SC Considers Referring Delhi Government’s Plea Challenging Centre’s ‘Services’ Ordinance To Constitution Bench

On Monday (17 July), a bench of the Supreme Court headed by the CJI and Justices PS Narasimha and Manoj Misra — hearing a petition filed by the Delhi government challenging the recent ordinance promulgated by the Centre — observed that it is contemplating a reference to the Constitution bench of the Apex Court.

The ordinance takes away ‘services’ from the control of the Government of National Capital Territory of Delhi

The bench observed that the issue whether the powers under Article 239AA(7)(a) of the Constitution could be invoked to make a law of the present nature (as under challenge) was not considered in the previous Constitution bench decisions of 2018 and 2023. 

The CJI remarked, “What they’ve done is that by using powers under 239AA(7), they’ve amended the Constitution to take services out of the Delhi Government Control. Is that permissible? I don’t think either of the Constitution bench judgements has covered that”.

While, Senior Advocate Harish Salve appearing for Delhi LG submitted that the issue was regarding the competence of the Parliament to make the law of the present nature and as the issue was not considered by the earlier judgements, a reference to the Constitution bench is necessary. 

However, SG Tushar Mehta requested the bench to defer the hearing in view of the fact that the Ordinance has to be presented as a bill before the Lok Sabha in the monsoon session starting on July 20th and it is possible that the Ordinance may be passed in a different form after the parliamentary process. 

The bench has posted the matter to 20 July for hearing preliminary arguments regarding the need for reference.