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Drawing the curtains on an eight-year-long legal battle between the Delhi government and the Centre. The 21\/05\/2015 Notification issued by the Union Ministry of Home Affairs provided that the Lieutenant Governor (LG) of NCTD shall exercise control to the extent delegated to him from time to time by the president over the facility, in addition to public order police land. The (LG) may take the views of the Chief Minister of NCTD at his Discretion.
According to the constitution of India: – The notification of 2015, added Entry 41 to the expectation of Article 239AA(3)(a) and gave power to the Lieutenant Governor of Delhi to make law on it, which denied the power to the Lieutenant Governor or The Government of NCTD to the same.
The Delhi government challenged this sometime recently the Delhi High Court, which in 2017 upheld the notification. On the petition, a two-judge Bench of the Apex Court referred the issue to a bigger constitutional Bench.
In 2018, a five-judge Constitutional Bench, headed by Chief Justice of India Deepak Mishra, unanimously laid down the law governing the relationship between the Delhi government. While the Constitution bench decided the larger question, a two-judge bench decided the specific issues.<\/p>\n
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Whether the Union Home Ministry noticed that the Lieutenant Government of Delhi shall exercise control over services
Or Whether the Lieutenant Governor has legislative and Executive control over Entry 41 mentioned under the State List II of the 7th schedule of the constitution.<\/p>\n
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i. The counsels for Petitioner \/ Appellant submitted the following matters: –<\/p>\n
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a) According to Entry 41 of List II of the seven Schedules, the Legislative Assembly of NCTD has the power to make laws. The power cannot be excluded merely because the term entry is used under \u201cstate public services\u2019\u2019 and not \u2018union Territory public services\u2019\u2019. The Delhi Legislative Assembly has made laws that fall within Entry 41;
b) Even if it is found that the legislature of NCTD did not use 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 excluded by Article 239AA;
d) NCTD is sui generis. It is not similar to other Union Territories;
e) Union of India V. Prem Kumar Jain, in this case, the Court has recognised that the provision of Part XIV of the Constitution extends to Union territories;<\/p>\n
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Made the following submission on behalf of the Union of India: –<\/p>\n
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i. Entry 41 List is not available for Union Territories, because it cannot have either a State Public Service or a State Public Commission;
ii. In the 2018, Constitution Bench Judgment did not decide whether NCTD has legislative competence over Entry 41 of List II ;
iii. Delhi, as the national capital, enjoys a special status which requires the Union to have control over all services, in the absence of which it would become impossible for the union to discharge its national responsibilities;
iv. The expression \u2018in so far as any such matter applies to union territories\u2019\u2019 in Article 239AA indicates that the power granted to the National Capital Territory of Delhi is limited to those matters that are relevant to the Union Territory. This means that NCTD can exercise legislative authority only over issues that directly pertain to Union territories. The Constitution specifies that N CTD’s
Legislative power extends solely to matters that are specifically applicable in this context suggesting a narrower focus. Therefore, NCTD can be legislated on an issue only if is clearly and unmistakably relevant to Union Territories as a category.<\/p>\n
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v. The Centre argued that in the 2018 ruling, the court did not analyse two crucial phrases in Article 239AA(3)(a). The Centre argued that since no Union Territory has power over service, Delhi too could not exercise such power. Essentially, Delhi could only legislate on issues that other Union territories are explicitly allowed to legislate upon.<\/p>\n
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i. \u201cParliament 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 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\u2026
ii. While Parliament has exclusive power Under Article 246(1) of the Constitution to make laws concerning the matters enumerated in the Union List, the State Legislature has exclusive power to make laws concerning matters enumerated in the State List, subject to Clauses (1) and (2) of Article 246. Along with the Union Assembly, the State Governing body is too competent to order laws regarding the things listed in the Concurrent List, subject to the arrangements\u00a0
so that the last mentioned may not be rendered nugatory. \u201cArticle 246(1) \u2026<\/p>\n
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iii. A Constitution Beach of in this case his Court, Rajendra Diwan V. Pradeep Kumar Ratnabala held; –
While the widest amplitude should be given to the language used in one entry, every attempt has to be made to harmonise its contents with those of other Entries, so that the latter may not be rendered nugatory.\u201d<\/p>\n
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