Delhi Govt Vs LG : Supreme Court Issues Notice To Centre On Delhi Govt's Plea Challenging Services Ordinance; To Consider Plea For Stay On July 17

The Supreme Court on Monday issued notice to the Union Government on a writ petition filed by the Delhi Government challenging Centre's ordinance taking away the powers of Government of National Capital Territory of Delhi (GNCTD) from 'services'.

The bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha posted the matter next Monday for considering the prayer for interim reliefs.

Senior Advocate Dr.Abhishek Manu Singhvi, appearing for the Delhi Government, sought for interim stay of the provisions. Highlighting that the Supreme Court's Constitution Bench judgment underlined the importance of "triple chain of accountability" in governance, Singhvi referred to provisions such as Section 45K of the Ordinance, saying that they are giving overriding powers to the Lieutenant Governor. He argued that the Ordinance was contrary to the pillars of the Supreme Court judgment.

The bench was initially reluctant to consider the plea to stay the Ordinance, saying that Court cannot stay a statute. "It is an Ordinance. We have to hear the matter", CJI said.

Singhvi however attempted to persuade the bench by saying that there are some instances of Court staying legislations. He said that the Ordinance has reduced the role of the elected government and the Chief Minister. In this context, he referred to a recent decision taken by the LG to fire several consultants appointed by the Government. Solicitor General of India Tushar Mehta pointed out that the affected parties have not chosen to challenge the dismissal. In response, Singhvi said that the decision was taken in exercise of the powers under the Ordinance.

The bench agreed to consider the plea for interim reliefs next week. Senior Advocate Sanjay Jain pointed out that the LG has not been made a party in the writ petition. The bench gave liberty to the petitioner to amend the petition to implead the LG as a party.

Background

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.

It may be noted that in a separate plea, the GNCTD has also challenged the constitutionality of Section 45D of the Ordinance.