SC refers Delhi govt’s challenge to Centre’s ordinance to five-judge constitution bench

New Delhi: A five-judge constitution bench will now hear the Delhi government’s plea challenging the Centre’s May 19 ordinance which took away the control over services from the city dispensation and set off a fresh tussle between the two power centres.

The top court rejected the vehement submission of the Delhi government that there was no need for referring the matter to a constitution bench as it will “paralyse the whole system” during its pendency.

A bench comprising Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra said the larger bench will commence the proceedings after the hearing on the pleas challenging the abrogation of Article 370, which had bestowed special status on the erstwhile state of Jammu and Kashmir, gets over.

“We will refer it to the Constitution bench and give you (parties Delhi government and the Centre) the liberty to move before us for the hearing after we finish the 370 (pleas on abrogation of Article 370). We will upload the order this evening... Meanwhile the pleadings have to be completed,” the CJI said.

During a brief hearing, the bench raised a query with regard to the ordinance and said it took away the control of services from the control of Delhi government.

The Constitution excludes three entries of List II (state list) related to police, law and order and land from the control of the Delhi government, it said.

“What you (Centre) have effectively done is that the Constitution says barring three entries, Delhi legislative assembly has the power. But the Ordinance takes away Entry 41 (services) (of the List II) also from the power. That is the effect of Section 3A of the Ordinance,” the bench said.

Senior advocate Harish Salve, appearing for the central government’s point man Lieutenant Governor V K Saxena, referred to previous judgements and said for a union territory the state list becomes concurrent list and hence Parliament has power to legislate.

Salve justified the termination of services of 437 independent consultants appointed by the Delhi government by the orders of the LG. The Delhi government made “rank illegal appointments” of undeserving persons, who happened to be Aam Aadmi party workers, and they were terminated by the LG and for that the ordinance was not needed at all, he said.

Senior advocate Abhishek Singhvi, appearing for the Delhi government, said the reference of the case to a constitution bench was not needed as the matter can be decided by a three-judge bench.

The senior lawyer said the ordinance violated Article 239AA (which deals with special provisions with respect to Delhi) of the Constitution as it diluted the power of the elected government.

“The impugned ordinance abolishes the constitutional scheme. And 239AA(7) is not to change the Constitution itself, rather it is for facilitation,” Singhvi said.

He said referring the case to a constitution bench will paralyse the whole system and sought an early hearing of the Delhi government’s petition.

Attorney General R Venkataramani said the decision to send a matter to a constitution bench entirely falls within the domain of the three-judge bench if it feels substantial questions of laws are involved.

Solicitor General Tushar Mehta appeared for the Centre.

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 termed it a “deception” with the Supreme Court verdict on control of services.