Supreme Court names Delhi high court ex-judge as pro-tem DERC chief

The top court’s choice was welcomed by both sides. Jain, who represented the LG, said justice Nath has vast experience of handling electricity matters.

The Supreme Court on Friday nominated a former Delhi high court judge as the pro-tem chairperson of the Delhi Electricity Regulatory Commission (DERC) after it failed to get the chief minister and lieutenant governor to agree on a common name for the post which has been lying vacant since January.

The decision was taken by a three-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud. (HT PHOTO)

Justice Jayant Nath, who retired from Delhi high court on November 9, 2021, will serve as DERC chairperson till the top court decides on the validity of a central ordinance on services which was challenged by the Delhi government and stands referred to a Constitution bench.

The decision was taken by a three-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud after senior advocates Abhishek Manu Singhvi and Sanjay Jain, appearing for the Delhi government and lieutenant governor (LG) Vinai Kumar Saxena respectively, jointly requested the court to propose a name.

The bench, also comprising justices JB Pardiwala and Manoj Misra, asked chief minister Arvind Kejriwal and LG Saxena to notify the honorarium to be paid in consultation with the judge.

The top court’s choice was welcomed by both sides. Jain, who represented the LG, told the court that justice Nath has vast experience of handling electricity matters. Singhvi, too, complimented the bench. “It is a very appropriate choice,” Singhvi said recalling how the former judge prior to his elevation on the bench, effectively handled cases for electricity distribution companies.

In a lighter vein, the CJI remarked, “I hope the CM and L-G agree to it.”

On July 20, when the matter was last heard, the top court expressed anguish over the lack of consensus between the two sides to propose a name for job. It was then that the court decided to undertake its own enquiry, and posted the matter for August 4 to suggest a former judge of its choice.

Explaining how it zeroed in on the name of justice Nath, the bench said, “He is a very dispassionate judge and we thought he will be above all controversy.”

During earlier hearings in the matter, the court asked both the constitutional authorities to rise above political bickering and get down to serious business of governance concerning the Capital. Despite the court’s advice,however, the LG and CM failed to agree on a name. “It is sad nobody cares about the institution. Individuals keep on fighting even as the institution remains headless,” the court then lamented.

In January, the post of DERC chairperson fell vacant, and following this, the Delhi government proposed the name of a retired Madhya Pradesh high court judge, justice (retd) Rajeev Kumar Srivastava, for the post. But the recommendation was kept pending with the LG. The Delhi government filed a petition in the top court against the delay by the LG, who insisted that the appointment required consultation with the Delhi high court chief justice. The Aam Aadmi Party (AAP) government cited past practice to suggest that the chief justice of the parent high court to which the appointing judge belongs alone needs to be consulted. In May, the top court directed the LG to proceed with the appointment of justice Srivastava.

However, when the appointment remained in limbo, justice Srivastava withdrew his consent citing personal reasons. By the time the Delhi government sent another recommendation to appoint a retired Rajasthan high court judge on June 21, on the same day by a Presidential order, justice (retd) Umesh Kumar, a former judge of the Allahabad high court, was appointed to the post under Section 45D of the Government of National Capital Territory of Delhi (GNCTD) Ordinance, 2023, introduced by the Centre on May 18.

The Delhi government challenged the appointment in the top court, and in its petition linked the Centre’s haste to issue the notification with the intention to block the AAP government’s popular scheme of providing free power to residents up to a certain usage limit. Under Section 11 and 12 of the Delhi Electricity Reform Act, 2000, DERC is empowered to determine the electricity tariff in the Capital, and the terms and conditions governing the payment of compensation to companies affected by power subsidies.