The 2015 Notification added Entry 41 under the exception of Article 239AA(3)(a)
and gave power to the Lieutenant Governor of Delhi to make laws on it, which
denied the power to the Government of NCTD to the same. The notification was
upheld by The High Court of Delhi that the Government of NCT of Delhi cannot
make laws for Entry 41 - "Services" as it is outside the purview of the
legislative assembly of NCTD. The Constitution bench of the Supreme court gave
power back to the Government of NCTD for control over Entry 41 under List II.
The analysis of the Constitution bench judgment is discussed below.
Government of NCT of Delhi V. UOI, 2023
Bench: D.Y. Chandrachud, CJ., M.R. Shah, J., Krishna Murari, J., Hima Kohli, J.,
P.S. Narasimha, J.
Citation : 2023 SCC OnLine SC 606
- Whether the Government of NCTD or the Lieutenant Governor has legislative &
executive control over Entry 41 mentioned under list II of the seventh schedule
of the Constitution.
Union of India
Government of NCTD
- The Constitution bench of 2018 did not decide on the issue of who will
have legislative competence over Entry 41 of the State List.
- The State list has to be interpreted contextually so that certain
entries can be excluded from the domain of the Government of NCTD.
- The phrase "insofar as such matter is applicable to the Union
Territories" is a limitation phrase that allows the Government of Union
territories to make laws to a limited extent that apply to the Union
Analysis of the 2018 Constitution bench judgment: Interpretation of Article
Representative Form of Government
- The legislative assembly of NCTD cannot be excluded just because of the use
of the word "State".
- The legislative power not used by the government of NCTD does not mean it
ceases to exist.
- The phrase "insofar as such matter is applicable to Union Territories"
is a facilitative phrase that allows the Government of Union territories to
make law under the State List.
Legislative and executive power of the Government of NCT of Delhi
- By providing a "Sui generis" status to the Government of NCTD through the
insertion of Article 239AA which only talks about the NCTD shows the intent of
the legislation to give the NCTD a special status in comparison to other union
territories as a consequence created a representative government for the voice
of the people of Delhi.
- The use of the word "Shall" in Article 239AA is a constitutional mandate
which shows the intent to give power to the hand of the government of Delhi
to make laws for NCTD.
- Also, it is made very clear in Article 239AA that the Government of NCT of
Delhi shall be chosen by the people of Delhi by direct elections with no
provision where the members of the Legislative Assembly can be nominated by the
Parliament or the President, which gives representative character to the
Government of NCT of Delhi, therefore they must be given the power to make laws
for the area of NCT of Delhi.
"Insofar as any such matter is applicable to Union Territories"
- The combined reading of Article 239AA(3)(a) and Article 239AA(4)
indicates that the executive power of the Government of NCTD coexists with the legislative
power of the Government of NCTD. Thus, the executive power of the government of
NCTD extends to all those subjects, it has the legislative power of the
legislative assembly of Delhi.
- Whereas the executive power of the union is limited to the three entries
excluded from the list II whereas the executive power of the NCTD extends to all
entries in the list II except the three excluded entries.
- The Union cannot be given executive power in relation to the legislative
power already granted to the Government of NCTD would lead to collaborative
- Parliament has the power to make laws under List 2 and List 3 to which
the executive power of the government of NCT of Delhi must conform.
The 'Class' of Union Territories
- The use of the word "State" in itself does not exclude the Legislative
Assembly of NCTD from making laws on the entries of the state list as it does
not lead to the correct reading of the phrase in Article 239AA(3)(a). For
instance, if the GNCTD Act recognizes the legislative competence of the
Legislative Assembly of NCTD for deciding the salaries and allowances of the
members of the legislative assembly of the state under Entry 38 & Entry 40 in
List II just by the use of the word "state" does not divert the jurisdiction of
Legislative Assembly of NCTD to decide on the matter.
- The interpretation of this phrase should be inclusive, not exclusionary
therefore the legislative assembly of NCTD has the power to make laws on the
matter of state list except the entries excluded and it does not restrict the
legislative power of the government of NCTD.
- The above phrase is used to facilitate the automatic conferment of power
to the Union territories to make laws on the matter of List II and List III,
because at the time of the commencement of the constitution, there was no
concept of Union territories, later through amendments such words and
phrases were added to facilitate their inclusion.
Through the Sixty-ninth amendment to the constitution of India, special status
was granted to Delhi as a national capital territory through the insertion of
Article 239AA which constitutionally mandates the formation of a legislative
assembly for NCTD, Hence the government of NCTD does not form part of the
'Class' of Union Territories hence the legislative power of NCTD does extend to
the subjects which are not available to Union Territories as a class.
Maintaining the balance between the local interests and national interests.
By carefully reading the text of Article 239AA(3) it can be seen that by
providing enough safeguards to the parliament to protect the national interest
like the exclusion of the three entries 1, 2 & 18 of Public Order, Police & Land
and by giving overriding legislative power in relation to NCTD shows the balance
of interest is maintained.
Inclusive interpretation of "insofar as any such matter is applicable to Union
In Advance Insurance Corporation Limited V. Gurudasmal, 1970
- To interpret the phrase in a restrictive sense would limit the power of
the legislative assembly of NCTD which was given to them by the Constitution and by
the electoral votes of the people of Delhi. So, it cannot be read to exclude the
power of the legislative assembly of NCTD from the entries of List II and List
III of the seventh schedule.
In T.M. Kanniyan V. CIT
- It was held that the definition of "State" under the General Clauses Act
as modified by the President through Article 372A shall be applied to the
interpretation of the Constitution and Act as mentioned under Article 367
unless the context otherwise requires. A purposive interpretation was given
to Article 367.
- The definition of "State" under Section 3(58) of the General Clauses Act
1956 states that the State specified in the first schedule shall include a
"Subject to the provisions": A limitation
- The definition of "State" under the General Clauses Act does not apply
to Article 246 as such interpretation would be repugnant to the subject and
context of Article 246
- Because if union territory is included in the definition of "State"
under Article 246, then the parliament will have no power to legislate with
respect to subjects of union territories mentioned under the state list
until a legislative assembly is created under Article 239A there would be no
legislature to make laws on those matters.
- Therefore, where construction is leading repugnant to the context, then
in that case, the legislative assembly of NCTD's power to legislate would not
extend to the entries which use the word "State". Thus, the phrase "insofar as
such matter is applicable to Union Territories" is used to extend the power of
the legislative assembly of NCTD to all entries which mention "State".
This phrase simply states that power granted by the Constitution is to be
exercised within the permissible limits of the provisions of the Constitution of
India. If violative of such provisions will be ascertained by the court and if
found the court will declare it to be void. Thus, the phrase must be read to
give effect to the underlying principles of the Constitution of India.
The Constitution is not unitary
The concept of federalism states that both the Union and the state are co-equals
in terms of their legislative and executive power in their respective domains
because of the partition of authority between the two. While NCTD is a Union
territory, it is still been given special status and should be treated on par
with the state in terms of a federal entity. Thus, the Union and NCTD have a
federal relationship, because of which the union cannot take away the autonomy
of NCTD as a federal entity just because it is not a "State". This
Interpretation will expand the basic structure of federalism.
Scope of Legislative & Executive power between the Union and NCTD.
Triple chain of accountability: Civil Servants in a cabinet form of government
- The Combined reading of Article 73 and Article 162 shows that both have
exclusive executive power over their respective lists, List I for the Union
and List II for the State. With respect to list III, the Union will only
have executive power if provided by law through Parliament or by the
Constitution, thus creating a limitation on the power of the Union with
respect to executive power in List III only to keep intact the federal
governance and the principle of representative democracy. So, applying the
same principles to NCTD, the
executive power of NCTD will extend to all subjects in which NCTD has
legislative powers only in the absence of law created by Parliament or by the
- In Article 239AA(4) there has been executive power granted to NCTD in respect
of which it has the power to make laws. In the same clause, there is a use of
the word "aid and advice", could simply mean that the Lieutenant Governor of
NCTD is bound by the aid and advice of the Government of NCTD and the Lt.
Governor can refer the matter to the president in a careful manner and in rare
- Regarding the legislative power of the legislative assembly of NCTD on the
subject of Entry 41 of the State list, NCTD shall have the legislative power as
it is not expressly excluded from Article 239AA(3)(a). So, NCTD having
legislative power, shall have executive power over Entry 41 of the State
Civil servants are known as the "soul of administration". The policies of the
government are implemented and administered by them. There follows a triple
chain of accountability. Civil Service officers are accountable to Ministers,
the ministers are accountable to the legislature and the legislature is
accountable to the electorate.
If the government of NCTD is not provided control
over the civil service officers posted in its domain, the principle of the
triple chain of accountability would become ineffective and an unaccountable
officer may act to disregard the will of the people represented by the elected
government of NCTD and would lead to non-implementation of the policies
formulated by the Government of NCTD.
Balakrishnan Committee Report
The Report stated that the Union territories are the responsibility of the union
as there does not exist any third category of service belonging to the services
of Union territories under Part XIV of the Constitution. The interpretation of
Article 239 has been dealt with by the 2018 Constitution Bench judgment there is
no need to be guided or bound by the Balakrishnan Committee Report to determine
if "Services" is available to NCTD.
Applicability of Part XIV to Union Territories
- The argument here is that, as Part XIV of the Constitution does not talk
about the services for Union territories, the NCTD does not have any legislative
power over "Services" of Entry 41 of List II.
- The definition of the word "State" under Section 3(58) of the General
Clauses Act will apply for the interpretation of Part XIV of the
constitution as the application of such definition does not make the subject
or context of Part XIV of the constitution repugnant. Hence, for the
applicability of Part XIV of the constitution, the definition of "State" was
held to include Union territories.
- There was a conscious omission to not include services for Union
territories in Part XIV of the Constitution. The court held that Parliament
could not have foreseen at the time of omission that in the future the Union
territories would have been given diverse governance models.
- The rules made by the President or by the Governor in the exercise of
his power under proviso to Article 309, the NCTD power to legislate on "services"
cannot be excluded as such rules do not substitute the legislative power granted
by Article 309.
Exercise by NCTD of its Legislative Power on Entry 41
In State of Gujarat V, Raman Law Keshav Lal, 1980
- The legislative power to enact legislation under Entry 41 of List II was
determined by examining whether the said legislation contains provisions
'regulating the recruitment, exercise of control including the power to
transfer & suspend and conditions of service' - all of which are
constituents of a "service" under Entry 41 of the list II.
- On examining the provisions of the Delhi Fire Service Act 2007, it was
held that the legislative assembly of NCTD with respect to its legislative power has
created the Delhi Fire Service Act 2007 under Entry 41 of List II.
"Services" and NCTD
In IK Saksena V. State of Madhya Pradesh, 1976
- It was held that the entries in Schedule VII must be read in the widest
possible meaning than that covered by Article 309 of the Constitution, but
in the context of Entry 41 in relation to NCTD, it may not be read in the
widest possible sense because of the limitation laid down in Article
239AA(3)(a) which are related to 'public order', 'police', and 'land'.
- A Combined reading of Rules 2, 7, and 11A of Indian Administrative
Service (Cadre) Rules, 1954 indicates that posting within State Cadre or
Joint Cadre of a Constituent State shall be decided by the "Government of
that State" which means a duly elected government which in our case shall be
Government of NCTD. So, the reference to "State Government" for All India
Services or Joint Cadre Services which is a part of NCTD shall mean the
Government of NCTD.
The Lieutenant Governor shall be bound by the aid and advice of the Council of
Ministers of NCTD for the matters which NCTD has the power to legislate,
including Entry 41 in List II.
- (1970) 1 SCC 633
- (1968) 2 SCR 103
- (1980) 4 SCC 653
- (1976) 4 SCC 750
Award Winning Article Is Written By: Mr.Mohit Sharma
Authentication No: MY351544541937-29-0523