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2023 Supreme(SC) 647
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., PAMIDIGHANTAM SRI NARASIMHA, MANOJ MISRA, JJ.
Government of National Capital Territory of Delhi – Petitioner
Versus
Union of India and Others – Respondents
Writ Petition (C) No. 678 of 2023
Decided On : 20-07-2023
For the Petitioner(s): Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Amit Bhandari, Adv. Mr. Aman Sharma, Adv. Mr. Shadan Farasat, AOR Ms. Warisha Farasat, Adv. Mr. Harshit Anand, Adv. Mr. Aman Naqvi, Adv. Ms. Hrishika Jain, Adv. Ms. Natasha Maheshawari, Adv. Ms. Mreganka Kukreja, Adv. Mr. Siddharth Seem, Adv.
For thr Respondent(s): Mr. R Venkataramani, AG Mr. Tushar Mehta, SG Mr. Kanu Agarwal, Adv. Mr. Padmesh Mishra, Adv. Mr. Arkaj Kumar, Adv. Mr. Anandh Venkataramani, Adv. Mrs. Vijayalakshmi Venkataramani, Adv. Mr. Vinayak Mehrotra, Adv. Ms. Mansi Sood, Adv. Mr. Chitvan Singhal, Adv. Ms. Sonali Jain, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Raman Yadav, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Harish N. Salve, Sr. Adv. Mr. Sanjay Jain, Sr. Adv. Mr. Arkaj Kumar, Adv. Ms. Bani Dkshit, Adv. Dr. N. Visakamurthy, Adv. Mr. Shreekant Neelappa Terdal, AOR
IMPORTANT POINT
Law enacted by Parliament can limit executive power of NCTD over “services”. (i) What are contours of power of Parliament to enact a law under Article 239-AA(7); and; (ii) Whether Parliament in exercise of its power under Article 239-AA(7) can abrogate constitutional principles of governance for NCTD.
Headnote:
Constitution of India – Article 239-AA(7) – Government of National Capital Territory of Delhi Act, 1991 – Section 3A – Power of Parliament to enact a law granting Union of India executive power over services – Section 3A removes Entry 41 of List II from legislative competence of NCTD – On exclusion of Entry 41 from NCTD’s legislative power, Government of NCTD ceases to have executive power over services because executive power is co-terminus with legislative power – Issue whether a law could completely remove NCTD’s executive power over Entry 41 is interconnected with validity of Section 3A – Prima facie reading of Article 239-AA(7)(b) denotes that law enacted under Article 239-AA(7)(a) could alter existing constitutional structure of governance of NCTD. (Paras 13 and 15)
Result : Matter referred to Constitution Bench.
ORDER :
1. On 19 May 2023, eight days after the Constitution Bench of this Court pronounced the judgment in Government of NCT of Delhi vs. Union of India, Civil Appeal No. 2357 of 2017 [“2023 Constitution Bench judgment”] the President in exercise of powers under Article 123 of the Constitution promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 [“NCT Ordinance”]. The NCT Ordinance amends the Government of National Capital Territory of Delhi Act 1991 [“GNCTD Act”]. The Preamble to the Ordinance states that Parliament has exclusive and plenary jurisdiction with respect to the national capital in view of Articles 239-AA(3)(b) and 239-AA(7):
“AND WHEREAS, keeping in mind various reports of various Commissions and since Delhi is the capital city of the nation, the Constitution retained certain exclusive and plenary jurisdiction in the Parliament while incorporating Article 239-AA in general and Article 239-AA(3)(b) read with Article 239-AA(7) in particular.
[.....]
AND WHEREAS for the purpose of giving effect to Article 239(1) read with Article 239AA and in exercise of powers of Article 239AA(3)(b) and Article 239AA(7) of the Constitution of India, which includes the power to supplementing the provisions under Article 239-AA including the power to make suitable amendments thereof an Ordinance namely the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is proposed to provide for a comprehensive scheme of administration of services deployed in the functioning of NCTD and other allied issues thereby balancing the local and domestic interests of the people staying in the NCTD with the democratic will of the entire nation reflected through the President of India.”
(Emphasis supplied)
2. The NCT Ordinance inserts Section 3A in the GNCTD Act 1991. Section 3A stipulates that notwithstanding anything contained in any judgment, order, or decree of any Court, the Legislative Assembly shall have the power to enact laws as prescribed in Article 239-AA, except with respect to Entry 41 of List II of the Seventh Schedule to the Constitution. The provision excludes Entry 41 of List II from the legislative competence of NCTD in addition to Entries 1, 2 and 18 of List II which are excluded by Article 239-AA. In effect, Section 3A amends Article 239- AA.
3. In addition to excluding the legislative power of NCTD with respect to Entry 41 of List II, the NCT Ordinance also establishes a new scheme for the distribution of executive power over services between the Union of India and the Government of NCTD. A brief overview of the scheme is provided below:
(i) The President shall constitute any authority, board, commission or statutory body in and for NCTD, or appoint or nominate any office bearer or member to the body. [Section 45D]
(ii) The National Capital Civil Service Authority [“Authority”] is constituted. The Authority shall consist of the Chief Minister of NCTD, the Chief Secretary of the Government of NCTD, and the Principal Home Secretary of the Government of NCTD. Decisions shall be taken by a majority of votes of the members present and voting. [Section 45E]
(iii) The authority has the power, inter-alia, to recommend transfers and postings of Group A officers and officers of DANICS serving in the affairs of NCTD (excluding those serving in connection with Entries 1, 2, 18 of List II), recommend on all matters connected with and falling under the subject of ‘vigilance’ and ‘non-vigilance’ for the purpose of disciplinary proceedings, to make recommendations on transfer and postings and on the suitability of officers on postings. [Section 45H]
(iv) The Lieutenant Governor shall return the recommendation made by the Authority for reconsideration if he differs from the recommendation of the Authority. In case of a difference of opinion between the Lieutenant Governor and the Authority, the decision of the Lieutenant Governor shall be final. [Section 45H]
(v) Proposals which may, inter alia, a
