The legal tussle between the Center and the government of the National Capital Territory (NCT) Delhi over the contours of their respective powers is a never-ending saga. In the latest round, the validity of the Ordinance promulgated recently by The President of India will make a new plan to regulate services in Delhi There will be an inquiry by the Constitution Bench. This will be the third such five-judge 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 seeks to set aside a recent Constitution Bench judgment that ruled that the subject of ‘services’ under Entry 41 (State List) would fall within the executive and Legislative Domain of Delhi Government, and not of the center. The court’s earlier reasoning was simple: Article 239AA, which governs the affairs of the NCT of Delhi, kept only three subjects outside the purview of the Delhi government – police, public order and land – and it could exercise control over the remaining subjects. Since ‘services’ was not one of the excluded subjects, it retained the Delhi government’s immunity on appointments, postings and transfers. It ruled that any attempt to expand the purview of the Center except on the subject of services would be against the constitutional scheme of governance of Delhi.
A three-judge bench, which referred the ordinance matter to a constitution bench, has held that the creation of a new ‘authority’ to regulate ‘services’ effectively amends Article 239AA of the Constitution as it becomes the fourth subject in the list of excluded subjects. However, this may not necessarily invalidate it. Clause 7 of Article 239AA allows Parliament to make laws “to give effect to, or to supplement” the Article. Further, it stipulates that such legislation shall not be deemed to be an amendment to the Constitution, even if it has such effect. While the Court acknowledged the power of Parliament to make such a law, it indicated that it may examine whether the exercise of such power is legal, especially when it has the effect of completely excluding ‘services’ from the purview of the elected Delhi government. The Court has also noted a paradox: while one section appears to mandate that Delhi’s existing governance structure cannot be changed, another section appears to allow it. It says that a decision is needed for this. On the legal side, the larger bench may be able to delineate Parliament’s power to legislate under Section 7, and decide whether, in exercise of such power, it can abrogate the principles governing Delhi. However, the tussle between politics and personality is not likely to end anytime soon.