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What's the article about?
- It talks about the recently promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (Ordinance).
Relevance:
- GS2: Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these;
- Prelims
Context:
- Recently, the President of India exercised legislative power under Article 123 of the Constitution, during the period Parliament was in recess, to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023” (Ordinance).
- The ordinance negates a Constitution Bench judgment of the Supreme Court of India, which was delivered on May 11, that brought “services” under the Government of National Capital Territory of Delhi (NCTD).
Analysis: There are two issues here that require analysis: first, the scope of the Court’s verdict. Second, the constitutionality of the ordinance.
- Scope of the Court’s verdict:
- The Court interpreted that out of the 66 entries in List II (the State list), while the executive power of the Government of NCTD covers 63 entries, that of the Union of India is restricted to the remaining three: public order (entry 1), police (entry 2) and land (entry 18).
- Consequently, executive power over “services” (entry 41) 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).
- But, this interpretation was negated by the Union of India, acting through its Council of Ministers under Article 74, by triggering extraordinary legislative power of the President under Article 123 in the promulgation of an ordinance.
- What the ordinance did was to read/insert entry 41 of List II (State list) into Article 239AA(3)(a), thereby expanding the scope of excepted matter from three (1, 2, 18) to four (1, 2, 18, 41).
- Constitutionality of the ordinance:
- 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; there is not an iota of doubt.
- Consequently, the ordinance promulgated under Article 123 of the Constitution to expand the scope of excepted matters in Article 239AA(3)(a) is void ab initio and is liable to be struck down for bypassing constitutional amendment.
- It amounts to a colourable exercise of power. Article 123 is no substitute for Article 368 (amendment of the Constitution) in Part XX.
Way Forward:
- The Constitution of India envisaged a federal polity for India. But special areas such as NCTD require a different mechanism. Subsequent amendments dealt with this. But now more is required to be done to solve the issue of the tussle between the elected government of the NCTD and the union government.
