Every week after the Supreme Court delivered the judgment in Government of NCT of Delhi v. Union of India recognising the legislative and govt powers of the National Capital Territory of Delhi over “services”, the Union Government promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 which nullifies the impact of the Constitution Bench verdict. There may very well be some symbolism within the Ordinance being promulgated in the midst of the night time, a couple of hours after the Supreme Court closed for summer time holidays. Ever since, intense debates are occurring in political and authorized circles relating to the validity of the Ordinance.

I don’t want to burden this text with the nitty-gritties of the Ordinance, as there are a number of different articles explaining it. What it successfully does is to provide primacy to the Lieutenant Governor (an appointee of the Union Government) in switch and postings of civil servants serving the Delhi Government, undoing the Supreme Court’s ruling that the elected authorities can have the management of companies (besides in issues regarding police, public order and land).

In this text, I advance an argument that the Ordinance is unconstitutional for negating the Supreme Court’s judgment. Of course, there are a number of nuances to this debate with sturdy counter-arguments, which I’ll attempt to meet throughout the limitations of my information and talents.

Can the legislature overrule judgments?

Before delving into the talk, some ideas should be made clear. Legislative overriding of judgments is permissible in sure circumstances. The legislature can neutralize the impact of a judgment by altering the authorized foundation of the judgment(Madan Mohan Pathak vs. Union of India AIR 1978 SC 803). For instance, if a Court has struck down a choice taken by an authority on the bottom of lack of statutory energy, the legislature can later amend the legislation to confer the requisite energy on such authority and validate the choice retrospectively. That is taking away the authorized foundation of the judgment by means of a subsequent modification. It can be permissible for the legislature to amend the legislation to treatment the defects within the statute which led to the judgment. In the current Jallikattu case(Animal Welfare Board of India vs Union of India), the Supreme Court held that state amendments allowing bull-sports weren’t overriding the 2014 judgment which banned such animal actions and opined that the legal guidelines had the impact of curing the issues flagged by the Court (extra judgments on this idea are mentioned in this article).

But, in exercising legislative energy, the Legislature by mere declaration, with out something extra, can’t immediately overrule, revise or override a judicial resolution(Madan Mohan Pathak supra).

In State of Kerala vs State of Tamil Nadu AIR 2014 SC 2407, a Constitution Bench of the Supreme Court held {that a} legislation enacted by the legislature may be invalidated whether it is an try to intrude with judicial course of by breaching the doctrine of separation of powers. In that case, the Court struck down a Kerala legislation, which restricted the water degree of the Mullaperiyar dam opposite to the Supreme Court’s instructions.

In the 2021 Madras Bar Association case, the Supreme Court struck down the provisions of Tribunal Reforms Ordinance 2021 on the bottom that they have been opposite to an earlier judgment of the Court.

“It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court”(emphasis equipped), the Court noticed in Madras Bar Association case.

The judgment additional said, “A legislation can be declared as unconstitutional if it is in violation of the principle of separation of powers” and “Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India”.

Is the GNCTD Ordinance overruling the judgment?

In the sunshine of the above mentioned ideas, allow us to analyze the GNCTD Ordinance. Even although the Ordinance was promulgated by the Executive, it’s an train of legislative energy. So, the ideas regarding legislative overruling will apply to the Ordinance as properly.

Section 3 of the Ordinance, which seeks to insert Section 3A within the GNCTD Act, is essential. It reads as follows :

“Notwithstanding anything contained in any judgement, order or decree of any Court ,the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto”(emphasis equipped)

This provision overrides the Constitution Bench judgment which holds that the NCTD has legislative and govt powers over “services” (which is enumerated in Entry 41 of List II of the Seventh Schedule). Further, the Ordinance confers powers on the LG to behave in “his sole discretion” in issues associated to companies.

Can the Ordinance be mentioned to be merely taking away the authorized foundation of the judgment and therefore a permissible train of legislative energy? To reply that, we have to first perceive what’s the foundation of the judgment. The foundation of the judgment is Article 239AA (3)(a) of the Constitution which says that the Delhi Legislative Assembly has powers over all issues in List II besides the issues in Entries 1, 2 and 18 (public order, police and land) and different issues associated to the exempted entries. Since “services” shouldn’t be exempted in Article 239AA(3)(a), the Delhi meeting has powers over it and consequently, the Delhi Government has govt powers on the topic – that is the lengthy and wanting the judgment. This is obvious from paragraph 96 of the judgment :

“NCTD shall have legislative power to make laws on “services”. This is as a result of “services” (that’s, Entry 41) shouldn’t be expressly excluded in Article 239AA(3)(a). As it has legislative energy, it shall have govt energy to regulate “services” inside NCTD”.

Article 239AA(3)(a), the premise of the judgment, remains to be there within the Constitution intact. The Ordinance doesn’t( and can’t) amend Article 239AA(3)(a) to exempt “services” from the legislative powers of the NCTD. So the Ordinance doesn’t have the impact of taking away the authorized foundation of the judgment. Rather, it’s merely declaring that the judgment is ineffective, with out disturbing its authorized foundation, which is an impermissible train. By doing so, the Ordinance is breaching the doctrine of separation of powers and is liable to be struck down as per the judgments in State of Kerala v. State of Tamil Nadu and Madras Bar Association instances.

Possible Counter-arguments : Reliance on Article 239AA(7)

In response, the defenders of the Ordinance may cite Article 239AA(7) of the Constitution.

Article 239AA 7(a) says that the Parliament could make legislation for “giving effect to, or supplementing” the opposite provisions contained in Article 239AA and for “all matters incidental or consequential thereto”.

Article 239AA(7)(b) gives {that a} legislation made underneath Article 239AA(7)(a) “shall not be deemed to be an amendment of the Constitution for the purposes of Article 368 notwithstanding that it contains any provisions which amends or has the effect of amending this Constitution” .

So, there may very well be a counter-argument that the Parliament needn’t train its constituent powers of amending the Constitution to be able to make a legislation underneath Article 239AA(7)(a), though it has the impact of amending any provisions in Article 239AA. However, within the on the spot case, this argument is unsustainable. The legislation underneath Article 239AA (7)(a) is for “giving effect to, or supplementing” the opposite provisions in Article 239AA. The key phrases are  “giving effect to, or supplementing”. The Ordinance, which limits the powers of Delhi Assembly and Delhi Government by taking away the topic of “services” from them, can’t be thought of as a legislation which is “giving effect to, or supplementing” the opposite provisions in Article 239AA. On the opposite, the Ordinance has the impact of diluting Article 239AA. Hence, the Ordinance can’t be construed as a legislation made underneath Article 239AA(7)(a).

Argument that judgment itself allowed Parliament to make such a legislation

The supporters of the Ordinance in social media extensively relied on one paragraph from the judgment to argue that the Court had allowed the Parliament to make a legislation to boost the powers of the Lieutenant Governor. This is Paragraph 95 of the judgment, which is quoted in full under :

“Thus, the scope of the legislative and executive powers of the Union and NCTD that has been discussed under this section is multi-fold. Under Article 239AA(3)(a), the legislative power of NCTD extends to all subjects under the State List and the Concurrent List, except the excluded entries. As the 2018 Constitution Bench judgment held, the executive power of GNCTD is coextensive with its legislative power. In other words, the executive power of GNCTD extends to all subjects on which its Legislative Assembly has power to legislate. The legislative power of the Union extends to all entries under the State List and Concurrent List, in addition to the Union List. The executive power of the Union, in the absence of a law upon it executive power relating to any subject in the State List, shall cover only matters relating to the three entries which are excluded from the legislative domain of NCTD. As a corollary, in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a), subject to the limitations in Article 73. Furthermore, if the Lieutenant Governor differs with the Council of Ministers of GNCTD, he shall act in accordance with the procedure laid down in the Transaction of Business Rules. However, if Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law. Furthermore, under Section 49 of the GNCTD Act, the Lieutenant Governor and the Council of Ministers must comply with the particular directions issued by the President on specific occasions”(emphasis equipped).

Several social media customers quoted the highlighted parts of the above paragraph to justify the Ordinance.

This paragraph is basically a restatement of ideas laid down within the 2018 Constitution Judgment in Govt of NCT of Delhi vs Government of India. As laid down within the 2018 verdict, Parliament additionally has powers over issues in List II in relation to the NCTD, along with the Delhi Assembly. If the Parliament workout routines such an influence to make a legislation on issues in List II, the Union’s govt energy may even prolong to these issues. Until and except Parliament makes such legal guidelines on issues regarding List II, the manager energy of the Union (and consequently the LG) will probably be confined to the desired three entries of List II (public order, police and land). Paragraph 95 is mainly a summation of the legislation laid down within the 2018 judgment.

However, these observations can’t rescue the GNCTD Ordinance. Here, the existence of energy of the Parliament(and consequently, the facility of the Union to make Ordinance) to make such a legislation shouldn’t be in query. The Parliament at all times had the facility to make a legislation in relation to “services” with respect to the NCTD. This was made clear within the 2018 judgment. The query right here is, can the Parliament train that energy to overrule the Constitution Bench judgment of May 19, with out taking away the premise of the judgment. It shouldn’t be the existence of the facility, however the train of the facility which is in query right here. The observations in paragraph 95 solely acknowledge the existence of the facility of the Parliament. They can’t justify the train of the facility which resulted within the GNCTD Ordinance. Even within the Madras Bar Association and the State of Kerala vs State of Tamil Nadu instances mentioned above, the legislature had the facility to move the legal guidelines in query; these legal guidelines weren’t struck down on the bottom that the legislature lacked the facility, however on the bottom that such energy was exercised to overrule judgments, ensuing within the breach of doctrine of separation of powers. The observations in paragraph 95 don’t empower the Parliament (or the Union) to to move a legislation (or promulgate an Ordinance) to overrule the judgment. 

As defined above, the Ordinance can move the muster provided that it takes away the premise of the judgment. And the premise of the judgment may be taken away solely by amending Article 239AA(3)(a) in order to exclude “services” from the scope of NCTD’s powers. Without such a Constitutional modification, the premise of the judgment stays intact. Therefore, the Ordinance, which seeks to merely overrule the judgment, turns into an invalid train of energy. Senior Advocate Bishwajit Bhattacharyya in his article published ‘The Hindu’ expressed that “altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368”.

Ordinance negates the spirit of the judgment

The judgment shouldn’t be solely primarily based on the language of Article 239AA(3)(a) however invokes bigger constitutional ideas of democracy and federalism. Noting that the Constitution itself envisaged an elected authorities and legislative meeting for the NCTD, the Court mentioned that it has to undertake an interpretation which is able to advance the pursuits of democracy and federalism.

“In a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution,” the Court observed. It added, “A constitutionally entrenched, and democratically elected government needs to have control over its administration”.

“If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers.”

The bench cautioned:

“If the officers stop reporting to the ministers or do not abide by the directions, the entire principle of collective responsibilities is affected. A democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue, if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance.”

The impact of the current Ordinance is to perpetuate the exact same hazard which the Court apprehended and needed to avert – insulation of the civil servants from the elected authorities and their consequent lack of accountability, disruption of the accountability and effectivity of the elected Delhi authorities and oblique rule of the Union Government in violation of federalism. The arguments of the Union Government have been rejected by the Court on the bottom that they may result in erosion of democracy and federalism. The exact same arguments have come alive by means of the current Ordinance, which mocks the Supreme Court. So, even making use of the ideas of primacy of elected authorities, triple chain of accountability and cooperative federalism that are mentioned within the judgment, the Ordinance can’t move the muster. The Ordinance is nothing however a colourable laws which doesn’t sq. with the Constitution Bench judgment each in its letter and spirit.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He may be reached at manu@livelaw.in)