Holding

The Court held that the substantive questions concerning the scope of Parliament's power under Article 239‑AA(7) and its ability to alter NCTD's constitutional governance must be decided by a Constitution Bench, and therefore dismissed the petition for interim relief.

Summary

The Government of the National Capital Territory of Delhi challenged the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which inserted Section 3A into the GNCTD Act, 1991 and altered the distribution of legislative and executive powers over Entry 41 of List II. The petition raised four principal grounds: (i) the amendment of Article 239‑AA(3)(a) by removing NCTD's competence over Entry 41; (ii) the Ordinance’s removal of executive authority from the elected NCTD government, violating the triple chain of accountability; (iii) the interpretation of Article 239‑AA(7) and whether Parliament can, under it, abrogate NCTD’s constitutional governance structure; and (iv) the lack of urgency justifying promulgation of the Ordinance under Article 123. The Court examined the interplay of Articles 239‑AA(3)(b), 239‑AA(7)(a) and (7)(b), and the precedent that Parliament may limit the executive power of NCTD over services. Finding that the questions raised involve a substantial interpretation of the Constitution, the Court referred the matters to a Constitution Bench. The interim relief sought – a stay of the Ordinance – was dismissed.

Issues considered

What is the constitutional validity of Section 3A of the GNCTD Act, 1991, which removes NCTD's legislative competence over Entry 41 of List II?
Does Parliament, under Article 239‑AA(7), have the power to enact a law that abrogates the constitutional principles of governance for the NCT of Delhi?
Can the President promulgate the 2023 Ordinance under Article 123 without a showing of immediate urgency?
Do the provisions of the Ordinance that shift executive power to the Lieutenant Governor violate the triple chain of accountability established for NCTD?
How should the apparent conflict between clauses (a) and (b) of Article 239‑AA(7) be resolved?

Legislation cited

Constitution of Indias. Article 123, s. Article 162, s. Article 239(1), s. Article 239-AA(3)(a), s. Article 239-AA(3)(b), s. Article 239-AA(7)(a), s. Article 239-AA(7)(b), s. Article 368, s. Article 73
Government of National Capital Territory of Delhi Act, 1991s. 3A, s. 45D, s. 45E, s. 45H, s. 45J, s. 45K
Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023

Subjects

Article 239-AAParliamentary powerOrdinanceNational Capital Territory of DelhiLegislative competenceExecutive powerConstitutional amendmentTriple chain of accountabilitySection 3AArticle 123Article 368Writ petition under Article 32

Judgment

[2023] 10 S.C.R. 493 : 2023 INSC 635 493

GOVERNMENT OF NATIONAL CAPITAL TERRITORY A
OF DELHI
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 678 of 2023)
B
JULY 20, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
PAMIDIGHANTAM SRI NARASIMHA AND
MANOJ MISRA, JJ.]
Government of National Capital Territory of Delhi C
(Amendment) Ordinance 2023: Constitutional validity of – Preamble
to the NCT Ordinance 2023 states that Parliament has exclusive
and plenary jurisdiction with respect to the national capital in view
of Arts 239-AA(3)(b) and 239-AA(7) – NCT Ordinance inserting s.
3A in the GNCTD Act, which amends Article 239-AA, stipulating
that the Legislative Assembly shall have the power to enact laws as D
prescribed in Art 239-AA, except with respect to Entry 41 of List II
of the Seventh Schedule – NCT Ordinance also establishes a new
scheme for the distribution of executive power over services between
the Union of India and the Government of NCTD – Held: It is to be
decided if the exercise of the power of the Parliament to enact a E
law granting the Union of India executive power over services is
valid – Furthermore, an apparent conflict between Art. 239 AA(7)(b)
and 239 AA(7)(a), as regards the nature of law making power vis-
à-vis NCTD’s constitutional structure of governance,not considered
in the Constitution Bench judgmentsof 2018 and 2023 – In view
thereof, the questions, as to what are the contours of the power of F
Parliament to enact a law u/Art. 239-AA(7); and whether Parliament
in the exercise of its power u/Art. 239-AA(7) can abrogate the
constitutional principles of governance for NCTD, referred to the
Constitution Bench – Reference to larger Bench – Government of
National Capital Territory of Delhi Act. 1991 – s. 3A – Constitution G
of India – Art. 239AA, 239-AA(3)(a), 239-AA(3)(b), 239-AA(7)(a),
239-AA(7)(b) and Entry 41 of List II of Seventh Schedule.
Government of NCT of Delhi v. Union of India Civil
Appeal No. 2357 of 2017 – referred to.
H
493
494 SUPREME COURT REPORTS [2023] 10 S.C.R.

A CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.678
of 2023.
(Under Article 32 Of The Constitution of India)
Dr. Abhishek Manu Singhvi, Sr. Adv., Amit Bhandari, Aman
Sharma, Shadan Farasat, Ms. Warisha Farasat, Harshit Anand, Aman
B Naqvi, Ms. Hrishika Jain, Ms. Natasha Maheshawari, Ms. Mreganka
Kukreja, Siddharth Seem, Advs. for the Petitioner.
Tushar Mehta, SG, R Venkataramani, AG, Harish N. Salve, Sanjay
Jain, Sr. Advs., Kanu Agarwal, Padmesh Mishra, Arkaj Kumar, Anandh
Venkataramani, Mrs. Vijayalakshmi Venkataramani, Vinayak Mehrotra,
C Ms. Mansi Sood, Chitvan Singhal, Ms. Sonali Jain, Abhishek Kumar
Pandey, Raman Yadav, Arvind Kumar Sharma, Ms. Bani Dkshit, Dr. N.
Visakamurthy, Shreekant Neelappa Terdal, Advs. for the Respondents.
The following Order of the Court was passed :

D ORDER
1. On 19 May 2023, eight days after the Constitution Bench of
this Court pronounced the judgment in Government of NCT of Delhi
v. Union of India 1 [“2023 Constitution Bench judgment”], the
President in exercise of powers under Article 123 of the Constitution
promulgated the Government of National Capital Territory of Delhi
E
(Amendment) Ordinance 2023 [“NCT Ordinance”]. The NCT
Ordinance amends the Government of National Capital Territory of Delhi
Act 1991 [“GNCTD Act”]. The Preamble to the Ordinance states that
Parliament has exclusive and plenary jurisdiction with respect to the
national capital in view of Articles 239-AA(3)(b) and 239-AA(7):
F
“AND WHEREAS, keeping in mind various reports of various
Commissions and since Delhi is the capital city of the nation, the
Constitution retained certain exclusive and plenary jurisdiction in the
Parliament while incorporating Article 239-AA in general and Article
239-AA(3)(b) read with Article 239-AA(7) in particular.
G […]
AND WHEREAS for the purpose of giving effect to Article 239(l)
read with Article 239AA and in exercise of powers of Article
239AA(3)(b) and Article 239AA(7) of the Constitution of
1
Civil Appeal No. 2357 of 2017
H
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF 495
DELHI v. UNION OF INDIA & ORS.

India, which includes the power to supplementing the A
provisions under Article 239-AA including the power to
make suitable amendments thereof, an Ordinance namely the
Government of National Capital Territory of Delhi (Amendment)
Ordinance, 2023 is proposed to provide for a comprehensive
scheme of administration of services deployed in the functioning
B
of NCTD and other allied issues thereby balancing the local and
domestic interests of the people staying in the NCTD with the
democratic will of the entire nation reflected through the President
of India.”
(emphasis supplied)
C
2. The NCT Ordinance inserts Section 3A in the GNCTD Act
1991. Section 3A stipulates that notwithstanding anything contained in
any judgment, order, or decree of any Court, the Legislative Assembly
shall have the power to enact laws as prescribed in Article 239-AA,
except with respect to Entry 41 of List II of the Seventh Schedule to the
Constitution. The provision excludes Entry 41 of List II from the legislative D
competence of NCTD in addition to Entries 1,2, and 18 of List II which
are excluded by Article 239-AA. In effect, Section 3A amends Article
239- AA.
3. In addition to excluding the legislative power of NCTD with
respect to Entry 41 of List II, the NCT Ordinance also establishes a E
new scheme for the distribution of executive power over services between
the Union of India and the Government of NCTD. A brief overview of
the scheme is provided below:
(i) The President shall constitute any authority, board,
commission or statutory body in and for NCTD, or appoint F
or nominate any office bearer or member to the body.
[Section 45D]
(ii) The National Capital Civil Service Authority [“Authority”]
is constituted. The Authority shall consist of the Chief
Minister of NCTD, the Chief Secretary of the Government G
of NCTD, and the Principal Home Secretary of the
Government of NCTD. Decisions shall be taken by a
majority of votes of the members present and voting.
[Section 45E]
H
496 SUPREME COURT REPORTS [2023] 10 S.C.R.

A (iii) The authority has the power, inter alia, to recommend
transfers and postings of Group A officers and officers of
DANICS serving in the affairs of NCTD (excluding those
serving in connection with Entries 1,2,18 of List II),
recommend on all matters connected with and falling under
the subject of ‘vigilance’ and ‘non-vigilance’ for the purpose
B
of disciplinary proceedings, to make recommendations on
transfer and postings, and on the suitability of officers on
postings. [Section 45H]
(iv) The Lieutenant Governor shall return the recommendation
made by the Authority for reconsideration if he differs from
C the recommendation of the Authority. In case of a difference
of opinion between the Lieutenant Governor and the
Authority, the decision of the Lieutenant Governor shall be
final. [Section 45H]
(v) Proposals which may, inter alia, affect the peace of NCTD,
D interests of the Scheduled Castes, Scheduled Tribes and
socially and educationally backward community, or proposals
on matters which affect the relations of the Government of
NCTD with the Central Government, State Government,
Supreme Court of India or the High Court of Delhi shall be
placed before the Lieutenant Governor for opinion. [Section
E 45J(4)]
(vi) The Secretary of the Council of Ministers or the Departments
shall bring a proposal of the Council of Ministers or the
concerned Departments to the attention of the Lieutenant
Governor if they are of the opinion that the proposal is not
F in accordance with law or that the proposal will bring NCTD
into “controversy” with the Central Government, the State
Governments, the Supreme Court or the High Court of
Delhi. [Section 45K]
4. The petitioner has instituted proceedings under Article 32 of
G the constitution challenging the constitutional validity of the 2023
Ordinance.
5. The 2023 Ordinance is challenged on three broad grounds:
(i) Section 3A, by excluding NCTD’s legislative power over
Entry 41 of List II, in effect amends a constitutional provision,
H that is, Article 239- AA(3)(a);
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF 497
DELHI v. UNION OF INDIA & ORS.

(ii) The provisions of the NCT Ordinance remove the executive A
power vested in the Government of NCTD over the day-
to-day administration of National Capital from the elected
government of NCTD and place it exclusively in the
Lieutenant Governor, a nominated head. The 2023
Constitution Bench judgment in the specific context of
B
services observed that the people are the ultimate sovereign
and the executive is accountable to the public through the
“triple chain of accountability”. The triple chain of
accountability requires the permanent executives to be
responsible to the elected government, the elected
government to be responsible to the legislature, and the C
legislature to be responsible to the public. The 2023
Ordinance abrogates the principles of collective responsibility
and the triple chain of accountability which are important
facets of NCTD’s governance structure;
(iii) Article 239-AA(7)(b) is not a sui generis provision in the D
constitutional scheme. Other provisions of the Constitution
(such as Articles 4,169,239A, 244A,312, Part D Fifth
Schedule, and Paragraph 21 Sixth Schedule) also stipulate
that certain laws made by Parliament shall not deemed to
be a constitutional amendment though it has the effect of
amending the constitution. Article 239-AA(7)(b) does not E
vest Parliament with wide powers to abolish the
constitutional scheme of governance envisaged for NCTD
in Article 239-AA; and
(iv) The President could not have exercised the power to
promulgate an Ordinance under Article 123 because F
circumstances which warranted immediate action did not
exist. There was no urgency to promulgate the Ordinance
when the monsoon session of Parliament was going to begin
in a few months.
6. The Government of NCT has also sought a stay of the NCT G
Ordinance2 on the ground that it prevents the Government of NCTD
from meeting its popular mandate. Mr. Abhishek Manu Singhvi, learned
senior counsel highlighted instances where senior bureaucrats have
ignored the orders of the concerned Minister to call the National Disaster
2
IA No. 130505 of 2023 H
498 SUPREME COURT REPORTS [2023] 10 S.C.R.

A Relief Force for aiding with the flood situation in Delhi, the Directorate
of Vigilance has issued work allocation order in direct contravention to
prior orders of the Minister-in-charge, and the Lieutenant Governor has
terminated the contract of 437 consultants working with various
departments of the government of NCTD without any consultation with
the elected government. Additionally, the letter issued by the Lieutenant
B
Governor on 5 July 2023 terminating the engagement of specialists/fellow/
consultants is also sought to be stayed.
7. Mr. Tushar Mehta, learned Solicitor General appearing for the
Union of India made a reference to paragraph 95 of the 2023 Constitution
Bench judgment. In the said paragraph, this Court observed as follows:
C
“The legislative power of the Union extends to all entries under
the State List and Concurrent List, in addition to the Union List.
The executive power of the Union, in the absence of a law upon
executive power relating to any subject in the State List, shall
cover only matters relating to the three entries which are excluded
D from the legislative domain of NCTD. As a corollary, in the
absence of a law or provision of the Constitution, the executive
power of the Lieutenant Governor acting on behalf of the Union
Government shall extend only to matters related to the three entries
mentioned in Article 239AA(3)(a), subject to the limitations in
E Article 73. […] However, if Parliament enacts a law granting
executive power on any subject which is within the domain of
NCTD, the executive power of the Lieutenant Governor shall be
modified to the extent, as provided in that law.”
8. Mr. Harish Salve, learned senior counsel appearing for the
F Lieutenant Governor submitted that the consultants were terminated
because their appointment was arbitrary.
9. Article 239-AA(3)(a) stipulates that the legislative assembly of
NCTD has the power to make laws with respect to matters enumerated
in the State List and Concurrent List insofar as such matter is applicable
G to Union Territories except entries 1,2, and 18 of List II and entries 64,
65 and 66 of List II insofar as they relate to the above entries. The issue
for consideration before the 2023 Constitution Bench was whether Article
239-AA(3)(a), excludes by implication, NCTD’s legislative competence
over Entry 41 of List II. The Constitution Bench held that Article 239-
AA does not exclude the legislative power of NCTD over any entries
H other than those which are expressly excluded. This Court also held that
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF 499
DELHI v. UNION OF INDIA & ORS.

NCTD will have executive power over Entry 41 of List II because A
executive power is co- extensive with legislative power.
10. Since in view of Article 239-AA(3)(b), Parliament also has
legislative power over Entry 41 of List II, a corresponding issue on the
extent of executive power of the Union of India and the Government of
NCTD on matters over which both Parliament and the legislative B
assembly of NCTD have the power to enact laws arose.
11. Drawing upon the principles in Articles 73 and 1623, the 2023
Constitution Bench held that on entries over which Parliament also has
legislative competence, the executive power of NCTD shall be “subject
to and limited by” the executive power expressly conferred upon the C
Union of India by provisions of the Constitution or a law made by
Parliament. Thus, the position of law is that a law enacted by Parliament
can limit the executive power of NCTD over “services”.
12. The power of Parliament to enact a law granting the Union of
India executive power over services is not in contention. It is now a D
settled position of law. However, this Court while deciding the
constitutional validity of the 2023 Ordinance must decide if the exercise
of such a power is valid.
13. There are two preliminary considerations which arise at this
stage. The first is on the import of Section 3A. Section 3A removes E
Entry 41 of List II from the legislative competence of NCTD. On the
exclusion of Entry 41 from NCTD’s legislative power, the government
of NCTD ceases to have executive power over services because
executive power is co-terminus with the legislative power. Therefore,
the issue whether a law could completely remove NCTD’s executive
power over Entry 41 is interconnected with the validity of Section 3A. F
14. The Preamble to the 2023 Ordinance states that the law is
made in exercise of powers under Article 239-AA(3)(b) and Article
239-AA(7). Article 239-AA(3)(b) states that Parliament has the power
to make laws with respect to “any matter” for NCTD. Article 239-
G
3
The proviso to Article 73 states that the Union of India shall not have executive power
on matters over which the State can also enact on unless such power is expressly
granted by the Constitution or law of Parliament. The proviso to Article 162 states that
on matters over which both the state legislature and Parliament can make laws, the
executive power of States shall be subject to and limited by the executive power
expressly conferred upon Union of India by a law of Parliament or by the Constitution.
H
500 SUPREME COURT REPORTS [2023] 10 S.C.R.

A AA(7)(a) grants Parliament the power to enact a law for “giving effect
to, or supplementing” the provisions of Article 239-AA, and for all matters
incidental to it. Article 239-AA(7)(b) stipulates that such a law shall not
be deemed to be an amendment to the Constitution even if the law amends
the Constitution or has the effect of amending the Constitution. Article
239-AA(7) is extracted below:
B
“(7)(a) Parliament may, by law, make provisions for giving effect
to or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
C deemed to be an amendment of this Constitution for the purpose
of Article 368 notwithstanding that it contains any provision which
amends or has the effect or amending, this Constitution.”
15. While Article 239-AA(7)(a) states that the law must only give
effect to or supplement the provisions of Article 239-AA, Article 239-
AA(7)(b) states that the law shall not be deemed an amendment to the
D
Constitution even if it has the effect of amending Article 239-AA. A
primary reading of Article 239-AA(7)(a) indicates that the law shall not
alter the existing constitutional structure envisaged for NCTD in Article
239-AA. However, a prima facie reading of Article 239-AA(7)(b)
denotes that the law enacted under Article 239-AA(7)(a) could alter the
E existing constitutional structure of governance of NCTD. This apparent
conflict between the two clauses on the nature of law making power
vis-à-vis NCTD’s constitutional structure of governance needs to be
resolved by this Court.
16. Neither the 2018 Constitution Bench judgment4 nor the 2023
F Constitution Bench judgment has dealt with the interpretation of Article
239-AA(7). We are of the considered opinion that the disposal of the
writ petition requires this Court to answer a substantial question of law
as to the interpretation of the Constitution. We accordingly refer the
following questions to a Constitution Bench:
(i) What are the contours of the power of Parliament to enact
G
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 NCTD.
4
H Government of NCT of Delhi v. Union of India, Civil Appeal No. 2357 of 2017
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF 501
DELHI v. UNION OF INDIA & ORS.

17. We are also of the opinion that it would be appropriate for the A
Constitution Bench to dispose of the writ petition because of the protracted
legal battle between the Union of India and the Government of NCTD
on the administration of NCTD. We direct the Registry to place the
papers of this petition before the Chief Justice of India on the
administrative side for the constitution of a Constitution Bench to answer
B
the questions identified above and for the disposal of the petition. IA No.
130505 of 2023 seeking a stay of the NCT Ordinance is dismissed.

Nidhi Jain Questions referred to constitution Bench.
(Assisted by : Tamana, LCRA)
C

D

E

F

G

H