The Supreme Court has said that a five-judge constitution bench will examine the contours of Parliament's power to legislate for the national capital, Delhi, on a petition filed by the Delhi government against the central government's ordinance on control of services. It will also be examined whether the central government can abrogate constitutional principles of governance by enacting a law to take away control of the services.

On May 19, eight days after a three-judge constitution bench's decision to control Delhi government services, the central government issued an ordinance on the matter of Delhi services in exercise of its powers under Article 239-AA, a special provision of the Constitution relating to the national capital. The top court, in its 10-page order on Thursday, had referred the Delhi government's plea challenging the ordinance to a five-judge constitution bench. Now there are two big legal questions before the constitution bench.

We accordingly refer the following questions to a Constitution Bench:- The first question is, what are the limits of the powers of Parliament to make laws under Article 239-AA(7)? And second, can Parliament, in exercise of its powers under Article 239-AA(7), abrogate the constitutional principles of governance for the National Capital Territory of Delhi (NCTD)?

The bench said that there is a need to end the long legal battle between the Center and the Delhi government over the administration of the national capital. The bench also directed to place the case papers on the administrative side before the CJI for setting up a constitution bench to answer legal questions referred to the registry of the apex court. The order authored by the CJI said that there were two preliminary issues which have been taken up for consideration by a larger bench.

The first issue pertains to the inclusion of Section 3A (of the Ordinance), the order said. Section-3A removes entry 41 (Services) of List II (State List) from the legislative powers of NCTD. The deletion of entry 41 from the legislative powers of the NCTD leaves the government of the NCTD with executive power over services, as executive powers are equivalent to legislative powers.

According to the order, the issue is whether any law can completely take away the Delhi government's executive powers on services. It states that the aspect of services under Entry 41 is also linked with the validity of Section 3A of the Ordinance. While referring the Delhi government's plea to a constitution bench, the bench had rejected the Delhi government's argument that there was no need to refer the matter to a constitution bench, as the entire system would be paralyzed during its pendency.

The bench on Thursday raised questions regarding the ordinance and said it has taken away control of services from the Delhi government. It said the Constitution leaves three entries of List II (State List) relating to police, law and order and land outside the control of the Delhi government. The bench said, "You (Centre) have effectively implemented the arrangement made in the Constitution that except for three entries, the power rests with the Delhi Assembly in all matters." But, the Ordinance also takes away the powers of Entry 41 (Services) (of List II). This is the result of Section-3A of the Ordinance.

The bench had recently issued notice to the Center and Delhi Lieutenant Governor VK Saxena on Delhi government's plea, refusing to grant an interim stay on the Ordinance on Control of Services in the National Capital. Article-239AA deals with special provisions in the Constitution with respect to Delhi and its sub-article 7 states, Parliament may by law make provisions to give effect to or supplement the provisions contained in the foregoing clauses and with respect to all relevant or important matters.

Article-239AA also states that no such law made under it shall be deemed to be an amendment of the Constitution for the purposes of Article-368, even if the said law contains any provision which amends or has the effect of amending the Constitution. The Central Government on May 19 issued the Government of National Capital Territory of Delhi (Amendment) Ordinance-2023 to create an authority for posting and transfer of Group-A officers in Delhi.