New Delhi: The Supreme Court Monday said it is contemplating referring the Delhi government’s challenge to the Centre’s ordinance -- Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 -- to the 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.
A bench headed by Chief Justice of India D Y Chandrachud and comprising Justices P S Narasimha and Manoj Misra 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 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, 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 top court is likely to take up the matter on Thursday, July 20. Solicitor General Tushar Mehta informed the court that the Centre has filed an affidavit that the Bill will be introduced in the upcoming Parliament session, starting July 20, to replace the ordinance.
Mehta made this submission during the hearing of a case relating to one section of the ordinance -- appointment of the DERC Chairperson. Mehta submitted "It is possible that the ordinance may be passed in a different form after the parliamentary process...", and requested the court to defer the hearing to await the legislative outcome.
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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.
On May 11, a five-judge constitution bench of the Supreme Court ruled that it is ideal to hold that a democratically elected Delhi government should have control over its officers and the LG is bound by the elected government's advice in everything other than public order, police, and land.
On May 19, the Centre brought an ordinance to set up a permanent authority known as the National Capital Civil Service Authority, whose chairperson will Delhi chief minister along with chief secretary, Delhi, Principal Secretary (Home), Delhi to make recommendations to the Delhi LG regarding matters concerning transfer posting, vigilance and other incidental matters. However, in case of difference of opinion, the decision of the LG should be final.
The Delhi government’s petition said “Ordinance is an unconstitutional exercise of executive fiat that: i.) violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA; ii.) is manifestly arbitrary; legislatively overrules/reviews a Constitution Bench judgment of this court dated May 11…… without altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service, is a substantive mandate of the model of governance envisaged by the Constitution, including for the NCT of Delhi under Article 239AA”.
