Supreme Court refers Delhi ordinance issue to Constitution Bench

The Supreme Court on Thursday referred a plea by the Delhi government challenging the validity of the May 19 Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, related to transfer and posting of civil servants, to a Constitution Bench.

A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra decided to put the matter of taking away control of services from the Delhi government for adjudication before a five-judge bench.

The court did not agree to a contention by a senior advocate A M Singhvi for the Delhi government that the reference was not necessary and the issue can be decided by a three-judge bench.

He submitted that the Ordinance was against the spirit of Article 239AA of the Constitution for it diluted the powers of the elected government. He also claimed any reference to Constitution Bench will cause the whole system to be in paralysis because of the time it takes.

He said the issue involved was a short point and if at all, it is to be referred to, it should be given priority ahead of the challenge to dilution of Article 370 of the Constitution, concerning special status of the erstwhile Jammu and Kashmir.

Attorney General R Venkatramani said that it is the prerogative of the court to make a larger bench reference if it feels that substantial questions of law are involved.

The court, however, noted that the effect of the Ordinance was that "services" was also taken away from the control of the Delhi Government, though the Constitution only barred three entries relating to police, law and order and land.

On Monday, July 17, the court had indicated to refer the matter to the Constitution Bench, saying the move amounted to the amendment to the Constitution by taking away power to control services.

The court had said it is for the first time, the Centre has used power conferred under clause 7 of Article 239AA to take services outside the purview of the Delhi government and in a way, amended the Constitution.

The court would have to see whether it is permissible, the bench had then said.

The bench also pointed out that the issue of 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) and vested it to the unelected Lieutenant Governor.

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