IN WP (C) 678 OF 2023 - SC – Delhi Govt’s challenge to Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023: Supreme Court refers to Constitution Bench the issue of whether Parliamentary law under Article 239 AA (7) can alter the Constitutional powers of the Delhi Government
Chief Justice Dhananjaya Y. Chandrachud, Justice Pamidighantam Sri Narasimha and Justice Manoj Misra [20.07.2023]

Read Order:  Government of National Capital Territory of Delhi v. Union of India

Simran Singh

New Delhi, July 21, 2023: Raising questions on the contours of the powers of the Parliament under Article 239AA(7) of the Constitution to enact a law, the Supreme Court referred to a Constitution Bench the Delhi Government's challenge to the Ordinance issued by the Central Government that amended the Government of National Capital Territory of Delhi Act 1991.

The Government Of National Capital Territory Of Delhi (Amendment) Ordinance, 2023 excluded services from the Delhi government’s ambit by virtue of its Section 3A. The full Bench of the Chief Justice Dhananjaya Y. Chandrachud, Justice Pamidighantam Sri Narasimha and Justice Manoj Misra observed, "In effect, Section 3A amends Article 239-AA".

In the matter at hand, Article 239AA was a Constitutional provisions dealing with the National Capital Territory of Delhi which specifically excluded only three entries of the state list from the powers of NCTD - Entries 1, 2 and 18 relating to police, law & order and land respectively. The Ordinance in question, the Government of National Capital Territory (Amendment) Ordinance, 2023, inserted Section 3A in the GNCTD Act, 1991 that took away the power of NCTD over the subject of ‘services’. Section 3A of the Ordinance stipulated that notwithstanding anything contained in any judgment, order, or decree of any Court, the Legislative Assembly of NCTD shall have no power to enact laws with respect to Entry 41 of List II of the Seventh Schedule to the Constitution(services).

In addition to excluding the legislative power of NCTD with respect to Entry 41 of List II, the NCT Ordinance also established a new scheme for the distribution of executive power over services between the Union of India and the Government of NCTD.

The Impugned Ordinance was promulgated after the Supreme Court's Constitution Bench ruled that the Delhi Government had the power over ‘services’.

However, it was noted that Article 239AA(7)(a) gave the Parliament the power to make laws with respect to ‘any matter' for NCTD and ‘giving effect to, or supplementing’ the provisions of Article 239-AA, and for all matters incidental to it. The said Article stipulated that such a law shall not be deemed to be an amendment to the Constitution even if the law amended the Constitution or had the effect of amending the Constitution.

The Full Bench noted that the power of Parliament over ‘services’ was not in dispute. The issue was whether such an exercise of power was valid. "The power of Parliament to enact a law granting the Union of India executive power over services is not in contention. It is now a settled position of law. However, this Court while deciding the constitutional validity of the 2023 Ordinance must decide if the exercise of such a power is valid”.

The Bench noted that there was an apparent conflict between Article 239AA(7)(a) and Article 239AA(7)(b), which had not been considered in earlier Constitution Bench judgments. "While Article 239-AA(7)(a) states that the law must only give effect to or supplement the provisions of Article 239-AA, 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 amendingArticle 239-AA.A primary reading of Article 239-AA(7)(a) indicates 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. 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 this Court”.

Therefore, the bench referred the following issues to the Constitution Bench :

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

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

The bench also observed that matter be expeditiously disposed of by the Constitution Bench "because of the protracted legal battle between the Union of India and the Government of NCTD on the administration of NCTD".