From Our Bureau
NEW DELHI: The Supreme Court, at the outset, indicated that the Ordinance issued by the Centre taking recourse to Article 239AA in the Delhi services control row may be sent to the Constitution Bench.
A bench comprising Chief Justice D Y Chandrachud and justices P S Narasimha and Manoj Misra, at the outset, indicated since the ordinance was issued by taking recourse to Article 239AA, it will be in the fitness of things if the matter is decided by a constitution bench.
It also asked Lieutenant Governor Saxena and Delhi Chief Minister Kejriwal to “sit together” and “rise above political bickering” to mutually decide on the name of the Chairman of Delhi Electricity Regulatory Commission (DERC).
“Why don’t two constitutional functionaries (Delhi L-G and CM) sit down and make it work? They have to rise above political bickering. We do not want to step into this, we want both sides to arrive at a solution,” said the bench, fixing further hearing on July 20.
“What they (Centre) have done is that by using power under 239AA(7), they have amended the Constitution to take services out of the Delhi government’s control. Is that permissible? I don’t think either of the Constitution Bench judgements has covered that,” the CJI said, in remarks seen as indicative of the court’s intention of referring the matter to a constitution bench.
“The point is this- Parliament has the power to enact a law under any entry in list 2 (state) or list 3 (concurrent). List 3 is concurrent. You have said by this clause 3A of the Ordinance that the state legislature cannot enact law under Entry 41 (State public services; State Public Service Commission) at all,” the CJI said.
“We will approach the Delhi L-G on Tuesday,” said senior advocate Abhishek Manu Singhvi, who represented the Delhi government, in response to the suggestion put forth by the court. “It will only be miraculous that both of them (Delhi L-G and CM) agree on a name,” he added further.
The reservations expressed by Dr. Singhvi were opposed heavily by senior advocate Harish Salve, appearing for Delhi L-G. “It is unfortunate that the Delhi government lawyer (Dr. Singhvi) starts by saying that he has no hope. The first reaction should be yes, we’ll do it,” he said.
Solicitor General Tushar Mehta, appearing for the Centre, opposed the observation and said as per Article 239AA(7) (b), a law made by Parliament is not deemed as an amendment to the Constitution.
Article 239AA deals with special provisions with respect to Delhi in the Constitution and sub-article 7 says, “Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.”
It also says any such law made under the Article “shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.”
