Delhi Ordinance: Supreme Court Refers Constitutional Questions to Larger Bench

Case Background

Following a judgment by a Constitution Bench of the Supreme Court on May 11, 2023, which affirmed the Delhi Government’s control over services (excluding public order, police, and land), the President of India promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 on May 19, 2023. This ordinance amended the Government of National Capital Territory of Delhi Act 1991. The ordinance introduced Section 3A, which excludes Entry 41 of List II of the Seventh Schedule from the legislative competence of the Delhi Legislative Assembly, effectively removing the Delhi Government’s control over services. The ordinance also established the National Capital Civil Service Authority, which has the power to recommend transfers and postings of Group A officers and DANICS officers serving in Delhi. The Lieutenant Governor has the final say in case of a difference of opinion with the Authority.

Timeline

Course of Proceedings

The Government of NCT of Delhi filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the 2023 Ordinance. The petitioner also sought a stay of the ordinance, arguing that it prevents the elected government from fulfilling its mandate. The Union of India defended the ordinance, referring to the Supreme Court’s observations in the 2023 Constitution Bench judgment regarding the executive power of the Union. The Lieutenant Governor argued that the consultants were terminated due to arbitrary appointments.

Legal Framework

The core of the legal framework revolves around Article 239AA of the Constitution, which grants special status to Delhi. Article 239AA(3)(a) stipulates that the Legislative Assembly of NCTD has the power to make laws with respect to matters enumerated in the State List and Concurrent List, except for Entries 1, 2, and 18 of List II. Article 239AA(3)(b) grants Parliament the power to make laws with respect to “any matter” for NCTD. Article 239AA(7) allows Parliament to enact laws to give effect to or supplement the provisions of Article 239AA. Specifically, Article 239AA(7)(b) states that such laws shall not be deemed an amendment to the Constitution, even if they amend or have the effect of amending the Constitution.

The relevant provisions are:

• Article 239AA(3)(a) of the Constitution: Defines the legislative powers of the Delhi Legislative Assembly.
• Article 239AA(3)(b) of the Constitution: Grants Parliament the power to make laws for NCTD on any matter.
• Article 239AA(7) of the Constitution: Empowers Parliament to enact laws to give effect to or supplement the provisions of Article 239AA, stating that such laws shall not be deemed as a constitutional amendment.
• Section 3A of the Government of National Capital Territory of Delhi Act 1991: Stipulates that the Legislative Assembly shall have the power to enact laws as prescribed in Article 239- AA, except with respect to Entry 41 of List II of the Seventh Schedule to the Constitution.

Arguments

The Government of NCT of Delhi challenged the ordinance on the following grounds:

• Constitutional Amendment: The petitioner argued that Section 3A of the ordinance, by excluding Entry 41 of List II from NCTD’s legislative power, effectively amends Article 239AA(3)(a) of the Constitution, which is not permissible.
• Executive Power: The ordinance removes the executive power of the elected government over the day-to-day administration of Delhi and places it with the Lieutenant Governor, which is against the principles of collective responsibility and the triple chain of accountability.
• Article 239AA(7)(b): The petitioner contended that Article 239AA(7)(b) does not grant Parliament the power to abolish the constitutional scheme of governance for NCTD. It is not a sui generis provision to override the constitutional scheme.
• Ordinance Validity: The petitioner argued that the President could not have promulgated the ordinance because there was no urgency to do so, especially since the monsoon session of Parliament was approaching.

The Union of India, represented by the Solicitor General, argued that:

• The legislative power of the Union extends to all entries under the State List and Concurrent List.
• The executive power of the Union, in the absence of a law upon 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.
• Parliament can enact a law granting executive power on any subject within the domain of NCTD, which would modify the executive power of the Lieutenant Governor.

The Lieutenant Governor argued that the consultants were terminated because their appointments were arbitrary.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration by the Constitution Bench:

1. What are the contours of the power of Parliament to enact a law under Article 239-AA(7)?
2. Whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for NCTD?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

What weighed in the mind of the Court?

The Supreme Court’s decision to refer the matter to a Constitution Bench was primarily driven by the need to resolve the apparent conflict between Article 239AA(7)(a) and (b) of the Constitution. The court was concerned about the potential for the ordinance to alter the constitutional structure of governance for NCTD, which was established in Article 239AA. The court was also of the opinion that it would be appropriate for the Constitution Bench to dispose of the writ petition because of the protracted legal battle between the Union of India and the Government of NCTD on the administration of NCTD.

Key Takeaways

• The Supreme Court has acknowledged a significant constitutional question regarding the extent of Parliament’s power to modify the governance structure of Delhi.
• The interpretation of Article 239AA(7) will be crucial in determining the validity of the ordinance and the future governance of Delhi.
• The case highlights the ongoing tension between the elected government of Delhi and the Union government.
• The decision to refer the matter to a Constitution Bench indicates the gravity of the constitutional issues involved.

Directions

The Supreme Court directed the Registry to place the papers of the petition before the Chief Justice of India for the constitution of a Constitution Bench to answer the identified questions and dispose of the petition. The court also dismissed the interim application seeking a stay of the ordinance.

Development of Law

The ratio decidendi of this case is that the interpretation of Article 239AA(7) of the Constitution is a substantial question of law that requires the consideration of a Constitution Bench. This case does not change any previous position of law but raises questions on the extent of Parliament’s power to modify the constitutional scheme of governance for NCTD.

Conclusion

The Supreme Court has referred the critical questions regarding the constitutional validity of the Delhi Ordinance to a Constitution Bench. The core issue revolves around the interpretation of Article 239AA(7) and the extent of Parliament’s power to modify the governance structure of Delhi. The outcome of this case will have significant implications for the balance of power between the Delhi government and the Union government.