Delhi government approaches Supreme Court challenging Center's ordinance regarding services

New Delhi [India] June 30 : Delhi Government has approached the Supreme Court challenging Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 relating to control over bureaucrats, calling it as 'unconstitutional'.

Delhi government, in its plea filed in Supreme Court, has stated that the Centre's ordinance is "unconstitutional".

"The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 promulgated on May 19 2023, which wrests control over civil servants serving in the Government of NCT of Delhi ('GNCTD'), from the GNCTD to the unelected Lieutenant 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," the petition said.

The Impugned Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, the petitioner said.

In the petition, Delhi Government has urged the top court to pass appropriate direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023.

Delhi Government also urged the top court to issue an appropriate direction to quash and declare 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.

The Delhi Government also sought to pass a direction to quash Section 41 of the Government of National Capital Territory of Delhi Act, 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 and to quash Sections 45B, 45C, 45D, 45E, 45F, 45G, 45H, 45I, 45J, and 45K 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.

"It is not in contention that Article 239AA confers legislative competence over 'Services' concurrently on the Delhi Assembly as also the Parliament. However, it is a fundamental precept of the Constitution that the question of competence is distinct from the validity of legislation passed in exercise of such competence," the petition said and claimed that the Ordinance is violation of the substantive requirements of Article 239AA of the Constitution as interpreted by two Constitution Benches of the Court, fails to be a valid exercise of competence.

According to the petition, the Impugned Ordinance is an unconstitutional exercise of executive fiat that it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA, manifestly arbitrary, legislatively overrules/reviews a Constitution Bench judgement of the top Court dated May 11, 2023.

On May 11 the supreme court ruled that the division of administrative powers between the Union and Delhi government "must be respected" and held that the Delhi government has "legislative and executive power over services" in the national capital, including the bureaucrats, except those relating to public order, police and land.

A five-judge Constitution bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Justice Krishna Murari, Hima Kohli and PS Narasimha said, "The division of administrative powers between the Union and the Government of the National Capital Territory of Delhi (NCTD) as explained... must be respected."

The apex court in its 105-page-judgement said that the government of Delhi is not similar to other Union Territories.