Supreme Court refers the Delhi Ordinance case to a Constitution bench
On Monday (July 17), the Supreme Court bench said that the petition challenging the constitutional validity of the Centre’s Ordinance on power over civil services is inclined to refer to a Constitution Bench. The matter was heard by Chief Justice of India DY Chandrachud, Justice Manoj Misra, and Justice PS Narasimha. While passing the order, CJI said, “We will issue notice. We are inclined to refer it to a Constitution Bench. The reason why we have to hear it in a combination of five is that for the first time they have used the power…conferred by Article 239 AA(7), and brought services out of the domain of the Delhi Legislative Assembly. They amend the Constitution by exercising the power under Article 239AA to take services out of the domain of the Delhi Legislative Assembly and bring them under central control exclusively. Is that permissible? I don’t think either the first Constitution Bench judgment or the second dealt with this issue.”
During the court proceedings, Solicitor General appearing for Centre, Tushar Mehta told the Supreme Court bench that “as per clause 7, such law will not be deemed to be an amendment to the Constitution. That’s going to be the argument”. He also urged the top Court to observe what Parliament do with the Ordinance. Further, SG Mehta submitted, “It may amend certain portions…since no prejudicial act is being taken on the basis of the ordinance right now, you may consider awaiting the legislative decision.” CJI opined, “Parliament has the power to make law with respect to any item in List 2 (state list), and List 3 (concurrent list). Legislative Assembly can make law on List 2 except entries 1 (public order), 2 (police), and 18 (land). Parliament can make law on anything in List 2 including entries 1,2, and 18. Now what you have done is, by this clause 3 of the ordinance, the state legislature cannot enact a law with respect to entry 41 (state public services; State Public Service Commission) at all.”
In this context, Senior Advocate AM Singhvi, appearing for the Delhi Government, said, “The judgment (May 11 judgment) covers the point. Pillars of the judgment, federalism, decentralization, etc…Prima facie, at this stage, I would like to oppose a reference.” He further added to convince the top Court for the same on the next hearing, July 20, 2023. Along with this, Senior Advocate appearing for the Lieutenant Governor (LG), Harish Salve, questioned the Parliament’s competence and said, “Could Parliament have enacted a legislation which would have resulted in a concurrent list becoming an exclusive list”. He also added, “Even if it’s a concurrent list, once Parliament makes a law, the state is excluded. The effect of that is exclusionary in the concurrent list also.”
In a counter affidavit, the MHA (Ministry of Home Affairs) contended, “Parliament is competent and has overriding powers to make laws even on subjects regarding which the Legislative Assembly of Delhi would be competent to enact laws.” MHA accused CM Arvind Kejriwal as well as his Ministers as they started a ‘witch-hunt’ immediately after the verdict of the top Court on May 11. The MHA submitted “The Lieutenant Governor had specially informed the Chief Minister that the judgment of the Supreme Court was sacrosanct for him…Despite this, the Chief Minister and other Ministers, in a dramatic and convoluted fashion, immediately went on a rampage by issuing orders and posting them on social media, which are in gross disregard to the rules and procedure already in place.” It also said, “the Delhi Government’s Ministers started a witch-hunt, harassment of officers, media trials, threats, and street postures to influence the decision-making by officers.” After hearing the contentions, the bench decided to send the matter to a five-judge Constitution bench and agreed to hear on July 20.
