ordinance to constitution bench

Supreme Court: In a writ petition challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, (‘Ordinance') by which the powers for ‘services' matters were taken away from the Government of National Capital Territory of Delhi (‘GNCTD'), the Division Bench of Dr. D.Y. Chandrachud, CJI and PS Narasimha, JJ., referred the matter to a Five —Judge Constitution Bench.


On 19-5-2023, the President had promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (‘Ordinance') giving back the administrative powers to the Union. The Ordinance was promulgated just eight days after the Constitution Bench in State (NCT of Delhi) v. Union of India, 2023 SCC OnLine SC 606 had decided on the issue of administrative control over transfers and postings of civil servants in the National Capital Territory of Delhi (‘NCTD'). It was held that the GNCTD have legislative power over services, excluding power with respect to public order, police and land under Entry 41 List 2, the Lieutenant Governor shall be bound by the decisions of Government of NCTD on services. The Ordinance amends the Government of National Capital Territory of Delhi Act 1991.

In the petition, Section 45D of the Ordinance was also challenged which provides for ‘Constitution of authorities, boards, commissions or statutory bodies, stipulating that the President has the right to constitute authorities, boards, commissions or statutory bodies in/for the NCTD, taking away the powers relating to the same from the elected Government in the NCTD.

In the previous order of the Court, the Court had issued notice to the Union Government.

Court's Decision

The Court noted that the 2023 Ordinance was challenged on three broad grounds:

(i) Section 3A, by excluding NCTD's legislative power over Entry 41 of List II, in effect amends a constitutional provision, that is, Article 239- AA(3)(a);

(ii) The provisions of the NCT Ordinance remove the executive power vested in the Government of NCTD over the day-to-day administration of National Capital from the elected government of NCTD and place it exclusively in the Lieutenant Governor, a nominated head. The Court said that the Constitution Bench judgment in the specific context of ‘services' had observed that the people are the ultimate sovereign, and the executive is accountable to the public through the “triple chain of accountability”. The Court also added that the triple chain of accountability requires the permanent executives to be responsible to the elected Government, the elected Government to be responsible to the legislature, and the legislature to be responsible to the public and thus, the Court said that the 2023 Ordinance abrogates the principles of collective responsibility and the triple chain of accountability which are important facets of NCTD's governance structure;

(iii) Article 239-AA(7)(b) is not a sui generis provision in the constitutional scheme. Other provisions of the Constitution (such as Articles 4,169,239A, 244A,312, Part D Fifth Schedule, and Paragraph 21 Sixth Schedule) also stipulate that certain laws made by Parliament shall not deemed to be a Constitutional amendment though it has the effect of amending the Constitution. Article 239-AA(7)(b) does not vest Parliament with wide powers to abolish the constitutional scheme of governance envisaged for NCTD in Article 239-AA; and

(iv) The President could not have exercised the power to promulgate an Ordinance under Article 123 because circumstances which warranted immediate action did not exist. There was no urgency to promulgate the Ordinance when the monsoon session of Parliament was going to begin in a few months.

The Court added that the issue for consideration before the 2023 Constitution Bench was whether Article 239-AA(3)(a) of the Constitution, excludes by implication, NCTD's legislative competence over Entry 41 of List II and it was held that Article 239-AA does not exclude the legislative power of NCTD over any entries other than those which are expressly excluded. It was also held by the Constitution Bench that NCTD will have executive power over Entry 41 of List II because executive power is co-extensive with legislative power.

The Court also said that regarding the issue on the extent of executive power of the Union of India and the Government of NCTD on matters over which both Parliament and the legislative assembly of NCTD have the power to enact laws, the Constitution Bench held that on entries over which Parliament also has legislative competence, the executive power of NCTD shall be “subject to and limited by” the executive power expressly conferred upon the Union of India by provisions of the Constitution or a law made by Parliament. Thus, the position of the law is that a law enacted by Parliament can limit the executive power of NCTD over “services”.

The Court added that the question of power of Parliament to enact a law granting the Union of India executive power over services was a settled position of law, however, the Court must while deciding the constitutional validity of the 2023 Ordinance decide if the exercise of such a power is valid.

The Court figured two preliminary considerations, the first relating to the import of Section 3A which removes Entry 41 of List II from the legislative competence of NCTD and the other was relating to the Preamble of 2023 Ordinance which states that the law is made in exercise of powers under Article 239-AA(3)(b) and Article 239-AA (7). The Court perused Article 239-AA(3)(b) which states that Parliament has the power to make laws with respect to “any matter” for NCTD and Article 239-AA(7)(a) which grants Parliament the power to enact a law for “giving effect to, or supplementing” the provisions of Article 239-AA, and for all matters incidental to it. The Court also noted that the Article 239-AA(7)(b) states that the law shall not be deemed an amendment to the Constitution even if it has the effect of amending Article 239-AA.

The Court stated that the primary reading of Article 239-AA(7)(a) indicated that the law shall not alter the existing constitutional structure envisaged for NCTD in Article 239-AA, however, a prima facie reading of Article 239-AA(7)(b) denotes that the law enacted under Article 239-AA(7)(a) could alter the existing constitutional structure of governance of NCTD. Therefore, the Court said that this apparent conflict between the two clauses on the nature of law-making power vis-à-vis NCTD's constitutional structure of governance needs to be resolved by the Court.

The Court was of the considered opinion that the disposal of the said writ petition requires the Court to answer a substantial question of law as to the interpretation of the Constitution, as neither the 2018 Constitution Bench judgment nor the 2023 Constitution Bench judgment has dealt with the interpretation of Article 239-AA (7).

Therefore, the Court referred the following questions to a Constitution Bench:

  1. What are the contours of the power of Parliament to enact a law under Article 239-AA (7); and

  2. Whether Parliament in the exercise of its power under Article 239- AA (7) can abrogate the constitutional principles of governance for NCTD.

The Court also opined 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. Thus, the Court directed the Registry to place the papers of the said petition before the Chief Justice of India on the administrative side for the constitution of a Constitution Bench to answer the questions identified and for the disposal of the petition.

[Government Of NCT of Delhi v. Union of India, Writ Petition (Civil) No.669/2023, Order Dated 20-07-2023]

Also Read: Central Government notifies NCT of Delhi (Amendment) Ordinance, 2023; Lieutenant Governor to get control of ‘Services’


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