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The AAP government has claimed that the Ordinance is an unconstitutional exercise of executive fiat, which violated the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA. It has also contended that the Ordinance legislatively overruled a Constitution Bench judgement of the Supreme Court passed on May 11, 2023.
The Supreme Court has referred the challenge made by the Delhi government to the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 to a Constitution bench.
Allegedly, the ordinance "wrests" control over civil servants from the Delhi government to the Lieutenant Governor.
Today, Senior Advocate AM Singhvi, appearing for the Kejriwal led government, told the bench comprising CJI DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra that any reference to the Constitution bench would paralyze the system.
He added that the impugned ordinance did not meet the bare textual requirement.
On the other hand, Attorney General R Venkataramani, appearing for UoI, submitted that after the judgment of TMA Pai Foundation vs State of Karnataka, a reference to a constitutional bench could be made if the Court deemed it so.
On Monday, the Supreme Court had expressed its inclination to refer the Delhi Governemnt's plea to a 5-judge Constitution bench. Senior Advocate Singhvi had objected to this and said, "Let me show why this should not be referred to a constitution bench. Let me give a one pager on Thursday, it will just take ten minutes..".
The CJI led bench had further observed then, that the issue whether the powers under Article 239AA(7)(a) of the Constitution could be invoked to make the law of the instant nature was not considered in its recent Constitution Bench judgment.
Notably, the Centre recently informed the Supreme Court that the impugned Ordinance, which is yet to be tested in the Parliament, if stayed, would cause an irreparable harm to the administration of GNCTD.
Last week, the Supreme Court had refused to grant interim stay on the Ordinance which "wrested" control over civil servants serving in the Government of NCT of Delhi from the Delhi government and "vested it to the unelected Lieutenant Governor".
The Delhi government has claimed that the Ordinance shows contempt for elected assembly and elected government while making a pretense of their involvement through the Chief Minister.
On May 11, a five-judge constitution bench of the Supreme Court held that it is ideal to hold that a democratically elected Delhi government should have control over its officers and the LG is bound by the advice of the elected government, except in matters of public order, police, and land. It had also said that if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.
Case Title: GNCTD vs. UoI
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