In CIVIL APPEAL No.2357 of 2017-SC- Top Court refers issue pertaining to scope of powers of Centre and NCT Delhi with respect to term ‘services’ in Entry 41, List II of Seventh Schedule of Constitution to 5-Judge Bench Justices N.V.Ramana, Surya Kant & Hima Kohli [06-05-2022]

Read Judgment: Govt. of NCT of Delhi v. Union of India

Tulip Kanth

New Delhi, May 09, 2022: The Supreme Court has referred the issue of legislative and executive competence of Centre and Delhi Government in relation to subject matter of services in Entry 41 of List II of Seventh Schedule of Constitution to 5-Judge Bench.

The Larger Bench of Justice N.V.Ramana, Justice Surya Kant and Justice Hima Kohli deemed it necessary to consider this issue as all the issues except this one pending consideration before this bench, had been elaborately dealt with. 

This was the third round of the lis between the present parties and so, the context of the current dispute before this three-Judge Bench was succinctly set out.The first round of proceedings culminated into a reference to a Constitution Bench to decide the issues regarding the interpretation of Article 239AA of the Constitution. Article 239AA provides the constitutional bulwark for the exercise of legislative powers by the Legislative Assembly of the Union Territory of Delhi and the Parliament in respect of the National Capital Territory of Delhi. It governs the relationship between these two legislative bodies to enact laws in relation to corresponding subjects as well as the power of the Parliament to annul the laws made by the Union Territory through the doctrine of repugnancy.

The Constitution Bench delivered three separate concurring opinions on the interpretation of Article 239AA of the Constitution  and the matter was thereafter placed before a two-Judge Bench of this Court to decide the remaining issues in light of the principles enunciated by the Constitution Bench. 

In the second round of the proceedings, the two-Judge Bench resolved all issues except for one, which was with regard to the legislative competence of the Govt. of NCT of Delhi in relation to the subject matter of services as contained in Entry 41 of List II of the Seventh Schedule of the Constitution. Both the judges held divergent viewpoints on this issue, primarily hinged on the interpretation accorded by them to the phrase in so far as any such matter is applicable to Union Territories which finds mention in sub-clause (a) of clause (3) of Article 239AA. Accordingly, the matter was referred to a larger Bench. This is how this matter reached the present Bench.

In the meantime, Union of India moved an application seeking reference of the present dispute to a Constitution Bench keeping in view Article 145(3) of the Constitution, on the premise that the erstwhile Constitution Bench, while construing Article 239AA, had not elucidated on the true meaning and import of the expression in so far as any such matter is applicable to Union Territories as mentioned in subclause (a) clause (3) of Article 239AA. 

The Respondent(Union of India) had also raised the issue that the interpretation of the phrase Subject to the provisions of this Constitution as contained in the same sub-clause, had not been prominently explained in the Constitution Bench’s decision and it was urged that in the absence of a conclusive pronouncement on the interpretation of these two phrases, the ongoing controversy relating to the scope of legislative competence of the Govt of NCT of Delhi in relation to the subject matter of services cannot be authoritatively settled without reference to a Constitution Bench, as envisaged under Article 145(3) of the Constitution.

The Respondent had further alluded to the amendments brought through the Government of National Capital Territory of Delhi (Amendment) Act, 2021 and Transaction of Business of the Government of National Capital Territory of Delhi (Amendment) Rules, 2021, constitutionality whereof had been challenged by the Appellant in a Writ Petition. It was asserted that the interpretation of clause (3) of Article 239AA of the Constitution, is not only the central point for determination in the instant case but would also have an indelible impact on the validity of the said amendments. The aforementioned writ petition had also been tagged with the present civil appeal.

From the side of NCT of Delhi, the Counsel opined that Article 239AA(3) has been exhaustively interpreted by the erstwhile Constitution Bench, both in explicit as well as in implicit term and the solitary unresolved issue could be conclusively decided by the present three judges bench, without any legal necessity to make a further reference to a Constitution Bench. It was also posited that the question of interpretation of Article 239AA(3) of the Constitution having been authoritatively settled by the earlier Constitution Bench, could not be reopened on the mere asking of the Respondent as the same would be contradictory to the doctrine of precedent.

It was put forth that the main bone of contention relates to the interpretation of the phrases: in so far as any such matter is applicable to Union Territories and Subject to the provisions of this Constitution as contained in Article 239AA(3)(a) of the Constitution.

The Larger Bench affirmed, “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 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.”

Thus, the Bench held that it would be appropriate to refer the above limited question, for an authoritative pronouncement by a Constitution Bench in terms of Article 145(3) of the Constitution.

The Apex Court directed the Registry to place the papers of the present appeal as well as the connected writ petition before the Chief Justice of India on the administrative side for constituting a Bench of five judges.