The Supreme Court on Thursday referred to a five-judge constitution bench, the Kejriwal government’s challenge to the validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, vesting an overriding power in Lieutenant Government in the transfer and posting of senior ranking bureaucrats serving under Delhi government.

Issued on May 19 – a week after a five-judge constitution bench gave the control over the babudom to Delhi government – the ordinance provides for the setting up of an Authority headed by the Chief Minister of Delhi and with three bureaucrats as its members, to decide on the transfer and posting of bureaucrats.  However, it gives overriding powers to the Lieutenant Governor to stall any decision.

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Referring the challenge to a five-judge constitution bench, Chief Justice D Y Chandrachud heading a bench also comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra, rejected Delhi government’s plea that if its challenge to ordinance is being referred to a constitution bench then its hearting be given priority and be taken first and sought deferring the hearing on the challenge to the abrogation of Article 370 and the bifurcation of erstwhile State of J&K into two Union Territories, commencing August 2.

Opposing the reference to a five-judge constitution bench, senior advocate Abhishek Manu Singhvi told the bench that the issue involved was a short one and the same can be decided by a three-judge bench.

Singhvi said that the ordinance was against the provisions of Article 239AA as it dilutes the powers of the elected government. He said, “Any reference to the constitution bench will cause the whole system to be in paralysis because of the time it takes (hearing by the constitution bench). It’s a very short point.”

Singhvi’s submission that if the challenge to ordinance was being referred to a constitution bench, then its hearing should be given priority and be taken first and the hearing on a batch of petitions challenging the abrogation of Article 370 which is starting August 2 may be deferred, did not find favour with the bench.

On July 17, Chief Justice Chandrachud heading a three-judge bench had indicated that it may send the matter to a five-judge bench.

CJI Chandrachud had 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.

“What they have done is that by using power under 239AA(7)(a), 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 had 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.

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 did not even consider the issues of control over services. It was later clarified that the question of control over babudom, including their transfer and posting, was not before the then five-judge bench for adjudication.

The ordinance under challenge was promulgated on May 19 to overcome the May 11 judgment by a top court’s five-judge constitution bench 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.

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.

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.