SC to consider referring Delhi govt’s plea against ordinance to 5-judge Constitution Bench on July 20

The Supreme Court on Monday said that it will decide on July 20 as to whether the Delhi government's plea challenging the constitutionality of the ordinance brought by the Centre on control of services in the national capital should be referred to a five-judge Constitution Bench. 

A bench comprising Chief Justice of India D.Y. Chandrachud and Justices P.S. Narasimha and Manoj Misra was hearing Delhi government's prayer to pass an interim stay against the ordinance as well as LG's decision to terminate over 400 consultants who were appointed by the Delhi government.

At the outset, Solicitor General Tushar Mehta requested the bench to defer hearing on the pleas as the impugned ordinance will be tabled in the upcoming monsoon session of the Parliament. "It is possible that the ordinance may be passed in a different form after the parliamentary process," he said.

Senior advocate Abhishek Manu Singhvi, appearing for Delhi's AAP government, requested for an adjournment after a three-judge bench headed by CJI Chandrachud indicated its inclination to refer the questions raised to a five-judge Constitution Bench.   

The court said that it will continue to hear the arguments on July 20 on the question of reference to a larger bench. 

Senior advocate Harish Salve, representing Delhi Lt. Governor, argued that a reference to a Constitution Bench is necessary as the earlier judgments of the Supreme Court did not deal with the competence of Parliament to make law under Article 239AA(7)(a).

Last Monday, the apex court declined to grant any interim relief in the matter but issued notice seeking response of the Central government on Delhi government's plea.

It had also directed that the Lieutenant Governor of Delhi will also be added as a party in the matter.

Earlier, the Services Department of the Delhi government issued a directive, instructing all departments to halt the engagement of advisors, fellows and consultants .The order said appointments can no longer be made without obtaining prior approval from the Lieutenant Governor.

The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to create a National Capital Civil Service Authority for transfer and posting of Group-A officers in Delhi.

The Ordinance was brought after a five-judge Constitution Bench of the Supreme Court had granted control over services in Delhi excluding police, public order and land to the elected government.

Thereafter, Delhi's AAP government had moved the Supreme Court challenging the constitutionality of the Ordinance, saying it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA and is manifestly arbitrary, and sought an immediate stay.

On May 20, the Centre had also moved the Supreme Court seeking review of the May 11 judgment.