The Supreme Court has taken up a writ petition filed by the Delhi Government challenging the Central Government's ordinance that curtails the powers of the Government of National Capital Territory of Delhi (GNCTD) regarding "services." In response, the Court has issued a notice to the Union Government and scheduled the matter for further consideration on July 17, including a prayer for interim relief.

Senior Advocate Dr. Abhishek Manu Singhvi, representing the Delhi Government, requested an interim stay on the provisions. Singhvi emphasized the significance of a "triple chain of accountability" in governance, as highlighted in a previous Constitution Bench judgment. He pointed out certain sections of the ordinance, such as Section 45K, which grant overriding powers to the Lieutenant Governor and argued that they contravene the Supreme Court's pillars of judgment.

Initially, the bench expressed reluctance to grant a stay on the ordinance, stating that the court cannot stay a statute. However, Singhvi cited precedents of the court staying legislations in certain instances. He argued that the ordinance diminishes the role of the elected government and the Chief Minister, citing a recent decision made by the Lieutenant Governor to dismiss several government-appointed consultants. In response, the Solicitor General of India, Tushar Mehta, pointed out that the affected parties had not challenged their dismissal. Singhvi countered by stating that the decision was made using the powers provided under the ordinance.

The bench has agreed to consider the plea for interim relief next week. Senior Advocate Sanjay Jain highlighted that the Lieutenant Governor had not been made a party in the writ petition. The bench granted the petitioner the liberty to amend the petition and include the Lieutenant Governor as a party.

Background: The writ petition challenges the Government of National Capital Territory (Amendment) Ordinance 2023, which was issued by the President on May 19. The ordinance effectively removes the power of the Delhi Government over "services."

The petition argues that the ordinance was enacted shortly after a Constitution Bench of the Supreme Court affirmed the Delhi Government's authority over Entry 41 of List II (services). It contends that the Central Government, through the ordinance, has essentially overturned the Supreme Court's verdict.

The petition claims that the ordinance violates the federal, democratic governance structure established for the National Capital Territory of Delhi (NCTD) under Article 239AA of the Constitution. It further asserts that the ordinance undermines the principles of federalism and the primacy of the elected government.

According to the petition filed by Advocate-on-Record Shadan Farasat, democracy's principle of collective responsibility, incorporated in Article 239AA(6), necessitates that the elected government has control over officials within its jurisdiction. In the federal context, this control should be vested in the regional government, namely the GNCTD under Article 239AA, for matters within its domain. The petition argues that this crucial aspect was upheld by the Supreme Court's 2023 Constitution Bench judgment and is now being undone by the impugned ordinance.

The ordinance establishes a committee composed of the Chief Minister and two senior bureaucrats, responsible for making recommendations to the Lieutenant Governor regarding the transfer and postings of civil servants. However, the Lieutenant Governor retains "sole discretion" in making decisions.

The Delhi Government contends that the ordinance completely sidelines the elected GNCTD from having control over its civil service. It notes that a similar objective was pursued by the Central Government through a 2015 notification, which the Supreme Court invalidated. The ordinance seeks to restore the same position, previously deemed unconstitutional.

The petition also highlights that Article 239AA grants the Delhi Government powers over all matters in the state list, with the exception of three specified subjects: law and order, police, and land. However, the ordinance adds "services" to the exempted categories without a constitutional amendment.

Additionally, the GNCTD has separately challenged the constitutionality of Section 45D of the ordinance.