Centre told to clarify rule under which DERC appointment done

Singhvi argued the Centre’s notification could not be issued as the Electricity Act authorises the state government to appoint chairperson of DERC

The Supreme Court on Tuesday deferred the administration of oath to the newly appointed Delhi Electricity Regulatory Commission (DERC) chairperson, justice (retired) Umesh Kumar, and sought the Union government’s response on a plea challenging an ordinance that it relied on to fix the appointment.

A bench of Chief justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha sought to know if Kumar has already taken oath when the bench assembled. (HT Archive)

The decision was seen as having given some relief to the Aam Aadmi Party (AAP)-run Delhi government, which had named a different officer to the post of the power regulator, and has challenged the National Capital Territory of Delhi (GNCTD) ordinance, 2023, which tilted the balance of power back in the favour of the central government run by the Bharatiya Janata Party (BJP).

A bench of Chief justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha sought to know if Kumar has already taken oath when the bench assembled. The Delhi government, represented by senior advocate Abhishek Manu Singhvi, said the oath-taking was scheduled to be held on Thursday.

In a dramatic turn on Monday evening, the state power minister, Atishi, cited health issues to defer Kumar’s swearing-in scheduled to be held on Tuesday. Hours later, the LG wrote to Delhi chief minister Arvind Kejriwal, saying the delay was “bizarre”. He added that the process should be completed before 10am on Tuesday -- half an hour before the top court was expected to hear the state government’s challenge to the appointment.

“In case the power minister is not able to do so, you or any other minister designated by yourself may administer oath of office and secrecy. In case of unavailability in both the aforesaid situations, chief secretary may administer oath of office and secrecy to Umesh Kumar as Chairperson, DERC,” the LG said.

The swearing-in, however, did not take place until the Supreme Court ordered it to be deferred. The Delhi government and the LG office did not respond to requests for comments on why the LG’s advice was not followed.

At the heart of the fight is a bruising battle for control of the Capital’s governance between the AAP and the BJP, which goes back to 2015. In May 11, the Supreme Court handed a significant victory to the AAP, saying that it held the prerogative on all matters except land, law and order, and police. The Union government then brought in the GNCTD Ordinance on May 19, which created a new bureaucracy mechanism, which effectively gives the bulk of the powers for key appointments to the Union government, who is represented by the lieutenant governor.

During Tuesday’s hearing, Singhvi argued the Centre’s notification appointing justice Kumar as DERC chairperson could not be issued as Section 84(2) of the Electricity Act authorises the state government to appoint chairperson of DERC.

Questioning the hurry to bring the ordinance and issue the notification, Singhvi said the intention was to block the AAP government’s popular scheme of distributing free power to residents of Delhi. “I give free power to citizens. They want a chairman of their choice to stop this,” Singhvi said.

Solicitor General (SG) Tushar Mehta, appearing for the Centre, and former additional solicitor general (ASG) Sanjay Jain, who represented LG VK Saxena, opposed the Delhi government’s petition.

Mehta said the Delhi government has delayed administering oath to justice Kumar as the Delhi power minister has either been travelling or is physically unwell. On July 3, justice Kumar had expressed his availability in Delhi and Atishi, who holds the power portfolio, agreed to administer the oath but refused at the last minute. She requested July 6 to be fixed as the next date, the SG said.

“Will this court permit such kind of approach towards a former judge. They have been playing with the judge in this manner. The petitioner has been delaying giving oath to the former judge. Why should the court be seen to give its seal of approval on it,” Mehta said.

Singhvi countered that the delay should be attributed to the Centre.

On the challenge to Section 45D of the Ordinance, Mehta added, “This petition is filed for testing the waters by challenging Section 45D. They have already challenged the entire ordinance. Do not permit such games to be played.”

According to Section 45D of the Centre’s ordinance, “Notwithstanding anything contained in any other law for the time being in force, any authority, board, commission or any statutory body, by whatever name it may be called, or any office-bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the National Capital Territory of Delhi, shall be constituted or appointed or nominated by the President.”

Singhvi, however, argued that if the Delhi government provides finances for the running of bodies such as DERC, its power to run them cannot be taken away by an ordinance.