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The Centre on Friday (May 19) promulgated an Ordinance extending powers to the Delhi lieutenant governor over services in the administration of the national capital – basically, the power to transfer and appoint bureaucrats posted to Delhi.
The Ordinance, aimed at nullifying the effect of the Supreme Court’s decision that gave the Delhi government powers over administrative services in the national capital, raises several key questions– questions that are likely to soon be posed before the Supreme Court.
Can a decision of the Supreme Court be undone?
Parliament has powers to undo the effect of a judgement of the Court by a legislative act. However, the law cannot simply be contradictory to the Supreme Court judgement, it must address the underlying reasoning of the Court.
This means that a law can be passed removing the basis of the judgment. Such a law can be both retrospective or prospective.
“The test for determining the validity of validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed,” The Supreme Court said in a judgement on July 14, 2021 in Madras Bar Association versus Union of India.
How does the ordinance fare against the judgement of the Supreme Court?
Two constitution benches of the Supreme Court, in 2018 and on May 5, have dealt with the issue of the powers of the Delhi government. Both these judgements involve the interpretation of Article 239AA of the Constitution that deals with the governance structure of the national capital. In 1991, when Article 239 AA was inserted, Parliament also passed the Government of National Capital Territory of Delhi Act, 1991 to provide a framework for the functioning of the Legislative Assembly and the government of Delhi.
The ruling on May 5 places three constitutional principles – representative democracy, federalism and accountability – to an elected government within the interpretation of Article 239AA.
The judgement also recognises “principles of democracy and federalism” to be part of the basic structure of the Constitution.
Since the the basis for the Court’s decision is found in interpretation of constitutional provisions, it can be debated whether a law amending the GNCTD Act, 1991 will suffice to nullify the effect of the judgements.
The Delhi government can argue that a legislation that nullifies the effect of the ruling must be an amendment to the Constitution and not just an amendment to the statutory law.
The Court also clearly held that Part XIV of the Constitution that contains provisions for regulating the employment of persons to the public services under the union and States is applicable to union territories which includes Delhi.
The current ordinance takes away this power from the Delhi government and places it with a statutory body that comprises of the chief minister of Delhi and the Chief Secretary and principal Home Secretary of the Delhi government.
This arrangement means that the chief minister can effectively be vetoed by two senior bureaucrats on the issue of appointments and transfers of bureaucrats. This dilution of power of the Delhi government will have to be justified within the Court’s interpretation of Article 239 AA. While the Ordinance does not address the issue, it will be litigated in Court whether the new statutory authority will impact the court’s finding on Delhi’s powers.
Can the Ordinance impact the basic structure of the Constitution?
Parliament cannot bring in a law, or even a Constitution amendment, that violates the basic structure of the Constitution.
In the majority ruling in the 2018, the Constitution bench held that while Delhi could not be accorded the status of a state, the concept of federalism would still be applicable to it.
“We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities referred to hereinabove pertain to the Union of India and the state government in the constitutional sense of the term “state”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in article 239AA and other Articles,” then Chief Justice of India Dipak Mishra had held.
On 5 May, the unanimous ruling penned by Chief Justice of India DY Chandrachud also held that with the introduction of Article 239AA the Constitution created a federal model with the Union of India at the Centre, and the NCTD at the regional level.
“This is the asymmetric federal model adopted for NCTD. While NCTD remains a union territory, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union and NCTD,” the ruling stated.
