SC bench to examine Parliament's lawmaking power for Delhi

The Supreme Court has said a five-judge constitution bench will examine the "contours of the power" of Parliament to make law for Delhi and also if it can "abrogate the constitutional principles of governance" for the city dispensation by making a law to take away its control over services.

Eight days after a constitution bench held that the Delhi government will have control over services, the Centre on May 19 promulgated an ordinance on the Delhi services matter by exercising its powers under Article 239-AA, a special provision in the Constitution pertaining to the national capital.

The top court, which on Thursday referred to a constitution bench the Delhi government's plea challenging the ordinance, framed two legal questions in its 10-page order to be dealt by a larger bench on the ordinance which set off a fresh tussle between the two power centres.

"We accordingly refer the following questions to a 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 the National Capital Territory of Delhi (NCTD)," said the order passed by a bench of Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra.

The bench said there was a need to put an end to the protracted legal battle between the Centre and the Delhi government on the administration of the national capital and directed the apex court registry to place the case papers before the CJI in administrative side for setting up of the constitution bench to answer the referred legal questions.

The order, penned by the CJI, said there were two preliminary issues which arose for the consideration by a larger bench.

"The first is on the import of Section 3A (of the ordinance). Section 3A removes Entry 41 (services) of List II (State List) from the legislative competence of the NCTD. On the exclusion of Entry 41 from the NCTD's legislative power, the government of the NCTD ceases to have executive power over services because executive power is co-terminus with the legislative power," the order said.

The issue, therefore, is whether a law could completely remove Delhi government's executive power over services, it said, adding that the aspect of services under Entry 41 was also "interconnected with the validity of Section 3A" of the ordinance.

The ordinance amended the Government of National Capital Territory of Delhi Act, 1991 and inserted section 3A in the Act stipulating that Delhi assembly cannot make laws on control of services in the national capital, the order said.

"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," it said.

Referring to Article 239-AA(7)(a), which was used by the Centre in issuing the Ordinance, it said the central law shall not be deemed to be an amendment to the Constitution even.

"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," the order said.

This apparent conflict between the two clauses on the nature of law making power in relation to Delhi's constitutional structure of governance needs to be resolved by this court, it said.

The bench said that the two constitution bench judgements of 2018 and 2013 on the Delhi-Centre row have not dealt with the power of the Centre to make law under Article 239AA (7).

"We are of the considered opinion that the disposal of the writ petition requires this court to answer a substantial question of law as to the interpretation of the Constitution," it said.

On Thursday, the top court rejected the vehement submission of the Delhi government that there was no need for referring the matter to a constitution bench as it will "paralyse the whole system" during its pendency.

During a brief hearing, the bench raised a query with regard to the ordinance and said it took away the control of services from the control of Delhi government.

The Constitution excludes three entries of List II (state list) related to police, law and order and land from the control of the Delhi government, it said.

"What you (Centre) have effectively done is that the Constitution says barring three entries, Delhi legislative assembly has the power. But, the Ordinance takes away Entry 41 (services) (of the List II) also from the power. That is the effect of Section 3A of the Ordinance," the bench said.

Senior advocate Harish Salve, appearing for the central government's point man Lieutenant Governor VK Saxena, referred to previous judgements and said for a union territory the state list becomes concurrent list and hence Parliament has power to legislate.

Salve justified the termination of services of 437 independent consultants appointed by the Delhi government by the orders of the LG.

The Delhi government made "rank illegal appointments" of undeserving persons, who happened to be Aam Aadmi Party workers, and they were terminated by the LG and for that the ordinance was not needed at all, he said.

Singhvi, appearing for the Delhi government, said the reference of the case to a constitution bench was not needed as the matter can be decided by a three-judge bench.

Article 239AA deals with special provisions with respect to Delhi in the Constitution and its sub-article 7 says, "Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto."

It also says any such law made under the Article "shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution."

The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to create an authority for transfer and posting of Group-A officers in Delhi.

The AAP government termed it a "deception" with the Supreme Court verdict on control of services.

The ordinance seeks to set up a National Capital Civil Service Authority for transfer of and disciplinary proceedings against Group-A officers from the Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services cadre.

The chief minister is one of the three members of the authority, while two others are bureaucrats. The decisions by the Authority are to be taken by a majority and, in the event of a dispute, the matter will be referred to the LG whose decision will be final.

Transfer and posting of all officers of the Delhi government were under the executive control of the LG before the May 11 top court verdict.

A five-judge constitution bench headed by CJI Chandrachud, in a unanimous verdict, had sought to put an end to the eight-year-old dispute between the Centre and the Delhi government triggered by a 2015 home ministry notification asserting its control over services, holding the National Capital Territory administration is unlike other union territories and has been accorded a 'sui generis' (unique) status by the Constitution.

Against the backdrop of frequent run-ins between the AAP government and the lieutenant governor, the apex court had asserted an elected government needs to have control over bureaucrats, failing which the principle of collective responsibility will be adversely affected.

Prior to this, another five-judge Constitution bench, in 2018, had unanimously held that the Delhi LG was bound by the aid and advice of the elected government, and both needed to work harmoniously with each other.