SC allows Delhi government to amend its petition to challenge the new sevices law

The Delhi services ordinance, promulgated on May 19, was replaced by a bill which was passed by Parliament on August 8

The Supreme Court on Friday permitted the Delhi government to amend its petition filed earlier this year to challenge the Delhi services ordinance that gave the Union government control of the national capital’s bureaucratic set-up.

The Union govt issued the ordinance restoring to itself the power over ‘services’ by major amendments in GNCTD Act, 1991. (HT file photo)

Chief Justice of India (CJI) Dhananjaya Y Chandrachud took note of the submissions made by the Delhi government that the petition filed on June 30 would require to be modified since the services ordinance has now been replaced by the GNCTD (Amendment) Act, 2023.

Senior counsel Abhishek Manu Singhvi, assisted by advocate Shadan Farasat, mentioned the plea before the CJI. Solicitor general Tushar Mehta, representing the Centre said they have no objection to the plea for the amendment.

At this, the CJI passed a brief order, allowing the Delhi government to amend its petition so as to enable it to challenge the pertinent clauses in the new law.

A week after a Supreme Court Constitution bench ruled that the Delhi government has control over bureaucrats assigned to departments under its purview, the Union government, on May 19, issued the ordinance restoring to itself the power over ‘services’ by way of making a raft of major amendments in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991. The ordinance also strengthened the position of the Lieutenant Governor, making him the final authority who can act in his “sole discretion” in deciding the matters relating to transfer and posting of bureaucrats.

In a move perceived as nullifying the constitution bench judgment on May 11, the Centre introduced a whole new chapter in the GNCTD Act, Part IVA, to create a National Capital Civil Service Authority (NCCSA) and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government. Delhi, so far, did not have a service commission of its own.

All transfers and postings of officers, as per the new law, has to be done by NCCSA, which is chaired by chief minister Arvind Kejriwal and has two senior Delhi government bureaucrats as members; the authority takes decisions by majority, but the final decision will rest with the lieutenant governor (L-G).

In its May 11 judgment, the five-judge bench led by CJI Chandrachud had held that “a constitutionally entrenched and democratically elected government needs to have control over its administration,”.

The ordinance was challenged before the top court by the Delhi government on June 30, complaining it allows the Union government to take over the governance of the Capital while eroding not only the premise of democratic governance but also the regional will of Delhi’s electorate. The AAP government also demanded a stay on the ordinance, arguing that it was issued with the purpose of negating the two Constitution bench decisions of May 11 and July 2018, both of which were in favour of the elected government.

On July 20, the legal challenge to the ordinance was referred to a Constitution bench of five judges. In the reference order, the apex court noted that the power of Parliament to enact a law granting the Centre executive power over services is not in contention. “However, this court while deciding the constitutional validity of the 2023 Ordinance must decide if the exercise of such a power is valid,” said the order.

The bench in the reference order alluded to Article 239-AA(7) which was resorted to by the Centre in taking away “services” from the elected government, but the previous two Constitution bench judgments had no occasion to deal with it.

Article 239-AA (7) empowers Parliament to make laws for giving effect to or supplementing the provisions contained in Article 239AA — the provision that guides the administration of Delhi.

“The disposal of the writ petition requires this court to answer a substantial question of law as to the interpretation of the Constitution,” held the bench, as it framed two issues in its reference order: First, what are the contours of the power of Parliament to enact a law under Article 239-AA (7); and second, whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for Delhi.

As reported by HT on July 31, the bill replacing the ordinance contained at least three crucial changes, including the removing of a crucial section that was apparently meant to undo the effect of a Supreme Court ruling in May, 2023, that had tilted the balance of power in favour of the elected Delhi government.

The bill also proposed to change the manner in which tribunals’ heads are to be appointed in the national capital --- assigning some prerogatives to the lieutenant governor now, as opposed to the Ordinance’s approach of the final signatory being the President of India.

Appointments in all boards, commissions, and statutory bodies established under Acts passed by Parliament will be done by the central government while the proposals for appointments in boards, commissions, and statutory bodies established by Acts passed by the Delhi assembly will have to be routed through the NCCSA.

The bill also removed the requirement of NCCSA furnishing an annual report on its functioning to the Centre and the Delhi government, which was a requirement under the ordinance.

The control of bureaucrats has been at the core of the Centre and Delhi government’s battles in courts as well as outside since 2015 when AAP stormed to power. The May 11 Supreme Court judgement placed the control of services in the hands of the elected government. On May 19, the ordinance by the Union government snatched back control.