Opinion Faizan Mustafa writes: Is the Delhi ordinance a brazen overruling of the Supreme Court verdict?

The President has the power to promulgate ordinances on all the subjects on which Parliament can make laws. What, then, is the problem with the Delhi Ordinance? Can the Supreme Court’s vacation benches stay the ordinance?

First of all, whenever the constitutionality of a law is challenged, the burden of proof is on the person who challenges it. The Court would have to start with a presumption in favour of the constitutionality of the Delhi ordinance.

Parliament as the supreme legislative body can indeed overturn judicial verdicts. But it cannot simply undo the judgment. It has to remove its “very basis”. In Utkal Contractors (1987), where an ordinance was promulgated by the Orissa government to undo the SC judgment that struck down the Forest Produce (Control of Trade) Act, 1981, the apex court upheld the validity of such an ordinance. The Court explicitly held that rendering judicial judgment ineffective through legislative powers by removing the basis of judgment is a well-known pattern of all validating laws. In Prithivi Cotton Mills (1969), the Validation Act was passed by Gujarat Assembly during the pendency of the writ petition to validate the tax, which had been declared as illegally collected by the court. Such an exercise of legislative power was upheld by a five-judge bench of the SC. The Court admitted that it is not in dispute that the legislature can pass a validating statute even with the retrospective effect. In fact, Parliament can pass a law even during the pendency of a case.

Forget facts, Parliament may even create fictions and the Court has to uphold them. In Fakrusab Babusab Karanandi (1976), the apex court observed that “it is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it”. Has the Delhi ordinance, promulgated with such speed, removed the basis of the May 11 judgment? That is the crucial question.

The ordinance has inserted Section 3A in the National Capital Territory of Delhi Act (NCTD), 1991, which states that notwithstanding any judgment, order or decree of any court on the subject of services, the assembly shall have powers as defined in the ordinance. It has replaced the words “act in his discretion” with the words “act in his sole discretion” vis a vis the LG in Section 41 of the Act.

What was the basis of the May 11 judgment of the Supreme Court? The five-judge bench led by CJI D Y Chandrachud considered the asymmetric federal model of governance an important aspect of our democracy. The judgment gave a lot of importance to the “spirit of the Constitution” – that decisions be taken by the elected representatives. It emphasised that the Delhi model is sui generis. The Court has observed that only in the three identified matters, Delhi being a Union Territory (UT), shall be governed by the Union government. The Court said in so many words that this scheme of distribution of powers cannot be disturbed to give a greater say to the central government. It categorically held that all UTs cannot be treated in the same way. UTs with a legislative assembly of their own are akin to states and their government’s executive powers would extend to all matters on which their legislative assemblies can make laws. The Court opined that a homogenous class of UTs is unknown to the Indian Constitution.

The CJI has observed that “the design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different states and UTs, it preserves the local aspirations of different regions.” The bench observed that “recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy.” In a categorical finding based on the larger bench judgment of S R Bommai (1994), the Court held that states are not subservient to the Union or its mere appendages.

The ordinance too admits the sui generis status of Delhi in the very first paragraph of its unduly long preamble. It says that Delhi is a Union Territory with a legislative assembly but twists this to emphasise that decisions taken in Delhi have national implications, affect the national reputation, image, etc. It says in the preamble that the national capital belongs to the entire nation and the latter is vitally interested in its governance. It also mentions the presence of diplomatic missions and embassies in Delhi. No one can dispute this assertion by the ordinance but then, “land” is already under the Centre’s control.

The Court attached importance to the presence of an Assembly but the ordinance says that despite an elected House, Delhi remains a UT. The May 11 judgment and the 2018 constitution bench judgment emphasised the democratic nature of our Constitution but the preamble of the ordinance makes a reference to Article 239AA to state that it provides for the “legitimate balancing of power between the union government and democratic existence of legislature and council of ministers having curtailed powers” (emphasis added). The preamble also referred to Article 1, which declares India to be a Union of States and Union Territories specified in the First Schedule. Textually speaking, this assertion is not correct as term the “Union Territories” is not present in Article 1, though they are certainly mentioned in the first schedule.

The ordinance noted the absence of parliamentary legislation on services as mentioned in entry 41 of List II and the Supreme Court judgment had noted the absence of such a law. Accordingly, the ordinance has provided for the creation of an authority on services for the national capital. The government is well within its rights to fill this void and it is on this ground that the ordinance may be upheld.

To overcome the apex court’s observations on governance to be in the hands of the democratically elected representatives, the ordinance has made the chief minister the chairman of the National Capital Civil Services Authority. But the chief minister can easily be controlled by the bureaucrats and the LG has been given the final say to retain what the ordinance calls “active, meaningful and effective participation of the President in the national interest”. Will such an authority be feasible for other states as well?

It is unlikely that the SC will stay the operation of the ordinance as the matter yet again would go to a constitution bench. The SC has to examine whether the basis of judgment has really been removed, particularly on the issue of representative government.

The writer is an expert in constitutional law. Views are personal