Introduction

In a significant development, the Supreme Court of India has referred the Delhi government’s plea challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to a Constitution Bench. The case revolves around the issue of control of services in the national capital and the conflict between different clauses of Article 239AA, which pertains to the law-making power and governance structure of NCTD.

Background

The Supreme Court’s decision came in response to a three-judge Bench, presided by Chief Justice of India D Y Chandrachud, which identified an “apparent conflict between the two clauses” of Article 239AA. The court felt that this conflict needed resolution through a constitutional adjudication process.

Key Issues to be Addressed

The court framed two essential questions to be answered by the Constitution Bench:

1. What are the contours of Parliament’s power to enact a law under Article 239-AA(7)?
2. Can Parliament, in the exercise of its power under Article 239-AA(7), abrogate the constitutional principles of governance for NCTD?

Arguments by Parties

During the proceedings, Senior Advocate A M Singhvi, representing the Delhi government, expressed his disagreement with the reference to a Constitution Bench, citing concerns about the time it would take for the hearing. Nevertheless, the court proceeded with the referral.

Singhvi raised concerns about the current state of governance in Delhi, with bureaucratic orders not being followed and questions surrounding the Lieutenant-Governor’s power to remove consultants appointed by the AAP government.

Senior Advocate Harish Salve, appearing for the Lieutenant-Governor, opposed these submissions, asserting that the L-G had not removed the consultants under the ordinance. He pointed out alleged irregularities in the appointments, suggesting that such actions were already illegal even without the ordinance.

Significance of the Ordinance

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, was promulgated by the Centre on May 19. It seeks to establish a National Capital Civil Service Authority to handle the transfer and posting of Group-A officers in Delhi. The Authority consists of three members: the Chief Minister and two bureaucrats. Decisions are taken by majority, and any disputes are referred to the Lieutenant-Governor for a final decision.

Conclusion

The Supreme Court’s decision to refer the case to a Constitution Bench highlights the importance of resolving the conflicts in Article 239AA and clarifying the scope of Parliament’s law-making power concerning the governance of NCTD. This adjudication will have far-reaching implications for the functioning of Delhi’s administration and the distribution of powers between the elected government and the Lieutenant-Governor.

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Frequently Asked Questions (FAQ’s)

Q1: What is the Delhi government’s plea challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023?

The Delhi government has challenged the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which deals with the control of services in the national capital.

Q2: What was the Supreme Court’s observation about Article 239AA?

The Supreme Court observed that there is an “apparent conflict between the two clauses” of Article 239AA regarding the law-making power and governance structure of NCTD. The court decided to resolve this conflict through a Constitution Bench.

Q3: What are the questions framed by the court for the Constitution Bench?

The court framed two questions for the Constitution Bench to address:

1. The contours of Parliament’s power to enact a law under Article 239-AA(7).
2. Whether Parliament can, in the exercise of its power under Article 239-AA(7), abrogate the constitutional principles of governance for NCTD.

Q4: What is the significance of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023?

The ordinance seeks to establish a National Capital Civil Service Authority to manage the transfer and posting of Group-A officers in Delhi. The Authority comprises three members: the Chief Minister and two bureaucrats, and decisions are taken by majority, with the Lieutenant-Governor having the final say in case of disputes.

Q5: How will the adjudication impact Delhi’s administration?

The adjudication will have far-reaching implications for the functioning of Delhi’s administration and the distribution of powers between the elected government and the Lieutenant-Governor. It will clarify the scope of Parliament’s law-making power in NCTD’s governance structure.