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Wednesday, October 4, 2023

Will examine whether Parliament can repeal constitutional principles of governance for Delhi: SC in dispute over services; Key points | delhi news

NEW DELHI: Holding that “it was necessary to end the protracted legal battle”, the Supreme Court has said that a five-judge constitutional court will examine the “contours of power” of Parliament to make the law for Delhi and also whether he can “repeal the constitutional principles of government” for the city’s dispensation by making a law to take away control over services.


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Eight days after a constitutional court held that the Delhi government would have control over the services, the Center issued an ordinance on the matter of Delhi services on 19 May exercising its powers under Article 239-AA, a special provision of the Constitution relating to the national capital.

AAP will not attend opposition meeting in Bengaluru unless Congress passes Delhi ordinance: Jasmine Shah to TOI


AAP will not attend opposition meeting in Bengaluru unless Congress passes Delhi ordinance: Jasmine Shah to TOI

Here are the key observations of the vertex cut:

  • The high court, which on Thursday referred to a constitutional court over the Delhi government’s request to challenge the ordinance, framed two legal issues in its 10-page order to be dealt with by a larger court over the ordinance that sparked a fresh fight between the two centers of power.
  • “Therefore, we refer the following questions to a constitutional court: (i) What are the contours of Parliament’s power to enact law under Section 239-AA(7); and (ii) Whether Parliament, in the exercise of its power under Section 239-AA(7), can abrogate the constitutional principles of governance for the National Capital Territory of Delhi (NCTD),” reads the order passed by a court of Chief Justice DY Chandrachud and the judges PS Narasimha and Manoj Misra.
  • The bank said there was a need to end the protracted legal battle between the Center and the Delhi government over the administration of the national capital.
  • He SOUTH CAROLINA instructed the first instance secretariat to submit the records before the CJI in the administrative part for the installation of the constitution room to answer the aforementioned questions of law.
  • The order, drafted by the CJI, said there were two preliminary issues that arose for consideration by a larger court.
  • “The first is on the importation of Section 3A (of the ordinance). Section 3A removes Entry 41 (services) from Schedule II (List of States) from the legislative purview of the NCTD. With the exclusion of Entry 41 from the legislative branch of the NCTD, the NCTD government ceases to have executive power over services because the executive branch is co-terminal with the legislative branch,” the order said.
  • The question, therefore, is whether a law could remove the Delhi government’s executive power over services entirely, he said, adding that the aspect of services under Entry 41 was also “interconnected with the validity of Section 3A” of the ordinance.
  • The ordinance amended the Delhi National Capital Territory Government Act 1991 and inserted section 3A into the Act stipulating that the Delhi assembly cannot enact laws on the control of services in the national capital, the order says.
  • “The power of Parliament to enact a law giving the Union of India executive power over services is not in dispute. It is now an established legal position. However, this court, in deciding the constitutional validity of the Ordinance 2023, must decide whether the exercise of such power is valid,” he said.
  • Referring to Article 239-AA(7)(a), which was used by the Center in issuing the Ordinance, he said that the central law will not even be considered an amendment to the Constitution.
  • “A primary reading of Section 239-AA(7)(a) indicates that the law will not alter the existing constitutional structure provided for NCTD in Section 239-AA. However, a prima facie reading of Section 239-AA(7)(b) indicates that the law enacted under Section 239-AA(7)(a) could alter the existing constitutional structure of governance of NCTD,” the order said.
  • This apparent conflict between the two clauses on the nature of the legislative power in relation to Delhi’s constitutional structure of government must be resolved by this court, he said.
  • The court said that the two constitutional court trials of 2018 and 2013 in the Delhi-Central row have not dealt with the Center’s power to make laws under section 239AA(7).
  • “We are of the considered opinion that the provision of the writ petition requires this court to answer a substantive question of law as to the interpretation of the Constitution,” he said.
  • On Thursday, the high court rejected a vehement statement by the Delhi government that there was no need to refer the matter to a constitutional court as it will “cripple the entire system” during its prosecution.
  • During a brief hearing, the bank raised a question regarding the ordinance, saying it took control of the services away from the Delhi government.
  • The Constitution excludes three Schedule II (state list) entries relating to police, law and order and land from the control of the Delhi government, it said.
  • “What you (Centre) have effectively done is that the Constitution says that barring three entries, the Delhi legislature has the power. But, the Ordinance removes Entry 41 (services) (from Schedule II) also from power. That is the effect of Section 3A of the Ordinance,” the bank said.
  • Lead lawyer Harish Salve, representing lieutenant governor VK Saxena, a key man in the central government, referred to previous trials and said that for a union territory, the state list becomes a concurrent list and therefore Parliament has the power to legislate.
  • Hail justified the termination of the services of 437 independent consultants appointed by the Delhi government on the orders of the LG. The Delhi government made “illegal rank appointments” of undeserving people, who turned out to be Aam Aadmi Party workers, and were fired by the LG and for that the ordinance was not needed at all, he said.
  • Singhvi, representing the Delhi government, said there was no need to refer the case to a constitutional court as the matter can be decided by a three-judge court.
  • Section 239AA deals with the special provisions in respect of Delhi in the Constitution and its subsection 7 states: “Parliament may by law make provisions to give effect to or supplement the provisions contained in the preceding clauses and for all incidental or consequential matters.”
  • It also says that any law made under the article “shall not be considered an amendment to this Constitution for the purposes of article 368, notwithstanding that it contains any provision that modifies or has the effect of modifying this Constitution.”
  • On 19 May, the Center enacted the Delhi National Capital Territory Government (Amendment) Ordinance, 2023 to create an authority for the transfer and posting of A-Group officers in Delhi.
  • The AAP government called it a “cheat” with the Supreme Court’s verdict on control of services.
  • The ordinance seeks to establish a National Capital Civil Service Authority for transfer and disciplinary proceedings against Group-A officers of the Delhi, Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (DANICS) Services (Civilian) cadre.
  • The prime minister is one of three members of the authority, while two others are bureaucrats. Decisions of the Authority will be taken by majority and, in case of controversy, the matter will be referred to the LG, whose decision will be final.
  • The transfer and fate of all Delhi government officials were under the executive control of the LG before the high court verdict on 11 May.
  • A five-judge constitution court headed by CJI Chandrachud, in a unanimous verdict, had sought to end the eight-year dispute between the Center and the Delhi government sparked by a 2015 Home Office notice asserting its control over services, arguing that the administration of the National Capital Territory is different from other union territories and has been given ‘sui generis’ (unique) status by the Constitution.
  • In the context of frequent clashes between the AAP government and the lieutenant governor, the high court stated that an elected government must have control over bureaucrats, otherwise the principle of collective responsibility will be negatively affected.
  • Prior to this, another five-judge constitutional court, in 2018, had unanimously held that the GL Delhi was bound by the aid and advice of the elected government, and that both should work in harmony with each other.

    With PTI inputs

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