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

The Arvind Kejriwal Government has argued that the ordinance was promulgated within just eight days of the Supreme Court’s May 11 verdict in favour of the authority of Delhi Government to make laws and administer civil services in the national capital

Updated - July 06, 2023 01:41 pm IST

Published - July 06, 2023 11:37 am IST - NEW DELHI

Supreme Court of India. File

Supreme Court of India. File | Photo Credit: S. Subramanium

Chief Justice of India (CJI) D.Y. Chandrachud on July 6 told the Delhi Government that the Supreme Court will list on July 10 the Aam Aadmi Party regime’s petition seeking to quash a Central ordinance which puts the Lieutenant Governor back in the driver’s seat by allowing him to exercise control over civil servants in the national capital.

Senior advocate A.M. Singhvi, for the Delhi Government, mentioned the plea for urgent listing. The CJI referred to the Delhi Government’s separate challenge against the appointment of the Delhi Electricity Regulatory Commission (DERC) chairperson, posted on July 11 for hearing.

Also Read | The legality of the Delhi Ordinance

Mr. Singhvi said this was a separate challenge against the entirety of the ordinance. The Arvind Kejriwal Government has argued that the National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated within just eight days of the Supreme Court’s May 11 verdict in favour of the authority of Delhi Government to make laws and administer civil services in the national capital.

The May 11 judgment of a Constitution Bench led by Chief Justice Chandrachud had limited the role of the Lieutenant Governor (L-G), an arm of the Centre, over bureaucrats in the capital to three specific areas — public order, police and land.

“The ordinance has now wrested control over civil servants serving in Delhi from the Government of NCT of Delhi to the unelected Lieutenant Governor… It has done so without seeking to amend the Constitution, in particular Article 239AA, which holds that the power and control over services should be vested in the elected government,” the Delhi Government, also represented by advocate Shadan Farasat, has submitted.

The government said the ordinance upends the Constitution Bench judgment without “altering its basis”, that is, explaining why the court’s decision to give the authority over services to the elected government was wrong in law.

The petition challenges provisions in the ordinance which mandates the formation of a “permanent” National Capital Civil Service Authority (NCCSA) with the Chief Minister, as chairperson, and the Chief Secretary and Principal Home Secretary as Member and Member Secretary, respectively.

“The Authority [NCCSA] is designed in such a way that the head of the elected government, the Chief Minister of Delhi, presides over his own minority. The two bureaucrats can outvote him, hold meetings, make recommendations in his absence… the ordinance shows contempt for the elected Assembly and government while making a pretence of their involvement through the Chief Minister,” the petition has contended.

Also Read | Manifestly arbitrary, clearly unconstitutional 

NCCSA exercises authority over civil service officers working in all Delhi Government departments except those in public order, police and land. NCCSA would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers deputed to Delhi Government departments by majority of votes of the members present and voting. The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.

The government said that by giving the L-G a final say, the dual scheme of governance envisioned in Article 239AA has suffered a collapse. Under the Article, the L-G enjoys a discretion only in matters following outside the Delhi Government’s legislative and executive domain. In all other issues, the L-G is bound by the aid and advice of the Council of Ministers. The May 11 judgment had said the dual arrangement was essential to preserve Delhi’s federal system of governance.

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