SC hints at referring Delhi ordinance matter to constitution bench

New Delhi: The Supreme Court Monday hinted that it was contemplating referring to a constitution bench for adjudication the Delhi government's petition against the Centre's recent ordinance on control of services.

The top court had recently issued notices to the Centre and the lieutenant governor on the plea while refusing to grant an interim stay on the ordinance on control over services in Delhi.

A bench comprising Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra, at the outset, indicated since the ordinance was issued by taking recourse to Article 239AA, it will be in the fitness of things if the matter is decided by a constitution bench.

"What they (Centre) have done is that by using power under 239AA(7), they have amended the Constitution to take services out of the Delhi government’s control. Is that permissible? I don't think either of the Constitution Bench judgements has covered that,” the CJI said, in remarks seen as indicative of the court's intention of referring the matter to a constitution bench.

"The point is this- Parliament has the power to enact a law under any entry in list 2 (state) or list 3 (concurrent). List 3 is concurrent. You have said by this clause 3A of the Ordinance that the state legislature cannot enact law under Entry 41 (State public services; State Public Service Commission) at all,” the CJI said.

Solicitor General Tushar Mehta, appearing for the Centre, opposed the observation and said as per Article 239AA(7) (b), a law made by Parliament is not deemed as an amendment to the Constitution.

Article 239AA deals with special provisions with respect to Delhi in the Constitution and sub-article 7 says, “Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.”

It also says any such law made under the Article “shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.”

The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 to create an authority for transfer and posting of Group-A officers in Delhi.

The Aam Aadmi Party (AAP) government has termed it a "deception" with the Supreme Court verdict on control of services.

The ordinance, which came a week after the Supreme Court handed over the control of services in Delhi excluding police, public order and land to the elected government, seeks to set up a National Capital Civil Service Authority for transfer of and disciplinary proceedings against Group-A officers from the Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) cadre.

The chief minister is one of the three members of the Authority, while two others are bureaucrats. The decisions by the Authority are to be taken by a majority and, in the event of a dispute, the matter will be referred to the LG whose decision will be final.

Transfer and posting of all officers of the Delhi government were under the executive control of the LG before the May 11 top court verdict.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud, in a unanimous verdict, had sought to put an end to the eight-year-old dispute between the Centre and the Delhi government triggered by a 2015 home ministry notification asserting its control over services, holding the National Capital Territory administration is unlike other union territories and has been "accorded a 'sui generis' (unique) status by the Constitution.

Against the backdrop of frequent run-ins between the AAP government and the Centre's point man, the lieutenant governor, the apex court had asserted an elected government needs to have control over bureaucrats, failing which the principle of collective responsibility will be adversely affected.