Union Govt’s Ordinance to Undo SC Ruling on AAP's Control Over Services Violates Basic Structure

The Union government’s grounds of review against the May 11 judgment of the Supreme Court camouflages its contentions as “errors apparent on the face of the record”.

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated on May 19 by the Union Government is contrary to the doctrine of separation of powers, according to the well-settled legal principles laid down by the Supreme Court in a few cases, and therefore, a violation of the basic structure of the constitution.

On May 11, a five-judge constitution bench of the Supreme Court held that there does not exist a homogeneous class of Union Territories with similar governance structures. The bench held that by virtue of Article 239AA of the constitution, the National Capital Territory of Delhi (NCTD) is accorded a “sui generis” status, setting it apart from other Union Territories.

The bench concluded that the legislative assembly of NCTD has competence over entries in List II and List III, except for the expressly excluded entries of List II. The bench also held that the Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence.

The bench also concluded that the phrase “insofar as any such matter is applicable to Union Territories” in Article 239AA(3) cannot be read to further exclude the legislative power of the NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded.

More importantly, the bench held that the NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because Part XIV of the Constitution is applicable to Union Territories.

The Ordinance promulgated on May 19 reasons that the May 11 judgment was a result of the absence of any specific parliamentary legislation dealing with the subject of services as contained in Entry 41 of List II of the Seventh Schedule either under Article 239AA (3)(b) or under Article 239AA (7) of the Constitution.

The Ordinance then inserts Section 3A in the NCTD Act, 1991 which says as follows:

“Notwithstanding anything contained in any judgment, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution or any matter connected therewith or incidental thereto”.

The Ordinance provides that the LG shall act “in his sole discretion” instead of “act in his discretion” in Section 41 of the Act in discharge of his functions under Part IV-A of this Act, dealing with Services under the GNCTD.  The Ordinance then inserts new provisions dealing with Services from Section 45A to 45M.

Under Section 45E, the Ordinance creates a National Capital Civil Service Authority to exercise the powers conferred on, and discharge the functions assigned to it under this part. The Authority shall consist of the chief minister as the ex-officio chairperson, the chief secretary of GNCTD and the principal home secretary, GNCTD as ex-officio member secretaries.

The Ordinance says that all matters required to be decided by the authority shall be decided by majority of votes of the members present and voting. The power of veto given to the civil servants over the elected chief minister under the authority is not only unprecedented but makes a mockery of popular mandate obtained by the leader of a political party at the elections.

Violation of separation of powers

 The Supreme Court, in a number of cases, has dealt with the question of when and how the basis of a judgment can be altered by a legislature.

supreme court contempt hearing

The Supreme Court of India. Photo: PTI

The doctrine of checks and balances restrains the legislature from declaring the judgment of a court to be void and of no effect, while the legislature still possesses the legislative competence of enacting a validating law which remedies the defect pointed out in the judgment. Read the judgment in Shri Prithvi Cotton Mills Ltd. and another v Broach Borough Municipality and Others (1969).

However, this does not ordain and permit the legislature to declare a judgment as invalid by enacting a law, but permits the legislature to take away the basis of the judgment by fundamentally altering the basis on which it was pronounced. Therefore, while exercising all important checks and balances, each wing should be conscious of the enormous responsibility that rests on them to ensure that institutional respect and comity is maintained. Read the judgment in Dr.Ashwin Kumar v Union of India.

The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court.

Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine.  That indeed is the basis on which invalidating legislation is permitted. Read the judgment by Justice D.Y. Chandrachud in Kalpana Mehta vs Union of India.

The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. Read Madras Bar Association vs Union of India, 14 July 2021.

As long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. But it does not mean that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court.

Madan Mohan Pathak v Union of India (1978) involved a situation where a parliamentary law was enacted to override a mandamus which was issued by the high court for the payment of bonus under an industrial settlement. The case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be cured.

In State of Tamil Nadu v State of Kerala (2014), the height of Mullaperiyar dam was the dispute before the Supreme Court. Kerala Irrigation and Water Conservation Act, 2003 was enacted by Kerala legislature, which came into force on September 18, 2003. The Act was neither referred to nor relied upon by the State of Kerala at the time of hearing by the Supreme Court on February 27, 2006.  On March 18, 2006, in less than three weeks of the decision of the Supreme Court, the Kerala State legislature amended the 2003 Act by introducing Kerala Irrigation and Water Conservation (Amendment) Act, 2006 which was the subject matter of judgment in question.

Tamil Nadu challenged this Act in an original suit before the top court. An argument was raised that the impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising the water level when such questions fall exclusively within the province of the judiciary and have already been determined by the Supreme Court in its judgment dated February 27, 2006.

The court held: “The decision of this Court on 27.02.2006 in the Mullaperiyar Environmental Protection Forum case was the result of judicial investigation, founded upon facts ascertained in the course of hearing. It was strictly a judicial question. The claim of the State of Kerala was that water level cannot be raised from its present level of 136 ft.  On the other hand, Tamil Nadu sought direction for raising the water level to 142 ft and, after strengthening, to its full level of 152 ft. The obstruction by Kerala to the water level in the dam being raised to 142 ft on the ground of safety was found untenable.”

“Where a dispute between the two states has already been adjudicated upon by this court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power”.

The review petition filed against the said decision was dismissed by the Supreme Court on July 27, 2006. The 2006 judgment became final and binding, so the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.

In Re: Cauvery Water Disputes Tribunal (1991), the Supreme Court held: “The legislature can change the basis on which a decision is given by the court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the State and to function as an appellate court or tribunal, which is against the concept of separation of powers.”

In the Animal Welfare Board of India vs Union of India, the five-judge constitution bench recently upheld the 2017 amendments carried out by Tamil Nadu, Maharashtra and Karnataka to the Prevention of Cruelty to Animals Act, 1960, after rejecting the argument that the Amendment Acts were void because they sought to override the court’s previous judgment in AWBI vs A. Nagaraja on the ground that the basis of that judgment having regard to the nature and manner in which the offending activities were carried on has been altered.

Triple chain of accountability

These judgments clearly suggest that the Supreme Court’s May 11 ruling, which upholds the “triple chain of accountability”, would have certainly found the May 19 ordinance untenable and inconsistent with the constitution had it been promulgated earlier, and challenged in the proceedings.

Under the multi-linked chain of accountability, the constitution bench held that where the legislature is accountable to the people who elected them, and the government is collectively responsible to the legislature, the government is responsible for the decisions and policies of each of the ministers and their departments. Collective responsibility, the constitution bench held, is an important component of parliamentary democracies.

By subjecting the chief minister to a veto by civil servants in the National Capital Civil Services Authority, the Ordinance directly violates the principle of collective responsibility, which the constitution bench has elevated in the May 11 judgment, as sacrosanct to a parliamentary democracy, irrespective of the fact whether the legislature is that of a state or Union Territory.

Contentions as grounds of review

The Supreme Court’s review jurisdiction can only be invoked by a petitioner on the ground of errors apparent on the face of the record. A review petitioner is not entitled to repeat the contentions raised during the hearing of the case, as they are not errors apparent on the face of the record.

Yet the Union government, in its review petition filed in the Supreme Court on May 20, has sought to repeat its contentions, which were already heard by the constitution bench during the hearing.

The government, in its petition, goes back to the previous judgment in the case, pronounced by another constitution bench in 2018, and seeks its review as well, albeit belatedly. Thus, the government claims that on July 4, 2018, a five-judge constitution bench had proceeded on the undisputed constitutional position to the effect that NCT of Delhi continues to be Union Territory, even after the insertion of Article 239AA and that, therefore, the governance model of NCT of Delhi could not be equated with a full-fledged State.

The judgment, if not reviewed, will defeat the intent of constitution makers in dividing the territories of India into states and Union Territories, said the review petition. Moreover, the status of the Lieutenant Governor as the head of the executive of a Union Territory under Article 239, being a delegate of the President has substantially been equated with a governor of a state, thereby defeating the purpose for which Part VIII of the constitution was enacted, it contended.

The issue in relation to control over services in the NCT of Delhi was referred to a larger bench, on account of the difference of opinion between the judges as regards to the availability of Entry 41 of List II to the legislative assembly of NCT of Delhi. On May 6, 2022, a three-judge bench referred the matter again to a constitution bench. The Union of India then filed an application on December 4, 2022 to refer the 2018 constitution bench decision to a larger bench.

The Union of India contended that the July 4, 2018 judgment considered the interpretation of Article 239AA without giving due consideration to the fact that Delhi, even after the introduction of 239AA, is still governed by Article 246(4). This, the Union of India claimed, was contrary to an explication in such terms by a bench of nine judges in NDMC v State of Punjab (1997).

In particular, it argued that the May 11 judgment, by declaring that the Delhi legislative assembly, solely by virtue of being a quasi-federating unit, is entitled to the entirety of List II and List III with the exception of the Entries excepted under Article 239 AA (3), elevates the NCT of Delhi to the status of a state, without calling it a state, contrary to a decision by nine judges in the NDMC case.

The Union of India contended that the word “state” used in entries in the Seventh Schedule does not include Union Territories and therefore, without the use of an appropriate phrase, the legislative competence of NCTD would not extend to entries which mention ‘state’.

It further contended that under the constitutional scheme, the distribution of legislative powers is only envisaged with respect to the parliament and the legislatures of states. There is no category of distribution of legislative power with respect to the legislative assemblies of Union Territories and the sole source of legislative power qua Union Territories is the parliament alone.

It asserted that the May 11 judgment substantially dilutes the powers of the Lieutenant Governor as administrator of the Union Territory of Delhi, whereby the role of the Lieutenant Governor in the capacity of the administrator as provided in Article 239 has now been confined only to Entries 1, 2 and 18 of List II, which purports to extinguish his role as an ‘administrator’ in respect of subjects other than those covered under Entries 1,2 and 18 of List II, which in effect takes away the authority of the President to administer a Union Territory and virtually renders Article 239 otiose.

Article 239 AA has been read as if the same annihilates Article 239 of the constitution, the government has submitted in the review petition.

The Union of India argued that services in the NCT of Delhi shall be governed by Entry  70 of List I as opposed to Entry 41 of List II.

It further argued that the May 11 judgment ignores that the working and functioning of the Delhi government affects the nation as a whole.  The nominee of the President, the Lieutenant Governor or the Union Government are manifestations of a democracy, exhibiting the democratic conscience of the country as a whole when compared to the elected government of Delhi, the review petition read.

The constitutional scheme does not envisage any separate “services” of the Union Territory.  It only envisages Union Services or State Services, it further contended.