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Delhi ordinance case sent to 5-judge bench
The Supreme Court has referred the Delhi government's challenge to the services ordinance to a Constitution bench of five judges.
The Supreme Court on Thursday referred to a Constitution bench of five judges the Delhi government’s challenge to the 2023 Government of National Capital Territory of Delhi (GNCTD) Ordinance, giving the Centre control over the state’s bureaucracy.
In the reference order, the 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 Delhi government, on its part, first opposed the move and later pressed that its plea be given priority over the Constitution bench hearings into petitions concerning the abrogation of Article 370, slated to begin August 4.
But a bench led by Chief Justice of India Dhananjaya Y Chandrachud turned down both requests, referring the petition to a larger bench and clarifying that the plea will be taken up only after the Article 370 hearings before the other bench are wrapped up. CJI Chandrachud heads both the benches.
A reference to a Constitution bench typically entails long arguments and several days of hearing. The verdict may come months later, keeping the Centre in charge of Delhi’s bureaucracy in the interregnum. On July 17, the Union government informed the court that the ordinance will be introduced in the Monsoon session of Parliament, which began on Thursday.
To be sure, the top court’s decision to have the legality of the ordinance tested by a Constitution bench has no bearing on the introduction or passage of the ordinance in Parliament as a legislation. The Delhi government will, however, need to amend its petition if the ordinance is replaced as an Act or if alterations are made to it.
The Centre’s ordinance, issued on May 19, in effect nullified a May 11 Supreme Court judgment affirming that the control of bureaucrats in Delhi must remain with the elected government in all but three spheres — land, public order, and policing.
Challenging the Centre’s move, the Delhi government filed a petition in the top court on June 30 and 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.
During the last hearing on July 17, the bench, which also comprised justices PS Narasimha and Manoj Misra, pointed out that the two judgments did not deal with a constitutional provision that the Centre has used for the first time to regain control over “services”, which it said, amounted to “virtually amending the Constitution”.
On Thursday, senior counsel Abhishek Singhvi argued against the reference, contending that the ordinance can be heard and decided by a three-judge bench since it is completely in teeth of the Constitution bench judgment in May and that it further tries to “abolish a scheme” under the Constitution that the top court has already upheld.
“Any reference to the Constitution bench takes time but here, the whole system is in paralysis. No bureaucrat is taking orders from an elected government… But if this court were to refer it anyway, my request is that it should be heard immediately. It should be heard before Article 370 cases. Let Article 370 cases be pushed,” he submitted.
Disinclined, the bench replied, “Sorry, we can’t do that. We cannot change the schedule of Article 370 cases. This will have to come up after we conclude the other matter,” it said.
The L-G and the Union government, represented through senior counsel Harish Salve and solicitor general Tushar Mehta respectively, supported the court’s tentative view that the matter should be referred to a larger bench, submitting the matter involves interpretation of constitutional provisions.
Attorney general R Venkataramani, whose assistance the court has sought, said that it is for the court to refer any matter to a Constitution bench if it is of the view that the issue is important. “There is no reason to argue whether or not a reference can be made. It is absolutely for the court to judge,” said the top law officer.
Singhvi also complained about the Delhi lieutenant governor (LG) firing 437 consultants, fellows, and advisers working in different departments of Delhi, questioning his power to do so.
Salve, however, rebutted this. He said private persons, “incidentally belonging to one political party”, a reference to the Aam Aadmi Party (AAP), were illegally appointed through a flawed process and at taxpayers’ money. “It was not done under the ordinance, but the special secretary moved the proposal,” Salve added.
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.
At one point, the bench referred to Section 3A of the ordinance, apparently inserted to overcome the effect of the May 2022 judgment of the top court and take ‘services’ out of the purview of the elected government. The provision states: “Notwithstanding anything contained in any judgement, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto.” Entry 41 of List II relates to state public services and state public service commission.
Salve, however, said that Section 3A may not be a part of the ordinance when it is introduced in Parliament. To this, the bench said that it cannot assume anything about the final form of the ordinance, adding the court will release its order on reference later.
In an affidavit filed on July 17 to defend the ordinance, the Centre maintained that “anarchy” and “administrative chaos” in the national capital led them to urgently promulgate an ordinance wresting the control over bureaucrats from the elected Delhi government.
Blaming the AAP government of acting in an “undemocratic” fashion while trying to influence ongoing investigations into several vigilance cases, allegedly involving its ministers, the affidavit said that the decision to issue an ordinance without waiting for the next Parliament session was taken in view of “the rapidly developing embarrassing situation” in Delhi, created by AAP ministers, soon after the May 11 judgment of the top court.
“The elected government remained arrogant to the official duties of the concerned officers and handled the whole affair in a highly insensitive manner. Such actions in the capital of the nation itself were not only not in conformity with the constitutional provisions, effective model governance, democratic norms but were also reflecting before the global community as immature and undemocratic acts virtually paralysing the nation’s capital resulting in anarchy,” the Centre said in its affidavit, adding these incidents brought embarrassment to India before the international community at a time when India held the presidency of the G20. It further argued that irreparable harm will be caused to the administration of Delhi if the ordinance is stayed.
