On Monday, the Supreme Court stated that it is “inclined” to refer the Delhi government’s petition challenging the constitutional validity of the Centre’s ordinance on control of services to a five-judge Constitution Bench, stating that the petition contains legal aspects that were not “dealt with” by the two Constitution Benches that heard the case previously. (File)
THURSDAY, THE SUPREME COURT referred to a Constitution Bench the Delhi government’s petition challenging the constitutionality of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, the Centre’s ordinance governing the control of services in the national capital.
A trio of judges Bench presided over by Chief Justice of India D Y Chandrachud stated that there is a “apparent conflict between the two clauses” of Article 239AA “on the nature of law-making power vis-à-vis NCTD’s constitutional structure of governance” and that this “must be resolved by this court.”
The Bench, which also included Justices P S Narasimha and Manoj Misra, explained as follows: “A fundamental reading of Article 239-AA(7)(a) indicates that the law shall not alter the existing constitutional structure envisioned for NCTD in Article 239-AA.
Nonetheless, an initial reading of Article 239-AA(7)(b) indicates that the law enacted pursuant to Article 239-AA(7)(a) could alter the extant constitutional structure of governance of NCTD.
“It is not in dispute that Parliament has the authority to pass a law conferring the Union of India executive authority over services. It is now an established legal position. “However, while determining the constitutionality of the 2023 ordinance, this court must also determine whether the exercise of such a power is valid,” the Bench stated.
Opinion | With its ordinance, the Centre undermines federalism and confronts the Supreme Court.
The court posed two questions to the Constitution Bench: “What are the limits of Parliament’s power to enact a law under Article 239-AA(7); and can Parliament, in exercising its power under Article 239-AA(7), abrogate the constitutional principles of governance for NCTD?”
The Delhi government had also requested an injunction against the ordinance. Rejecting the request for a stay, the Bench stated that the parties may approach it for the hearing before the Constitution Bench once the Constitution Bench has completed hearing petitions challenging the constitutionality of amendments made to Article 370 of the Constitution.
Senior Advocate A M Singhvi, representing the Delhi government, stated that he was “absolutely opposed” to a referral because “the entire system is paralysed” due to the length of time required for a Constitution Bench hearing.
He stated that he would request an early hearing date if the court decided to refer the case. “This is a very short point,” he said, urging the court to address it before the Article 370 cases.
The Bench, however, denied his request, stating that the schedule for hearing Article 370 petitions has already been established and cannot be altered at this time.
“We will not alter the timing of the 370 matter at this time. We have informed them. Counsel have been getting set. It would not be proper for us to now state that we will not hear Article 370, as we previously stated we would.
Singhvi urged the court to “consider what has transpired in the interim.” “No bureaucrat is taking orders,” he stated, questioning how the Lieutenant-Governor could dismiss 437 AAP-appointed consultants.
“Assuming the ordinance is legitimate, how does the L-G have the authority to remove the consultants appointed by the NCT, even under the ordinance? “He lacks the authority to run the administration of Delhi,” he said.
Senior Advocate Harish Salve, representing the L-G, argued against the argument, stating, “He (L-G) has not done so under the ordinance.”
Salve stated that there were “rank illegal appointments of individuals who, by sheer coincidence, are party workers, pursuant to a procedure that is deeply flawed. According to the special secretary, these appointments are unlawful. That does not require the ordinance”.
Intervening, the CJI stated, “What you have effectively done is that, despite the Constitution stating that entries 1, 2, and 18 are the only entries over which the Legislative Assembly has no jurisdiction, you have, by ordinance, amended the Constitution to state that entry 41 of list 2 is also beyond the legislative authority of Delhi Assembly. That is the purpose of section 3A (of the ordinance)”.
However, Salve stated that “Section 3A may not survive when the bill is introduced to Parliament. “3A is superfluous.”
The CJI then stated, “We cannot assume that 3A will not be implemented at this time.”
“Let’s presume that Your Lordships have struck down 3A or halted its implementation. Examine Section 5. It is Parliament exercising its legislative authority, which Your Lordships assert it has, to establish a structure, Salve replied.
The Bench then stated that it would refer the case to a Constitution Bench and post the order on the Supreme Court’s website later that day.
On May 11, a five-judge Constitution Bench led by the CJI ruled that the administration of the National Capital Territory is distinct from that of other Union Territories and has been granted ‘sui generic status by the Constitution. It asserted that an elected government must have control over bureaucrats; otherwise, the principle of collective responsibility will suffer.
The Centre issued the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, on 19 May to establish a National Capital Civil Service Authority to transfer and assign Group-A officers in Delhi. One of the three members of the Authority is the Prime Minister, while the other two are administrators. The Authority will make decisions by majority vote, and in the event of a dispute, the matter will be referred to the L-G, whose decision will be final.