Challenge to Delhi Service Ordinance | Day 2: Supreme Court Considers Constitution Bench Reference

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

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

The Supreme Court issued notice to the Union Government in the challenge to the Delhi Ordinance, which effectively transferred key powers of the elected Delhi government to the Union. The Court also recommended that the case be referred to a Constitution Bench.


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. 

Chief Justice D.Y. Chandrachud stated that this case may require the deliberation of five Judges, as it concerns a crucial question of the scope of Article 239AA(7) of the Constitution. He explained that Art. 239AA(7) allows the Union to ‘make provisions for giving effect to, or supplementing’ Article 239AA. While the Union makes laws that are supplementary to the special provisions that govern NCT of Delhi, can it indirectly amend the Constitution?

He further explained that by using 239AA(7) the Ordinance takes Entry 41 of the Seventh Schedule squarely out of the domain of the Delhi Legislature, and brings it exclusively within the Union’s control. The Chief Justice pointed out that neither the 2018 nor the 2022 Constitution Benches that dealt with the special status of Delhi ventured into answering this question. 

Senior Advocate Dr. Abhishek Manu Singvi who represents the Delhi government argued that five judges were not needed to hear this case. He asked for five minutes on Thursday (July 20 2023) to present his arguments on why this reference was unnecessary in the challenge to the Ordinance. 

Sr. Adv. Harish Salve, representing the Lieutenant Governor, appeared keen to have a larger Bench discuss this issue. He stated that the petitions and submissions so far claim arbitrariness and violation of basic structure. The question that the Bench was raising was different—it was about the competence of the Parliament to enact a legislation that would turn the concurrent list to an exclusive list. That is, can the Parliament amend ‘the Constitution without amending the Constitution’?

The Bench agreed to hear the case, with Singhvi’s arguments on Thursday.

Supreme Court asks Constitutional Functionaries to Stop ‘Political Bickering’

The day’s hearing came at the heel of a passionate, heated debate 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). In a previous hearing on July 4 2023, the Court had asked the Union to defer the appointment of former Allahabad High Court Judge, Justice Umesh Kumar, as it heard arguments in the case. The Delhi Government has challenged Section 45D of the Ordinance which gives unilateral powers to the Union government through the Lieutenant Governor to appoint members of statutory bodies in Delhi. 

In today’s hearing, the Bench stated that as Constitutional Functionaries, the Lieutenant Governor and the Chief Minister of Delhi must stop the ‘political bickering’ and ‘break the impasse’ in the appointment issue. CJI Chandrachud told the parties to rise above the issues and not put every issue through the modalities of the Court. 

Singhvi appeared unconvinced by this solution, calling it ideal but unrealistic. Salve appeared enraged that the Delhi government showed lack of hope, and asked for a more positive approach from the Court. He said that the first reaction from the Delhi government should have been ‘yes we will do it!’ Salve assured the Court that he will advise the Lieutenant Governor to cooperate, stating ‘when [we] want to work, we know how to work’. 

The parties will be submitting the outcome of the discussion between the two Constitutional Functionaries on Thursday (July 20, 2023).