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General Studies 2 >> Polity

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1. Context

The Centre on Friday (May 19, 2023 ) promulgated an Ordinance extending powers to the Delhi lieutenant governor over services in the administration of the national capital basically, the power to transfer and appoint bureaucrats posted to Delhi. The Ordinance, aimed at nullifying the effect of the Supreme Court’s decision that gave the Delhi government powers over administrative services in the national capital, raises several key questions that are likely to soon be posed before the Supreme Court.

2. Can a decision of the Supreme Court be undone?

  • Parliament has the power to undo the effect of a judgement of the Court by a legislative act.
  • However, the law cannot simply be contradictory to the Supreme Court judgement, it must address the underlying reasoning of the Court.
  • This means that a law can be passed removing the basis of the judgment. Such a law can be both retrospective and prospective. 
  • “The test for determining the validity of 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 that 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,” The Supreme Court said in a judgement on July 14, 2021, in Madras Bar Association versus Union of India. 

3. How does the ordinance fare against the judgement of the Supreme Court?

  • Two constitution benches of the Supreme Court, in 2018 and on May 5, have dealt with the issue of the powers of the Delhi government.
  • Both these judgements involve the interpretation of Article 239AA of the Constitution which deals with the governance structure of the national capital.
  • In 1991, when Article 239 AA was inserted, Parliament also passed the Government of National Capital Territory of Delhi Act, 1991 to provide a framework for the functioning of the Legislative Assembly and the government of Delhi.
  • The ruling on May 5 places three constitutional principles – representative, democracy, federalism, and accountability – to an elected government within the interpretation of Article 239AA.
  • The judgement also recognizes “principles of democracy and federalism” to be part of the basic structure of the Constitution.
  • Since the basis for the Court’s decision is found in the interpretation of constitutional provisions, it can be debated whether a law amending the GNCTD, Act, 1991 will suffice to nullify the effect of the judgments.
  • The Delhi government can argue that legislation that nullifies the effect of the ruling must be an amendment to the Constitution and not just an amendment to the statutory law. 
  • The Court also clearly held that Part XIV of the Constitution which contains provisions for regulating the employment of persons to the public services under the union and States is applicable to union territories which includes Delhi. 

4. Position of Delhi Government after center promulgating Ordinance

  • The current ordinance takes away this power from the Delhi government and places it with a statutory body that comprises of the chief minister of Delhi and the Chief Secretary and Principal Home Secretary of the Delhi government.
  • This arrangement means that the chief minister can effectively be vetoed by two senior bureaucrats on the issue of appointments and transfers of bureaucrats.
  • This dilution of the power of the Delhi government will have to be justified within the Court’s interpretation of Article 239 AA.
  • While the Ordinance does not address the issue, it will be litigated in Court whether the new statutory authority will impact the court’s finding on Delhi’s powers.

5. Can the Ordinance impact the basic structure of the Constitution? 

  • Parliament cannot bring in a law, or even a Constitution amendment, that violates the basic structure of the Constitution.
  • In the majority ruling in 2018, the Constitution bench held that while Delhi could not be accorded the status of a state, the concept of federalism would still be applicable to it.
For Prelims: Parliament, Union Territory of Delhi, Supreme Court, Federalism, Basic structure of Constitution, Article 239 AA, Government of National Capital Territory of Delhi Act, 1991, Part XIV of the Constitution.
For Mains: Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt. Governor and the elected government of Delhi? Examine. ( UPSC 2018).
Source: The Indian Express

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