Delhi Services Ordinance: The Past, The Present &The Future

Introduction

Delhi, as a federal and administrative unit of the Union of India, has undergone various transformations in terms of the territory's legal provisions, mostly since it houses the capital city of India, New Delhi.

Legal History of Delhi

Post the adoption of the Indian Constitution, 1950, Delhi was a Part C state under the Government of Part C States Act, 1951. Accordingly, Delhi was centrally administered but it had a Legislature along with a Council of Ministers. In 1956, to give effect to the recommendations of the Fazl Ali Commission, the Constitution (Seventh Amendment) Act, 1956 was passed, which introduced the concept of States and Union Territories in the federal structure of India. Herein, Delhi was made a Union Territory governed by an Administrator.[1]

In 1989, the report of the Balakrishnan committee recognised that the national capital had to be given a special status in the constitutional scheme.[2] However, to maintain a balance, some legislative powers were recommended to be bestowed upon Delhi. In light of this philosophy of constitutional balance, the Constitution (Sixty-Ninth Amendment) Act, 1991 inserted Article 239AA into the Constitution of India. This Article continues to govern Delhi in the present date, and has the following provisions:

• Delhi will have a Lieutenant Governor.
• It will have a Legislative Assembly.
• The Legislative Assembly will have the power to legislate on all matters of the Concurrent List, and all matters of the State List except Entries 1 (public order), 2 (police) and 18 (land), and Entries 64, 65 and 66, insofar as they relate to Entries 1, 2 and 18.
• The Parliament can make laws on all the matters, in all the Lists in the Seventh Schedule of the Constitution.
• The Parliament is empowered to make provisions which supplement or give effect to any of the foregoing provisions.

Per this Amendment, the Government of National Capital of Delhi (GNCTD) Act, 1991 was enacted. This Amendment continued to be the guiding force behind the governance of Delhi. It embodies the constitutional balance envisaged by the lawmakers and committee reports with respect to the capital of India.

Twist in the Matter: The MHA Notification and Its Aftermath

Things took a turn in 2015, when the Ministry of Home Affairs released a notification to the effect that the Lieutenant Governor would exercise powers to legislate on issues related to Entries 1 (public order), 2 (police), 18 (land) and 41 (services) of the State List. It was stated that the Lieutenant Governor would have the discretion of obtaining the views of the Chief Ministers in the matter of services.

This was opposed by the Government of the National Capital Territory of Delhi [GNCTD, in short] (i.e. the Delhi government). On 4 July 2018, a Constitution Bench of the Supreme Court interpreted Article 239AA and reinforced the fact that the idea of constitutional balance was already present in the Article, hence no more limitations were required to be placed on the GNCTD.[3] However, on 14 February 2019, the Supreme Court delivered a split verdict on the particular question regarding the MHA notification excluding ‘services’ from the ambit of the legislative powers of Delhi. This sustained the confusion regarding the same and was referred to a Constitution Bench.[4]

The Latest Judgement

On 11 May 2023, the Constitution Bench of the Supreme Court delivered its judgement on the issues of ‘services’. The Court ruled in favour of the GNCTD and stated that ‘services’ would remain within the legislative ambit of the GNCTD. The court stated that the principles of collaborative and cooperative federalism dictates that the GNCTD be allowed to rule in accordance with the prevailing constitutional scheme.[5]

To begin with, the Court acknowledged that Delhi is a sui generis model and ‘class in itself.’[6] It was therefore established that the provisions regarding the legislation and governance of Delhi had to be formulated keeping in mind the special character of the territory. The SC clarified that the idea of balance is embedded within the scheme of Article 239AA, hence it is not possible that the lawmakers wanted even further curtailment of powers of the NCTD while introducing this Article.

The Court emphasized the fact the federal and democratic setup of India is such that it calls for a triple chain of command which runs as follows.

This chain of command can only be preserved if the NCTD is allowed to have legislative and executive powers over services. The bureaucracy ultimately serves the citizens, and hence the elected representative of the citizens ought to have a say in their functioning.

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023

After the matter was cleared by the Court, the President promulgated the ordinance Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023.[7] This ordinance brings back the status quo that existed owing to the 2015 notification of the Ministry of Home Affairs. It inserts a section 3A in the GNCTD Act, 1991, including Entry 41 (services) in the list of entries which cannot be legislated upon by the Delhi State legislature.

The NCTD has filed a petition in Court challenging this ordinance, and the matter is currently being heard.[8] On 20 July 2023, the Bench comprising Chief Justice D.Y. Chandrachud and Justices P.S. Narsimha and Manoj Mishra, referred the matter to Constitution Bench on account of the crucial questions of law that it raises.[9] The matter is currently pending before the court.

Testing the Ordinance Against Constitutional Waters

While the case for the unconstitutionality of the ordinance can be made out with respect to the specific sections of the ordinance as well, testing it against the principles of arbitrariness and federalism, the scope of this article is limited to the argument that the ordinance is unconstitutional because it contravenes the judgement laid down by the Constitutional Bench of the Supreme Court.

In the case of Shri Prithvi Cotton Mills v Broach Burrough Municipality, the court held that an Act of the legislature which reverses a judicial decision cannot be allowed. Rather, in order to reverse a judgement of the Court, ‘the conditions on which it is based’ should be ‘so fundamentally altered that the decision could not have been given in the altered circumstances.’[10] However, the 'immediacy and urgency' of the situation is cited as the core reason behind the promulgation of the ordinance. In the case of Krishna Kumar Singh v State of Bihar, the court held that it must be objectively satisfied that an ‘immediate’ action was ‘necessary’ in response to the prevailing circumstances, and therefore the ordinance was promulgated.[11] In the case of RC Cooper v Union of India as well, it was held that the lack of the requirement of an ‘immediate action’ as a ground for the promulgation of the ordinance was a ground to challenge the ordinance.[12].

Whether the Amendment Ordinance stands the test of 'immediacy and urgency' or falls short of vires as per the ratio of Shri Prithvi Cotton Mills v Broach Burrough Municipality, the Apex court will decide.

[1] Report of the States Reorganisation Commission 1995 (MHA).

[2] Report of Committee on Reorganisation of Delhi Set-up 1989 (MHA).

[3] State (NCT of Delhi) v Union of India (2018) 8 SCC 501.

[4] Govt of NCT of Delhi v Union of India 2019 SCC OnLine 193.

[5] Govt of NCT of Delhi v Union of India Civil Appeal No 2357 of 2017.

[6] NDMC v State of Punjab (1997) 7 SCC 339.

[7] Government of National Capital Territory of Delhi (Amendment) Ordinance 2023.

[8] Government of NCT of Delhi v Union of India W.P.(C) No 678/2023.

[9] ibid Order dated 20 July 2023, 2023 INSC 639.

[10] Shri Prithvi Cotton Mills v Broach Burrough Municipality [1970] 79 ITR 136 (SC).

[11] Krishna Kumar Singh v State of Bihar (1998) 5 SCC 643.

[12] RC Cooper v Union of India [1970] SCR (3) 530.