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Wednesday, October 4, 2023

Supreme Court Sends Ordinance Pleading to Five Justice Bench, Refuses to Stay | indian news

NEW DELHI: The Supreme Court on Thursday remanded the challenge to the constitutional validity of the May 19 Delhi Services Ordinance to a five-judge court, but refused to stay the Center’s order, which substantially negated the May 11 SC ruling granting legislative and executive control over the bureaucracy to the delhi government.
After hearing lead counsel AM Singhvi’s arguments for a stay of the “unconstitutional” ordinance, and on the legitimacy of the order from lead counsel Harish Salve and Solicitor General Tushar Mehta, a bench of Chief Justice DY Chandrachud and Justices PS Narasimha and Manoj Misra sent it to a larger bench.
Finding that the ordinance would remain in place, giving the Center an advantage over the bureaucracy in Delhi until its validity is decided, Singhvi asked the CJI to appoint a five-judge commission that is scheduled to hear the August 2 petitions challenging the removal of J&K’s special status to deal with the Delhi ordinance petitions first and the J&K issue later. The commission rejected the request outright. “We will not change the hearing schedule on the petitions that challenge the validity of the repeal of article 370. All the lawyers that appear in those petitions have been notified and the allegations have been finalized. We cannot postpone the hearing. However, we will deal with the matter of the Delhi ordinance after completing the section 370 procedures.”
Singhvi said a peculiar post-ordinance situation has arisen in Delhi, where no bureaucrat takes orders from the elected government. He also pointed to the deputy governor’s decision to summarily dismiss 437 experts working in the various departments of the Delhi government.
Salve, representing the LG, said these 437 “so-called experts,” most of whom happened to be members of a political party, were appointed through a deeply flawed hiring process and were being paid with taxpayer money.
Moving away from the war of words argument, the CJI focused on the ordinance, saying: “What you (the Center) have effectively done is remove Schedule II Entry 41 (services) from the purview of the Delhi legislature. The question is whether it was allowed without amending the Constitution.”
Salve said Section 3A inserted into the GNCTD Act through the ordinance may or may not survive parliamentary scrutiny. “Even assuming that Section 3A of the ordinance is struck down, the ordinance remains valid by virtue of a joint reading of Section 239AA(3)(b) and Section 239AA(7), both of which allow Parliament to enact laws to supplement provisions relating to the government of Delhi,” it said.
The Delhi government’s main attack is found in Section 45D of the ordinance, which states: “Notwithstanding anything contained in any other law then in force, any authority, board, commission or any statutory body, by whatever name may be called, or any officer or member thereof, constituted or appointed by or under any law then in force, in and for the National Capital Territory of Delhi, shall be constituted or appointed or nominated by the President.” Singhvi said that with this the Center would appoint the heads of nearly 50 statutory boards who would not be accountable to the Delhi government, which would bear the cost of their salaries and allowances.
Solicitor General Tushar Mehta said the Delhi government’s apprehension of losing control of the bureaucracy was unfounded, as officers would remain under the functional control of ministers and report to the CM, which is the authority to write their annual performance appraisal report, an important career document for bureaucrats.
He said that the ordinance had constituted a National Capital Civil Services Authority (NCCSA) with the CM, the Chief Secretary of Delhi and the Chief Secretary (Household) of the Delhi government. The NCCSA, headed by the CM, will decide the assignments and transfers of bureaucrats, he added.

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