Supreme Court Refers To Constitution Bench Delhi Govt's Plea Challenging Centre's Services Ordinance

The Supreme Court on Thursday referred to a 5-judge Constitution Bench the petition filed by the Delhi Government challenging the recent Ordinance promulgated by the Centre to take away "services" from the control of the Government of National Capital Territory of Delhi.

A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra passed the order.

Senior Advocate Dr.Abhishek Manu Singhvi, appearing for the Government of National Capital Territory of Delhi (GNCTD), argued that a reference is not necessary as the issue can be decided by a 3-judge bench. He contended that the Ordinance was against the provisions of Article 239AA as it dilutes the powers of the elected government. "The impugned ordinance abolishes the constitutional scheme...Art 239AA(7) - it is not meant to change the constitution itself, it is for facilitation", he submitted.

"Any reference to constitution bench will cause the whole system to be in paralysis because of the time it takes. It's a very short point", he urged. If at all the matter is to be referred, Singhvi requested that it be given priority hearing, ahead of the Constitution Bench hearing in the Article 370 cases, as the issue involved is a "short point". 

However, the bench made it clear that it cannot change the schedule of Article 370 hearing.

Attorney General for India R Venkataramani submitted that it is the prerogative of the 3-judge bench to make a larger bench reference if it feels that substantial questions of law are involved.

Senior Advocate Harish Salve, appearing for the Delhi LG, submitted that the Delhi Government had made illegal appointments which were terminated by the LG. "These were rank illegal appointments. LG did not terminate them under the ordinance. These people were party workers and the procedure to hire it was flawed", he submitted.

At this point, CJI raised a query regarding the Ordinance. He pointed out that the effect of the Ordinance was that "services" was also taken away from the control of the Delhi Government, though the Constitution only bars three entries relating to police, law & order and land.

"What you have effectively done is that the Constitution says barring three entries, Delhi assembly has power. But the Ordinance takes away Entry 41 also from the power. That is the effect of Section 3A", CJI observed.  Ultimately, the bench decided to refer the matter to the Constitution Bench. Singhvi requested that the matter be heard at the earliest as soon as the Article 370 matter is over.

On July 17, the Supreme Court had indicated that it was contemplating to refer the matter to a Constitution Bench. The court had observed that the issue whether the the powers under Article 239AA(7)(a) of the Constitution could be invoked to make the law of the present nature was not considered in either of the Constitution Bench judgments of 2018 and 2023 in the GNCTD vs Union of India cases. However, Senior Advocate Dr. Abhishek Manu Singhvi had opposed the reference and sought for an opportunity to argue against referring the matter to a Constitution Bench. Solicitor General of India Tushar Mehta had urged the bench to defer the hearing in view of the fact that the Ordinance was going to be presented as a bill before the Lok Sabha in the monsoon session starting on July 20.

Ultimately, the bench had posted the matter for today (July 20) to hear preliminary arguments regarding the need for reference.

Background

Case Title : Government of National Capital Territory of Delhi vs Union of India Writ Petition (C) No. 678 of 2023