The legality of the Delhi Ordinance

Subject : Polity

Section: Constitution

Concept :

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated by the President in May 2023 to provide for a comprehensive scheme of administration of services in Delhi.
The ordinance came after the Supreme Court handed over the control of services in Delhi, excluding police, public order and land, to the elected government.
The ordinance seeks to set up a National Capital Civil Service Authority (NCCSA) for the transfer of and disciplinary proceedings against Group-A officers from services in the National Capital Territory (NCT) of Delhi.
The issuance of the Ordinance empowers the Lieutenant Governor of Delhi with control over services, thereby challenging the elected government’s authority in matters of officials’ transfer and posting.
This development raises significant constitutional apprehensions regarding the delicate balance of power between the elected government and the 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 judgment is Article 239AA(3)(a).To alter this basis, a constitutional amendment is necessary.

For further notes on Ordinance , refer – https://optimizeias.com/ordinance-2/