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Supreme Court refers Delhi ordinance case to five-judge constitution bench

The bench said that it cannot allow the DERC to remain 'headless' as it will affect public interest

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Bhavini Mishra New Delhi

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The Supreme Court on Thursday referred the plea of the Delhi government challenging the Centre's ordinance that took control of the services department of the Government of National Capital Territory of Delhi(GNCTD) to a five-judge bench.

The apex court also said that it will appoinSupreme Courtt an ad-hoc Chairperson of the Delhi Electricity Regulatory Commission (DERC) after the Delhi Government and the Lieutenant Governor could not agree on a name.

The Court said that the appointment will be on a pro-term basis and will only act as an interim arrangement.

The bench at the beginning of the hearing considered allowing the present appointee to take over the post, but after Senior Advocate AM Singhvi, appearing for the Delhi government, objected, the bench decided to pick a name. The matter is likely to come up again next Friday. 

The bench said that it cannot allow the DERC to remain ‘headless’ as it will affect public interest.

After this, Senior Advocate AM Singhvi, appearing for the Delhi government in the ordinance matter, said that the Centre’s ordinance, which took away control of services from the Delhi government,  does not meet the bare textual requirement. "Any reference to the constitution bench will cause the whole system to be in paralysis because of the time it takes,” he told the court.

If at all the matter is to be referred, Singhvi requested the bench of Chief Justice of India(CJI) DY Chandrachud, Justice PS Narasimha and Justice Manoj Misra that if the ordinance is to be referred to a Constitution Bench then it should be given priority hearing, ahead of the Constitution Bench hearing in the Article 370 cases.

The bench, however, said it cannot change the schedule of the Article 370 hearing as advocates have already started preparing their arguments.

On the other hand, Attorney General for India R Venkataramani, appearing for the Centre said it is the prerogative of the three-judge bench to make a larger bench reference.

Senior Advocate Harish Salve, appearing for the Delhi LG, told the court that the Delhi Government had made illegal appointments and these were the ones terminated by the LG. "These were illegal appointments. LG did not terminate them under the ordinance. These people were party workers and the procedure to hire them was flawed,” he said.

The CJI, meanwhile, pointed out that the effect of the Ordinance was that ‘services’ was also taken away from the control of the Delhi Government, though the Constitution only bars three entries relating to police, law & order and land.

"What you have effectively done is that the Constitution says barring three entries, Delhi assembly has power. But the Ordinance takes away Entry 41 also from the power. That is the effect of Section 3A,” said the CJI.

The matter is likely to come up after the Article 370 matter.

The ordinance in question, issued by the Central government on May 19, took control of the services department of the Delhi government just seven days after the Supreme Court had, on May 11, given control of services to the Delhi government. The Delhi government has challenged this move.

The Supreme Court had earlier advised the Lieutenant Governor of Delhi and the Government of National Capital Territory of Delhi (GNCTD) to 'rise above the political bickering' and hold discussions on who could be the chairperson of the Delhi Electricity Regulatory Commission (DERC). The bench was hearing a writ petition filed by the Delhi Government challenging the appointment of former Allahabad High Court judge Justice Umesh Kumar as the DERC Chairman on the ground that the name was unilaterally proposed by the LG without the Government's agreement. The apex court had allowed the oath-taking ceremony of Justice Kumar to be deferred during the pendency of this matter.

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First Published: Jul 21 2023 | 12:06 AM IST

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