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Arvind Kejriwal-led Delhi Government challenges centre’s ordinance on service rules in SC, seeks immediate stay
NEW DELHI: The battle over the central government’s ordinance over service rules in Delhi reaches the Supreme Court as the Aam Aadmi Party (AAP)’s Delhi government approaches the apex court, seeking an “immediate stay”.
With the latest move, the Arvind Kejriwal-led Delhi government has taken a strong stance against the overreach caused by the ordinance, asserting its unconstitutionality and challenging the Centre’s control over transfer posting in the national capital, the party said.
The Centre’s ordinance, issued on May 19, has been vehemently criticised by the Delhi Government as a direct violation of constitutional principles and a usurpation of the rights of the elected government.
The Delhi government has asserted that the Centre’s ordinance is completely unconstitutional and undermines the fundamental principles of federalism.
AAP’s Delhi government knocks SC door, challenging Central government’s Delhi services ordinance, reports @AlokReporter #news pic.twitter.com/CpcNqbSd0k
— The New Indian (@TheNewIndian_in) June 30, 2023
It said the May 11 landmark judgement delivered by the Supreme Court’s Constitutional Bench recognised the rightful power of the Delhi Government on matters of transfer, posting, and services. “The Centre’s ordinance not only overturns this significant ruling but also undermines the democratic will of the people of Delhi,” AAP said.
The Delhi Government has challenged the constitutionality of the Government of the National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated on May 19. The Ordinance wrests control over civil servants serving in the Government of NCT of Delhi (GNCTD), from the Delhi government to the 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 party stated.
The Delhi Government, in its petition filed before the Apex court, said it is seeking direction, order, or appropriate writ declaring and quashing the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023, as unconstitutional, quashing Section 41 of the Government of National Capital Territory of Delhi Act, 1991 and quashing Sections 45B, 45C, 45D, 45E, 45F, 45G, 45H, 45I, 45J, and 45K of the Government of National Capital Territory of Delhi Act, 1991.
Delhi CM Arvind Kejriwal and senior leadership of AAP will neither burn nor participate in the protests and agitations against the Delhi Ordinance on July 3 as proposed earlier since the matter is now sub-judice in SC: AAP cancels its July 3 program, reports @AlokReporter https://t.co/KcN4ZXfTRa pic.twitter.com/YKThB4qlOP
— The New Indian (@TheNewIndian_in) June 30, 2023
In its petition, the government stated that Article 239AA confers legislative competence over Services concurrently on the Delhi Assembly and 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 the exercise of such competence.
“The Ordinance, by violating the substantive requirements of Article 239AA of the Constitution as interpreted by two Constitution Benches of the Supreme Court, fails to be a valid exercise of competence,” the petition stated.
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Further, the Delhi Government has submitted that the promulgation of the present Ordinance is an apparent attempt to circumvent democratic and judicial deliberations. “The Cabinet Resolution approving the promulgation was passed on 17.05.2023, a mere 6 days after the ruling of the 2023 Constitution Bench of the Supreme Court. Furthermore, despite Cabinet approval on 17.05.2023, the Ordinance was promulgated only on 19.05.2023, and became available in the public domain late in the evening of 19.05.2023, i.e. after the Court rose for vacations,” the petition stated.
“The unseemly hurry in reversing a ruling of the Supreme Court via Ordinance, and the timing of its promulgation reveal a conscious intent to avoid democratic as well as judicial deliberations that could safeguard the interests of the people of Delhi,” the plea read.
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The Delhi government has also submitted that it is settled law that it is impermissible for the legislature to simply overrule a decision of the Supreme Court – it is only permissible for it to remove or alter the basis of a judicial decision, such that the decision would not have been rendered against that altered background.
“In direct violation of this settled position of law, the Ordinance seeks to reverse the 2023 Constitution Bench judgment of the Supreme Court, without attempting to alter in any way its basis, i.e., Article 239AA of the Constitution,” the Delhi government stated.
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