GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA

A The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI A. The Reference ........................................................................ 4* B. Submissions ............................................................................. 11* C. Interpretation of Article 239AA: The 2018 Constitution Bench B judgment ................................................................................ 15* (a) Delhi: A Sui Generis model .......................................... 15* (b) Legislative and executive power of the Legislative Assembly of NCTD ..................................................................... 19* C (c) “Insofar as any such matter is applicable to Union Territories”........................................................ 23* D. The ‘class’ of Union territories .............................................. 30* E. Maintaining the balance of local interest and national interest . 35* D F. Inclusive interpretation of “insofar as any such matter is applicable to Union territories” .............................................. 38* G. “Subject to the provisions”: A limitation? ............................... 47* H. The Constitution is not Unitary .............................................. 50* I. Scope of Legislative and Executive Power between the Union E and NCTD ............................................................................. 56* J. Triple chain of accountability: Civil Servants in a Cabinet Form of Government ....................................................................... 68* (A) Role of civil services in a modern government ........... 68* F (b) Accountability of civil servants in a Westminster parliamentary democracy ............................................ 69* (c) Accountability of Civil Service Officers in a Federal Polity ............................................................................ 73* G K. Balakrishnan Committee Report ........................................... 75* L. Applicability of Part XIV to Union Territories ...................... 80* (a) Meaning of “State” for the purpose of Part XIV of the Constitution .................................................................. 80*

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

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(b) Omission in Part XIV by the 1956 Constitution A Amendment ................................................................ 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* B O. Conclusion ............................................................................103*

A. The Reference

1Copy pinpoint1. This case before us deals with the asymmetric federal model C of governance in India, involving the contest of power between a Union Territory and the Union Government. The issue is who would have control over the “services” in the National Capital Territory of Delhi1: the Government of NCTD2 or the Lieutenant Governor acting on behalf of the Union Government. The question arose subsequent to a notification 3 D dated 21 May 2015 issued by the Union Ministry of Home Affairs, which stated as follows: “... in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that – E subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President. F

Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.” G The notification provided that the Lieutenant Governor of NCTD shall exercise control “to the extent delegated to him from time to time

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

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

2Copy pinpoint2. “Services” are covered under Entry 41 of the State List of the Seventh Schedule to the Constitution. The 2015notification excludes Entry B 41 of the State List, which has as its subject, “State Public Services; State Public Services Commission”, from the scope of powers of GNCTD. The notification stipulates that the rationale for excluding “services” from the ambit of the legislative and executive power of NCTD is that NCTD does not have its own State public services: C “Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through D the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central E Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category. And whereas it is well established that where there is no legislative F power, there is no executive power since executive power is co- extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, G 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi.” H

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3Copy pinpoint3. The above notification was assailed through a batch of petitions before the High Court of Delhi. The validity of the notification was upheld by the High Court as it declared that “the matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi.”4 On appeal, a two-Judge Bench of this Court was of the opinion that the matter involved a substantial question of law about the interpretation of Article 239AA, which deals with “Special provisions with respect to Delhi”, and hence referred the issue of interpretation of Article 239AA to a Constitution Bench on 15 February 2017.

4Copy pinpoint4. Article 239AA provides as under: “239-AA. Special provisions with respect to Delhi.— C (1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the Administrator thereof appointed under Article 239 shall be D designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by Members chosen by direct election from territorial constituencies in the National Capital Territory. E (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be F regulated by law made by Parliament. (c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the Members thereof as they apply, in relation to a State, the Legislative G Assembly of a State and the Members thereof respectively; and any reference in Articles 326 and 329 to “appropriate legislature” shall be deemed to be a reference to Parliament.

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

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A (3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 B and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof. C (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the D Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly E has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of Members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the H Lieutenant Governor and his Ministers on any matter, the

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Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. (5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. C (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. (7)(a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. D (b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution. E (8) The provisions of Article 239-B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union Territory of Puducherry, the Administrator and its legislature, respectively; and any reference in that Article to F “clause (1) of Article 239-A” shall be deemed to be a reference to this Article or Article 239-AB, as the case may be.”

5Copy pinpoint5. The Constitution Bench pronounced its judgment5 on 4 July

2018. The judgment contained three judicial opinions. The opinion of the majority was authored by Chief Justice Dipak Misra, in which Justice G A.K. Sikri, and Justice A.M. Khanwilkar joined.6 One of us (Dr. D.Y. Chandrachud, J.) and Justice Ashok Bhushan delivered separate concurring opinions. The Constitution Bench dealt with the constitutional

5 "2018 Constitution Bench judgment”; (2018) 8 SCC 501 6 "Judgment of the majority” H

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A status of NCTD and the modalities of its administration based on the division of powers, functions and responsibilities of the elected government of NCTD and the Lieutenant Governor, who as the nominee of the President of India, serves as the representative of the Union Government. We shall discuss the principles laid down in that judgment in Section C of this judgment.

6Copy pinpoint6. Upon deciding the interpretation of Article 239AA, the appeals were directed to be listed before a regular Bench to decide the specific issues. On 14 February 2019, a two-Judge Bench of Justice A.K. Sikri and Justice Ashok Bhushan delivered two separate judgments. The judges differed on whether “services” are excluded in view of Article 239AA(3)(a) from the legislative and executive domain of GNCTD.7

7Copy pinpoint7. The matter fell for consideration before a Bench of three Judges. There, the Union argued that the 2018 Constitution Bench did not analyze two crucial phrases in Article 239AA(3)(a): (i) “in so far as any such matter is applicable to Union Territories”; and (ii) “Subject to the provisions of this Constitution’’. By an order dated 6 May 2022, the three-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 of contention relates to the interpretation of the phrases: “in so far as any such matter is applicable to Union Territories” and “Subject to the provisions of this Constitution” as contained in Article 239AA(3)(a) of the Constitution. On perusing the Constitution Bench judgment, it appears that all the issues except the one pending consideration before this bench, have been elaborately dealt with. Therefore, we do not deem it necessary to revisit the issues that already stand settled by the previous ConstitutionBench.

9. The limited issue that has been referred to this Bench, relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services”. The G Constitution Bench of this Court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List. 7 H "2019 split verdict”

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10. We therefore deem it appropriate to refer the above limited question, for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.” The above reference forms the subject of adjudication before this Constitution Bench. The limited issue for the consideration of this Constitution Bench only relates to the “scope of legislative and executive powers of the Centre and NCTD with respect to the term “Services.” That is to say, whether the NCTD or the Union government has legislative and executive control over “services.” We will now turn to the arguments made by counsel on opposing sides. B. Submissions C

8Copy pinpoint8. Dr. AM Singhvi, learned Senior Counsel appearing for the appellant, made the following submissions: a. The Legislative Assembly of NCTD has the power to enact laws under Entry 41 of List II of the Seventh Schedule. D The power cannot be excluded merely because the entry uses the term “state public services” and not “Union Territory public services”. Infact, the Delhi Legislative Assembly has enacted laws that fall within Entry 41; b. Even if it is found that the legislature of NCTD has not E exercised legislative power related to Entry 41 of List II, it does not imply that the power ceases to exist; c. NCTD has legislative power and executive power over all entries in List II other than entries 1,2, and 18 which have been expressly excluded by Article 239AA; F d. The phrase “insofar as such matter is applicable to Union Territories” in Article 239AA is inclusionary and not exclusionary. Multiple entries in List II and List III use the term “State.” The phrase “insofar as such matter is applicable to Union Territories” is a facilitative phrase which G permits such entries being made available to the Union Territory of NCTD without an amendment of the Lists in the Seventh Schedule. Without the facilitative phrase, NCTD would not have legislative competence over those entries in Lists II and III which use the term “State”; H

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A e. NCTD is sui generis. It cannot be brought within the common class of ‘Union Territories’; f. This Court in Union of India v. Prem Kumar Jain8 has recognised that the provisions of Part XIV of the Constitution extend to Union territories; B g. The report of the Balakrishnan Committee opined against the inclusion of “services” within the legislative and executive ambit of NCTD, does not have any relevance because: (i) It preceded the inclusion of Article 239AA, by which three entries from List II have been expressly C excluded from the legislative competence of NCTD; (ii) The conclusion that only States (and not Union territories) can have services is conceptually wrong; (iii) The judgment of this Court in Prem Kumar Jain D (supra) was not considered; and (iv) The opinion of the majority in the 2018 Constitution Bench judgment expressly notes that the report of the Balakrishnan Committee will not be used as an aid to interpret Article 239AA. E h. Personnel belonging to All-India Services and Central Government Services are governed by the Indian Administrative Service (Cadre) Rules 1954 and the All-India Services (Joint Cadre) Rules 1972 respectively. In terms of these rules, while it is the prerogative of the Joint Cadre Authority to make an officer available to GNCTD, the actual F posting of the officer within the departments of GNCTD is the prerogative of the latter. Similarly, under DANICS and DANIPS Rules 2003, once an officer is alloted to NCTD, it is the Administrator who appoints that officer to a post within NCTD.

9Copy pinpoint9. Mr. Shadan Farasat, learned counsel appearing for the appellant, provided an overview of the control of services in national capital territories across the world. He argued that regardless of the level of devolution of power in countries across the world, even in countries with

8 H (1976) 3 SCC 473

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

10Copy pinpoint10. Mr. Tushar Mehta, learned Solicitor General, made the following submissions on behalf of the Union of India: a. Entry 41 of List II is not available to Union Territories, as it cannot have either a State Public Service or a State Public B Service Commission; b. The 2018 Constitution Bench judgment did not decide whether NCTD has legislative competence over Entry 41 of List II; C c. Delhi, being the national capital, enjoys a special status which requires the Union to have control over services, in the absence of which it would become impossible for the Union to discharge its national and international responsibilities; d. The expression “in so far as any such matter is applicable D to Union Territories” in Article 239AA means that the entries contained in List II are available to NCTD to the limited extent to which they are applicable to Union Territories. The legislative powers of NCTD shall extend to only those matters which are ‘applicable’ to Union Territories. Since the Constitution uses the term ‘applicable’ E and not ‘relating’ to Union Territories, the legislative power of NCTD will extend to an Entry only when that Entry is clearly and unequivocally applicable to Union Territories as a class. Consequently, List II has to be read contextually and certain entries can be excluded from the domain of F GNCTD; e. The control of Union of India over “services” has not led to any issue pertaining to the governance of NCTD; and f. The Transaction of Business Rules 1993 provide enough powers to Ministers of GNCTD to ensure supervisory and G functional control over civil services to ensure their proper functioning; the rules applicable to the civil services indicate that administrative control vests with the Union.

11Copy pinpoint11. The arguments advanced indicate that this Constitution Bench is called upon to decide the limited question of whether NCTD has the H

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A power to legislate under Entry 41 of the State List, and the meaning of the term “in so far as any such matter is applicable to Union Territories” in Article 239AA(3)(a). This Bench will refer to the principles laid down in the 2018 Constitution Bench judgment to facilitate the analysis. B Though both sides reliedon the subordinate rules referred to above to argue that they have control over postings of officers, we do not deem it appropriate to interpret each of these rules to elucidate on the framework of governance in each of the cadres. The reference is limited to the scope of executive and legislative power of NCTD over “services” C with reference to the interpretation of Article 239AA(3)(a). C. Interpretation of Article 239AA: The 2018 Constitution Bench judgment (a) Delhi: A sui generis model

12Copy pinpoint12. The 2018 Constitution Bench decision held that NCTD is not similar to other Union Territories. The decision elucidates the manner in which the insertion of Article 239AA accorded a “sui generis” status to NCTD setting it apart from other Union Territories. The judgment noted that the constitutional entrenchment of a Legislative Assembly, Council of Ministers, and Westminster style cabinet system of government brought into existence the attributes of a representative form of government. As a consequence, the residents of Delhi have been, through their elected representatives, afforded a voice in the governance of NCTD, while balancing the national interests of Union of India. The majority decision, speaking through Chief Justice Dipak Misra, held: F “196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal [...] S. Essence of Article 239-AA of the Constitution

G 206. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239-AA…

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

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

209. The exercise of establishing a democratic and representative form of Government for NCT of Delhi by insertion of Articles 239- AA and 239-AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for NCT of Delhi. C

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

13Copy pinpoint13. The concurring opinion of Justice Chandrachud emphasized the significance legislative and constitutional history in interpreting Article 239AA. In that context, the judgment notes: “383. Having regard to this history and background, it would be fundamentally inappropriate to assign to the NCT a status similar to other Union Territories. Article 239-AA(4) is a special provision which was adopted to establish a special constitutional arrangement for the governance of the NCT, albeit within the rubric of Union Territories. In interpreting the provisions of Article 239-AA, this Court cannot adopt a blinkered view, which ignores legislative and constitutional history. While adopting some of the provisions of the Acts of 1963 and 1966, Parliament in its constituent capacity omitted some of the other provisions of the legislative enactments which preceded the Sixty-ninth Amendment […]”

14Copy pinpoint14. Having imparted a purposive interpretation to Article 239AA, G the judgment underscores that the governance structure which Parliament adopted for NCTD is unique and different from that of other Union Territories. It was held that the constituent power of Parliament was exercised “to treat the Government of NCT of Delhi as a representative form of Government”. The judgment of the majority held: H

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

B 214. On the other hand, Article 239-AA clause (2), by using the word “shall”, makes it mandatory for Parliament to create by law a Legislative Assembly for the National Capital Territory of Delhi. Further, sub-clause (a) of clause (2) declares very categorically that the Members of the Legislative Assembly C of the National Capital Territory of Delhi shall be chosen by direct election from the territorial constituencies in the National Capital Territory of Delhi. Unlike Article 239-A clause (1) wherein the body created by Parliament by law to perform the functions of a legislature for the Union Territory of Puducherry may either be wholly elected or partly elected and partly nominated, there is no such provision in the context of the Legislative Assembly of NCT of Delhi as per which Members can be nominated to the Legislative Assembly. This was a deliberate design by Parliament.

215. We have highlighted this difference to underscore and emphasise the intention of Parliament, while inserting Article 239-AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of NCT of Delhi and to treat the Government of NCT F of Delhi as a representative form of Government.

216. The Legislative Assembly is wholly comprised of elected representatives who are chosen by direct elections and are sent to Delhi’s Legislative Assembly by the voters of Delhi. None of the Members of Delhi’s Legislative G Assembly are nominated. The elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently…” (emphasis supplied) H

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15Copy pinpoint15. In his concurring opinion, Justice Chandrachud also held that A NCTD is “special class among Union Territories”. It was held: “384. All Union territories are grouped together in Part VIII of the Constitution. While bringing them under the rubric of one constitutional pairing, there is an unmistakable distinction created between them by the Constitution… B

388. Delhi presents a special constitutional status Under Article 239AA. This is fortified when those provisions are read in contrast with Articles 239A and 240. Article 239AA does not incorporate the language or scheme of Article 240(1), which enables the President to frame Regulations for peace, progress C and good government of the Union territories referred to in Article 240(1). This proviso to Article 240(1) indicates that once a Parliamentary law has been framed, the President shall not frame Regulations for Puducherry. In the case of Delhi, Article 239AA does not leave the constitution of a legislature or the Council of Ministers to a law to be framed by Parliament in future. Article D 239AA mandates that there shall be a legislative assembly for the NCT and there shall be a Council of Ministers, with the function of tendering aid and advice to the Lieutenant Governor. The “there shall be” formulation is indicative of a constitutional mandate. Bringing into being a legislative assembly and a Council E of Ministers for the NCT was not relegated by Parliament (in its constituent power) to its legislative wisdom at a future date upon the enactment of enabling legislation. Clause 7(a) of Article 239AA enables Parliament by law to make provisions to give effect to or to supplement the provisions contained in that Article. Parliament’s power is to enforce, implement and fortify Article 239AA and its defining norms.

389. The above analysis would indicate that while Part VIII brings together a common grouping of all Union territories, the Constitution evidently did not intend to use the same brush to paint the details of their position, the institutions of governance (legislative or executive), the nature of democratic participation or the extent of accountability of those entrusted with governance to their elected representatives…” (emphasis supplied) H

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16Copy pinpoint16. Thus, it is evident from the 2018 Constitution Bench judgment that the constitutional status of NCTD is not similar to other Union Territories, which are covered under Part VIII of the Constitution.

17Copy pinpoint17. The judgment of the majority in the 2018 Constitution Bench decision underscores the importance of interpreting the Constitution to further democratic ideals. It was held: “284.1. While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution.” (emphasis supplied) D Therefore, in adjudicating the present dispute, it becomes imperative to adopt an interpretation which upholds the spirit of the unique constitutional democratic mandate provided to the Government of NCTD by the inclusion of Article 239AA. (b) Legislative and executive power of NCTD E

18Copy pinpoint18. Article 239AA(3)(a) stipulates that the Legislative Assembly of Delhi shall have the power to make laws for the whole or any part of NCTD with respect to matters in the State List and the Concurrent List “insofar as any such matter is applicable to Union Territories” except for certain subjects expressly excluded. The provision expressly excludes entries 1, 2, and 18 of the State List, and entries 64, 65 and 66 of List II insofar as they relate to the entries 1, 2, and 18. Article 239AA(3)(b) conferson Parliament the power “to make laws with respect to any matter” for a Union Territory or any part of it. Thus, while the Legislative Assembly of NCTD has legislative competence over entries in List II and List III except for the excluded entries of List II, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a). This is where there is a departure from the legislative powers of Parliament with respect to States. While Parliament does not have legislative competence over entries in List II for States, it has the power to make laws on entries in

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List II for NCTD. This was the view taken in the 2018 Constitution A Bench judgment. As the concurring opinion of Justice Chandrachud held: “316… Unlike State Legislative Assemblies which wield legislative power exclusively over the State List, under the provisions of Article 246(3), the legislative assembly for NCT does not possess exclusive legislative competence over State List subjects. By a B constitutional fiction, as if it were, Parliament has legislative power over Concurrent as well as State List subjects in the Seventh Schedule. Sub Clause (c) of Clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the legislative assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has C received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by the legislative assembly… ” D

19Copy pinpoint19. The 2018 Constitution Bench judgment held that the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Article 239AA(4) provides that the Council of Ministers shall aid and advise the Lieutenant Governor in the exercise of the functions of the latter in relation to matters with respect to which the Legislative Assembly E has the power to make laws. Thus, the executive power of NCTD shall extend over entries in List II, except the excluded entries. After analysing the provision of Article 239AA(4), it was held in the opinion of the majority in the 2018 Constitution Bench judgment that the Union has executive power only over the three entries in List II over which NCTD does not F have legislative competence, that is, entries 1,2, and 18 in List II. It was held: “222. A conjoint reading of Article 239-AA(3)(a) and Article 239- AA(4) reveals that the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the G Delhi Legislative Assembly which is envisaged in Article 239- AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239- AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. H

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A 223. Article 239-AA(3)(a) reserves Parliament’s legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The B legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers…

224. Article 239-AA(4) confers executive powers on the C Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with Parliament’s legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239-AA(3)(a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution… F 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the G Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the H Constitution.”

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20Copy pinpoint20. The judgment of the majority, however, clarified that if A Parliament makes a law in relation to any subject in List II and List III, the executive power of GNCTD shall then be limited by the law enacted by Parliament. It was held: “284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239-AA divulges that the executive power of the B Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or C the Concurrent List, the executive action of the State must conform to the law made by Parliament. (sic)” (emphasis supplied)

21Copy pinpoint21. The above view was also taken by Justice Chandrachud in his concurring opinion: D

“316.... the provisions of Clause 2 and Clause 3 of Article 239AA indicate that while conferring a constitutional status upon the legislative assembly of NCT, the Constitution has circumscribed the ambit of its legislative Powers firstly, by carving out certain subjects from its competence (vesting them in Parliament) and E secondly, by enabling Parliament to enact law on matters falling both in the State and Concurrent lists. Moreover, in the subjects which have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament.” F

22Copy pinpoint22. The 2018 Constitution Bench judgment authoritatively held that the legislative and executive power of NCTD extends to all subjects in Lists II and III, except those explicitly excluded. However, in view of Article 239AA(3)(b), Parliament has the power to make laws with respect to all subjects in List II and III for NCTD. G (c) “Insofar as any such matter is applicable to Union Territories”

23Copy pinpoint23. It has been argued by the Union of India that the phrase ‘in so far as any such matter is applicable to Union Territories’ in Article 239AA has not been construed by the Constitution Bench, and that the phrase limits the legislative power of NCTD. H

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24Copy pinpoint24. However, reference has to be made to the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment, which dealt 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 Seventh B Schedule, there are numerous entries which use the expression “State”. These entries are illustratively catalogued below: […]

461. Article 239-AA(3)(a) permits the Legislative Assembly C of the NCT to legislate on matters in the State List, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent List, “insofar as any such matter is applicable to Union Territories”. In forming an understanding of these words of Article 239-AA(3)(a), it has to be noticed that since the decision in Kanniyan right through to the nine-Judge Bench decision 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 applicable to Union Territories” cannot be construed to mean that the Legislative Assembly of NCT would have no power to legislate on any subject in the State or Concurrent Lists, merely by the use of the expression “State” in that particular entry. This is not a correct reading of the above words of Article 239-AA(3)(a). As we see below, that is not how Parliament has construed them as well. F

462. Section 7(5) of the GNCTD Act provides that salaries of the Speaker and Deputy Speaker of the Legislative Assembly may be fixed by the Legislative Assembly by law. Section 19 provides that the Members of the Legislative Assembly shall receive salaries and allowances as determined by the Legislative Assembly by G law. Section 43(3) similarly provides that the salaries and allowances of Ministers shall be determined by the Legislative Assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacted the above provisions unless legislative competence resided in the States on the H

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above subject. The subjects pertaining to the salaries and A allowances of Members of the Legislature of the State (including the Speaker and Deputy Speaker) and of the Ministers for the State are governed by Entry 38 and Entry 40 of the State List. The GNCTD Act recognizes the legislative competence of the Legislative Assembly of NCT B to enact legislation on these subjects. The use of the expression “State” in these entries does not divest the jurisdiction of the Legislative Assembly. Nor are the words of Article 239-AA(3)(a) exclusionary or disabling in nature.

463. The purpose of the above narration is to indicate that the expression “State” is by itself not conclusive of whether a C particular provision of the Constitution would apply to Union Territories. Similarly, it can also be stated that the definition of the expression State in Section 3(58) of the General Clauses Act (which includes a Union Territory) will not necessarily govern all references to “State” in the Constitution. If there is something which is repugnant in the subject or context, the inclusive definition in Section 3(58) will not apply. This is made clear in the precedent emanating from this Court. In certain contexts, it has been held that the expression “State” will not include Union Territories while in other contexts the definition in Section 3(58) has been applied. Hence, the expression “insofar as any such matter is applicable to Union Territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.” (emphasis supplied) It is evident that the concurring opinion held that the phrase “insofar as any such matter is applicable to Union Territories” is an inclusive term, and “not one of exclusion”. Justice Chandrachud interpreted the term to mean that the Legislative Assembly of NCTD shall have the power to legislate on any subject in the State or Concurrent Lists, except the excluded subjects. G

25Copy pinpoint25. In his concurring opinion in the 2018 Constitution Bench judgment, Justice Bhushan also interpreted the said phrase in the following terms: “551. The provision is very clear which empowers the Legislative Assembly to make laws with respect to any of the matters H

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A enumerated in the State List or in the Concurrent List except the excluded entries. One of the issue is that power to make laws in State List or in Concurrent List is hedged by phrase “in so far as any such matter is applicable to Union territories”.

552. A look of the Entries in List II and List III indicates B that there is no mention of Union Territory. A perusal of the List II and III indicates that although in various entries there is specific mention of word “State” but there is no express reference of “Union Territory” in any of the entries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42 and 43, there is specific mention of word “State”. Similarly, in List C III Entry 3, 4 and 43 there is mention of word “State”. The above phrase “in so far as any such matter is applicable to Union Territory” is inconsequential. The reasons are two fold. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, D B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters E including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express Constitutional provision.

553. Thus, there is no difficulty in comprehending the Legislative F power of the NCTD as expressly spelled out in Article 239AA…” (emphasis supplied)

26Copy pinpoint26. Justice Bhushan also agreed that the phrase “in so far as any such matter is applicable to Union territories” cannot be used to restrict G the legislative power of the Legislative Assembly of Delhi. He held that the “phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List” except for excluded entries.

27Copy pinpoint27. The judgment of the majority did not make a direct observation on the interpretation of the said phrase. However, the reasoning indicates H

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that the phrase was to be considered in a broader sense. As noted previously, the judgment of the majority held that the executive power of NCTD is coextensive with its legislative power on subjects except the excluded subjects under Article 239AA(3)(a). This means that the executive power flows from the legislative power, that is, if NCTD has executive power on a subject in List II, it is because it has legislative power under the entries of that List. The judgment of the majority held that the Union shall have exclusive executive power with respect to NCTD only for “the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded”. It was further held that in respect of “all other matters,” executive power is to be exercised by GNCTD. This would mean that NCTD has executive power on “all other matters”. This indicates that the judgment of the majority interpreted Article 239AA(3)(a) and the phrase “in so far as any such matter is applicable to Union Territory” to give legislative power to NCTD on “all other matters” except the three matters in the State List in respect of which the power of the Legislative Assembly of NCTD D has been excluded.

28Copy pinpoint28. The above discussion implies that all the five Judges in the 2018 Constitution Bench judgment did not construe the phrase “in so far as any such matter is applicable to Union Territories” in Article 239AA to be exclusionary. E

29Copy pinpoint29. However, in his opinion in the 2019 split verdict, Justice Bhushan was of the contrary view. He held that the majority opinion in the 2018 Constitution bench judgment did not interpret the phrase “insofar as any such matter is applicable to Union Territories”: “187. As noticed above, the Constitution Bench in para 39 F extracted above has noticed the submissions of the counsel for the respondent that words “insofar as any such matter is applicable to Union Territories…” in Article 239-AA(3)(a) restrict the legislative power of the Legislative Assembly of Delhi to only those entries which are only applicable to Union Territories and G not all. The elaborate discussion on its answer is not found in the majority opinion expressed by Justice Dipak Misra, C.J. (as he then was). The submission having been made before the Constitution Bench which submission was considered in other two opinions expressed by Dr Justice D.Y. Chandrachud and H

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

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

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

193. In the above paragraphs, the opinion is expressed that all matters including those relatable to the State List and Concurrent List are available to the Legislative Assembly of Delhi except where an entry indicates that its applicability to the Union D Territory is excluded by implication or by any express constitutional provision. The conclusion is, thus, that all entries of List II and List III are available to Legislative Assembly for exercising legislative power except when an entry is excluded by implication or by any express provision.

E 194. 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 Union Territories”, it is, thus, clear that no opinion has been expressed in the majority opinion of the Constitution F Bench…” (emphasis supplied)

30Copy pinpoint30. We are unable to agree with the view of Justice Bhushan in the 2019 split verdict. As indicated previously, the majority decision in the 2018 Constitution Bench judgement rendered a broad interpretation G of Article 239AA(3)(a) to provide NCTD with vast executive and co- extensive legislative powers except in the excluded subjects. A combined reading of the majority opinion and the concurring opinions of Justice Chandrachud and Justice Bhushan indicates that the phrase “in so far as any such matter is applicable to Union Territories” does not restrict the legislative powers of NCTD. H

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31Copy pinpoint31. While the 2018 Constitution Bench judgment provides sufficient A clarity on the interpretation of the phrase “inso far as any such matter is applicable to Union Territories”, we find it necessary to deal with the arguments made by the Union of India that the phrase must be read in a restrictive manner to limit the legislative power of NCTD on certain subjects (in addition to already excluded subjects) in List II. B D. The ‘class’ of Union territories

32Copy pinpoint32. The opinion of the majority in the 2018 Constitution Bench judgment acknowledged the special status of NCTD. A reference to the historical background which led to the conceptualization of Union Territories would be useful to assess the argument of the Union that there exists a class of Union territories. When the Indian Constitution was adopted, the States of the Indian Union were classified into Part A, Part B, and Part C States. Delhi was a Part C State and was governed by the Government of Part C States Act 1951. The Act provided for a Council of Ministers and a legislature of elected representatives for Delhi with the power of making laws with respect to any of the matters enumerated in the State List or the Concurrent List except for the subjects which were expressly excluded. The excluded subjects corresponded to those in Article 239AA along with the subject of ‘Municipal Corporations.’ These powers were limited in nature and subject to the legislative power of Parliament. E

33Copy pinpoint33. The Constitution (Seventh Amendment) Act 1956, 9 based broadly on the recommendations of the Fazl Ali Commission and designed to implement the provisions of the States Reorganization Act 1956, inter alia did away with the erstwhile classification of States into Part A, Part B, and Part C States, and Part D territories. Instead, it introduced States F and Union Territories. The newly created Union Territories were to be administered by the President acting through an Administrator in terms of Article 239 of the Constitution.

34Copy pinpoint34. However, it is important to note that the Fazl Ali Commission was alive to the special needs of Delhi and the importance of accounting G for local needs and wishes of the residents of NCTD. It noted that: “593. […] Having taken all these factors into account, we are definitely of the view that municipal autonomy in the form of a

9 "1956 Constitution Amendment” H

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A corporation, which will provide greater local autonomy than is the case in some of the important federal capitals, is the right and in fact the only solution of the problem of Delhi State.”

35Copy pinpoint35. Soon thereafter, in 1962, Article 239A was inserted in the Constitution by the Constitution (Fourteenth Amendment) Act 1956. This B envisaged the creation of local legislatures or a Council of Ministers or both for certain Union Territories. Thus, a significant change was introduced in the governance structure for Union Territories. Article 239A created a separate category of Union Territories since all Union Territories were no longer envisaged to be administered only by the President. The introduction of Article 239A was followed by the Government of Union C Territories Act 1963. Currently, the Union Territory of Puducherry is administered in terms of the governance structure envisaged by this enactment.

36Copy pinpoint36. By the Constitution (Sixty-ninth Amendment) Act 199110, Article 239AA was inserted in the Constitution. It introduced a unique structure of governance for NCTD vis-à-vis the Union Territories. The Statement of Objects and Reasons of provides as follows: “1. … After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the F Union Territories.” (emphasis supplied)

37Copy pinpoint37. The 1991 Constitution Amendment brought a fresh dimension to the governance of Union Territories. By virtue of the provisions of Article 239AA, NCTD became the only Union Territory with a special G status of having a constitutionally mandated legislature and Council of Ministers. This was a departure from the earlier model of governance for Union territories. Article 239AA, in contrast, constitutionally mandates a legislature and prescribes the scope of legislative and executive power for NCTD.

H 10 "1991 Constitution Amendment”

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38Copy pinpoint38. Article 239AA creates a wide variation in structures of A governance of NCTD as compared to other Union Territories, with differences even as regards the manner in which legislative powers have been bestowed upon them. For instance, Article 239A provides that Parliament “may” create a legislature for Puducherry. On the other hand, for NCTD, the Constitution itself (in terms of Article 239AA) has created B a Legislative Assembly and a Council of Ministers. The constitutionally coded status of NCTD results in a creation of a significant degree of variance in the governance structure when compared to other States and Union territories.

39Copy pinpoint39. The concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment expressly discussed this aspect and held C that no single homogeneous class of Union Territories exits. Instead, Union Territories fall in various categories: “453. The judgment of the majority [New Delhi Municipal Council v State of Punjab] also holds that all Union Territories are not situated alike. The first category consists of Union D Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has “special features” under Article 239-AA. Though the Union Territory of Delhi “is in a class E by itself”, it “is certainly not a State within the meaning of Article 246 or Part VI of the Constitution”. Various Union Territories — the Court observed — are in different stages of evolution… 475.1. The introduction of Article 239-AA into the Constitution F was the result of the exercise of the constituent power. The Sixty- ninth Amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory, albeit under the rubric of a Union Territory governed by Part VIII of the Constitution.” G (emphasis supplied)

40Copy pinpoint40. This variance in the constitutional treatment of Union Territories as well as the absence of a homogeneous class is not unique only to Union Territories. The Constitution is replete with instances of special arrangements being made to accommodate the specific regional needs H

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A of States in specific areas. Therefore, NCTD is not the first territory which 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 each other to account for their specific circumstances. For instance, Article 371 of the Constitution contains special provisions for certain areas in B various States as well as for the entirety of some States. The marginal notes to various articles composed under the rubric of Article 371 provide an overview of a number of States for which arrangements in the nature of asymmetric federalism are made in the spirit of accommodating the differences 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 Nagaland 371-B. Special provision with respect to the State of Assam D 371-C. Special provision with respect to the State of Manipur 371-D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana] 371-E. Establishment of Central University in Andhra Pradesh E 371-F. Special provisions with respect to the State of Sikkim 371-G. Special provision with respect to the State of Mizoram 371-H. Special provision with respect to the State of Arunachal Pradesh

F 371-I. Special provision with respect to the State of Goa 371-J. Special provisions with respect to State of Karnataka”

41Copy pinpoint41. The design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and Union territories, it preserves the local G aspirations of different regions. “Unity in diversity” is not only used in common parlance, but is also embedded in our constitutional structure. Our interpretation of the Constitution must give substantive weight to the underlying principles.

42Copy pinpoint42. Therefore, we are unable to agree with the argument of the H Solicitor General that the legislative power of NCTD does not extend to

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those subjects which are not available to Union Territories as a class because Article 239AA employs the term”any such matter is applicable to Union Territories”. The analysis in this section clarifies that there is no homogeneous class of Union territories with similar governance structures. E. Maintaining the balance between local interests and national interests

43Copy pinpoint43. The Union of India has submitted that the phrase “in so far as any such matter is applicable to Union Territories” in Article 239AA cannot be interpreted inclusively as the Union has a preponderance of interest in the governance of the national capital and therefore the phrase must be read in a narrow manner. It has submitted that as Delhi is the seat of the Union Government, national interests take precedence over and beyond the quibbles of local interests. We find that this argument does not hold merit in light of the text of Article 239AA(3). This argument was already addressed in the 2018 Constitution Bench judgment. D

44Copy pinpoint44. Article 239AA(3)(a) confers legislative power to NCTD. However, it does not confer legislative power to NCTD over all entries in List II. Article 239AA(3) provides multiple safeguards to ensure that the 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. It provides that NCTD shall not have the power to enact laws on “matters E with respect to entries 1, 2 and 18 of the State List and entries 64, 65 and 66 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 the power to legislate on “any matter” for a Union Territory (including on subjects with respect to which NCTD has legislative power under Article F 239AA(3)(a)). In other words, Parliament has the plenary power to legislate on a subject in any of the three Lists of the Seventh Schedule for NCTD. Third, Article 239AA(3)(c) provides that where there is a repugnancy between a law enacted by the Legislative Assembly of NCTD and a law enacted by Parliament, the latter will prevail, and the law enacted by the legislative assembly shall, “to the extent of the repugnancy, G be void”. Unlike Article 254, which provides for the overriding power of Parliament only on subjects in the Concurrent List, Parliament has overriding power in relation to the NCTD over subjects in both List II and List III. Fourth, the second proviso to Article 239AA(c) provides that Parliament may enact “at any time any law with respect to the H

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A same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly” of NCTD. Fifth, under Article 239AA(7)(a), Parliament may by law make provisions for giving effect to, or supplementing the provisions in the forgoing clauses of Article 239AA and for “all matters incidental or consequential thereto”. Article 239AA(7)(b) stipulates that such law shall not be deemed to be an amendment of the Constitution for the purposes of Article 368,which deals with the power and procedure to amend the Constitution. Thus, Article 239AA(3) balances between the interest of NCTD and the Union of India.

45Copy pinpoint45. This constitutional balance has been analyzed in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment in the following terms: “ While bearing [...] fundamental constitutional principles of a democracy in mind, a balance has to be struck with the second of the above elements which recognises the special status of the D NCT. The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and E immediate impact upon the collective welfare of the nation. This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the NCT. These considerations would necessarily require a careful balance between the two principles.”

46Copy pinpoint46. Thus, it is evident that the Legislative Assembly of NCTD does not exercise exclusive legislative powers over all the entries in the State List. It is only in a demarcated constitutional sphere that it is able to exercise its legislative power. Parliament, by virtue of the 1991 Constitution Amedndment, has already reserved certain subjects of national importance to itself. Furthermore, Parliament has overriding legislative powers in relation to NCTD in terms of sub-clauses (b) and (c) of Article 239AA(3) and Article 239AA(7). The intent and purpose of Article 239AA(3(b) and Article 239AA(7) is to confer an expanded legislative competence upon Parliament, when it comes to GNCTD clearly since it is the capital of the country and therefore, must be dealt with different considerations. In this manner, Parliament acting in its

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constituent power while introducing Article 239AA has provided sufficient A safeguards and was cognizant of the necessity to protect concerns related to national interests. The Constitution confers powers to Parliament to such an extent that it would have the effect of amending the Constitution. As discussed, the legislative powers of NCTD are limited. If we interpret the phrase “in so far as any such matter is applicable to Union Territories” B is interpreted in a manner to exclude a greater number of entries than what is already excluded by Article 239A(3), it will defeat the very purpose of granting a “special status” to NCTD. F. Inclusive interpretation of “insofar as any such matter is applicable to Union territories” C

47Copy pinpoint47. The Union of India submitted that the phrase “insofar as any such matter is applicable to Union territories” is specifically a term of exclusion and not a term of inclusion. It argued that the phrase was introduced to limit the legislative and executive power over entries in List II over and beyond the entries which have been expressly excluded by Article 239AA. We shall now refer to other provisions of the D Constitution to analyse the above arguments.

48Copy pinpoint48. The power of Parliament and legislatures of States to legislate upon entries in the Union List, State List and Concurrent List flows from Article 246 of the Constitution. Article 246(3) confers exclusive power to the legislatures of States to make laws for that State with respect to the matters enumerated in the State List. Article 246(4) provides that Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

49Copy pinpoint49. Article 366 provides meanings of various expressions used in the Constitution, unless the context otherwise requires. The provision stipulates that unless the context otherwise requires, the expressions defined in an Article shall have the meanings respectively assigned to them in the provision. Article 366(26B) provides that ‘State’ with reference to Articles 246A, 268, 269, 269A and 279A includes a Union G Territory with a legislature. Articles 366(26B), incorporated in the Constitution by the Constitution (One Hundred and First Amendment) Act 2016, provides the meaning of ‘State’ only with reference to five other Articles in the Constitution, to enable the proper functioning of the goods and services tax regime. However, a universal definition of ‘State’ has not been provided under Article 366. H

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50Copy pinpoint50. Article 367(1) provides that unless the context otherwise requires, the General Clauses Act 189711, subject to any adaptations and modifications that may be made therein by any Presidential Order made under Article 372 to bring it in conformity with the provisions of the Constitution, is to apply for the interpretation of the Constitution: B “367(1):Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.”

51Copy pinpoint51. Article 372(2) stipulates that the President may by order make modifications and adaptations to the provisions of any law in force in the territory of India to bring it in accordance with the provisions of the Constitution. This power under Article 372(3) was only granted to the President for three years and thus, it expired on 25 January 1953.

52Copy pinpoint52. The 1956 Constitution Amendment was introduced to make necessary amendments to the provisions of the Constitution to give effect to the reorganisation of States. Article 372A which was introduced pursuant to the 1956 Constitution Amendment confers on the President the power to make modifications and adaptations in provisions of law, in force in India immediately before the amendment, to bring it in consonance E with the provisions of the Constitution.

53Copy pinpoint53. The President amended Section 3(58) of the General Clauses Act by the Adaptation of Laws (No. 1) Order, 1956. Subsequent to the amendment in 1956. Section 3(58) stipulates that the phrase ‘State’ with respect to any period before the commencement of the 1956 Constitution F Amendment 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 State specified in the First Schedule to the Constitution and shall include a Union Territory: “(58) “State”— (a) as respects any period before the G commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory;]” H 11 "General Clauses Act”

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54Copy pinpoint54. In Advance Insurance Corporation Limited v. A Gurudasmal,12 the question before a Constitution Bench of this Court was whether the word ‘State’ in Entry 80 of List I could be read to include Union territories. Entry 80 read as follows: “80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, B but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.” C

55Copy pinpoint55. Justice Hidayatullah writing for the Constitution Bench rejected the argument that the amended definition of ‘State’ under General Clauses Act will not apply to the interpretation of provisions of the Constitution. He observed that Article 372A provides the President with a fresh power of adaptation and this power is equal and analogous to the power that the President held under Article 372(2). This Court held that unless the D context otherwise requires, the definition provided under the General Clauses Act and as modified by the order under Article 372A shall be applied.

56Copy pinpoint56. However, a separate Constitution Bench of this Court in Shiv Kirpal Singh v. VV Giri,13 held that definitions under the General Clauses E Act as modified by the President under the adaptation order by virtue of the power conferred under Article 372A do not apply to the interpretation of the Constitution. In this case, the issue was whether the phrase “elected members of the Legislative Assemblies of the States” in Article 54 (which constitutes the electoral college for the election of the President) would include the elected members of the Legislative Assemblies of Union territories. This Court answered in the negative. This Court held that the modifications under Article 372A was limited only to the interpretation of laws of Parliament and would not apply to the interpretation of the Constitution because Article 367 stipulates that the General Clauses Act shall apply to the interpretation of the Constitution, subject to such adaptations made under Article 372. The provision does not provide that the interpretation must also be subject to the adaptation made under Article 372A. Parliament responded to the anomaly created by the 12 (1970) 1 SCC 633 13 AIR 1970 SC 2097 H

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A judgment in Shiv Kirpal Singh (supra), and inserted an Explanation to Article 54 by the Constitution (Seventeenth Amendment) Act 1992. The Explanation clarifies that the reference to ‘State’ in Articles 54 and 55 would include the National Capital Territory of Delhi and the Union Territory of Pondicherry for constituting the electoral college for the election of the President. In Shiv Kirpal Singh (supra),this Court did not refer to the decision in Advance Insurance (supra). Thus, the decision in Shiv Kirpal Singh is per incuriam to the extent of interpretation of Article 372A.

57Copy pinpoint57. The provisions of the General Clauses Act as modified by the President in exercise of the power under Article 372A shall apply to the interpretation of the Constitution. It cannot be held otherwise merely because Article 367 does not refer to Article 372A. To interpret Article 367 in such a manner would render Article 372A and the amendments in the Constitution by the 1956 Constitution Amendment otiose. The power to make adaptations and modifications was granted to the President by D Article 372A to bring the provisions of law in accordance with the Constitution, as amended by the 1956 Constitution amendment. If Article 367 is interpreted as excluding modifications under Article 372A, there would be an apparent inconsistency between the interpretation of the Constitution and the interpretation of statutes. While in the case of the former, the definition of State prior to the 1956 amendment would apply, E in the case of the latter, the definition as amended by the 1956 amendment would apply. Thus, a literal interpretation of Article 367 would render the Constitution unworkable and would not give effect to the 1956 Constitution Amendment. This Court must render a purposive interpretation of Article 367. Article 367 must be read to mean that the F General Clauses Act, as amended by adaptation and modification orders under Article 372 and Article 372A shall apply to the interpretation of the Constitution, unless the context requires. Thus, unless the context otherwise requires, the term “State” in the Constitution must be read to include Union territories. Accordingly, we agree with the interpretation of Article 367 rendered by this Court in Advance Insurance (supra). G

58Copy pinpoint58. The findings in Advance Insurance (supra)were later reiterated by this Court in Prem Kumar Jain (supra). In Prem Kumar Jain (supra), a four-Judge Bench of this Court held that Article 372A is a special provision introduced to make the 1956 Constitution amendment workable: H

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[DR. DHANANJAYA Y CHANDRACHUD, CJI]

“7. [...] The definition of the expression “State” as it stood before A November 1, 1956, became unsuitable and misleading on the coming into force of the Constitution (Seventh Amendment) Act, 1956, from November 1, 1956, and it will, for obvious reasons, be futile to contend that it should have continued to be applicable for all time to come and remained “the final definition of ‘State’” B merely because the period of three years provided by clause (3)(a) of Article 372 of the Constitution expired and was not extended by an amendment of that clause, or because Article 367(1) was not amended by the Seventh Amendment Act “to say that adaptations made in the General clauses Act otherwise than those made under Article 372(2) would be applicable to the interpretation C of the Constitution”. [...] It was a special provision, and it was meant to serve the purpose of making the Seventh Amendment Act workable. As has been held by this Court in Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal [(1970) 1 SCC 633 : (1970) 3 SCR 881] , Article 372-A gave a fresh power to the D President which was equal and analogous to the power under Article 372(2).”

59Copy pinpoint59. We shall now deal with the decisions of this Court which have held that the expression ‘State’ in Article 246 does not include a Union Territory. In T.M.Kanniyan v. CIT14,, a Constitution Bench of this Court discussed the applicability of Section 3(58) of the General Clauses Act E 1897 to Article 246, and held that the inclusive definition of ‘State’ under the General Clauses Act would not apply to Article 246. Such an interpretation, it was held, would be repugnant to the subject and context of Article 246: “4. Parliament has plenary power to legislate for the Union F territories with regard to any subject. With regard to Union territories there is no distribution of legislative power. Article 246(4) enacts that “Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in G the state list.” R.K. Sen v. Union it was pointed out that having regard to Article 367, the definition of “State” in Section 3(58) of the General clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or 14 (1968) 2 SCR 103 H

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A context. Under that definition, the expression “State” as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 “shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory”. But this inclusive definition is repugnant to the subject and context of Article B 246.There, the expression “States” means the State specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union territories. That is why Parliament is given power by Article 246(4) to legislate even with respect to matters enumerated in the State List. If the inclusive definition of “State” in Section 3(58) of the General Clauses Act were to apply to Article 246(4), Parliament would have no power to legislate for the Union territories with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Article 239-A for the Union territories, there would be no legislature competent to legislate on those matters; moreover, for certain territories such as the Andaman and Nicobar Islands no legislature can be created under Article 239-A, and for such territories there can be no authority competent to legislate with respect to matters, enumerated in the State List. Such a construction is repugnant to the subject and context of Article 246.” F (emphasis supplied)

60Copy pinpoint60. The position that Section 3(58) of the General Clauses Act is inapplicable to Article 246 was reiterated by a nine Judge Bench of this Court in NDMC v. State of Punjab15. The Seventh Schedule was G inserted under Article 246. In view of the position laid down in Kanniyan (supra) and NDMC (supra), the word “State” used in entries in the Seventh Schedule would also not include Union Territories. Thus, the legislative competence of NCTD would not extend to entries which mention ‘State’. The usage of the phrase “insofar as such matter is

H 15 1997 (7) SCC 339