The Supreme Court on Monday indicated that it may refer to a constitution bench the Kejriwal government’s challenge to the constitutional validity of the May 19, Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 issued by the Centre.

The ordinance seeks to strip the Delhi government of its control over babudom and vests in lieutenant governor overriding powers in the transfer and posting of senior bureaucrats.

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Chief Justice D Y Chandrachud heading a bench also comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra said that the issue, whether the powers under Article 239AA (7)(a) of the constitution could be invoked to make the law of the present nature, was not considered by the earlier two constitution benches in 2018 and 2023.

The matter has now been posted for further consideration on July 20.

Both the constitution benches in 2018 and 2023, dealt with the row between the Centre and the Delhi government over the governance of the national capital.

The 2018 five-judge constitution bench had not even considered the issues of control over services. It was later clarified that the question of control over baboon, including their transfer and posting, was not before the then five-judge bench for adjudication.

“What they have done is that by using power under 239AA(7), they have amended the Constitution to take services out of Delhi government control. Is that permissible? I don’t think either of the Constitution bench judgements has covered that,” the Chief Justice Chandrachud said.

Article 239AA of the constitution is a special provision relating to Delhi and spells out a framework for the governance of the national capital. It vests police, law and order and land exclusively in the Central government and other subjects falling within the domain of Delhi government.

The May 19 ordinance was brought to reverse May 11 top court constitution bench judgment that gave Delhi government control over the services – their transfer, posting and accountability.

As Chief Justice Chandrachud indicated that the challenge to the ordinance may be referred to a constitution bench and spelt out the reasons for it, Solicitor General Tushar Mehta urged the bench to defer the hearing as ordinance is going to be tabled as a bill before the Lok Sabha during the monsoon session commencing from July 20.

He said, “It is possible that the ordinance may be passed in a different form after the parliamentary process.

Opposing the reference to a constitution bench, senior advocate Abhishek Manu Singhvi appearing for Delhi government urged the bench to give him some time on Thursday to argue his point and sought deferring of the matter. He referred to the paragraphs in the May 11 constitution bench judgement to buttress his point that the issue need not be referred to a constitution bench.

Referring to the point whether the government can take recourse to Article 239AA(7)(a) for amending the provisions taking ordinance route, senior advocate Harish Salve said that the issue that arises is the competence of parliament to enact present law. Stating that parliament was competent to make such a law, Salve however, said that it can be examined by a constitution bench.

In a lighter vein, Salve told the bench that he was contemplating to file a PIL in his own name to prevent constitutional functionaries from engaging in discussions and arguments on social media platforms like Twitter, Instagram and Facebook.

The ordinance under challenge was promulgated on May 19 to overcome Supreme Court’s five-judge constitution bench May 11 judgement that had ruled that the Delhi government would have control over all services and officers serving under it barring those dealing with public order, police and land, and Lt. Governor does not have an all-encompassing supervision over the administration of the national capita and has to act on the aid and advice of the Council of Ministers.

Denying the Delhi government of its authority, vested in it by the May 11 top court judgment, to post and transfer the senior ranking bureaucrats serving under it, the May 19 ordinance invested the control over babudom in the Lieutenant Governor.

The Section 45A of the Ordinance under challenge that provides for the setting up of the National Capital Civil Service Authority for the transfer, posting and other matters relating to senior babus, is recommendatory in nature and would make recommendations to Lieutenant Governor.

The Chief Minister of Delhi will be the Chairperson of the Authority with Chief Secretary and the Principal Home Secretary of Delhi government as its member and the decisions will be taken by majority votes.

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 Delhi government has challenged Section 45 of the Ordinance spelling out the provisions relating to the maintenance of the democratic and administrative balance in the governance of the national capital territory of Delhi.