanwilkar joined.[6 ]One of us (Dr. D.Y.Chandrachud, J.) and Justice Ashok Bhushan delivered separateconcurring opinions. The Constitution Bench dealt with the constitutional 5 "2018 Constitution Bench judgment”; (2018) 8 SCC 501

6 "Judgment of the majority”

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Astatus of NCTD and the modalities of its administration based on thedivision of powers, functions and responsibilities of the elected governmentof NCTD and the Lieutenant Governor, who as the nominee of thePresident of India, serves as the representative of the Union Government.We shall discuss the principles laid down in that judgment in Section C ofBthis judgment.

6. Upon deciding the interpretation of Article 239AA, the appealswere directed to be listed before a regular Bench to decide the specificissues. On 14 February 2019, a two-Judge Bench of Justice A.K. Sikriand Justice Ashok Bhushan delivered two separate judgments. The judgesdiffered on whether “services” are excluded in view of ArticleC239AA(3)(a) from the legislative and executive domain of GNCTD.[7]

7. The matter fell for consideration before a Bench of three Judges.There, the Union argued that the 2018 Constitution Bench did not analyzetwo crucial phrases in Article 239AA(3)(a): (i) “in so far as any suchDmatter is applicable to Union Territories”; and (ii) “Subject to theprovisions of this Constitution’’. By an order dated 6 May 2022, thethree-judge Bench observed that:

“8. From the reference application moved by the Union of India,as well as the rival contentions of the parties, the main bone ofEcontention relates to the interpretation of the phrases: “in so faras any such matter is applicable to Union Territories” and “Subjectto the provisions of this Constitution” as contained in Article239AA(3)(a) of the Constitution. On perusing the ConstitutionBench judgment, it appears that all the issues except the onepending consideration before this bench, have been elaboratelyFdealt with. Therefore, we do not deem it necessary to revisit theissues that already stand settled by the previous ConstitutionBench.

9. The limited issue that has been referred to this Bench, relatesto the scope of legislative and executive powers of the Centreand NCT Delhi with respect to the term “services”. TheGConstitution Bench of this Court, while interpreting Article239AA(3)(a) of the Constitution, did not find any occasion tospecifically interpret the impact of the wordings of the same withrespect to Entry 41 in the State List.

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

A

10. We therefore deem it appropriate to refer the above limitedquestion, for an authoritative pronouncement by a ConstitutionBench in terms of Article 145(3) of the Constitution.”

The above reference forms the subject of adjudication before thisConstitution Bench. The limited issue for the consideration of thisConstitution Bench only relates to the “scope of legislative and executivepowers of the Centre and NCTD with respect to the term “Services.”That is to say, whether the NCTD or the Union government has legislativeand executive control over “services.” We will now turn to the argumentsmade by counsel on opposing sides.

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B. Submissions

8. Dr. AM Singhvi, learned Senior Counsel appearing for theappellant, made the following submissions:

a.The Legislative Assembly of NCTD has the power to enactlaws under Entry 41 of List II of the Seventh Schedule.DThe power cannot be excluded merely because the entryuses the term “state public services” and not “UnionTerritory public services”. Infact, the Delhi LegislativeAssembly has enacted laws that fall within Entry 41; b.Even if it is found that the legislature of NCTD has notEexercised legislative power related to Entry 41 of List II, itdoes not imply that the power ceases to exist;

c.NCTD has legislative power and executive power over allentries in List II other than entries 1,2, and 18 which havebeen expressly excluded by Article 239AA; F

d.The phrase “insofar as such matter is applicable to UnionTerritories” in Article 239AA is inclusionary and notexclusionary. Multiple entries in List II and List III use theterm “State.” The phrase “insofar as such matter isapplicable to Union Territories” is a facilitative phrase whichpermits such entries being made available to the UnionTerritory of NCTD without an amendment of the Lists inthe Seventh Schedule. Without the facilitative phrase, NCTDwould not have legislative competence over those entriesin Lists II and III which use the term “State”; G

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Ae.NCTD is sui generis. It cannot be brought within thecommon class of ‘Union Territories’; f.This Court in Union of India v. Prem Kumar Jain[8] hasrecognised that the provisions of Part XIV of the Constitutionextend to Union territories; B

g.The report of the Balakrishnan Committee opined againstthe inclusion of “services” within the legislative and executiveambit of NCTD, does not have any relevance because:

(i) It preceded the inclusion of Article 239AA, by whichthree entries from List II have been expresslyCexcluded from the legislative competence of NCTD;

(ii) The conclusion that only States (and not Unionterritories) can have services is conceptually wrong;

(iii) The judgment of this Court in Prem Kumar Jain(supra) was not considered; and D

(iv) The opinion of the majority in the 2018 ConstitutionBench judgment expressly notes that the report ofthe Balakrishnan Committee will not be used as anaid to interpret Article 239AA.

Eh.Personnel belonging to All-India Services and CentralGovernment Services are governed by the IndianAdministrative Service (Cadre) Rules 1954 and the All-IndiaServices (Joint Cadre) Rules 1972 respectively. In termsof these rules, while it is the prerogative of the Joint CadreAuthority to make an officer available to GNCTD, the actualFposting of the officer within the departments of GNCTD isthe prerogative of the latter. Similarly, under DANICS andDANIPS Rules 2003, once an officer is alloted to NCTD,it is the Administrator who appoints that officer to a postwithin NCTD.G9. Mr. Shadan Farasat, learned counsel appearing for the appellant,provided an overview of the control of services in national capitalterritories across the world. He argued that regardless of the level ofdevolution of power in countries across the world, even in countries with H8 (1976) 3 SCC 473

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

centralized forms of government, the power to control “services” hasbeen devolved upon the local government of the National Capital Territory.

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10. Mr. Tushar Mehta, learned Solicitor General, made thefollowing submissions on behalf of the Union of India:

a.Entry 41 of List II is not available to Union Territories, as itcannot have either a State Public Service or a State PublicService Commission; B

b.The 2018 Constitution Bench judgment did not decidewhether NCTD has legislative competence over Entry 41of List II; C

c.Delhi, being the national capital, enjoys a special status whichrequires the Union to have control over services, in theabsence of which it would become impossible for the Unionto discharge its national and international responsibilities; d.The expression “in so far as any such matter is applicableto Union Territories” in Article 239AA means that theentries contained in List II are available to NCTD to thelimited extent to which they are applicable to UnionTerritories. The legislative powers of NCTD shall extendto only those matters which are ‘applicable’ to UnionTerritories. Since the Constitution uses the term ‘applicable’and not ‘relating’ to Union Territories, the legislative powerof NCTD will extend to an Entry only when that Entry isclearly and unequivocally applicable to Union Territories asa class. Consequently, List II has to be read contextuallyand certain entries can be excluded from the domain ofGNCTD; D

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e.The control of Union of India over “services” has not led toany issue pertaining to the governance of NCTD; and f.The Transaction of Business Rules 1993 provide enoughpowers to Ministers of GNCTD to ensure supervisory andGfunctional control over civil services to ensure their properfunctioning; the rules applicable to the civil services indicatethat administrative control vests with the Union.

11. The arguments advanced indicate that this Constitution Benchis called upon to decide the limited question of whether NCTD has the H

Apower to legislate under Entry 41 of the State List, and the meaning ofthe term “in so far as any such matter is applicable to UnionTerritories” in Article 239AA(3)(a). This Bench will refer to theprinciples laid down in the 2018 Constitution Bench judgment to facilitatethe analysis.

BThough both sides reliedon the subordinate rules referred to aboveto argue that they have control over postings of officers, we do notdeem it appropriate to interpret each of these rules to elucidate on theframework of governance in each of the cadres. The reference is limitedto the scope of executive and legislative power of NCTD over “services”Cwith reference to the interpretation of Article 239AA(3)(a).C. Interpretation of Article 239AA: The 2018 ConstitutionBench judgment (a) Delhi: A sui generis model

12. The 2018 Constitution Bench decision held that NCTD is notDsimilar to other Union Territories. The decision elucidates the manner inwhich the insertion of Article 239AA accorded a “sui generis” status toNCTD setting it apart from other Union Territories. The judgment notedthat the constitutional entrenchment of a Legislative Assembly, Councilof Ministers, and Westminster style cabinet system of government broughtEinto existence the attributes of a representative form of government. Asa consequence, the residents of Delhi have been, through their electedrepresentatives, afforded a voice in the governance of NCTD, whilebalancing the national interests of Union of India. The majority decision,speaking through Chief Justice Dipak Misra, held:F“196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC339] makes it clear as crystal that all Union Territories under ourconstitutional scheme are not on the same pedestal [...]

S. Essence of Article 239-AA of the Constitution G206. It is perceptible that the constitutional amendment conceivesof conferring special status on Delhi. This has to be kept in viewwhile interpreting Article 239-AA…

207. At the outset, we must declare that the insertion ofArticles 239-AA and 239-AB, which specifically pertain to NCTof Delhi, is reflective of the intention of Parliament to accord H

Delhi a sui generis status from the other Union Territories as wellas from the Union Territory of Puducherry to which Article 239-A is singularly applicable as on date. The same has beenauthoritatively held by the majority judgment in NDMC case tothe effect that the NCT of Delhi is a class by itself…

209. The exercise of establishing a democratic and representativeform of Government for NCT of Delhi by insertion of Articles 239-AA and 239-AB would turn futile if the Government of Delhi thatenjoys the confidence of the people of Delhi is not able to usher inpolicies and laws over which the Delhi Legislative Assembly haspower to legislate for NCT of Delhi.

210. Further, the Statement of Objects and Reasons for theConstitution (Seventy-fourth Amendment) Bill, 1991 which wasenacted as the Constitution (Sixty-ninth Amendment) Act, 1991also lends support to our view as it clearly stipulates that in orderto confer a special status upon the National Capital, arrangementsshould be incorporated in the Constitution itself.”

13. The concurring opinion of Justice Chandrachud emphasizedthe significance legislative and constitutional history in interpreting Article239AA. In that context, the judgment notes:

“383. Having regard to this history and background, it would befundamentally inappropriate to assign to the NCT a status similarto other Union Territories. Article 239-AA(4) is a special provisionwhich was adopted to establish a special constitutional arrangementfor the governance of the NCT, albeit within the rubric of UnionTerritories. In interpreting the provisions of Article 239-AA, thisCourt cannot adopt a blinkered view, which ignores legislativeand constitutional history. While adopting some of the provisionsof the Acts of 1963 and 1966, Parliament in its constituent capacityomitted some of the other provisions of the legislative enactmentswhich preceded the Sixty-ninth Amendment […]”

14. Having imparted a purposive interpretation to Article 239AA,the judgment underscores that the governance structure which Parliamentadopted for NCTD is unique and different from that of other UnionTerritories. It was held that the constituent power of Parliament wasexercised “to treat the Government of NCT of Delhi as a representativeform of Government”. The judgment of the majority held:

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“213… Article 239-A gives discretion to Parliament to create bylaw for the Union Territory of Puducherry a Council of Ministersand/or a body which may either be wholly elected or partly electedand partly nominated to perform the functions of a legislature forthe Union Territory of Puducherry.

214. On the other hand, Article 239-AA clause (2), by usingthe word “shall”, makes it mandatory for Parliament tocreate by law a Legislative Assembly for the National CapitalTerritory of Delhi. Further, sub-clause (a) of clause (2) declaresvery categorically that the Members of the Legislative Assemblyof the National Capital Territory of Delhi shall be chosen by directelection from the territorial constituencies in the National CapitalTerritory of Delhi. Unlike Article 239-A clause (1) whereinthe body created by Parliament by law to perform thefunctions of a legislature for the Union Territory ofPuducherry may either be wholly elected or partly electedand partly nominated, there is no such provision in thecontext of the Legislative Assembly of NCT of Delhi asper which Members can be nominated to the LegislativeAssembly. This was a deliberate design by Parliament.

215. We have highlighted this difference to underscore andemphasise the intention of Parliament, while insertingArticle 239-AA in the exercise of its constituent power, totreat the Legislative Assembly of the National CapitalTerritory of Delhi as a set of elected representatives of thevoters of NCT of Delhi and to treat the Government of NCTof Delhi as a representative form of Government.

216. The Legislative Assembly is wholly comprised ofelected representatives who are chosen by direct electionsand are sent to Delhi’s Legislative Assembly by the votersof Delhi. None of the Members of Delhi’s LegislativeAssembly are nominated. The elected representatives andthe Council of Ministers of Delhi, being accountable to thevoters of Delhi, must have the appropriate powers so as toperform their functions effectively and efficiently…”

15. In his concurring opinion, Justice Chandrachud also held thatNCTD is “special class among Union Territories”. It was held:

“384. All Union territories are grouped together in Part VIII ofthe Constitution. While bringing them under the rubric of oneconstitutional pairing, there is an unmistakable distinction createdbetween them by the Constitution…

388. Delhi presents a special constitutional status UnderArticle 239AA. This is fortified when those provisions are readin contrast with Articles 239A and 240. Article 239AA does notincorporate the language or scheme of Article 240(1), whichenables the President to frame Regulations for peace, progressand good government of the Union territories referred to in Article240(1). This proviso to Article 240(1) indicates that once aParliamentary law has been framed, the President shall not frameRegulations for Puducherry. In the case of Delhi, Article 239AAdoes not leave the constitution of a legislature or the Council ofMinisters to a law to be framed by Parliament in future. Article239AA mandates that there shall be a legislative assembly for theNCT and there shall be a Council of Ministers, with the functionof tendering aid and advice to the Lieutenant Governor. The“there shall be” formulation is indicative of a constitutionalmandate. Bringing into being a legislative assembly and a Councilof Ministers for the NCT was not relegated by Parliament (in itsconstituent power) to its legislative wisdom at a future date uponthe enactment of enabling legislation. Clause 7(a) of Article 239AAenables Parliament by law to make provisions to give effect to orto supplement the provisions contained in that Article. Parliament’spower is to enforce, implement and fortify Article 239AA and itsdefining norms.

389. The above analysis would indicate that while Part VIIIbrings together a common grouping of all Union territories,the Constitution evidently did not intend to use the samebrush to paint the details of their position, the institutionsof governance (legislative or executive), the nature ofdemocratic participation or the extent of accountability ofthose entrusted with governance to their electedrepresentatives…”

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A16. Thus, it is evident from the 2018 Constitution Bench judgmentthat the constitutional status of NCTD is not similar to other UnionTerritories, which are covered under Part VIII of the Constitution.

17. The judgment of the majority in the 2018 Constitution Benchdecision underscores the importance of interpreting the Constitution toBfurther democratic ideals. It was held:

“284.1. While interpreting the provisions of the Constitution, thesafe and most sound approach for the constitutional courts to adoptis to read the words of the Constitution in the light of the spirit ofthe Constitution so that the quintessential democratic natureCof our Constitution and the paradigm of representativeparticipation by way of citizenry engagement are notannihilated. The courts must adopt such an interpretationwhich glorifies the democratic spirit of the Constitution.”

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Therefore, in adjudicating the present dispute, it becomes imperativeto adopt an interpretation which upholds the spirit of the uniqueconstitutional democratic mandate provided to the Government of NCTDby the inclusion of Article 239AA.

(b) Legislative and executive power of NCTDE

18. Article 239AA(3)(a) stipulates that the Legislative Assemblyof Delhi shall have the power to make laws for the whole or any part ofNCTD with respect to matters in the State List and the Concurrent List“insofar as any such matter is applicable to Union Territories” exceptfor certain subjects expressly excluded. The provision expressly excludesFentries 1, 2, and 18 of the State List, and entries 64, 65 and 66 of List IIinsofar as they relate to the entries 1, 2, and 18. Article 239AA(3)(b)conferson Parliament the power “to make laws with respect to anymatter” for a Union Territory or any part of it. Thus, while the LegislativeAssembly of NCTD has legislative competence over entries in List IIand List III except for the excluded entries of List II, Parliament hasGlegislative competence over all matters in List II and List III in relationto NCTD, including the entries which have been kept out of the legislativedomain of NCTD by virtue of Article 239AA(3)(a). This is where thereis a departure from the legislative powers of Parliament with respect toStates. While Parliament does not have legislative competence overHentries in List II for States, it has the power to make laws on entries in List II for NCTD. This was the view taken in the 2018 ConstitutionBench judgment. As the concurring opinion of Justice Chandrachud held:

“316… Unlike State Legislative Assemblies which wield legislativepower exclusively over the State List, under the provisions ofArticle 246(3), the legislative assembly for NCT does not possessexclusive legislative competence over State List subjects. By aconstitutional fiction, as if it were, Parliament has legislative powerover Concurrent as well as State List subjects in the SeventhSchedule. Sub Clause (c) of Clause 3 of Article 239AA containsa provision for repugnancy, similar to Article 254. A law enactedby the legislative assembly would be void to the extent of arepugnancy with a law enacted by Parliament unless it hasreceived the assent of the President. Moreover, the assent of thePresident would not preclude Parliament from enacting legislationin future to override or modify the law enacted by the legislativeassembly… ”

19. The 2018 Constitution Bench judgment held that the executivepower of NCTD is co-extensive with its legislative power, that is, it shallextend to all matters with respect to which it has the power to legislate.Article 239AA(4) provides that the Council of Ministers shall aid andadvise the Lieutenant Governor in the exercise of the functions of thelatter in relation to matters with respect to which the Legislative Assemblyhas the power to make laws. Thus, the executive power of NCTD shallextend over entries in List II, except the excluded entries. After analysingthe provision of Article 239AA(4), it was held in the opinion of the majorityin the 2018 Constitution Bench judgment that the Union has executivepower only over the three entries in List II over which NCTD does nothave legislative competence, that is, entries 1,2, and 18 in List II. It washeld:

“222. A conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the Government ofNCT of Delhi is coextensive with the legislative power of theDelhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the StateList and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers overall those subjects for which the Delhi Legislative Assembly haslegislative power.

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223. Article 239-AA(3)(a) reserves Parliament’s legislative poweron all matters in the State List and Concurrent List, but clause (4)nowhere reserves the executive powers of the Union with respectto such matters. On the contrary, clause (4) explicitly grants tothe Government of Delhi executive powers in relation to mattersfor which the Legislative Assembly has power to legislate. Thelegislative power is conferred upon the Assembly to enact whereasthe policy of the legislation has to be given effect to by the executivefor which the Government of Delhi has to have coextensiveexecutive powers…

224. Article 239-AA(4) confers executive powers on theGovernment of NCT of Delhi whereas the executive power ofthe Union stems from Article 73 and is coextensive withParliament’s legislative power. Further, the ideas of pragmaticfederalism and collaborative federalism will fall to the ground ifwe are to say that the Union has overriding executive powerseven in respect of matters for which the Delhi Legislative Assemblyhas legislative powers. Thus, it can be very well said that theexecutive power of the Union in respect of NCT of Delhi isconfined to the three matters in the State List for which thelegislative power of the Delhi Legislative Assembly has beenexcluded under Article 239-AA(3)(a). Such an interpretationwould thwart any attempt on the part of the Union Government toseize all control and allow the concepts of pragmatic federalismand federal balance to prevail by giving NCT of Delhi some degreeof required independence in its functioning subject to the limitationsimposed by the Constitution…

284.16. As a natural corollary, the Union of India has exclusiveexecutive power with respect to NCT of Delhi relating to thethree matters in the State List in respect of which the power ofthe Delhi Legislative Assembly has been excluded. In respect ofother matters, the executive power is to be exercised by theGovernment of NCT of Delhi. This, however, is subject to theproviso to Article 239-AA(4) of the Constitution. Such aninterpretation would be in consonance with the concepts ofpragmatic federalism and federal balance by giving theGovernment of NCT of Delhi some required degree ofindependence subject to the limitations imposed by theConstitution.”

20. The judgment of the majority, however, clarified that ifParliament 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 enactedby Parliament. It was held:

“284.15. A conjoint reading of clauses (3)(a) and (4) ofArticle 239-AA divulges that the executive power of theGovernment of NCTD is coextensive with the legislative powerof the Delhi Legislative Assembly and, accordingly, theexecutive power of the Council of Ministers of Delhi spansover all subjects in the Concurrent List and all, but threeexcluded subjects, in the State List. However, if Parliamentmakes law in respect of certain subjects falling in the State List orthe Concurrent List, the executive action of the State mustconform to the law made by Parliament. (sic)” (emphasissupplied)

21. The above view was also taken by Justice Chandrachud in hisconcurring opinion:

“316.... the provisions of Clause 2 and Clause 3 of Article 239AAindicate that while conferring a constitutional status upon thelegislative assembly of NCT, the Constitution has circumscribedthe ambit of its legislative Powers firstly, by carving out certainsubjects from its competence (vesting them in Parliament) andsecondly, by enabling Parliament to enact law on matters fallingboth in the State and Concurrent lists. Moreover, in the subjectswhich have been assigned to it, the legislative authority of theAssembly is not exclusive and is subject to laws which are enactedby Parliament.”

22. The 2018 Constitution Bench judgment authoritatively heldthat the legislative and executive power of NCTD extends to all subjectsin Lists II and III, except those explicitly excluded. However, in view ofArticle 239AA(3)(b), Parliament has the power to make laws with respectto all subjects in List II and III for NCTD.

(c) “Insofar as any such matter is applicable to Union Territories”

23. It has been argued by the Union of India that the phrase ‘inso far as any such matter is applicable to Union Territories’ in Article239AA has not been construed by the Constitution Bench, and that thephrase limits the legislative power of NCTD.

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24. However, reference has to be made to the concurring opinionof Justice Chandrachud in the 2018 Constitution Bench judgment, whichdealt with the above phrase. It was held:

“Insofar as any such matter is applicable to Union Territories

460. In the State List and the Concurrent List of the SeventhSchedule, there are numerous entries which use the expression“State”. These entries are illustratively catalogued below:

[…]

461. Article 239-AA(3)(a) permits the Legislative Assemblyof the NCT to legislate on matters in the State List, exceptfor Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar asthey relate to the earlier entries) and on the ConcurrentList, “insofar as any such matter is applicable to UnionTerritories”. In forming an understanding of these words ofArticle 239-AA(3)(a), it has to be noticed that since thedecision in Kanniyan right through to the nine-Judge Benchdecision in NDMC, it has been held that the expression“State” in Article 246 does not include a Union Territory.The expression “insofar as any such matter is applicableto Union Territories” cannot be construed to mean thatthe Legislative Assembly of NCT would have no power tolegislate on any subject in the State or Concurrent Lists,merely by the use of the expression “State” in that particularentry. This is not a correct reading of the above words ofArticle 239-AA(3)(a). As we see below, that is not howParliament has construed them as well.

462. Section 7(5) of the GNCTD Act provides that salaries of theSpeaker and Deputy Speaker of the Legislative Assembly maybe fixed by the Legislative Assembly by law. Section 19 providesthat the Members of the Legislative Assembly shall receive salariesand allowances as determined by the Legislative Assembly bylaw. Section 43(3) similarly provides that the salaries andallowances of Ministers shall be determined by the LegislativeAssembly. However, Section 24 provides that a Bill for the purposehas to be reserved for the consideration of the President.Parliament would not have enacted the above provisionsunless legislative competence resided in the States on the above subject. The subjects pertaining to the salaries andallowances of Members of the Legislature of the State(including the Speaker and Deputy Speaker) and of theMinisters for the State are governed by Entry 38 and Entry40 of the State List. The GNCTD Act recognizes thelegislative competence of the Legislative Assembly of NCTto enact legislation on these subjects. The use of theexpression “State” in these entries does not divest thejurisdiction of the Legislative Assembly. Nor are the wordsof Article 239-AA(3)(a) exclusionary or disabling in nature.

463. The purpose of the above narration is to indicate that theexpression “State” is by itself not conclusive of whether aparticular provision of the Constitution would apply to UnionTerritories. Similarly, it can also be stated that the definition ofthe expression State in Section 3(58) of the General ClausesAct (which includes a Union Territory) will not necessarilygovern all references to “State” in the Constitution. If there issomething which is repugnant in the subject or context, the inclusivedefinition in Section 3(58) will not apply. This is made clear in theprecedent emanating from this Court. In certain contexts, it hasbeen held that the expression “State” will not include UnionTerritories while in other contexts the definition in Section 3(58)

has been applied. Hence, the expression “insofar as any suchmatter is applicable to Union Territories” is not one ofexclusion nor can it be considered to be so irrespective ofsubject or context.”

It is evident that the concurring opinion held that the phrase “insofaras any such matter is applicable to Union Territories” is an inclusiveterm, and “not one of exclusion”. Justice Chandrachud interpreted theterm to mean that the Legislative Assembly of NCTD shall have thepower to legislate on any subject in the State or Concurrent Lists, exceptthe excluded subjects.

25. In his concurring opinion in the 2018 Constitution Benchjudgment, Justice Bhushan also interpreted the said phrase in the followingterms:

“551. The provision is very clear which empowers the LegislativeAssembly to make laws with respect to any of the matters A

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Aenumerated in the State List or in the Concurrent List except theexcluded entries. One of the issue is that power to make laws inState List or in Concurrent List is hedged by phrase “in so far asany such matter is applicable to Union territories”.

552. A look of the Entries in List II and List III indicatesBthat there is no mention of Union Territory. A perusal ofthe List II and III indicates that although in various entriesthere is specific mention of word “State” but there is noexpress reference of “Union Territory” in any of theentries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42and 43, there is specific mention of word “State”. Similarly, in ListCIII Entry 3, 4 and 43 there is mention of word “State”. The abovephrase “in so far as any such matter is applicable to UnionTerritory” is inconsequential. The reasons are two fold. Onthe commencement of the Constitution, there was noconcept of Union Territories and there were only Part A,DB, C and D States. After Seventh ConstitutionalAmendment, where First Schedule as well as Article 2 ofthe Constitution were amended which included mention ofUnion Territory both in Article 1 as well as in First Schedule.Thus, the above phrase was used to facilitate the automaticconferment of powers to make laws for Delhi on all mattersEincluding those relatable to the State List and ConcurrentList except where an entry indicates that its applicabilityto the Union Territory is excluded by implication or anyexpress Constitutional provision.

553. Thus, there is no difficulty in comprehending the LegislativeFpower of the NCTD as expressly spelled out in Article 239AA…”

26. Justice Bhushan also agreed that the phrase “in so far as anysuch matter is applicable to Union territories” cannot be used to restrictGthe legislative power of the Legislative Assembly of Delhi. He held thatthe “phrase was used to facilitate the automatic conferment of powersto make laws for Delhi on all matters including those relatable to theState List and Concurrent List” except for excluded entries.

27. The judgment of the majority did not make a direct observationon the interpretation of the said phrase. However, the reasoning indicatesH

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

that the phrase was to be considered in a broader sense. As notedpreviously, the judgment of the majority held that the executive power ofNCTD is coextensive with its legislative power on subjects except theexcluded subjects under Article 239AA(3)(a). This means that theexecutive power flows from the legislative power, that is, if NCTD hasexecutive power on a subject in List II, it is because it has legislativepower under the entries of that List. The judgment of the majority heldthat the Union shall have exclusive executive power with respect toNCTD only for “the three matters in the State List in respect of whichthe power of the Delhi Legislative Assembly has been excluded”. Itwas further held that in respect of “all other matters,” executive poweris to be exercised by GNCTD. This would mean that NCTD has executivepower on “all other matters”. This indicates that the judgment of themajority interpreted Article 239AA(3)(a) and the phrase “in so far asany such matter is applicable to Union Territory” to give legislative powerto NCTD on “all other matters” except the three matters in the StateList in respect of which the power of the Legislative Assembly of NCTDhas been excluded.

28. The above discussion implies that all the five Judges in the2018 Constitution Bench judgment did not construe the phrase “in so faras any such matter is applicable to Union Territories” in Article 239AAto be exclusionary.

29. However, in his opinion in the 2019 split verdict, JusticeBhushan was of the contrary view. He held that the majority opinion inthe 2018 Constitution bench judgment did not interpret the phrase “insofaras any such matter is applicable to Union Territories”:

“187. As noticed above, the Constitution Bench in para 39extracted above has noticed the submissions of the counsel forthe respondent that words “insofar as any such matter is applicableto Union Territories…” in Article 239-AA(3)(a) restrict thelegislative power of the Legislative Assembly of Delhi to onlythose entries which are only applicable to Union Territories andnot all. The elaborate discussion on its answer is not foundin the majority opinion expressed by Justice Dipak Misra,C.J. (as he then was). The submission having been made beforethe Constitution Bench which submission was considered in othertwo opinions expressed by Dr Justice D.Y. Chandrachud and AB

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myself, it is useful to notice as to what has been said in other twoopinions in the Constitution Bench…

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191. Dr D.Y. Chandrachud, J., thus, held that the expression“State” is by itself not conclusive of whether a particular provisionof the Constitution would apply to Union Territories. His LordshipBopined that the expression “insofar as any such matter is applicableto Union Territories” is not one of exclusion nor can it be consideredto be so irrespective of subject or context.

192. I had also dealt with the above submission in paras 500, 551and 552 in the following words:

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193. In the above paragraphs, the opinion is expressed that allmatters including those relatable to the State List and ConcurrentList are available to the Legislative Assembly of Delhi exceptwhere an entry indicates that its applicability to the UnionTerritory is excluded by implication or by any expressconstitutional provision. The conclusion is, thus, that all entriesof List II and List III are available to Legislative Assembly forexercising legislative power except when an entry is excluded byimplication or by any express provision.

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E194. The majority opinion delivered by Dipak Misra, C.J.(as he then was) having not dealt with the expression“insofar as any such matter is applicable to UnionTerritories”, it is, thus, clear that no opinion has beenexpressed in the majority opinion of the ConstitutionBench…”F

30. We are unable to agree with the view of Justice Bhushan inthe 2019 split verdict. As indicated previously, the majority decision inthe 2018 Constitution Bench judgement rendered a broad interpretationGof Article 239AA(3)(a) to provide NCTD with vast executive and co-extensive legislative powers except in the excluded subjects. A combinedreading of the majority opinion and the concurring opinions of JusticeChandrachud and Justice Bhushan indicates that the phrase “in so far asany such matter is applicable to Union Territories” does not restrict thelegislative powers of NCTD.H

31. While the 2018 Constitution Bench judgment provides sufficientclarity on the interpretation of the phrase “inso far as any such matter isapplicable to Union Territories”, we find it necessary to deal with thearguments made by the Union of India that the phrase must be read in arestrictive manner to limit the legislative power of NCTD on certainsubjects (in addition to already excluded subjects) in List II.

D. The ‘class’ of Union territories

32. The opinion of the majority in the 2018 Constitution Benchjudgment acknowledged the special status of NCTD. A reference to thehistorical background which led to the conceptualization of UnionTerritories would be useful to assess the argument of the Union thatthere exists a class of Union territories. When the Indian Constitutionwas 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 governedby the Government of Part C States Act 1951. The Act provided for aCouncil of Ministers and a legislature of elected representatives for Delhiwith the power of making laws with respect to any of the mattersenumerated in the State List or the Concurrent List except for the subjectswhich were expressly excluded. The excluded subjects corresponded tothose in Article 239AA along with the subject of ‘Municipal Corporations.’These powers were limited in nature and subject to the legislative powerof Parliament.

33. The Constitution (Seventh Amendment) Act 1956,[9] basedbroadly on the recommendations of the Fazl Ali Commission and designedto implement the provisions of the States Reorganization Act 1956, interalia did away with the erstwhile classification of States into Part A, PartB, and Part C States, and Part D territories. Instead, it introduced Statesand Union Territories. The newly created Union Territories were to beadministered by the President acting through an Administrator in termsof Article 239 of the Constitution.

34. However, it is important to note that the Fazl Ali Commissionwas alive to the special needs of Delhi and the importance of accountingfor local needs and wishes of the residents of NCTD. It noted that:

“593. […] Having taken all these factors into account, we aredefinitely of the view that municipal autonomy in the form of a 9 "1956 Constitution Amendment”

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Acorporation, which will provide greater local autonomy than is thecase in some of the important federal capitals, is the right and infact the only solution of the problem of Delhi State.”

35. Soon thereafter, in 1962, Article 239A was inserted in theConstitution by the Constitution (Fourteenth Amendment) Act 1956. ThisBenvisaged the creation of local legislatures or a Council of Ministers orboth for certain Union Territories. Thus, a significant change wasintroduced in the governance structure for Union Territories. Article 239Acreated a separate category of Union Territories since all Union Territorieswere no longer envisaged to be administered only by the President. Theintroduction of Article 239A was followed by the Government of UnionCTerritories Act 1963. Currently, the Union Territory of Puducherry isadministered in terms of the governance structure envisaged by thisenactment.

36. By the Constitution (Sixty-ninth Amendment) Act 1991[10],Article 239AA was inserted in the Constitution. It introduced a uniqueDstructure of governance for NCTD vis-à-vis the Union Territories. TheStatement of Objects and Reasons of provides as follows:

“1. … After such detailed inquiry and examination, it recommendedthat Delhi should continue to be a Union Territory and providedwith a Legislative Assembly and a Council of Ministers responsibleEto such Assembly with appropriate powers to deal with mattersof concern to the common man. The Committee also recommendedthat with a view to ensure stability and permanence, thearrangements should be incorporated in the Constitutionto give the National Capital a special status among theUnion Territories.”F

37. The 1991 Constitution Amendment brought a fresh dimensionto the governance of Union Territories. By virtue of the provisions ofArticle 239AA, NCTD became the only Union Territory with a specialGstatus of having a constitutionally mandated legislature and Council ofMinisters. This was a departure from the earlier model of governancefor Union territories. Article 239AA, in contrast, constitutionally mandatesa legislature and prescribes the scope of legislative and executive powerfor NCTD.

H10 "1991 Constitution Amendment”

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

38. Article 239AA creates a wide variation in structures ofgovernance of NCTD as compared to other Union Territories, withdifferences even as regards the manner in which legislative powers havebeen bestowed upon them. For instance, Article 239A provides thatParliament “may” create a legislature for Puducherry. On the other hand,for NCTD, the Constitution itself (in terms of Article 239AA) has createda Legislative Assembly and a Council of Ministers. The constitutionallycoded status of NCTD results in a creation of a significant degree ofvariance in the governance structure when compared to other Statesand Union territories.

39. The concurring opinion of Justice Chandrachud in the 2018Constitution Bench judgment expressly discussed this aspect and heldthat no single homogeneous class of Union Territories exits. Instead,Union Territories fall in various categories:

“453. The judgment of the majority [New Delhi MunicipalCouncil v State of Punjab] also holds that all Union Territoriesare not situated alike. The first category consists of UnionTerritories which have no legislature at all. The second categoryhas legislatures created by a law enacted by Parliament underthe Government of Union Territories Act, 1963. The thirdcategory is Delhi which has “special features” under Article239-AA. Though the Union Territory of Delhi “is in a classby itself”, it “is certainly not a State within the meaning ofArticle 246 or Part VI of the Constitution”. Various UnionTerritories — the Court observed — are in different stagesof evolution…

475.1. The introduction of Article 239-AA into the Constitutionwas the result of the exercise of the constituent power. The Sixty-ninth Amendment to the Constitution has importantconsequences for the special status of Delhi as the NationalCapital Territory, albeit under the rubric of a Union Territorygoverned by Part VIII of the Constitution.”

40. This variance in the constitutional treatment of Union Territoriesas well as the absence of a homogeneous class is not unique only toUnion Territories. The Constitution is replete with instances of specialarrangements being made to accommodate the specific regional needs AB

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Aof States in specific areas. Therefore, NCTD is not the first territorywhich has received a special treatment through a constitutional provision,but it is another example - in line with the practice of the Constitution -envisaging arrangements which treat federal units differently from eachother to account for their specific circumstances. For instance, Article371 of the Constitution contains special provisions for certain areas inBvarious States as well as for the entirety of some States. The marginalnotes to various articles composed under the rubric of Article 371 providean overview of a number of States for which arrangements in the natureof asymmetric federalism are made in the spirit of accommodating thedifferences and the specific requirements of regions across the nation:C“371. Special provision with respect to the States of [* * *]Maharashtra and Gujarat 371-A. Special provision with respect to the State of Nagaland371-B. Special provision with respect to the State of Assam D371-C. Special provision with respect to the State of Manipur371-D. Special provisions with respect to the State of AndhraPradesh or the State of Telangana]

371-E. Establishment of Central University in Andhra Pradesh E371-F. Special provisions with respect to the State of Sikkim371-G. Special provision with respect to the State of Mizoram371-H. Special provision with respect to the State of ArunachalPradesh F371-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 accommodatesthe interests of different regions. While providing a larger constitutionalumbrella to different states and Union territories, it preserves the localGaspirations of different regions. “Unity in diversity” is not only used incommon parlance, but is also embedded in our constitutional structure.Our interpretation of the Constitution must give substantive weight tothe underlying principles.

42. Therefore, we are unable to agree with the argument of theHSolicitor General that the legislative power of NCTD does not extend to those subjects which are not available to Union Territories as a classbecause Article 239AA employs the term”any such matter is applicableto Union Territories”. The analysis in this section clarifies that there isno homogeneous class of Union territories with similar governancestructures.

E. Maintaining the balance between local interests andnational interests

43. The Union of India has submitted that the phrase “in so far asany such matter is applicable to Union Territories” in Article 239AAcannot be interpreted inclusively as the Union has a preponderance ofinterest in the governance of the national capital and therefore the phrasemust be read in a narrow manner. It has submitted that as Delhi is theseat of the Union Government, national interests take precedence overand beyond the quibbles of local interests. We find that this argumentdoes not hold merit in light of the text of Article 239AA(3). This argumentwas already addressed in the 2018 Constitution Bench judgment.

44. Article 239AA(3)(a) confers legislative power to NCTD.However, it does not confer legislative power to NCTD over all entriesin List II. Article 239AA(3) provides multiple safeguards to ensure thatthe interest of the Union is preserved. First, sub-clause (a) of clause (3)removes three entries in List II from the legislative domain of NCTD. Itprovides that NCTD shall not have the power to enact laws on “matterswith respect to entries 1, 2 and 18 of the State List and entries 64, 65 and66 of that List in so far as they relate to the said entries 1, 2 and 18”.Second, sub-clause (b) of clause (3) clarifies that Parliament has thepower to legislate on “any matter” for a Union Territory (including onsubjects with respect to which NCTD has legislative power under Article239AA(3)(a)). In other words, Parliament has the plenary power tolegislate on a subject in any of the three Lists of the Seventh Schedulefor NCTD. Third, Article 239AA(3)(c) provides that where there is arepugnancy between a law enacted by the Legislative Assembly of NCTDand a law enacted by Parliament, the latter will prevail, and the lawenacted by the legislative assembly shall, “to the extent of the repugnancy,be void”. Unlike Article 254, which provides for the overriding power ofParliament only on subjects in the Concurrent List, Parliament hasoverriding power in relation to the NCTD over subjects in both List IIand List III. Fourth, the second proviso to Article 239AA(c) providesthat Parliament may enact “at any time any law with respect to the A

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Asame matter including a law adding to, amending, varying or repealingthe law so made by the Legislative Assembly” of NCTD. Fifth, underArticle 239AA(7)(a), Parliament may by law make provisions for givingeffect to, or supplementing the provisions in the forgoing clauses of Article239AA and for “all matters incidental or consequential thereto”. Article239AA(7)(b) stipulates that such law shall not be deemed to be anBamendment of the Constitution for the purposes of Article 368,whichdeals with the power and procedure to amend the Constitution. Thus,Article 239AA(3) balances between the interest of NCTD and the Unionof India.

45. This constitutional balance has been analyzed in the concurringCopinion of Justice Chandrachud in the 2018 Constitution Bench judgmentin the following terms:

“ While bearing [...] fundamental constitutional principles of ademocracy in mind, a balance has to be struck with the second ofthe above elements which recognises the special status of theDNCT. The NCT represents the aspirations of the residents of itsterritory. But it embodies, in its character as a capital city thepolitical symbolism underlying national governance. Thecircumstances pertaining to the governance of the NCT may havea direct andEimmediate impact upon the collective welfare of the nation. Thisis the rationale for the exclusion of the subjects of public order,police and land from the legislative power and necessarily fromthe executive power of the NCT. These considerations wouldnecessarily require a careful balance between the two principles.”F46. Thus, it is evident that the Legislative Assembly of NCTDdoes not exercise exclusive legislative powers over all the entries in theState List. It is only in a demarcated constitutional sphere that it is ableto exercise its legislative power. Parliament, by virtue of the 1991Constitution Amedndment, has already reserved certain subjects ofGnational importance to itself. Furthermore, Parliament has overridinglegislative powers in relation to NCTD in terms of sub-clauses (b) and(c) of Article 239AA(3) and Article 239AA(7). The intent and purposeof Article 239AA(3(b) and Article 239AA(7) is to confer an expandedlegislative competence upon Parliament, when it comes to GNCTDclearly since it is the capital of the country and therefore, must be dealtHwith different considerations. In this manner, Parliament acting in its

constituent power while introducing Article 239AA has provided sufficientsafeguards and was cognizant of the necessity to protect concerns relatedto national interests. The Constitution confers powers to Parliament tosuch an extent that it would have the effect of amending the Constitution.As discussed, the legislative powers of NCTD are limited. If we interpretthe phrase “in so far as any such matter is applicable to Union Territories”is interpreted in a manner to exclude a greater number of entries thanwhat is already excluded by Article 239A(3), it will defeat the verypurpose of granting a “special status” to NCTD.

F. Inclusive interpretation of “insofar as any such matter isapplicable to Union territories”

47. The Union of India submitted that the phrase “insofar as anysuch matter is applicable to Union territories” is specifically a term ofexclusion and not a term of inclusion. It argued that the phrase wasintroduced to limit the legislative and executive power over entries inList II over and beyond the entries which have been expressly excludedby Article 239AA. We shall now refer to other provisions of theConstitution to analyse the above arguments.

48. The power of Parliament and legislatures of States to legislateupon entries in the Union List, State List and Concurrent List flows fromArticle 246 of the Constitution. Article 246(3) confers exclusive powerto the legislatures of States to make laws for that State with respect tothe matters enumerated in the State List. Article 246(4) provides thatParliament has the power to make laws with respect to any matter forany part of the territory of India not included in a State notwithstandingthat such matter is a matter enumerated in the State List.

49. Article 366 provides meanings of various expressions used inthe Constitution, unless the context otherwise requires. The provisionstipulates that unless the context otherwise requires, the expressionsdefined in an Article shall have the meanings respectively assigned tothem in the provision. Article 366(26B) provides that ‘State’ withreference to Articles 246A, 268, 269, 269A and 279A includes a UnionTerritory with a legislature. Articles 366(26B), incorporated in theConstitution by the Constitution (One Hundred and First Amendment)Act 2016, provides the meaning of ‘State’ only with reference to fiveother Articles in the Constitution, to enable the proper functioning of thegoods and services tax regime. However, a universal definition of ‘State’has not been provided under Article 366.

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A50. Article 367(1) provides that unless the context otherwiserequires, the General Clauses Act 1897[11], subject to any adaptations andmodifications that may be made therein by any Presidential Order madeunder Article 372 to bring it in conformity with the provisions of theConstitution, is to apply for the interpretation of the Constitution:

B“367(1):Unless the context otherwise requires, the General ClausesAct, 1897, shall, subject to any adaptations and modifications thatmay be made therein under Article 372, apply for the interpretationof this Constitution as it applies for the interpretation of an Act ofthe Legislature of the Dominion of India.”

C51. Article 372(2) stipulates that the President may by order makemodifications and adaptations to the provisions of any law in force in theterritory of India to bring it in accordance with the provisions of theConstitution. This power under Article 372(3) was only granted to thePresident for three years and thus, it expired on 25 January 1953.

52. The 1956 Constitution Amendment was introduced to makeDnecessary amendments to the provisions of the Constitution to give effectto the reorganisation of States. Article 372A which was introducedpursuant to the 1956 Constitution Amendment confers on the Presidentthe power to make modifications and adaptations in provisions of law, inforce in India immediately before the amendment, to bring it in consonanceEwith the provisions of the Constitution.

53. The President amended Section 3(58) of the General ClausesAct by the Adaptation of Laws (No. 1) Order, 1956. Subsequent to theamendment in 1956. Section 3(58) stipulates that the phrase ‘State’ withrespect to any period before the commencement of the 1956 ConstitutionFAmendment shall mean a Part A State, a Part B State, or a Part C State,and with respect to the period after the amendment shall include a Statespecified in the First Schedule to the Constitution and shall include aUnion Territory:

“(58) “State”— (a) as respects any period before theGcommencement 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, shallmean a State specified in the First Schedule to the Constitutionand shall include a Union territory;]”

H11 "General Clauses Act”

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

54. In Advance Insurance Corporation Limited v.Gurudasmal,[12] the question before a Constitution Bench of this Courtwas whether the word ‘State’ in Entry 80 of List I could be read toinclude Union territories. Entry 80 read as follows:

“80. Extension of the powers and jurisdiction of members of apolice force belonging to any State to any area outside that State,but not so as to enable the police of one State to exercise powersand jurisdiction in any area outside that State without the consentof the Government of the State in which such area is situated;extension of the powers and jurisdiction of members of a policeforce belonging to any State to railway areas outside that State.”

55. Justice Hidayatullah writing for the Constitution Bench rejectedthe argument that the amended definition of ‘State’ under General ClausesAct will not apply to the interpretation of provisions of the Constitution.He observed that Article 372A provides the President with a fresh powerof adaptation and this power is equal and analogous to the power thatthe President held under Article 372(2). This Court held that unless thecontext otherwise requires, the definition provided under the GeneralClauses Act and as modified by the order under Article 372A shall beapplied.

56. However, a separate Constitution Bench of this Court in ShivKirpal Singh v. VV Giri,[13] held that definitions under the General ClausesAct as modified by the President under the adaptation order by virtue ofthe power conferred under Article 372A do not apply to the interpretationof the Constitution. In this case, the issue was whether the phrase “electedmembers of the Legislative Assemblies of the States” in Article 54 (whichconstitutes the electoral college for the election of the President) wouldinclude the elected members of the Legislative Assemblies of Unionterritories. This Court answered in the negative. This Court held that themodifications under Article 372A was limited only to the interpretationof laws of Parliament and would not apply to the interpretation of theConstitution because Article 367 stipulates that the General Clauses Actshall apply to the interpretation of the Constitution, subject to suchadaptations made under Article 372. The provision does not provide thatthe interpretation must also be subject to the adaptation made underArticle 372A. Parliament responded to the anomaly created by the 12 (1970) 1 SCC 633

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Ajudgment in Shiv Kirpal Singh (supra), and inserted an Explanation toArticle 54 by the Constitution (Seventeenth Amendment) Act 1992. TheExplanation clarifies that the reference to ‘State’ in Articles 54 and 55would include the National Capital Territory of Delhi and the UnionTerritory of Pondicherry for constituting the electoral college for theelection of the President. In Shiv Kirpal Singh (supra),this Court didBnot refer to the decision in Advance Insurance (supra). Thus, thedecision in Shiv Kirpal Singh is per incuriam to the extent ofinterpretation of Article 372A.

57. The provisions of the General Clauses Act as modified by thePresident in exercise of the power under Article 372A shall apply to theCinterpretation of the Constitution. It cannot be held otherwise merelybecause Article 367 does not refer to Article 372A. To interpret Article367 in such a manner would render Article 372A and the amendments inthe Constitution by the 1956 Constitution Amendment otiose. The powerto make adaptations and modifications was granted to the President byDArticle 372A to bring the provisions of law in accordance with theConstitution, as amended by the 1956 Constitution amendment. If Article367 is interpreted as excluding modifications under Article 372A, therewould be an apparent inconsistency between the interpretation of theConstitution and the interpretation of statutes. While in the case of theformer, the definition of State prior to the 1956 amendment would apply,Ein the case of the latter, the definition as amended by the 1956 amendmentwould apply. Thus, a literal interpretation of Article 367 would renderthe Constitution unworkable and would not give effect to the 1956Constitution Amendment. This Court must render a purposiveinterpretation of Article 367. Article 367 must be read to mean that the FGeneral Clauses Act, as amended by adaptation and modification ordersunder Article 372 and Article 372A shall apply to the interpretation ofthe Constitution, unless the context requires. Thus, unless the contextotherwise requires, the term “State” in the Constitution must be read toinclude Union territories. Accordingly, we agree with the interpretationof Article 367 rendered by this Court in Advance Insurance (supra).G

58. The findings in Advance Insurance (supra)were laterreiterated by this Court in Prem Kumar Jain (supra). In Prem KumarJain (supra), a four-Judge Bench of this Court held that Article 372A isa special provision introduced to make the 1956 Constitution amendmentworkable:H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

“7. [...] The definition of the expression “State” as it stood beforeNovember 1, 1956, became unsuitable and misleading on thecoming into force of the Constitution (Seventh Amendment) Act,1956, from November 1, 1956, and it will, for obvious reasons, befutile to contend that it should have continued to be applicable forall time to come and remained “the final definition of ‘State’”merely because the period of three years provided by clause (3)(a)of Article 372 of the Constitution expired and was not extendedby an amendment of that clause, or because Article 367(1) wasnot amended by the Seventh Amendment Act “to say thatadaptations made in the General clauses Act otherwise than thosemade under Article 372(2) would be applicable to the interpretationof the Constitution”. [...] It was a special provision, and it wasmeant to serve the purpose of making the Seventh AmendmentAct workable. As has been held by this Court in Management ofAdvance Insurance Co. Ltd. v. Shri Gurudasmal [(1970) 1 SCC633 : (1970) 3 SCR 881] , Article 372-A gave a fresh power to thePresident which was equal and analogous to the power underArticle 372(2).”

59. We shall now deal with the decisions of this Court which haveheld that the expression ‘State’ in Article 246 does not include a UnionTerritory. In T.M.Kanniyan v. CIT[14,], a Constitution Bench of this Courtdiscussed the applicability of Section 3(58) of the General Clauses Act1897 to Article 246, and held that the inclusive definition of ‘State’ underthe General Clauses Act would not apply to Article 246. Such aninterpretation, it was held, would be repugnant to the subject and contextof Article 246:

“4. Parliament has plenary power to legislate for the Unionterritories with regard to any subject. With regard to Unionterritories there is no distribution of legislative power. Article 246(4)enacts that “Parliament has power to make laws with respect toany matter for any part of the territory of India not included in aState notwithstanding that such matter is a matter enumerated inthe state list.” R.K. Sen v. Union it was pointed out that havingregard to Article 367, the definition of “State” in Section 3(58) ofthe General clauses Act, 1897 applies for the interpretation of theConstitution unless there is anything repugnant in the subject or ABC

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Acontext. Under that definition, the expression “State” asrespects any period after the commencement of theConstitution (Seventh Amendment) Act, 1956 “shall meana State specified in the First Schedule to the Constitutionand shall include a Union territory”. But this inclusivedefinition is repugnant to the subject and context of ArticleB246.There, the expression “States” means the Statespecified in the First Schedule. There is a distribution oflegislative power between Parliament and the legislaturesof the States. Exclusive power to legislate with respect to thematters enumerated in the State List is assigned to the legislaturesCof the States established by Part VI. There is no distribution oflegislative power with respect to Union territories. That is whyParliament is given power by Article 246(4) to legislate even withrespect to matters enumerated in the State List. If the inclusivedefinition of “State” in Section 3(58) of the General ClausesAct were to apply to Article 246(4), Parliament would haveDno power to legislate for the Union territories with respectto matters enumerated in the State List and until alegislature empowered to legislate on those matters iscreated under Article 239-A for the Union territories, therewould be no legislature competent to legislate on thoseEmatters; moreover, for certain territories such as the Andamanand Nicobar Islands no legislature can be created under Article239-A, and for such territories there can be no authority competentto legislate with respect to matters, enumerated in the State List.Such a construction is repugnant to the subject and contextof Article 246.”

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60. The position that Section 3(58) of the General Clauses Act isinapplicable to Article 246 was reiterated by a nine Judge Bench of thisCourt in NDMC v. State of Punjab[15]. The Seventh Schedule wasGinserted under Article 246. In view of the position laid down in Kanniyan(supra) and NDMC (supra), the word “State” used in entries in theSeventh Schedule would also not include Union Territories. Thus, thelegislative competence of NCTD would not extend to entries whichmention ‘State’. The usage of the phrase “insofar as such matter is applicable to Union Territories” was included to avert such a consequence.The phrase has extended the legislative power of NCTD to all the entriesin List II, which use the word “State”.

61. Any amendment to the State List as well as the ConcurrentList, being an amendment to the Seventh Schedule must be in accordancewith Article 368 of the Constitution. The proviso to Article 368(2) of theConstitution stipulates that an amendment to the Seventh Schedule wouldneed a special majority of two-thirds of the members of each House ofParliament present and voting. The amendment would also need to beratified by the legislatures of not less than one-half of the States. If thephrase “insofar as such matter is applicable to Union Territories” wasnot included in Article 239AA, Parliament and the Legislature of Stateswould have been required to amend all entries in the Seventh Schedulewhere the term “State” is used to “State and Union territories”. Thiswould have required a special majority. It was to avoid this time consumingprocess that the expansive phrase of “insofar as such matter is applicableto Union Territories” was used in Article 239AA.

62. Article 239AA expressly excludes entries 1,2, and 18 of ListII from the ambit of the legislative competence of the LegislativeAssembly of NCTD. Article 239AA also stipulates that the legislativepower of NCTD is excluded with respect to entries 64,65, and 66 of ListII insofar as they relate to entries 1,2, and 18. Entry 1 deals with publicorder, Entry 2 deals with police, and Entry 18 deals with Land. Entry 64deals with “offences against laws with respect to any of the matters inthis List”, Entry 65 states “jurisdiction and powers of all courts, exceptthe Supreme Court, with respect to any of the matters in this List”, andEntry 66 states “fees in respect of any of the matters in this List, butnot including fees taken in any court”. The exclusion of entries 64,65,and 66 to the extent that it relates to entries 1,2, and 18 from the legislativecompetence of NCTD indicates that the governance structure envisagedin Article 239AA for NCTD was only to exclude the specific entries 1,2,and 18 from its legislative competence. To read the phrase “insofar assuch matter is applicable to the Union Territories” as introducing animplied exclusion of the legislative powers of NCTD with respect tocertain other entries would be contrary to the plain meaning of theprovision.

63. Article 239AA establishes a Legislative Assembly for NCTD.The seats in the Assembly are filled by a direct election from the A

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Aconstituencies of NCTD. The Legislative Assembly of NCTD embodiesthe constitutional principle of representative democracy similar to theLegislative Assembly of the State. The members of the LegislativeAssembly of NCTD are selected by the electorate of Delhi to representtheir interests. Article 239AA must be interpreted to further the principleof representative democracy.[16] To interpret the phrase “insofar as anyBsuch matter is applicable to Union territories” in a restrictive mannerwould limit the legislative power of the elected members of the assembly.The members of the Legislative Assembly have been chosen by theelectorate to act in their stead. Thus, the legislative competence of NCTDmust be interpreted to give full impetus to the will of the electorate.C

64. We find that the phrase ‘insofar as any such matter is applicableto Union Territories’ in Article 239AA(3) cannot be read to furtherexclude the legislative power of NCTD over entries in the State List orConcurrent List, over and above those subjects which have beenexpressly excluded by the provision.DG. “Subject to the provisions”: A limitation?

65. It has been emphasized by the Union of India that Article239AA not only restricts the powers of the Legislative Assembly ofNCTD through the phrase “insofar as any such matter is applicable toUnion Territories” but also through the restrictive phrase of “Subject toEthe provisions of this Constitution”.

66. The phrase “Subject to the provisions of this Constitution” isnot unique to Article 239AA. It has been used in twenty-two provisionsof the Constitution. Notably, the phrase has also been used in theprovisions dealing with the legislative power of Parliament and the StateFAssemblies (Article 245)[17] as well as in the provisions dealing with theexecutive power of the Union (Article 73(2))[18] and of the States (Article162(3))[19]. The phrase is used to indicate that the legislative power and 16 See Justice Chandrachud’s opinion in the 2018 Constitution Bench 17 245. Extent of laws made by Parliament and by the Legislatures of States - (1) SubjectGto the provisions of this Constitution, Parliament may make laws for the whole or anypart of the territory of India, and the Legislature of a State may make laws for the wholeor any part of the State. […]

18 73. Extent of executive power of the Union - (1) Subject to the provisions of thisConstitution, the executive power of the Union shall extend – […].19 162. Extent of executive power of State - Subject to the provisions of this Constitution,the executive power of a State shall extend to the matters with respect to which theHLegislature of the State has power to make laws: […]

competence exercised by a legislature must be within the limitscircumscribed by the Constitution. Those boundaries may differ on acase to case basis. For instance, a law made by a legislature cannotviolate the fundamental rights of citizens. Another instance is thatParliament can only enact laws on subjects within its legislativecompetence. Furthermore, any law made by Parliament or a StateLegislature shall be subject to the power of judicial review under Article32 or Article 226. A Constitution Bench of this Court in the case ofRajendra Diwan v. Pradeep Kumar Ranibala[20] held:

“Parliament and the State Legislatures derive their power to makelaws from Article 245(1) of the Constitution of India and suchpower is subject to and/or limited by the provisions of theConstitution. While Parliament can make law for the whole orany part of the territory of India, the State Legislature can onlymake laws for the State or any part thereof, subject to therestrictions in the Constitution of India…

While Parliament has exclusive power Under Article 246(1) ofthe Constitution to make laws with respect to the mattersenumerated in the Union List, the State Legislature has exclusivepower to make laws with respect to matters enumerated in theState List, subject to Clauses (1) and (2) of Article 246. Alongwith the Union Legislature, the State Legislature is also competentto enact laws in respect of the matters enumerated in theConcurrent List, subject to the provisions of Article 246(1)…

While the widest amplitude should be given to the language usedin one entry, every attempt has to be made to harmonize itscontents with those of other Entries, so that the latter maynot be rendered nugatory.”

The judgment indicates that the law-making power of evenParliament and State legislatures under Article 245(1) is not absolute. Ithas to be within the confines of the Constitution. DD Basu, in theCommentary on the Constitution of India discusses the constitutionallimitations upon legislative power:[21]

20 [2019] 17 SCR 1089

21 Dr DD Basu, Commentary on the Constitution of India, 8th Edn., 2012, Vol. 8, pp.8749-8753

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“As the opening words of Art. 245(1) say, the legislative powersof both the Union and State Legislatures are subject to the otherprovisions of the Constitution, even though their powers are plenarywithin the spheres assigned to them respectively by theConstitution…

Whether a law has transgressed any of these limitations is to beascertained by the Court and if it is found so to transgress, theCourt will declare the law to be void.

These limitations fall under various categories:

I. The first and foremost is the question of vires or legislativecompetence…

II. Apart from want of legislative competence, a law may be invalidbecause of contravention of some positive limitation imposed bythe Constitution. In such cases, even though the Legislature hadthe competence to make a law with respect to the subject-matterof the impugned law, it became invalid because of contraventionof some specific prohibition or limitation imposed by theConstitution.

Such limitations fall under two heads-

(i) The Fundamental Rights contained in Part III. The effectsof the contravention of a Fundamental Right have been fullydiscussed under Art. 13.

[…]

(ii) Not merely the provisions included in Part III, but any otherprovision contained in the Constitution (even though it does notconfer any fundamental right) constitutes a limitation upon legislativepower on two conditions:

(a) That the provision in question is justiciable, that is tosay, 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 GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

the State, in the absence of a territorial nexus; Another limitationon the legislative power or a ground of unconstitutionality is thatthe Legislature concerned has abdicated its essential legislativefunction as assigned to it by the Constitution and has made anexcessive delegation of that power to some other body. (b) it mustbe for the purposes of the State.”

The same meaning as referred above has to be applied to theusage of the phrase “Subject to the provisions of this Constitution” inArticle 239AA.

67. We therefore hold that the legislative power of NCTD underArticle 239AA(3) is to be guidedby the broader principles and provisionsof the Constitution. The said phrase in Article 239AA(3) must beinterpreted to give effect to the underlying principles in the Constitution.It is in this backdrop that we shall consider the next submission made bythe Union.

H. The Constitution is not Unitary

68. The Union of India has argued that the Indian Constitution isoften referred to as a federal Constitution with a strong unitary bias, andas far as Union Territories are concerned, the Constitution is unitary inform and in spirit. It is submitted that the generic concept of federalism,as applicable to States cannot apply to Union Territories. Thus, it is arguedthat the phrases “Subject to the provisions of this Constitution” and “inso far as any such matter is applicable to Union territories” are to beinterpreted accordingly.

69. To analyse the above argument, it is imperative to understandthe concept of federalism as the members of the Constituent Assemblyenvisioned. Dr. B.R. Ambedkar in one of his seminal speeches beforethe Constituent Assembly explained the dual polity federal modelestablished under the Constitution[22]:

“Dual Polity under the proposed Constitution will consist of theUnion at the Centre and the States at the periphery each endowedwith sovereign powers to be exercised in the field assigned tothem respectively by the Constitution… the Indian Constitutionproposed in the Draft Constitution is not a league of States nor 22 Constituent Assembly Debates, Vol. 7 at p. 33 (4 November 1948)

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70. Further, when Dr. Ambedkar was questioned in the ConstituentAssembly on the centralizing tendency of the Constitution, he respondedBby saying that:[23]

“The States, under our Constitution, are in no waydependent upon the Centre for their legislative or executiveauthority. The Centre and the States are co-equal in thismatter... It may be that the Constitution assigns to the Centre tooClarge a field for the operation of its legislative and executiveauthority than is to be found in any other Federal Constitution. Itmay be that the residuary powers are given to the Centre and notto the States. But these features do not form the essence offederalism. The chief mark of federalism, as I said lies inDthe partition of the legislative and executive authoritybetween the Centre and the Units by the Constitution. Thisis the principle embodied in our Constitution.”

71. It emerges from the speeches of Dr Ambedkar in theEConstituent Assembly that India adopted a federal model, in which theUnion and the States were meant to operate within their assignedlegislative domains. The States are not subservient to the Union. Thelegislative domain of the States was exclusive, and cannot be interferedwith by the Union. This principle has been reiterated in judgments of thisCourt.F

72. Justice B.P. Jeevan Reddy, in his separate opinion, in S RBommai v. Union of India[24], where federalism was held to be part ofthe basic structure, held that, the States were independent and supremein the sphere allotted to them, even if the Constitution has a centraizingdrift:G

“276. The fact that under the scheme of our Constitution, greaterpower is conferred upon the Centre vis-à-vis the States does notmean that States are mere appendages of the Centre. Within the 23 Constituent Assembly Debates, Vol. 11 at p. 976 (25 November 1949)H24 (1994) 3 SCC 1

sphere allotted to them, States are supreme. The Centre cannottamper with their powers. More particularly, the courts should notadopt an approach, an interpretation, which has the effect of ortends to have the effect of whittling down the powers reserved tothe States.”

73. In terms of the above discussion in the Constituent Assemblyand the judgment of this Court, it is clear that the Constitution providesStates with power to function independently within the area transcribedby the Constitution. The States are a regional entity within the federalmodel. The States in exercise of their legislative power satisfy thedemands of their constituents and the regional aspirations of the peopleresiding in that particular State. In that sense, the principles of federalismand democracy are interlinked and work together in synergy to secureto all citizens justice, liberty, equality and dignity and to promote fraternityamong them. The people’s choice of government is linked with thecapability of that government to make decisions for their welfare.

74. The principles of democracy and federalism are essentialfeatures of our Constitution and form a part of the basic structure.[25]Federalism in a multi-cultural, multi-religious, multi-ethnic and multi-linguistic country like India ensures the representation of diverse interests.It is a means to reconcile the desire of commonality along with the desirefor autonomy and accommodate diverse needs in a pluralistic society.Recognizing regional aspirations strengthens the unity of the countryand embodies the spirit of democracy. Thus, in any federal Constitution,at a minimum, there is a dual polity, that is, two sets of governmentoperate: one at the level of the national government and the second atthe level of the regional federal units. These dual sets of government,elected by “We the People” in two separate electoral processes, is adual manifestation of the public will. The priorities of these two sets ofgovernments which manifest in a federal system are not just bound to bedifferent, but are intended to be different.

75. While NCTD is not a full-fledged state, its Legislative Assemblyis constitutionally entrusted with the power to legislate upon the subjectsin the State List and Concurrent List. It is not a State under the FirstSchedule to the Constitution, yet it is conferred with power to legislateupon subjects in Lists II and III to give effect to the aspirations of the 25 SR Bommai v. Union of India, (1994) 3 SCC 1

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Apeople of NCTD. It has a democratically elected government which isaccountable to the people of NCTD. Under the constitutional schemeenvisaged in Article 239AA(3), NCTD was given legislative power whichthough limited, in many aspects is similar to States. In that sense, withaddition of Article 239AA, the Constitution created a federal model withthe Union of India at the centre, and the NCTD at the regional level.BThis is the asymmetric federal model adopted for NCTD. While NCTDremains a Union Territory, the unique constitutional status conferred uponit makes it a federal entity for the purpose of understanding the relationshipbetween the Union and NCTD. The majority in the 2018 ConstitutionBench judgment held that while NCTD could not be accorded the statusCof a State, the concept of federalism would still be applicable to NCTD:

“122.We have dealt with the conceptual essentiality offederal cooperation as that has an affirmative role on thesustenance of constitutional philosophy. We may further add thatthough the authorities referred to hereinabove pertain to the UnionDof India and the State Governments in the constitutional sense ofthe term “State”, yet the concept has applicability to the NCTof Delhi regard being had to its special status and languageemployed in Article 239AA and other articles.”

(emphasis added)

E76. Our model of federalism expects a sense of cooperationbetween the Union at the centre, and the regional constitutionallyrecognised democratic units. The spirit of cooperative federalism requiresthe two sets of democratic governments to iron out their differencesthat arise in the practice of governance and collaborate with each other.FThe Union and NCTD need to cooperate in a similar manner to theUnion and the States. Our interpretation of the Constitution must enhancethe spirit of federalism and democracy together. This approach ofinterpretation is located in the 2018 Constitution Bench judgment, whereinthe opinion of the majority held as follows:

G“284.7. Our Constitution contemplates a meaningful orchestrationof federalism and democracy to put in place an egalitarian socialorder, a classical unity in a contemporaneous diversity and apluralistic milieu in eventual cohesiveness without losing identity.Sincere attempts should be made to give full-fledged effect toboth these concepts”

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77. In the spirit of cooperative federalism, the Union of India mustexercise its powers within the boundaries created by the Constitution.NCTD, having a sui generis federal model, must be allowed to functionin the domain charted for it by the Constitution. The Union and NCTDshare a unique federal relationship. It does not mean that NCTD issubsumed in the unit of the Union merely because it is not a “State”. Asthe opinion of the majority in 2018 Constitution Bench judgement held:

“Such an interpretation would be in consonance with the conceptsof pragmatic federalism and federal balance by giving theGovernment of NCT of Delhi some required degree ofindependence subject to the limitations imposed by theConstitution.”

The interpretation of Article 239AA(3)(a) in an expansive mannerwould further the basic structure of federalism.

I. Scope of Legislative and Executive Power between theUnion and NCTD

78. Article 239AA(3)(a) indicates that the Legislative Assemblyof Delhi shall have the power to make laws for the whole or any part ofNCTD 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 66insofar as they relate to the entries 1, 2, and 18. Therefore, the legislativepower of NCTD is limited to entries it is competent to legislate on.

79. Article 239AA(3)(b) provides that Parliament can “make lawswith respect to any matter” for a Union Territory or any part of it.Therefore, the legislative power of Parliament shall extend to all subjectsin the State List and the Concurrent List in relation to NCTD, besides ofcourse the Union List. In case of a repugnancy between a law enactedby Parliament and a law made by Legislative Assembly of NCTD, theformer shall prevail in terms of Article 239AA(3)(d).

80. The position that emerges from Article 239AA(3) is thatNCTD has legislative power over entries in List II with limits (asexcluded by the provision) but Parliament’s legislative power extendsto subjects in all three lists relation to NCTD. As noted previously, thescope of division of legislative and executive powers between the Unionand NCTD fell for the consideration in the 2018 Constitution Benchjudgment. Interpreting Article 239AA(4), the 2018 Constitution Bench AB

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Ajudgment held that the executive power of GNCTD was co-extensivewith the legislative power of NCTD.

81. Article 73(1) of the Constitution stipulates that the executivepower of the Union shall extend to matters with respect to whichParliament has the power to make laws. The proviso to Article 73(1)Bprovides that the executive power of the Union shall not extend “in anyState” to matters with respect to which the Legislature of the State alsohas power to make laws unless expressly provided in the Constitution orby a law made by Parliament:

“Article 73. Extent of executive power of the Union- (1) SubjectCto the provisions of this Constitution, the executive power of theUnion shall extend- To the matters with respect to which Parliament has power tomake laws; [...]

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Provided that the executive power referred in sub-clause (a)shall not, save as expressly provided in this Constitution, or in anylaw made by Parliament, extend to any State to matters with respectto which the Legislature of the State has also power to makelaws.”

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82. Article 162 provides that subject to the provisions of theConstitution, the executive power of a State shall extend to the matterswith respect to which the Legislature of the State has the power tomake laws. The proviso stipulates that with respect to matters whichboth the Legislature of a State and Parliament have legislative competence,Fthe executive power of the State shall be limited by the Constitution orby any law made by Parliament:

“Article 162. Extent of executive power of State.- Subject to theprovisions of this Constitution, the executive power of a Stateshall extend to the matters with respect to which the LegislatureGof the State has power to make laws.

Provided that in any matter with respect to which the Legislatureof a State and Parliament have power to make laws, the executivepower of the State shall be subject to, and limited by, the executivepower expressly conferred by this Constitution or by any law madeby Parliament upon the Union or authorities thereof.”

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83. A combined reading of Articles 73 and 162 indicates that theUnion has exclusive executive power over entries in List I. The Stateshave exclusive executive power over entries in List II. With respect toList III, that is, the concurrent list, the Union shall have executive poweronly if provided by the Constitution or by a law of Parliament. The Statesshall have executive power over the entries in List III. However, if aCentral legislation or a provision of the Constitution confers executivepower to the Union with respect to a List III subject, then the executivepower of the State shall be subject to such law or provision. The executivepower of the Union “in a State” over matters on which both States andthe Union of India can legislate (that is, the concurrent list) is limited toensure that the governance of States is not taken over by the Union.This would completely abrogate the federal system of governance andthe principle of representative democracy. It is with this objective inmind that the members of the Constituent Assembly thought it fit to limitthe executive power of the Union in a State over matters on which theState also has legislative competence.

84. The principle in Articles 73 and 162 would equally apply to thescope of executive power over matters which are within the legislativecompetence of both the Union and the GNCTD. This is because theobjective of the provisions is to limit the executive power of the Union inthe territorial limits where there is an elected government of a federal unit.

85. Both Parliament and the Legislature of NCTD have legislativecompetence over List II and List III. For the purposes of NCTD, bothList II and List III are “concurrent lists”. Thus, the delimitation ofexecutive power between Parliament and Government of NCTD withrespect to entries in List II and List III are guided by these principles.Both Parliament and the legislature of NCTD have the power to enactlaws with respect to List II (subject to the caveat that entries 1,2,and 18;and entries 64,65, and 66 in as much as they relate to entries 1,2, and 18are carved out of the domain of the Legislative Assembly of GNCTD)and List III. The executive power of NCTD shall extend to all entries inList II and List III, other than the entries expressly excluded in Article239AA(3). Such power shall be subject to the executive power of theUnion (through the Lieutenant Governor) only when the Union has beengranted such power by the Constitution or a law of Parliament. Therefore,the executive power of NCTD, in the absence of a law by Parliament,shall extend to all subjects on which it has power to legislate.

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A86. It was held in the 2018 Constitution Bench judgment that theLieutenant Governor is bound by the aid and advice of the Council ofMinisters under Article 239AA(4) while exercising executive powers inrelation to matters falling within the legislative domain of the legislativeassembly of NCTD except where he exercises the limited route providedBunder the proviso to Article 239AA(4). This limited discretionary powerunder the proviso, as the Constitution Bench held, ought to be exercisedin a careful manner in rare circumstances such as on matters of nationalinterest and finance. The Lieutenant Governor could not refer everymatter to the President.[26] After analysing the provisions of Article239AA(4), Government of NCTD Act 1991[27], and the applicableCTransaction of Business Rules 1993, it was held by the majority that:

“284.16. As a natural corollary, the Union of India has exclusiveexecutive power with respect to NCT of Delhi relating to thethree matters in the State List in respect of which the power ofthe Delhi Legislative Assembly has been excluded. In respect ofDother matters, the executive power is to be exercised by theGovernment of NCT of Delhi. This, however, is subject to theproviso to Article 239AA(4) of the Constitution…

284.17. The meaning of “aid and advise” employed in Article239AA(4) has to be construed to mean that the LieutenantEGovernor of NCT of Delhi is bound by the aid and advice of theCouncil of Ministers and this position holds true so long as theLieutenant Governor does not exercise his power under the provisoto clause (4) of Article 239-AA. The Lieutenant Governor hasnot been entrusted with any independent decision-making power.FHe has to either act on the “aid and advice” of Council of Ministersor he is bound to implement the decision taken by the Presidenton 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”.”G

87. In matters which fall outside the legislative powers of NCTD,the doctrine of “aid and advice” does not apply. In those matters, the 26 Para 284.18 (opinion of the majority); Para 475 (concurring opinion of JusticeChandrachud)H27 "GNCTD Act”

GNCTD Act and the Transaction of Business Rules of the Governmentof National Capital Territory of Delhi 1993[28] shall act as a guide for theexercise of power. Under Section 41 of the GNCTD Act, the LieutenantGovernor may be required to act in his discretion in respect of whichpowers or functions which have been delegated to him by the Presidentunder Article 239, or where he is required to act in his discretion under aspecific provision of law or where he exercises judicial or quasi-judicialfunctions. Section 41, dealing with the discretion of the LieutenantGovernor, provides that:

“41. Matters in which Lieutenant Governor to act in his discretion.

(1) The Lieutenant Governor shall act in his discretion in a matter—

(i) which falls outside the purview of the powers conferred onthe Legislative Assembly but in respect of which powers orfunctions are entrusted or delegated to him by the President;or

(ii) in which he is required by or under any law to act in hisdiscretion or to exercise any judicial or quasi-judicial functions.

(2) If any question arises as to whether any matter is or is not amatter as respects which the Lieutenant Governor is by or underany law required to act in his discretion, the decision of theLieutenant Governor thereon shall be final.

(3) If any question arises as to whether any matter is or is not amatter as respects which the Lieutenant Governor is required byany law to exercise any judicial or quasi-judicial functions, thedecision of the Lieutenant Governor thereon shall be final.”

88. Accordingly, the Lieutenant Governor may act in his discretiononly in two classes of matters. firstly, where the matter deals with issueswhich are beyond the powers of the Legislative Assembly and wherethe President has delegated the powers and functions to the LieutenantGovernor in relation to such matter; and secondly, matters which by lawrequire him to act in his discretion or where he is exercising judicial orquasi-judicial functions.

89. Section 44 of the GNCTD Act confers the President the powerto make rules regarding the allocation of business to Ministers wherein 28 "Transaction of Business Rules”

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Athe Lieutenant Governor is required to act on the aid and advice of hisCouncil of Ministers. It also provides for rules to ensure convenienttransaction of business with the Ministers, including the procedure to beadopted in case of a difference of opinion between the LieutenantGovernor and the Council of Ministers or a Minister. In exercise of thepower under Section 44, the President framed the Transaction of BusinessBRules of the Government of National Capital Territory of Delhi 1993. Inhis concurring opinion in the 2018 Constitution Bench judgment, JusticeChandrachud held that these Rules provide a mechanism to be followedin matters relating to the executive functions of GNCTD. It was held:

“428. A significant aspect of the Rules is that on mattersCwhich fall within the ambit of the executive functions of theGovernment of NCT, decision-making is by the Governmentcomprised of the Council of Ministers with the ChiefMinister at its head…

Rule 24 deals with an eventuality when the Lieutenant GovernorDmay be of the opinion that any further action should be taken orthat action should be taken otherwise than in accordancewith an order which has been passed by a Minister. In sucha case, the Lieutenant Governor does not take his own decision.He has to refer the proposal or matter to the Council ofEMinister for consideration…

the Lieutenant Governor has not been conferred with theauthority to take a decision independent of and at variancewith the aid and advice which is tendered to him by theCouncil of Ministers. If he differs with the aid and advice, theLieutenant Governor must refer the matter to the UnionFGovernment (after attempts at resolution with the Minister orCouncil of Ministers have not yielded a solution). After a decisionof the President on a matter in difference is communicated,the Lieutenant Governor must abide by that decision. Thisprinciple governs those areas which properly lie within the ambitGand purview of the executive functions assigned to the Governmentof the National Capital Territory.”

(emphasis added)

The above interpretation indicates that in matters in the executivedomain of NCTD, it is the elected government of NCTD which isH

empowered to take decisions. The Lieutenant Governor may requestthe Minister or the Council of Ministers to reconsider its decision. It isonly if difference persists even after attempts at resolution that he mayrefer the matter to the President, and await the decision.

90. Rule 45 of the Transaction of Business Rules also indicatesthat the Lieutenant Governor must act within the confines of clauses (3)and (4) of Article 239AA in exercising his executive functions, that is, heshall abide by the “aid and advice” of the Council of Ministers on mattersin respect of which NCTD has legislative power. Rule 45 provides:

“The Lieutenant Governor, may by standing orders in writing,regulate the transaction and disposal of the business relating tohis executive functions:

Provided that the standing orders shall be consistent with theprovisions of this Chapter, Chapter V and the instructions issuedby the Central Government for time to time.

Provided further that the Lieutenant Governor shall inrespect of matters connected with ‘public order’, ‘police’and ‘land’ exercise his executive functions to the extentdelegated to him by the President in consultation with theChief Minister, if it is so provided under any order issued by thePresident under article 239 of the Constitution.

Provided further that ‘standing orders’’ shall not beinconsistent with the rules concerning transaction ofbusiness.”

91. The Rule provides that the Lieutenant Governor may issuestanding orders relating to “his executive functions”, which must beconsistent with the Rules of Business as a whole. As an exception to theRule, only “in respect of matters connected with ‘public order’, ‘police’and ‘land’”, which are matters outside the legislative domain of NCTDunder Article 239AA(3)(a), he may “exercise his executive functions tothe extent delegated to him by the President”. The second part of thisproviso further indicates that in matters outside the legislative domain ofNCTD, the Lieutenant Governor may be required to consult with theChief Minister, if it is so provided under any order issued by the Presidentunder Article 239 of the Constitution. This Rule thus clarifies that the A

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ALieutenant Governor may exercise his executive function in relation tomatters outside the legislative purview of NCTD only “to the extentdelegated to him by the President”. As a matter of principle, in thedischarge of executive functions within the domain of NCTD, theLieutenant Governor must abide by the “aid and advice” of the Councilof Ministers in the manner indicated in the Rules. Rule 46 thus needs toBbe construed accordingly.

92. Rule 46 deals with the power of the Lieutenant Governor withrespect to persons serving in connection with the “administration” ofNCTD. Rule 46 provides that:

C“46. (1) With respect to persons serving in connection withthe administration of the National Capital Territory, theLieutenant Governor shall, exercise such powers andperform such functions as may be entrusted to him underthe provisions of the rules and orders regulating theconditions of service of such personsorby any other orderDof the President in consultation with the Chief Minister, if it is soprovided under any order issued by the President under Article239 of the Constitution.

(2) Notwithstanding anything contained in sub-rule (1) theLieutenant Governor shall consult the Union Public ServiceECommission on all matters on which the Commission is requiredto be consulted under clause (3) of Article 320 of the Constitution;and in every such case he shall not make any order otherwisethan in accordance with the advice of the Union Public ServicesCommission unless authorised to do so by the Central Government.

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(3) All correspondence with Union Public Service Commissionand the Central Government regarding recruitment and conditionsof service of persons serving in connection with the administrationof National Capital Territory shall be conducted by the ChiefSecretary or Secretary of the Department concerned under thedirection of the Lieutenant Governor.”G

The Rule provides that the Lieutenant Governor shall exercisesuch powers and functions with respect to persons serving in the“administration” of NCTD, “as may be entrusted to him under theHprovisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President”. The term“administration” in this Rule must be considered in the context of Article239AA(3) and Section 41 of the GNCTD Act. The executiveadministration by the Lieutenant Governor, in his discretion, can onlyextend to matters which fall outside the purview of the powers conferredon the Legislative Assembly but it extends to powers or functionsentrusted or delegated to him by the President” or “in which he is requiredby or under any law to act in his discretion or to exercise any judicial orquasi-judicial functions”. The term “administration” cannot be understoodas the entire administration of GNCTD. Otherwise, the purpose of givingpowers to a constitutionally recognised and democratically electedgovernment would be diluted.

93. Therefore, the phrase “persons serving in connection with theadministration of the National Capital Territory” in Rule 46 shall referonly 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 JusticeChandrachud in the 2018 Constitution Bench judgment, Section 49 ofthe GNCTD Act confers an overriding power of general control to thePresident. According to Section 49, “the Lieutenant Governor and hisCouncil of Ministers shall be under the general control of, and complywith such particular directions, if any, as may from time to time be givenby, the President.” The directions of the President are in accordancewith the “aid and advice” of the Council of Ministers of the Union ofIndia.

95. Thus, the scope of the legislative and executive powers of theUnion and NCTD that has been discussed under this section is multi-fold. Under Article 239AA(3)(a), the legislative power of NCTD extendsto all subjects under the State List and the Concurrent List, except theexcluded entries. As the 2018 Constitution Bench judgment held, theexecutive power of GNCTD is coextensive with its legislative power. Inother words, the executive power of GNCTD extends to all subjects onwhich its Legislative Assembly has power to legislate. The legislativepower of the Union extends to all entries under the State List andConcurrent List, in addition to the Union List. The executive power ofthe Union, in the absence of a law upon it executive power relating toany subject in the State List, shall cover only matters relating to thethree entries which are excluded from the legislative domain of NCTD.

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AAs a corollary, in the absence of a law or provision of the Constitution,the executive power of the Lieutenant Governor acting on behalf of theUnion Government shall extend only to matters related to the three entriesmentioned in Article 239AA(3)(a), subject to the limitations in Article73. Furthermore, if the Lieutenant Governor differs with the Council ofMinisters of GNCTD, he shall act in accordance with the procedure laidBdown in the Transaction of Business Rules. However, if Parliament enactsa law granting executive power on any subject which is within the domainof NCTD, the executive power of the Lieutenant Governor shall bemodified to the extent, as provided in that law. Furthermore, under Section49 of the GNCTD Act, the Lieutenant Governor and the Council ofCMinisters must comply with the particular directions issued by thePresident on specific occasions.

96. Now, we turn to the present reference before us regardingthe scope of the legislative and executive powers of NCTD and theUnion over “services” under Entry 41 of the State List. Based on theDdiscussion in this section, NCTD shall have legislative power to makelaws on “services”. This is because “services” (that is, Entry 41) is notexpressly excluded in Article 239AA(3)(a). As it has legislative power,it shall have executive power to control “services” within NCTD.However, we will need to address the argument of the Union of Indiathat the provisions of the Constitution exclude “services” from theElegislative and executive control of NCTD to form a conclusive opinionon the issue. The subsequent sections of this judgment deal with theabove questions.

J. Triple chain of accountability: Civil Servants in a CabinetForm of GovernmentF

97. Before discussing the question regarding the applicability ofPart XIV to NCTD, it would be appropriate to discuss the principleswhich will guide our analysis on Part XIV. A discussion on the role ofcivil services in a Westminster-style Cabinet Form of Government isnecessary to understand the issues at stake.G

(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 andPractice of Modern Governance”, states that “the function of civilservice in the modern state is not merely an improvement of government;H

for without it, indeed, government itself would be necessarilyimpossible.”[29] The efficacy of the State and the system of responsiblegovernment to a large part depend upon professionals, who embody theinstitution of a competent and independent civil service.

99. The policies of the government are implemented not by thepeople, Parliament, the Cabinet, or even individual ministers, but by civilservice officers. Elaborating on the indispensable position of civil servicesin a parliamentary system of government, DD Basu in his commentaryon the Constitution of India states:

“A notable feature of the Parliamentary system of government isthat while the policy of the administration is determined and laiddown by ministers responsible to the Legislature, the policy iscarried out and the administration of the country is actually run bya large body of officials who have no concern with politics.”[30]

100. A Constitution Bench of this Court in Union of India v.Tulsiram Patel[31] dwelt on the ubiquitous nature of the civil service andobserved:

“34. The concept of civil service is not new or of recent origin.Governments — whether monarchial, dictatorial or republican —have to function; and for carrying on the administration and thevaried functions of the government age number of persons arerequired and have always been required, whether they areconstituted in the form of a civil service or not.”

101. In the Indian Constitution, an entire Part, Part XIV, is dedicatedto ‘services’, indicating the great significance which the members of theConstituent Assembly reposed in the civil service officers. During theConstituent Assembly Debates, the civil services were referred to asthe “soul of administration” and it was said that the “importance of thecivil services cannot be gainsaid.”[32] Part XIV deals with “Services underthe Union and the States”. Chapter I comprising of Articles 308 to 313

29 Herman Finer, The Theory and Practice of Modern Governance (New York: The Dial Press, 1932) at page 1163

30 Dr DD Basu, Commentary on the Constitution of India, 9th Edn., 2018, Vol. 13,page 13991

31 (1985) 3 SCC 398

32 Muniswamy Pillai and BN Munavalli in Constituent Assembly Debates, Vol. 9 (22ndAugust 1949)

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Adeals with services, and Chapter II comprising of Articles 315 to 323deals with Public Service Commissions for the Union and the States.The effectiveness of the elaborate provisions of Part XIV is to a largeextent dependent upon the relationship between the ministers and civilservice officers.

B(b) Accountability of civil servants in a Westminster parliamentarydemocracy

102. In a democracy, accountability lies with the people who arethe ultimate sovereign. The parliamentary form of government adoptedin India essentially requires that Parliament and the government, consistingCof elected representatives, to be accountable to the people. The Cabinetconsisting of elected representatives is collectively responsible for theproper administration of the country and is answerable to the legislaturefor its actions. The Constitution confers the legislature the power toenact laws and the government to implement laws. The conduct of thegovernment is periodically assessed by the electorate in electionsDconducted every five years. The government is formed with the supportof a majority of elected members in the legislature. The governmentresponsible to the legislature is assessed daily in the legislature throughdebates on Bills, or questions raised during Question Hour, resolutions,debates and no-confidence motions. The government is responsible forthe decisions and policies of each of the ministers and of their departments.EThis creates a multi-linked chain of accountability, where the legislatureis accountable to the people who elected them, and the government iscollectively responsible to the legislature. This establishes a link betweenthe electorate and the government. The government is collectivelyresponsible for its actions. The Council of Ministers is accountable toFboth the legislature and to the electorate. Collective responsibility is animportant component of parliamentary democracies.[33]

103. Civil servants are required to be politically neutral. The day-to-day decisions of the Council of Ministers are to be implemented by aneutral civil service, under the administrative control of the ministers. InGorder to ensure that the functioning of the government reflects thepreferences of the elected ministers, and through them the will of thepeople, it is essential to scrutinize the link of accountability between thecivil service professionals and the elected ministers who oversee them.

33 Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1; Amarinder Singh v. PunjabHVidhan Sabha, (2010) 6 SCC 113; 2018 Constitution Bench judgment.

Since civil service officers constituting the permanent executive exerciseconsiderable influence in modern welfare state democracies, effectiveaccountability requires two transactions: “one set of officials, such asthe bureaucracy, who give an account of their activity, to another set,such as legislators, who take due account and feed their own consideredaccount back into the political system and, through that mechanism, tothe people.”[34]

104. In Secretary, Jaipur Development Authority v. DaulatMal Jain,[35]this Court held that an individual minister is answerable andaccountable to people for the acts done by the officials working underhim. This Court observed that:

“The Government acts through its bureaucrats, who shape itssocial, economic and administrative policies to further the socialstability and progress socially, economically and politically…TheMinister is responsible not only for his actions but also for the jobof the bureaucrats who work or have worked under him. He owesthe responsibility to the electors for all his actions taken in thename of the Governor in relation to the Department of which heis the head… he bears not only moral responsibility but also inrelation to all the actions of the bureaucrats who work under himbearing actual responsibility in the working of the department underhis ministerial responsibility.”

105. In the concurring opinion in the 2018 Constitution Benchdecision, Justice Chandrachud highlighted the intrinsic link betweengovernment accountability and the principle of collective responsibility.The judgment underscored the responsibility of an individual minister tothe legislature for any and every action undertaken by public officials inthe department which the minister oversees:

“327. Collective responsibility also exists in practice in situationswhere ministers have no knowledge of the actions taken by thesubordinate officers of their respective departments…

343. … Modern government, with its attendant complexities,comprises of several components and constituent elements. Theyinclude Ministers who are also elected as members of the 34 Adam Przeworski, Susan C. Stokes, Bernard Manin, Democracy, Accountability,and Representation (Cambridge University Press 2012), at page 298.35 (1997) 1 SCC 35

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Alegislature and unelected public officials who work on issues ofdaily governance... All Ministers are bound by a decision takenby one of them or their departments. “

106. Civil service officers thus are accountable to the ministers ofthe elected government, under whom they function. Ministers are inBturn accountable to Parliament or, as the case may be. the statelegislatures. Under the Westminster parliamentary democracy, civilservices constitute an important component of a triple chain of commandthat ensures democratic accountability. The triple chain of command isas follows:

Ca.Civil service officers are accountable to Ministers; b.Ministers are accountable to Parliament/Legislature; and

c.Parliament/Legislature is accountable to the electorate.

107. An unaccountable and a non-responsive civil service may Dpose a serious problem of governance in a democracy. It creates apossibility that the permanent executive, consisting of unelected civilservice officers, who play a decisive role in the implementation ofgovernment policy, may act in ways that disregard the will of theelectorate.

(c) Accountability of Civil Service Officers in a Federal PolityE

108. Our Constitution is federal in character. In a federal polity, afundamental question which arises is which would be the more appropriateauthority to whom the civil service officers would be accountable.

109. As discussed before, a paramount feature of a federalFConstitution is the distribution of legislative and executive powers betweenthe Union and the regional units. The essential character of Indianfederalism is to place the nation as a whole under the control of a UnionGovernment, while the regional or federal units are allowed to exercisetheir exclusive power within their legislative and co-extensive executiveand administrative spheres.[36]G

110. In a democratic form of Government, the real power ofadministration must reside in the elected arm of the State, subject to theconfines of the Constitution.[37 ]A constitutionally entrenched and 36 SR Bommai v. Union of India, (1994) 3 SCC 1H37 2018 Constitution Bench

democratically elected government needs to have control over itsadministration. The administration comprises of several public officers,who are posted in the services of a particular government, irrespectiveof whether or not that government was involved in their recruitment.For instance, an officer recruited by a particular government may serveon deputation with another government. If a democratically electedgovernment is not provided with the power to control the officers postedwithin its domain, then the principle underlying the triple-chain ofcollective responsibility would become redundant. That is to say, if thegovernment is not able to control and hold to account the officers postedin its service, then its responsibility towards the legislature as well as thepublic is diluted. The principle of collective responsibility extends to theresponsibility of officers, who in turn report to the ministers. If the officersstop reporting to the ministers or do not abide by their directions, theentire principle of collective responsibility is affected. A democraticallyelected government can perform, only when there is an awareness onthe part of officers of the consequences which may ensue if they do notperform. If the officers feel that they are insulated from the control ofthe elected government which they are serving, then they becomeunaccountable or may not show commitment towards their performance.

111. We have already held that the relationship between the Unionand NCTD resembles an asymmetric federal model, where the latterexercises its legislative and executive control in specified areas of theState List and the Concurrent List. Article 239AA, which conferred aspecial status to NCTD and constitutionally entrenched a representativeform of government, was incorporated in the Constitution in the spirit offederalism, with the aim that the residents of the capital city must have a voice in how they are to be governed. It is the responsibility of thegovernment of NCTD to give expression to the will of the people ofDelhi who elected it. Therefore, the ideal conclusion would be thatGNCTD ought to have control over “services”, subject to exclusion ofsubjects which are out of its legislative domain. If services are excludedfrom its legislative and executive domain, the ministers and the executivewho are charged with formulating policies in the territory of NCTDwould be excluded from controlling the civil service officers whoimplement such executive decisions.

112. In the backdrop of the above discussion on the necessity toprovide the control of “services” to GNCTD, we consider the next ABC

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K. Balakrishnan Committee Report

113. The Union of India relied on the report of the BalakrishnanCommittee which led to the 1991 Constitution Amendment and theBinsertion of Article 239AA to argue that “services” are not available toUnion territories. The Statement of Objects and Reasons of the AmendingAct referred to the Committee’s Report:

“Statement of Objects and Reasons

CThe question of reorganisation of the administrative set-up in theUnion Territory of Delhi has been under the consideration of theGovernment for some time. The Government of India appointedon 24-12-1987 a Committee [Balakrishnan Committee] to go intothe various issues connected with the administration of Delhi andto recommend measures inter alia for the streamlining of theDadministrative set-up. The Committee went into the matter in greatdetail and considered the issues after holding discussions withvarious individuals, associations, political parties and other expertsand taking into account the arrangements in the National Capitalsof other countries with a federal set-up and also the debates inEthe Constituent Assembly as also the reports by earlier Committeesand Commissions. After such detailed inquiry and examination, itrecommended that Delhi should continue to be a Union Territoryand provided with a Legislative Assembly and a Council ofMinisters responsible to such Assembly with appropriate powersto deal with matters of concern to the common man. TheFCommittee also recommended that with a view to ensure stabilityand permanence the arrangements should be incorporated in theConstitution to give the National Capital a special status amongthe Union Territories.

2. The Bill seeks to give effect to the above proposals.”G

114. The Balakrishnan Committee specifically dealt with Entry41 (relating to services) of the State List. Its report notes that Entry 41is not available to the Union Territories, as (i) the Entry only mentions‘State’ and not ‘Union Territory’; (ii) Part XIV of the Constitution onlyrefers to services in connection with the affairs of the State and servicesHin connection with the affairs of the Union; and (iii) administration of the Union Territories is the responsibility of the Union and thus it falls withinthe 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 notapplicable to Union territories because it mentions only “State”and not “Union territories”. This view is reinforced by the factthat the Constitution divides public services in India into twocategories, namely, services in connection with the affairs of theUnion and services in connection with the affairs of the State asis clear from the various provisions in Part XIV of the Constitution.There is no third category of services covering the services of theUnion territories. The obvious reason is that the administration ofthe Union territory is the constitutional responsibility of the Unionunder Article 239 and as such comes under “affairs of the Union”.Consequently, the public services for the administration of anyUnion territory should form part of the public services in connectionwith the affairs of the Union.”

115. The Balakrishnan Committee opined that the setting up of aLegislative Assembly with a Council of Ministers will not disturb theposition discussed above. According to the Report:

“Services

9.3.4. By virtue of the provisions in the Constitution, services inconnection with the administration of the Union Territory of Delhiwill be part of the services of the Union even after the setting upof a Legislative Assembly with a Council of Ministers. Thisconstitutional position is unexceptionable and should not bedisturbed. There should, however, be adequate delegation ofpowers to the Lt. Governor in respect of specified categories ofservices or posts. In performing his functions under such delegatedpowers the Lt. Governor will have to act in his discretion butthere should be a convention of consultation, whenever possible,with the Chief Minister.”

116. The extracts from the Balakrishnan Committee Report wererelied upon by Justice Bhushan in his 2019 split judgment to hold that theLegislative Assembly of NCTD does not have the power to make lawsunder Entry 41 of List II.

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A117. We do not agree with the reliance on the BalakrishnanCommittee Report to rule out the scope of legislative power of NCTDover Entry 41 (services). We reiterate the view expressed in the opinionof the majority in the 2018 Constitution Bench that there is no necessityto refer to the Report to interpret Article 239AA because the judgmentauthoritatively dealt with the scope of the said Article. It was held:B

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“277. There can be no quarrel about the proposition that the reportsof the Committee enacting a legislation can serve as an externalaid for construing or understanding the statute. However, in theinstant case, as we have elaborately dealt with the meaningto be conferred on the constitutional provision that callsCfor interpretation, there is no necessity to be guided by thereport of the Committee.”

118. Contrary to the suggestion in the report, the 2018 ConstitutionBench judgment provided that NCTD shall have legislative power overDall subjects in List II, except the excluded subjects provided in Article239AA(3)(c).

119. The report of the Balakrishnan Committee was referred toin the Statement of Objects and Reasons of 1991 ConstitutionAmendment. The Statement of Objects and Reasons can only be referredEto the limited extent of understanding the background, the antecedentstate of affairs, the surrounding circumstances in relation to theamendment, and the purpose of the amendment.[38] In RS Nayak v. ARAntulay[39], a Constitution Bench of this Court held that the reports of acommittee which preceded the enactment of a legislation, reports ofFjoint parliamentary committees, a report of a commission set up forcollecting information leading to the enactment are permissible externalaids to construction. Thus, the report of the Balakrishnan Committeecan be relied on by this Court to understand the intent behind theintroduction of Article 239AA. However, this Court is not bound by thereport of a committee to construe specific phrases. It is for this reasonGthat the 2018 Constitution Bench construed the text of Article 239AAcontextually with reference to the constitutional structure envisaged forNCTD without relying on the Report of the Balakrishnan Committee.

38 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Bhaiji v. Sub-divisionalOfficer Thandla, (2003) 1 SCC 692H39 (1984) 2 SCC 183

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

120. Moreover, the arguments made in the Balakrishnan CommitteeReport against the inclusion of “services” for NCTD have been rejectedby this Court. The argument in the Balakrishnan Committee Report thatthe use of the word ‘State’ in an Entry leads by itself to that Entry notbeing available to the legislature of a Union Territory has been specificallyrejected in the concurring opinion of Justice Chandrachud in the 2018Constitution Bench in the following terms:

“461. […] The expression “insofar as any such matter is applicableto Union Territories” cannot be construed to mean that theLegislative Assembly of NCT would have no power to legislateon any subject in the State or Concurrent Lists, merely by the useof the expression “State” in that particular entry. This is not acorrect reading of the above words of Article 239-AA(3)(a).”

The concurring opinion refers to Entries 38 and 40 of List II whichread thus:

“38. Salaries and allowances of Members of the legislature ofthe State, of the Speaker and Deputy Speaker of the LegislativeAssembly and, if there is a Legislative Council, of the Chairmanand Deputy Chairman thereof.

[…]

40. Salaries and allowances of Ministers for the State.”

Referring to the provisions of the GNCTD Act which deal withthese entries, Justice D.Y Chandrachud in his concurring opinion observedthat even Parliament did not construe the use of the word ‘State’ in anEntry to mean that it was not available to Union Territories, as itacknowledged the power of the Legislative Assembly of GNCTD todeal with said issues. We agree with the above observations. The mereuse of the word ‘state’ in the entries will not exclude the legislativecompetence of NCTD. By that logic, all the entries in List II would beimpliedly excluded from the legislative competence of NCTD becauselist II of the Seventh Schedule is titled ‘State list’.

121. Furthermore, the conclusion of the Balakrishnan Report thatEntry 41 of the State List of the Seventh Schedule is not available toUnion Territories because the Constitution does not envisage a thirdcategory of services covering the services of Union territories is contrary AB

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Ato the judgment of this Court in Prem Kumar Jain (supra), which hadupheld services for NCTD. The judgment in Prem Kumar Jain (supra)was rendered prior to the Balakrishnan Committee Report of December1989. The Balakrishnan Committee did not refer to the said judgment.Thus, the report of the Balakrishnan Committee cannot be relied upondetermine if “Services” is available to NCTD.B

L. Applicability of Part XIV to Union Territories

122. The Union of India has submitted that NCTD does not havelegislative competence over Entry 41 of List II because Part XIV of theConstitution does not contemplate any services for Union Territories. ItChas been argued that the legislative power of NCTD can be restricted ifPart XIV does not contemplate services to Union Territories since Article239AA begins with the phrase “Subject to the provisions of theConstitution”.

(a) Meaning of “State” for the purpose of Part XIV of theDConstitution

123. It needs to be seen if the phrase “State” in Part XIV of theConstitution includes Union Territory. Article 308 provides the definitionof ‘State’ for Part XIV of the Constitution. Article 308 as it stood priorto the Constitution (Seventh amendment) Act 1956[40] provides as follows:

E“308.In this part, unless the context otherwise requires theexpression ‘State’ means a State specified in Part A or Part B ofthe First Schedule.”

124. The States Reorganization Act 1956 and the consequential1956 amendment altered the provisions of the First Schedule. Prior toFthe amendment in 1956, States were divided into three categories asspecified in Parts A, B and C of the First Schedule of the Constitution.By the seventh amendment, Article 308 was amended and State for thepurposes of Part XIV was defined as follows:

“308. In this Part, unless the context otherwise requires, theGexpression “State” does not include the State of Jammu andKashmir.”

125. In terms of unamended Article 308, the definition of ‘State’included Part A and Part B states of the First Schedule and did not include Part C States, since they were administered by the Union. Afterthe 1956 Constitutional Amendment, Article 308 provides an exclusionarydefinition of ‘State’ by only excluding the State of Jammu and Kashmir.Article 308 does not provide any clarity on whether “State” includesUnion Territories for the purposes of Part XIV.

126. Article 366 defines “State” with reference to Articles 246-A,268, 269-A and Article 279-A to include a Union Territory withLegislature. Article 366 does not apply for the interpretation of any ofthe provisions in Part XIV of the Constitution. Thus, we must fall backon Article 367. Article 367 stipulates that unless the context otherwiserequires, the General Clauses Act shall apply for the interpretation ofthe Constitution. Section 3(58) of the General Clauses Act defines “State”to mean a State specified in the First Schedule and includes a UnionTerritory.

127. GNCTD contends that this Court in Prem Kumar Jain(supra) has expressly sanctified the existence of services of a UnionTerritory by holding that the definition of “State” would include Unionterritories for the purpose of Article 312 of the Constitution. The Unionhas argued that the decision in Prem Kumar Jain was limited for thepurpose of the IAS (Cadre) Rules 1954[41] read with the All-India ServicesAct 1951. Furthermore, it was argued that the reference to Article 312made therein has been made without any reference to the import ofArticle 308. It is the contention of the Union that interpreting the ratio ofPrem Kumar Jain in a broad sense would cause violence to themachinery envisaged in Part XIV of the Constitution.

128. In Prem Kumar Jain, the judgment of the High Court ofDelhi setting aside the establishment of a joint cadre exclusively for theUnion Territories in the IAS was challenged. Article 312 stipulates thatParliament may by law create “All India Services” common to the Unionand the States. A joint cadre of all the Union Territories was createdunder Rule 3(1) of the Indian Administrative Service (Cadre) Rules1954.[42] The creation of a new joint cadre was challenged before theHigh Court on the ground that it was contrary to Article 312 of theConstitution and the All-India Services Act 1951. It was argued thatArticle 312 does not contemplate an all-India service common to Union 41 1954 Cadre Rules 42 “1954 Cadre Rules”

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Aterritories because the term “State” in the provision does not includeUnion territories. The definition of “State” under Rule 2(c) of the 1954Cadre Rules, which provides that a State means a “State specified in theFirst Schedule to the Constitution and includes a Union Territory” wasalso challenged.

B129. In that context, the High Court held that Union territoriescould not be said to be “States”, and held the definition of “State” underRule 2(c) of the Cadre Rules to be ultra vires the Constitution and theAll India Services Act 1951. The High Court held that the Union Territorieswere not “States” for the purpose of Part XIV of the Constitution, inview of the definition of “State” in Article 308, which did not includeCPart C states before its amendment. The High Court reasoned that Unionterritories are successors of Part C States, and accordingly UnionTerritories were excluded from the definition of ‘State’ in Part XIV. TheHigh Court declined to place any reliance on the definition of the word‘State’ in Section 3(58)(b) of the General Clauses Act, as amended inD1956. The High Court reasoned that only the adaptations made in theGeneral Clauses Act under Article 372(2) applied to the interpretation ofthe Constitution in view of Article 367(1), and accordingly the adaptationsmade later, by Article 372A, were inapplicable. The High Court observedthat:

E‘(7) The next question, therefore, is whether the UnionTerritories are “State” for the purpose of Article 312(1).Article 312 is a part of Chapter XIV of the Constitution, which issignificantly entitled ‘’Services under the Union and the States”.Part XIV does not create an All India Service. [...] The key tothe meaning of the word “State” used in Part XIV includingFArticles 309 and 312(1) is provided by the interpretationclause in Article 308. Before the Constitution (VII Amendment)Act, 1956 Article 308 was as follows:

“IN this part. unless the context otherwise requires theexpression “State” means a State specified in Part A or Part BGof the I Schedule”.

This definition, thus, made it clear that the word “State” inPart XIV was not to include part C States. Union Territoriesare the successors of the Part C States. It follows, therefore,that they are also expressly excluded from the definition ofH

“State” in Part XIV. There is nothing particular in the context ofArticle 313 which would require the word “State” therein to includea Union Territory.

…

Article 367(1) of the Constitution applies to theinterpretation of the Constitution the provision of theGeneral Clauses Act as adapted under Article 372(2) of theConstitution. In view of Article 372(2)(a) such an adaptationhad to be made within three years from the commencementof the Constitution. The definition of a “State” in section3(58) of the General Clauses Act as adapted by theAdaptation of laws Order, 1950 issued under Article 372(2)of the Constitution [...]”

130. In appeal, this Court set aside the judgment of the High Courtof Delhi. Firstly, this Court held that in view of the amended definition ofthe expression “State” under Section 3(58) of the General Clauses Act,as adapted by the Adaptation of Laws Order 1956, there was nothingrepugnant to the subject or context to make that definition inapplicableto Part XIV of the Constitution. This Court reasoned that Article 372Awas incorporated in the Constitution since Parliament felt the necessityof giving a power akin to Article 372 to the President for the purpose ofbringing the provisions of any law in force immediately before thecommencement of the 1956 Constitution Amendment in accordance withthe provisions of the Constitution, as amended by the 1956 ConstitutionAmendment. This Court relied on Advance Insurance (supra) to holdthat Article 372-A gave a fresh power to the President which was equaland analogous to the power under Article 372(2). This Court held that:

“8. It follows therefore that, as and from November 1, 1956, whenthe Constitution (Seventh Amendment) Act, 1956, came into force,the President had the power to adapt the laws for the purpose ofbringing the provisions of any law in force in India into accordwith the provisions of the Constitution. It was under that powerthat the President issued the Adaptation of Laws (No. 1)Order, 1956, which, as has been shown, substituted a newclause (58) in Section 3 of the General clauses Actproviding, inter alia, that the expression “State” shall, as A

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Arespects any period after the commencement of theConstitution (Seventh Amendment) Act, 1956, mean “aState specified in the First Schedule to the Constitutionand shall include a Union Territory”. It cannot be said withany justification that there was anything repugnant in thesubject or context to make that definition inapplicable. ByBvirtue of Article 372A(1) of the Constitution, it was thatdefinition of the expression “State” which had effect fromthe first day of November, 1956, and the Constitution expresslyprovided that it could “not be questioned in any court of law”.The High Court therefore went wrong in taking a contraryCview and in holding that “Union territories are not ‘States’for purposes of Article 312(1) of the Constitution and thepreamble to the Act of 1951". That was why the High Courterred in holding that the definition of “State” in the Cadre Ruleswas ultra vires the All India Services Act, 1951 and the Constitution,and that the Union territories cadre of the service was “not commonDto the Union and the States” within the meaning of Article 312(1)of the Constitution, and that the Central Government could notmake the Indian Administrative Service (Cadre) Rules, 1954 inconsultation with the State Governments as there were no suchgovernments in the Union territories.”

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131. In Prem Kumar Jain (supra),this Court did not find anythingrepugnant to the subject or context of Part XIV of the Constitution orArticle 312 specifically to make the definition of ‘State’ in terms ofamended Section 3(58)(b) of the General Clauses Act inapplicable.FHence, the expression ‘State’ as occurring in Part XIV was held toinclude Union Territories. In the preceding section of this judgment, wehave approved the decision in Advance Insurance (supra) and heldthat the definition of “State” in Section 3(58) of the General Clauses Actas amended by Adaptation of Laws (No. 1) Order, 1956 must be appliedGfor the interpretation of the Constitution unless the context otherwiserequires.

132. The definition provided in the definition clause article shouldbe applied and given effect to for the purposes of the relevant Part ofthe Constitution. However, when the definition clause is preceded byHthe phrase ‘unless the context otherwise requires’, there may be a need to depart from the normal rule if there is something in the context inwhich such expression occurs to show that the definition should not beapplied.[43] Section 3(58) of the General Clauses Act, by virtue of Article367(1) of the Constitution, applies to the construction of the expression‘State’ in the Constitution, unless there is something repugnant in thesubject or context of a particular provision of the Constitution. The burdenis on the party opposing the application of the definition under the GeneralClauses Act to the interpretation of a constitutional provision to provethat the context requires otherwise. The Union of India has been unableto suggest that the context of Part XIV suggests otherwise. There isnothing in the subject or context of Part XIV of the Constitution whichwould exclude its application to Union territories. Rather, the applicationof the inclusive definition of “State” as provided under Clause 3(58)would render the constitutional scheme envisaged for Union Territoriesworkable.

(b) Omission in Part XIV by the 1956 Constitution Amendment

133. The Union of India has argued that services for a UnionTerritory are not contemplated in Part XIV of the Constitution becauseof the conscious omissions by the 1956 Constitution Amendment in PartXIV. There are two prongs to this argument: (i) the words “Part A States”and “Part B States” in Article 308 were substituted by the word “State”,simpliciter, instead of States and Union territories; and (ii) while theterm ‘Raj Pramukh’ was omitted in different Articles in Part XIV, theterm ‘Administrator’ was not added.

134. Under erstwhile Article 239, the President occupied in regardto Part C States, a position analogous to that of a Governor in Part AStates and of a Rajpramukh in Part B States. Unamended Article 239envisaged the administration of Part C States by the President through aChief Commissioner or a Lieutenant Governor to be appointed by themor through the Government of a neighbouring State.

135. The 1956 Constitution amendment was adopted to implementthe provisions of the States Re-organization Act 1956. The SeventhAmendment abrogated the constitutional distinction between Part A, Band C States, and abolished the institution of the Rajpramukh on the 43 SK Gupta v. KP Jain, (1979) 3 SCC 54; Ichchapur Industrial Coop. SocietyLtd. v. Competent Authority, Oil & Natural Gas Commission, (1997) 2 SCC 42;Ratnaprova Devi v. State of Orissa, (1964) 6 SCR 301

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Aabrogation of Part B States. In terms of Section 29 of the 1956 Constitutionamendment, Parliament provided for “consequential and minoramendments and repeals in the Constitution’’ as directed in the Schedule.One of the amendments made in terms of the Schedule was to omit thephrase “Part A or Part B of the First Schedule ‘’, and “Rajpramukh”, asoccurring in the Constitution. It is necessary to note that the expressionsB“Part A”, “Part B” and “Rajpramukh” were not necessarily substitutedby another expression by Parliament.

136. Article 239 as it was amended by the 1956 ConstitutionAmendment states that subject to any law enacted by Parliament everyUnion Territory shall be administered by the President acting through anCAdministrator appointed by them with such designation as they mayspecify. It is relevant to note that the term ‘administrator’, at the time ofthe amendment was not added to any provision of the Constitution otherthan Article 239. Even within Article 239, the provision did not use theterm ‘administrator’ as a designation. Instead, Article 239 provides that:D“239. Administration of Union Territories

(1) Save as otherwise provided by Parliament by law, every Unionterritory shall be administered by the President acting, to suchextent as he thinks fit, through an administrator to be appointed byhim with such designation as he may specify.E

(2) Notwithstanding anything contained in Part VI, the Presidentmay appoint the Governor of a State as the administrator of anadjoining Union territory, and where a Governor is so appointed,he shall exercise his functions as such administrator independentlyof his Council of Ministers.”F

137. Furthermore, it is important to note that Articles 239A and239AA were inserted much later after the 1956 Constitution Amendment.In 1962, Article 239A was inserted through the Constitution(FourteenthAmendment) Act 1962, which gives discretion to Parliament to createby law, local legislatures or a Council of Ministers or both for certainGUnion Territories. In 1991, Article 239AA was inserted through the 1991Constitution Amendment to accord NCTD a sui generis status fromthe other Union Territories, including the Union Territories to which Article239A applies. Parliament could not have envisaged when the 1956Constitution Amendment was adopted that Union Territories would havebeen accorded diverse governance models. Therefore, the argument ofH

the Union on legislative intent by drawing upon the omissions in theSeventh Amendment is not persuasive.

(c) Existence of power and exercise of power

138. It is not in contention that presently, a Public ServiceCommission for NCTD does not exist. However, the existence of powerand the exercise of the power are two different conceptions, and shouldnot be conflated. It is settled law that whether a power exists cannot bederived from whether and how often it has been exercised.

139. In State of Bihar v. Maharajadhiraja Sir KameshwarSingh,[44] the Constitution Bench of this Court rejected the argument thatthe power to enact a law under Entry 42 of the Concurrent List was apower coupled with a duty. It was held that the Legislature does nothave an obligation to enact a law in exercise of its power under theSeventh Schedule:

“19. It was further contended that the power to make a law underentry 42 of List III was a power coupled with a duty, becausesuch law was obviously intended for the benefit of the expropriatedowners, and where the Legislature has authorised suchexpropriation, it was also bound to exercise the power of makinga law laying down the principles on which such owners should becompensated for their loss. …While certain powers may begranted in order to be exercised in favour of certain persons whoare intended to be benefited by their exercise, and on that accountmay well be regarded as coupled with a duty to exercise themwhen an appropriate occasion for their exercise arises, the powergranted to a legislature to make a law with respect to any mattercannot be brought under that category, It cannot possibly havebeen intended that the legislature should be under anobligation to make a law in exercise of that power, for noobligation of that kind can be enforced by the court againsta legislative body.”

140. Similarly, in Stateof Haryana v. Chanan Mal,[45] whileupholding the constitutional validity of the Haryana Minerals (Vesting ofRights) Act, 1973, after noticing the declaration made in Section 2 of the 44 1952 SCR 889

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AMines and Minerals (Regulation and Development) Act, 1957, asenvisaged by Entry 54 of the Union List, it was held that exercise andexistence of power cannot be conflated:

“24. In the two cases discussed above no provision of the CentralAct 67 of 1957 was under consideration by this Court. Moreover,Bpower to acquire for purposes of development and regulation hasnot been exercised by Act 67 of 1957. The existence of power ofParliament to legislate on this topic as an incident ofexercise of legislative power on another subject is one thing.Its actual exercise is another. It is difficult to see how the fieldof acquisition could become occupied by a Central Act in theCsame way as it had been in the West Bengal case even beforeParliament legislates to acquire land in a State. Atleast untilParliament has so legislated as it was shewn to have done by thestatute considered by this Court in the case from West Bengal,the field is free for State legislation falling under the expressDprovisions of entry 42 of List III.”

141. Article 309 of the Constitution provides for recruitment andconditions of service of persons serving the Union or a State. In termsof Article 309, subject to the provisions of the Constitution, an appropriateElegislature may enact a legislation to regulate the recruitment andconditions of service of persons appointed to public services and posts inconnection with affairs of the Union or any State. The legislative fieldindicated in this provision is the same as indicated in Entry 71 the UnionList or Entry 41 of the State List of the Seventh Schedule . In terms ofthe proviso to Article 309, the President for the Union of India or theFGovernor of the State respectively or such person as they may direct,have the power to make similar rules as a stopgap arrangement untilprovisions in that behalf are made by the appropriate legislature. Theproviso to Article 309 is only a transitional provision[46], as the powerunder the proviso can be exercised only so long as the appropriateGlegislature does not enact a legislation for recruitment to public postsand other conditions of service relating to that post. If an appropriatelegislature has enacted a law under Article 309, the rules framed underthe proviso would be subject to that Act.[47] Article 309 provides that:

46 A.B. Krishna v. State of Karnataka, (1998) 3 SCC 495H47 B.S. Vadera v. Union of India, (1968) 3 SCR 575

“309. Recruitment and conditions of service of personsserving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriateLegislature may regulate the recruitment, and conditions of serviceof persons appointed, to public services and posts in connectionwith the affairs of the Union or of any State:

Provided that it shall be competent for the President or such personas he may direct in the case of services and posts in connectionwith the affairs of the Union, and for the Governor 2 *** of aState or such person as he may direct in the case of services andposts in connection with the affairs of the State, to make rulesregulating the recruitment, and the conditions of service of personsappointed, to such services and posts until provision in that behalfis made by or under an Act of the appropriate Legislature underthis article, and any rules so made shall have effect subject to theprovisions of any such Act.”

142. The rule-making function under the proviso to Article 309 istransitional. The President with respect to the posts in connection withthe affairs of the Union, and the Governor in connection with the affairsof State shall have the power to make rules under the proviso only untila statute is enacted in this connection. Any rule that is made by thePresident or the Governor shall be “Subject to the provisions of any suchAct” made by the appropriate legislature. The exercise of power by thePresident and the Governor under Article 309 does not in any way restrictthe power that is otherwise available under Article 309. The exercise ofrule making power by the President under Article 309 does not substitutethe legislative power granted.

143. In Tulsiram Patel (supra), a Constitution Bench of this Courtheld that the appropriate legislature, to enact laws under Article 309,would depend upon the provisions of the Constitution with respect tolegislative competence and the division of powers. This Court furtherheld that the rules framed by the President or the Governor under Article309 must conform with a statute enacted in exercise of power underEntry 70 of List I and Entry 41 of List II:

“51. Which would be the appropriate Legislature to enactlaws or the appropriate authority to frame rules woulddepend upon the provisions of the Constitution with respect A

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Ato legislative competence and the division of legislativepowers. Thus, for instance, under Entry 70 in List I of the SeventhSchedule to the Constitution, Union Public Services, all-IndiaServices and Union Public Service Commission are subjects whichfall within the exclusive legislative field of Parliament, while underEntry 41 in List II of the Seventh Schedule to the Constitution,BState public services and State Public Service Commission fallwithin the exclusive legislative field of the State Legislatures. Therules framed by the President or the Governor of a State mustalso, therefore, conform to these legislative powers.”

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144. The above discussion demonstrates that even if the Presidenthas made relevant rules in exercise of his power under the proviso toArticle 309, the power of NCTD to legislate on “services” is not excluded.Infact in the next section, we shall be dealing with instances of exerciseof legislative power by NCTD under Entry 41 of List II, that is, “services”.D145. In view of the above reasons, we hold that Part XIV isapplicable to Union territories as well.

M. Exercise of Legislative Power by NCTD on Entry 41

146. It has been argued on behalf of NCTD that numerous lawsEhave been enacted by the Legislative Assembly of Delhi relating tocreation of posts and terms and conditions of service. Reliance wasplaced upon different state services, such the Delhi Fire Services underthe Delhi Fire Service Act 2007, Delhi Commission for Safai KaramcharisAct, 2006, Delhi Minorities Commission Act, 1999, Delhi FinanceFCommission Act, 1994, Delhi Lokayukta and UpaLokayukta Act, 1995,Delhi Commission for Women Act, 1994, and Delhi Electricity ReformAct, 2001. It was argued that these statutes which inter alia, createposts and details of salary, was enacted in exercise of the subjectreferable to Entry 41 of the State List.

147. However, Justice Ashok Bhushan in the 2019 split verdictGrejected this argument related to Delhi Fire Service Act 2007, as he heldthat the statute falls under Entry 5 of the State List and not under Entry41 of the State List. Justice Bhushan held:

“208. We may first notice that the word “services” used in theAct has been used in a manner of providing services for fireH

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

prevention and fire safety measures. The word “services” hasnot been used in a sense of constitution of a service. It is to benoted that fire service is a municipal function performed by localauthority. Delhi Municipal Council Act, 1957 contains variousprovisions dealing with prevention of fire etc. Further fire servicesis a municipal function falling within the domain of municipalities,which has been recognised in the Constitution of India. Article243(W) of the Constitution deals with functions of themunicipalities in relation to matters listed in the 12th Schedule.Entry 7 of the 12th Schedule provides for “Fire Services” as oneof the functions of the municipalities. The nature of the enactmentand the provisions clearly indicate that Delhi Fire Services Actfalls under Entry 5 of List II and not under Entry 41 of List II.”

148. Article 243W of the Constitution read with Entry 7 of theTwelfth Schedule provides that the legislature of a state may, by law,endow on the municipalities responsibilities with respect to ‘fire services’.Under Entry 5 of List II, an appropriate legislature may enact a lawrelated to ‘local government, that is to say, the constitution and powersof municipal corporations, improvement trusts, districts boards, miningsettlement authorities and other local authorities for the purpose of localself-government or village administration’.

149. The test to determine whether a legislation creates a serviceunder Entry 41 or not has been laid down by this Court. In the ConstitutionBench judgment in State of Gujarat v. Raman Law Keshav Lal,[48]while holding that Panchayat Service contemplated under Section 203(1)of the Gujarat Panchayats Act 1961 was a State civil service, it washeld that the administration of a service under a State broadly involvesthe following functions: (i) the organisation of the Civil Service and thedetermination of the remuneration, conditions of service, expenses andallowances of persons serving in it; (ii) the manner of admitting personsto the civil service; (iii) exercise of disciplinary control over members ofthe service and power to transfer, suspend, remove or dismiss them inpublic interest as and when occasion to do so arises. This Court noted:

“21. […] In the instant case, we feel that there is no compellingreason to hold that the Panchayat Service is not a Civil Serviceunder the State. It is seen that further recruitment of candidates AB

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Ato the Panchayat Service has to be made by the Gujarat PanchayatService Selection Board constituted by the State Government.Entry 41 of List II of the Seventh Schedule to theConstitution, as mentioned earlier, also refers to StatePublic Services suggesting that there can be more than oneState Public Service under the State…... We have indeed aBnumber of such services under a State e.g. police service,educational service, revenue service etc. State Public Servicesmay be constituted or established either by a law made bythe State legislature or by rules made under the proviso toArticle 309 of the Constitution or even by an executiveCorder made by the State Government in exercise of itspowers under Article 162 of the Constitution. The recruitmentand conditions of service of the officers and servants of the StateGovernment may also be regulated by statute, rules or executiveorders. The administration of a service under a State involvesbroadly the following functions: (i) the organisation of theDCivil Service and the determination of the remuneration,conditions of service, expenses and allowances of personsserving in it; (ii) the manner of admitting persons to civilservice; (iii) exercise of disciplinary control over membersof the service and power to transfer, suspend, remove orEdismiss them in the public interest as and when occasionto do so arises. […]”

150. Thus, to determine whether the power to enact a legislationis traceable to Entry 41 of the State List, it is necessary to examineFwhether that legislation contains provisions regulating the recruitment,conditions of service, and exercise of control including power to transfer,and suspend. It is with this approach in mind that we need to examinethe Delhi Fire Service Act 2007.

151. The Delhi Fire Service Act 2007[49 ]was enacted by theGLegislative Assembly of NCTD to provide for “maintenance of a fireservice and to make more effective provisions for the fire safetyprevention and fire safety measures in certain buildings and premises inthe National Capital Territory of Delhi and the matters connected H49 Delhi Fire Service Act 2007, Delhi Act 2 of 2009

therewith.” The Delhi Fire Service Act 2007 is a comprehensive Actwhich replaced three legislations or, as the case may be, rules whichoperated in NCTD:

a.The United Provinces Fire Safety Act 1944, as extended toDelhi. The Act was notified by the Governor of the UnitedProvinces in exercise of the powers assumed by him undera Proclamation issued under Section 93 of the Governmentof India Act 1935. The Act was enacted to constitute andmaintain a provincial fire service in the United Provincesfor staffing and operating the fire brigades; b.The Delhi Fire Service (Subordinate Services) Rules 1945framed under Section 241(1)(b) and Section 241(2)(b) ofthe Government of India Act 1935[50]; and

c.The Delhi Fire Prevention and Fire Safety Act 1986. TheAct which was enacted by Parliament focused on makingeffective provisions for fire prevention and fire safetymeasures in the Union Territory of Delhi. It did not containany provision related to maintenance of a ‘fire service’.

152. The purpose of the Delhi Fire Service Act 2007 is to providefor “maintenance of a fire service”. Section 2(l) defines ‘Fire Service’to mean the Delhi Fire Service constituted under Section 5 of the Act.Section 5 stipulates the constitution of a fire service. In terms of Section5(a), the Fire Service shall consist of such numbers in several ranks andhave such organization and such powers, functions and duties as theGovernment may determine. In terms of Section 5(b), the recruitmentto, and the pay, allowances and all other conditions of service of themembers of the Fire Service shall be such as may be prescribed. Section3 stipulates that there would be one fire service for the whole of Delhiand all officers and subordinate ranks of the fire service shall be liablefor posting to any branch of the Fire Service. Chapter II of the Actprovides for the organization, superintendence, control and maintenanceof the fire service. Chapter III provides for the control and discipline ofthe fire service.

153. The Delhi Fire Service is constituted under the Delhi FireService Act 2007, enacted by the Legislative Assembly of NCTD.

50 Section 65, The Delhi Fire Service Act 2007

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AProvisions relating to administration, recruitment and conditions of servicehave been provided in the framework of the Act. In terms of Section 4,the superintendence of, and control over, the Fire Service vests in theGovernment, as defined in the Act. Section 6 provides for theclassification of posts of the Fire Service into Group A, B, C and Dposts. Section 7 stipulates that the Government shall make appointmentsBto any Group A or Group B posts after consultation with the Union PublicService Commission. Section 8 stipulates the appointment of a Directorof the Delhi Fire Service for the direction and supervision of the FireService in Delhi. Section 14 stipulates that the Central Civil Services(Conduct) Rules 1964 and the Central Civil Services (Classification,CControl and Appeals) Rules 1965 and the Central Civil Services (Pension)Rules 1972, as amended, shall be extended mutatis mutandis to allemployees of the Delhi Fire Service.

154. Furthermore, under the powers conferred by Section 63 ofthe Act, the Lieutenant Governor has notified the Delhi Fire ServiceDRules 2019, regulating the establishment, organization, and managementon the Services. Rule 9 provides that the recruitment to various ranks inFire Service shall be made in accordance with the recruitment rulesnotified by the Government. Rule 10 provides that the pay and allowancesfor various ranks in Fire Service shall be in accordance with theErecommendations of the Pay Commission or any other authority as maybe appointed by the Government.

155. On an analysis of the provisions of the Delhi Fire ServiceAct 2007 and the Rules of 2019, it is clear that the statute includesposts, their recruitment process, salary and allowance, disciplinaryFpower and control – all of which are constituents of a “service” underEntry 41 of the State List, as held in Raman Law Keshav Lal (supra).Thus, the Delhi Fire Service Act 2007 was enacted by the LegislativeAssembly of NCTD in exercise of its power under Entry 41 of theState List.G156. NCTD has already exercised its legislative power relating toEntry 41 of the State List. However, the contours of “services” are verybroad, and may be related to even “public order”, “police”, and “land” –which are outside the legislative domain and executive domain of NCTD.The question that then emerges is what “services” are within the domainof NCTD.H

N. “Services” and NCTD

N. “Services” and NCTD

157. Now that we have held that NCTD has legislative andexecutive power with respect to “services” under Entry 41, a naturalquestion that arises is as to the extent of control of NCTD over “services”.The question becomes pertinent because the three entries (public order,police, land), which are excluded from the scope of NCTD’s legislativepower, also have some relation with “services”. This Court must createa distinction between “services” to be controlled by NCTD and the Unionin relation to NCTD. The distinction must be drawn keeping in mind theambit of legislative and executive power conferred upon NCTD by theConstitution, and the principles of constitutional governance for NCTDlaid down in the 2018 Constitution Bench judgment.

158. This Court has laid down that the scope of an Entry in theSeventh Schedule needs to be read widely. In IK Saksena v. State ofMadhya Pradesh[51], a four judge Bench of this Court held that theentries in Schedule VII have to be read in their widest possible amplitude.The Bench held that the area of legislative competence defined by Entry41 is far more comprehensive than that covered by Article 309:

“32. It is well settled that the entries in these legislative lists inSchedule VII are to be construed in their widest possible amplitude,and each general word used in such entries must be held tocomprehend ancillary or subsidiary matters. Thus considered, itis clear that the scope of Entry 41 is wider than the matterof regulating the recruitment and conditions of service ofpublic servants under Article 309. The area of legislativecompetence defined by Entry 41 is far more comprehensivethan that covered by the proviso to Article 309.”

(emphasis added)

159. But, in our context, we may not be able to read Entry 41 inrelation to NCTD in the widest possible sense because all entries in ListII (including Entry 41) need to be harmonized with the limitation laiddown in Article 239AA(3)(a) on NCTD’s legislative and executive powerby excluding matters related to ‘public order’, ‘police’, and ‘land’.

160. The legislative and executive power of NCTD over Entry 41shall not extend over to services related to “public order”, “police”, and A

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A“land”. However, legislative and executive power over services such asIndian Administrative Services, or Joint Cadre services, which arerelevant for the implementation of policies and vision of NCTD in termsof day-to-day administration of the region shall lie with NCTD. Officersthereunder may be serving in NCTD, even if they were not recruited byNCTD. In such a scenario, it would be relevant to refer, as an example,Bto some of the Rules, which clearly demarcate the control of All India orJoint-Cadre services between the Union and the States. NCTD, similarto other States, also represents the representative form of government.The involvement of the Union of India in the administration of NCTD islimited by constitutional provisions, and any further expansion would beCcontrary to the constitutional scheme of governance.

161. We shall take the example of the Indian Administrative Service(Cadre) Rules, 1954, which deal with the posting of IAS Officers. Rule2(a) defines ‘cadre officer’ to mean a member of IAS. Rule 2(b) defines‘Cadre post’ as any post specified under item I of each cadre in theDschedule to the Indian Administrative Service (Fixation of Cadre Strength)Regulations, 1955. Rule 2(c) defines ‘State’ to mean a State specified inthe First Schedule of the Constitution and includes a Union Territory.Rule 2(d) defines ‘State Government concerned’, in relation to a Jointcadre, to mean the Joint Cadre Authority. The constitution and compositionof a ‘Joint Cadre Authority’ is understood with reference to the All IndiaEServices (Joint Cadre) Rules 1972. The 1972 Rules apply to a “JointCadre constituted for any group of States other than the Joint Cadre ofUnion Territories.”[52] Rule 3 of the IAS (Cadre) Rules 1954 provides forthe constitution of cadres for each State or group of States “as a ‘StateCadre’ or, as the case may be, a ‘Joint Cadre’”. Rule 5 empowers theFCentral Government to allocate cadre officers to various cadres. In termsof Rule 5(1), the allocation of cadre officers to the various cadres shallbe made by the Central Government in consultation with the StateGovernment or the State Government concerned. Rule 7 stipulates thatall appointments to cadre posts shall be made “on the recommendationof the Civil Services Board” — by the State Government “in the case ofGa state cadre”, and by the State Government concerned, as defined inRule 2(d), “in the case of a joint cadre”. Under Rule 11A, the “Governmentof 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 H52 Section 1(i), All India Services (Joint Cadre) Rules 1972

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Service “serving in connection with the affairs of any of the ConstituentStates”. A combined reading of Rules 2, 7, and 11A indicates that thepostings within the State Cadre as well as Joint Cadre of a ConstituentState shall be made by the “Government of that State”, that is, by theduly elected government. In our case, it shall be the Government ofNCTD. We accordingly hold that references to “State Government” inrelevant Rules of All India Services or Joint Cadre Services, of whichNCTD is a part or which are in relation to NCTD, shall mean theGovernment of NCTD.

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162. We reiterate that in light of Article 239AA and the 2018Constitution Bench judgment, the Lieutenant Governor is bound by theaid and advice of the Council of Ministers of NCTD in relation to matterswithin the legislative scope of NCTD. As we have held that NCTD haslegislative power over “services” (excluding ‘public order’, ‘police’, and‘land’) under Entry 41 in List II, the Lieutenant Governor shall be boundby the decisions of GNCTD on services, as explained above. To clarify,any reference to “Lieutenant Governor” over services (excluding servicesrelated to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall meanLieutenant Governor acting on behalf of GNCTD.

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163. The division of administrative powers between the Unionand the NCTD as explained in this section must be respected.

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O. Conclusion

164. In view of the discussion above, the following are ourconclusions:

a.There does not exist a homogeneous class of UnionTerritories with similar governance structures; F

b.NCTD is not similar to other Union Territories. By virtueof Article 239AA, NCTD is accorded a “sui generis”status, setting it apart from other Union Territories;

c.The Legislative Assembly of NCTD has competence overentries in List II and List III except for the expresslyGexcluded entries of List II. In addition to the Entries in ListI, Parliament has legislative competence over all matters inList II and List III in relation to NCTD, including the entrieswhich have been kept out of the legislative domain of NCTDby virtue of Article 239AA(3)(a); H

582SUPREME COURT REPORTS

[2023] 9 S.C.R.

Ad.The executive power of NCTD is co-extensive with itslegislative power, that is, it shall extend to all matters withrespect to which it has the power to legislate; e.The Union of India has executive power only over the threeentries in List II over which NCTD does not have legislativeBcompetence; f.The executive power of NCTD with respect to entries inList II and List III shall be subject to the executive powerexpressly conferred upon the Union by the Constitution orby a law enacted by Parliament;Cg.The phrase ‘insofar as any such matter is applicable to UnionTerritories’ in Article 239AA(3) cannot be read to furtherexclude the legislative power of NCTD over entries in theState List or Concurrent List, over and above those subjectswhich have been expressly excluded; Dh.With reference to the phrase “Subject to the provisions ofthis Constitution” in Article 239AA(3), the legislative powerof NCTD is to be guided, and not just limited, by the broaderprinciples and provisions of the Constitution; and

i.NCTD has legislative and executive power over “Services”,Ethat is, Entry 41 of List II of the Seventh Schedule because:

(I)The definition of State under Section 3(58) of theGeneral Clauses Act 1897 applies to the term “State”in Part XIV of the Constitution. Thus, Part XIV isapplicable to Union territories; and F

(II)The exercise of rule-making power under the provisoto Article 309 does not oust the legislative power ofthe appropriate authority to make laws over Entry41 of the State List.

165. We have answered the issue referred to this ConstitutionGBench by the order dated 6 May 2022. The Registry shall place thepapers of this appeal before the Regular Bench for disposal after obtainingthe directions of the Chief Justice of India on the administrative side.

Bibhuti Bhushan Bose

H(Assisted by : Rahul Rathi, LCRA)

Reference answered.