The tussle continues: Supreme Court will decide on granting interim stay on the Delhi Services Ordinance

Next Monday, the Supreme Court will rule on the Government of National Capital Territory of Delhi (GNCTD)'s plea for an interim stay on the Presidential Ordinance on "services" and the lieutenant governor's decision last week to terminate the services of over 400 advisers and consultants hired by the GNCTD.

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ON July 17, the Supreme Court will decide whether to impose an interim stay on the Ordinance promulgated by the President taking away Delhi legislative assembly's power to make laws with respect to the Government of the National Territory of Delhi (GNCTD)'s "services".

The Ordinance was issued merely eight days after a Constitution Bench of the Supreme Court held that the Delhi legislative assembly's power to make laws extends to all subjects in the State List of the Seventh Schedule of the Constitution, except public order, police and land— subjects expressly excluded from its jurisdiction by Article 239AA of the Constitution.

The division Bench of the court comprising the Chief Justice of India (CJI) D.Y. Chandrachud and Justice P.S. Narasimha will also consider the GNCTD's application asking for a stay on the lieutenant governor's decision from earlier this month declaring the appointment of 437 advisers and consultants as void ab initio.

"Don't give weeks"

As Dr Abhishek Manu Singhvi, appearing for the GNCTD, began submissions on the legality of the Ordinance, Additional Solicitor General of India, Sanjay Jain, appearing for the lieutenant governor, interjected to tell the Bench that the lieutenant governor is not a party to the matter.

"In this, the petitioners have chosen not to implead the lieutenant governor, as is required," Jain said.

Taking notice of the same, the CJI started dictating the Order, "Permission is granted to implead the lieutenant governor as a party-respondent. A counter affidavit shall be submitted within a period of—"

"Don't give weeks, m'lord," Dr Singhvi interrupted, indicating his desire to have the matter listed for Orders as early as possible.

The Bench, having already disclosed its inclination to not hear the matter in detail today, suggested that the respondents be given two weeks to file their counter affidavits. Ultimately, however,  the Bench decided to take up the matter next Monday, instead.

"List on Monday for considering the prayer for interim relief," the CJI continued his Order dictation.

To this, Mehta asked the Bench to clarify that only prayers for interim relief on the termination of services of the advisers and consultants would be considered.

Mehta added that he wishes to bring forward certain "shocking facts" about the appointment of such consultants and needed time to compile the said shock-evoking facts.

"No, but he (Dr Singhvi) is also pressing for relief against the Ordinance. We cannot prevent him. We may grant it or may not grant it," the CJI responded, holding that both matters will be considered together next Monday.

"Chairing in minority"

"Can your Lordships imagine a meeting where a chief minister sits in a minority?" Dr Singhvi asked, referring to the creation of the National Capital Service Authority comprising the chief minister, the chief secretary and the principal home secretary of the GNCTD.

In essence, the GNCTD's argument is that since the latter two members of the authority are Union government appointees and all matters are to be decided by a majority of votes, this effectively gives the Union government a significantly greater say in the appointment of civil servants.

It may be noted that the authority will hold power to recommend the transfers and postings of certain high ranking civil servants and will recommend names to the lieutenant governor; in whose name the officers will be officially appointed.

On the powers of the Delhi legislative assembly, the Ordinance specifies that the assembly's powers shall not extend to Entry 41 (State Public Services; State Public Service Commission) of the State List of the Seventh Schedule of the Constitution or any matter connected therewith or incidental thereto.

This rule shall apply "notwithstanding anything contained in any judgement, order or decree of any Court".

The above changes were made by amending the Government of National Capital of Delhi Act, 1991. The amendments have been justified stating that "any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international spectrum."

Dr Singhvi sought to bring the court's attention to the parts of its May 11 judgment which stressed on the principles of democracy and federalism. 

"What are the pillars on which the (Supreme Court's) judgment was based? Civil service accountability to the executive, federalism and decentralisation, and a democratic government," Singhvi said.