17 July 2023 9:24 AM GMT
The Supreme Court on Monday indicated that it is contemplating a reference to a Constitution Bench in the petition filed by the Delhi Government challenging the recent Ordinance promulgated by the Centre to take away "services" from the control of the Government of National Capital Territory of Delhi.A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice...
The Supreme Court on Monday indicated that it is contemplating a reference to a Constitution Bench in the petition filed by the Delhi Government challenging the recent Ordinance promulgated by the Centre to take away "services" from the control of the Government of National Capital Territory of Delhi.
A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra observed that the issue whether the the powers under Article 239AA(7)(a) of the Constitution could be invoked to make the law of the present nature was not considered in either of the Constitution Bench judgments of 2018 and 2023 in the GNCTD vs Union of India cases.
"What they've done is that by using power under 239AA(7), they've amended the Constitution to take services out of Delhi government control. Is that permissible? I don't think either of the Constitution Bench judgements has covered that", CJI said.
"The point is this- Parliament has power to enact law under any entry in list 2 or list 3. List 3 is concurrent. You have said by this clause 3A of the ordinance that the state legislature cannot enact law under Entry 41 at all", CJI observed.
Senior Advocate Dr.Abhishek Manu Singhvi, appearing for the Delhi Government, submitted that he is opposed to the reference and sought for an opportunity to argue against referring the matter to a Constitution Bench.
Senior Advocate Harish Salve, appearing for the Delhi Lieutenant Governor, submitted that the issue was regarding the competence of the Parliament to make the present law under Article 239AA(7)(a) and since it was not an issue considered by the earlier Constitution Bench judgments, a reference was necessary. Salve also said that Section 3A might get omitted in the Bill which will be tabled to replace the Ordinance.
Solicitor General of India Tushar Mehta, pointed out that as per Article 239AA(7)(b), a law made by the Parliament in terms of Article 239AA(7)(b) is not deemed as an amendment to the Constitution.
Earlier, as soon as the matter was taken, the SG urged the bench to defer the hearing in view of the fact that the Ordinance is going to be presented as a bill before the Lok Sabha in the monsoon session starting on July 20. "It is possible that the Ordinance may be passed in a different form after the Parliamentary process", the SG said requesting the bench to defer the hearing to await the legislative outcome. "Since no prejudicial act is being taken on the basis of the Ordinance now, you may consider awaiting the legislative decision", SG said.
The bench posted the matter to Thursday (July 20) to hear preliminary arguments regarding the need for reference.
The writ petition filed by the Delhi Government challenges the Government of National Capital Territory (Amendment) Ordinance 2023, which was promulgated by the President on May 19. The Ordinance has the effect of depriving Delhi Government of the power over "services".
The petition points out that the Ordinance was brought out a week after a Constitution Bench of the Supreme Court pronounced that the Delhi Government has power over Entry 41 of List II (services). It is argued that through the Ordinance, the Central Government has in effect overturned the Supreme Court's verdict.
The Ordinance is challenged as violating the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA of the Constitution. It is further argued that the Ordinance negates the principle of federalism and the primacy of the elected government.
"The principle of collective responsibility in a democracy - incorporated in Article 239AA(6) - requires that the elected government be vested with control over officials posted in its domain. In the federal context, this would require that such control be vested in the regional government – i.e. the GNCTD under Article 239AA – for matters in its domain. This essential feature was secured for the GNCTD by this Hon’ble Court’s 2023 Constitution Bench judgment, and is now sought to be undone by the Impugned Ordinance", states the petition filed through Adovcate-on-Record Shadan Farasat.
The Delhi Government states that it is a settled law that it is impermissible for the legislature to simply overrule a decision. The Ordinance has the effect of overruling the Supreme Court judgment without taking away its legal basis.
"The Impugned Ordinance attempts to reverse this Hon’ble Court’s ruling on each of these two aspects by simply amending the GNCTD Act, without amending the ruling’s basis, i.e. the Constitution itself. In so far as the Impugned Ordinance reverses this Hon’ble Court’s decision, it amounts to an impermissible ‘direct overruling’ or ‘review’ and is liable to be struck down", the petition states.
The Ordinance envisages that a committee comprising the Chief Minister and two senior bureaucrats will make recommendations to the Lieutenant Governor regarding transfer and postings of civil servants; however, the LG will have 'sole discretion' in taking a decision.