NEW DELHI: The Supreme Court on Monday said that the Delhi government's petition against the ordinance brought by the Centre taking control of the civil services of the national capital may have to go before a five-judge constitution bench for consideration.
A bench of CJI DY Chandrachud, Justices PS Narasimha and Manoj Mishra were of the view that SC's previous rulings delivered in 2018 and on May 11, 2023, had not considered the aspect regarding the invocation of powers under Article 239AA(7) to draft the law under challenge.
“What they've done is that by using the power under 239AA(7), they've 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," CJI said.
The bench against the backdrop of objections Delhi Govt regarding the court’s inclination to refer the matter to the constitution bench posted the same for Thursday to decide on the aspect of reference.
In the brief hearing that transpired on Monday, SG in another matter dealing with the appointment of the DERC chairman had informed the bench regarding the presentation of the ordinance before the Parliament session commencing on July 20.
“It is possible that the Ordinance may be passed in a different form after the Parliamentary process. We are introducing this ordinance in the parliament session commencing from July 20,” Mehta had said while urging the court to defer the matter & await the legislative outcome.
A bench of CJI DY Chandrachud and Justice PS Narasimha while refusing to stay the ordinance had sought centre & LG VK Saxena’s response.
“It’s an ordinance, we’ll have to hear the matter. We can’t stay an ordinance, an Act is stayed,” CJI said while posting Arvind Kejriwal led AAP govt’s plea seeking a stay on the ordinance for July 17.
The ordinance created authority for the transfer and postings of Group A officers in the GNCTD. Its aim was to “provide for a comprehensive scheme of administration of services which “balances the local and domestic interests of people of Delhi with the democratic will of the entire nation reflected through the President of India.”
Seeking to declare the impugned ordinance as “unconstitutional” and quash the same, Aam Aadmi Party (AAP) led Kejriwal govt has argued that the same wrests control over civil servants serving GNCTD from GNCTD to unelected Lieutenant Governor.
“Though the Impugned Ordinance feigns a degree of democratic involvement by making stray references to the Chief Minister, it in fact relegates the Chief Minister to being a minority-voice even in the Authority tasked with making non-binding ‘recommendations’. The Impugned Ordinance shows contempt for elected assembly and elected government while making a pretence of their involvement through the Chief Minister,” the plea states.
Laying emphasis on the fact that the ordinance destroys the scheme of federal, Westminster-style democratic governance constitutionally guaranteed under Article 239AA, the plea says that the ordinance seeks to undo the principle of collective responsibility in a democracy.
It was also argued in the plea that centre’s ordinance impermissibly overrules SC's May 11 ruling that granted AAP govt legislative and executive power over all the services except the matters relating to land, public order and police which are out of its legislative domain.
“The impugned ordinance completely sidelines the elected government from the control over its civil servants. 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 seeks to revert the situation to what the 2015 notification had sought to install in complete disregard of the top court’s view,” the plea states.
Notably, the centre hours after promulgating the ordinance had also approached the Supreme Court seeking a review of the top court’s May 11 verdict that had granted AAP legislative and executive power over all the services except the matters relating to land, public order and police which are out of its legislative domain.
