An Ordinance, Its Constitutionality, And Scrutiny

An Ordinance, Its Constitutionality, And Scrutiny


If the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 is challenged, the Union of India is unlikely to be successful in seizing control of “services” in Delhi.The Delhi State Government, which is elected, will have its authority affected by the National Capital Territory of Delhi (Amendment) Ordinance, 2023, which also restores certain authority to the Lieutenant Governor (LG).

Article 239AA

  • Article 239AA alludes to a specific clause of the Indian Constitution that deals with the National Capital Territory of Delhi (NCTD)’s special status and administration. 
  • With the passage of the Constitution (Sixty-ninth Amendment) Act of 1991, Article 239AA was added to the Constitution. It started to apply on February 1st, 1992. This amendment gave the NCTD a distinctive administrative structure that separated it apart from other Indian Union Territories.
  • Here are some of Article 239AA’s main characteristics:
    1. Legislative Assembly: The provision created the NCTD’s Legislative Assembly and gave it the authority to enact laws on any subject, with the exception of those pertaining to public order, law enforcement, and land.
    2. Council of Ministers: According to the article, a Council of Ministers may be established to assist and counsel the Lieutenant Governor (LG) in running Delhi. The Legislative Assembly is accountable to the Council of Ministers
    3. Lieutenant Governor: The LG represents the Central Government in Delhi and is chosen by the President of India. With the exception of topics reserved for the President or an Administrator chosen by the President, the LG’s duty entails exercising authorities and functions with the assistance and advice of the Council of Ministers.
    4. Harmonious Interpretation: In order to maintain the efficient operation of the administration in the NCTD, Article 239AA emphasises the significance of harmonious interpretation and collaboration between the LG and the Council of Ministers.

What is the purpose of the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023?

  • The Ordinance aims to reform the Delhi Government of National Capital Territory Act of 1991 by giving the Lieutenant Governor (LG) more authority.
  • The order attempts to increase the authority of Delhi’s Lieutenant Governor (LG) over the provision of services in the capital.
  • Reinstate the position of the Lieutenant Governor (LG) in Delhi’s administration by overturning the Supreme Court’s decision. This is the goal of the law.
  • The National Capital Civil Service Authority (NCCSA) is a newly created statutory agency tasked with advising the LG on transfer postings, vigilance, and other relevant issues.
  • It is against the federalism idea since it gives the LG greater authority than Delhi’s elected government.
  • Undemocratic because it gives the LG greater authority than Delhi’s elected officials.
  • The Delhi elected government’s authority is weakened by the ordinance.

Points to Ponder:

  • Dimensions of the court’s decision:
      • The Supreme Court decided that, with some exceptions, the Legislative Assembly of NCTD had jurisdiction over the items on Lists II and III of the Constitution.
      • The NCTD’s executive authority is seen as co-extensive with its legislative authority, which means it encompasses all subjects over which it has legislative authority.
      • Only three of the items in List II fall under the executive authority of the Union of India: public order, police, and land.
      • As a result, the executive authority over “services” is within the scope of the Government of NCTD, according to the Court’s interpretation.
  • The ordinance’s constitutionality:
      • In order to overturn the Supreme Court’s ruling, the President of India issued an ordinance under Article 123 that broadened the list of things that are exempted from consideration.
      • By adding entry 41 from List II (State List) to Article 239AA(3)(a), the ordinance expands the list of excluded matters from three to four (i.e., 1, 2, 18, 41).
      •  However, Article 239AA(3)(b) only gives Parliament the authority to enact new laws, not to change existing ones.
      • According to the passing, changing the parameters of Article 239AA(3)(a) would necessitate a constitutional change in accordance with Article 368.
      • It contends that because the ordinance obviates the constitutional amendment procedure, it is void ab initio (invalid from the start) and ought to be overturned.
      • The section stresses that Article 123 cannot replace Article 368 and that a constitutional amendment is required in order to change Article 239AA(3)(a).
  • Bindingness of the Court’s decision:
      • According to Articles 141 and 144, respectively, the decisions of the Constitution Bench of the Supreme Court that announce or interpret the law, such as Article 239AA(3)(a), are obligatory on all Indian courts and authorities.
      • The section questions whether Article 123 might be used to override Articles 141 and 144 without a constitutional revision.
      • It contends that because the non-obstante clauses in Articles 123, 141, and 144, which are found in Part V of the Constitution (The Union), do not apply, the Union Council of Ministers’ assistance and counsel to the President under Article 74 could not supersede Article 144.
      • According to the provision, the ordinance cannot supersede the Court’s interpretation because it is binding and changing the foundation of the Court’s decision would require a constitutional amendment.
  • Probability of the ordinance being overturned: 
    • According to the passage, the ordinance is likely to be overturned since it widens the list of things that aren’t covered by Article 239AA(3)(a) without a constitutional change.
    • It makes reference to a 2017 ruling by the Supreme Court in Krishna Kumar Singh v. State of Bihar, which said that the President’s satisfaction with regard to Article 123 is open to judicial review.
    • The Court emphasised in that instance that the powers granted by Article 123 do not form a separate legislative body.
    • The section comes to the conclusion that if the ordinance is challenged, the Union of India is unlikely to prevail in claiming control over “services” in Delhi through either a review or the ordinance route.

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