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Supreme Court refers Delhi

ordinance case to Constitution
Bench
Reference coincides with a new Parliament session where the ordinance will
be introduced; SC refuses hearing before Article 370 case; Delhi carrying out
witch hunt against bureaucrats, says Home Ministry

July 20, 2023 05:49 pm | Updated 06:50 pm IST - NEW DELHI

KRISHNADAS RAJAGOPAL

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The three-judge Bench headed by Chief Justice Chandrachud, however, did not accede to a request by the
Delhi government to take up this case before another Constitution Bench hearing, slated for August 2, on the
abrogation of Article 370 in Jammu and Kashmir. | Photo Credit: S. Subramanium
The Supreme Court on July 20 referred the Delhi Government’s challenge against a
Central ordinance — which effectively returns power over the civil services in the
national capital to the Lieutenant Governor — to a Constitution Bench.
The reference to a Constitution Bench coincided with the opening of the monsoon
session of the Parliament. On July 17, the Centre had urged the court to hold its hand, as
the ordinance — National Capital Territory of Delhi (Amendment) Ordinance, 2023 —
would be introduced in the Parliament during the monsoon session.
“We will refer this to the Constitution Bench. We will upload our order in the evening,”
Chief Justice Chandrachud addressed the lawyers.
Also Read | Congress won’t support in Parliament Centre’s ordinance on control
of services in Delhi: Gen Sec Venugopal

Not before Article 370 case

The three-judge Bench headed by Chief Justice Chandrachud, however, did not accede
to a request by the Delhi Government to take up this case before another Constitution
Bench hearing, slated for August 2, on the abrogation of Article 370 in Jammu and
Kashmir.
Senior advocate A.M. Singhvi, who represented the Delhi government along with
Shadan Farasat, reasoned that the whole system of governance in the national capital
was in a state of paralysis. “No bureaucrat is taking order and 437 consultants to the
Legislative Assembly have been fired by the Lieutenant Governor (L-G)… We have to
request this case to be taken up before the Article 370 one,” Mr. Singhvi urged the court.
The Chief Justice, however, said it was too late to make any changes. The Article 370
case was already scheduled for August 2 and preparations and study for the hearing
were already underway.
Senior advocate Harish Salve, appearing for the L-G, said that the 437 consultants were
“rank illegal appointments”. He countered, “They somehow happened to be party
workers.” Mr. Salve agreed with the court’s decision to refer the case to a five-judge
Bench.
Constitutional amendment via ordinance
On July 17, the CJI said a cardinal issue to be decided by the Constitution Bench would
be whether the promulgation of the ordinance amounted to an amendment of the
Constitution via the ordinance route. The Delhi Government has argued that the
ordinance wrested away its control over civil servants without actually amending
Article 239AA, which holds that the power and control over service should be vested in
the elected government.
Secondly, the CJI had orally observed that the effective transfer of power over the civil
services amounted to nullifying Entry 41 of the State List of the Constitution, which
deals with the State’s power over the “State public services and the State Public Service
Commission”. The Supreme Court asked whether the impact of the ordinance was that
the “State legislature cannot enact a law under Entry 41 at all?”
A May 11 judgment of a Constitution Bench led by Chief Justice Chandrachud had
limited the power of the Lieutenant Governor — considered an arm of the Central
government — over bureaucrats in the capital to three specific areas: public order,
police, and land. The Central government then promulgated the ordinance within eight
days of the court’s verdict, which had upheld the Delhi government’s authority to make
laws and administer civil services in the national capital.
‘Parliament has overriding powers’
In a 33-page counter-affidavit to the Delhi government’s challenge, the Ministry of
Home Affairs had contended that “the Parliament is competent and has overriding
powers to make laws even on subjects regarding which the Legislative Assembly of
Delhi would be competent to enact laws”.
The MHA had accused Chief Minister Arvind Kejriwal and his Ministers of going on a
“rampage” immediately after the May 11 verdict. “The Lieutenant Governor had specially
informed the Chief Minister that the judgment of the Supreme Court was sacrosanct
for him… Despite this, the Chief Minister and other Ministers, in a dramatic and
convoluted fashion, immediately went on a rampage by issuing orders and posting
them on social media, which are in gross disregard to the rules and procedure already in
place,” the Home Ministry had recounted.
‘Witch hunt’
The Centre had accused Delhi Ministers of starting a “witch hunt” against officers. The
MHA said that the Vigilance Department was specifically targetted as it contained
“extremely sensitive” files on several cases, including the investigation into the excise
policy scam, the construction of a new Chief Minister’s bungalow, public exchequer
expenditure on advertisements, material on the creation of a ‘Feedback Unit’ to gather
political intelligence, and power subsidies given to private companies. The Centre said
that officers were harassed and made subject to media trials and threats.
The Home Ministry had said that the actions of the Delhi government led to the
“nation cutting a very sorry figure globally since social media and electronic media had
global reach and everyone kept themselves informed about the happenings in the
capital”.

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