NEW DELHI: The Supreme Court, while referring scrutiny of the constitutional validity of the Delhi services ordinance to a five-judge constitution bench, said Parliament by law could limit Delhi governments control over bureaucracy but whether that power extended to extinguishing the jurisdiction of the elected government altogether in matter related to services needed to be examined.The reference order passed on Thursday by a three-judge bench led by CJI D Y Chandrachud, uploaded on the SC website late in the evening, said, The position of law is that a law enacted by Parliament can limit the executive power of NCTD over services.
The power of Parliament to enact a law granting the Union of India executive power over services is not in contention.
It is now a settled position of law.
However, this court, while dealing with the constitutional validity of the May 19 ordinance, must decide if the exercise of such power (by Parliament) is valid.The court framed two questions for the five-judge bench what are the contours of Parliaments power to enact a law under Article 239AA(7); and whether Parliament, in the exercise of its power under Article 239AA(7), could abrogate the constitutional principles of governance for NCTD.On Section 3A of the ordinance removing services from the legislative competence of the Delhi assembly, the bench said, On the exclusion of Entry 41 (services) from NCTDs legislative power, the government of NCTD ceases to have executive power over services because executive power is co-terminus with legislative power.
Therefore, the issue whether a law could completely remove NCTDs executive power over Entry 41 is interconnected with the validity of Section 3A.On the Centres reliance on Article 239AA(7)(a)-(b) for promulgation of the ordinance immobilising the May 11 judgment of a constitution bench giving Delhi government legislative and executive control over services, the bench said, While Article 239AA(7)(a) states that the law must only give effect to or supplement the provisions of Article 239AA, Article 239AA(7)(b) states that the law shall not be deemed an amendment to the Constitution even if it has the effect of amending Article 239AA.A primary reading of Article 239AA(7)(a) indicates that the law shall not alter the existing constitutional structure envisaged for NCTD in Article 239AA.
However, prima facie reading of Article 239AA(7)(b) denotes that the law enacted under Article 239AA(7)(a) could alter the existing constitutional structure of governance of NCTD.
This apparent conflict between the two clauses on the nature of lawmaking power vis-a-vis NCTDs constitutional structure of governance needs to be resolved by this court.Justifying referring the matter afresh to another five-judge bench, the CJI-led bench said the two constitution bench judgments, one in 2018 and the other in May 11 this year, on the turf war between Delhi government and the Union government had dealt with the interpretation of Article 239AA(7).
We are of the considered opinion that the disposal of the writ petition requires this court to answer a substantial question of law as to the interpretation of the Constitution.
We accordingly refer the following questions to a constitution bench, it said.