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An Ordinance, its Constitutionality, and scrutiny

  • Published
    26th May, 2023


During a parliamentary recess, the President of India enacted the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, using legislative authority under Article 123. This ordinance nullifies a Supreme Court verdict that granted the Government of National Capital Territory of Delhi (NCTD) control over "services".

Key issues

  • Court’s verdict: The Court's verdict determined that the NCTD's Legislative Assembly holds authority over List II and List III, except for certain excluded entries.
    • The Union of India's executive power is limited to three entries, while the NCTD has exclusive power over "services."
  • Interpretation of the Union: However, the Union bypassed this interpretation by utilizing an ordinance to modify Article 239AA(3)(a) and expand the list of excepted matters. Amending the Constitution would be necessary for such changes, which goes beyond the power conferred to Parliament.

Alteration needs an amendment

  • Parliament's power under Article 239AA(7)(a) is to create laws that enforce or supplement the provisions of Article 239AA and address related matters. However, this power cannot be used to amend Article 239AA(3)(a).
  • Notably, Article 239AA(7)(b) specifies that Parliament's lawmaking under Article 239AA(7)(a) does not constitute a constitutional amendment under Article 368. Unlike Article 239AA(7)(b), Article 239AA(3)(a) lacks a similar provision.
  • Hence, modifying the scope of Article 239AA(3)(a) requires a constitutional amendment under Article 368 without any doubt.

A perspective

  • Invalid: The promulgation of the ordinance under Article 123 to expand the scope of excepted matters in Article 239AA(3)(a) is deemed void and subject to be invalidated for circumventing constitutional amendment procedures.
  • Compulsory constitutional amendment: The binding nature of a Constitution Bench's interpretation under Articles 141 and 144 cannot be negated by Article 123 without a constitutional amendment.
  • Ultimately, the ordinance is expected to be invalidated as the expansion of excepted matters in Article 239AA(3)(a) can only be accomplished by Parliament through Article 368.
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