Delhi Services Ordinance case: Questions of law framed for Supreme Court Constitution Bench to decide

In examining the validity of the controversial Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, a Constitution Bench of the Supreme Court is slated to determine if laws enacted by the Parliament for the administration of Delhi can undermine the constitutional principles of governance for Delhi. [Government of NCT of Delhi v. Union of India and ors].The Supreme Court yesterday referred to a Constitution Bench the challenge to the legal validity of the Delhi Services Ordinance..In doing so, a Bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and Manoj Misra has framed the following questions of law for the Constitution Bench to decide: (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..Pertinently, the Bench acknowledged the protracted nature of the dispute between the Delhi Lieutenant Governor (LG) and the Delhi government led by the Aam Aadmi Party (AAP).While rejecting an interim stay on the Ordinance, the Court observed,"We are also of the opinion that it would be appropriate for the Constitution Bench to dispose of the writ petition because of the protracted legal battle between the Union of India and the Government of NCTD on the administration of NCTD.".The Delhi Services Ordinance would effectively vest with the Delhi Lieutenant Governor (LG), who is a Central government nominee, control over civil servants in Delhi.While it calls for the setting up of a National Capital Civil Service Authority consisting of Delhi government officials including the Chief Minister to recommend transfers and postings of officers, it gives the LG the power to return such recommendations. A newly added Section 45H says,"In case of a difference of opinion between the Lieutenant Governor and the Authority, the decision of the Lieutenant Governor shall be final."The Ordinance was promulgated in May, a little over a week after a Supreme Court Constitution Bench held that the Delhi government is entitled to control over all services, including Indian Administrative Service (IAS) officers, in the national capital..It was promptly challenged by the AAP government, on the ground that it wrests control over civil servants serving in the capital from the elected government of Delhi and gives it to the unelected Lieutenant Governor..Senior Advocate Abhishek Manu Singhvi, representing the Delhi government, had yesterday argued against a Constitution Bench reference for the Ordinance challenge, saying that the matter can be heard by a three-judge bench. He also submitted that the Delhi government's orders were not being heeded by bureaucrats.Attorney General R Venkataramani had said that any Constitution Bench reference decision was up to the Court.The Court proceeded to refer the matter to a Constitution Bench, and also declined Singhvi's request to hear the matter before the Article 370 abrogation hearing, scheduled for the first week of August..The reference order noted that it is settled that a law enacted by Parliament can limit the executive power of the Delhi government over services. However, while deciding on the constitutional validity of the Ordinance, the top court observed that it will have to decide if the exercise of such a power is valid."There are two preliminary considerations which arise at this stage. The first is on the import of Section 3A. Section 3A removes Entry 41 of List II from the legislative competence of NCTD. On the exclusion of Entry 41 from NCTD’s legislative power, the government of NCTD ceases to have executive power over services because executive power is co-terminus with the legislative power. Therefore, the issue whether a law could completely remove NCTD’s executive power over Entry 41 is interconnected with the validity of Section 3A," the Court explained further..Crucially, the Court flagged the fact that neither the 2018 Constitution Bench judgment nor the 2023 Constitution Bench judgment, both of which concerned the power tussle between the LG and the elected government in Delhi, dealt with the interpretation of Article 239-AA(7) of the Constitution.Article 239-AA(7) empowers Parliament to make laws for giving effect to or supplementing the provisions contained in Article 239AA, which governs and guides the administration of Delhi.The apparent conflict between 239-AA(7)(a) and 239-AA(7)(b), dealing with the nature of law-making power towards Delhi's constitutional structure of governance, needs to be resolved, the apex court emphasised."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.".[Read reference order]