Supreme Court Refers Kejriwal Government’s Challenge to Delhi Ordinance to Constitution Bench

In a significant dеvеlopmеnt,  thе Suprеmе Court has rеfеrrеd thе Kеjriwal govеrnmеnt’s challеngе to thе validity of thе Govеrnmеnt of National Capital Tеrritory of Dеlhi (Amеndmеnt) Ordinancе,  2023,  to a fivе-judgе constitution bеnch. This ordinance grants overriding power to the Lieutenant Governor in matters of transfer and posting of senior ranking bureaucrats serving under the Delhi government.

The ordinance, issued on May 19, had stirred a debate shortly after a five-judge constitution bench granted control over the babudom to the Delhi government. According to the ordinance, an Authority headed by the Chief Minister of Delhi, along with three bureaucrats, would be responsible for decisions on the transfer and posting of bureaucrats. However, the Lieutenant Governor retains the authority to halt any such decision.

Chief Justice D Y Chandrachud, leading the bench that also included Justice Pamidighantam Sri Narasimha and Justice Manoj Misra, rejected the Delhi government’s plea to prioritize their challenge to the ordinance’s referral to a constitution bench. The government also sought to defer the hearing on the challenge to the abrogation of Article 370 and the bifurcation of the erstwhile state of J&K into two Union Territories, commencing on August 2.

Sеnior advocatе Abhishеk Manu Singhvi opposеd thе rеfеrеncе to a fivе-judgе constitution bеnch,  contеnding that thе issuе was a short onе and could bе dеcidеd by a thrее-judgе bеnch. Singhvi argued that the ordinance diluted the powers of the elected government and contradicted the provisions of Article 239AA.

The crux of the matter revolves around the interpretation of Article 239AA of the Constitution, a special provision concerning Delhi’s governance. It outlines the division of powers between the Central government and the Delhi government, granting exclusive control over police, law and order, and land to the former and other subjects to the latter.

Notably, the earlier two constitution benches in 2018 and 2023 had not considered whether invoking the powers under Article 239AA(7)(a) to amend the Constitution and alter the control over services was permissible. Chief Justice Chandrachud raised this crucial point during the recent proceedings.

The controversial ordinance, introduced to counter the top court’s May 11 judgment, which vested control over services and officers under the Delhi government (except those dealing with public order, police, and land), has sparked heated debates on federal, Westminster-style democratic governance.

At the heart of the challenge lies Section 45A of the Ordinance, which establishes the National Capital Civil Service Authority for matters related to senior bureaucrats’ transfer and posting. The Chief Minister of Delhi would chair the Authority, with the Chief Secretary and Principal Home Secretary of Delhi government as its members, and decisions made by majority vote.

The Delhi government seeks to have the ordinance quashed, arguing that it infringes upon the constitutionally guaranteed governance framework for the national capital territory of Delhi under Article 239AA. Additionally, the government urges the court to declare various sections introduced by the ordinance as unconstitutional.

This case holds significant implications for Delhi’s governance structure, and the matter will now be deliberated by the five-judge constitution bench, whose decision will determine the future course of administrative governance in the national capital territory.

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