Holding

The Government of NCT of Delhi has legislative and executive control over services (Entry 41) except for matters relating to public order, police and land, and the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in those matters.

Summary

The Supreme Court examined a 2015 Union Ministry notification that gave the Lieutenant Governor of Delhi control over "services" in addition to public order, police and land. The Court held that, under Article 239AA(3)(a), the Legislative Assembly of the National Capital Territory of Delhi (NCTD) has legislative and co‑extensive executive authority over services (Entry 41 of the State List) except those linked to public order, police and land. Consequently, the Lieutenant Governor must act on the aid and advice of the Council of Ministers of NCTD for matters within its legislative competence, and any reference to the Lieutenant Governor in service rules is to be read as acting on behalf of the GNCTD. The phrase "insofar as any such matter is applicable to Union Territories" is interpreted inclusively, and "subject to the provisions of this Constitution" guides rather than limits NCTD's powers. The Court rejected the Union's reliance on the Balakrishnan Committee report and affirmed that Part XIV applies to Union territories, giving NCTD control over services.

Issues considered

The scope of legislative and executive power of NCTD versus the Union over "services" (Entry 41) under Article 239AA(3)(a)
The interpretation of the phrase "insofar as any such matter is applicable to Union Territories" in Article 239AA(3)(a)
The meaning of "Subject to the provisions of this Constitution" in Article 239AA(3)
Whether the Lieutenant Governor can exercise independent control over services in Delhi

Legislation cited

All India Services (Joint Cadre) Rules, 1972
Constitution of Indias. Art.162(3), s. Art.239AA(3)(a), s. Art.239AA(3)(b), s. Art.239AA(4), s. Art.239AA(7), s. Art.245(1), s. Art.246(3), s. Art.246(4), s. Art.308, s. Art.309, s. Art.312, s. Art.366(26B), s. Art.367(1), s. Art.73(1)
Constitution (One Hundred and First Amendment) Act, 2016
Constitution (Seventh Amendment) Act, 1956
Constitution (Sixty-ninth Amendment) Act, 1991
Delhi Fire Service Act, 2007
General Clauses Act, 1897s. s.3(58)
Government of National Capital Territory of Delhi Act, 1991s. s.41, s. s.44, s. s.49
Indian Administrative Service (Cadre) Rules, 1954s. Rule 11A, s. Rule 2(a), s. Rule 2(b), s. Rule 2(c), s. Rule 2(d), s. Rule 3, s. Rule 5, s. Rule 7
Transaction of Business Rules, 1993

Subjects

Article 239AAservicesEntry 41National Capital Territory of Delhilegislative competenceexecutive powerLieutenant GovernorUnion Territoryfederalismcooperative federalism

Judgment

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

GOVERNMENT OF NCT OF DELHI A
v.
UNION OF INDIA
(Civil Appeal No. 2357 of 2017)
MAY 11, 2023 B
[DR. DHANANJAYA Y CHANDRACHUD, CJI, M R SHAH,
KRISHNA MURARI, HIMA KOHLI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Constitution of India: Seventh Schedule – List II, Entry 41 –
C
Art.239AA(3(a)) – NCT Delhi – Control Over Services – Distribution
of Power Between Union and State – IAS (Cadre) Rules, 1954 –
The Indian Administrative Service (Fixation of Cadre Strength)
Regulations, 1955 – r.2(c) – All India Services (Joint Cadre) Rules
1972 – Union Ministry of Home Affairs issued a notification dated
21 May 2015 which provided that the Lieutenant Governor of NCT D
Delhi shall exercise control over “services”, in addition to “public
order”, “police”, and “land” – Notification was challenged before
the High Court which in turn upheld the constitutionality of the
notification – High Court declared that “the matters connected with
‘Services’ fall outside the purview of the Legislative Assembly of
E
NCT of Delhi” – On appeal being filed, two judge bench of this
court delivered a split verdict – Hence, the question came for
consideration before the Constitution Bench – Held: The references
to “State Government” in relevant Rules of All India Services or
Joint Cadre Services, of which National Capital Territory of Delhi
(NCTD) is a part or which are in relation to NCTD, shall mean the F
Government of NCTD – 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 – It is the
responsibility of the government of NCTD to give expression to the
G
will of the people of Delhi who elected it – Therefore, the ideal
conclusion would be that Government of National Capital Territory
of Delhi (GNCTD) ought to have control over “services”, subject
to exclusion of subjects which are out of its legislative domain –
NCTD has already exercised its legislative power relating to Entry
41 of the State List – NCTD has legislative and executive power H
493
494 SUPREME COURT REPORTS [2023] 9 S.C.R.

A with respect to “services” under Entry 41 – The legislative and
executive power of control of NCTD over Entry 41 shall not extend
over to services related to “public order”, “police”, and “land” –
However, legislative and executive power over services such as
Indian Administrative Services, or Joint Cadre services, which are
B relevant for the implementation of policies and vision of NCTD in
terms of day-to-day administration of the region shall lie with NCTD
– Officers thereunder may be serving in NCTD, even if they were
not recruited by NCTD – The Lieutenant Governor is bound by the
aid and advice of the Council of Ministers of NCTD in relation to
matters within the legislative scope of NCTD – As NCTD has
C legislative power over “services” (excluding ‘public order’, ‘police’,
and ‘land’) under Entry 41 in List II, the Lieutenant Governor shall
be bound by the decisions of GNCTD on services – Any reference
to “Lieutenant Governor” over services (excluding services related
to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean
D Lieutenant Governor acting on behalf of GNCTD.
Constitution of India: Article 239AA, 239AA(3(b)) &
239AA(7) – Interpretation of phrase “insofar as such matter is
applicable to Union Territories” in Art.239AA – Held: The intent
and purpose of Article 239AA(3(b)) and Article 239AA(7) is to confer
E an expanded legislative competence upon Parliament, when it comes
to Government of National Capital Territory of Delhi (GNCTD)
clearly since it is the capital of the country and therefore, must be
dealt with different considerations – To interpret the phrase “insofar
as any such matter is applicable to Union territories” in a restrictive
F manner would limit the legislative power of the elected members of
the assembly – Thus, the legislative competence of National Capital
Territory of Delhi (NCTD) must be interpreted to give full impetus
to the will of the electorate – 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 – The
G phrase ‘insofar as any such matter is applicable to Union Territories’
in Article 239AA(3) cannot be read to further exclude the legislative
power of NCTD over entries in the State List or Concurrent List,
over and above those subjects which have been expressly excluded
– Union Territories – NCT of Delhi.
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 495

Constitution of India – Art. 239AA – Phrase “Subject to the A
provisions of this Constitution” in Article 239AA(3) – Held: With
reference to the phrase “Subject to the provisions of this
Constitution” in Article 239AA(3), the legislative power of National
Capital Territory of Delhi (NCTD) is to be guided, and not just
limited, by the broader principles and provisions of the Constitution.
B
Constitution of India – Federalism and Democracy –
Cooperative Federalism – Held: Our model of federalism expects a
sense of cooperation between the Union at the centre, and the
regional constitutionally recognised democratic units – The Union
and National Capital Territory of Delhi (NCTD) need to cooperate
in a similar manner to the Union and the States – The interpretation C
of the Constitution must enhance the spirit of federalism and
democracy together – In the spirit of cooperative federalism, the
Union of India must exercise its powers within the boundaries created
by the Constitution – NCTD, having a sui generis federal model,
must be allowed to function in the domain charted for it by the D
Constitution – The Union and NCTD share a unique federal
relationship – It does not mean that NCTD is subsumed in the unit
of the Union merely because it is not a “State”.
Constitution of India – Interpretation – Held: The design of
the Constitution is such that it accommodates the interests of different E
regions – While providing a larger constitutional umbrella to
different states and Union territories, it preserves the local
aspirations of different regions – “Unity in diversity” is not only
used in common parlance, but is also embedded in our constitutional
structure – The interpretation of the Constitution must give
substantive weight to the underlying principles. F

Constitution of India: Part XIV – Arts. 308 & 367 – General
Clause Act, 1897 – s.3(58) – Inclusion of Union Territory – In the
Definition of State – Whether Union Territory is a State for the
Purpose of Part XIV of Constitution of India – Held: s.3(58) of the
General Clauses Act, by virtue of Art.367(1) of the Constitution, G
applies to the construction of the expression ‘State’ in the
Constitution, unless there is something repugnant in the subject or
context of a particular provision of the Constitution – There is
nothing in the subject or context of Part XIV of the Constitution
which would exclude its application to Union territories – Rather, H
496 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the application of the inclusive definition of “State” as provided
under Clause 3(58) would render the constitutional scheme
envisaged for Union Territories workable.
Union Territories – There does not exist a homogeneous class
of Union Territories with similar governance structures.
B
Union Territories – Constitution of India – Art. 239AA –
National Capital Territory of Delhi (NCTD) – Held: Is not similar to
other Union Territories – By virtue of Article 239AA, NCTD is
accorded a “sui generis” status, setting it apart from other Union
Territories – The Legislative Assembly of NCTD has competence
C over entries in List II and List III except for the expressly excluded
entries of List II – In addition to the Entries in List I, 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).
D Union Territories – National Capital Territory of Delhi
(NCTD) – Executive power of NCTD – Held: 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
– The Union of India has executive power only over the three entries
E in List II over which NCTD does not have legislative competence –
The executive power of NCTD with respect to entries in List II and
List III shall be subject to the executive power expressly conferred
upon the Union by the Constitution or by a law enacted by
Parliament.

F Union Territories – National Capital Territory of Delhi
(NCTD) – Legislative and executive power over “Services” – Held:
NCTD has legislative and executive power over “Services”, that is,
Entry 41 of List II of the Seventh Schedule because: (i) The definition
of State under Section 3(58) of the General Clauses Act 1897 applies
to the term “State” in Part XIV of the Constitution – Thus, Part XIV
G is applicable to Union territories; and (ii) The exercise of rule-
making power under the proviso to Article 309 does not oust the
legislative power of the appropriate authority to make laws over
Entry 41 of the State List – Constitution of India – Art. 309 and
Seventh Schedule, List II, Entry 41.
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 497

Answering the reference, the Court A
HELD: 1.1 The legislative and executive power of NCTD
over Entry 41 shall not extend over to services related to “public
order”, “police”, and “land”. However, legislative and executive
power over services such as Indian Administrative Services, or
Joint Cadre services, which are relevant for the implementation B
of policies and vision of NCTD in terms of day-to-day
administration of the region shall lie with NCTD. Officers
thereunder may be serving in NCTD, even if they were not
recruited by NCTD. In such a scenario, it would be relevant to
refer, as an example, to some of the Rules, which clearly
demarcate the control of All India or Joint-Cadre services between C
the Union and the States. NCTD, similar to other States, also
represents the representative form of government. The
involvement of the Union of India in the administration of NCTD
is limited by constitutional provisions, and any further expansion
would be contrary to the constitutional scheme of governance. D
[Para 160][579-H; 580-A-C]
1.2 The example of the Indian Administrative Service
(Cadre) Rules, 1954, which deal with the posting of IAS Officers.
Rule 2(a) defines ‘cadre officer’ to mean a member of IAS. Rule
2(b) defines ‘Cadre post’ as any post specified under item I of E
each cadre in the schedule to the Indian Administrative Service
(Fixation of Cadre Strength) Regulations, 1955. Rule 2(c) defines
‘State’ to mean a State specified in the First Schedule of the
Constitution and includes a Union Territory. Rule 2(d) defines
‘State Government concerned’, in relation to a Joint cadre, to
mean the Joint Cadre Authority. The constitution and composition F
of a ‘Joint Cadre Authority’ is understood with reference to the
All India Services (Joint Cadre) Rules 1972. The 1972 Rules
apply to a “Joint Cadre constituted for any group of States other
than the Joint Cadre of Union Territories.” Rule 3 of the IAS
(Cadre) Rules 1954 provides for the constitution of cadres for G
each State or group of States “as a ‘State Cadre’ or, as the case
may be, a ‘Joint Cadre’”. Rule 5 empowers the Central
Government to allocate cadre officers to various cadres. In terms
of Rule 5(1), the allocation of cadre officers to the various cadres

H
498 SUPREME COURT REPORTS [2023] 9 S.C.R.

A shall be made by the Central Government in consultation with
the State Government or the State Government concerned. Rule
7 stipulates that all appointments to cadre posts shall be made
“on the recommendation of the Civil Services Board” — by the
State Government “in the case of a state cadre”, and by the State
Government concerned, as defined in Rule 2(d), “in the case of a
B
joint cadre”. Under Rule 11A, the “Government of that State” is
provided with powers to take decisions under Rule 7 (and other
mentioned rules) in relation to the members of the Joint Cadre
Service “serving in connection with the affairs of any of the
Constituent States”. A combined reading of Rules 2, 7, and 11A
C indicates that the postings within the State Cadre as well as Joint
Cadre of a Constituent State shall be made by the “Government
of that State”, that is, by the duly elected government. In our
case, it shall be the Government of NCTD. It is accordingly held
that references to “State Government” in relevant Rules of All
India Services or Joint Cadre Services, of which NCTD is a part
D
or which are in relation to NCTD, shall mean the Government of
NCTD. [Para 161][580-C-H; 581-A-B]
1.3 In light of Article 239AA and the 2018 Constitution
Bench judgment, the Lieutenant Governor is bound by the aid
and advice of the Council of Ministers of NCTD in relation to
E matters within the legislative scope of NCTD. As NCTD has
legislative power over “services” (excluding ‘public order’,
‘police’, and ‘land’) under Entry 41 in List II, the Lieutenant
Governor shall be bound by the decisions of GNCTD on services.
To clarify, any reference to “Lieutenant Governor” over services
F (excluding services related to ‘public order’, ‘police’ and ‘land’)
in relevant Rules shall mean Lieutenant Governor acting on behalf
of GNCTD. [Para 162][581-C-D]
2. In view of the discussion above, the conclusions are as
follows: (a) There does not exist a homogeneous class of Union
G Territories with similar governance structures; (b) NCTD is not
similar to other Union Territories. By virtue of Article 239AA,
NCTD is accorded a “sui generis” status, setting it apart from
other Union Territories; (c) The Legislative Assembly of NCTD

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 499

has competence over entries in List II and List III except for A
the expressly excluded entries of List II. In addition to the Entries
in List I, 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); (d) The executive power of NCTD
B
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;
(e) The Union of India has executive power only over the three
entries in List II over which NCTD does not have legislative
competence; (f) The executive power of NCTD with respect to
entries in List II and List III shall be subject to the executive C
power expressly conferred upon the Union by the Constitution
or by a law enacted by Parliament; (g) The phrase ‘insofar as any
such matter is applicable to Union Territories’ in Article 239AA(3)
cannot be read to further exclude the legislative power of NCTD
over entries in the State List or Concurrent List, over and above D
those subjects which have been expressly excluded; (h) With
reference to the phrase “Subject to the provisions of this
Constitution” in Article 239AA(3), the legislative power of NCTD
is to be guided, and not just limited, by the broader principles
and provisions of the Constitution; and (i) NCTD has legislative
and executive power over “Services”, that is, Entry 41 of List II E
of the Seventh Schedule because: (i) The definition of State under
Section 3(58) of the General Clauses Act 1897 applies to the
term “State” in Part XIV of the Constitution. Thus, Part XIV is
applicable to Union territories; and (ii) The exercise of rule-
making power under the proviso to Article 309 does not oust the F
legislative power of the appropriate authority to make laws over
Entry 41 of the State List. [Para 164][581-E-H; 582-A-F]
Shiv Kirpal Singh v. VV Giri AIR 1970 SC 2097 : [1971]
2 SCR 197 – held per incuriam.
NDMC v. State of Punjab 1997 (7) SCC 339 : [1996] G
10 Suppl. SCR 472; SR Bommai v.Union of India (1994)
3 SCC 1 : [1994] 2 SCR 644 – followed.
Advance Insurance Corporation Limited v. Gurudasmal
(1970) 1 SCC 633 : [1970] 3 SCR 881; T.M.Kanniyan
H
500 SUPREME COURT REPORTS [2023] 9 S.C.R.

A v. CIT [1968] 2 SCR 103; Rajendra Diwan v. Pradeep
Kumar Ranibala [2019] 17 SCR 1089; RS Nayak v. AR
Antulay (1984) 2 SCC 183 : [1984] 2 SCR 495; Union
of India v. Prem Kumar Jain (1976) 3 SCC 473 : [1976]
Suppl. SCR 166 – relied on.
B IK Saksena v. State of Madhya Pradesh (1976) 4 SCC
750 : [1976] 3 SCR 237; Union of India v. Tulsiram
Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131;
Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
: [2017] 5 SCR 160; Amarinder Singh v. Punjab Vidhan
C Sabha (2010) 6 SCC 113 : [2010] 4 SCR 1105;
Secretary, Jaipur Development Authority v. Daulat Mal
Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; SK
Gupta v. KP Jain (1979) 3 SCC 54 : [1979] 2
SCR 1184; Ichchapur Industrial Coop. Society
Ltd. v. Competent Authority, Oil & Natural Gas
D Commission (1997) 2 SCC 42 : [ 1996] 10 Suppl. SCR
416; Ratnaprova Devi v. State of Orissa [1964] 6 SCR
301; State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh [1952] SCR 889; State of Haryana v. Chanan
Mal (1977) 1 SCC 340 : [1976] 3 SCR 688; A.B.
E Krishna v. State of Karnataka (1998) 3 SCC 495 :
[1998] 1 SCR 157; B.S. Vadera v. Union of India [1968]
3 SCR 575 and State of Gujarat v. Raman Law Keshav
Lal (1980) 4 SCC 653 : [1981] 1 SCR 144 – referred
to.
F Case Law Reference
[1976] Suppl. SCR 166 relied on Para 8(f)
[1970] 3 SCR 881 relied on Para 54
[1971] 2 SCR 197 held per incuriam Para 56
G
[1968] 2 SCR 103 relied on Para 59
[1996] 10 Suppl. SCR 472 followed Para 60
[2019] 17 SCR 1089 relied on Para 66
[1994] 2 SCR 644 followed Para 74
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 501

[1985] 2 Suppl. SCR 131 referred to Para 102 A
[2017] 5 SCR 160 referred to Para 102
[2010] 4 SCR 1105 referred to Para 102
[1996] 6 Suppl. SCR 584 referred to Para 104
[1984] 2 SCR 495 relied on Para 119 B

[1979] 2 SCR 1184 referred to Para 132
[1996] 10 Suppl. SCR 416 referred to Para 132
[1964] 6 SCR 301 referred to Para 132
C
[1952] SCR 889 referred to Para 139
[1976] 3 SCR 688 referred to Para 140
[1998] 1 SCR 157 referred to Para 141
[1968] 3 SCR 575 referred to Para 141
D
[1981] 1 SCR 144 referred to Para 149
[1976] 3 SCR 237 referred to Para 158
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357
of 2017.
E
From the Judgment and Order dated 04.08.2016 of the High Court
of Delhi at New Delhi in W.P. (C) No. 5888 of 2015.
Dr. A.M. Singhvi, Rahul Mehra, Dr. Abhishek Manu Singhvi, Rahul
Mehra, Sr. Advs., Shadan Farasat, Chirag M. Shroff, Prateek Chaddha,
Chaitanya Gosain, Anand Thumbayil, Shailendra P. Singh, Sushant Mehra, F
Shadan Farasat, Prateek Chadha, Amit Bhandari, Gautam Bhatia, Shourya
Dasgupta, Ms. Hrishika Jain, Aman Naqvi, Siddharth Seem, Ms. Ashima,
Ms. Mreganka Kukreja, Shadan Farasat, Advs. for the Appellant.
Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian, Sr.
Adv., Rajat Nair, Kanu Agarwal, Saurabh Mishra, Rajesh Kumar Singh, G
Padmesh Mishra, Arkaj Kumar, Ms. Tanya Aggarwal, Gaurang Bhushan,
Ms. Harshita Sukhija, Shivam Shukla, Nakul Rai, Ms. Ashima Gupta,
Arvind Kumar Sharma, Gagan Gupta, K.R. Sasiprabhu, Advs. for the
Respondent.
H
502 SUPREME COURT REPORTS [2023] 9 S.C.R.

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.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 503
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

(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
1. 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
504 SUPREME COURT REPORTS [2023] 9 S.C.R.

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”.
2. “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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 505
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

3. The above notification was assailed through a batch of petitions A
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
B
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.
4. 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
506 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
F 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
G 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 507
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Lieutenant Governor shall refer it to the President for decision A
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
B
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.”
5. 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
508 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
B this judgment.
6. 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
C differed on whether “services” are excluded in view of Article
239AA(3)(a) from the legislative and executive domain of GNCTD.7
7. The matter fell for consideration before a Bench of three Judges.
There, the Union argued that the 2018 Constitution Bench did not analyze
two crucial phrases in Article 239AA(3)(a): (i) “in so far as any such
D 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
E 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
F 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”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 509
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

10. We therefore deem it appropriate to refer the above limited A
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 B
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
8. 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
510 SUPREME COURT REPORTS [2023] 9 S.C.R.

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.
G 9. 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 511
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

centralized forms of government, the power to control “services” has A
been devolved upon the local government of the National Capital Territory.
10. Mr. Tushar Mehta, learned Solicitor General, made the
following submissions on behalf of the Union of India:
a. Entry 41 of List II is not available to Union Territories, as it
cannot have either a State Public Service or a State Public 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.
11. The arguments advanced indicate that this Constitution Bench
is called upon to decide the limited question of whether NCTD has the H
512 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
12. The 2018 Constitution Bench decision held that NCTD is not
D
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
E 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 513
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Delhi a sui generis status from the other Union Territories as well A
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 B
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

13. 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 E
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 F
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 […]”
14. 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
514 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
D 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
E
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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 515
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

15. 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 F
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 G
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
516 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 16. Thus, it is evident from the 2018 Constitution Bench judgment
that the constitutional status of NCTD is not similar to other Union
Territories, which are covered under Part VIII of the Constitution.
17. The judgment of the majority in the 2018 Constitution Bench
decision underscores the importance of interpreting the Constitution to
B 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
C 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
18. 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
F 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
G
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
H entries in List II for States, it has the power to make laws on entries in
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 517
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

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
19. The 2018 Constitution Bench judgment held that the executive
power of NCTD is co-extensive with its legislative power, that is, it shall
extend to all matters with respect to which it has the power to legislate.
Article 239AA(4) provides that the Council of Ministers shall aid and
advise the Lieutenant Governor in the exercise of the functions of the
latter in relation to matters with respect to which the Legislative Assembly 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
518 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
D 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
E 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.”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 519
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

20. 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)
21. 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
22. 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”
23. 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
520 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 24. 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
D 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
E 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 521
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

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 D
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 E
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 F
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
25. 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
522 SUPREME COURT REPORTS [2023] 9 S.C.R.

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)
26. 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.
27. The judgment of the majority did not make a direct observation
on the interpretation of the said phrase. However, the reasoning indicates
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 523
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

that the phrase was to be considered in a broader sense. As noted A
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 B
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 C
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.
28. 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
29. 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
524 SUPREME COURT REPORTS [2023] 9 S.C.R.

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)
30. 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 525
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

31. 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
32. 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 C
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 D
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
33. 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.
34. 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
526 SUPREME COURT REPORTS [2023] 9 S.C.R.

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.”
35. 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.
36. By the Constitution (Sixty-ninth Amendment) Act 199110,
Article 239AA was inserted in the Constitution. It introduced a unique
D 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
E 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)
37. 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”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 527
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

38. 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.
39. 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)
40. 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
528 SUPREME COURT REPORTS [2023] 9 S.C.R.

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”
41. The design of our Constitution is such that it accommodates
the interests of different regions. While providing a larger constitutional
umbrella to different states and Union territories, it preserves the local
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.
42. Therefore, we are unable to agree with the argument of the
H Solicitor General that the legislative power of NCTD does not extend to
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 529
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

those subjects which are not available to Union Territories as a class A
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 B
national interests
43. 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 C
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
44. 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
530 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
B
amendment of the Constitution for the purposes of Article 368,which
deals with the power and procedure to amend the Constitution. Thus,
Article 239AA(3) balances between the interest of NCTD and the Union
of India.
45. This constitutional balance has been analyzed in the concurring
C 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.”
F 46. 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
G 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
H with different considerations. In this manner, Parliament acting in its
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 531
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

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
47. 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.
48. The power of Parliament and legislatures of States to legislate
upon entries in the Union List, State List and Concurrent List flows from
Article 246 of the Constitution. Article 246(3) confers exclusive power
to the legislatures of States to make laws for that State with respect to E
the matters enumerated in the State List. Article 246(4) provides that
Parliament has the power to make laws with respect to any matter for
any part of the territory of India not included in a State notwithstanding
that such matter is a matter enumerated in the State List.
49. Article 366 provides meanings of various expressions used in F
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
532 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 50. 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.”
C 51. 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.

D 52. 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.
53. 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”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 533
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

54. 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
55. 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.
56. 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 F
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 G
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
534 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
B
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.
57. The provisions of the General Clauses Act as modified by the
President in exercise of the power under Article 372A shall apply to the
C 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
58. 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 535
[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).”
59. 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
536 SUPREME COURT REPORTS [2023] 9 S.C.R.

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
C 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
D
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
E 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)
60. 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 537
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

applicable to Union Territories” was included to avert such a consequence. A
The phrase has extended the legislative power of NCTD to all the entries
in List II, which use the word “State”.
61. Any amendment to the State List as well as the Concurrent
List, being an amendment to the Seventh Schedule must be in accordance
with Article 368 of the Constitution. The proviso to Article 368(2) of the B
Constitution stipulates that an amendment to the Seventh Schedule would
need a special majority of two-thirds of the members of each House of
Parliament present and voting. The amendment would also need to be
ratified by the legislatures of not less than one-half of the States. If the
phrase “insofar as such matter is applicable to Union Territories” was
not included in Article 239AA, Parliament and the Legislature of States C
would have been required to amend all entries in the Seventh Schedule
where the term “State” is used to “State and Union territories”. This
would have required a special majority. It was to avoid this time consuming
process that the expansive phrase of “insofar as such matter is applicable
to Union Territories” was used in Article 239AA. D
62. Article 239AA expressly excludes entries 1,2, and 18 of List
II from the ambit of the legislative competence of the Legislative
Assembly of NCTD. Article 239AA also stipulates that the legislative
power of NCTD is excluded with respect to entries 64,65, and 66 of List
II insofar as they relate to entries 1,2, and 18. Entry 1 deals with public E
order, Entry 2 deals with police, and Entry 18 deals with Land. Entry 64
deals with “offences against laws with respect to any of the matters in
this List”, Entry 65 states “jurisdiction and powers of all courts, except
the Supreme Court, with respect to any of the matters in this List”, and
Entry 66 states “fees in respect of any of the matters in this List, but
not including fees taken in any court”. The exclusion of entries 64,65, F
and 66 to the extent that it relates to entries 1,2, and 18 from the legislative
competence of NCTD indicates that the governance structure envisaged
in Article 239AA for NCTD was only to exclude the specific entries 1,2,
and 18 from its legislative competence. To read the phrase “insofar as
such matter is applicable to the Union Territories” as introducing an G
implied exclusion of the legislative powers of NCTD with respect to
certain other entries would be contrary to the plain meaning of the
provision.
63. Article 239AA establishes a Legislative Assembly for NCTD.
The seats in the Assembly are filled by a direct election from the H
538 SUPREME COURT REPORTS [2023] 9 S.C.R.

A constituencies of NCTD. The Legislative Assembly of NCTD embodies
the constitutional principle of representative democracy similar to the
Legislative Assembly of the State. The members of the Legislative
Assembly of NCTD are selected by the electorate of Delhi to represent
their interests. Article 239AA must be interpreted to further the principle
of representative democracy.16 To interpret the phrase “insofar as any
B
such matter is applicable to Union territories” in a restrictive manner
would limit the legislative power of the elected members of the assembly.
The members of the Legislative Assembly have been chosen by the
electorate to act in their stead. Thus, the legislative competence of NCTD
must be interpreted to give full impetus to the will of the electorate.
C 64. We find that the phrase ‘insofar as any such matter is applicable
to Union Territories’ in Article 239AA(3) cannot be read to further
exclude the legislative power of NCTD over entries in the State List or
Concurrent List, over and above those subjects which have been
expressly excluded by the provision.
D G. “Subject to the provisions”: A limitation?
65. It has been emphasized by the Union of India that Article
239AA not only restricts the powers of the Legislative Assembly of
NCTD through the phrase “insofar as any such matter is applicable to
Union Territories” but also through the restrictive phrase of “Subject to
E the provisions of this Constitution”.
66. The phrase “Subject to the provisions of this Constitution” is
not unique to Article 239AA. It has been used in twenty-two provisions
of the Constitution. Notably, the phrase has also been used in the
provisions dealing with the legislative power of Parliament and the State
F Assemblies (Article 245)17 as well as in the provisions dealing with the
executive power of the Union (Article 73(2))18 and of the States (Article
162(3))19. The phrase is used to indicate that the legislative power and
16
See Justice Chandrachud’s opinion in the 2018 Constitution Bench
17
245. Extent of laws made by Parliament and by the Legislatures of States - (1) Subject
G to the provisions of this Constitution, Parliament may make laws for the whole or any
part of the territory of India, and the Legislature of a State may make laws for the whole
or any part of the State. […]
18
73. Extent of executive power of the Union - (1) Subject to the provisions of this
Constitution, the executive power of the Union shall extend – […].
19
162. Extent of executive power of State - Subject to the provisions of this Constitution,
the executive power of a State shall extend to the matters with respect to which the
H Legislature of the State has power to make laws: […]
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 539
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

competence exercised by a legislature must be within the limits A
circumscribed by the Constitution. Those boundaries may differ on a
case to case basis. For instance, a law made by a legislature cannot
violate the fundamental rights of citizens. Another instance is that
Parliament can only enact laws on subjects within its legislative
competence. Furthermore, any law made by Parliament or a State
B
Legislature shall be subject to the power of judicial review under Article
32 or Article 226. A Constitution Bench of this Court in the case of
Rajendra Diwan v. Pradeep Kumar Ranibala20 held:
“Parliament and the State Legislatures derive their power to make
laws from Article 245(1) of the Constitution of India and such
power is subject to and/or limited by the provisions of the C
Constitution. While Parliament can make law for the whole or
any part of the territory of India, the State Legislature can only
make laws for the State or any part thereof, subject to the
restrictions in the Constitution of India…
While Parliament has exclusive power Under Article 246(1) of D
the Constitution to make laws with respect to the matters
enumerated in the Union List, the State Legislature has exclusive
power to make laws with respect to matters enumerated in the
State List, subject to Clauses (1) and (2) of Article 246. Along
with the Union Legislature, the State Legislature is also competent E
to enact laws in respect of the matters enumerated in the
Concurrent List, subject to the provisions of Article 246(1)…
While the widest amplitude should be given to the language used
in one entry, every attempt has to be made to harmonize its
contents with those of other Entries, so that the latter may F
not be rendered nugatory.”
(emphasis supplied)
The judgment indicates that the law-making power of even
Parliament and State legislatures under Article 245(1) is not absolute. It
has to be within the confines of the Constitution. DD Basu, in the G
Commentary on the Constitution of India discusses the constitutional
limitations upon legislative power:21
20
[2019] 17 SCR 1089
21
Dr DD Basu, Commentary on the Constitution of India, 8th Edn., 2012, Vol. 8, pp.
8749-8753 H
540 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “As the opening words of Art. 245(1) say, the legislative powers
of both the Union and State Legislatures are subject to the other
provisions of the Constitution, even though their powers are plenary
within the spheres assigned to them respectively by the
Constitution…
B Whether a law has transgressed any of these limitations is to be
ascertained by the Court and if it is found so to transgress, the
Court will declare the law to be void.
These limitations fall under various categories:
I. The first and foremost is the question of vires or legislative
C competence…
II. Apart from want of legislative competence, a law may be invalid
because of contravention of some positive limitation imposed by
the Constitution. In such cases, even though the Legislature had
the competence to make a law with respect to the subject-matter
D of the impugned law, it became invalid because of contravention
of some specific prohibition or limitation imposed by the
Constitution.
Such limitations fall under two heads-
(i) The Fundamental Rights contained in Part III. The effects
E
of the contravention of a Fundamental Right have been fully
discussed under Art. 13.
[…]
(ii) Not merely the provisions included in Part III, but any other
F provision contained in the Constitution (even though it does not
confer
any fundamental right) constitutes a limitation upon legislative
power on two conditions:
(a) That the provision in question is justiciable, that is to
G say, intended to be and capable of being judicially enforced.
(b) That the provision is mandatory, e.g., Arts. 255: 286,
301, 303-4.
III. In the case of State legislation, there are further limitations,
viz., that (a) its operation cannot extend beyond the boundaries of
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 541
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

the State, in the absence of a territorial nexus; Another limitation A
on the legislative power or a ground of unconstitutionality is that
the Legislature concerned has abdicated its essential legislative
function as assigned to it by the Constitution and has made an
excessive delegation of that power to some other body. (b) it must
be for the purposes of the State.”
B
The same meaning as referred above has to be applied to the
usage of the phrase “Subject to the provisions of this Constitution” in
Article 239AA.
67. We therefore hold that the legislative power of NCTD under
Article 239AA(3) is to be guidedby the broader principles and provisions C
of the Constitution. The said phrase in Article 239AA(3) must be
interpreted to give effect to the underlying principles in the Constitution.
It is in this backdrop that we shall consider the next submission made by
the Union.
H. The Constitution is not Unitary D
68. The Union of India has argued that the Indian Constitution is
often referred to as a federal Constitution with a strong unitary bias, and
as far as Union Territories are concerned, the Constitution is unitary in
form and in spirit. It is submitted that the generic concept of federalism,
as applicable to States cannot apply to Union Territories. Thus, it is argued E
that the phrases “Subject to the provisions of this Constitution” and “in
so far as any such matter is applicable to Union territories” are to be
interpreted accordingly.
69. To analyse the above argument, it is imperative to understand
the concept of federalism as the members of the Constituent Assembly F
envisioned. Dr. B.R. Ambedkar in one of his seminal speeches before
the Constituent Assembly explained the dual polity federal model
established under the Constitution22:
“Dual Polity under the proposed Constitution will consist of the
Union at the Centre and the States at the periphery each endowed G
with sovereign powers to be exercised in the field assigned to
them respectively by the Constitution… the Indian Constitution
proposed in the Draft Constitution is not a league of States nor

22
Constituent Assembly Debates, Vol. 7 at p. 33 (4 November 1948) H
542 SUPREME COURT REPORTS [2023] 9 S.C.R.

A are the States administrative units or agencies of the Union
Government.”
(emphasis supplied)
70. Further, when Dr. Ambedkar was questioned in the Constituent
Assembly on the centralizing tendency of the Constitution, he responded
B by saying that:23
“The States, under our Constitution, are in no way
dependent upon the Centre for their legislative or executive
authority. The Centre and the States are co-equal in this
matter... It may be that the Constitution assigns to the Centre too
C large a field for the operation of its legislative and executive
authority than is to be found in any other Federal Constitution. It
may be that the residuary powers are given to the Centre and not
to the States. But these features do not form the essence of
federalism. The chief mark of federalism, as I said lies in
D the partition of the legislative and executive authority
between the Centre and the Units by the Constitution. This
is the principle embodied in our Constitution.”
(emphasis supplied)
71. It emerges from the speeches of Dr Ambedkar in the
E Constituent Assembly that India adopted a federal model, in which the
Union and the States were meant to operate within their assigned
legislative domains. The States are not subservient to the Union. The
legislative domain of the States was exclusive, and cannot be interfered
with by the Union. This principle has been reiterated in judgments of this
F Court.
72. Justice B.P. Jeevan Reddy, in his separate opinion, in S R
Bommai v. Union of India24, where federalism was held to be part of
the basic structure, held that, the States were independent and supreme
in the sphere allotted to them, even if the Constitution has a centraizing
drift:
G
“276. The fact that under the scheme of our Constitution, greater
power is conferred upon the Centre vis-à-vis the States does not
mean that States are mere appendages of the Centre. Within the
23
Constituent Assembly Debates, Vol. 11 at p. 976 (25 November 1949)
H 24
(1994) 3 SCC 1
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 543
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

sphere allotted to them, States are supreme. The Centre cannot A
tamper with their powers. More particularly, the courts should not
adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to
the States.”
73. In terms of the above discussion in the Constituent Assembly B
and the judgment of this Court, it is clear that the Constitution provides
States with power to function independently within the area transcribed
by the Constitution. The States are a regional entity within the federal
model. The States in exercise of their legislative power satisfy the
demands of their constituents and the regional aspirations of the people
residing in that particular State. In that sense, the principles of federalism C
and democracy are interlinked and work together in synergy to secure
to all citizens justice, liberty, equality and dignity and to promote fraternity
among them. The people’s choice of government is linked with the
capability of that government to make decisions for their welfare.
74. The principles of democracy and federalism are essential D
features of our Constitution and form a part of the basic structure.25
Federalism in a multi-cultural, multi-religious, multi-ethnic and multi-
linguistic country like India ensures the representation of diverse interests.
It is a means to reconcile the desire of commonality along with the desire
for autonomy and accommodate diverse needs in a pluralistic society. E
Recognizing regional aspirations strengthens the unity of the country
and embodies the spirit of democracy. Thus, in any federal Constitution,
at a minimum, there is a dual polity, that is, two sets of government
operate: one at the level of the national government and the second at
the level of the regional federal units. These dual sets of government,
elected by “We the People” in two separate electoral processes, is a F
dual manifestation of the public will. The priorities of these two sets of
governments which manifest in a federal system are not just bound to be
different, but are intended to be different.
75. While NCTD is not a full-fledged state, its Legislative Assembly
is constitutionally entrusted with the power to legislate upon the subjects G
in the State List and Concurrent List. It is not a State under the First
Schedule to the Constitution, yet it is conferred with power to legislate
upon subjects in Lists II and III to give effect to the aspirations of the

25
SR Bommai v. Union of India, (1994) 3 SCC 1 H
544 SUPREME COURT REPORTS [2023] 9 S.C.R.

A people of NCTD. It has a democratically elected government which is
accountable to the people of NCTD. Under the constitutional scheme
envisaged in Article 239AA(3), NCTD was given legislative power which
though limited, in many aspects is similar to States. In that sense, with
addition of Article 239AA, the Constitution created a federal model with
the Union of India at the centre, and the NCTD at the regional level.
B
This is the asymmetric federal model adopted for NCTD. While NCTD
remains a Union Territory, the unique constitutional status conferred upon
it makes it a federal entity for the purpose of understanding the relationship
between the Union and NCTD. The majority in the 2018 Constitution
Bench judgment held that while NCTD could not be accorded the status
C of a State, the concept of federalism would still be applicable to NCTD:
“122.We have dealt with the conceptual essentiality of
federal cooperation as that has an affirmative role on the
sustenance of constitutional philosophy. We may further add that
though the authorities referred to hereinabove pertain to the Union
D of India and the State Governments in the constitutional sense of
the term “State”, yet the concept has applicability to the NCT
of Delhi regard being had to its special status and language
employed in Article 239AA and other articles.”
(emphasis added)
E 76. Our model of federalism expects a sense of cooperation
between the Union at the centre, and the regional constitutionally
recognised democratic units. The spirit of cooperative federalism requires
the two sets of democratic governments to iron out their differences
that arise in the practice of governance and collaborate with each other.
F The Union and NCTD need to cooperate in a similar manner to the
Union and the States. Our interpretation of the Constitution must enhance
the spirit of federalism and democracy together. This approach of
interpretation is located in the 2018 Constitution Bench judgment, wherein
the opinion of the majority held as follows:

G “284.7. Our Constitution contemplates a meaningful orchestration
of federalism and democracy to put in place an egalitarian social
order, a classical unity in a contemporaneous diversity and a
pluralistic milieu in eventual cohesiveness without losing identity.
Sincere attempts should be made to give full-fledged effect to
both these concepts”
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 545
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

77. In the spirit of cooperative federalism, the Union of India must A
exercise its powers within the boundaries created by the Constitution.
NCTD, having a sui generis federal model, must be allowed to function
in the domain charted for it by the Constitution. The Union and NCTD
share a unique federal relationship. It does not mean that NCTD is
subsumed in the unit of the Union merely because it is not a “State”. As
B
the opinion of the majority in 2018 Constitution Bench judgement held:
“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
C
Constitution.”
The interpretation of Article 239AA(3)(a) in an expansive manner
would further the basic structure of federalism.
I. Scope of Legislative and Executive Power between the
Union and NCTD D
78. Article 239AA(3)(a) indicates that the Legislative Assembly
of Delhi shall have the power to make laws for the whole or any part of
NCTD with respect to matters in the State List and the Concurrent List,
except for entries 1, 2, and 18 of the State List, and entries 64, 65 and 66
insofar as they relate to the entries 1, 2, and 18. Therefore, the legislative E
power of NCTD is limited to entries it is competent to legislate on.
79. Article 239AA(3)(b) provides that Parliament can “make laws
with respect to any matter” for a Union Territory or any part of it.
Therefore, the legislative power of Parliament shall extend to all subjects
in the State List and the Concurrent List in relation to NCTD, besides of F
course the Union List. In case of a repugnancy between a law enacted
by Parliament and a law made by Legislative Assembly of NCTD, the
former shall prevail in terms of Article 239AA(3)(d).
80. The position that emerges from Article 239AA(3) is that
NCTD has legislative power over entries in List II with limits (as G
excluded by the provision) but Parliament’s legislative power extends
to subjects in all three lists relation to NCTD. As noted previously, the
scope of division of legislative and executive powers between the Union
and NCTD fell for the consideration in the 2018 Constitution Bench
judgment. Interpreting Article 239AA(4), the 2018 Constitution Bench
H
546 SUPREME COURT REPORTS [2023] 9 S.C.R.

A judgment held that the executive power of GNCTD was co-extensive
with the legislative power of NCTD.
81. Article 73(1) of the Constitution stipulates that the executive
power of the Union shall extend to matters with respect to which
Parliament has the power to make laws. The proviso to Article 73(1)
B provides that the executive power of the Union shall not extend “in any
State” to matters with respect to which the Legislature of the State also
has power to make laws unless expressly provided in the Constitution or
by a law made by Parliament:
“Article 73. Extent of executive power of the Union- (1) Subject
C to the provisions of this Constitution, the executive power of the
Union shall extend-
To the matters with respect to which Parliament has power to
make laws;
[...]
D
Provided that the executive power referred in sub-clause (a)
shall not, save as expressly provided in this Constitution, or in any
law made by Parliament, extend to any State to matters with respect
to which the Legislature of the State has also power to make
laws.”
E
82. Article 162 provides that subject to the provisions of the
Constitution, the executive power of a State shall extend to the matters
with respect to which the Legislature of the State has the power to
make laws. The proviso stipulates that with respect to matters which
both the Legislature of a State and Parliament have legislative competence,
F the executive power of the State shall be limited by the Constitution or
by any law made by Parliament:
“Article 162. Extent of executive power of State.- Subject to the
provisions of this Constitution, the executive power of a State
shall extend to the matters with respect to which the Legislature
G of the State has power to make laws.
Provided that in any matter with respect to which the Legislature
of a State and Parliament have power to make laws, the executive
power of the State shall be subject to, and limited by, the executive
power expressly conferred by this Constitution or by any law made
H by Parliament upon the Union or authorities thereof.”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 547
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

83. A combined reading of Articles 73 and 162 indicates that the A
Union has exclusive executive power over entries in List I. The States
have exclusive executive power over entries in List II. With respect to
List III, that is, the concurrent list, the Union shall have executive power
only if provided by the Constitution or by a law of Parliament. The States
shall have executive power over the entries in List III. However, if a
B
Central legislation or a provision of the Constitution confers executive
power to the Union with respect to a List III subject, then the executive
power of the State shall be subject to such law or provision. The executive
power of the Union “in a State” over matters on which both States and
the Union of India can legislate (that is, the concurrent list) is limited to
ensure that the governance of States is not taken over by the Union. C
This would completely abrogate the federal system of governance and
the principle of representative democracy. It is with this objective in
mind that the members of the Constituent Assembly thought it fit to limit
the executive power of the Union in a State over matters on which the
State also has legislative competence. D
84. The principle in Articles 73 and 162 would equally apply to the
scope of executive power over matters which are within the legislative
competence of both the Union and the GNCTD. This is because the
objective of the provisions is to limit the executive power of the Union in
the territorial limits where there is an elected government of a federal unit.
E
85. Both Parliament and the Legislature of NCTD have legislative
competence over List II and List III. For the purposes of NCTD, both
List II and List III are “concurrent lists”. Thus, the delimitation of
executive power between Parliament and Government of NCTD with
respect to entries in List II and List III are guided by these principles.
F
Both Parliament and the legislature of NCTD have the power to enact
laws with respect to List II (subject to the caveat that entries 1,2,and 18;
and entries 64,65, and 66 in as much as they relate to entries 1,2, and 18
are carved out of the domain of the Legislative Assembly of GNCTD)
and List III. The executive power of NCTD shall extend to all entries in
List II and List III, other than the entries expressly excluded in Article G
239AA(3). Such power shall be subject to the executive power of the
Union (through the Lieutenant Governor) only when the Union has been
granted such power by the Constitution or a law of Parliament. Therefore,
the executive power of NCTD, in the absence of a law by Parliament,
shall extend to all subjects on which it has power to legislate.
H
548 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 86. It was held in the 2018 Constitution Bench judgment that the
Lieutenant Governor is bound by the aid and advice of the Council of
Ministers under Article 239AA(4) while exercising executive powers in
relation to matters falling within the legislative domain of the legislative
assembly of NCTD except where he exercises the limited route provided
B under the proviso to Article 239AA(4). This limited discretionary power
under the proviso, as the Constitution Bench held, ought to be exercised
in a careful manner in rare circumstances such as on matters of national
interest and finance. The Lieutenant Governor could not refer every
matter to the President.26 After analysing the provisions of Article
239AA(4), Government of NCTD Act 1991 27, and the applicable
C Transaction of Business Rules 1993, it was held by the majority that:
“284.16. As a natural corollary, the Union of India has exclusive
executive power with respect to NCT of Delhi relating to the
three matters in the State List in respect of which the power of
the Delhi Legislative Assembly has been excluded. In respect of
D other matters, the executive power is to be exercised by the
Government of NCT of Delhi. This, however, is subject to the
proviso to Article 239AA(4) of the Constitution…
284.17. The meaning of “aid and advise” employed in Article
239AA(4) has to be construed to mean that the Lieutenant
E
Governor of NCT of Delhi is bound by the aid and advice of the
Council of Ministers and this position holds true so long as the
Lieutenant Governor does not exercise his power under the proviso
to clause (4) of Article 239-AA. The Lieutenant Governor has
not been entrusted with any independent decision-making power.
F He has to either act on the “aid and advice” of Council of Ministers
or he is bound to implement the decision taken by the President
on a reference being made by him.
284.18. The words “any matter” employed in the proviso to clause
(4) of Article 239-AA cannot be inferred to mean “every matter”.”
G
87. In matters which fall outside the legislative powers of NCTD,
the doctrine of “aid and advice” does not apply. In those matters, the
26
Para 284.18 (opinion of the majority); Para 475 (concurring opinion of Justice
Chandrachud)
27
H "GNCTD Act”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 549
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

GNCTD Act and the Transaction of Business Rules of the Government A
of National Capital Territory of Delhi 199328 shall act as a guide for the
exercise of power. Under Section 41 of the GNCTD Act, the Lieutenant
Governor may be required to act in his discretion in respect of which
powers or functions which have been delegated to him by the President
under Article 239, or where he is required to act in his discretion under a
B
specific provision of law or where he exercises judicial or quasi-judicial
functions. Section 41, dealing with the discretion of the Lieutenant
Governor, provides that:
“41. Matters in which Lieutenant Governor to act in his discretion.
(1) The Lieutenant Governor shall act in his discretion in a matter— C
(i) which falls outside the purview of the powers conferred on
the Legislative Assembly but in respect of which powers or
functions are entrusted or delegated to him by the President;
or
(ii) in which he is required by or under any law to act in his D
discretion or to exercise any judicial or quasi-judicial functions.
(2) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is by or under
any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final. E
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is required by
any law to exercise any judicial or quasi-judicial functions, the
decision of the Lieutenant Governor thereon shall be final.”
F
88. Accordingly, the Lieutenant Governor may act in his discretion
only in two classes of matters. firstly, where the matter deals with issues
which are beyond the powers of the Legislative Assembly and where
the President has delegated the powers and functions to the Lieutenant
Governor in relation to such matter; and secondly, matters which by law
require him to act in his discretion or where he is exercising judicial or G
quasi-judicial functions.
89. Section 44 of the GNCTD Act confers the President the power
to make rules regarding the allocation of business to Ministers wherein

28
"Transaction of Business Rules” H
550 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Lieutenant Governor is required to act on the aid and advice of his
Council of Ministers. It also provides for rules to ensure convenient
transaction of business with the Ministers, including the procedure to be
adopted in case of a difference of opinion between the Lieutenant
Governor and the Council of Ministers or a Minister. In exercise of the
power under Section 44, the President framed the Transaction of Business
B
Rules of the Government of National Capital Territory of Delhi 1993. In
his concurring opinion in the 2018 Constitution Bench judgment, Justice
Chandrachud held that these Rules provide a mechanism to be followed
in matters relating to the executive functions of GNCTD. It was held:
“428. A significant aspect of the Rules is that on matters
C which fall within the ambit of the executive functions of the
Government of NCT, decision-making is by the Government
comprised of the Council of Ministers with the Chief
Minister at its head…
Rule 24 deals with an eventuality when the Lieutenant Governor
D may be of the opinion that any further action should be taken or
that action should be taken otherwise than in accordance
with an order which has been passed by a Minister. In such
a case, the Lieutenant Governor does not take his own decision.
He has to refer the proposal or matter to the Council of
E Minister for consideration…
the Lieutenant Governor has not been conferred with the
authority to take a decision independent of and at variance
with the aid and advice which is tendered to him by the
Council of Ministers. If he differs with the aid and advice, the
F Lieutenant Governor must refer the matter to the Union
Government (after attempts at resolution with the Minister or
Council of Ministers have not yielded a solution). After a decision
of the President on a matter in difference is communicated,
the Lieutenant Governor must abide by that decision. This
principle governs those areas which properly lie within the ambit
G and purview of the executive functions assigned to the Government
of the National Capital Territory.”
(emphasis added)
The above interpretation indicates that in matters in the executive
domain of NCTD, it is the elected government of NCTD which is
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 551
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

empowered to take decisions. The Lieutenant Governor may request A
the Minister or the Council of Ministers to reconsider its decision. It is
only if difference persists even after attempts at resolution that he may
refer the matter to the President, and await the decision.
90. Rule 45 of the Transaction of Business Rules also indicates
that the Lieutenant Governor must act within the confines of clauses (3) B
and (4) of Article 239AA in exercising his executive functions, that is, he
shall abide by the “aid and advice” of the Council of Ministers on matters
in respect of which NCTD has legislative power. Rule 45 provides:
“The Lieutenant Governor, may by standing orders in writing,
regulate the transaction and disposal of the business relating to C
his executive functions:
Provided that the standing orders shall be consistent with the
provisions of this Chapter, Chapter V and the instructions issued
by the Central Government for time to time.
Provided further that the Lieutenant Governor shall in D
respect of matters connected with ‘public order’, ‘police’
and ‘land’ exercise his executive functions to the extent
delegated to him by the President in consultation with the
Chief Minister, if it is so provided under any order issued by the
President under article 239 of the Constitution. E
Provided further that ‘standing orders’’ shall not be
inconsistent with the rules concerning transaction of
business.”
(emphasis supplied)
F
91. The Rule provides that the Lieutenant Governor may issue
standing orders relating to “his executive functions”, which must be
consistent with the Rules of Business as a whole. As an exception to the
Rule, only “in respect of matters connected with ‘public order’, ‘police’
and ‘land’”, which are matters outside the legislative domain of NCTD
under Article 239AA(3)(a), he may “exercise his executive functions to G
the extent delegated to him by the President”. The second part of this
proviso further indicates that in matters outside the legislative domain of
NCTD, the Lieutenant Governor may be required to consult with the
Chief Minister, if it is so provided under any order issued by the President
under Article 239 of the Constitution. This Rule thus clarifies that the
H
552 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Lieutenant Governor may exercise his executive function in relation to
matters outside the legislative purview of NCTD only “to the extent
delegated to him by the President”. As a matter of principle, in the
discharge of executive functions within the domain of NCTD, the
Lieutenant Governor must abide by the “aid and advice” of the Council
of Ministers in the manner indicated in the Rules. Rule 46 thus needs to
B
be construed accordingly.
92. Rule 46 deals with the power of the Lieutenant Governor with
respect to persons serving in connection with the “administration” of
NCTD. Rule 46 provides that:
C “46. (1) With respect to persons serving in connection with
the administration of the National Capital Territory, the
Lieutenant Governor shall, exercise such powers and
perform such functions as may be entrusted to him under
the provisions of the rules and orders regulating the
conditions of service of such personsorby any other order
D of the President in consultation with the Chief Minister, if it is so
provided under any order issued by the President under Article
239 of the Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
E Commission on all matters on which the Commission is required
to be consulted under clause (3) of Article 320 of the Constitution;
and in every such case he shall not make any order otherwise
than in accordance with the advice of the Union Public Services
Commission unless authorised to do so by the Central Government.
F (3) All correspondence with Union Public Service Commission
and the Central Government regarding recruitment and conditions
of service of persons serving in connection with the administration
of National Capital Territory shall be conducted by the Chief
Secretary or Secretary of the Department concerned under the
G direction of the Lieutenant Governor.”
(emphasis supplied)
The Rule provides that the Lieutenant Governor shall exercise
such powers and functions with respect to persons serving in the
“administration” of NCTD, “as may be entrusted to him under the
H provisions of the rules and orders regulating the conditions of service of
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 553
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

such persons or by any other order of the President”. The term A
“administration” in this Rule must be considered in the context of Article
239AA(3) and Section 41 of the GNCTD Act. The executive
administration by the Lieutenant Governor, in his discretion, can only
extend to matters which fall outside the purview of the powers conferred
on the Legislative Assembly but it extends to powers or functions
B
entrusted or delegated to him by the President” or “in which he is required
by or under any law to act in his discretion or to exercise any judicial or
quasi-judicial functions”. The term “administration” cannot be understood
as the entire administration of GNCTD. Otherwise, the purpose of giving
powers to a constitutionally recognised and democratically elected
government would be diluted. C
93. Therefore, the phrase “persons serving in connection with the
administration of the National Capital Territory” in Rule 46 shall refer
only to those persons, whose administration is linked with “public order”,
“police”, and “land” which are subjects outside the domain of NCTD.
94. However, as noted in the concurring opinion of Justice D
Chandrachud in the 2018 Constitution Bench judgment, Section 49 of
the GNCTD Act confers an overriding power of general control to the
President. According to Section 49, “the Lieutenant Governor and his
Council of Ministers shall be under the general control of, and comply
with such particular directions, if any, as may from time to time be given E
by, the President.” The directions of the President are in accordance
with the “aid and advice” of the Council of Ministers of the Union of
India.
95. Thus, the scope of the legislative and executive powers of the
Union and NCTD that has been discussed under this section is multi- F
fold. Under Article 239AA(3)(a), the legislative power of NCTD extends
to all subjects under the State List and the Concurrent List, except the
excluded entries. As the 2018 Constitution Bench judgment held, the
executive power of GNCTD is coextensive with its legislative power. In
other words, the executive power of GNCTD extends to all subjects on
which its Legislative Assembly has power to legislate. The legislative G
power of the Union extends to all entries under the State List and
Concurrent List, in addition to the Union List. The executive power of
the Union, in the absence of a law upon it executive power relating to
any subject in the State List, shall cover only matters relating to the
three entries which are excluded from the legislative domain of NCTD. H
554 SUPREME COURT REPORTS [2023] 9 S.C.R.

A As a corollary, in the absence of a law or provision of the Constitution,
the executive power of the Lieutenant Governor acting on behalf of the
Union Government shall extend only to matters related to the three entries
mentioned in Article 239AA(3)(a), subject to the limitations in Article
73. Furthermore, if the Lieutenant Governor differs with the Council of
Ministers of GNCTD, he shall act in accordance with the procedure laid
B
down in the Transaction of Business Rules. However, if Parliament enacts
a law granting executive power on any subject which is within the domain
of NCTD, the executive power of the Lieutenant Governor shall be
modified to the extent, as provided in that law. Furthermore, under Section
49 of the GNCTD Act, the Lieutenant Governor and the Council of
C Ministers must comply with the particular directions issued by the
President on specific occasions.
96. Now, we turn to the present reference before us regarding
the scope of the legislative and executive powers of NCTD and the
Union over “services” under Entry 41 of the State List. Based on the
D discussion in this section, NCTD shall have legislative power to make
laws on “services”. This is because “services” (that is, Entry 41) is not
expressly excluded in Article 239AA(3)(a). As it has legislative power,
it shall have executive power to control “services” within NCTD.
However, we will need to address the argument of the Union of India
that the provisions of the Constitution exclude “services” from the
E legislative and executive control of NCTD to form a conclusive opinion
on the issue. The subsequent sections of this judgment deal with the
above questions.
J. Triple chain of accountability: Civil Servants in a Cabinet
Form of Government
F
97. Before discussing the question regarding the applicability of
Part XIV to NCTD, it would be appropriate to discuss the principles
which will guide our analysis on Part XIV. A discussion on the role of
civil services in a Westminster-style Cabinet Form of Government is
necessary to understand the issues at stake.
G
(a) Role of civil services in a modern government
98. Civil services form an integral part of modern government.
Professor Herman Finer, in his classic work titled “The Theory and
Practice of Modern Governance”, states that “the function of civil
service in the modern state is not merely an improvement of government;
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 555
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

for without it, indeed, government itself would be necessarily A
impossible.”29 The efficacy of the State and the system of responsible
government to a large part depend upon professionals, who embody the
institution of a competent and independent civil service.
99. The policies of the government are implemented not by the
people, Parliament, the Cabinet, or even individual ministers, but by civil B
service officers. Elaborating on the indispensable position of civil services
in a parliamentary system of government, DD Basu in his commentary
on the Constitution of India states:
“A notable feature of the Parliamentary system of government is
that while the policy of the administration is determined and laid C
down by ministers responsible to the Legislature, the policy is
carried out and the administration of the country is actually run by
a large body of officials who have no concern with politics.”30
100. A Constitution Bench of this Court in Union of India v.
Tulsiram Patel31 dwelt on the ubiquitous nature of the civil service and D
observed:
“34. The concept of civil service is not new or of recent origin.
Governments — whether monarchial, dictatorial or republican —
have to function; and for carrying on the administration and the
varied functions of the government age number of persons are E
required and have always been required, whether they are
constituted in the form of a civil service or not.”
101. In the Indian Constitution, an entire Part, Part XIV, is dedicated
to ‘services’, indicating the great significance which the members of the
Constituent Assembly reposed in the civil service officers. During the F
Constituent Assembly Debates, the civil services were referred to as
the “soul of administration” and it was said that the “importance of the
civil services cannot be gainsaid.”32 Part XIV deals with “Services under
the Union and the States”. Chapter I comprising of Articles 308 to 313

29
Herman Finer, The Theory and Practice of Modern Governance (New York: The Dial
G
Press, 1932) at page 1163
30
Dr DD Basu, Commentary on the Constitution of India, 9th Edn., 2018, Vol. 13,
page 13991
31
(1985) 3 SCC 398
32
Muniswamy Pillai and BN Munavalli in Constituent Assembly Debates, Vol. 9 (22 nd
August 1949) H
556 SUPREME COURT REPORTS [2023] 9 S.C.R.

A deals with services, and Chapter II comprising of Articles 315 to 323
deals with Public Service Commissions for the Union and the States.
The effectiveness of the elaborate provisions of Part XIV is to a large
extent dependent upon the relationship between the ministers and civil
service officers.
B (b) Accountability of civil servants in a Westminster parliamentary
democracy
102. In a democracy, accountability lies with the people who are
the ultimate sovereign. The parliamentary form of government adopted
in India essentially requires that Parliament and the government, consisting
C of elected representatives, to be accountable to the people. The Cabinet
consisting of elected representatives is collectively responsible for the
proper administration of the country and is answerable to the legislature
for its actions. The Constitution confers the legislature the power to
enact laws and the government to implement laws. The conduct of the
government is periodically assessed by the electorate in elections
D conducted every five years. The government is formed with the support
of a majority of elected members in the legislature. The government
responsible to the legislature is assessed daily in the legislature through
debates on Bills, or questions raised during Question Hour, resolutions,
debates and no-confidence motions. The government is responsible for
the decisions and policies of each of the ministers and of their departments.
E
This creates a multi-linked chain of accountability, where the legislature
is accountable to the people who elected them, and the government is
collectively responsible to the legislature. This establishes a link between
the electorate and the government. The government is collectively
responsible for its actions. The Council of Ministers is accountable to
F both the legislature and to the electorate. Collective responsibility is an
important component of parliamentary democracies.33
103. Civil servants are required to be politically neutral. The day-
to-day decisions of the Council of Ministers are to be implemented by a
neutral civil service, under the administrative control of the ministers. In
G order to ensure that the functioning of the government reflects the
preferences of the elected ministers, and through them the will of the
people, it is essential to scrutinize the link of accountability between the
civil service professionals and the elected ministers who oversee them.
33
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1; Amarinder Singh v. Punjab
H Vidhan Sabha, (2010) 6 SCC 113; 2018 Constitution Bench judgment.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 557
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Since civil service officers constituting the permanent executive exercise A
considerable influence in modern welfare state democracies, effective
accountability requires two transactions: “one set of officials, such as
the bureaucracy, who give an account of their activity, to another set,
such as legislators, who take due account and feed their own considered
account back into the political system and, through that mechanism, to
B
the people.”34
104. In Secretary, Jaipur Development Authority v. Daulat
Mal Jain,35 this Court held that an individual minister is answerable and
accountable to people for the acts done by the officials working under
him. This Court observed that:
C
“The Government acts through its bureaucrats, who shape its
social, economic and administrative policies to further the social
stability and progress socially, economically and politically…The
Minister is responsible not only for his actions but also for the job
of the bureaucrats who work or have worked under him. He owes
the responsibility to the electors for all his actions taken in the D
name of the Governor in relation to the Department of which he
is the head… he bears not only moral responsibility but also in
relation to all the actions of the bureaucrats who work under him
bearing actual responsibility in the working of the department under
his ministerial responsibility.” E
105. In the concurring opinion in the 2018 Constitution Bench
decision, Justice Chandrachud highlighted the intrinsic link between
government accountability and the principle of collective responsibility.
The judgment underscored the responsibility of an individual minister to
the legislature for any and every action undertaken by public officials in F
the department which the minister oversees:
“327. Collective responsibility also exists in practice in situations
where ministers have no knowledge of the actions taken by the
subordinate officers of their respective departments…
343. … Modern government, with its attendant complexities, G
comprises of several components and constituent elements. They
include Ministers who are also elected as members of the
34
Adam Przeworski, Susan C. Stokes, Bernard Manin, Democracy, Accountability,
and Representation (Cambridge University Press 2012), at page 298.
35
(1997) 1 SCC 35 H
558 SUPREME COURT REPORTS [2023] 9 S.C.R.

A legislature and unelected public officials who work on issues of
daily governance... All Ministers are bound by a decision taken
by one of them or their departments. “
106. Civil service officers thus are accountable to the ministers of
the elected government, under whom they function. Ministers are in
B turn accountable to Parliament or, as the case may be. the state
legislatures. Under the Westminster parliamentary democracy, civil
services constitute an important component of a triple chain of command
that ensures democratic accountability. The triple chain of command is
as follows:
C a. Civil service officers are accountable to Ministers;
b. Ministers are accountable to Parliament/Legislature; and
c. Parliament/Legislature is accountable to the electorate.
107. An unaccountable and a non-responsive civil service may
D pose a serious problem of governance in a democracy. It creates a
possibility that the permanent executive, consisting of unelected civil
service officers, who play a decisive role in the implementation of
government policy, may act in ways that disregard the will of the
electorate.
(c) Accountability of Civil Service Officers in a Federal Polity
E
108. Our Constitution is federal in character. In a federal polity, a
fundamental question which arises is which would be the more appropriate
authority to whom the civil service officers would be accountable.
109. As discussed before, a paramount feature of a federal
F Constitution is the distribution of legislative and executive powers between
the Union and the regional units. The essential character of Indian
federalism is to place the nation as a whole under the control of a Union
Government, while the regional or federal units are allowed to exercise
their exclusive power within their legislative and co-extensive executive
and administrative spheres.36
G
110. In a democratic form of Government, the real power of
administration must reside in the elected arm of the State, subject to the
confines of the Constitution. 37 A constitutionally entrenched and
36
SR Bommai v. Union of India, (1994) 3 SCC 1
H 37
2018 Constitution Bench
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 559
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

democratically elected government needs to have control over its A
administration. The administration comprises of several public officers,
who are posted in the services of a particular government, irrespective
of whether or not that government was involved in their recruitment.
For instance, an officer recruited by a particular government may serve
on deputation with another government. If a democratically elected
B
government is not provided with the power to control the officers posted
within its domain, then the principle underlying the triple-chain of
collective responsibility would become redundant. That is to say, if the
government is not able to control and hold to account the officers posted
in its service, then its responsibility towards the legislature as well as the
public is diluted. The principle of collective responsibility extends to the C
responsibility of officers, who in turn report to the ministers. If the officers
stop reporting to the ministers or do not abide by their directions, the
entire principle of collective responsibility is affected. A democratically
elected government can perform, only when there is an awareness on
the part of officers of the consequences which may ensue if they do not
D
perform. If the officers feel that they are insulated from the control of
the elected government which they are serving, then they become
unaccountable or may not show commitment towards their performance.
111. We have already held that the relationship between the Union
and NCTD resembles an asymmetric federal model, where the latter
exercises its legislative and executive control in specified areas of the E
State List and the Concurrent List. Article 239AA, which conferred a
special status to NCTD and constitutionally entrenched a representative
form of government, was incorporated in the Constitution in the spirit of
federalism, with the aim that the residents of the capital city must have
a voice in how they are to be governed. It is the responsibility of the F
government of NCTD to give expression to the will of the people of
Delhi who elected it. Therefore, the ideal conclusion would be that
GNCTD ought to have control over “services”, subject to exclusion of
subjects which are out of its legislative domain. If services are excluded
from its legislative and executive domain, the ministers and the executive
who are charged with formulating policies in the territory of NCTD G
would be excluded from controlling the civil service officers who
implement such executive decisions.
112. In the backdrop of the above discussion on the necessity to
provide the control of “services” to GNCTD, we consider the next
H
560 SUPREME COURT REPORTS [2023] 9 S.C.R.

A argument of the Union of India that Part XIV does not envisage “services”
for Union Territories.
K. Balakrishnan Committee Report
113. The Union of India relied on the report of the Balakrishnan
Committee which led to the 1991 Constitution Amendment and the
B insertion of Article 239AA to argue that “services” are not available to
Union territories. The Statement of Objects and Reasons of the Amending
Act referred to the Committee’s Report:
“Statement of Objects and Reasons

C The question of reorganisation of the administrative set-up in the
Union Territory of Delhi has been under the consideration of the
Government for some time. The Government of India appointed
on 24-12-1987 a Committee [Balakrishnan Committee] to go into
the various issues connected with the administration of Delhi and
to recommend measures inter alia for the streamlining of the
D administrative set-up. The Committee went into the matter in great
detail and considered the issues after holding discussions with
various individuals, associations, political parties and other experts
and taking into account the arrangements in the National Capitals
of other countries with a federal set-up and also the debates in
E the Constituent Assembly as also the reports by earlier Committees
and Commissions. 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
F Committee also recommended that with a view to ensure stability
and permanence the arrangements should be incorporated in the
Constitution to give the National Capital a special status among
the Union Territories.
2. The Bill seeks to give effect to the above proposals.”
G
114. The Balakrishnan Committee specifically dealt with Entry
41 (relating to services) of the State List. Its report notes that Entry 41
is not available to the Union Territories, as (i) the Entry only mentions
‘State’ and not ‘Union Territory’; (ii) Part XIV of the Constitution only
refers to services in connection with the affairs of the State and services
H in connection with the affairs of the Union; and (iii) administration of the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 561
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Union Territories is the responsibility of the Union and thus it falls within A
the purview of ‘affairs of the Union’. The Report stated:
“8.1 PUBLIC SERVICES IN THE DELHI ADMINISTRATION
8.1.2. Entry 41 of the State List mentions “State Public Services:
State Public Services Commission”. Obviously, this Entry is not
applicable to Union territories because it mentions only “State” B
and not “Union territories”. This view is reinforced by the fact
that the Constitution divides public services in India into two
categories, namely, services in connection with the affairs of the
Union and services in connection with the affairs of the State as
is clear from the various provisions in Part XIV of the Constitution. C
There is no third category of services covering the services of the
Union territories. The obvious reason is that the administration of
the Union territory is the constitutional responsibility of the Union
under Article 239 and as such comes under “affairs of the Union”.
Consequently, the public services for the administration of any
Union territory should form part of the public services in connection D
with the affairs of the Union.”
115. The Balakrishnan Committee opined that the setting up of a
Legislative Assembly with a Council of Ministers will not disturb the
position discussed above. According to the Report:
E
“Services
9.3.4. By virtue of the provisions in the Constitution, services in
connection with the administration of the Union Territory of Delhi
will be part of the services of the Union even after the setting up
of a Legislative Assembly with a Council of Ministers. This F
constitutional position is unexceptionable and should not be
disturbed. There should, however, be adequate delegation of
powers to the Lt. Governor in respect of specified categories of
services or posts. In performing his functions under such delegated
powers the Lt. Governor will have to act in his discretion but
there should be a convention of consultation, whenever possible, G
with the Chief Minister.”
116. The extracts from the Balakrishnan Committee Report were
relied upon by Justice Bhushan in his 2019 split judgment to hold that the
Legislative Assembly of NCTD does not have the power to make laws
under Entry 41 of List II. H
562 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 117. We do not agree with the reliance on the Balakrishnan
Committee Report to rule out the scope of legislative power of NCTD
over Entry 41 (services). We reiterate the view expressed in the opinion
of the majority in the 2018 Constitution Bench that there is no necessity
to refer to the Report to interpret Article 239AA because the judgment
authoritatively dealt with the scope of the said Article. It was held:
B
“277. There can be no quarrel about the proposition that the reports
of the Committee enacting a legislation can serve as an external
aid for construing or understanding the statute. However, in the
instant case, as we have elaborately dealt with the meaning
to be conferred on the constitutional provision that calls
C for interpretation, there is no necessity to be guided by the
report of the Committee.”
(emphasis supplied)
118. Contrary to the suggestion in the report, the 2018 Constitution
Bench judgment provided that NCTD shall have legislative power over
D all subjects in List II, except the excluded subjects provided in Article
239AA(3)(c).
119. The report of the Balakrishnan Committee was referred to
in the Statement of Objects and Reasons of 1991 Constitution
Amendment. The Statement of Objects and Reasons can only be referred
E to the limited extent of understanding the background, the antecedent
state of affairs, the surrounding circumstances in relation to the
amendment, and the purpose of the amendment.38 In RS Nayak v. AR
Antulay39, a Constitution Bench of this Court held that the reports of a
committee which preceded the enactment of a legislation, reports of
F joint parliamentary committees, a report of a commission set up for
collecting information leading to the enactment are permissible external
aids to construction. Thus, the report of the Balakrishnan Committee
can be relied on by this Court to understand the intent behind the
introduction of Article 239AA. However, this Court is not bound by the
report of a committee to construe specific phrases. It is for this reason
G that the 2018 Constitution Bench construed the text of Article 239AA
contextually with reference to the constitutional structure envisaged for
NCTD without relying on the Report of the Balakrishnan Committee.
38
State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Bhaiji v. Sub-divisional
Officer Thandla, (2003) 1 SCC 692
H 39
(1984) 2 SCC 183
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 563
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

120. Moreover, the arguments made in the Balakrishnan Committee A
Report against the inclusion of “services” for NCTD have been rejected
by this Court. The argument in the Balakrishnan Committee Report that
the use of the word ‘State’ in an Entry leads by itself to that Entry not
being available to the legislature of a Union Territory has been specifically
rejected in the concurring opinion of Justice Chandrachud in the 2018
B
Constitution Bench in the following terms:
“461. […] 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 C
correct reading of the above words of Article 239-AA(3)(a).”
The concurring opinion refers to Entries 38 and 40 of List II which
read thus:
“38. Salaries and allowances of Members of the legislature of D
the State, of the Speaker and Deputy Speaker of the Legislative
Assembly and, if there is a Legislative Council, of the Chairman
and Deputy Chairman thereof.
[…]
40. Salaries and allowances of Ministers for the State.” E
(emphasis supplied)
Referring to the provisions of the GNCTD Act which deal with
these entries, Justice D.Y Chandrachud in his concurring opinion observed
that even Parliament did not construe the use of the word ‘State’ in an
F
Entry to mean that it was not available to Union Territories, as it
acknowledged the power of the Legislative Assembly of GNCTD to
deal with said issues. We agree with the above observations. The mere
use of the word ‘state’ in the entries will not exclude the legislative
competence of NCTD. By that logic, all the entries in List II would be
impliedly excluded from the legislative competence of NCTD because G
list II of the Seventh Schedule is titled ‘State list’.
121. Furthermore, the conclusion of the Balakrishnan Report that
Entry 41 of the State List of the Seventh Schedule is not available to
Union Territories because the Constitution does not envisage a third
category of services covering the services of Union territories is contrary H
564 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to the judgment of this Court in Prem Kumar Jain (supra), which had
upheld services for NCTD. The judgment in Prem Kumar Jain (supra)
was rendered prior to the Balakrishnan Committee Report of December
1989. The Balakrishnan Committee did not refer to the said judgment.
Thus, the report of the Balakrishnan Committee cannot be relied upon
determine if “Services” is available to NCTD.
B
L. Applicability of Part XIV to Union Territories
122. The Union of India has submitted that NCTD does not have
legislative competence over Entry 41 of List II because Part XIV of the
Constitution does not contemplate any services for Union Territories. It
C has been argued that the legislative power of NCTD can be restricted if
Part XIV does not contemplate services to Union Territories since Article
239AA begins with the phrase “Subject to the provisions of the
Constitution”.
(a) Meaning of “State” for the purpose of Part XIV of the
D Constitution
123. It needs to be seen if the phrase “State” in Part XIV of the
Constitution includes Union Territory. Article 308 provides the definition
of ‘State’ for Part XIV of the Constitution. Article 308 as it stood prior
to the Constitution (Seventh amendment) Act 195640 provides as follows:
E “308.In this part, unless the context otherwise requires the
expression ‘State’ means a State specified in Part A or Part B of
the First Schedule.”
124. The States Reorganization Act 1956 and the consequential
1956 amendment altered the provisions of the First Schedule. Prior to
F the amendment in 1956, States were divided into three categories as
specified in Parts A, B and C of the First Schedule of the Constitution.
By the seventh amendment, Article 308 was amended and State for the
purposes of Part XIV was defined as follows:
“308. In this Part, unless the context otherwise requires, the
G expression “State” does not include the State of Jammu and
Kashmir.”
125. In terms of unamended Article 308, the definition of ‘State’
included Part A and Part B states of the First Schedule and did not

H 40
“1956 amendment”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 565
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

include Part C States, since they were administered by the Union. After A
the 1956 Constitutional Amendment, Article 308 provides an exclusionary
definition of ‘State’ by only excluding the State of Jammu and Kashmir.
Article 308 does not provide any clarity on whether “State” includes
Union Territories for the purposes of Part XIV.
126. Article 366 defines “State” with reference to Articles 246- B
A,268, 269-A and Article 279-A to include a Union Territory with
Legislature. Article 366 does not apply for the interpretation of any of
the provisions in Part XIV of the Constitution. Thus, we must fall back
on Article 367. Article 367 stipulates that unless the context otherwise
requires, the General Clauses Act shall apply for the interpretation of
the Constitution. Section 3(58) of the General Clauses Act defines “State” C
to mean a State specified in the First Schedule and includes a Union
Territory.
127. GNCTD contends that this Court in Prem Kumar Jain
(supra) has expressly sanctified the existence of services of a Union
Territory by holding that the definition of “State” would include Union D
territories for the purpose of Article 312 of the Constitution. The Union
has argued that the decision in Prem Kumar Jain was limited for the
purpose of the IAS (Cadre) Rules 195441 read with the All-India Services
Act 1951. Furthermore, it was argued that the reference to Article 312
made therein has been made without any reference to the import of E
Article 308. It is the contention of the Union that interpreting the ratio of
Prem Kumar Jain in a broad sense would cause violence to the
machinery envisaged in Part XIV of the Constitution.
128. In Prem Kumar Jain, the judgment of the High Court of
Delhi setting aside the establishment of a joint cadre exclusively for the F
Union Territories in the IAS was challenged. Article 312 stipulates that
Parliament may by law create “All India Services” common to the Union
and the States. A joint cadre of all the Union Territories was created
under Rule 3(1) of the Indian Administrative Service (Cadre) Rules
1954.42 The creation of a new joint cadre was challenged before the
High Court on the ground that it was contrary to Article 312 of the G
Constitution and the All-India Services Act 1951. It was argued that
Article 312 does not contemplate an all-India service common to Union

41
1954 Cadre Rules
42
“1954 Cadre Rules” H
566 SUPREME COURT REPORTS [2023] 9 S.C.R.

A territories because the term “State” in the provision does not include
Union territories. The definition of “State” under Rule 2(c) of the 1954
Cadre Rules, which provides that a State means a “State specified in the
First Schedule to the Constitution and includes a Union Territory” was
also challenged.
B 129. In that context, the High Court held that Union territories
could not be said to be “States”, and held the definition of “State” under
Rule 2(c) of the Cadre Rules to be ultra vires the Constitution and the
All India Services Act 1951. The High Court held that the Union Territories
were not “States” for the purpose of Part XIV of the Constitution, in
view of the definition of “State” in Article 308, which did not include
C
Part C states before its amendment. The High Court reasoned that Union
territories are successors of Part C States, and accordingly Union
Territories were excluded from the definition of ‘State’ in Part XIV. The
High Court declined to place any reliance on the definition of the word
‘State’ in Section 3(58)(b) of the General Clauses Act, as amended in
D 1956. The High Court reasoned that only the adaptations made in the
General Clauses Act under Article 372(2) applied to the interpretation of
the Constitution in view of Article 367(1), and accordingly the adaptations
made later, by Article 372A, were inapplicable. The High Court observed
that:
E ‘(7) The next question, therefore, is whether the Union
Territories are “State” for the purpose of Article 312(1).
Article 312 is a part of Chapter XIV of the Constitution, which is
significantly entitled ‘’Services under the Union and the States”.
Part XIV does not create an All India Service. [...] The key to
the meaning of the word “State” used in Part XIV including
F
Articles 309 and 312(1) is provided by the interpretation
clause in Article 308. Before the Constitution (VII Amendment)
Act, 1956 Article 308 was as follows:
“IN this part. unless the context otherwise requires the
expression “State” means a State specified in Part A or Part B
G
of the I Schedule”.
This definition, thus, made it clear that the word “State” in
Part XIV was not to include part C States. Union Territories
are the successors of the Part C States. It follows, therefore,
that they are also expressly excluded from the definition of
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 567
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

“State” in Part XIV. There is nothing particular in the context of A
Article 313 which would require the word “State” therein to include
a Union Territory.
…
Article 367(1) of the Constitution applies to the
interpretation of the Constitution the provision of the B
General Clauses Act as adapted under Article 372(2) of the
Constitution. In view of Article 372(2)(a) such an adaptation
had to be made within three years from the commencement
of the Constitution. The definition of a “State” in section
3(58) of the General Clauses Act as adapted by the C
Adaptation of laws Order, 1950 issued under Article 372(2)
of the Constitution [...]”
(emphasis supplied)
130. In appeal, this Court set aside the judgment of the High Court
of Delhi. Firstly, this Court held that in view of the amended definition of D
the expression “State” under Section 3(58) of the General Clauses Act,
as adapted by the Adaptation of Laws Order 1956, there was nothing
repugnant to the subject or context to make that definition inapplicable
to Part XIV of the Constitution. This Court reasoned that Article 372A
was incorporated in the Constitution since Parliament felt the necessity E
of giving a power akin to Article 372 to the President for the purpose of
bringing the provisions of any law in force immediately before the
commencement of the 1956 Constitution Amendment in accordance with
the provisions of the Constitution, as amended by the 1956 Constitution
Amendment. This Court relied on Advance Insurance (supra) to hold
that Article 372-A gave a fresh power to the President which was equal F
and analogous to the power under Article 372(2). This Court held that:
“8. It follows therefore that, as and from November 1, 1956, when
the Constitution (Seventh Amendment) Act, 1956, came into force,
the President had the power to adapt the laws for the purpose of
bringing the provisions of any law in force in India into accord G
with the provisions of the Constitution. It was under that power
that the President issued the Adaptation of Laws (No. 1)
Order, 1956, which, as has been shown, substituted a new
clause (58) in Section 3 of the General clauses Act
providing, inter alia, that the expression “State” shall, as
H
568 SUPREME COURT REPORTS [2023] 9 S.C.R.

A respects any period after the commencement of the
Constitution (Seventh Amendment) Act, 1956, mean “a
State specified in the First Schedule to the Constitution
and shall include a Union Territory”. It cannot be said with
any justification that there was anything repugnant in the
subject or context to make that definition inapplicable. By
B
virtue of Article 372A(1) of the Constitution, it was that
definition of the expression “State” which had effect from
the first day of November, 1956, and the Constitution expressly
provided that it could “not be questioned in any court of law”.
The High Court therefore went wrong in taking a contrary
C view and in holding that “Union territories are not ‘States’
for purposes of Article 312(1) of the Constitution and the
preamble to the Act of 1951". That was why the High Court
erred in holding that the definition of “State” in the Cadre Rules
was ultra vires the All India Services Act, 1951 and the Constitution,
and that the Union territories cadre of the service was “not common
D
to the Union and the States” within the meaning of Article 312(1)
of the Constitution, and that the Central Government could not
make the Indian Administrative Service (Cadre) Rules, 1954 in
consultation with the State Governments as there were no such
governments in the Union territories.”
E (emphasis supplied)
131. In Prem Kumar Jain (supra),this Court did not find anything
repugnant to the subject or context of Part XIV of the Constitution or
Article 312 specifically to make the definition of ‘State’ in terms of
amended Section 3(58)(b) of the General Clauses Act inapplicable.
F Hence, the expression ‘State’ as occurring in Part XIV was held to
include Union Territories. In the preceding section of this judgment, we
have approved the decision in Advance Insurance (supra) and held
that the definition of “State” in Section 3(58) of the General Clauses Act
as amended by Adaptation of Laws (No. 1) Order, 1956 must be applied
G for the interpretation of the Constitution unless the context otherwise
requires.
132. The definition provided in the definition clause article should
be applied and given effect to for the purposes of the relevant Part of
the Constitution. However, when the definition clause is preceded by
H the phrase ‘unless the context otherwise requires’, there may be a need
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 569
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

to depart from the normal rule if there is something in the context in A
which such expression occurs to show that the definition should not be
applied.43 Section 3(58) of the General Clauses Act, by virtue of Article
367(1) of the Constitution, applies to the construction of the expression
‘State’ in the Constitution, unless there is something repugnant in the
subject or context of a particular provision of the Constitution. The burden
B
is on the party opposing the application of the definition under the General
Clauses Act to the interpretation of a constitutional provision to prove
that the context requires otherwise. The Union of India has been unable
to suggest that the context of Part XIV suggests otherwise. There is
nothing in the subject or context of Part XIV of the Constitution which
would exclude its application to Union territories. Rather, the application C
of the inclusive definition of “State” as provided under Clause 3(58)
would render the constitutional scheme envisaged for Union Territories
workable.
(b) Omission in Part XIV by the 1956 Constitution Amendment
133. The Union of India has argued that services for a Union D
Territory are not contemplated in Part XIV of the Constitution because
of the conscious omissions by the 1956 Constitution Amendment in Part
XIV. There are two prongs to this argument: (i) the words “Part A States”
and “Part B States” in Article 308 were substituted by the word “State”,
simpliciter, instead of States and Union territories; and (ii) while the E
term ‘Raj Pramukh’ was omitted in different Articles in Part XIV, the
term ‘Administrator’ was not added.
134. Under erstwhile Article 239, the President occupied in regard
to Part C States, a position analogous to that of a Governor in Part A
States and of a Rajpramukh in Part B States. Unamended Article 239 F
envisaged the administration of Part C States by the President through a
Chief Commissioner or a Lieutenant Governor to be appointed by them
or through the Government of a neighbouring State.
135. The 1956 Constitution amendment was adopted to implement
the provisions of the States Re-organization Act 1956. The Seventh G
Amendment abrogated the constitutional distinction between Part A, B
and C States, and abolished the institution of the Rajpramukh on the

43
SK Gupta v. KP Jain, (1979) 3 SCC 54; Ichchapur Industrial Coop. Society
Ltd. v. Competent Authority, Oil & Natural Gas Commission, (1997) 2 SCC 42;
Ratnaprova Devi v. State of Orissa, (1964) 6 SCR 301 H
570 SUPREME COURT REPORTS [2023] 9 S.C.R.

A abrogation of Part B States. In terms of Section 29 of the 1956 Constitution
amendment, Parliament provided for “consequential and minor
amendments and repeals in the Constitution’’ as directed in the Schedule.
One of the amendments made in terms of the Schedule was to omit the
phrase “Part A or Part B of the First Schedule ‘’, and “Rajpramukh”, as
occurring in the Constitution. It is necessary to note that the expressions
B
“Part A”, “Part B” and “Rajpramukh” were not necessarily substituted
by another expression by Parliament.
136. Article 239 as it was amended by the 1956 Constitution
Amendment states that subject to any law enacted by Parliament every
Union Territory shall be administered by the President acting through an
C Administrator appointed by them with such designation as they may
specify. It is relevant to note that the term ‘administrator’, at the time of
the amendment was not added to any provision of the Constitution other
than Article 239. Even within Article 239, the provision did not use the
term ‘administrator’ as a designation. Instead, Article 239 provides that:
D “239. Administration of Union Territories
(1) Save as otherwise provided by Parliament by law, every Union
territory shall be administered by the President acting, to such
extent as he thinks fit, through an administrator to be appointed by
him with such designation as he may specify.
E
(2) Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State as the administrator of an
adjoining Union territory, and where a Governor is so appointed,
he shall exercise his functions as such administrator independently
of his Council of Ministers.”
F
137. Furthermore, it is important to note that Articles 239A and
239AA were inserted much later after the 1956 Constitution Amendment.
In 1962, Article 239A was inserted through the Constitution(Fourteenth
Amendment) Act 1962, which gives discretion to Parliament to create
by law, local legislatures or a Council of Ministers or both for certain
G Union Territories. In 1991, Article 239AA was inserted through the 1991
Constitution Amendment to accord NCTD a sui generis status from
the other Union Territories, including the Union Territories to which Article
239A applies. Parliament could not have envisaged when the 1956
Constitution Amendment was adopted that Union Territories would have
been accorded diverse governance models. Therefore, the argument of
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 571
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

the Union on legislative intent by drawing upon the omissions in the A
Seventh Amendment is not persuasive.
(c) Existence of power and exercise of power
138. It is not in contention that presently, a Public Service
Commission for NCTD does not exist. However, the existence of power
and the exercise of the power are two different conceptions, and should B
not be conflated. It is settled law that whether a power exists cannot be
derived from whether and how often it has been exercised.
139. In State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh,44 the Constitution Bench of this Court rejected the argument that
the power to enact a law under Entry 42 of the Concurrent List was a C
power coupled with a duty. It was held that the Legislature does not
have an obligation to enact a law in exercise of its power under the
Seventh Schedule:
“19. It was further contended that the power to make a law under
entry 42 of List III was a power coupled with a duty, because D
such law was obviously intended for the benefit of the expropriated
owners, and where the Legislature has authorised such
expropriation, it was also bound to exercise the power of making
a law laying down the principles on which such owners should be
compensated for their loss. …While certain powers may be
granted in order to be exercised in favour of certain persons who E
are intended to be benefited by their exercise, and on that account
may well be regarded as coupled with a duty to exercise them
when an appropriate occasion for their exercise arises, the power
granted to a legislature to make a law with respect to any matter
cannot be brought under that category, It cannot possibly have F
been intended that the legislature should be under an
obligation to make a law in exercise of that power, for no
obligation of that kind can be enforced by the court against
a legislative body.”
(emphasis supplied)
G
140. Similarly, in Stateof Haryana v. Chanan Mal,45 while
upholding the constitutional validity of the Haryana Minerals (Vesting of
Rights) Act, 1973, after noticing the declaration made in Section 2 of the
44
1952 SCR 889
45
(1977) 1 SCC 340 H
572 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Mines and Minerals (Regulation and Development) Act, 1957, as
envisaged by Entry 54 of the Union List, it was held that exercise and
existence of power cannot be conflated:
“24. In the two cases discussed above no provision of the Central
Act 67 of 1957 was under consideration by this Court. Moreover,
B power to acquire for purposes of development and regulation has
not been exercised by Act 67 of 1957. The existence of power of
Parliament to legislate on this topic as an incident of
exercise of legislative power on another subject is one thing.
Its actual exercise is another. It is difficult to see how the field
of acquisition could become occupied by a Central Act in the
C same way as it had been in the West Bengal case even before
Parliament legislates to acquire land in a State. Atleast until
Parliament has so legislated as it was shewn to have done by the
statute considered by this Court in the case from West Bengal,
the field is free for State legislation falling under the express
D provisions of entry 42 of List III.”
(emphasis supplied)
141. Article 309 of the Constitution provides for recruitment and
conditions of service of persons serving the Union or a State. In terms
of Article 309, subject to the provisions of the Constitution, an appropriate
E legislature may enact a legislation to regulate the recruitment and
conditions of service of persons appointed to public services and posts in
connection with affairs of the Union or any State. The legislative field
indicated in this provision is the same as indicated in Entry 71 the Union
List or Entry 41 of the State List of the Seventh Schedule . In terms of
the proviso to Article 309, the President for the Union of India or the
F Governor of the State respectively or such person as they may direct,
have the power to make similar rules as a stopgap arrangement until
provisions in that behalf are made by the appropriate legislature. The
proviso to Article 309 is only a transitional provision46, as the power
under the proviso can be exercised only so long as the appropriate
G legislature does not enact a legislation for recruitment to public posts
and other conditions of service relating to that post. If an appropriate
legislature has enacted a law under Article 309, the rules framed under
the proviso would be subject to that Act.47 Article 309 provides that:
46
A.B. Krishna v. State of Karnataka, (1998) 3 SCC 495
H 47
B.S. Vadera v. Union of India, (1968) 3 SCR 575
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 573
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

“309. Recruitment and conditions of service of persons A
serving the Union or a State
Subject to the provisions of this Constitution, Acts of the appropriate
Legislature may regulate the recruitment, and conditions of service
of persons appointed, to public services and posts in connection
with the affairs of the Union or of any State: B
Provided that it shall be competent for the President or such person
as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor 2 *** of a
State or such person as he may direct in the case of services and
posts in connection with the affairs of the State, to make rules C
regulating the recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in that behalf
is made by or under an Act of the appropriate Legislature under
this article, and any rules so made shall have effect subject to the
provisions of any such Act.”
D
142. The rule-making function under the proviso to Article 309 is
transitional. The President with respect to the posts in connection with
the affairs of the Union, and the Governor in connection with the affairs
of State shall have the power to make rules under the proviso only until
a statute is enacted in this connection. Any rule that is made by the
President or the Governor shall be “Subject to the provisions of any such E
Act” made by the appropriate legislature. The exercise of power by the
President and the Governor under Article 309 does not in any way restrict
the power that is otherwise available under Article 309. The exercise of
rule making power by the President under Article 309 does not substitute
the legislative power granted. F
143. In Tulsiram Patel (supra), a Constitution Bench of this Court
held that the appropriate legislature, to enact laws under Article 309,
would depend upon the provisions of the Constitution with respect to
legislative competence and the division of powers. This Court further
held that the rules framed by the President or the Governor under Article G
309 must conform with a statute enacted in exercise of power under
Entry 70 of List I and Entry 41 of List II:
“51. Which would be the appropriate Legislature to enact
laws or the appropriate authority to frame rules would
depend upon the provisions of the Constitution with respect
H
574 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to legislative competence and the division of legislative
powers. Thus, for instance, under Entry 70 in List I of the Seventh
Schedule to the Constitution, Union Public Services, all-India
Services and Union Public Service Commission are subjects which
fall within the exclusive legislative field of Parliament, while under
Entry 41 in List II of the Seventh Schedule to the Constitution,
B
State public services and State Public Service Commission fall
within the exclusive legislative field of the State Legislatures. The
rules framed by the President or the Governor of a State must
also, therefore, conform to these legislative powers.”
(emphasis supplied)
C
144. The above discussion demonstrates that even if the President
has made relevant rules in exercise of his power under the proviso to
Article 309, the power of NCTD to legislate on “services” is not excluded.
Infact in the next section, we shall be dealing with instances of exercise
of legislative power by NCTD under Entry 41 of List II, that is, “services”.
D
145. In view of the above reasons, we hold that Part XIV is
applicable to Union territories as well.
M. Exercise of Legislative Power by NCTD on Entry 41
146. It has been argued on behalf of NCTD that numerous laws
E have been enacted by the Legislative Assembly of Delhi relating to
creation of posts and terms and conditions of service. Reliance was
placed upon different state services, such the Delhi Fire Services under
the Delhi Fire Service Act 2007, Delhi Commission for Safai Karamcharis
Act, 2006, Delhi Minorities Commission Act, 1999, Delhi Finance
F Commission Act, 1994, Delhi Lokayukta and UpaLokayukta Act, 1995,
Delhi Commission for Women Act, 1994, and Delhi Electricity Reform
Act, 2001. It was argued that these statutes which inter alia, create
posts and details of salary, was enacted in exercise of the subject
referable to Entry 41 of the State List.
147. However, Justice Ashok Bhushan in the 2019 split verdict
G
rejected this argument related to Delhi Fire Service Act 2007, as he held
that the statute falls under Entry 5 of the State List and not under Entry
41 of the State List. Justice Bhushan held:
“208. We may first notice that the word “services” used in the
Act has been used in a manner of providing services for fire
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 575
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

prevention and fire safety measures. The word “services” has A
not been used in a sense of constitution of a service. It is to be
noted that fire service is a municipal function performed by local
authority. Delhi Municipal Council Act, 1957 contains various
provisions dealing with prevention of fire etc. Further fire services
is a municipal function falling within the domain of municipalities,
B
which has been recognised in the Constitution of India. Article
243(W) of the Constitution deals with functions of the
municipalities in relation to matters listed in the 12th Schedule.
Entry 7 of the 12th Schedule provides for “Fire Services” as one
of the functions of the municipalities. The nature of the enactment
and the provisions clearly indicate that Delhi Fire Services Act C
falls under Entry 5 of List II and not under Entry 41 of List II.”
148. Article 243W of the Constitution read with Entry 7 of the
Twelfth Schedule provides that the legislature of a state may, by law,
endow on the municipalities responsibilities with respect to ‘fire services’.
Under Entry 5 of List II, an appropriate legislature may enact a law D
related to ‘local government, that is to say, the constitution and powers
of municipal corporations, improvement trusts, districts boards, mining
settlement authorities and other local authorities for the purpose of local
self-government or village administration’.
149. The test to determine whether a legislation creates a service E
under Entry 41 or not has been laid down by this Court. In the Constitution
Bench judgment in State of Gujarat v. Raman Law Keshav Lal,48
while holding that Panchayat Service contemplated under Section 203(1)
of the Gujarat Panchayats Act 1961 was a State civil service, it was
held that the administration of a service under a State broadly involves
the following functions: (i) the organisation of the Civil Service and the F
determination of the remuneration, conditions of service, expenses and
allowances of persons serving in it; (ii) the manner of admitting persons
to the civil service; (iii) exercise of disciplinary control over members of
the service and power to transfer, suspend, remove or dismiss them in
public interest as and when occasion to do so arises. This Court noted: G
“21. […] In the instant case, we feel that there is no compelling
reason to hold that the Panchayat Service is not a Civil Service
under the State. It is seen that further recruitment of candidates

48
(1980) 4 SCC 653 H
576 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to the Panchayat Service has to be made by the Gujarat Panchayat
Service Selection Board constituted by the State Government.
Entry 41 of List II of the Seventh Schedule to the
Constitution, as mentioned earlier, also refers to State
Public Services suggesting that there can be more than one
State Public Service under the State…... We have indeed a
B
number of such services under a State e.g. police service,
educational service, revenue service etc. State Public Services
may be constituted or established either by a law made by
the State legislature or by rules made under the proviso to
Article 309 of the Constitution or even by an executive
C order made by the State Government in exercise of its
powers under Article 162 of the Constitution. The recruitment
and conditions of service of the officers and servants of the State
Government may also be regulated by statute, rules or executive
orders. The administration of a service under a State involves
broadly the following functions: (i) the organisation of the
D
Civil Service and the determination of the remuneration,
conditions of service, expenses and allowances of persons
serving in it; (ii) the manner of admitting persons to civil
service; (iii) exercise of disciplinary control over members
of the service and power to transfer, suspend, remove or
E dismiss them in the public interest as and when occasion
to do so arises. […]”
(emphasis supplied)
150. Thus, to determine whether the power to enact a legislation
is traceable to Entry 41 of the State List, it is necessary to examine
F whether that legislation contains provisions regulating the recruitment,
conditions of service, and exercise of control including power to transfer,
and suspend. It is with this approach in mind that we need to examine
the Delhi Fire Service Act 2007.
151. The Delhi Fire Service Act 200749 was enacted by the
G Legislative Assembly of NCTD to provide for “maintenance of a fire
service and to make more effective provisions for the fire safety
prevention and fire safety measures in certain buildings and premises in
the National Capital Territory of Delhi and the matters connected

49
H Delhi Fire Service Act 2007, Delhi Act 2 of 2009
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 577
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

therewith.” The Delhi Fire Service Act 2007 is a comprehensive Act A
which replaced three legislations or, as the case may be, rules which
operated in NCTD:
a. The United Provinces Fire Safety Act 1944, as extended to
Delhi. The Act was notified by the Governor of the United
Provinces in exercise of the powers assumed by him under B
a Proclamation issued under Section 93 of the Government
of India Act 1935. The Act was enacted to constitute and
maintain a provincial fire service in the United Provinces
for staffing and operating the fire brigades;
b. The Delhi Fire Service (Subordinate Services) Rules 1945 C
framed under Section 241(1)(b) and Section 241(2)(b) of
the Government of India Act 193550; and
c. The Delhi Fire Prevention and Fire Safety Act 1986. The
Act which was enacted by Parliament focused on making
effective provisions for fire prevention and fire safety D
measures in the Union Territory of Delhi. It did not contain
any provision related to maintenance of a ‘fire service’.
152. The purpose of the Delhi Fire Service Act 2007 is to provide
for “maintenance of a fire service”. Section 2(l) defines ‘Fire Service’
to mean the Delhi Fire Service constituted under Section 5 of the Act. E
Section 5 stipulates the constitution of a fire service. In terms of Section
5(a), the Fire Service shall consist of such numbers in several ranks and
have such organization and such powers, functions and duties as the
Government may determine. In terms of Section 5(b), the recruitment
to, and the pay, allowances and all other conditions of service of the
members of the Fire Service shall be such as may be prescribed. Section F
3 stipulates that there would be one fire service for the whole of Delhi
and all officers and subordinate ranks of the fire service shall be liable
for posting to any branch of the Fire Service. Chapter II of the Act
provides for the organization, superintendence, control and maintenance
of the fire service. Chapter III provides for the control and discipline of G
the fire service.
153. The Delhi Fire Service is constituted under the Delhi Fire
Service Act 2007, enacted by the Legislative Assembly of NCTD.

50
Section 65, The Delhi Fire Service Act 2007 H
578 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Provisions relating to administration, recruitment and conditions of service
have been provided in the framework of the Act. In terms of Section 4,
the superintendence of, and control over, the Fire Service vests in the
Government, as defined in the Act. Section 6 provides for the
classification of posts of the Fire Service into Group A, B, C and D
posts. Section 7 stipulates that the Government shall make appointments
B
to any Group A or Group B posts after consultation with the Union Public
Service Commission. Section 8 stipulates the appointment of a Director
of the Delhi Fire Service for the direction and supervision of the Fire
Service in Delhi. Section 14 stipulates that the Central Civil Services
(Conduct) Rules 1964 and the Central Civil Services (Classification,
C Control and Appeals) Rules 1965 and the Central Civil Services (Pension)
Rules 1972, as amended, shall be extended mutatis mutandis to all
employees of the Delhi Fire Service.
154. Furthermore, under the powers conferred by Section 63 of
the Act, the Lieutenant Governor has notified the Delhi Fire Service
D Rules 2019, regulating the establishment, organization, and management
on the Services. Rule 9 provides that the recruitment to various ranks in
Fire Service shall be made in accordance with the recruitment rules
notified by the Government. Rule 10 provides that the pay and allowances
for various ranks in Fire Service shall be in accordance with the
E recommendations of the Pay Commission or any other authority as may
be appointed by the Government.
155. On an analysis of the provisions of the Delhi Fire Service
Act 2007 and the Rules of 2019, it is clear that the statute includes
posts, their recruitment process, salary and allowance, disciplinary
F power and control – all of which are constituents of a “service” under
Entry 41 of the State List, as held in Raman Law Keshav Lal (supra).
Thus, the Delhi Fire Service Act 2007 was enacted by the Legislative
Assembly of NCTD in exercise of its power under Entry 41 of the
State List.

G 156. NCTD has already exercised its legislative power relating to
Entry 41 of the State List. However, the contours of “services” are very
broad, and may be related to even “public order”, “police”, and “land” –
which are outside the legislative domain and executive domain of NCTD.
The question that then emerges is what “services” are within the domain
of NCTD.
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 579
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

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

158. This Court has laid down that the scope of an Entry in the
Seventh Schedule needs to be read widely. In IK Saksena v. State of
Madhya Pradesh51, a four judge Bench of this Court held that the
entries in Schedule VII have to be read in their widest possible amplitude.
The Bench held that the area of legislative competence defined by Entry D
41 is far more comprehensive than that covered by Article 309:
“32. It is well settled that the entries in these legislative lists in
Schedule VII are to be construed in their widest possible amplitude,
and each general word used in such entries must be held to
comprehend ancillary or subsidiary matters. Thus considered, it E
is clear that the scope of Entry 41 is wider than the matter
of regulating the recruitment and conditions of service of
public servants under Article 309. The area of legislative
competence defined by Entry 41 is far more comprehensive
than that covered by the proviso to Article 309.” F
(emphasis added)
159. But, in our context, we may not be able to read Entry 41 in
relation to NCTD in the widest possible sense because all entries in List
II (including Entry 41) need to be harmonized with the limitation laid
down in Article 239AA(3)(a) on NCTD’s legislative and executive power G
by excluding matters related to ‘public order’, ‘police’, and ‘land’.
160. The legislative and executive power of NCTD over Entry 41
shall not extend over to services related to “public order”, “police”, and
51
(1976) 4 SCC 750 H
580 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “land”. However, legislative and executive power over services such as
Indian Administrative Services, or Joint Cadre services, which are
relevant for the implementation of policies and vision of NCTD in terms
of day-to-day administration of the region shall lie with NCTD. Officers
thereunder may be serving in NCTD, even if they were not recruited by
NCTD. In such a scenario, it would be relevant to refer, as an example,
B
to some of the Rules, which clearly demarcate the control of All India or
Joint-Cadre services between the Union and the States. NCTD, similar
to other States, also represents the representative form of government.
The involvement of the Union of India in the administration of NCTD is
limited by constitutional provisions, and any further expansion would be
C contrary to the constitutional scheme of governance.
161. We shall take the example of the Indian Administrative Service
(Cadre) Rules, 1954, which deal with the posting of IAS Officers. Rule
2(a) defines ‘cadre officer’ to mean a member of IAS. Rule 2(b) defines
‘Cadre post’ as any post specified under item I of each cadre in the
D schedule to the Indian Administrative Service (Fixation of Cadre Strength)
Regulations, 1955. Rule 2(c) defines ‘State’ to mean a State specified in
the First Schedule of the Constitution and includes a Union Territory.
Rule 2(d) defines ‘State Government concerned’, in relation to a Joint
cadre, to mean the Joint Cadre Authority. The constitution and composition
of a ‘Joint Cadre Authority’ is understood with reference to the All India
E Services (Joint Cadre) Rules 1972. The 1972 Rules apply to a “Joint
Cadre constituted for any group of States other than the Joint Cadre of
Union Territories.”52 Rule 3 of the IAS (Cadre) Rules 1954 provides for
the constitution of cadres for each State or group of States “as a ‘State
Cadre’ or, as the case may be, a ‘Joint Cadre’”. Rule 5 empowers the
F Central Government to allocate cadre officers to various cadres. In terms
of Rule 5(1), the allocation of cadre officers to the various cadres shall
be made by the Central Government in consultation with the State
Government or the State Government concerned. Rule 7 stipulates that
all appointments to cadre posts shall be made “on the recommendation
of the Civil Services Board” — by the State Government “in the case of
G a state cadre”, and by the State Government concerned, as defined in
Rule 2(d), “in the case of a joint cadre”. Under Rule 11A, the “Government
of that State” is provided with powers to take decisions under Rule 7
(and other mentioned rules) in relation to the members of the Joint Cadre

52
H Section 1(i), All India Services (Joint Cadre) Rules 1972
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 581
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

Service “serving in connection with the affairs of any of the Constituent A
States”. A combined reading of Rules 2, 7, and 11A indicates that the
postings within the State Cadre as well as Joint Cadre of a Constituent
State shall be made by the “Government of that State”, that is, by the
duly elected government. In our case, it shall be the Government of
NCTD. We accordingly hold that references to “State Government” in
B
relevant Rules of All India Services or Joint Cadre Services, of which
NCTD is a part or which are in relation to NCTD, shall mean the
Government of NCTD.
162. We reiterate that in light of Article 239AA and the 2018
Constitution Bench judgment, the Lieutenant Governor is bound by the
aid and advice of the Council of Ministers of NCTD in relation to matters C
within the legislative scope of NCTD. As we have held that NCTD has
legislative power over “services” (excluding ‘public order’, ‘police’, and
‘land’) under Entry 41 in List II, the Lieutenant Governor shall be bound
by the decisions of GNCTD on services, as explained above. To clarify,
any reference to “Lieutenant Governor” over services (excluding services D
related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean
Lieutenant Governor acting on behalf of GNCTD.
163. The division of administrative powers between the Union
and the NCTD as explained in this section must be respected.
O. Conclusion E

164. In view of the discussion above, the following are our
conclusions:
a. There does not exist a homogeneous class of Union
Territories with similar governance structures; F
b. NCTD is not similar to other Union Territories. By virtue
of Article 239AA, NCTD is accorded a “sui generis”
status, setting it apart from other Union Territories;
c. The Legislative Assembly of NCTD has competence over
entries in List II and List III except for the expressly G
excluded entries of List II. In addition to the Entries in List
I, 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);
H
582 SUPREME COURT REPORTS [2023] 9 S.C.R.

A d. 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;
e. The Union of India has executive power only over the three
entries in List II over which NCTD does not have legislative
B competence;
f. The executive power of NCTD with respect to entries in
List II and List III shall be subject to the executive power
expressly conferred upon the Union by the Constitution or
by a law enacted by Parliament;
C g. The phrase ‘insofar as any such matter is applicable to Union
Territories’ in Article 239AA(3) cannot be read to further
exclude the legislative power of NCTD over entries in the
State List or Concurrent List, over and above those subjects
which have been expressly excluded;
D h. With reference to the phrase “Subject to the provisions of
this Constitution” in Article 239AA(3), the legislative power
of NCTD is to be guided, and not just limited, by the broader
principles and provisions of the Constitution; and
i. NCTD has legislative and executive power over “Services”,
E that is, Entry 41 of List II of the Seventh Schedule because:
(I) The definition of State under Section 3(58) of the
General Clauses Act 1897 applies to the term “State”
in Part XIV of the Constitution. Thus, Part XIV is
applicable to Union territories; and
F
(II) The exercise of rule-making power under the proviso
to Article 309 does not oust the legislative power of
the appropriate authority to make laws over Entry
41 of the State List.
165. We have answered the issue referred to this Constitution
G Bench by the order dated 6 May 2022. The Registry shall place the
papers of this appeal before the Regular Bench for disposal after obtaining
the directions of the Chief Justice of India on the administrative side.

Bibhuti Bhushan Bose Reference answered.
H (Assisted by : Rahul Rathi, LCRA)