SC indicates referring Delhi Ordinance case to Constitution bench

'The court would have to see whether it is permissible,' the SC said, indicating it may refer the challenge to the Ordinance for hearing before a Constitution bench.

The Supreme Court Monday indicated to refer the Delhi government’s challenge to Centre’s May 19 Ordinance -- Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 -- to a Constitution bench for adjudication.

It noted the move amounted to the amendment to the Constitution by taking away power to control services from the Delhi government.

A bench of Chief Justice of India D Y Chandrachud and Justices P S Narasimha and Manoj Mishra said it is for the first time, Centre has used power conferred under clause 7 of Article 239AA to take services outside the purview of Delhi government and in a way, amended the Constitution.

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"The court would have to see whether it is permissible," the bench said, indicating it may refer the challenge to the Ordinance for hearing before a Constitution bench.

The bench also pointed out that the issue whether 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 judgements delivered in 2018 and 2023.

In its plea, the Delhi government contended that the Ordinance wrested control over civil servants serving in the Government of NCT of Delhi (GNCTD), from the Delhi government and vested to the unelected Lieutenant Governor.

Senior advocate A M Singhvi, appearing for the Delhi government, however, sought time till Thursday to make submissions to establish that this matter needn't be referred to the Constitution bench.

Senior Advocate Harish Salve, appearing for the Delhi Lieutenant Governor, submitted that the top court has posed a question, which may have to be considered.

The court fixed the matter for hearing on Thursday, upon a request by the Delhi government counsel.

In its plea, the Delhi government sought a direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional.

It stated the Ordinance overruled the Constitution bench judgement of May 11, 2023 without altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service.