Constitutional Bench To Hear Delhi's Challenge To Centre's Ordinace
The top court rejected the vehement submission of the Delhi government that there was no need for referring the matter to a constitution bench as it will "paralyse the whole system" during its pendency.
New Delhi: A five-judge constitution panel will now hear the Delhi government's appeal against the Centre's May 19 order, which stripped the city administration of its authority over services and sparked a new power struggle between the two institutions.
The Delhi government's impassioned argument that there was no need to submit the case to a constitution bench because doing so would "paralyze the entire system" while it was pending was rejected by the Supreme Court.
The larger bench will begin the proceedings after the hearing on the pleas challenging the repeal of Article 370, which had granted special status to the former state of Jammu and Kashmir, is over, according to a bench made up of Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra.
"After we finish the 370 (pleadings for abrogation of Article 370), we will refer it to the Constitution bench and offer you (parties - Delhi government and the Centre) the freedom to move before us for the hearing. The order will be uploaded this evening. The pleadings must be finished in the interim, the CJI stated.
The panel asked a question about the law during a brief hearing and claimed that it removed control over services from the Delhi government.
According to the document, the Delhi government is not allowed to handle three items on List II (the state list) that are related to law enforcement, public safety, and land.
The Constitution states that the Delhi Legislative Assembly has the authority, except three entries. This is what you (the Centre) have essentially done. But Entry 41 (services) (of List II) is removed from the power by the Ordinance as well.That is what Section 3A of the Ordinance does, the bench explained.
Senior attorney Harish Salve, who was representing Lieutenant Governor VK Saxena, the central government's point man, cited earlier rulings and claimed that for a union territory, the state list becomes a concurrent list, giving Parliament the authority to enact laws.
Salve defended the LG's orders to terminate the employment of 437 independent consultants that the Delhi government had hired.He claimed that the ordinance was not required at all because the Delhi government had made "rank illegal appointments" of undeserving individuals who also happened to be Aam Aadmi party members.
For the Delhi administration, senior attorney Abhishek Singhvi claimed that a three-judge bench could resolve the case without the need to submit it to a constitution bench.
The senior attorney said that because the ordinance reduced the authority of the elected administration, it violated Article 239AA of the Constitution (which deals with special laws pertaining to Delhi).
"The contested ordinance repeals the constitutional framework. And 239AA(7) is for facilitation rather than to alter the Constitution itself, according to Singhvi.
He requested an immediate hearing of the Delhi government's petition, claiming that bringing the matter to a constitution panel would bring the entire system to a standstill.
The three-judge bench may decide to refer a case to a constitution bench if it believes there are important legal issues at stake, according to Attorney General R. Venkataramani.
For the Center, Solicitor General Tushar Mehta made a presentation.
The top court had previously said that it was thinking about submitting the Delhi government's appeal against the Center's ordinance to a constitution bench for decision.
"What they (the Centre) have done is changed the Constitution to remove control of services from the Delhi government by utilizing their authority under Article 239AA(7). Is that acceptable? The CJI had stated, "I don't believe any of the Constitution Bench rulings (on the Delhi-Centre power issue) have addressed that.
The key point is that any inclusion in list 2 (state) or list 3 (concurrent) gives Parliament the authority to make a legislation.List 3 is ongoing. The state assembly cannot at all adopt laws under Entry 41 (State Public Services; State Public Service Commission), you have said by this paragraph 3A of the Ordinance," it had added.
Regarding the sections relating to the authority of the Delhi government, the bench stated that the Centre is in charge of things relating to property, public order, and police on the State list, and that the current law also removes jurisdiction over services.
It had stated that as this matter had not previously been brought before the two constitution benches for deliberation, it may be referred to a larger bench for decision-making.
While declining to grant an interim stay on the ordinance governing authority over services in Delhi, the bench recently sent letters to the Centre and the lieutenant governor regarding the argument.
According to sub-article 7 of Article 239AA, which deals with special provisions for Delhi under the Constitution, "Parliament may, by law, make provisions for giving effect to, or supplementing, the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto."
It further states that any law passed pursuant to this Article "shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution."
The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, which establishes a committee for the transfer and posting of Group-A officers in Delhi, was announced by the Center on May 19.
The Aam Aadmi Party (AAP) administration described the Supreme Court's decision regarding service control as a "deception."
The ordinance, which was passed a week after the Supreme Court gave the elected government control over all services in Delhi except for police, public order, and land, aims to establish a National Capital Civil Service Authority for the transfer of Group-A officers from the Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu, and Dadra and Nagar Haveli (Civil) Services (DANICS) cadre and the initiation of disciplinary actions against them.
One of the three members of the Authority is the chief minister, while the other two are bureaucrats.The Authority's judgments must be made by a majority vote, and in the event of a disagreement, the LG's ruling will be final.
Before the May 11 ruling by the top court, the LG exercised executive control over the transfer and posting of all Delhi government employees.
The National Capital Territory administration is different from other union territories and has been "awarded a sui generis (unique) status by the Constitution," according to a five-judge constitution bench led by Chief Justice D Y Chandrachud.
The dispute between the Center and the Delhi government dates back eight years and was started by a 2015 homeministry notification asserting its control over services.
The Supreme Court had argued that in order for the idea of collective responsibility to be upheld, an elected government must have authority over bureaucrats in light of the frequent conflicts between the AAP government and the lieutenant governor.
(Except for the headline, this story has not been edited by Updatednews staff and is published from a syndicated feed.)
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