The Supreme Court on Monday issued notice to the Union government on a petition by the Delhi government challenging the validity of an ordinance that gives the Centre control over the state bureaucracy. The bench declined a request by the city government to put the executive order on hold but agreed to examine the issue on Monday after the Delhi government pointed out that the ordinance was used to sack 400 ‘specialists’ in the city.
The Supreme Court said it will take up on Monday next the request for stay of the ordinance (Amal KS/HT File Photo)
The bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha also allowed an additional prayer by the Delhi government to add lieutenant governor Vinai Kumar Saxena as a respondent and issued notice to the LG.
“Either this court should consider staying the ordinance or this order of the LG firing independent consultants of the Delhi government has to be stayed,” said senior lawyer Abhishek Manu Singhvi, who appeared for the Delhi government.
The court asked solicitor general Tushar Mehta, who appeared for the Centre, and senior advocate Sanjay Jain, who appeared for the LG, to submit a response to the plea for a stay on the ordinance.
Both the Centre and LG opposed the interim relief being considered by the court in an unrelated matter about removal of 400 persons. “One of the persons removed is wife of a member of legislative assembly (MLA). It has become a norm to approach the Supreme Court on every matter. None of the dismissed persons have approached the court,” Mehta said.
Sanjay Jain added: “The affected persons can go to the high court. How can Article 32 power of this Court be utilised to question the removal of 400 party workers.”
Singhvi said that he will move the application challenging the decision of LG which came on July 3, long after the petition challenging the ordinance was filed on June 30 in the top court.
“We are seeking a qualified stay. These persons had been working with reputed organisations. Now, their salaries have stopped by the LG order. I have approached this court as I am their employer,” added Singhvi.
The Delhi government said that if it was to separately challenge the LG order before any Court, the Centre and LG will defend it by citing the ordinance. Responding to Tushar Mehta’s submission that an ordinance is sought to be challenged under the garb of the order firing 400 party workers, Singhvi said, “Let them make a statement that the removal is unconnected with the ordinance. I will withdraw my application.”
The court told Mehta: “You look at their (Delhi government) prayer for interim relief. We will take it up on Monday next. He is pressing for stay of the ordinance. If he wants to move an application, we cannot prevent him.”
Singhvi listed several instances where the Supreme Court exercised its powers to stay an ordinance. “If an ordinance seeks to nullify the powers of the Constitution, this court has always granted stay,” Singhvi said, pointing out that the ordinance introduced changes in the Government of National Capital Territory of Delhi (GNCTD) Act in an effort to overturn the Supreme Court’s May 11 ruling that snubbed the Centre for bringing a notification in 2015 taking away Delhi government’s control over services.
“The May 11 judgment talks about federalism, decentralisation, democratic governance and the triple chain of command necessary for any democratically elected government in justifying Delhi government’s control on transfer and posting of bureaucrats,” Singhvi said.
The ordinance sought to strengthen the position of the LG in being the final authority in deciding matters relating to the transfer and posting of bureaucrats.
The ordinance introduced a whole new chapter, Part IVA, in the GNCTD Act to create the National Capital Civil Service Authority (NCCSA) comprising the chief minister as ex-officio chairperson and the chief secretary and home secretary as its other two members. This body would recommend transfers, postings and disciplining of civil servants posted in GNCTD’s domain to the LG.
Terming the new body to be “illegal”, Singhvi said, “Can you imagine a meeting where the chief minister sits with bureaucrats who can outvote him and they will refer the matter to the LG. You may as well not have Article 239AA of the Constitution.”
The May 11 judgment said that Article 239AA, which provides for a legislative assembly for Delhi, exempts only three entries in the State List of the Constitution – namely land, public order and police – from the purview of the Delhi Assembly. On all other entries, the judgment held, the Delhi government will have legislative and executive control. The top court was of the view that a democratically elected government is responsible for the decisions and policies which must be implemented through the bureaucracy and hence collective responsibility is an important component of parliamentary democracy.
The petition by the Delhi government, drafted by advocates Shadan Farasat and Hrishika Jain, said the ordinance shows contempt for the elected government by vesting control over civil servants in the hands of the Union. By conferring wide discretionary powers on civil servants to override the government of national capital territory of Delhi (GNCTD), the ordinance “in effect and design allows the Union to take over the governance of Delhi,” it added.
“Though the ordinance feigns a degree of democratic involvement by making stray references to the chief minister, it in fact relegates the chief minister to being a minority voice even in the authority tasked with making nonbinding recommendations.”
The petition even questioned the timing of the ordinance which was promulgated on May 19, the last working day of the Supreme Court before the summer vacation, claiming that the exercise by Centre was an abuse of the ordinance-making power.
Apart from the present proceedings, the bench headed by CJI is also hearing a separate petition filed by Delhi government where part of the ordinance (Section 45D) is challenged while questioning Centre’s June 21 decision to appoint a former Allahabad high court judge as chairperson of Delhi Electricity Regulatory Commission (DERC) bypassing the Delhi government. The matter is expected to come up on Tuesday pending which the Delhi government had agreed to put the oath-taking ceremony on hold.