(Vaibhav Mishra is a second year law student at Hidayatullah National Law University, Raipur)
Featured Artwork: Two Knights fighting in a Landscape by Eugene Delacroix
I. GENESIS OF THE CONFLICT:
In 2015, shortly after the AAP won an absolute majority in the Delhi Assembly, the Ministry of Home Affairs passed a notification giving the lieutenant governor (Hereinafter, referred to as “LG”) the authority over ‘services’ as mentioned under Entry 41 of the State List in the Seventh Schedule, along with Entries 1, 2, and 18, which are specifically excluded by Article 239AA. The rationale for excluding these services from Delhi’s legislative authority was that Delhi has no state public services of its own. This move by the Union government triggered a power tussle with the Government of NCT of Delhi (hereinafter, referred to as ‘GNCTD’).
II. THE 2018 JUDGMENT vis-à-vis THE PRESENT CRISIS:
The above notification was received after a batch of petitions in the court. In 2018, the Supreme Court in its decision in Government of NCT of Delhi ( GNCTD ) v. Union of India [ Civil Appeal No. 2357 of 2017] (Hereinafter referred to as ‘2018 decision’) made an effort to interpret Article 239AA. It recognized the legislative authority of the Government of NCT of Delhi over all entries in the state list including ‘Services’, except for three entries, namely, public order, police, and land i.e., entries 1, 2, and 18 of the state list, as specifically excluded by Article 239AA. The chief contention of the central government against the 2018 Judgment was the interpretation of two important phrases of Article 239AA(3)(a), “In so far as such matter is applicable to union territory” and “Subject to provisions of the constitution” which were left undecided by the court. Though there was no direct observation on these phrases in the main judgment, the inclusive nature of this phrase for interpreting Article 239AA was highlighted by judges in their separate opinion.
But on 11 May 2023, the Supreme Court in its judgment Government of NCT of Delhi v. Union of India [Civil Appeal No. 2357 of 2017] (hereinafter referred to as “the 2023 judgment”), finally gave its interpretation of these two phrases and consequently resolved the issue by recognizing the GNCTD’s legislative authority over ‘Services’. This judgment devotes an entire section to the 2018 decision as a reference to dwell on issues beforehand. The 2023 judgment has again sparked a tussle between the Centre & Delhi, with the Centre passing the ordinance taking away power over ‘Services’ from the GNCTD. This article presents a four-pronged analysis highlighting important aspects of the 2023 Judgment.
- The phrase “In so far as matter is applicable to union territory”: A Restriction on Legislative power of GNCTD?
The interpretation of this phrase was one of the Judgment’s most crucial aspects. There were two types of interpretations possible of this phrase being, either inclusive or exclusive in nature. The central government in its submission vouched for its exclusionary interpretation that could have resulted in ‘services’ falling outside the purview of legislative authority of Delhi. Everything depended on the interpretive principles the court was to apply in order to reach its conclusion on this matter. In its analysis of this phrase, the Supreme Court came to the conclusion that the phrase is enabling in nature i.e., it cannot be read to limit the GNCTD’s legislative authority.
The court assessed the rationale for the insertion of this phrase in Article 239AA[3](a). Taking a reference of the judgment given by the Supreme Court in T.M. Kanniyan v. CIT and later reaffirmed in NDMC v state of Punjab, the court found that applying the inclusive definition of ‘state’ given in section 3(58) of the General Clauses Act under Article 367 would be inconsistent with the subject & context of Article 246 that deals with the subject matter of laws made by Parliament and legislatures of states. Hence, ‘state’ for Article 246 would mean ‘state without union territory’.
Article 239AA was added with the purpose, to grant Delhi, a union territory, with a legislative assembly having the authority to legislate on a ‘state’ list. Therefore, if Article 239AA did not contain the phrase “In so far as matter is applicable to Union territory’, then all entries of the ‘state list’ containing the word ‘state’ would have required a constitutional amendment to fulfil the purpose of Article 239AA. The situation could have become an obstruction for the GNCTD to exercise its legislative authority over entries containing the word ‘state’. The court found that to avert this crisis, the ‘expansive’ phrase of “In so far as matter is applicable to union territory” was added to Article 239AA. This consequently removed the basis of the Centre’s argument for exclusionary interpretation.
- “Subject to Provision of the Constitution”: A non-restrictive phrase
The Centre relied on linguistic ambiguity to argue that the phrase “Subject to the provision of the constitution” restricts the legislative power of the GNCTD. This was an unconvincing argument as the phrase is not common to Article 239AA. It has been used in other twenty-two provisions of the constitution. The phrase implies that legislative power is to be exercised within the limits circumscribed by the Constitution.
The court relied on the case of Rajendra Diwan v. Pradeep Kumar Ranibala, which held that the power exercised by Parliament & State Legislatures under Article 245(1) is subject to provisions of the constitution. Therefore, the phrase implies that the legislative power of the GNCTD is to be exercised subject to other provisions of the constitution and has not been used in a restrictive sense.
- An erroneous view on Federalism
In Part H of the 2023 judgment while evaluating the Centre’s claim of interpreting two phrases in light of the unitary nature of the Constitution for the UTs, it concludes that GNCTD would be considered a federal entity for the purpose of examining the relationship between the Union and Delhi. The rationale was that Article 239AA envisages a special constitutional scheme that gives Delhi a legislative assembly having powers to legislate on List II and III which is very ‘similar’ to states. The court relied upon Dr. Ambedkar’s opinion on the centralizing tendency of the constitution in the Constitutional Assembly Debate and Justice B.P. Jeevan Reddy’s stance in SR Bommai v Union of India to reach the conclusion of treating Delhi as a ‘Federal Unit’.
A closer look at the two authorities points that a federal relationship is implausible between Centre & Delhi. Dr. Ambedkar in his speech in constitutional assembly debate on 25th November 1949, noted that the chief mark of federalism is the partition of legislative and executive authority between the Centre and a federal unit. In SR Bommai v Union of India, Justice BP Reddy held federalism to be a part of the basic structure where ‘states are supreme and independent in the sphere assigned to them’.
Thus, although Delhi has a legislative assembly, it does not have its exclusive domain which is an essential trait for being qualified as a federal unit. The legislative & executive power of Delhi over List II & III is subject to the Union government’s legislative power over both lists, unlike states which have their exclusive domain. Hence, as Delhi doesn’t meet the conditions set forth by the above authorities, it cannot be considered a federal unit.
Therefore, establishing the federal relationship between the Centre and Delhi amounted to treating Delhi as a full-fledged state. The review petition of the Central government arguing on the same point contends that it goes against the verdict given in NDMC v. State of Punjab, which held Delhi remains a ‘Union territory’.
- Applicability of Part XIV of Constitution to Union territories:
The analysis of this issue revolves around the definition of ‘state’ given under Article 308 for Part XIV. The amended definition of ‘state’ in Article 308, after the 1956 amendment, is exclusionary in nature. It defines it as “In this Part, unless the context otherwise requires, the expression “State” does not include the State of Jammu and Kashmir.” This ambiguous definition remains silent on the issue of the inclusion of UTs within the definition of ‘state’. The Centre relies on this linguistic ambiguity to argue that Part XIV doesn’t contemplate ‘services’ for Union territory. The 2023 judgment addresses this ambiguity by relying on the notion of the ‘Triple Chain of Accountability’. The principle fundamentally stresses the inherent link between civil service officers, government, and legislature, without which the notion of representative government would be jeopardized in the case of GNCTD. The judgment also observes that the interpretation of Part XIV must be consistent with the principle of the ‘Triple Chain of Accountability’.
The court, while analyzing the ambiguous definition of ‘state’ in Article 308 for Part XIV, provides the rationale that parliament could not have anticipated a union territory with its legislature at the time of amending the definition of Article 308 after the 1956 amendment. The court held as Article 308 is silent on the issue of the inclusion of UTs in the definition of ‘state’, definition of the General Clauses Act as stipulated by Article 367, would apply to Part XIV. However, as Article 367 begins with the phrase “unless the context otherwise requires”, it was needed to be proved that applying the definition to Part XIV would not be repugnant to its subject and context. The court here took reference to the judgment given in Union of India v. Prem Kumar Jain, which held there is nothing repugnant to the context of Part XIV for applying an inclusive definition of ‘state’. Therefore, the scope of Part XIV was extended to the Union territories.
The above four-pronged analysis of judgment demonstrates that the mutual interplay of the ideals and principles emphasized by the court in the judgment like federalism, representative government, and Triple chains of accountability facilitated the inclusive interpretation of Part XIV and two phrases of Article 239AA[3](a); consequently leading to recognition of GNCTD’s legislative authority over services.
III. DUAL INTERPRETATION OF THE 2023 JUDGEMENT ON GNCTD’S POWER: CAUSE OF AMBIGUITY
A comprehensive examination of the judgment indicates that it is accompanied by weak conclusions. As a result, the interpretation of the judgment reveals that it can be construed in two ways, confirming its ambiguous nature., For example, the court concludes that the GNCTD ‘ought to’ have control over services. But it appears to be taking that power, as it also recognizes the Union government’s overriding power over both lists under Article 239AA. The use of words like ‘ought to’ is conspicuous of weak resolution on the part of judges to reserve the domain exclusively for the GNCTD.
Furthermore, even though the 2023 judgment recognizes the principle of federalism as basic structure, it falls short of explicitly asserting that the power of an elected government over ‘services’ which would be considered an attribute of the basic structure. In conclusion, (Part O) leaving all its rhetoric on principles as emphasized in the judgment such as Federalism, Triple chain of Accountability, etc., the judgment unambiguously affirms the overriding power enjoyed by parliament over all the lists, and at no point explicitly mentions the legislative and executive power over ‘services’ with GNCTD.
The court here was clearly within its rights to limit the scope of the Union government’s power over ‘services’. This may have upheld the valued principles like the Triple chain of accountability, federalism, representative democracy, etc. as stressed in its decision. However, the court falls short in this regard. As a result of the ambiguity in judgment, a fundamental point is left hanging in balance: whether a Union government under Article 239AA is constitutionally barred from legislative and executive power over ‘services.’
IV. ORDINANCE: A MOVE CONTEMPLATED BY THE JUDGMENT?
On 19 May 2023, the Union government, using its power under Article 239(1), Article 239AA (3(b)), and Article 239AA(7), passed an ordinance that added section 3A to the GNCTD Act, 1991 effectively taking away Legislative power of GNCTD over ‘Services’. However, despite the ordinance appearing on the face of it to contradict the foundational principles of the judgment, the ordinance remains a measure that was contemplated by the 2023 Judgment.
The 2023 judgment in its text (para 84) acknowledges that the “executive power of NCTD in absence of law by Parliament shall extend to all subjects on which it has the power to legislate”. Furthermore, in paragraph 95, affirming the inclusive nature of power vested in the GNCTD, the judgment notes “If the parliament enacts a law then the executive power of LG shall be modified to that extent.” Similarly, while analyzing the power of the LG,the 2023 judgment, specifies two conditions under which LG can exercise discretion, with one such condition being a ‘Law’ requiring such discretion. A cumulative reading of Paragraphs 84, 95, and 88 of Judgment demonstrates that judgment contemplated such an exercise of power by the Union government.
V. ADDRESSING CONSTITUTIONALITY OF ORDINANCE: A LAWFUL EXERCISE OF POWER UNDER ARTICLE 239AA(7(a))?
There exist strong and compelling arguments in support of the unconstitutionality of this ordinance. At the core of the argument lies the exercise of power under Article 239AA(7](a)), which states “Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto”. Article 239AA(7(b)) further provides that any amendment under clause 7(a) shall not be deemed to be an amendment to the constitution for Article 368, despite the amendment having the effect of amending the constitution. This clause effectively gives the Union government the authority to amend Article 239AA, without the action being considered as a constitutional amendment. The only condition as evident from clause 7(a) is that such an amendment must give ‘effect to, or supplement’ the provisions of Article 239AA. However, it has been argued in several forums that the ordinance rather than ‘giving effect to, or supplementing provisions’, dilutes the provisions of Article 239AA by going against clause 3(a) of Article 239AA.
This argument is untenable and flawed in its approach, as the effect of the ordinance should not be assessed only in the context of Article 239AA(3(a)) but in the context of all provisions before Article 239AA(7(a)). The rationale is that clause 7(a) of Article 239AA states that the amendment should give effect or supplement the provisions “contained in the foregoing clauses”. The term ‘foregoing clauses’ here means preceding clauses i.e., all clauses before clause 7(a) of Article 239AA.
Therefore, 239AA(3](a)) and clause 3(b) of 239AA which recognizes the legislative supremacy of Parliament over the GNCTD, should be read together to determine whether the ordinance meets the conditions under Section 239AA(7(a)) of “giving effect to, or supplementing the provisions contained in the foregoing clauses”. Such a reading and interpretation of Article 239AA will demonstrate that the Union government is well within its authority to pass this ordinance.
VI. CONCLUSION:
The effect of the ordinance issued by the Centre is to effectively reverse the 2023 decision and curtail the power of an elected government. At the same time, the ordinance is indicative of the judges’ weak resolve to reserve the area of ‘services’ exclusively for the GNCTD by limiting the scope of Parliament’s overriding powers and hence, affirming its ambiguous nature.
The aforementioned analysis demonstrates that despite compelling arguments questioning the constitutionality of the ordinance, it remains a lawful exercise of power on the part of the Union government that aligns with the overall scheme of things as envisaged by Article 239AA. Consequently, although the action taken by the Centre might seem to be an abuse of power in direct contravention of the court’s ruling, the ordinance would likely withstand judicial scrutiny.
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