The Supreme Court on July 20 referred the Delhi Government’s challenge against a Central ordinance — which effectively returns power over the civil services in the national capital to the Lieutenant Governor — to a Constitution Bench.
The reference to a Constitution Bench coincided with the opening of the monsoon session of the Parliament. On July 17, the Centre had urged the court to hold its hand, as the ordinance — National Capital Territory of Delhi (Amendment) Ordinance, 2023 — would be introduced in the Parliament during the monsoon session.
“We will refer this to the Constitution Bench. We will upload our order in the evening,” Chief Justice Chandrachud addressed the lawyers.
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Not before Article 370 case
The three-judge Bench headed by Chief Justice Chandrachud, however, did not accede to a request by the Delhi Government to take up this case before another Constitution Bench hearing, slated for August 2, on the abrogation of Article 370 in Jammu and Kashmir.
Senior advocate A.M. Singhvi, who represented the Delhi government along with Shadan Farasat, reasoned that the whole system of governance in the national capital was in a state of paralysis. “No bureaucrat is taking order and 437 consultants to the Legislative Assembly have been fired by the Lieutenant Governor (L-G)… We have to request this case to be taken up before the Article 370 one,” Mr. Singhvi urged the court.
The Chief Justice, however, said it was too late to make any changes. The Article 370 case was already scheduled for August 2 and preparations and study for the hearing were already underway.
Senior advocate Harish Salve, appearing for the L-G, said that the 437 consultants were “rank illegal appointments”. He countered, “They somehow happened to be party workers.” Mr. Salve agreed with the court’s decision to refer the case to a five-judge Bench.
Constitutional amendment via ordinance
On July 17, the CJI said a cardinal issue to be decided by the Constitution Bench would be whether the promulgation of the ordinance amounted to an amendment of the Constitution via the ordinance route. The Delhi Government has argued that the ordinance wrested away its control over civil servants without actually amending Article 239AA, which holds that the power and control over service should be vested in the elected government.
Secondly, the CJI had orally observed that the effective transfer of power over the civil services amounted to nullifying Entry 41 of the State List of the Constitution, which 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 that the “State legislature cannot enact a law under Entry 41 at all?”
A May 11 judgment of a Constitution Bench led by Chief Justice Chandrachud had limited the power of the Lieutenant Governor — considered an arm of the Central government — over bureaucrats in the capital to three specific areas: public order, police, and land. The Central government then promulgated the ordinance within eight days of the court’s verdict, which had upheld the Delhi government’s authority to make laws and administer civil services in the national capital.
‘Parliament has overriding powers’
In a 33-page counter-affidavit to the Delhi government’s challenge, the Ministry of Home Affairs had contended that “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 had 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 had recounted.
‘Witch hunt’
The Centre had accused Delhi Ministers of starting a “witch hunt” against officers. The MHA said that 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 a ‘Feedback Unit’ to gather political intelligence, and power subsidies given to private companies. The Centre said that officers were harassed and made subject to media trials and threats.
The Home Ministry had said that 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”.
