No immediate stay, SC issues notice to Delhi LG, Centre on ordinance petition

A Supreme Court bench said it would consider granting a stay on the ordinance during the next hearing on July 17

The Supreme Court on Monday set the stage for another legal battle between the Centre and the Delhi government by seeking responses of the Union government and the lieutenant governor (LG) on a petition filed by the Arvind Kejriwal government challenging an ordinance that gives the Centre control over the state bureaucracy.

The Supreme Court agreed to examine the issue next Monday, and asked the advocates for the central government and the Delhi lieutenant governor to submit their responses. (ANI)

A bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha, which allowed an additional prayer by the Delhi government to add LG VK Saxena as a respondent in the matter, said it would consider granting a stay on the ordinance during the next hearing on July 17.

Initially, when senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, insisted on a stay on the ordinance, the bench was not inclined to entertain the request without the Centre’s response. But Singhvi cited a recent instance when the LG, exercising his powers under the Ordinance, fired 400 “specialists” appointed by the Delhi government across several departments.

“Either this court should consider staying the Ordinance or this order of the LG firing independent consultants of the Delhi government has to be stayed,” the senior advocate urged the bench.

“One of the persons removed is wife of a member of legislative assembly (MLA) . It has become a norm to approach the Supreme Court on every matter. None of the dismissed persons has approached the court,” Mehta said.

Jain supplemented this by saying: “The affected persons can go to the high court. How can Article 32 power of this Court be utilised to question the removal of 400 party workers.”

Singhvi, however, said that he will be moving the application challenging the July 3 decision of the LG which came after the petition challenging the ordinance was filed on June 30 in the top court. “We are seeking a qualified stay. These persons had been working with reputed organisations. Now, their salaries have stopped by the LG order. I have approached this Court as I am their employer,” said Singhvi.

The Delhi government contended that if it were to separately challenge the LG’s order before any court, the Centre and LG would defend it by citing the ordinance. Responding to SG Mehta’s submission that an ordinance was sought to be challenged under the garb of the order firing 400 party workers, Singhvi said, “Let them make a statement that the removal is unconnected with the Ordinance. I will withdraw my application.”

To this, the court told Mehta, “You look at their (Delhi government) prayer for interim relief. We will take it up on Monday. He is pressing for stay of the ordinance. If he wants to move an application, we cannot prevent him.”

Singhvi said the Supreme Court has, in the past, exercised its powers to stay an ordinance. “If an ordinance seeks to nullify the powers of Constitution, this court has always granted stay,” Singhvi said, arguing that the ordinance introducing changes in the Government of National Capital Territory of Delhi (GNCTD) Act seeks to overturn the Supreme Court’s May 11 ruling that overturned the Centre’s 2015 notification that gave it control over all “services” in Delhi.

“The May 11 judgment talks about federalism, decentralisation, democratic governance and the triple chain of command necessary for any democratically elected government in justifying Delhi government’s control on transfer and posting of bureaucrats,” Singhvi said.

The court eventually agreed to examine the issue next Monday, and asked Mehta and Jain to submit the responses of the Centre and the LG, respectively.

The ordinance strengthened the position of the LG as the final authority in deciding matters relating to transfers and postings of bureaucrats. The ordinance introduced a new chapter — Part IVA — in the GNCTD Act to create the National Capital Civil Service Authority (NCCSA) comprising the chief minister as ex officio chairperson and the chief secretary and home secretary as its other two members. This body recommends transfers, postings and disciplinary action of civil servants posted in GNCTD’s domain to the LG, and work on a simple majority.

Terming the new body as “illegal”, Singhvi told the court: “Can you imagine a meeting where the chief minister sits with bureaucrats who can outvote him, and they will refer the matter to the LG? You may as well not have Article 239AA of the Constitution.”

In its May 11 judgment, the Supreme Court said that Article 239AA, which provides for a legislative assembly for Delhi, exempts only three entries in the state list of the Constitution — land, public order and police — from the purview of the Delhi assembly. On all other entries, the judgment held, the Delhi government will have legislative and executive control. The top court was of the view that a democratically elected government is responsible for the decisions and policies which must be implemented through the bureaucracy and hence collective responsibility is an important component of parliamentary democracy.

The petition by the Delhi government, drafted by advocates Shadan Farasat and Hrishika Jain, stated that the ordinance shows contempt for the elected government by vesting control over civil servants in the hands of the Union. By conferring wide discretionary powers on civil servants to override the government of national capital territory of Delhi (GNCTD), the ordinance “in effect and design allows the Union to take over the governance of Delhi,” it added.

According to the Centre, the ordinance “would statutorily balance the interest of the nation with the interest of Union Territory of Delhi in administration of the capital by giving purposeful meaning to the manifestation of democratic will of people reposed both in the Central Government as well as the GNCTD.” The Centre has maintained that any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum, while justifying the need to bring the ordinance.

Apart from the present proceedings, the bench headed by CJI is also hearing a separate petition filed by the Delhi government where part of the Ordinance (Section 45D) is challenged, while questioning the Centre’s June 21 decision to appoint a former Allahabad high court judge as chairperson of Delhi Electricity Regulatory Commission (DERC) bypassing the Delhi government. The matter is expected to come up on Tuesday, pending which the oath-taking ceremony of the new appointee has been put on hold.