SC refers Delhi govt’s plea challenging Ordinance regarding services to 5-judge Constitution bench

New Delhi [India], July 20 : The Supreme Court on Thursday referred to the five-judge Constitution bench 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 while referring the matter to the Constitution bench said the order in this regard will be uploaded to the website by the evening.
Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government objected to the reference of the matter to the five-judge bench saying it is not necessary as the issue can be decided by a three-judge bench.
Singhvi argued that the Ordinance was against the provisions of Article 239AA as it dilutes the powers of the elected government.
He said, "Any reference to the Constitution bench will cause the whole system to be in paralysis because of the time it takes. It's a very short point."
The bench rejected his request that if this matter is referred to the Constitution bench it be given priority in hearing. He asked the bench that the Constitution bench hearing in the Article 370 cases, which is to begin in August, be deferred and the challenge to the Ordinance matter be heard first.
On July 17, the three-judge bench had indicated that it may send the matter to a five-judge bench.
The bench on that day 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 Centre.
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.
Senior advocate Harish Salve, appearing for Delhi’s Lieutenant Governor, had 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.
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.