GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI versus UNION OF INDIA & ORS. on 20 July 2023

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1. On 19 May 2023, eight days after the Constitution Bench ofthis Court pronounced the judgment in Government of NCT of Delhiv. Union of India[1][“2023 Constitution Bench judgment”], thePresident in exercise of powers under Article 123 of the Constitutionpromulgated the Government of National Capital Territory of DelhiE(Amendment) Ordinance 2023 [“NCT Ordinance”]. The NCTOrdinance amends the Government of National Capital Territory of DelhiAct 1991 [“GNCTD Act”]. The Preamble to the Ordinance states thatParliament has exclusive and plenary jurisdiction with respect to thenational capital in view of Articles 239-AA(3)(b) and 239-AA(7):

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“AND WHEREAS, keeping in mind various reports of variousCommissions and since Delhi is the capital city of the nation, theConstitution retained certain exclusive and plenary jurisdiction in theParliament while incorporating Article 239-AA in general and Article239-AA(3)(b) read with Article 239-AA(7) in particular.

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AND WHEREAS for the purpose of giving effect to Article 239(l)read with Article 239AA and in exercise of powers of Article239AA(3)(b) and Article 239AA(7) of the Constitution of 1 Civil Appeal No. 2357 of 2017

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India, which includes the power to supplementing theprovisions under Article 239-AA including the power tomake suitable amendments thereof, an Ordinance namely theGovernment of National Capital Territory of Delhi (Amendment)Ordinance, 2023 is proposed to provide for a comprehensivescheme of administration of services deployed in the functioningof NCTD and other allied issues thereby balancing the local anddomestic interests of the people staying in the NCTD with thedemocratic will of the entire nation reflected through the Presidentof India.”

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(emphasis supplied)

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2. The NCT Ordinance inserts Section 3A in the GNCTD Act1991. Section 3A stipulates that notwithstanding anything contained inany judgment, order, or decree of any Court, the Legislative Assemblyshall have the power to enact laws as prescribed in Article 239-AA,except with respect to Entry 41 of List II of the Seventh Schedule to theConstitution. The provision excludes Entry 41 of List II from the legislativecompetence of NCTD in addition to Entries 1,2, and 18 of List II whichare excluded by Article 239-AA. In effect, Section 3A amends Article239- AA.

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3. In addition to excluding the legislative power of NCTD withrespect to Entry 41 of List II, the NCT Ordinance also establishes anew scheme for the distribution of executive power over services betweenthe Union of India and the Government of NCTD. A brief overview ofthe scheme is provided below:

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(i) The President shall constitute any authority, board,commission or statutory body in and for NCTD, or appointFor nominate any office bearer or member to the body.[Section 45D]

(ii) The National Capital Civil Service Authority [“Authority”]is constituted. The Authority shall consist of the ChiefMinister of NCTD, the Chief Secretary of the GovernmentGof NCTD, and the Principal Home Secretary of theGovernment of NCTD. Decisions shall be taken by amajority of votes of the members present and voting.[Section 45E]

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496SUPREME COURT REPORTS

A(iii)The authority has the power, inter alia, to recommendtransfers and postings of Group A officers and officers ofDANICS serving in the affairs of NCTD (excluding thoseserving in connection with Entries 1,2,18 of List II),recommend on all matters connected with and falling underthe subject of ‘vigilance’ and ‘non-vigilance’ for the purposeBof disciplinary proceedings, to make recommendations ontransfer and postings, and on the suitability of officers onpostings. [Section 45H]

(iv) The Lieutenant Governor shall return the recommendationmade by the Authority for reconsideration if he differs fromCthe recommendation of the Authority. In case of a differenceof opinion between the Lieutenant Governor and theAuthority, the decision of the Lieutenant Governor shall befinal. [Section 45H]

(v) Proposals which may, inter alia, affect the peace of NCTD,Dinterests of the Scheduled Castes, Scheduled Tribes andsocially and educationally backward community, or proposalson matters which affect the relations of the Government ofNCTD with the Central Government, State Government,Supreme Court of India or the High Court of Delhi shall beplaced before the Lieutenant Governor for opinion. [SectionE45J(4)]

(vi) The Secretary of the Council of Ministers or the Departmentsshall bring a proposal of the Council of Ministers or theconcerned Departments to the attention of the LieutenantGovernor if they are of the opinion that the proposal is notFin accordance with law or that the proposal will bring NCTDinto “controversy” with the Central Government, the StateGovernments, the Supreme Court or the High Court ofDelhi. [Section 45K]

4. The petitioner has instituted proceedings under Article 32 ofGthe constitution challenging the constitutional validity of the 2023Ordinance.

5. The 2023 Ordinance is challenged on three broad grounds:

(i) Section 3A, by excluding NCTD’s legislative power overEntry 41 of List II, in effect amends a constitutional provision,Hthat is, Article 239- AA(3)(a);

(ii) The provisions of the NCT Ordinance remove the executiveApower vested in the Government of NCTD over the day-to-day administration of National Capital from the electedgovernment of NCTD and place it exclusively in theLieutenant Governor, a nominated head. The 2023Constitution Bench judgment in the specific context ofBservices observed that the people are the ultimate sovereignand the executive is accountable to the public through the“triple chain of accountability”. The triple chain ofaccountability requires the permanent executives to beresponsible to the elected government, the electedgovernment to be responsible to the legislature, and theClegislature to be responsible to the public. The 2023Ordinance abrogates the principles of collective responsibilityand the triple chain of accountability which are importantfacets of NCTD’s governance structure;

(iii) Article 239-AA(7)(b) is not a sui generis provision in theconstitutional scheme. Other provisions of the Constitution(such as Articles 4,169,239A, 244A,312, Part D FifthSchedule, and Paragraph 21 Sixth Schedule) also stipulatethat certain laws made by Parliament shall not deemed tobe a constitutional amendment though it has the effect ofamending the constitution. Article 239-AA(7)(b) does notvest Parliament with wide powers to abolish theconstitutional scheme of governance envisaged for NCTDin Article 239-AA; and D

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(iv) The President could not have exercised the power topromulgate an Ordinance under Article 123 becausecircumstances which warranted immediate action did notexist. There was no urgency to promulgate the Ordinancewhen the monsoon session of Parliament was going to beginin a few months.

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6. The Government of NCT has also sought a stay of the NCTOrdinance[2] on the ground that it prevents the Government of NCTDfrom meeting its popular mandate. Mr. Abhishek Manu Singhvi, learnedsenior counsel highlighted instances where senior bureaucrats haveignored the orders of the concerned Minister to call the National Disaster 2 IA No. 130505 of 2023

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ARelief Force for aiding with the flood situation in Delhi, the Directorateof Vigilance has issued work allocation order in direct contravention toprior orders of the Minister-in-charge, and the Lieutenant Governor hasterminated the contract of 437 consultants working with variousdepartments of the government of NCTD without any consultation withthe elected government. Additionally, the letter issued by the LieutenantBGovernor on 5 July 2023 terminating the engagement of specialists/fellow/consultants is also sought to be stayed.

7. Mr. Tushar Mehta, learned Solicitor General appearing for theUnion of India made a reference to paragraph 95 of the 2023 ConstitutionBench judgment. In the said paragraph, this Court observed as follows:C

“The legislative power of the Union extends to all entries underthe State List and Concurrent List, in addition to the Union List.The executive power of the Union, in the absence of a law uponexecutive power relating to any subject in the State List, shallcover only matters relating to the three entries which are excludedDfrom the legislative domain of NCTD. As a corollary, in theabsence of a law or provision of the Constitution, the executivepower of the Lieutenant Governor acting on behalf of the UnionGovernment shall extend only to matters related to the three entriesmentioned in Article 239AA(3)(a), subject to the limitations inEArticle 73. […] However, if Parliament enacts a law grantingexecutive power on any subject which is within the domain ofNCTD, the executive power of the Lieutenant Governor shall bemodified to the extent, as provided in that law.”

8. Mr. Harish Salve, learned senior counsel appearing for theLieutenant Governor submitted that the consultants were terminatedFbecause their appointment was arbitrary.

9. Article 239-AA(3)(a) stipulates that the legislative assembly ofNCTD has the power to make laws with respect to matters enumeratedin the State List and Concurrent List insofar as such matter is applicableGto Union Territories except entries 1,2, and 18 of List II and entries 64,65 and 66 of List II insofar as they relate to the above entries. The issuefor consideration before the 2023 Constitution Bench was whether Article239-AA(3)(a), excludes by implication, NCTD’s legislative competenceover Entry 41 of List II. The Constitution Bench held that Article 239-AA does not exclude the legislative power of NCTD over any entriesHother than those which are expressly excluded. This Court also held that NCTD will have executive power over Entry 41 of List II becauseexecutive power is co- extensive with legislative power.

10. Since in view of Article 239-AA(3)(b), Parliament also haslegislative power over Entry 41 of List II, a corresponding issue on theextent of executive power of the Union of India and the Government ofNCTD on matters over which both Parliament and the legislativeassembly of NCTD have the power to enact laws arose.

11. Drawing upon the principles in Articles 73 and 162[3], the 2023Constitution Bench held that on entries over which Parliament also haslegislative competence, the executive power of NCTD shall be “subjectto and limited by” the executive power expressly conferred upon theUnion of India by provisions of the Constitution or a law made byParliament. Thus, the position of law is that a law enacted by Parliamentcan limit the executive power of NCTD over “services”.

12. The power of Parliament to enact a law granting the Union ofIndia executive power over services is not in contention. It is now asettled position of law. However, this Court while deciding theconstitutional validity of the 2023 Ordinance must decide if the exerciseof such a power is valid.

13. There are two preliminary considerations which arise at thisstage. The first is on the import of Section 3A. Section 3A removesEntry 41 of List II from the legislative competence of NCTD. On theexclusion of Entry 41 from NCTD’s legislative power, the governmentof NCTD ceases to have executive power over services becauseexecutive power is co-terminus with the legislative power. Therefore,the issue whether a law could completely remove NCTD’s executivepower over Entry 41 is interconnected with the validity of Section 3A.

14. The Preamble to the 2023 Ordinance states that the law ismade in exercise of powers under Article 239-AA(3)(b) and Article239-AA(7). Article 239-AA(3)(b) states that Parliament has the powerto make laws with respect to “any matter” for NCTD. Article 239-

3 The proviso to Article 73 states that the Union of India shall not have executive poweron matters over which the State can also enact on unless such power is expresslygranted by the Constitution or law of Parliament. The proviso to Article 162 states thaton matters over which both the state legislature and Parliament can make laws, theexecutive power of States shall be subject to and limited by the executive powerexpressly conferred upon Union of India by a law of Parliament or by the Constitution.

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AAA(7)(a) grants Parliament the power to enact a law for “giving effectto, or supplementing” the provisions of Article 239-AA, and for all mattersincidental to it. Article 239-AA(7)(b) stipulates that such a law shall notbe deemed to be an amendment to the Constitution even if the law amendsthe Constitution or has the effect of amending the Constitution. Article239-AA(7) is extracted below:B

“(7)(a) Parliament may, by law, make provisions for giving effectto or supplementing the provisions contained in the foregoingclauses and for all matters incidental or consequential thereto.

(b) Any such law as is referred to in sub-clause (a) shall not beCdeemed to be an amendment of this Constitution for the purposeof Article 368 notwithstanding that it contains any provision whichamends or has the effect or amending, this Constitution.”

15. While Article 239-AA(7)(a) states that the law must only giveeffect 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 theDConstitution even if it has the effect of amending Article 239-AA. Aprimary reading of Article 239-AA(7)(a) indicates that the law shall notalter the existing constitutional structure envisaged for NCTD in Article239-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 theEexisting constitutional structure of governance of NCTD. This apparentconflict between the two clauses on the nature of law making powervis-à-vis NCTD’s constitutional structure of governance needs to beresolved by this Court.

16. Neither the 2018 Constitution Bench judgment[4] nor the 2023FConstitution Bench judgment has dealt with the interpretation of Article239-AA(7). We are of the considered opinion that the disposal of thewrit petition requires this Court to answer a substantial question of lawas to the interpretation of the Constitution. We accordingly refer thefollowing questions to a Constitution Bench:

(i) What are the contours of the power of Parliament to enactGa law under Article 239-AA(7); and

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

H4 Government of NCT of Delhi v. Union of India, Civil Appeal No. 2357 of 2017

17. We are also of the opinion that it would be appropriate for theAConstitution Bench to dispose of the writ petition because of the protractedlegal battle between the Union of India and the Government of NCTDon the administration of NCTD. We direct the Registry to place thepapers of this petition before the Chief Justice of India on theadministrative side for the constitution of a Constitution Bench to answerBthe questions identified above and for the disposal of the petition. IA No.130505 of 2023 seeking a stay of the NCT Ordinance is dismissed.

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Nidhi Jain(Assisted by : Tamana, LCRA)

Questions referred to constitution Bench.

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