Delhi Govt vs LG : Why The GNCTD Ordinance Which Nullifies Supreme Court Judgment Is Unconstitutional?

A week after the Supreme Court delivered the judgment in Government of NCT of Delhi v. Union of India recognising the legislative and executive powers of the National Capital Territory of Delhi over “services”, the Union Government promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 which nullifies the effect of the Constitution Bench verdict. There could be some symbolism in the Ordinance being promulgated in the middle of the night, a few hours after the Supreme Court closed for summer vacations. Ever since, intense debates are happening in political and legal circles regarding the validity of the Ordinance.

I do not wish to burden this article with the nitty-gritties of the Ordinance, as there are several other articles explaining it. What it effectively does is to give primacy to the Lieutenant Governor (an appointee of the Union Government) in transfer and postings of civil servants serving the Delhi Government, undoing the Supreme Court’s ruling that the elected government will have the control of services (except in matters relating to police, public order and land).

In this article, I advance an argument that the Ordinance is unconstitutional for negating the Supreme Court’s judgment. Of course, there are several nuances to this debate with strong counter-arguments, which I will try to meet within the limitations of my knowledge and abilities.

Can the legislature overrule judgments?

Before delving into the debate, some concepts need to be made clear. Legislative overriding of judgments is permissible in certain circumstances. The legislature can neutralize the effect of a judgment by altering the legal basis of the judgment(Madan Mohan Pathak vs. Union of India AIR 1978 SC 803). For example, if a Court has struck down a decision taken by an authority on the ground of lack of statutory power, the legislature can later amend the law to confer the requisite power on such authority and validate the decision retrospectively. That is taking away the legal basis of the judgment through a subsequent amendment. It is also permissible for the legislature to amend the law to cure the defects in the statute which led to the judgment. In the recent Jallikattu case(Animal Welfare Board of India vs Union of India), the Supreme Court held that state amendments permitting bull-sports were not overriding the 2014 judgment which banned such animal activities and opined that the laws had the effect of curing the problems flagged by the Court (more judgments on this concept are discussed in this article).

But, in exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision(Madan Mohan Pathak supra).

In State of Kerala vs State of Tamil Nadu AIR 2014 SC 2407, a Constitution Bench of the Supreme Court held that a law enacted by the legislature can be invalidated if it is an attempt to interfere with judicial process by breaching the doctrine of separation of powers. In that case, the Court struck down a Kerala law, which limited the water level of the Mullaperiyar dam contrary to the Supreme Court’s directions.

In the 2021 Madras Bar Association case, the Supreme Court struck down the provisions of Tribunal Reforms Ordinance 2021 on the ground that they were contrary to an earlier judgment of the Court.

“It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court”(emphasis supplied), the Court observed in Madras Bar Association case.

The judgment further stated, “A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers” and “Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India”.

Is the GNCTD Ordinance overruling the judgment?

In the light of the above discussed principles, let us analyze the GNCTD Ordinance. Even though the Ordinance was promulgated by the Executive, it is an exercise of legislative power. So, the principles relating to legislative overruling will apply to the Ordinance as well.

Section 3 of the Ordinance, which seeks to insert Section 3A in the GNCTD Act, is crucial. It reads as follows :

"Notwithstanding anything contained in any judgement, order or decree of any Court ,the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto"(emphasis supplied)

This provision overrides the Constitution Bench judgment which holds that the NCTD has legislative and executive powers over “services” (which is enumerated in Entry 41 of List II of the Seventh Schedule). Further, the Ordinance confers powers on the LG to act in “his sole discretion” in matters related to services.

Can the Ordinance be said to be merely taking away the legal basis of the judgment and hence a permissible exercise of legislative power? To answer that, we need to first understand what is the basis of the judgment. The basis of the judgment is Article 239AA (3)(a) of the Constitution which says that the Delhi Legislative Assembly has powers over all matters in List II except the matters in Entries 1, 2 and 18 (public order, police and land) and other matters related to the exempted entries. Since “services” is not exempted in Article 239AA(3)(a), the Delhi assembly has powers over it and consequently, the Delhi Government has executive powers on the subject - this is the long and short of the judgment. This is clear from paragraph 96 of the judgment :

“NCTD shall have legislative power to make laws on “services”. This is because “services” (that is, Entry 41) is not expressly excluded in Article 239AA(3)(a). As it has legislative power, it shall have executive power to control “services” within NCTD”.

Article 239AA(3)(a), the basis of the judgment, is still there in the Constitution intact. The Ordinance does not( and cannot) amend Article 239AA(3)(a) to exempt “services” from the legislative powers of the NCTD. So the Ordinance does not have the effect of taking away the legal basis of the judgment. Rather, it is merely declaring that the judgment is ineffective, without disturbing its legal basis, which is an impermissible exercise. By doing so, the Ordinance is breaching the doctrine of separation of powers and is liable to be struck down as per the judgments in State of Kerala v. State of Tamil Nadu and Madras Bar Association cases.

Possible Counter-arguments : Reliance on Article 239AA(7)

In response, the defenders of the Ordinance might cite Article 239AA(7) of the Constitution.

Article 239AA 7(a) says that the Parliament can make law for “giving effect to, or supplementing” the other provisions contained in Article 239AA and for “all matters incidental or consequential thereto”.

Article 239AA(7)(b) provides that a law made under Article 239AA(7)(a) “shall not be deemed to be an amendment of the Constitution for the purposes of Article 368 notwithstanding that it contains any provisions which amends or has the effect of amending this Constitution” .

So, there could be a counter-argument that the Parliament need not exercise its constituent powers of amending the Constitution in order to make a law under Article 239AA(7)(a), although it has the effect of amending any provisions in Article 239AA. However, in the instant case, this argument is unsustainable. The law under Article 239AA (7)(a) is for “giving effect to, or supplementing” the other provisions in Article 239AA. The keywords are  “giving effect to, or supplementing”. The Ordinance, which limits the powers of Delhi Assembly and Delhi Government by taking away the subject of “services” from them, cannot be considered as a law which is “giving effect to, or supplementing” the other provisions in Article 239AA. On the contrary, the Ordinance has the effect of diluting Article 239AA. Hence, the Ordinance cannot be construed as a law made under Article 239AA(7)(a).

Argument that judgment itself allowed Parliament to make such a law

The supporters of the Ordinance in social media extensively relied on one paragraph from the judgment to argue that the Court had allowed the Parliament to make a law to enhance the powers of the Lieutenant Governor. This is Paragraph 95 of the judgment, which is quoted in full below :

“Thus, the scope of the legislative and executive powers of the Union and NCTD that has been discussed under this section is multi-fold. Under Article 239AA(3)(a), the legislative power of NCTD extends to all subjects under the State List and the Concurrent List, except the excluded entries. As the 2018 Constitution Bench judgment held, the executive power of GNCTD is coextensive with its legislative power. In other words, the executive power of GNCTD extends to all subjects on which its Legislative Assembly has power to legislate. The legislative power of the Union extends to all entries under the State List and Concurrent List, in addition to the Union List. The executive power of the Union, in the absence of a law upon it executive power relating to any subject in the State List, shall cover only matters relating to the three entries which are excluded from the legislative domain of NCTD. As a corollary, in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a), subject to the limitations in Article 73. Furthermore, if the Lieutenant Governor differs with the Council of Ministers of GNCTD, he shall act in accordance with the procedure laid down in the Transaction of Business Rules. However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law. Furthermore, under Section 49 of the GNCTD Act, the Lieutenant Governor and the Council of Ministers must comply with the particular directions issued by the President on specific occasions”(emphasis supplied).

Several social media users quoted the highlighted portions of the above paragraph to justify the Ordinance.

This paragraph is essentially a restatement of principles laid down in the 2018 Constitution Judgment in Govt of NCT of Delhi vs Government of India. As laid down in the 2018 verdict, Parliament also has powers over matters in List II in relation to the NCTD, in addition to the Delhi Assembly. If the Parliament exercises such a power to make a law on matters in List II, the Union’s executive power will also extend to those matters. Until and unless Parliament makes such laws on matters relating to List II, the executive power of the Union (and consequently the LG) will be confined to the specified three entries of List II (public order, police and land). Paragraph 95 is basically a summation of the law laid down in the 2018 judgment.

However, these observations cannot rescue the GNCTD Ordinance. Here, the existence of power of the Parliament(and consequently, the power of the Union to make Ordinance) to make such a law is not in question. The Parliament always had the power to make a law in relation to “services” with respect to the NCTD. This was made clear in the 2018 judgment. The question here is, can the Parliament exercise that power to overrule the Constitution Bench judgment of May 19, without taking away the basis of the judgment. It is not the existence of the power, but the exercise of the power which is in question here. The observations in paragraph 95 only acknowledge the existence of the power of the Parliament. They cannot justify the exercise of the power which resulted in the GNCTD Ordinance. Even in the Madras Bar Association and the State of Kerala vs State of Tamil Nadu cases discussed above, the legislature had the power to pass the laws in question; those laws were not struck down on the ground that the legislature lacked the power, but on the ground that such power was exercised to overrule judgments, resulting in the breach of doctrine of separation of powers. The observations in paragraph 95 do not empower the Parliament (or the Union) to to pass a law (or promulgate an Ordinance) to overrule the judgment. 

As explained above, the Ordinance can pass the muster only if it takes away the basis of the judgment. And the basis of the judgment can be taken away only by amending Article 239AA(3)(a) so as to exclude “services” from the scope of NCTD’s powers. Without such a Constitutional amendment, the basis of the judgment remains intact. Therefore, the Ordinance, which seeks to merely overrule the judgment, becomes an invalid exercise of power. Senior Advocate Bishwajit Bhattacharyya in his article published ‘The Hindu’ expressed that “altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368”.

Ordinance negates the spirit of the judgment

The judgment is not solely based on the language of Article 239AA(3)(a) but invokes larger constitutional principles of democracy and federalism. Noting that the Constitution itself envisaged an elected government and legislative assembly for the NCTD, the Court said that it has to adopt an interpretation which will advance the interests of democracy and federalism.

“In a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution,” the Court observed. It added, “A constitutionally entrenched, and democratically elected government needs to have control over its administration”.

“If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers.”

The bench cautioned:

“If the officers stop reporting to the ministers or do not abide by the directions, the entire principle of collective responsibilities is affected. A democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue, if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.”

The effect of the present Ordinance is to perpetuate the very same danger which the Court apprehended and wanted to avert - insulation of the civil servants from the elected government and their consequent loss of accountability, disruption of the accountability and efficiency of the elected Delhi government and indirect rule of the Union Government in violation of federalism. The arguments of the Union Government were rejected by the Court on the ground that they will lead to erosion of democracy and federalism. The very same arguments have come alive through the present Ordinance, which mocks the Supreme Court. So, even applying the principles of primacy of elected government, triple chain of accountability and cooperative federalism which are discussed in the judgment, the Ordinance cannot pass the muster. The Ordinance is nothing but a colourable legislation which does not square with the Constitution Bench judgment both in its letter and spirit.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He can be reached at manu@livelaw.in)