Supreme Court Refers Delhi Govt's Challenge To Centre's Ordinance To Constitution Bench, Rejects Delhi's Objection To Reference

The Supreme Court today decided that the plea challenging the constitutionality of the Government Of National Capital Territory of Delhi (Amendment) Ordinance, 2023 on control of services will be decided by a Constituion Bench. 

The Bench of Chief Justice D.Y. Chandrachud, Justice P.S. Narasimha and Justice Manoj Misra orally observed "We will pronounce an order, we will refer it to the Constitution Bench and then we will give you the liberty to immediately move after when we finish the article 370 hearing." The CJI further said, "We will upload the order by the evening".

On the last date of the hearing, the Chief Justice had indicated that the matter 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," said the CJI wherein the Delhi Government had opposed the reference. 

Senior Advocate Abhishek Manu Singhvi appearing for the Delhi government at the outset opposed the reference. Singhvi further requested the Court that if it decides to refer the matter to the Constitution Bench, then the matter should be heard before the hearing of pleas challenging the abrogation of Article 370. "The whole system will be in paralysis because of the time it will take, I am not at all agreeable to the reference but if Milords want the reference then it is a very short point which can be taken before the hearing of Article 370. Pushback 370 and hear it first," submitted Singhvi. 

Objecting to the same, the CJI remarked "We will not change the scheduling of 370, we have notified it and lawyers have been getting ready". Senior Advocate Harish Salve appeared for the Lieutenant Governor while the Solicitor General Tushar Mehta appeared for the Centre.

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 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]