Delhi Ordinance Bill: SC May Refer Case To 5-Judge Constitution Bench

The Supreme Court on Monday said it is inclined to refer the Delhi ordinance case to a 5-judge Constitution Bench. The court was hearing the petition filed by the Delhi government challenging the Centre's Ordinance that removes services from the control of the city government. The Delhi government, however, opposed the suggestion put forth by the bench.

The court was hearing the petition filed by the Delhi government challenging the Centre's Ordinance that removes services from the control of the city government. The Delhi government, however, opposed the suggestion put forth by the bench.

Further stating that the Parliament has the power to enact laws under any entry in List II or List III, CJI Chandrachud said, "List III is concurrent. You have stated in this clause 3A of the ordinance that the state legislature cannot enact laws under Entry 41 at all."

However, opposing the suggestion of referring the case to the constitution bench, senior advocate Abhishek Manu Singhvi stated that he has sufficient grounds to argue why this does not require a constitution bench hearing.

Opposing Singhvi's submissions, Senior Advocate Harish Salve argued, "We need to consider whether the competence of the Parliament to make the present law under Article 239AA(7)(a) has been decided by any of the constitution bench cases earlier. Thus, this necessitates a reference to the constitution bench."

Solicitor General Tushar Mehta pointed out that as per Article 239AA(7)(b), a law made by the Parliament under Article 239AA(7)(b) is not considered an amendment to the Constitution. During the earlier hearing, Mehta informed the bench that the Ordinance is going to be presented as a bill before the Lok Sabha in the monsoon session commencing on July 20.

"Perhaps this ordinance will be passed in a different form altogether through the Parliamentary process," he stated. The court has scheduled the next hearing for Thursday, July 20.

The apex court has uploaded its order on its website containing the legal questions to be dealt by the larger bench.

"We accordingly refer the following questions to a constitution bench: (i) What are the contours of the power of Parliament to enact a law under Article 239-AA(7); and (ii) Whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for the National Capital Territory of Delhi (NCTD)," said the order passed by a bench of Chief Justice D Y Chandrachud and justices PS Narasimha and Manoj Misra.

A 10-page order, penned by the Chief Justice of India, said there were two preliminary issues which arose for the consideration by a larger bench.

"The first is on the import of Section 3A (of the ordinance). Section 3A removes Entry 41 (services) of List II (State List) from the legislative competence of the NCTD. On the exclusion of Entry 41 from the NCTD's legislative power, the government of the NCTD ceases to have executive power over services because executive power is co-terminus with the legislative power," the order said.

The issue, therefore, is whether a law could completely remove Delhi government's executive power over services, it said, adding that the aspect of services under Entry 41 was also "interconnected with the validity of Section 3A" of the ordinance.

While referring the Delhi government's plea to the constitution bench, it had rejected the vehement submission of the city dispensation that there was no need for referring the matter to a constitution bench as it will "paralyse the whole system" during its pendency.