'Centre's Delhi ordinance violated scheme of federal, democratic governance': AAP govt files plea in SC

The Delhi government has filed a writ petition in the Supreme Court challenging the constitutionality of an Ordinance issued on May 19, contending it violated the scheme of federal, democratic governance by sidelining the elected government on the issue of control of civil servants.

The Ordinance "wrested" control over civil servants serving in the Government of the National Capital Territory (NCT) of Delhi from the Delhi government and "vested it to the unelected Lieutenant Governor", it claimed.

The plea sought a direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional.

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The Delhi government claimed the Ordinance is an unconstitutional exercise of executive fiat, which violated the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA.

It also contended the Ordinance legislatively overruled a Constitution Bench judgement of the Supreme Court passed on May 11, 2023.

The NCT government also stated the Ordinance is manifestly arbitrary, and is an impermissible and unconstitutional abuse of Ordinance making powers under Article 123 of the Constitution.

The Ordinance overruled the Constitution bench judgement 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 stated.

On May 11, a five-judge Constitution bench ruled that it is ideal to hold that a democratically elected Delhi government should have control over its officers and the L-G is bound by the advice of the elected government, except in matters of public order, police, and land. It had also said 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, however, promulgated the Ordinance setting up a permanent authority known as the National Capital Civil Service Authority, with Delhi chief minister as its chairman along with chief secretary, Delhi, Principal Secretary (Home), Delhi to make recommendations to the Delhi L-G regarding matters concerning transfer posting, vigilance and other incidental matters. However, in case of difference of opinion, the decision of the L-G shall be final.

In its plea filed by advocate Shadan Farasat, the Delhi government contended that the Ordinance destroyed the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, "a sui generis provision incorporated to fulfill the popular, regional, and democratic aspirations of the people of Delhi".

"The Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service. This was first attempted in 2015, vide MHA Notification No. SO 1368 (E), the basis of which has already been declared unconstitutional in the 2023 Constitution Bench judgement of this Court," it claimed.

It is to be noted that on May 20, the Centre filed a review petition in the Supreme Court against May 11 judgement.

The Delhi government also claimed the Ordinance showed contempt for elected assembly and government while making a pretense of their involvement through the Chief Minister by making him a minority voice in the Authority.

It also said the Ordinance was put in the public domain late in the evening of May 19, 2023, when the Supreme Court rose for vacations in "a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi," it said.