In a significant development, the Supreme Court of India has decided to form a five-judge constitution bench to address the question of whether Parliament can "abrogate the constitutional principles of governance" for the Delhi government by making a law that takes away its control over services. The decision came after the Centre issued an ordinance on the Delhi services matter, invoking its powers under Article 239-AA of the Constitution, which pertains to the special provisions for the national capital.
The apex court, in a recent order, referred the Delhi government's plea challenging the Centre's ordinance to the constitution bench. This move will allow the larger bench to delve into the legal questions arising from the ordinance. The order was passed by a bench headed by Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra, according to PTI.
"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)," stated the order.
The court's order, penned by Chief Justice Chandrachud, delved into two preliminary issues to be considered by the larger bench. The first issue focused on the import of Section 3A of the ordinance. This section removes Entry 41 (services) of List II (State List) from the legislative competence of the NCTD, effectively taking away the executive power of the Delhi government over services.
The order clarified that the government's executive power is co-terminus with its legislative power. Hence, the key question is whether a law can entirely strip the Delhi government of its executive authority over services. Furthermore, the matter of services under Entry 41 was intertwined with the validity of Section 3A of the ordinance.
The Delhi government, represented by its counsel, strongly objected to the reference to a constitution bench, arguing that it would paralyze the entire system during the pendency of the case. However, the Supreme Court proceeded with the referral and raised a crucial query regarding the ordinance's impact on the Delhi government's control over services.
The Constitution already excludes three entries of List II (State List) related to police, law and order, and land from the control of the Delhi government. The bench pointed out that the ordinance, by taking away Entry 41 (services) from the legislative power of the Delhi Legislative Assembly, effectively expanded its scope beyond the three excluded entries. This raised concerns about the constitutional balance of power between the Centre and the Delhi government.
Article 239AA of the Constitution contains special provisions for Delhi, and its sub-article 7 grants Parliament the authority to enact laws for giving effect to, or supplementing, the provisions contained in the preceding clauses. The court observed that such laws would not be treated as constitutional amendments under Article 368, even if they contained provisions that amended the Constitution.
The Centre had earlier promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, on May 19. This ordinance aimed to establish an authority for the transfer and posting of Group-A officers in Delhi.
