Delhi not similar to other UTs, LG can't have administration over all issues: Supreme Court

New Delhi: The Supreme Court on Thursday said the Lt Governor (LG) cannot have administrative supervision over all issues relating to Union Territory of Delhi and the term "administration" cannot be understood as the entire administration of the Government of National Capital Territory of Delhi (GNCTD), otherwise, the purpose of giving powers to a constitutionally recognised, democratically elected government would be diluted.

A five-judge constitution bench, headed by Chief Justice of India D.Y. Chandrachud, said: "There does not exist a homogeneous class of Union Territories with similar governance structures; 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".

The bench - also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha - said 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 bench said: "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 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."

It noted that the executive administration by the LG, in his discretion, can only extend to matters which fall outside the purview of the powers conferred on the Assembly but it extends to powers or functions 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 Chief Justice, who authored the unanimous judgment on behalf of the bench, said: "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."

The bench made it clear that the legislative and executive power of the NCTD over Entry 41 shall not extend over to services related to "public order", "police", and "land". It said that the NCTD, similar to other states, also represents the representative form of government and 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.

The bench said: "We reiterate that in light of Article 239AA and the 2018 Constitution Bench judgment, the Lt 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 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... To clarify, any reference to 'Lieutenant Governor' over services (excluding services related to 'public order', 'police', and 'land') in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD".

The bench said 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 government of NCTD to give expression to the will of the people of Delhi who elected it," it said.

The bench noted that the members of the legislative assembly have been chosen by the electorate to act in their stead, and thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate.

The Chief Justice said: "The principles of democracy and federalism are essential features of our Constitution and form a part of the basic structure. 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."

"While NCTD is not a full-fledged state, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects 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 people of NCTD."

The bench observed that while NCTD remains a UT, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union and NCTD.

"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. The Union and NCTD need to cooperate in a similar manner to the Union and the States," said the bench.

At the beginning of pronouncement of the judgment, the apex court said it does not agree with Justice Ashok Bhushan's split judgment that Delhi government has no power at all over services.

A two-judge bench of the apex court had in February 2019 delivered a split verdict on the powers of the Delhi government and Centre vis a vis administrative services in the national capital. The matter went to a three-judge bench, which in May 2022, referred the question to a constitution bench.

The apex court verdict came on the dispute between the Centre and Delhi government over control of administrative services in the national capital.