Supreme Court agrees to hear Delhi Govt’s challenge to Centre’s ordinance on July 10

The Delhi Government had approached the SC against the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (‘Impugned Ordinance), promulgated on May 19, and prayed for an immediate interim stay saying it “completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service”.

It “wrests control over civil servants serving in the Government of NCT of Delhi (GNCTD) from the GNCTD to the unelected Lieutenant Governor ( LG)”, the plea said.

The ordinance, added the plea, does so without seeking to amend the Constitution of India, in particular Article 239AA, from which flows the substantive requirement that power and control in respect of Services be vested in the elected government.

“It is not in contention that Article 239AA confers legislative competence over ‘Services’ concurrently on the Delhi Assembly as also the Parliament. However, it is a fundamental precept of the Constitution that the question of competence is distinct from the validity of legislation passed in exercise of such competence,” the Delhi Government said.

The ordinance, “by violating the substantive requirements of Article 239AA of the Constitution as interpreted by two Constitution Benches of” the SC “fails to be a valid exercise of competence”, according to the plea.

The Delhi government termed the Ordinance “an unconstitutional exercise of executive fiat that:…violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA… is manifestly arbitrary…” It also said it “legislatively overrules/reviews” the May 11 Constitution Bench judgement “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”.

It contended that it “is an impermissible and unconstitutional abuse of ordinance-making powers under Article 123 of the Constitution”. It added the “unseemly hurry in reversing” the SC ruling “via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi”.