27 Sep 2023 6:47 AM GMT
The Delhi Government on Wednesday (September 27) requested the Supreme Court to urgently list the petition filed by it challenging the Government of NCT Delhi (Amendment) Act, 2023 which gives overriding powers to the Delhi Lieutenant Governor over the control of civil servants.
Upon an oral mentioning by Senior Advocate Dr Abhishek Manu Singhvi on behalf of the GNCTD, Chief Justice of India DY Chandrachud cited difficulties in hearing the matter soon, as two 7-judge bench hearings are scheduled to happen in the coming weeks. Without giving any specific date, the CJI said that he will have a look at the matter.
It may be noted that the Delhi Government's initial challenge was to the Ordinance which was promulgated by the President on May 19, 2023. Earlier, a three-judge bench of the Supreme Court comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice Manoj Misra had referred the matter to a 5-judge Constitution Bench. Singhvi had made an earlier request for urgent hearing, but the CJI did not entertain the request citing the predetermined scheduled for the Article 370 case.
On August 12, 2023, the President gave her assent to the bill, which was passed by the Parliament to replace the Ordinance. The Act came into force retrospectively from May 19, the day when Ordinance was promulgated.
Today, Singhvi underlined the urgency of the matter, stating– "I can't express the agony of the administration. The civil servants are not following orders."
However, the CJI mentioned difficulty in listing the matter sooner and said–
"There are older Constitution Bench matters we are listing and two seven judge bench matters are coming up...all those are also important and they've been pending for years. But let me have a look at this."
It may be noted that a seven-judge bench of the Supreme Court will be hearing two matters starting October 4, 2023. The first matter pertains to the issue whether MPs/MLAs taking bribe for votes have immunity from criminal law and; the second matter pertains the issue whether that unstamped/insufficiently stamped arbitration agreements are unenforceable.
Singhvi insisted that his matter be accommodated and said– "Your lordships can fit me in between any Constitution Bench."
At this juncture, Sanjay Jain, appearing for the Delhi LG, stated that the questions framed initially required to be changed.
The CJI then said–
"Mr Singhvi, you and Mr Jain can sit over a cup of coffee and decide the issues. We'll ask for the common compilation to be prepared. Prepare your submissions in 4 weeks and then we'll say liberty to mention...Let the matter be ripe. I will bear this in mind."
On July 17, the Supreme Court had indicated that it was contemplating to refer the matter to a Constitution Bench. The court had 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. However, Senior Advocate Dr. Abhishek Manu Singhvi had opposed the reference and sought for an opportunity to argue against referring the matter to a Constitution Bench. Solicitor General of India Tushar Mehta had urged the bench to defer the hearing in view of the fact that the Ordinance was going to be presented as a bill before the Lok Sabha in the monsoon session starting on July 20.
Ultimately, the bench had referred the matter to a Constitution Bench.
Background
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 then became an Act on August 12 and the same has the effect of depriving Delhi Government of the power over "services".
The petition points out that the Ordinance (now Act) 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 same, the Central Government has in effect overturned the Supreme Court's verdict.
The Act 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 it 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 Central Government, in its affidavit filed before the Apex Court, had stated that the ordinance (now Act) was passed to due to "harassment and humiliation" faced by officials and bureaucrats at the hands of the Delhi Government and the turmoil that ensued. Delhi being the national capital, the Centre had to step in to control the situation and to save the country’s image, the affidavit states.
“The national capital belongs to the entire nation and the entire nation is virtually interested in the governance of the national capital. It is in the larger national interest that the people in the entire country have a role in the administration of the national capital through the democratically elected Central Government,” the Centre had said in its affidavit.