Can Parliamentary Law Under Article 239AA(7) Alter Constitutional Powers Of Delhi Govt? Issue Referred To Supreme Court Constitution Bench

While referring the Delhi Government's challenge against the Centre's Ordinance on services to a Constitution Bench, a 3-judge bench of the Supreme Court observed that contours of the powers of the Parliament under Article 239AA(7) of the Constitution were not considered in either of the earlier Constitution Bench judgments of 2018 and 2023 in the GNCTD vs Union of India cases.

Article 239AA is the Constitutional provisions dealing with the National Capital Territory of Delhi. The Ordinance in question, the Government of National Capital Territory (Amendment) Ordinance, 2023, takes away the power of NCTD over the subject of "services".  Section 3A of the Ordinance stipulates that notwithstanding anything contained in any judgment, order, or decree of any Court, the Legislative Assembly of NCTD shall have no power to enact laws with respect to Entry 41 of List II of the Seventh Schedule to the Constitution(services). It may be recalled that the Ordinance was promulgated after the Supreme Court's Constitution Bench ruled on May 11 that the Delhi Government has the power over services.        

Article 239AA specifically excludes only three entries of the state list from the powers of NCTD - Entries 1, 2 and 18 relating to police, law & order and land respectively. Since the Ordinance excludes services also from the NCTD's ambit by virtue of its Section 3A, the 3-judge bench observed, "In effect, Section 3A amends Article 239-AA".

However, the bench comprising CJI DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra noted that Article 239AA(7)(a) gives Parliament the power to make laws with respect to “any matter” for NCTD. Article 239-AA(7)(a) grants Parliament the power to enact a law for “giving effect to, or supplementing” the provisions of Article 239-AA, and for all matters incidental to it. Article 239-AA(7)(b) stipulates that such a law shall not be deemed to be an amendment to the Constitution even if the law amends the Constitution or has the effect of amending the Constitution.

The Delhi Government argued that the power under Article 239AA(7)(a) cannot be used to dilute the Constitutional powers of the NCTD. On the other hand, the Union of India argued that Parliament has the power to make laws on the subject of "services" in relation to NCTD as per Article 239AA.

The 3-judge bench noted that the power of Parliament over "services" is not in dispute. The issue is whether such an exercise of power is valid.

"The power of Parliament to enact a law granting the Union of India executive power over services is not in contention. It is now a settled position of law. However, this Court while deciding the constitutional validity of the 2023 Ordinance must decide if the exercise of such a power is valid".

In this regard, the bench noted that there isn apparent conflict between Article 239AA(7)(a) and Article 239AA(7)(b), which has not been considered in earlier Constitution Bench judgments.

"While Article 239-AA(7)(a) states that the law must only give effect 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 the Constitution even if it has the effect of amendingArticle 239-AA.A primary reading of Article 239-AA(7)(a) indicates that the law shall not alter the existing constitutional structure envisaged for NCTD in Article 239-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 the existing constitutional structure of governance of NCTD. 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".

Therefore, the bench referred the following issues to the Constitution Bench :

(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. 

The bench also observed that matter be expeditiously disposed of by the Constitution Bench "because of the protracted legal battle between the Union of India and the Government of NCTD on the administration of NCTD".

Case Title : Government of National Capital Territory of Delhi vs Union of India Writ Petition (C) No. 678 of 2023

Citation : 2023 LiveLaw (SC) 551; 2023 INSC 635

Appearances : Senior Advocate Dr.Abhishek Manu Singhvi, Advocate-on-Record Shadan Farast for GNCTD; Solicitor General of India Tushar Mehta for Union of India; Senior Advocate Harish Salve for Delhi LG

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