Delhi services ordinance: Will examine if Parliament can abrogate constitutional principles of governance, says SC

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The Supreme Court of India has decided to refer the issue of "whether Parliament can abrogate the constitutional principles of governance for the Delhi government" to a five-judge constitution bench. This decision comes in response to the Centre recently issuing an ordinance related to the Delhi services matter, using its powers under Article 239-AA, a special provision in the Constitution for the national capital.

The ordinance in question includes Section 3A, which removes Entry 41 (services) of List II (State List) from the legislative competence of the National Capital Territory of Delhi (NCTD). As a result, the Delhi government's executive power over services is affected, leading to the question of whether a law can completely remove the executive power over services from the Delhi government.

"We accordingly refer the following questions to a constitution bench: (i) What are the contours of the power of Parliament to enact a law under Article 239-AA(7); and (ii) Whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for the National Capital Territory of Delhi (NCTD)," said the order passed by a bench of Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra.

A 10-page order, penned by the CJI, said there were two preliminary issues which arose for the consideration by a larger bench.

"The first is on the import of Section 3A (of the ordinance). Section 3A removes Entry 41 (services) of List II (State List) from the legislative competence of the NCTD. On the exclusion of Entry 41 from the NCTD's legislative power, the government of the NCTD ceases to have executive power over services because executive power is co-terminus with the legislative power," the order said.

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The Constitution already excludes three entries of List II related to police, law and order, and land from the control of the Delhi government. However, the ordinance has raised concerns as it appears to take away Entry 41 (services) from the Delhi government's power as well.

Article 239AA of the Constitution deals with special provisions for Delhi, and its sub-article 7 gives Parliament the power to make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. It further states that any law made under this article shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

The Supreme Court has now referred the legal questions regarding the power of Parliament under Article 239-AA(7) and its impact on the constitutional principles of governance for the NCTD to a constitution bench for examination. This move comes in response to a plea by the Delhi government challenging the Centre's ordinance on control over services in Delhi. (Agencies)