The legal wrangling between the Centre and the Government of the National Capital Territory (NCT) of Delhi over the contours of their respective powers is a never-ending saga. In the latest round, the legality of the recent ordinance promulgated by the President of India to create a new scheme to regulate services in Delhi will be scrutinised by a Constitution Bench. It will be the third such five-member Bench to examine the respective powers of the two warring entities in the last few years. The crux of the issue is that the ordinance has sought to nullify a recent Constitution Bench verdict that ruled that the subject of ‘Services’, covered under Entry 41 (State List), will fall under the executive and legislative domains of the Delhi government, and not that of the Centre. The Court’s earlier reasoning was simple: Article 239AA, which governs the affairs of the NCT of Delhi, excluded only three subjects from the Delhi government’s purview — police, public order and land — and that it could exercise control over the remaining subjects. As ‘Services’ was not one of the excluded subjects, it upheld the Delhi government’s remit over appointments, postings and transfers. It ruled that any attempt to expand the Centre’s ambit by excluding the subject of services would go against the constitutional scheme of Delhi’s governance.
The three-judge Bench that referred the ordinance matter to a Constitution Bench has noted that the creation of a new ‘Authority’ to regulate ‘services’ effectively amends Article 239AA of the Constitution because it becomes a fourth subject in the list of excluded ones. However, this may not necessarily invalidate it. Clause 7 of Article 239AA allows Parliament to enact laws “for giving effect to, or supplementing” the Article. Further, it stipulates that such a law would not be deemed an amendment to the Constitution, even if it has such an effect. While the Court has conceded Parliament’s power to enact such a law, it has indicated that it can examine whether the exercise of such power is valid, especially when it has the effect of excluding ‘services’ completely from the elected Delhi regime’s ambit. The Court has also noted a contradiction: while it appears from one clause that the existing governance structure of Delhi cannot be altered, another clause seems to allow this. This, it says, requires a ruling. On the legal side, the larger Bench may be able to delineate the contours of Parliament’s power to make laws under Clause 7, and rule whether while exercising such a power, it can abrogate the governance principles of Delhi. However, the tussle involving politics and personalities is unlikely to end soon.
