The Supreme Court on July 17 said it may refer the Delhi government’s petition against a Central Ordinance, which effectively gives power over civil services in the national capital to the Lieutenant Governor, to a Constitution Bench for an authoritative pronouncement.
“We are inclined to refer this case to a Constitution Bench,” Chief Justice of India D.Y. Chandrachud, heading a three-judge Bench, observed.
The court’s indication that it may refer the case to a Constitution Bench came despite a submission made by Solicitor General Tushar Mehta, for the Centre, that the Ordinance would be tabled in the Parliament during the Monsoon Session, which is starting on July 20.
Mr. Mehta urged the court to wait and see what the Parliament may finally do with the Ordinance. “It may amend certain portions... since no prejudicial act is being taken on the basis of the Ordinance right now, you may consider awaiting the legislative decision,” he submitted.
Contest over Delhi rule
Key points that the Delhi government and the Centre raised in the Supreme Court:
The CJI, however, went on to outline the questions of law that may require the attention of the Constitution Bench. He said a cardinal issue would be whether the National Capital Territory of Delhi (Amendment) Ordinance, 2023 amounted to an amendment of the Constitution via the Ordinance route. The Delhi government has argued that the Ordinance took away its control over civil servants without actually amending Article 239AA, which holds that the power and control over services should be vested in the elected government.
Secondly, the CJI orally observed that the effective transfer of power over the civil services amounted to nullifying Entry 41 of the State List of the Constitution. Entry 41 deals with the State’s power over the “State public services and the State Public Service Commission”. The Supreme Court asked whether the impact of the Ordinance was whether the “State legislature cannot enact a law under Entry 41 at all?”
The May 11 judgment of a Constitution Bench led by Chief Justice Chandrachud had limited the role of the Lieutenant Governor, considered an arm of the Centre, over bureaucrats in the capital to three specific areas — public order, police and land.
The Ordinance was promulgated within eight days of the Supreme Court verdict, which had upheld the authority of Delhi government to make laws and administer civil services in the national capital.
MHA counter-affidavit
In a 33-page counter-affidavit, the Ministry of Home Affairs (MHA) contended “the Parliament is competent and has overriding powers to make laws even on subjects regarding which the Legislative Assembly of Delhi would be competent to enact laws”.
The MHA accused Chief Minister Arvind Kejriwal and his Ministers of going on a “rampage” immediately after the May 11 verdict.
“The Lieutenant Governor had specially informed the Chief Minister that the judgment of the Supreme Court was sacrosanct for him... Despite this, the Chief Minister and other Ministers, in a dramatic and convoluted fashion, immediately went on a rampage by issuing orders and posting them on social media, which are in gross disregard to the rules and procedure already in place,” the Home Ministry recounted.
The Centre accused the Delhi Ministers of starting a “witch hunt” of the officers. The MHA said the Vigilance Department was specifically targetted as it contained “extremely sensitive” files on several cases, including the investigation into the excise policy scam, the construction of a new Chief Minister’s bungalow, public exchequer expenditure on advertisements, material on the creation of the “feedback unit” to gather political intelligence and power subsidies given to private companies. The Centre said officers were harassed and made subject to media trials and threats.
The Ministry said the actions of the Delhi government led to the “nation cutting a very sorry figure globally since social media and electronic media had global reach and everyone kept themselves informed about the happenings in the capital”.
“When the decision to promulgate the Ordinance was taken, the Parliament session was two months away and any delay would not only have paralysed the administration of the national capital, but would have embarrassed the nation within and outside the country,” the Centre submitted.
The court agreed to hear the case on Thursday.
