The Supreme Court on July 4 stepped in to defer the swearing-in of former Allahabad High Court judge, Justice Umesh Kumar, as Delhi Electricity Regulatory Commission (DERC) chairperson.
A Bench led by Chief Justice of India D.Y. Chandrachud issued notice to the Centre in a challenge by the Delhi Government against the appointment of Justice Kumar. The court listed the case for hearing on July 11.
The court sought the assistance of the Attorney General of India, observing that the case raised questions about the validity of Section 45D of the National Capital Territory of Delhi(Amendment) Ordinance 2023, promulgated on May 19. The provision gave the Lieutenant Governor the final say in appointments to Commissions and Tribunals in the capital.
The ordinance came into effect just days after a Constitution Bench, in a May 11 judgment, declared that Lieutenant Governor’s discretion was limited to the three categories of police, public order and land. The court had given the elected government of Delhi control over the civil services.
On July 4, the Arvind Kejriwal Government, represented by senior advocate A.M. Singhvi and Shadan Farasat, alleged that the Centre’s appointment of Justice Umesh Kumar was an attempt to stop the AAP regime’s “most popular” scheme of supplying free electricity to the poorest of the poor in the national capital.
Solicitor General Tushar Mehta, appearing for the Centre, retorted that the accusation was only a ploy to attract media coverage.
“Nobody wants to stop any scheme,” Mr. Mehta said.
The law officer accused the Delhi Government of “playing with a retired judge”. He said the ceremony for administration of oath of office to Justice Kumar was fixed on two separate occasions, on June 26 and July 3. However, Justice Kumar could not take the oath as the Delhi Power Minister was “travelling” the first time and “fell ill” on the second occasion.
In response, Mr. Singhvi recounted how retired Madhya Pradesh High Court judge, Justice Rajeev Shrivastava, who was the Chief Minister’s nominee for DERC Chairperson, had waited months for the L-G to clear his file. Justice Shrivastava had finally withdrawn his assent after there was no movement in spite of a Supreme Court order on May 19 to appoint the DERC chairperson in two weeks.
Mr. Singhvi said the Central notification appointing Justice Kumar was issued the very same day the Delhi Government named Justice (retired) Sangeet Lodha as its second choice as DERC chairperson.
“Through the ordinance, they [the Centre and L-G] have reduced me to an agency unit. I, the elected government of Delhi, will pay for the Commissions and statutory bodies. I will be responsible for their conduct to the electorate… but I have no role in the appointments made to them,” Mr. Singhvi argued.
Mr. Mehta said the Delhi Government has already challenged the 2023 ordinance in a separate petition. The current challenge against the appointment of Justice Kumar as DERC chairperson was just a “testing of water” in the Supreme Court, he said.
“Who wrote to Justice Umesh Kumar about the post?” the Bench asked the Centre and L-G’s side.
“The L-G,” they said.
“That is the problem here,” the CJI remarked.
