SC indicates referring to Constitution bench Delhi govt’s plea challenging ordinance regarding services

New Delhi: The Supreme Court on Monday indicated that it may refer to the Constitution bench a plea of the Delhi government challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 issued by the Centre relating to control over bureaucrats.
A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and Manoj Misra posted the matter for July 20. The bench 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 of 2018 and 2023 passed in the tussle between Delhi and the Centre.
“What they have done is that by using the power under 239AA(7), they have amended the Constitution to take services out of Delhi government control. Is that permissible? I don't think either of the Constitution bench judgements has covered that,” the bench observed.
Article 239AA provides the framework for the exercise of legislative powers by the legislative assembly of the Union territory of Delhi and the Parliament in respect of Delhi.
Solicitor General of India Tushar Mehta, appearing for Centre, urged the bench to defer the hearing in view of the fact that the Ordinance is going to be presented as a bill before the Lok Sabha in the monsoon session starting on July 20.
“It is possible that the Ordinance may be passed in a different form after the Parliamentary process,” Mehta said asking to await the legislative outcome.
Appearing for the Delhi government, senior advocate Abhishek Manu Singhvi, submitted that he is opposed to the reference of the matter to the Constitution bench.
Senior advocate Harish Salve, appearing for Delhi’s Lieutenant Governor, contended that the issue was regarding the competence of the Parliament to make the present law under Article 239AA(7)(a) and since it was not an issue considered by the earlier Constitution bench judgments, a reference was necessary.
Salve also said that he was contemplating filing a public interest litigation (PIL) to prevent constitutional functionaries from engaging in discussions and arguments on social media platforms like Twitter, Instagram and Facebook.
Centre filed affidavit in Supreme Court and defended the Ordinance saying Article 246(4) of the Constitution empowers the Parliament to make laws with respect to any matter for any part of the territory of India not included in a State, notwithstanding that such matter is a matter enumerated in the State List.
Centre told Supreme Court that the Parliament is competent and has overriding powers to make laws even on the subjects, qua which the Legislative Assembly of Delhi would be competent to enact laws.
Union government represents the will of the people as elected government, its participation in the affairs in the administration of the NCT of Delhi is of vital importance in the spirit of cooperative federalism, said Centre before Supreme Court.
Singhvi had earlier said Ordinance has reduced the role of the elected government and the Chief Minister and also referred to a recent decision taken by the LG to remove several consultants appointed by the government.
Delhi Services Ordinance gives overriding powers to the Lieutenant Governor of Delhi to oversee the transfers and postings of civil servants in the national capital.
Approaching the apex court, the Aam Aadmi Party government said that the Centre’s Ordinance is “unconstitutional”.
Delhi government, in its plea filed in Supreme Court, has stated that the Centre's ordinance is "unconstitutional".
"The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 promulgated on May 19, 2023, which 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," the petition said.
The impugned Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, added the plea.
In the petition, the Delhi government has urged the top court to pass appropriate direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023.
The Centre had on May 19 promulgated the Ordinance to create an authority for the transfer and posting of IAS and DANICS officers in Delhi, with the Delhi government calling the move a circumvention of the Supreme Court verdict on control of services.
The Ordinance was brought to amend the Government of National Capital Territory of Delhi Act, 1991 and it circumvents the Supreme Court judgement in the Centre vs Delhi case.
According to the petition, the impugned Ordinance is an unconstitutional exercise of executive fiat that it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA, manifestly arbitrary, legislatively overrules/reviews a Constitution bench judgement of the top Court dated May 11, 2023.
The ordinance, which came a week after the Supreme Court handed over the control of services in Delhi, excluding police, public order and land, to the elected government, seeks to set up a National Capital Civil Service Authority for the transfer of and disciplinary proceedings against Group-A officers.
On May 11 the Supreme Court ruled that the division of administrative powers between the Union and Delhi government "must be respected" and held that the Delhi government has "legislative and executive power over services" in the national capital, including the bureaucrats, except those relating to public order, police and land.
A five-judge Constitution bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Justice Krishna Murari, Hima Kohli and PS Narasimha had said, "The division of administrative powers between the Union and the Government of the National Capital Territory of Delhi (NCTD) as explained... must be respected."
The apex court in its 105-page-judgement said that the government of Delhi is not similar to other Union Territories.