Addressing the constitutionality of the Delhi Ordinance, 2023

A Constitution Bench of the Supreme Court on May 11, 2023 unanimously held that the Government of NCT of Delhi would have power and control over ‘services’ in the capital, while striking down the Union Home Ministry's 2015 notification which excluded Entry 41 (dealing with State Public Service Commission) of the Constitution's Seventh Schedule from the legislative competence of the Delhi government.

The Supreme Court reiterated its position in its 2018 judgment which held that the executive power of the Council of Ministers of GNCTD would be co-extensive to that of the legislative power. This essentially meant that the GNCTD would have full control over the transfer, posting and appointment of officers in the National Capital Territory and legislative competence to establish the Public Service Commission (PSC) for Delhi.

However, in an anticipated move, the BJP-led Union government brought an Ordinance with an intention to nullify the Supreme Court’s judgment by restoring the position as existed prior to the judgment. Section 3 of the Ordinance inserted Section 3A in the GNCTD Act, which excludes the competence of the Delhi government to exercise legislative and executive control over the “services” as mentioned under Entry 41 of List II. Moreover, the Ordinance seeks to provide the sole discretionary power to the Lieutenant Governor (LG) in matters related to services.

In a previous article, it was argued by the author that the promulgation of the Delhi Ordinance is within the contours of the Constitution as the Supreme Court vide para 95 of the judgment has kept the gate open for the Centre to make a law in order to enhance the power of the LG vis-à-vis services. In this piece, I shall be critiquing the justification for the promulgation of the Ordinance.

The Delhi Ordinance fails to alter the legal basis of the Supreme Court's judgment

Time and again, the Supreme Court has held that the legislative branch is well within its scope to overrule judicial rulings provided that the legislative action taken to negate such rulings shall be considered valid only if the legal basis of the judgment is altered. In other words, if the gap or the defect in the legislation or the Constitution is cured by Parliament or the legislature. In the instant case, the legal basis of the judgment is Article 239AA(3)(a), which outlines the legislative and executive competence of the Delhi government to make laws on all subjects of the State List except land, police, law and order and the Concurrent List insofar as such matter is applicable to union territories. 

It has been contended that Para 95 of the Supreme Court's judgment accorded sanction to Parliament to enact a law curtailing the power of the Delhi government over services, and the Union has exercised the power to promulgate the Ordinance within the boundaries of the Constitution. With due respect, I am afraid that such an interpretation of the judgment and the Constitution will have a chilling effect to the doctrine of separation of power and judicial autonomy. Though it is correct that Parliament has a power to legislate over the list of matters contained in List II, and the executive power of the Union would also extend over such matters, here, the transfer of power over services from a democratically elected government to a un-elected nominee of the Union through an Ordinance lacks constitutional sanction. Nowhere does Section 239AA(3)(a) authorize the Union to make laws over Entry 41, List II. In other words, the legal basis of the judgment remains undisturbed because there is no alteration in the text of Article 239AA(3)(a), taking away legislative and executive power of the Delhi government over services.

Moreover, the Ordinance takes away the power of the Delhi government over services by simply including Entry 41, List II to the existing exclusions of List 1, 2 and 18 contained under Article 239AA(3)(a). The Ordinance was brought on the pretext that Article 239AA (7) provides Parliament a power to make laws over the State List matters and it shall not be deemed to be a constitutional amendment if such law gives effect to or supplementing the other provisions of Article 239AA. However, it is worthwhile to mention that the Ordinance neither gives effect to nor supplements the provision of Article 239AA(3)(a). Rather, it dilutes the democratic, representative and accountable features of the Constitution by taking away services from the ambit of a democratically elected Delhi government. Therefore, such a move to exclude the services from the ambit of the GNCTD through an Ordinance is invalid, as it would be possible only through the route of a constitutional amendment, which is missing in the present case.

Another interesting facet of the Ordinance is that it tends to create a National Capital Civil Service Authority (NCCSA) comprising the Delhi Chief Minister being a Chairperson, a Home Secretary appointed by the Central government and the Chief Secretary of GNCTD as an ex-officio member. All the appointments, transfers and postings of civil servants working in the departments of GNCTD would be decided by the Authority by a majority of votes of the members present and voting. This may lead to a situation where transfers, postings and appointments of the officers would be done at the helm of the bureaucrats, and the democratically elected Chief Minister would merely be a mute spectator.

In para 106 of the judgment, the Supreme Court explained the triple chain of accountability which says that the civil servants are accountable to the minister, the minister is accountable to the legislature and the legislature is accountable to the electorate, in order to ensure democratic accountability, and ruled that the officers are accountable to the GNCTD. However, the Ordinance goes against the spirit of primacy of the elected government, the triple chain of accountability and the concept of cooperative federalism, which are discussed in the judgment.

Most importantly, even if it is claimed by the Union that the legal basis of the judgment - democracy, co-operative federalism, accountability, separation of powers and primacy of the elected government - is being removed by an Ordinance, such a move is very dangerous and worrisome in a democratic setup as it a direct attack on the “basic structure” of the Constitution which cannot be taken away or altered even through a constitutional amendment.

Yash Mittal is an Assistant Professor (Law) at the ITM University, Gwalior. He can be reached at mittalyash401@gmail.com