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Rise above political bickering, give name for DERC chairperson: SC to Delhi CM, L-G
The appointment of Justice Kumar as the DERC chairperson has become yet another flashpoint in the turf war between the city’s AAP government and the Centre
The Supreme Court on Monday asked Delhi chief minister Arvind Kejriwal and Lieutenant Governor (L-G) VK Saxena to sit together and agree on a common name for appointment as chairperson of the Delhi Electricity Regulatory Commission (DERC) stating that there cannot be any “bickering between constitutional authorities tasked with running the affairs of Delhi”.
A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud was hearing a petition filed by the Delhi government challenging the Centre’s decision to appoint a former Allahabad high court judge, justice Umesh Kumar as DERC chairperson on June 21 exercising its powers under the Ordinance promulgated by the Centre.
The Court had previously on July 4 issued notice on the petition asking the Delhi government to defer the oath-taking ceremony of Kumar as the DERC chairperson and sought responses from the Centre and the office of the L-G on a plea challenging the law governing such an appointment.
The chairperson’s post of the key regulatory commission that oversees the electricity sector of the national Capital and fixes the power tariffs, has been vacant since January 9.
As the Ordinance itself is under challenge in a separate petition filed by the Delhi government and the new chairperson is yet to take oath, the bench, also comprising justices PS Narasimha and Manoj Misra said, “Does everything have to be run through the modality of the Supreme Court. Can the two constitutional authorities – both the LG and the chief minister not sit down and recommend a common name?”
The best of legal minds appeared on both sides with senior advocate Harish Salve appearing for the L-G who readily accepted the Court’s proposal and the Delhi government represented by senior advocate Abhishek Manu Singhvi who was apprehensive of a favourable outcome. For the Centre, solicitor general Tushar Mehta was present along with attorney general R Venkatramani who appeared at the request of the Court.
“These are two constitutional authorities. You have to allow the affairs of the Delhi government to function. There cannot be any bickering on this. Let them sit and decide,” the bench said, as it asked the two sides to sit together and come back with a name by Thursday.
“If it was a law where the CJI had to decide on the appointment, I would do so in 15 minutes. Why don’t you sit down and decide? Some so many retired judges will be willing. We have no problem so long as we have an objective chairperson of DERC,” said CJI Chandrachud.
Incidentally, the other petition filed by the Delhi government challenging the Ordinance was also posted that day on the issue of referring the matter to the Constitution bench.
Singhvi told the Court that he will approach the L-G within a day as the DERC has been headless since January and crucial decisions on power tariffs for citizens of Delhi are being held up.
“There is a popular scheme on a tariff which must be fixed. It is getting delayed and staggered. The political executive in Delhi cannot project its policy as good bad or neutral,” Singhvi said.
However, expressing hope, he said, “I don’t have a problem if they miraculously agree. It might be a fair suggestion but in the present context, I do not think it is realistic.”
The Delhi government’s response met with stiff criticism from L-G’s lawyer. Salve said that constitutional authorities have to do their job and it is upsetting to hear such a statement from the Delhi government. “I am upset that the Delhi government says I have no hope. Such kind of statements get people’s back up.”
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Salve continued that there are no winners or losers as one should aim to go ahead in these matters. Singhvi objected saying that the Constitution bench decision of May 11 had decided a clear winner by ruling in favour of Delhi government in matters of exercising legislative and executive control over officers serving in Delhi government departments.
However, this is not applicable due to Section 45B of the Ordinance which takes away the power from the Delhi government to appoint members and heads of commissions and bodies under the Delhi government, Singhvi said.
The Court told the two authorities, “There is so much work the government can do away from the glare of publicity.”
Salve said that constitutional authorities should get to the traditional mode of communication with each other rather than resort to statements on social media.
“We do not want to step into this. We want you to step in and make things work,” the bench said, adding, “We are not so much concerned about DERC but we are on the larger issue. This is the message we want to send.”
Solicitor general Tushar Mehta informed the Court that the Ordinance is likely to be introduced as a Bill in the coming session of Parliament.
He said that once the process goes through Parliament, it is not known whether the provision Section 45B of the Ordinance which is under challenge in the present proceedings will remain in the same form or undergo changes. He requested the Court to consider awaiting the outcome.
The Delhi government told the Court that the Centre cannot act on the Ordinance. An application seeking a stay on the Ordinance was also filed by it in the current proceedings.
The bench agreed to take up the matter on Thursday and asked the LG and Delhi government that in the event they agree on a name, they may even seek the consent of the chief justice of the parent high court to which the retired judge belongs.
