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‘Conflict between clauses’: Why has the Supreme Court decided to interpret Article 239AA again?

A Constitution Bench of the Supreme Court will examine the “contours of the power of” the Parliament to give effect to and supplement the provisions of Article 239AA, which creates special provisions with regard to the administration of National Capital Territory of Delhi.

THE Supreme Court on Thursday decided that it will form a Constitution Bench to address the question of whether the Parliament can “abrogate the constitutional principles of governance” for the National Capital Territory of Delhi (NCTD) by making a law that takes away its control over “services”. 

The Constitution Bench will also examine the “contours of the powers” of the Parliament to make laws for the NCTD.

The Bench, comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices P.S. Narasimha and Manoj Mishra, was in the process of hearing the petition by the Government of the National Capital Territory of Delhi (GNCTD) seeking a stay on the presidential Ordinance.

On May 19, the Union government promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. The Ordinance aimed to establish an authority for the transfer and posting of Group-A officers in Delhi.

The Ordinance was issued merely eight days after a Constitution Bench of the Supreme Court held that the Delhi legislative assembly’s power to make laws extends to all subjects in the State List of the Seventh Schedule of the Constitution, except public order, police and land— subjects expressly excluded from its jurisdiction by Article 239AA of the Constitution.

In continuation of the hearing, on July 18, the CJI asked the appearing senior counsels: “In the process of supplementing, can you amend the Constitution?”

During the hearing on July 20, senior advocate Harish Salve, appearing for the lieutenant governor, submitted that Section 3A of the Ordinance “may not survive in the version tabled in the Parliament”.

In view of the reference, the GNCTD’s petition was dismissed.

A 10-page Order penned by the CJI was uploaded on Friday under which two preliminary issued have been framed to be dealt with by the Constitution Bench:

(i) What are the contours of the power of the Parliament to enact a law under Article 239-AA(7)

(ii) Whether the Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for the NCTD.

‘Clauses of conflict’ that led to the reference Order

The Ordinance was promulgated by amending the Government of National Capital of Delhi Act, 1991

The preamble to the Ordinance states that the same has been enacted in exercise of powers under clauses 3(b) and clause 7 of Article 239AA.

The amendments were justified by the Ordinance stating that “any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international spectrum.”

Clause 7(a) of Article 239AA, grants the Parliament the power to add provisions giving effect to or supplementing the provisions of Article 239AA.

Clause 7(b) states that “any such law that is referred to in sub-clause (a) shall not be deemed to be an amendment of the Constitution for the purposes of Article 368 (Power of Parliament to amend the Constitution) even if it contains any provision which amends or has the effect of amending the Constitution.

In the reference Order, the court has stated that “a primary reading” of clause 7(a) indicates that “the law shall not alter the existing constitutional structure envisaged for NCTD in Article 239AA.

However, “a prima facie reading” of clause 7(b) denotes that the law enacted under clause 7(a) could alter the existing constitutional structure of governance of the GNCTD, the court observed.

This apparent conflict between the two clauses on the nature of law-making power vis-à-vis NCTD’s constitutional structure of governance needs to be resolved by this court,” the Bench said.

The court noted further that the interpretation of clause 7 has not been dealt with in either of the 2018 or the 2023 Constitution Bench judgments.

Hence, the court decided to refer the two preliminary issues mentioned in the reference Order to a Constitution Bench.

Considerations before the court

In Section 3A, the Ordinance specifies that the Delhi legislative assembly’s power to make laws shall not extend to Entry 41 (state public services; state Public Service Commission) of the State List of the Seventh Schedule of the Constitution, or any matter connected therewith or incidental thereto.

This rule shall apply “notwithstanding anything contained in any judgement, Order or decree of any court,” the Ordinance states.

Since the Supreme Court has previously held that the executive power of GNCTD is co-extensive with its legislative power— it shall extend to all matters with respect to which it has the power to legislate— the implication of the Ordinance is that GNCTD would neither have legislative power nor executive power over the “services”.

Under clause 3(a) of Article 239AA, the Delhi legislative assembly is permitted to make laws with respect to any of the matters contained in the State List or the Concurrent List (except for public order, police and land) of the Seventh Schedule of the Constitution.

However, as clause 3(b) declares, nothing contained in the above clause derogates the powers of the Parliament to make laws with respect to any matter for a Union territory.

The GNCTD, in its affidavit, submitted that Section 3A, in effect, amends the Constitutional provision defining the Delhi legislative assembly’s powers.

In creating a new caveat on its powers, Section 3A goes beyond clause 7 imprimatur of “giving effect to or supplementing the provisions” of Article 239AA, the GNCTD submitted.

The Supreme Court, in its reference Order, has recognised the GNCTD’s submission in stating that “in effect, Section 3A amends Article 239AA.