Supreme Court To Hear On July 10 Delhi Govt's Challenge Against Centre's Ordinance Giving Overriding Powers To LG Over Services

The Supreme Court has agreed to list on July 10, 2023, the plea filed by the Government of National Capital Territory of Delhi (GNCTD) challenging the ordinance brought by the Central Government recently to take away the powers of the GNCTD to control civil servants serving it. The matter was mentioned before a bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice Manoj Misra by Senior Advocate Dr AM Singhvi, who was appearing for the Delhi Government.

At first, CJI DY Chandrachud remarked that the matter could be heard with another similar matter pending before the court. The CJI was referring to the Delhi Government's plea challenging the constitutionality of Section 45D of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. The said petition also challenged the Delhi Lieutenant Governor's (LG) decision to appoint former Allahabad High Court Judge Justice Umesh Kumar as the the Chairperson of the Delhi Electricity Regulatory Commission (DERC) without the concurrence of the Delhi Government.

To this, Singhvi responded–

"This is the challenge to the ordinance as a whole. The other matter is just a challenge to one section, Section 45D. Please keep on Monday."

The bench agreed to list the matter on Monday, July 10, 2023.

The writ petition challenges the Government of National Capital Territory (Amendment) Ordinance 2023, which was promulgated by the President on May 19. The Ordinance has the effect of depriving Delhi Government of the power over "services".

The petition points out that the Ordinance was brought out a week after a Constitution Bench of the Supreme Court pronounced that the Delhi Government has power over Entry 41 of List II (services). It is argued that through the Ordinance, the Central Government has in effect overturned the Supreme Court's verdict. The Ordinance is challenged as violating the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA of the Constitution. It is further argued that the Ordinance negates the principle of federalism and the primacy of the elected government.

"The principle of collective responsibility in a democracy - incorporated in Article 239AA(6) - requires that the elected government be vested with control over officials posted in its domain. In the federal context, this would require that such control be vested in the regional government – i.e. the GNCTD under Article 239AA – for matters in its domain. This essential feature was secured for the GNCTD by this Hon’ble Court’s 2023 Constitution Bench judgment, and is now sought to be undone by the Impugned Ordinance", states the petition filed through Adovcate-on-Record Shadan Farasat.

The Ordinance envisages that a committee comprising the Chief Minister and two senior bureaucrats will make recommendations to the Lieutenant Governor regarding transfer and postings of civil servants; however, the LG will have 'sole discretion' in taking a decision. 

"The Impugned Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service", the Delhi Government states, pointing out that similar end was sought to be achieved by the Central Government through its 2015 notification, which was invalidated by the Supreme Court. The same position, which was found to be unconstitutional by the Supreme Court, is sought to be restored through the Ordinance.

It is also pointed out that as per Article 239AA, the Delhi Government has powers over all matters in the state list except three specified subjects - law and order, police and land. However, the Ordinance has the effect of adding the subject of "services" to the exempted categories, without a Constitutional amendment.