The Supreme Court has announced that a five-judge constitution bench will examine whether Parliament has the authority to “abrogate the constitutional principles of governance” for the Delhi government by enacting a law to strip it of control over services. Recently, the Centre issued an ordinance related to the Delhi services matter, using its powers under Article 239-AA, a special provision in the Constitution pertaining to the national capital.
The top court referred the Delhi government’s plea challenging the Centre’s ordinance to a constitution bench. The court’s order, containing the legal questions to be addressed by the larger bench, was uploaded on its website.
The order posed two preliminary issues for consideration by the larger bench. Firstly, it questioned the significance of Section 3A of the ordinance, which removes Entry 41 (services) of List II (State List) from the legislative competence of the National Capital Territory of Delhi (NCTD). This removal results in the Delhi government losing its executive power over services, as executive power is tied to legislative power. The constitutionality of Section 3A is connected to the aspect of services under Entry 41.
While the Delhi government argued against referring the matter to a constitution bench, fearing it would disrupt the system during the pendency, the court decided to proceed with the reference.
The bench raised concerns about the ordinance taking away control over services from the Delhi government. The Constitution already excludes three entries of List II (State List) related to police, law and order, and land from the control of the Delhi government. However, the ordinance effectively extends this exclusion to also include Entry 41 (services) from the power of the Delhi Legislative Assembly.
Article 239AA of the Constitution deals with special provisions for Delhi, with sub-article 7 granting Parliament the authority to make provisions for implementing or supplementing the preceding clauses and for all related matters.
The constitution bench will now address the questions surrounding Parliament’s powers under Article 239-AA(7) and whether it can abrogate the constitutional principles of governance for the NCTD