‘Union of India’s decision to prefer review (Article 137) and simultaneous promulgation of an ordinance (Article 123) is wrong’ | Photo credit: Getty Images/iStockphoto
On May 19, 2023, the President of India exercised the legislative power under Article 123 of the Constitution to promulgate, during the period when the Parliament was in recess, The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (Ordinance). Ordinance negates A Decision of the Constitution Bench of the Supreme Court of Indiawhich was promulgated on 11 May, which brought the “services” under the Government of the National Capital Territory of Delhi (NCTD).
important issues
There are two issues here that need analysis: First, the scope of the Court’s decision. Second, the constitutionality of the ordinance.
Interpreting Article 239AA(3)(a), the Court, inter alia, held that these points were: The Legislative Assembly of the NCTD is competent over the entries in List II and List III, List II clearly except the excluded entries (Entries 1, 2, 18 are excluded); The executive power of the NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has power to legislate; The Union of India has executive power over only three entries in List II over which the NCTD does not have legislative competence (Entries 1, 2, 18).
Thus, essentially, the Court interpreted that of the 66 entries in List II (State List), while the executive power of the NCTD government covers 63 entries, the Union of India is limited to the remaining three: public order. (Entry 1), Police (Entry 2) and Land (Entry 18).
Consequently, the executive power over “services” (Entry 41) may be exercised exclusively by the Government of the NCTD. This interpretation of the Court is in consonance with the words of Article 239AA(3)(a). But, this interpretation was negated by the Union of India, acting through his Council of Ministers under Article 74, triggering the extraordinary legislative power of the President under Article 123 in promulgation of an ordinance on 19 May.
What the Ordinance did was to read/insert entry 41 of List II (State List) into article 239AA(3)(a), thereby expanding the scope of the excepted case from three (1, 2, 18) to four (1, 2) gone up. , 18, 41).
This could not have been done without amending Article 239AA(3)(a) of the Constitution. The power conferred on Parliament under Article 239AA(3)(b) is to make new laws – not to amend Article 239AA(3)(a) of the Constitution.
change requires revision
Similarly, the power conferred on Parliament under Article 239AA(7)(a) is to make laws to give effect to or supplement the provisions contained in various sections of Article 239AA and for all incidental or consequential matters. Such power cannot be invoked in action to amend Article 239AA(3)(a) of the Constitution. Significantly, Article 239AA(7)(b) states that a law made by Parliament under Article 239AA(7)(a) shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. No such clause has been prescribed in the article. 239AA(3)(a). Therefore, a constitutional amendment is required under Article 368 to alter the scope of Article 239AA(3)(a); There is not the slightest doubt.
Consequently, the Ordinance promulgated under Article 123 of the Constitution to expand the scope of matters left out in Article 239AA(3)(a) is void ab initio and liable to be struck down for circumventing the constitutional amendment. It is equivalent to the colorful exercise of power. Article 123 Part XX has no substitute for Article 368 (Amendment of the Constitution).
Further, when a Constitution Bench (five judges) of the Supreme Court declares/interprets the law (Article 239AA(3)(a)), the same is binding on all courts and authorities in India in terms of Articles 141 and 144 respectively . , Could Article 141 and 144 have been nullified by Article 123 without constitutional amendment?
Articles 123, 141, 144 are in Part V (Union) of the Constitution. None have non-resistive clauses. The aid and advice of the Union Council of Ministers to the President under Article 74 could not override Article 144. The basis of the Court’s decision is Article 239AA (3) (a). To change this premise, a constitutional amendment is necessary.
a point of view
The Union of India’s decision to prefer review (Article 137) and ordinance (Article 123) simultaneously is wrong; If the ordinance is challenged, the Union of India is unlikely to succeed by any means to usurp the power of the “services” in Delhi.
In a landmark judgment by a seven-judge bench of the Supreme Court in the case of Krishan Kumar Singh v. State of Bihar (2017) 2 SCC 136, the Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny; The powers under Article 123 are not a parallel source of law making or an independent legislative authority.
It was further held that the Court is empowered to look into the relevance of the material placed before the President, but not its adequacy or sufficiency.
The Ordinance is likely to be struck down as it extends to matters except those covered by Article 239AA(3)(a). Parliament alone can do this under Article 368.
Vishwajit Bhattacharya is a senior advocate in the Supreme Court of India and former Additional Solicitor General of India