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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 with 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 arerelevant 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 haslegislative 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 meanLieutenant Governor acting on behalf of GNCTD.Constitut ion 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 conferan 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 restrictivemanner 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 coextensivewith its legislative power, that is, it shall extend to allmatters with respect to which it has the power to legislate – Thephrase ‘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.Constitut ion 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 the 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.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 competenceover 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).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 entriesin 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.Union 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 XIVis applicable to Union territories; and (ii) The exercise of rulemakingpower 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. |
