Chief Minister Arvind Kejriwal led Delhi Government has moved the Supreme Court challenging the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, wresting the control over transfer and posting of the senior ranking babus, serving in the Delhi government, from an elected government and entrusting the same in in the Lieutenant Governor (LG).

The Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, promulgated by the Centre on May 19 ,2023, denuded the Delhi government of its authority to post and transfer the senior ranking bureaucrats serving under it and vested the same in the Lieutenant Governor.

Describing it unconstitutional, the Delhi government in its petition has said that the ordinance takes away the power from an elected government and vests it in an unelected Lieutenant Governor – a Centre’s appointee.

Delhi government has stated that the ordinance does it “… 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.”

Seeking the quashing of the ordinance under challenge, the Delhi government has said that the Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for national capital territory of Delhi under Article 239AA.

The Delhi government has also urged the top court to issue directions to quash and declare 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.

It has further sought direction to quash 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 and to quash Sections 45B, 45C, 45D, 45E, 45F, 45G, 45H, 45I, 45J, and 45K of the GNCT Act introduced by the Ordinance under challenge as unconstitutional.

The petition says that it is not in contention that the 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,” says the petition asserting that the Ordinance is in violation of the substantive requirements of Article 239AA of the Constitution as interpreted by two constitution benches of the top court, and is not a valid exercise of competence.

Delhi government has said that the ordinance under challenge is an unconstitutional exercise of executive fiat that it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA, and is manifestly arbitrary, legislatively overrules/reviews the May 11, 2023, constitution bench judgement of the top Court.

A five-judge constitution bench headed by Chief Justice D.Y. Chandrachud had on May 11 ruled that the Delhi government would have control over all services and officers serving under it barring except those dealing with public order, police and land, and Lt. Governor does not have an all-encompassing supervision over the administration of the national capital.

The constitution bench had said, “Democratically elected governments should have control over its officers. If a democratically elected govt is not allowed to control its officers and hold them to account then its responsibility towards … the public is diluted….”