An ordinance, its constitutionality, and scrutiny

Context:

Recently, the President of India exercised legislative power under Article 123 of the Constitution to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023” (Ordinance), which negates a Constitution Bench judgment of the Supreme Court of India.

Key issues:

First, the scope of the Court’s verdict: 

• While interpreting Article 239AA(3)(a), the the Court interpreted that out of the 66 entries in List II (the State list), while the executive power of the Government of NCTD covers 63 entries, that of the Union of India is restricted to the remaining three: public order (entry 1), police (entry 2) and land (entry 18).
• Consequently, executive power over “services” (entry 41) can be exercised exclusively by the Government of the NCTD. 

Second, the constitutionality of the ordinance:

• The above interpretation was negated by the Union of India, acting through its Council of Ministers under Article 74, by triggering extraordinary legislative power of the President under Article 123 in the promulgation of an ordinance.
• The ordinance was to read/insert entry 41 of List II (State list) into Article 239AA(3)(a), thereby expanding the scope of accepted matter.
• This could not have been done without amending Article 239AA(3)(a) of the Constitution. 
• The power conferred on Parliament under Article 239AA(3)(b) is to make fresh laws — not to amend Article 239AA(3)(a) of the Constitution.

Alteration needs an amendment:

• Unlike the power conferred on Parliament under Article 239AA(7)(a) that no such clause Parliament’s law making shall not be deemed to be an amendment of the Constitution for the purposes of Article 368 has been stipulated in Article 239AA(3)(a). 
• Therefore, altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368; there is not an iota of doubt.
• The ordinance promulgated to expand the scope of excepted matters in Article 239AA(3)(a) is void ab initio and is liable to be struck down for bypassing constitutional amendment. 
  • Article 123 is no substitute for Article 368 (amendment of the Constitution) in Part XX.
• A Constitution Bench (five judges) of the Supreme Court declares/interprets the law (Article 239AA(3)(a)), the same is binding on all courts and authorities in India in terms of Articles 141 and 144, respectively. 
• The aid and advice of the Union Council of Ministers to the President under Article 74 could not have overridden Article 144. The basis of the Court judgment is Article 239AA(3)(a). To alter this basis, a constitutional amendment is necessary.

A perspective:

• In the landmark seven-judge Bench verdict of the Supreme Court in Krishna Kumar Singh vs State of Bihar (2017) 2 SCC 136, the Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny.
• It was further held that the Court is empowered to look into the relevance of material placed before the President, but not its sufficiency or adequacy.
• The ordinance is likely to be struck down since it expands excepted matters in Article 239AA(3)(a). Parliament alone can do this under Article 368.

                                                                                                          News Source: The Hindu