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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 on Friday allowed an application moved by the Delhi government seeking to amend its petition challenging the ordinance introduced by the Union in May this year "wresting" control over civil servants from the Delhi government to the Lieutenant Governor.
An application was moved seeking amendment as the ordinance was recently passed by the Parliament and received President Droupadi Murmu’s assent on August 12, 2023.
Senior Advocate AM Singhvi, appearing for the AAP government, told CJI Chandrachud led bench that as the impugned ordinance had become Government of National Capital Territory of Delhi (Amendment) Act, 2023, amendment may be allowed to their petition.
SG Tushar Mehta expressed that Union of India had no objections to the same.
"We allow the application to amend the petition. Union of India has 4 weeks to file a new counter, if any, to the amended petition", ordered a bench also comprising Justices Pardiwala and Manoj Misra.
On July 20, the Supreme Court had referred the challenge made by the Delhi government to the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 to a Constitution bench.
Earlier, 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.
The Supreme Court had also 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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