Supreme Court Establishes Constitutional Review Panel to Consider Parliament’s Influence on Delhi Governance

The Supreme Court of India has agreed to create a five-judge constitution bench to explore the issue of whether Parliament may “abrogate the constitutional principles of governance” for the Delhi government by passing legislation that limits its ability to manage services. This is a big move. After exercising its authority under Article 239-AA of the Constitution, which relates to the special provisions for the national capital, the Centre passed an ordinance on the Delhi services problem, leading to the judgment.

The Delhi government’s petition contesting the Center’s ordinance was recently sent to the constitution bench by the supreme court. This will make it possible for the broader bench to examine the legal issues raised by the ordinance. According to PTI, the decision was made by a bench that included Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra.

Accordingly, “we refer the following questions to a constitution bench: (i) What are the contours of Parliament’s power 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 the National Capital Territory of Delhi (NCTD),” read the order.

Chief Justice Chandrachud wrote the court’s ruling, which included two preliminary concerns that the whole bench was to address. The meaning of Section 3A of the ordinance was the primary topic of discussion. This clause essentially strips the Delhi government of its executive authority over services by removing Entry 41 (services) of List II (State List) from the NCTD’s legislative purview.

The decree made it clear that the legislative and executive branches of government had equal authority. The main issue is thus whether a legislation has the power to completely deprive the Delhi government of its executive control over services. Additionally, the legitimacy of Section 3A of the ordinance was linked to the issue of services under Entry 41.

The Delhi administration vehemently protested to the referral to a constitution panel, claiming that it would bring the whole system to a standstill while the matter was pending. But the Supreme Court went on with the reference and posed a fundamental question about how the law will affect the Delhi government’s ability to manage services.

The Delhi government is already prohibited by the Constitution from controlling three items on List II (State List) that deal with law enforcement, public safety, and land. The court emphasized that the ordinance effectively broadened its purview beyond the three excluded entries by removing Entry 41 (services) from the Delhi Legislative Assembly’s legislative authority. This raised questions regarding the Center’s and Delhi’s governments’ constitutionally mandated power relationships.

Delhi is covered by specific provisions in Article 239AA of the Constitution, and its sub-article 7 gives Parliament the power to adopt legislation that give effect to or augment those provisions. Even if these legislation included provisions that modified the Constitution, the court noted that they would not be regarded as such under Article 368.

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was previously published by the Center on May 19. The purpose of this order was to provide a framework for the posting and transfer of Group-A officers in Delhi.