AAP Govt Moves Supreme Court Againt Centre's Delhi Ordinance

New Delhi: Delhi's AAP government has moved the Supreme Court challenging the constitutionality of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated on May 19, saying it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA and is manifestly arbitrary. The plea, filed through advocates Shadan Farasat and Hrishika Jain, submitted that ordinance wrests control over civil servants serving in the Government of NCT of Delhi (GNCTD), from the GNCTD to the unelected Lt Governor (LG).

“It does so without seeking to amend the Constitution of India, in particular Article 239AA of the Constitution, from which flows the substantive requirement that power and control in respect of services be vested in the elected government," it said.

The Delhi government stressed that the ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA. “the principle of collective responsibility in a democracy - incorporated in Article 239AA(6) - requires that the elected government be vested with control over officials posted in its domain”, it said.

On May 11, a five-judge constitution bench of the Supreme Court ruled that it is ideal to hold that a democratically-elected Delhi government should have control over its officers and the LG is bound by the advice of the elected government in everything other than public order, police, and land.

The top court stressed that if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.

On May 19, the Centre brought an ordinance to set up a permanent authority known as the National Capital Civil Service Authority, whose chairperson will Delhi Chief Minister along with the Chief Secretary and Principal Secretary, Home to make recommendations to the Delhi LG regarding matters concerning transfer posting, vigilance and other incidental matters.

However, in case of difference of opinion, the decision of the LG shall be final.

The Delhi government, in its petition, said “Ordinance is an unconstitutional exercise of executive fiat that: i.) violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA; ii.) is manifestly arbitrary; legislatively overrules/reviews a Constitution Bench judgment of this court dated May 11…… without altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service, is a substantive mandate of the model of governance envisaged by the Constitution, including for the NCT of Delhi under Article 239AA”.

The plea contended that Article 239AA of the Constitution is a sui generis provision in that it constitutionally entrenches for NCTD a Westminster-style democracy, to fulfil the popular, regional, and democratic aspirations of the people of Delhi.

“The Impugned Ordinance directly violates this scheme of federal, democratic governance incorporated in Article 239AA and, specifically, the principle of ‘collective responsibility’ incorporated in Article 239AA (6)," it said.

The Delhi government sought a direction quashing the ordinance and also quashing 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.

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