New Delhi: The Supreme Court on Thursday agreed to hear on Monday, July 10, a plea by the Delhi government challenging the constitutionality of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated on May 19, 2023. The Delhi government said the Ordinance violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA and is manifestly arbitrary. The Ordinance by the Centre wrests control over services from the elected government.
Senior advocate A M Singhvi and advocate Shadan Farasat mentioned the matter for hearing before a bench headed by Chief Justice of India D Y Chandrachud. Singhvi made brief submissions regarding the matter. The Chief Justice said the matter will be listed on July 10.
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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). "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," it said.
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 advice of the elected government 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 be the Delhi Chief Minister along with the 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 a 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".
The top court has already entertained another petition by the Delhi government challenging Section 45D introduced by the Ordinance of the Government of National Capital Territory of Delhi (GNCTD) Act while questioning the Centre's power to appoint the chairperson of the Delhi Electricity Regulatory Authority.
