On July 20, the Supreme Court of India referred the Delhi Government’s petition challenging the Government of India’s ordinance May 19 ordinance to a Constitution Bench. The court’s three-judge bench, comprising Chief Justice DY Chandrachud, Justice PS Narasimha and Justice Manoj Mishra passed the order.
Delhi Government’s counsel, Senior Advocate Abhishek Manu Singhvi opposed referring the case to the Constitution Bench, contending that the issue can be decided by a three-judge bench. The counsel further argued that the impugned Ordinance dilutes the powers of the elected government.
“Any reference to constitution bench will cause the whole system to be in paralysis because of the time it takes. It’s a very short point,” Singhvi argued. He requested the court that if the matter would be referred to a Constitution Bench, it be given priority hearing over the Article 370 petitions as the issue involved is a “short point.” However, the court refused Singhvi’s request stating that the schedule for Article 370 cases cannot be changed.
The Attorney General of India R Venkataramani submitted that it was the court’s prerogative to refer the case to a larger bench if it feels that substantial questions of law were involved.
The court observed that the impugned Ordinance takes away Delhi Government’s power over “services,” even though the Constitution bars it from exercising power over three entries – police, law & order and land. “What you have effectively done is that the Constitution says barring three entries, Delhi assembly has power. But the Ordinance takes away Entry 41 also from the power. That is the effect of Section 3A,” the Chief Justice noted.
The court then decided to refer the case to a Constitution Bench. Singhvi requested the court to hear the case at the earliest after the Article 370 matter is over.
Delhi Government’s Petition
The Delhi Government’s petition submits that the Government of India brought out the ordinance after the Supreme Court ruled that the Delhi Government has power over Entry 41 of List II. The Delhi Government argues that the ordinance was brought out to invalidate the Constitution Bench’s ruling.
The Delhi Government has challenged the ordinance, contending that it violates the scheme of federal and democratic governance enshrined in Article 239AA of the Constitution of India. The petition further argues that the ordinance negates the principle of federalism and 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,” the petition reads.
“The Impugned Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service,” the Delhi Government argues. The Delhi Government also argues that as per Article 239AA, it has powers over all matters of state list excluding three subjects – law and order, police and land. However, the ordinance aims to add the subject of ‘services’ in the exclusions, without making a constitutional amendment.
The Delhi Government submits that it is settled law that it is impermissible for the legislature to overrule a decision. “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 read.
The Delhi Government is challenging the Government of India’s ordinance on the grounds of manifest arbitrariness. The government argues that the ordinance would make governance impossible as it takes away its power over services. “By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the GNCTD, the Impugned Ordinance in effect and design allows the Union to take over the governance of Delhi,” the petition read.
The Delhi Government also argues that the Government of India’s ordinance is an abuse of powers under Article 123 of the Constitution of India. The government argues there was no urgency to promulgate an ordinance. “The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi,” the petition read.
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