New Delhi: Can Parliament amend the Constitution to take administrative services out of the control of the Delhi government? This question became the focus of deliberations in the Supreme Court on Monday.
A three-judge bench headed by Chief Justice DY Chandrachud took up the issue while hearing the Delhi government’s plea against the central government’s ordinance that ended the former’s control over administrative services in the capital. It also considered whether this question should be referred to a constitution bench.
The Government of the National Capital Territory of Delhi (Amendment) Ordinance, 2023, came after a Supreme Court judgment on May 19, giving the Delhi government legislative and executive powers over administrative services in Delhi.
The Ordinance creates a three-member authority – headed by the Chief Minister of Delhi, with two officers appointed by the central government, the Chief Secretary of Delhi and the Principal Secretary, Home Department, as members for government postings including civil servants.
The law, which will need Parliament’s approval, gives the Lieutenant Governor (LG) the power to decide in the event of a deadlock. Of particular importance is Section 45D, which gives the LG “overriding powers” with respect to the constitution and appointments to commissions set up through Central Acts.
“There are three entries over which the Delhi government has no control. What they (the central government) have done is that by using the power under (Article) 239AA they have amended the constitution to take the services out of the control of the Delhi government. Is this permissible? The bench also comprised Justice PS Narasimha and Justice Manoj Mishra.
Article 239AA of the Indian Constitution deals with special provisions for Delhi – specifically, it is a provision that changes the legal status of Delhi from a Union Territory to a Quasi-State. Under the Constitution, the State Civil Services come under the State List.
According to the judges, neither the court’s 2018 decision nor its 2023 decision on the distribution of powers in the capital addressed this question of law. While the 2018 judgment ruled that the LG of Delhi was bound to act on the aid and advice of the elected government, the 2023 judgment said that although the central government had exclusive control over law and order, police and land It is the elected government of Delhi with administrative and legislative control over its services.
Since the passage of the ordinance, the Aam Aadmi Party (AAP) government in Delhi, led by Chief Minister Arvind Kejriwal, has been accusing the Modi government of violating the norms of federalism and democratic governance.
what happened at the hearing
On Monday, the Supreme Court also sought a probe into the overriding powers given to the LG by the ordinance.
Chief Justice Chandrachud said in the hearing that Parliament has the power to legislate under any entry in List I (the Union List) and List III (the Concurrent List, which contains subjects on which both the central and state governments can legislate) Is. As per the Constitution, the State Legislature has the power to make laws on List II (State List).
The CJI said, “(But) you have said in Clause 3 of the Ordinance that the State Legislature cannot make laws under Entry 41 of List II (which deals with State Public Services).”
The court’s suggestion of a reference to a higher bench evoked mixed reactions – while senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, opposed it, while senior advocate Harish Salve, appearing for the Lieutenant Governor, was in favor.
Singhvi urged the bench to hear him on Thursday.
On his part, Solicitor General Tushar Mehta, who was representing the Central Government, sought to clarify that as per Article 239AA(7)(b) of the Constitution, any change under the earlier provision , Article 239AA(7)(a) , Modification is not considered.
What Mehta meant was that when the Ordinance is placed before Parliament, it will become a Bill, which seeks to bring in the existing framework of the Constitution with reference to Delhi government’s jurisdiction over “services”. However, technically the changes will not be treated as amendments under section 239AA(7)(b).
Mehta further said that the ordinance will be introduced in the Lok Sabha in the upcoming monsoon session but it may be in a different form.
“It is possible that the ordinance may be passed in a different form. I do not know whether 45D will go before Parliament in this form or not,” Mehta told the bench. He requested the court to postpone the hearing, saying that “no prejudice is being caused to anybody” and “the court can wait (for the outcome in Parliament)”.
The monsoon session of Parliament will begin on Thursday.
Meanwhile, the court also intervened in the ongoing tussle between Delhi’s AAP government and LG VK Saxena over the appointment of the chief of the Delhi Electricity Regulatory Commission (DERC). While Saxena appointed former Allahabad High Court judge Justice Umesh Kumar as the head of Delhi’s electricity regulator on June 21, the Kejriwal government challenged it on the ground that it was done without consultation.
“Both the constitutional functionaries have to rise above political squabbles and give a name for the DERC chairman,” the bench said. The bench asked both the “constitutional functionaries” to sit down and rule.
The bench said, “DERC chairperson is not the issue, but both of you can sit together and sort out some issues.” The bench said it will hear both the matters on July 20.
This is an updated version of the report
(Edited by Uttara Ramaswamy)