Challenge to Delhi Service Ordinance | Day 3: Bench Refers Case to a Constitution Bench

Challenge to Union’s Ordinance on Control of Delhi’s Administration

Judges: D.Y. Chandrachud CJI, P.S. Narasimha J, Manoj Misra J

Today, a Bench comprising Chief Justice D.Y. Chandrachud, Justices P.S. Narasimha and Manoj Misra decided to refer the Delhi Government’s challenge to the Union’s May 11, 2023 Ordinance to a larger Constitution Bench. 

In the previous hearing, the Court pointed out that the case raises a crucial question about the scope of Article 239AA(7) of the Constitution, which allows the Union to ‘make provisions for giving effect to or supplementing’ Article 239AA that lists the special provisions related to the NCT of Delhi. The Court will be examining whether the Union while making laws that are supplementary to the special provisions that govern the NCT can indirectly amend the Constitution.

The Ordinance created a 3-member body, called the National Capital Civil Service Authority (the Authority), which will control civil servants in the NCT of Delhi. The Authority comprises two Union appointees and the Chief Minister of Delhi and will make all decisions through internal voting. The Ordinance also states that the Lieutenant Governor will have the ‘sole discretion’ in the event of a tie. 

The Delhi Government has argued that the Ordinance contradicts the Court’s May 11, 2023 judgement which granted the Delhi government control over services in the NCT of Delhi. 


On May 11th, 2023, a 5-Judge Constitution Bench held that the Delhi government must have the power to control civil servants in the NCT of Delhi. The Bench emphasised the importance of a federal governance structure and highlighted the unique status of Delhi.

A week later, the Union issued an Ordinance that barred the Delhi government from making laws on services regardless of what ‘any court’ says. Further, it created a 3-member body, called the National Capital Civil Service Authority (the Authority), which will control civil servants in the NCT of Delhi. The Authority will comprise of two appointees from the Union government along with the Chief Minister of Delhi, and will make all decisions through internal voting. Most notably, the authority’s decisions must be approved by the Lieutenant Governor, who will also have the ‘sole discretion’ to override it.

On 26th June, 2023, the Government of NCT Delhi filed a Writ Petition before the Supreme Court challenging the Ordinance.

Delhi Government: Reference to Larger Bench Will Cause Delays

Sr. Adv. Dr. Abhishek Manu Singhvi appearing for the Delhi Government tried to convince the Court that a reference to a larger Bench was unnecessary. 

He stated that the Ordinance in question did not ‘meet the bare textual requirement’ of Article 239AA of the Constitution. He pointed out that as per Art. 239AA (7), any change under this part of the Constitution would not be deemed as an amendment of the Constitution. A 3-judge Bench was adequate to adjudicate a question of law involving an interpretation of this provision. 

‘It is a short matter’ he said. A reference to a larger bench would be time-consuming and will put the whole system in ‘paralysis.’ 

Dr. Singhvi also pleaded that if a reference to the larger bench had to be made, then the case may be listed before the hearings in the challenge to the abrogation of Art. 370 commences. The Art. 370 hearing starts from August 2, 2023. The Bench refused to change the Constitution Bench schedule of the Court and postpone the Art. 370 hearing. The challenge to the abrogation of Article 370 has been pending before the Supreme Court since 2019. 

Union Government Agrees that the Case Has Questions Requiring Constitution Bench Consideration

In support of the Bench’s inclination to refer the case to a larger Bench, Solicitor General Tushar Mehta appearing for the Union Government stated that even if the question pertaining to Art. 239 AA (7) was clear, other provisions needed clarity. 

Attorney General R. Venkataramani added that if the Court saw that a constitutional question was involved in the case, the 3-Judge Bench had the prerogative to make a reference. 

Ultimately, the Bench decided that a reference to a larger Bench was necessary and concluded the days’ hearings. Sr. Adv. Harish Salve representing the Lieutenant Governor of Delhi was in complete agreement with the reference. 

Supreme Court to Appoint Ad Hoc DERC Head

The day’s arguments commenced with a heated argument between the Lieutenant Governor and the Delhi government, on the specific issue of who has the power to appoint the head of the Delhi Electricity Regulatory Commission (DERC). 

Previously, the Court had directed the parties to rise above the ‘political bickering’ and resolve the impasse through a mutual discussion between the Aam Aadmi Party and the Bharatiya Janata Party. 

Today, the ‘bickering’ appeared to continue and no consensus was reached. The Bench pointed out that the validity of the DERC appointment would be subject to the decision of the Court in the challenge to the Union’s ‘service’ Ordinance. While the Court considered the validity of the Ordinance, an ad hoc head could be appointed to ensure that the institution did not suffer. 

They stated that they would review suitable candidates and appoint one of them as an interim head of the DERC till a final decision on the Ordinance is reached. 

As the day’s hearings came to an end counsels bid Justice Narasimha, who is taking a leave for travel, a pleasant journey, joking that he would finally get a break from the ongoing ‘shouting’ in the Court.