In a decisive move, the Delhi Government today approached the Supreme Court, seeking an “immediate stay” on the Centre’s unconstitutional Ordinance. With this, the Kejriwal Government has taken a strong stance against the overreach caused by the ordinance, asserting its unconstitutionality and challenging the Centre’s control over transfer posting in the national capital. The Centre’s ordinance, issued on May 19, has been vehemently criticised by the Delhi Government as a direct violation of the constitutional principles and a usurpation of the rights of the elected government. The state government has asserted that the Centre’s ordinance is completely unconstitutional and undermines the fundamental principles of federalism. The May 11 landmark judgement delivered by the Supreme Court’s Constitutional Bench recognised the rightful power of the Delhi Government on matters of transfer, posting, and services. The Centre’s ordinance not only overturns this significant ruling but also undermines the democratic will of the people of Delhi.

The Delhi Government has challenged the constitutionality of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 promulgated on 19.05.2023. The Ordinance wrests control over civil servants serving in the Government of NCT of Delhi (‘GNCTD’), from the GNCTD to the unelected Lieutenant Governor (‘LG’). It does so without seeking to amend the Constitution of India, in particular Article 239AA of the Constitution, from which flows the substantive requirement that power and control in respect of Services be vested in the elected government.

Meanwhile, the Delhi Government has filed an interim application seeking an “immediate stay” on the ordinance. However, through its main petition, the Delhi Government has sought that the Supreme Court –

(a) Pass a direction, order, or appropriate writ declaring and quashing the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional;

(b) Pass a direction, order, or appropriate writ declaring and quashing Section 3A of the Government of National Capital Territory of Delhi Act, 1991 as introduced by the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional;

(c) Pass a direction, order, or appropriate writ declaring and quashing Section 41 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional;

(d) Pass a direction, order, or appropriate writ declaring and quashing Sections 45B, 45C, 45D, 45E, 45F, 45G, 45H, 45I, 45J, and 45K of the Government of National Capital Territory of Delhi Act, 1991 as introduced by the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional;

In the petition, the government has stated that Article 239AA confers legislative competence over ‘Services’ concurrently on the Delhi Assembly as also the Parliament. However, it is a fundamental precept of the Constitution that the question of competence is distinct from the validity of legislation passed in exercise of such competence.

The Ordinance, by violating the substantive requirements of Article 239AA of the Constitution as interpreted by two Constitution Benches of the Supreme Court, fails to be a valid exercise of competence. Particularly, the Impugned Ordinance is an unconstitutional exercise of executive fiat that:

  1. Violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA,
  2. is manifestly arbitrary,
  3. legislatively overrules/reviews a Constitution Bench judgement of the Supreme Court dated 11.05.2023 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, is a substantive mandate of the model of governance envisaged by the Constitution, including for the NCT of Delhi under Article 239AA
  4. is an impermissible and unconstitutional abuse of ordinancemaking powers under Article 123 of the Constitution.

The Delhi Government has also challenged the constitutionality of specific sections of the ordinance as under –

1-Section 3A of the GNCTD Act that stipulates that Entry 41 of State List shall no more be available to Delhi’s Legislative Assembly

2-Sections 45E to 45H of the GNCTD Act which, vest control over civil servants working for GNCTD with the LG, and constitute the National Capital Civil Service Authority for making recommendations to the LG on matters including their transfers, postings, and disciplining.

3-Section 41 of the GNCTD Act, insofar as it provides for the LG’s ‘sole discretion’ in matters relating to Part IVA of the GNCTD Act

4-Section 45D of the GNCTD Act, stipulating that, notwithstanding any other law, any “authority, board, commission, or any statutory body” in the NCTD and all its members shall be constituted/appointed by the President

5-Sections 45K(3) and 45K(5) of the GNCTD Act, which allow bureaucrats and the LG to override decisions taken by the Council of Ministers and Ministers-in-charge

6-Section 45K(1) of the GNCTD Act which, by conferring on bureaucrats the authority to finalise cabinet notes, allow them to block any proposal before it is considered by the Council of Ministers

The government has strongly questioned the validity of the Centre’s move and stated in its petition that the Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA.

The Delhi Government has submitted that the ordinance completely sidelines the elected Government from control over its civil service. This further worsens as, even as a recommending body, the NCCSA is designed such that the head of the elected government, the Chief Minister of Delhi, presides over his own minority. The two bureaucrats can outvote him, hold meetings and make recommendations in his absence, and even unilaterally delegate the making of recommendations to another body, surrendering even the pretense of democratic involvement.

The Delhi Government has also noted in its plea that it has been clearly held by Supreme Court’s Constitution Bench that Article 239AA of the Constitution prescribes not only a distribution of powers between the Union and the GNCTD, but also substantive limits upon the exercise of legislative powers with respect to ‘Services’. Thus, even though the Parliament is comp etent to enact laws on all subject ations matters in respect of NCTD, its power is not plenary, but is rather constrained by substantive limit imposed by the text and principles of Article 239AA itself that have been expounded upon by two Constitution Bench es of the Supreme Court. “The Ordinance attempts to reverse the SC ruling on each of these two aspects by simply amending the GNCTD Act, without amending the ruling’s basis, i.e. the Constitution.”

The Delhi Government has further stated that by allowing bureaucrats and the LG to adjudicate the legality of the elected Government’s decisions and take executive actions on that basis, the Ordinance completely collapses the scheme of separation of powers and of governance under Article 239AA.

Since the decisions are vetted by legal experts within each department/ ministry where needed, the impugned provision only serves to further stall governance on the say-so of the Union of India, through the LG/bureaucrats, and is manifestly arbitrary.

Challenging the validity of Section 45D (concerning control over independent bodies, commissions, etc.) as manifestly arbitrary, the Delhi Government has noted that Section 45D of the GNCTD Act, in stipulating that all statutory bodies, commissions, boards, and authorities in the NCTD be constituted by and their members appointed by the President, suffers from the same infirmity and completes the deliberate design of the Ordinance to allow the Union of India to take over governance in Delhi.

There are over 50 bodies working for the people of Delhi that would be hit by this one blanket provision, and the control over which will pass from the people of Delhi to the Union of India. These bodies work in sectors ranging from transportation (Delhi Transport Corporation), water (Delhi Jal Board), industry (Delhi State Industrial Development Corporation), women’s and children’s rights (Delhi Women Commission, Delhi Commission for Protection of Child Rights), and electricity (Delhi Electricity Regulatory Commission), to name only a few. Notably, each of these bodies are specifically constituted for the needs of NCTD’s electorate, affect their day-to-day lives, and are financed by the GNCTD. After the civil service, these bodies are the epicenter of administration in Delhi. The arbitrariness in the provision is writ large that while these bodies will continued to be financed by budgets approved by the Delhi Assembly and Delhi Government, the appointments will be made by the Central political executive.

Further, the Delhi Government has submitted that the promulgation of the present Ordinance is an apparent attempt to circumvent democratic and judicial deliberations. The Cabinet Resolution approving the promulgation was passed on 17.05.2023, a mere 6 days after the ruling of the 2023 Constitution Bench of the Supreme Court. Furthermore, despite the Cabinet approval on 17.05.2023, the Ordinance was promulgated only on 19.05.2023, and became available in the public domain late in the evening of 19.05.2023, i.e. after the Court rose for vacations.

“The unseemly hurry in reversing a ruling of the Supreme 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 plea reads.

The Impugned Ordinance impermissibly ‘overrules’ the Constitution Bench judgment of this Hon’ble Court in Civil Appeal No. 2357/2017

The government has also submitted that it is settled law that it is impermissible for the legislature to simply overrule a decision of the Supreme Court – it is only permissible for it to remove or alter the basis of a judicial decision, such that the decision would not have been rendered in that altered background. In direct violation of this settled position of law, the Ordinance seeks to reverse the 2023 Constitution Bench judgment of Supreme Court, without attempting to alter in any way its basis, i.e. Article 239AA of the Constitution.

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