Supreme Court: May refer Delhi govt plea against Centre’s ordinance to 5-judge Bench

Article 239AA of the Constitution deals with special provisions with respect to Delhi.

Solicitor General Tushar Mehta, appearing for the Centre, told the Bench that “as per clause 7, such law will not be deemed to be an amendment to the Constitution. That’s going to be the argument”.

The CJI said the ordinance makes the state list also a concurrent list. “Parliament has power to make law with respect to any item in List 2 (state list) and List 3 (concurrent list). Legislative Assembly can make law on List 2 except entries 1 (public order), 2 (police) and 18 (land). Parliament can make law on anything in List 2 including entries 1, 2 and 18. Now what you have done is, by this clause 3 of the ordinance, the state legislature cannot enact a law with respect to entry 41 (state public services; State Public Service Commission) at all,” he said.

Appearing for the Delhi government, Senior Advocate A M Singhvi said the Constitution Bench, in its May 11 decision, had covered the question, and he would, at this stage, oppose the reference.

“The judgment covers the point. Pillars of the judgment, federalism, decentralisation etc… Prime facie, at this stage, I would like to oppose a reference,” he said, adding that he would try to convince the court on this when it hears the matter again on July 20.

He said if the court does not agree with him that day, he would request it to proceed as soon as possible in the Constitution Bench “because this is wreaking havoc”.

Senior Advocate Harish Salve, appearing for the Lieutenant-Governor, said the question is about the competence of Parliament. “Could Parliament have enacted a legislation which would have resulted in a concurrent list becoming an exclusive list,” he said, adding, “even if it’s a concurrent list, once Parliament makes a law, the state is excluded. The effect of that is exclusionary in concurrent list also”.

Earlier in the day, during a hearing on the differences between the L-G and the Delhi government over appointment of the Delhi Electricity Regulatory Commission (DERC) chairman, Mehta told the court that the ordinance is likely to be introduced in the upcoming Monsoon Session of Parliament, and he cannot say whether Section 45D will be retained in the same form or not.

Section 45D stipulates that, notwithstanding anything in any other law, all authorities, boards, commissions and statutory bodies in and for NCTD (National Capital Territory of Delhi) shall be constituted by members appointed by the President.

“We are now not aware if this 45D will go in the same form or in a different form, maybe passed in the same form, different form etc,” Mehta said, urging the court to defer the hearing to await the outcome of the legislative process.

The SC asked Lieutenant-Governor V K Saxena and Chief Minister Arvind Kejriwal to “rise above political bickerings” and “sit together” and agree on a name for appointment as DERC chairman.

Meanwhile, in its affidavit filed in response to the Delhi government’s request to stay the ordinance, the Centre outlined the “facts” which compelled it to come up with it. It said that after the May 11 judgment, the Delhi government’s “ministers started uploading orders on social media platforms and making statements in media, and started a witch-hunt, harassment of officers, media trials, threats and street postures to influence the decision-making by officers. Communications were received by the Chief Secretary, GNCTD, from the senior officers, regarding multiple instances of misbehavior on the part of the minister (services), GNCTD…”

The affidavit said that officers working in the Vigilance Department “came to be specifically targeted by the elected government”. The Vigilance Department, it said, was in possession of “certain files about which either investigations/ inquiry were going on or contemplated”.

On May 11, a five-judge Constitution Bench headed by Chief Justice D Y Chandrachud had held that the National Capital Territory administration is unlike other Union Territories and has been accorded a ‘sui generis’ (unique) status by the Constitution. It had asserted that an elected government needs to have control over bureaucrats, failing which the principle of collective responsibility will be adversely affected.

On May 19, the Centre promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to set up a National Capital Civil Service Authority for transfer and posting of Group-A officers in Delhi. The Chief Minister is one of the three members of the Authority, while the two others are bureaucrats. The decisions by the Authority are to be taken by a majority and, in the event of a dispute, the matter will be referred to the L-G whose decision will be final.