Delhi Govt Says Sec 45D Of Centre's Ordinance Affects Bodies Created & Financed By It; Supreme Court Seeks AG's View On Challenge

The Supreme Court today issued notice to the Attorney General for India in Delhi Government's plea challenging the constitutionality of Section 45D of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023. The petition was heard by a bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha 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. The bench posted the petition for further hearing on next Tuesday, that is, July 11, 2023.

The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated by the President on May 19, 2023 and has the effect of depriving Delhi Government of the power over "services". Section 45D of the Ordinance, which has been challenged in the petition, stipulates that, notwithstanding anything in any other law, all authorities, boards, commissions, and statutory bodies in and for NCTD shall be constituted by members appointed by the President of India. This also covers the DERC.

In its petition, the Delhi Government has argued that Section 45D of the Ordinance "hits over 50 bodies created and financed by the Government of NCTD, that together form the epicentre of Delhi’s administration, and includes the Delhi Electricity Regulatory Commission (‘DERC’)."

Stating that the provision passes control of all these bodies from the people of Delhi to the Union of India, the petition highlights that these bodies which work in sectors ranging from transportation, water, industry, women’s and children’s rights, and electricity etc. have been specifically constituted for the needs of NCTD’s electorate and are financed by the GNCTD. It adds that in effect the provision retains responsibilities over these bodies with the GNCTD, while passing the control over them to the Union. Further, it states–

"By reducing the GNCTD from an autonomous unit with a demarcated zone of authority to the status of a devolved government, the Impugned Provision rearranges governance in NCTD without any determining principle that is legitimate or adequate in a federal set-up, and is therefore manifestly arbitrary."

The petition highlights that since the popular accountability for DERC’s functioning lies with the GNCTD, the financial burden for its constitution is borne by the GNCTD, and DERC's role directly implicates and affects the people and Government of NCTD, the control too shall lie with the GNCTD. In this context, the petition underlines the scheme of DER Act and states that "responsibility and authority were both carefully designed and conferred together on the GNCTD by the scheme of the DER Act."

The petition also states that the Central Government has abused its ordinance-making power under Article 123 by "enacting anti-democratic legislations without the guardrails of popular deliberations in the House of the People and the Council of States."

Arguing that there was no urgency to issue the provision as the status quo it sought to reverse was one that had prevailed for 23 years since the enactment of the DER Act in 2000, the petition states that there was no reason for immediate action to be taken in this regard.

Further, the Central Government did not have the power under Section 84(2) of the Electricity Act to issue the impugned notification as Section 84(2) authorises only the State Government to appoint any person as the Chairperson of the State Electricity Regulatory Commission.

"The Impugned Notification is a classic exercise in legal obfuscation, carried out maliciously to rob the people of Delhi of their democratic right to govern their institutions through their elected representative, that is, the Petitioner. The LG sat on and ignored repeated recommendations of the Petitioner, undertook unauthorised actions to facilitate an illegal appointment and brazenly violated time-bound directions of this Hon’ble Court," states the petition. 

In the hearing today, Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Delhi Government, while seeking for a stay of the notification appointing former Allahabad High Court Judge Justice Umesh Kumar as the the Chairperson of the DERC, stated that the oath-taking ceremony was scheduled on Thursday. Singhvi argued that the unilateral action by the LG is against the Supreme Court's Constitution Bench judgment and also the spirit of Article 239AA of the Constitution. While the bench was inclined to stay the notification, it refrained from expressly doing so and recorded the statement that the oath taking ceremony will stand deferred. 

It is to be noted that the GNCTD has challenged the entire 2023 Ordinance brought by the Central Government to take away the powers of the GNCTD to control civil servants serving it in a separate petition.

Click here to read the order