An ordinance, its constitutionality, and scrutiny

Source- The post is based on the article “An ordinance, its constitutionality, and scrutiny” published in “The Hindu” on 26th May 2023.

Syllabus: GS2- Issues pertaining to federalism

Relevance– Constitutional issues related to NCT of Delhi

News- Recently, the President of India exercised legislative power to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023”. The ordinance negates a Constitution Bench judgement of the Supreme Court of India

What are points given by SC while interpreting Article 239AA(3)(a)?

The Legislative Assembly of the NCTD has jurisdiction over entries in List II and List III, except for expressly excluded entries of List II.

The executive power of NCTD is co-extensive with its legislative power. It shall extend to all matters with respect to which it has power to legislate. The Union of India has executive power only over three entries in List II. .

Consequently, executive power over “services” (entry 41) can be exercised exclusively by the Government of the NCTD.

What are the issues related to constitutionality of ordinance?

Ordinance has inserted entry 41 of List II into Article 239AA(3)(a). Therefore, it has expanded the scope of excepted matter from three  to four.

This needs for amending Article 239AA(3)(a) of the Constitution. The power conferred on Parliament under Article is to make fresh laws and not to amend Article 239AA(3)(a) of the Constitution.

Article 239AA(7)(a) confers power on Parliament  to make laws for giving effect to or supplementing the provisions contained in various clauses of Article 239AA. Such a power cannot be used to amend Article 239AA(3)(a) of the Constitution.

As per Article 239AA(7)(b), Parliament’s law making under Article 239AA(7)(a) shall not be considered an amendment of the Constitution. Therefore, altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368.

Consequently, the ordinance to expand the scope of excepted matters in Article 239AA(3)(a) is void. It amounts to a colourable exercise of power. Article 123 is no substitute for Article 368.

Besides, when the Supreme Court interprets the law, the same is binding on all courts and authorities in India in terms of Articles 141 and 144, respectively. Articles 141 and 144 cannot be negated by Article 123 without a constitutional amendment.

The aid and advice of the Union Council of Ministers to the President could not override Article 144. The basis of the Court judgement is Article 239AA(3)(a). To alter this basis, a constitutional amendment is necessary.