An ordinance, its constitutionality, and scrutiny

Introduction:

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated by the President of India on May 19, 2023, has raised concerns about its constitutionality and the Union of India’s ability to wrest power over ‘services in Delhi’. This article analyzes the key issues surrounding the ordinance and its potential impact on the constitutional framework of India.

1. Scope of the Court’s Verdict:

• Legislative Assembly of NCTD has competence over List II and List III entries (excluding entries 1, 2, 18).
• Executive power of NCTD extends to all matters within its legislative power.
• Union of India’s executive power limited to three List II entries (1, 2, 18).

2. Constitutionality of the Ordinance:

• The Court’s interpretation aligns with Article 239AA(3)(a) of the Constitution.
• The ordinance amends Article 239AA(3)(a) by including entry 41 of List II.
• Amending Article 239AA(3)(a) requires constitutional amendment under Article 368.
• The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated under Article 123, bypasses constitutional amendment and is void ab initio.

3. Violation of Constitutional Procedure:

• Power conferred on Parliament is for making fresh laws, not amending Article 239AA(3)(a).
• Article 239AA(7)(a) does not provide authority to amend Article 239AA(3)(a).
• Altering the scope of Article 239AA(3)(a) necessitates constitutional amendment.

4. Binding Nature of Supreme Court’s Judgment:

• A Constitution Bench’s interpretation of Article 239AA(3)(a) is binding on all courts and authorities.
• Articles 141 and 144 establish the binding nature of Supreme Court judgments.
• Article 123 cannot override Articles 141 and 144 without constitutional amendment.

5. Perspective:

• Simultaneous preference for review and promulgation of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is ill-conceived.
• The Court can scrutinize the President’s satisfaction under Article 123; it is not an independent legislative authority.
• The ordinance is likely to be struck down as it expands excepted matters without parliamentary authority.

Conclusion and Way Forward:

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, faces challenges regarding its constitutionality and compliance with the Supreme Court’s judgment. If challenged, the ordinance is likely to be invalidated as it goes beyond the powers conferred by Article 123 and amends Article 239AA(3)(a) without a constitutional amendment. Parliament remains the appropriate body for making changes to the scope of excepted matters, ensuring adherence to the constitutional framework.

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