Delhi ordinance row: Supreme Court refers matter to constitution bench

A bench headed by Chief Justice D Y Chandrachud and comprising justices P S Narasimha and Manoj Misra said: “We will refer it to the constitution bench and we will give you liberty to move us after...let us see when we get done with 370". -- Reports ETV Bharat's Sumit Saxena.

New Delhi:The Supreme Court Thursday referred the Delhi government’s challenge to the Centre’s ordinance -- Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 -- to a constitution bench. The Delhi government’s plea contended that the ordinance wrests control over civil servants serving in the Government of NCT of Delhi (GNCTD), from the GNCTD to the unelected lieutenant governor (LG).

A bench headed by Chief Justice D Y Chandrachud and comprising justices P S Narasimha and Manoj Misra said: “We will refer it to the constitution bench and we will give you liberty to move us after...let us see when we get done with 370 (petitions challenging abrogation of the Article 370)”…..we will upload the order in the evening (regarding the dates of hearing)”.

On July 17, the apex court said it was contemplating referring the matter to the Constitution bench. The top court had observed that for the first time, the Centre has used power conferred under clause 7 of Article 239AA to take services outside the purview of the Delhi government and in a way, the Constitution has been amended.

The bench said the court would have to see whether it is permissible and indicated that the challenge to the ordinance could be heard by a Constitution bench. The top court had observed that the issue of whether the powers under Article 239AA(7)(a) of the Constitution could be invoked to make the law of the present nature was not considered in either of the Constitution bench judgments delivered in 2018 and 2023.

Senior advocate Abhishek Manu Singhvi, representing the Delhi government, had then sought time to make submissions to establish that this matter needn't be referred to the Constitution bench. Singhvi stressed that the court should give him some time on Thursday to oppose the reference of the matter to a constitution bench.

Senior Advocate Harish Salve, appearing for the Delhi Lieutenant Governor, submitted that the top court has asked a question, which may have to be considered. The Delhi government's plea challenging the ordinance said, “It does so without seeking to amend the Constitution of India, in particular Article 239AA of the Constitution, from which flows the substantive requirement that power and control in respect of services be vested in the elected government”.

The state government emphasized that the ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA. “the principle of collective responsibility in a democracy - incorporated in Article 239AA (6) - requires that the elected government be vested with control over officials posted in its domain”, it said.