The Supreme Court Ruled That Article 239-aa(3)(a) States That The Legislative Assembly Of Nctd Possesses The Authority To Enact Laws Regarding Matters Mentioned In The State List And Concurrent List, Applicable To Union Territories, Except For Entries 1, 2, And 18 Of List Ii, And Entries 64, 65, And 66 Of List Ii

Case title:

Government of National Capital Territory of Delhi vs. Union of India & Ors.

Date of Order:

July 20, 2023

Bench:

Hon’ble CJI. Dr Dhananjaya Y Chandrachud, Hon’ble Justice. Pamidighantam Sri Narasimha and Hon’ble Justice. Manoj Misra

Parties:

Petitioner- Government of National Capital Territory of Delhi

Respondents- Union of India & Ors.

Subject

• President used the powers granted by Article 123 of the Constitution to issue the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 [known as the "NCT Ordinance"]. This ordinance brings changes to the Government of National Capital Territory of Delhi Act 1991 [referred to as the "GNCTD Act"].
• According to Section 3A, regardless of any judgment, order, or decree passed by any Court, the Legislative Assembly is granted the authority to pass laws as specified in Article 239-AA, except concerning Entry 41 of List II of the Seventh Schedule to the Constitution. 
• The petitioner initiated legal proceedings under Article 32 of the Constitution to contest the constitutionality of the 2023 Ordinance.
• The Supreme Court dismissed the application seeking a stay of the NCT Ordinance and ruled that Article 239-AA(3)(a) states that the legislative assembly of NCTD possesses the authority to enact laws regarding matters mentioned in the State List and Concurrent List, applicable to Union Territories, except for entries 1, 2, and 18 of List II, and entries 64, 65, and 66 of List II to the extent they relate to the aforementioned entries. 

IMPORTANT PROVISIONS

Article 239(l) read with Article 239AA and in exercise of powers of Article 239AA(3)(b) and

Article 239AA(7) of the Constitution of India, which includes the power to supplementing the provisions under Article 239-AA including the power to make suitable amendments

OVERVIEW

• On 19 May 2023, just eight days after the Constitution Bench of the Court delivered the judgment in the case of Government of NCT of Delhi v. Union of India [referred to as the "2023 Constitution Bench judgment"], the President used the powers granted by Article 123 of the Constitution to issue the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 [known as the "NCT Ordinance"]. This ordinance brings changes to the Government of National Capital Territory of Delhi Act 1991 [referred to as the "GNCTD Act"].
• The Preamble of the NCT Ordinance explains that the Parliament has full and exclusive authority over the national capital, as stated in Articles 239-AA(3)(b) and 239-AA(7). It acknowledges that Delhi is the capital city of the nation and, therefore, the Constitution has retained certain exclusive powers for Parliament, as reflected in Article 239-AA in general and specifically in Article 239-AA(3)(b) and Article 239-AA(7), to maintain its jurisdiction.
• The Preamble states that the Ordinance is proposed to give effect to Article 239(l) in conjunction with Article 239-AA, and it is being enacted under the powers of Article 239-AA(3)(b) and Article 239-AA(7) of the Indian Constitution. These powers include the authority to supplement the provisions under Article 239-AA and make necessary amendments to achieve the objectives. 
• The main purpose of the NCT Ordinance is to establish a comprehensive administration scheme for services utilized in the functioning of NCTD and address other related matters. The intention is to strike a balance between the interests of the local population in NCTD and the overall democratic will of the entire nation, which is represented through the President of India.
• The NCT Ordinance introduces a new provision called Section 3A into the GNCTD Act 1991. According to Section 3A, regardless of any judgment, order, or decree passed by any Court, the Legislative Assembly is granted the authority to pass laws as specified in Article 239-AA, except concerning Entry 41 of List II of the Seventh Schedule to the Constitution. 
• This means that NCTD's legislative competence is extended by Section 3A, except in matters related to Entry 41 of List II, along with Entries 1, 2, and 18 of List II, which were already excluded by Article 239-AA. In essence, Section 3A serves as an amendment to Article 239-AA.
• The petitioner has initiated legal proceedings under Article 32 of the Constitution to contest the constitutionality of the 2023 Ordinance.
• The National Capital Civil Service Authority, known as the "Authority," is established and composed of the Chief Minister of NCTD, the Chief Secretary of the Government of NCTD, and the Principal Home Secretary of the Government of NCTD. Decisions within the Authority are made by a majority vote of the present and voting members. [Section 45E]
• If the Lieutenant Governor disagrees with a recommendation made by the Authority, he can send it back for reconsideration. In cases where there is a difference of opinion between the Lieutenant Governor and the Authority, the decision of the Lieutenant Governor shall be considered final. [Section 45H]
• The Supreme Court ruled that Article 239-AA(3)(a) states that the legislative assembly of NCTD possesses the authority to enact laws regarding matters mentioned in the State List and Concurrent List, applicable to Union Territories, except for entries 1, 2, and 18 of List II, and entries 64, 65, and 66 of List II to the extent they relate to the aforementioned entries. 
• Court affirmed that NCTD retains executive power over Entry 41 of List II, as executive power aligns with legislative power. In other words, NCTD's executive authority extends to matters for which it has legislative competence.

ISSUES RAISED

(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.

ARGUMENTS ADVANCED BY THE RESPONDENT

Mr. Tushar Mehta, the learned Solicitor General representing the Union of India, cited paragraph 95 of the 2023 Constitution Bench judgment, which made the following key observations:

• The legislative power of the Union includes authority over entries listed in the State List and Concurrent List, in addition to the Union List.
• For matters falling within the State List, where there is no existing law pertaining to NCTD's executive power, the Union's executive power extends only to the three entries excluded from NCTD's legislative authority.
• In the absence of a specific law or constitutional provision, the executive power of the Lieutenant Governor, acting on behalf of the Union Government, is restricted to matters related to the three entries specified in Article 239AA(3)(a), subject to the limitations stated in Article 73.
• If Parliament enacts a law granting executive power over any subject within NCTD's jurisdiction, the executive authority of the Lieutenant Governor will be modified accordingly, in accordance with the provisions of that particular law.

Mr. Harish Salve, the esteemed senior counsel representing the Lieutenant Governor, argued that the termination of the consultants occurred due to their appointment being made arbitrarily.

JUDGEMENT ANALYSIS

• The challenge against the 2023 Ordinance is based on three main arguments:
• Section 3A, which excludes NCTD's legislative authority over Entry 41 of List II, effectively amends a constitutional provision, namely Article 239-AA(3)(a).
• The provisions of the NCT Ordinance remove the executive power vested in the elected government of NCTD over the day-to-day administration of the National Capital and instead concentrate it exclusively in the Lieutenant Governor, who is appointed and not elected. The 2023 Constitution Bench judgment emphasized the importance of the "triple chain of accountability," where permanent executives are accountable to the elected government, the elected government is accountable to the legislature, and the legislature is accountable to the public. 
• The 2023 Ordinance undermines the principles of collective responsibility and the triple chain of accountability that form crucial aspects of NCTD's governance structure.
• Article 239-AA(7)(b) is not a unique provision in the constitutional framework. Other provisions of the Constitution, such as Articles 4, 169, 239A, 244A, 312, Part D Fifth Schedule, and Paragraph 21 Sixth Schedule, also stipulate that certain laws made by Parliament shall not be considered constitutional amendments, even though they effectively amend the Constitution. Article 239-AA(7)(b) does not grant Parliament broad powers to abolish the constitutional governance structure envisioned for NCTD under Article 239-AA.
• The President should not have exercised the power to promulgate an Ordinance under Article 123 because there were no urgent circumstances requiring immediate action. 
• The promulgation of the Ordinance was unnecessary, especially when the monsoon session of Parliament was set to begin in a few months.
• Additionally, along with excluding NCTD's legislative authority concerning Entry 41 of List II, the NCT Ordinance introduces a new framework for the allocation of executive power over services between the Union of India and the Government of NCTD. A brief summary of this scheme is provided below:
• The President is empowered to establish any authority, board, commission, or statutory body in and for NCTD, and also has the authority to appoint or nominate any office bearer or member to such bodies. [Section 45D]
• The National Capital Civil Service Authority, known as the "Authority," is established and composed of the Chief Minister of NCTD, the Chief Secretary of the Government of NCTD, and the Principal Home Secretary of the Government of NCTD. Decisions within the Authority are made by a majority vote of the present and voting members. [Section 45E]
• The authority is vested with various powers, including recommending transfers and postings of Group A officers and officers of DANICS (Delhi, Andaman and Nicobar Islands Civil Service) serving in NCTD (excluding those serving in connection with Entries 1, 2, and 18 of List II). 
• It also provides recommendations on matters related to 'vigilance' and 'non-vigilance' for disciplinary proceedings, as well as recommendations on transfer, postings, and the suitability of officers in their respective positions. [Section 45H]
• If the Lieutenant Governor disagrees with a recommendation made by the Authority, he can send it back for reconsideration. In cases where there is a difference of opinion between the Lieutenant Governor and the Authority, the decision of the Lieutenant Governor shall be considered final. [Section 45H]
• Proposals that may have an impact on the peace of NCTD, interests of Scheduled Castes, Scheduled Tribes, socially and educationally backward communities, or proposals affecting the relations of the Government of NCTD with the Central Government, State Government, Supreme Court of India, or the High Court of Delhi shall be presented to the Lieutenant Governor for his opinion. [Section 45J(4)]
• If the Secretary of the Council of Ministers or the Departments believes that a proposal from the Council of Ministers or the concerned Departments is not in accordance with the law or might create controversies with the Central Government, State Governments, Supreme Court, or High Court of Delhi, they are obligated to bring it to the attention of the Lieutenant Governor. [Section 45K]
• The Supreme Court ruled that Article 239-AA(3)(a) states that the legislative assembly of NCTD possesses the authority to enact laws regarding matters mentioned in the State List and Concurrent List, applicable to Union Territories, except for entries 1, 2, and 18 of List II, and entries 64, 65, and 66 of List II to the extent they relate to the aforementioned entries. 
• The central issue considered by the 2023 Constitution Bench was whether Article 239-AA(3)(a) implicitly excludes NCTD's legislative competence over Entry 41 of List II.
• The Constitution Bench concluded that Article 239-AA does not bar NCTD's legislative power over any entries other than the ones explicitly excluded. 
• Furthermore, the Court affirmed that NCTD retains executive power over Entry 41 of List II, as executive power aligns with legislative power. In other words, NCTD's executive authority extends to matters for which it has legislative competence.
• The Supreme Court has expressed its view that it would be suitable for the Constitution Bench to resolve the writ petition due to the prolonged legal dispute between the Union of India and the Government of NCTD regarding the administration of NCTD. 
• The Court has directed the Registry to submit the relevant documents of this petition to the Chief Justice of India on the administrative side to form a Constitution Bench that will address the identified questions and conclude the petition. Additionally, the application (IA No. 130505 of 2023) seeking a stay of the NCT Ordinance has been dismissed.

CONCLUSION

• The Court acknowledged the complexity of the matter, considering the prolonged legal battles between the Union of India and the Government of NCTD over the administration of NCTD. It has dismissed the application seeking a stay of the NCT Ordinance.
• The Constitution Bench's resolution of the identified questions will provide clarity on the implications of Section 3A, the scope of law-making powers under Article 239-AA(7), and its impact on NCTD's governance structure. 
• This decision holds significant importance in determining the distribution of powers between the Union of India and the Government of NCTD, thus shaping the future governance and administration of the National Capital Territory of Delhi.