‘Nobody cares for headless DERC, will appoint interim chief,’ says Supreme Court

Three days ago, the court told the Delhi government and LG to “rise above bickering” and get down to “serious business of governance” of the national capital

The Supreme Court on Thursday said it will appoint a temporary chairperson for the electricity regulator in the Capital, a position that has remained vacant for six months, after expressing its dismay over the Delhi’s lieutenant governor VK Saxena and chief minister Arvind Kejriwal not being able to agree on a name.

The court’s observation came against the backdrop of the regulator, the Delhi Electricity Regulatory Commission, being without a chairperson since January 10. (ANI)

The court’s observation came against the backdrop of the regulator, the Delhi Electricity Regulatory Commission, being without a chairperson since January 10, which has meant crucial decisions over determining power tariffs and electricity purchase and procurements by transmission and distribution utilities have been delayed.

“It is sad nobody cares about the institution. Individuals keep on fighting even as the institution remains headless,” said a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud. The court had on Monday, while hearing a petition by the Delhi government, sought to break the deadlock by asking Kejriwal and Saxena to sit together and agree on a common name for the post.

“Can’t you not pick up a judge?” an exasperated bench, also comprising justices PS Narasimha and Manoj Misra, said after senior advocate Abhishek Manu Singhvi appearing for the Delhi government informed them that despite best efforts and five names being discussed, the meeting failed and the stalemate continues.

Three days ago, the court told the two to “rise above bickering” and get down to “serious business of governance” of the national capital. Senior advocate Harish Salve, appearing for the LG, suggested: “I have taken instructions. We will leave it to the court. You can name someone and we shall appoint.” The court found itself faced with a difficult task, and said: “It is embarrassing for us. We cannot appoint unless both sides agree.” Coming up with a commonly agreed solution, the bench said: “We will appoint someone on an ad-hoc basis,” and posted the matter for August 4.

“This will require us to do some homework as we need to consult few chief justices and talk to retired judges who will be willing to take this assignment for a period of say two to three months.” Singhvi said the government had no objection to the court nominating someone, but requested if it could share the list of names given to LG. The court was reluctant to take that offer.

“We will take a call on our own. There will be objection if we take a name from any one side,” the bench said.

Solicitor general Tushar Mehta, appearing for the Centre, said it was unfortunate that the Delhi government does not “trust” the highest court. “You cannot put a condition that we will agree to what the court says if it is a person of our choice. It is unfortunate if we don’t trust the highest court on these matters,” SG said, adding, “We will leave it to the court to appoint.”

Before arriving at this solution, the court mooted the option of allowing the appointment of justice Umesh Kumar, the former Allahabad high court judge whose order of appointment was issued by President on June 21, to continue as chairperson subject to the final result of the petition.

This was unacceptable to the Delhi government and LG.

Singhvi said, “That will be a wrong thing to do. Have this matter heard after deciding on the validity of the ordinance.”

The petition by the Delhi government challenged justice Kumar’s appointment and Section 45D of the Government of National Capital Territory of Delhi Ordinance, 2023 as this provision gave overriding powers to Centre to appoint heads of commissions under the Delhi government.

The bench remarked, “The hearing on Ordinance will take two to three months. We are worried about the interregnum.”

Singhvi said, “Don’t do anything now. There will be more allegations and counter allegations. This requires constitutional interpretation. If we can’t agree, we can’t agree. But don’t have this ad hocism.”

Salve opposed the suggestion by Singhvi, alleging that the only attempt of the Delhi government is to adjourn and delay the matter. “Today, there is a presidential order appointing a chairperson. There is no stay operating on his appointment. Either the Court grants a stay, which is rare, or the chairperson should continue. I am not in favour of keeping this post in abeyance.”