Delhi Ordinance: Within the boundaries created by the Constitution

Last evening, the President promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. The ordinance was issued in response to the Supreme Court’s recent judgment in Government of NCT Delhi v. Union of India, wherein the Court held that the elected government of Delhi, and not the Lieutenant Governor, will have control over ‘services’ in Delhi. The ordinance undoes the judgment and specifically takes away the Delhi government’s power over services.

Shortly after the ordinance was issued, social media was abuzz with different claims. A leading journalist called the ordinance an act of contempt of court. Another tweeted that overruling a Constitution Bench judgment is concerning.

With all due respect, I believe these are misleading claims. Politics aside, the ordinance is within the contours of the Constitution, and in fact, complies with the Supreme Court’s recent judgment.

In this post, I explain the position of the National Capital Territory of Delhi under the Constitution, the Supreme Court’s judgment and the ordinance.

Position of Delhi

The Constitution envisages three forms of Union Territories (UTs) for India. First, a Union Territory without a legislature. Here, the administration of the UT is done by the Union government. Second, a UT with a legislature which may be created by a law enacted by Parliament. Third, a UT with a legislature created by the Constitution. Delhi falls under the third category. A UT in the latter categories has an elected legislature headed by the Chief Minister (just like a state government) but its powers are limited.

In the case of Delhi, as per Article 239AA of the Constitution, the elected legislature has the power to make laws for matters listed in List II (State List) and List III (Concurrent List) except matters listed in entries 1 (public order), 2 (police) and 18 (land) of the State List and entries 64, 65 and 66 of that List in so far as they related to entries 1, 2 and 18. Such a restriction does not exist over a state government which can make laws on all entries of the State List. The Union government appoints an LG who acts on its behalf on these excluded matters in Delhi.

The Supreme Court in 2018 held that the Delhi government has both executive and legislative powers over entries in List II except the excluded entries. On the other hand, the LG has powers only over the three excluded entries in List II.

However, the Constitution imposes other limitations on the Delhi government as well. Article 239AA(3)(b) gives an overriding power to Parliament to make laws on any matter for the UT including subjects over which the Delhi government has legislative power. In other words, Parliament can make laws on a subject in any of the three Lists of the Seventh Schedule. In case a law on the same subject is made by both the Centre and the Delhi government, the former will prevail [Article 239AA(3)(c)]. The law made by the Delhi government will be repugnant and void to the extent of the inconsistency. 

In effect, Parliament has wide-scale powers over Delhi and these powers are stronger than the powers vested with the Delhi government. On the powers of Parliament, the Supreme Court has observed,

“Furthermore, Parliament has overriding legislative powers in relation to NCTD in terms of sub-clauses (b) and (c) of Article 239AA(3) and Article 239AA(7). The intent and purpose of Article 239AA(3(b) and Article 239AA(7) is to confer an expanded legislative competence upon Parliament, when it comes to GNCTD clearly since it is the capital of the country and therefore, must be dealt with different considerations. In this manner, Parliament acting in its constituent power while introducing Article 239AA has provided sufficient safeguards and was cognizant of the necessity to protect concerns related to national interests.” (par. 46)

The Supreme Court’s recent judgment

In its recent judgment, the Supreme Court was answering the question who would have control over ‘services’ in Delhi - the Delhi government or the LG (acting on behalf of the Union government)?. The Union government had issued a notification in the year 2015 which inter alia observed that LG shall exercise control over ‘services’ in addition to ‘public order’, ‘police’ and ‘land’. The notification in effect, excluded Entry 41 of State List from the scope of powers of the Delhi government, thereby adding to the constitutionally imposed exclusions.

In this case, the Court held that although Parliament had wide-scale legislative powers over the Delhi government, its executive powers are limited. The Union government’s executive power is limited to the three matters in the State List over which the legislative power of the Delhi government is excluded. Chief Justice Chandrachud observed,

“Article 239-AA(3)(a) reserves Parliament’s legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters.  Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239-AA(3)(a).”

The Court held that in all other matters, the executive power is to be exercised by the Delhi government, which in effect, means that the executive power over services is to be exercised by the Delhi government.

Despite reaching this conclusion, the Court repeatedly reiterated the scheme of Article 239AA and the wide-ranging legislative powers of Parliament. It observed that Parliament can make a law regarding any of the subjects mentioned in List II and III, limiting the executive power of the Delhi government. The Court observed,

“The judgment of the majority, however, clarified that if Parliament makes a law in relation to any subject in List II and List III, the executive power of GNCTD shall then be limited by the law enacted by Parliament.” (para 20)

At another place, the Court observed that the executive power of the Delhi government extends to all matters over which it can legislate. However, in case the Union government is granted executive powers over such matters by the Constitution, or a law made by Parliament, the Delhi government’s power will take a back seat and will be subject to the executive power of the Union government. It observed,

“As a corollary, in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a), subject to the limitations mentioned in Article 73...However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law.” (para 95)

At para 88, the Court also observed that the LG may act on his discretion in two situations: (a) where the matter deals with issues beyond the powers of the Delhi legislative assembly, and (b) where the law requires him to act on his discretion.

A cumulative reading of these paragraphs indicates that the judgment contemplated and approved a possibility wherein Parliament enacts a law on a subject over which the Delhi government can make law, and vests executive power solely on the LG or gives him primacy over the elected government.

The Ordinance: Operating within the Constitution

The ordinance has given effect to the possibility contemplated by the Court. It begins by stating that there is an absence of a parliamentary legislation dealing with the subject of services as mentioned in Entry 41, List II and this led to the Supreme Court’s judgment. Thereafter, it mentions that using the powers of Article 239(1), Article 239AA(3)(b) and Article 239AA(7), an ordinance is being passed to provide for a comprehensive scheme of administration of services. The ordinance is being issued because Parliament is not in session at the moment.

The ordinance does the following: First, it adds Section 3A to GNCTD Act, 1999, which specifically takes away the power of the legislative assembly to make laws in matters enumerated in Entry 41, List II i.e., services. Second, it creates a National Capital Civil Service Authority which will recommend inter alia transfer and postings of officers/employees employed in the functioning of the GNCTD. The Authority will consist of the Chief Minister of Delhi, Chief Secretary of Delhi and Principal Home Secretary, Delhi. Third, it amends Section 41 of the NCTD Act, 1999 which lists the matters wherein the LG acts in his discretion. It amends the phrase ‘acts in his discretion’ to ‘acts in his sole discretion’ in the title of the Section and the body. It also adds that the LG will act in his sole discretion while discharging functions under Part IV of the ordinance which includes dealing with the recommendations of the National Capital Civil Service Authority. In effect, the ordinance gives the LG primacy over the matter of services in Delhi.

In the judgment, the Court had urged the Union to exercise its powers within the boundaries created by the Constitution. In my opinion, the Union has stayed within those boundaries. It has acted as per the spirit of Article 239AA and passed a law in furtherance of its wide-ranging legislative powers to clip the wings of the Delhi government. The Court itself had held (in tune with the constitutional scheme) that the executive powers of the Delhi government will be subject to the powers of the Union if a law granting additional powers is passed. That is exactly what Parliament has done. One may debate the politics behind this decision, but from a purely legal standpoint, it is sound.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.

This is an edited version of an article that was first published here.