Breaking: Supreme Court Says That Plea Challenging Delhi Services Ordinance Should Be Referred To Constitution Bench

The Supreme Court today said that it is of the view that the plea by the Delhi Government challenging the constitutionality of the Government Of National Capital Territory of Delhi (Amendment) Ordinance, 2023 on control of services should be referred to a Constitution Bench.

Using Clause 7 of Article 239AA of the Constitution, services have been brought out of the domain of the Delhi legislative assembly. Is that permissible, the first and second Constitutional Bench did not consider this issue, the CJI said.

Senior Advocate Abhishek Manu Singhvi for the Delhi government submitted that he will oppose the reference and he should be heard on that. 

Senior Advocate Harish Salve appearing for the Lieutenant Governor submitted that whether the Parliament can make an entry in the concurrent list into an exclusively central entry is a question of competence and that the said issue has not been decided yet. 

The Bench of Chief Justice D.Y. Chandrachud, Justice P.S. Narasimha and Justice Manoj Misra directed that the matter may be listed on Thursday to consider whether to refer the matter to a Constitution Bench.

Solicitor General Tushar Mehta appearing for the Centre submitted at the outset that the position as on date is a hands-off situation. He submitted that a Bill relating to the ordinance will be introduced before the monsoon session of the Parliament and that the provision in the bill may be different and that the Court must await the same.

Senior Advocate Abhishek Manu Singhvi submitted that the Centre cannot act on the ordinance till the last date and then say that the Court must await the legislation. 

On the plea challenging the appointment of the DERC Chairperson by the Lieutenant Governor, the Bench then said that the Lieutenant Governor and the Chief Minister must sit together and suggest an agreed name for a person who can head the Delhi Electricity Regulatory Commission (DERC). "They must rise above political bickering. They must sit together and give us an agreed name", the CJI said.

When Singhvi submitted that he is not hopeful of an amicable resolution, Salave objected to such a statement and said that he will advise his client to consider it positively. Sighvi then submitted that he is okay if the Court nominates a person. 

The Delhi Government had moved before the Court challenging the constitutionality of the ordinance on control of services, saying it is an "unconstitutional exercise of executive fiat" that attempts to "override" the Court's decisions and the basic structure of the Constitution. Besides quashing of the ordinance, the Delhi government has also sought an interim stay of the ordinance.

The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to create an authority for the transfer and posting of Group-A officers in Delhi. The Aam Aadmi Party (AAP) government has been calling it a deception and violation of the Supreme Court's verdict on control of services.

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 transfer of and disciplinary proceedings against Group-A officers from the DANICS cadre.

In its plea filed through Advocate Shadan Farasat, the Delhi government has said that the ordinance, which came days after the Apex Court's verdict, is a plain attempt to "override" the Court and the basic structure of the Constitution itself vide executive fiat. Seeking quashing of the ordinance, the plea alleged that it is an "unconstitutional exercise of executive fiat" that violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA and is manifestly arbitrary.

Cause Title: Government Of National Capital Territory Of Delhi Vs. Union Of India & Anr. [Diary No.- 25700 - 2023]