Supreme Court refers Delhi ordinance matter to constitution bench

A three-judge bench headed by Chief Justice Chandrachud, however, did not accede to Delhi government’s request to take up the matter before the second constitution bench hearing on abrogation of Article 370 in Jammu and Kashmir scheduled for August 2. , photo credit: s. subramaniam

Supreme Court refers to Delhi government’s challenge on July 20 central ordinance – which effectively returns the power of civil services in the national capital to the Lieutenant Governor – a constitution bench.

The reference to the constitution bench coincided with the opening of the monsoon session of Parliament. On July 17, the Center had urged the court to hold its hand as the ordinance – the National Capital Territory of Delhi (Amendment) Ordinance, 2023 – would be tabled in Parliament during the monsoon session.

“We will send it to the constitution bench. We will upload our order in the evening,” Chief Justice Chandrachud addressed the lawyers.

Read this also | Congress will not support the Centre’s ordinance on regulation of services in Delhi in Parliament: General Secretary Venugopal

not before the article 370 case

A three-judge bench headed by Chief Justice Chandrachud, however, did not accede to Delhi government’s request to take up the matter before the second constitution bench hearing on abrogation of Article 370 in Jammu and Kashmir on August 2. .

Senior advocate AM Singhvi, representing the Delhi government along with Shadan Farasat, argued that the entire system of governance in the national capital was in a dysfunctional state. Mr Singhvi urged the court, “No bureaucrat is taking orders and 437 advisors of the Legislative Assembly have been fired by the Lieutenant Governor (LG)… We have to request to take up this matter before Article 370.”

However, the Chief Justice said it was too late to make any changes. The date of August 2 was already fixed on the Article 370 matter and preparations and studies for the hearing were already underway.

Senior advocate Harish Salve, appearing for the LG, said the appointments of 437 advisors were “illegal appointments”. He retorted, “He somehow became a party worker.” Mr. Salve agreed with the court’s decision to refer the matter to a five-judge bench.

Constitutional Amendment through Ordinance

On 17 July, the CJI said that the main issue to be decided by the constitution bench would be whether the promulgation of an ordinance amounts to an amendment of the constitution through the ordinance route. The Delhi government has argued that the ordinance has actually taken away its control over civil servants without amending Article 239AA, which stipulates that the power and control over the service should be vested in the elected government.

Secondly, the CJI had orally stated that the effective devolution of power over the civil services amounts to abrogation of Entry 41 of the State List of the Constitution, which deals with the State’s power over “State Public Services and State Public Service Commissions”. The Supreme Court asked whether the effect of the Ordinance would be that “the State Legislature cannot make laws at all under Entry 41?”

A May 11 verdict by a constitution bench headed by Chief Justice Chandrachud 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 promulgated the ordinance within eight days of the court’s verdict, which upheld the Delhi government’s right to make laws and administer civil services in the national capital.

‘Parliament has paramount powers’

In a 33-page counter-affidavit on the Delhi government’s challenge, the home ministry had argued that “Parliament is competent and has wide powers to legislate even on subjects with respect to which the Legislative Assembly of Delhi would be competent to legislate”. ” ,

The Home Ministry had accused Chief Minister Arvind Kejriwal and his ministers of “high-handedness” soon after the May 11 verdict. “The Lieutenant Governor had specifically informed the Chief Minister that the Supreme Court judgment was sacrosanct to him… Despite this, the Chief Minister and other ministers, in a dramatic and complex fashion, immediately started a ruckus by issuing orders and posting them.” on social media, which is in blatant disregard of the rules and procedure already in place,” the Ministry of Home Affairs had said.

‘witch hunt’

The Center had accused Delhi ministers of launching a “witch hunt” against officials. The home ministry said the vigilance department was specifically targeted as it had “extremely sensitive” files on a number of cases, including investigations into the excise duty policy scam, construction of the new chief minister’s bungalow, exchequer expenditure on advertisements, material on construction Establishment of a ‘Feedback Unit’ to collect political intelligence and power subsidies given to private companies. The Center said the officials were harassed and subjected to media trials and threats.

The Home Ministry had said that due to the actions of the Delhi government “the country had to face a very regrettable statistic globally as social media and electronic media had a global reach and everyone kept themselves informed about the happenings in the capital”.