The reference order passed Thursday by a three-judge court headed by CJI DY Chandrachud, uploaded to SC’s website late at night, read: “The position of the law is that a law enacted by Parliament can limit NCTD’s executive power over ‘services.’ The power of Parliament to enact an act giving the Union of India executive power over services is not in dispute. It is now an established position of law. However, this court, in dealing with the constitutional validity of the May 19 ordinance, must decide whether the exercise of such power (by Parliament) is valid.”
The court posed two questions to the five-judge panel: what are the contours of Parliament’s power to make a law under section 239AA(7); and whether Parliament, in the exercise of its power under Section 239AA(7), could derogate from the constitutional principles of governance for NCTD.
On Section 3A of the ordinance removing “services” from the legislative purview of the Delhi assembly, the court said: “On the exclusion of Gate 41 (services) from NCTD’s legislative power, the NCTD government ceases to have executive power over services because the executive power is co-terminal with the legislative power. Therefore, the question, whether a law could remove NCTD’s executive power over Gate 41 entirely, is interconnected with the validity of Section 3A”.
Relying on the Center on Section 239AA(7)(a) and (b) for the promulgation of the immobilizing ordinance of a constitutional court’s May 11 ruling giving the Delhi government legislative and executive control over services, the court said: “Whereas Section 239AA(7)(a) provides that the law should only give effect to or supplement the provisions of Section 239AA, Section 239AA(7)(b) provides that the law will not be considered an amendment to the Constitution even if it has the effect of modifying article 239AA.
“A primary reading of Section 239AA(7)(a) indicates that the law will not alter the existing constitutional structure provided for the NCTD in Section 239AA. However, a prima facie reading of Section 239AA(7)(b) indicates that law enacted under Section 239AA(7)(a) could alter NCTD’s existing constitutional governance structure. This apparent conflict between the two clauses on the nature of the legislative power versus NCTD’s constitutional structure of governance must be resolved by this court.”
Justifying the referral of the matter to another five-judge court, the CJI-led court said that the two constitutional court trials, one in 2018 and the other on May 11 this year, on the turf war between the Delhi government and the Union government had addressed the interpretation of Article 239AA(7). “We are of the considered opinion that the writ petition provision requires this court to answer a substantive question of law as to the interpretation of the Constitution. Accordingly, we refer the following questions to a constitution bank,” he said.