An Ordinance, Its Constitutionality and Scrutiny

Why in News?

• A five-judge bench of the Supreme Court unanimously pronounced a verdict that brought “services” under the Government of National Capital Territory of Delhi (NCTD).
• A week later, the central government issued an ordinance by the President's decree under Article 123 overturning the unanimous SC verdict. 

 

Background of the Conflict Between the Centre and Delhi Government

• The Central Government has consistently maintained that because Delhi is the national capital and the face of the country, it must have control over administrative services, which include appointments and transfers.
• On the other hand, the Delhi government has argued that in the interest of federalism, the elected representatives must have power over transfers and postings.
• The Delhi government had also contended that the Government of NCTD (Amendment) Act 2021, violated the doctrine of basic structure of the Constitution.
  • The Amendment (to the Government of NCTD Act, 1991) provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor.

 

Supreme Court's Verdict and Broad Interpretation of Article 239AA(3)(a)

 Article 239AA(3)(a)

• Article 239 AA was inserted in the Indian Constitution by the 69thConstitutional Amendment Act, 1991, based on the recommendations of S Balakrishnan Committee and gave special status to Delhi.
• It says that the NCTD will have an Administrator and a Legislative Assembly.
  • The Legislative Assembly “shall have power to make laws for the whole or any part of the NCT w.r.t. any of the matters in the State List or Concurrent List in so far as any such matter is applicable to Union Territories.”
  • However, Article 239AA(3)(a) provides that the legislative assembly of Delhi cannot legislate on the following three subjects – Police, Public Order, and Land.

 

Broad Interpretation of Article 239AA(3)(a)

• The Union of India has executive power only over three entries[public order (entry 1), police (entry 2) and land (entry 18)]in List II (the State list) over which the NCTD does not have legislative competence.
• Consequently, executive power over “services” can be exercised exclusively by the Government of the NCTD.
• This interpretation of the Court is consistent with the wordings in Article 239AA(3)(a).

The National Capital Territory of Delhi (Amendment) Ordinance, 2023.

Key Highlights of the Ordinance

• Creation of National Capital Civil Service Authority (NCCSA)
  • NCCSA will be headed by the Chief Minister of Delhi, with the Chief Secretary and Principal Home Secretary of Delhi being the other two members.
  • The NCCSA will make recommendations to the LG regarding transfer, posting, vigilance and other incidental matters.
  • All matters required to be decided by the NCCSA shall be decided by majority of votes of the members present and voting.
  • This means, that in effect, the decision of the elected CM can be overruled by the two senior bureaucrats.
• Role of Lieutenant Governor (L-G)
  • The ordinance stated that the L-G will pass orders to give effect to the recommendations passed by the NCCSA.
  • However, L-G can ask for the relevant material about officers belonging to All India Services and DANICS serving the Delhi government.
  • In case the L-G differs with the recommendation made, he/she may return the recommendation to the Authority for reconsideration by the Authority.
  • For this, reasons will have to be recorded in writing.
  • However, as per the ordinance, the final decision will lie with the L-G of Delhi.

 

Arguments challenging the Constitutional Validity of the Recent Ordinance

• Parliament cannot amend Article 239AA(3)(a) of the Constitution
  • The ordinance inserted entry 41 of List II (Services) into Article 239AA(3)(a), thereby expanding the scope of excepted matter from three (1, 2, 18) to four (1, 2, 18, 41).
  • This could not have been done without amending Article 239AA(3)(a) of the Constitution.
  • The power conferred on Parliament under Article 239AA(3)(b) is to make fresh laws — not to amend Article 239AA(3)(a) of the Constitution.
  • Similarly, power conferred on Parliament under Article 239AA(7)(a) is to make laws for giving effect to or supplementing the provisions contained in various clauses of Article 239AA and for all matters incidental or consequential.
  • Such a power cannot be pressed into action to amend Article 239AA(3)(a) of the Constitution.
• Article 123 cannot be used as a substitute for Article 368
  • Article 239AA(7)(b) stipulates that Parliament’s law making under Article 239AA(7)(a) shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.
  • No such clause has been stipulated in Article 239AA(3)(a).
  • Therefore, altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368.
  • Article 123 cannot act as a substitute for Article 368 (Amendment of the Constitution) in Part XX.
• The ordinance overrides Articles 141 and 144 by Article 123 without a constitutional amendment
  • When a Constitution Bench (five judges) of the SC declares/interprets the law (Article 239AA(3)(a)), the same is binding on all courts and authorities in India in terms of Articles 141 and 144, respectively.
  • Articles 123, 141, 144 are in Part V (The Union) of the Constitution. None has a non-obstante clause - added to a provision in order to uphold its enforceability over another provision that is contradictory to it.
  • The aid and advice of the Union Council of Ministers to the President under Article 74 could not have overridden Article 144.
  • The basis of the Court judgement is Article 239AA(3)(a).To alter this basis, a constitutional amendment is necessary

 

Can the Ordinance stand scrutiny in Court?

• The ordinance is likely to be struck down since it expands excepted matters in Article 239AA(3)(a).
• The Parliament alone can do this under Article 368 (amendment of the constitution).

 

SC’s Previous Judgement with respect to Art 123

• In Krishna Kumar Singh vs State of Bihar (2017), the Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny;powers under Article 123 is not a parallel source of law making or an independent legislative authority.
• It was further held that the Court is empowered to look into the relevance of material placed before the President, but not its sufficiency or adequacy.

 

Conclusion

• The Union of India’s decision to prefer review (Article 137) and promulgate an ordinance (Article 123) simultaneously is ill-conceived.
• If the ordinance is challenged, the Union of India is unlikely to succeed through either route to have control over “services” in Delhi.

 

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Q1) What is Review Petition? 

Under Article 137 of the Constitution, subject to the provisions of any law and rules made under Article 145, the Supreme Court has the power to review any judgement pronounced or order made by it. This power is given to the Supreme Court to correct a “patent mistake” or “grave error” resulting in miscarriage of justice and not to fix minor mistakes or inconsequential results. According to Supreme Court Rules of 1966, a review petition is to be filed within 30 days of the pronouncement of judgement or order, in certain circumstances, this duration can be extended if the petitioner can prove the delay with justifiable reasons.  The review petition should be circulated, without oral arguments, to the same bench that delivered the judgement. Similarly, High Courts have also been given the power of reviewing its judgement under Article 226 of the Constitution. However, it can only be invoked when there is a breach of law or violation of the Constitution.

 

Q2) Which Article deals with the creation of Legislatures for Union Territories? 

Article 239A of the Indian Constitution deals with the creation of local legislatures or Council of Ministers or both for certain Union territories. Further, it also mentions the following provisions : 

Parliament may by law create for the Union Territory of Puducherry – 

- a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or

- a Council of Ministers,

- Or both with such constitution, powers and functions, in each case, as may be specified in the law.

Any such law as is referred to in the above clause 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.

 

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Source: The Hindu