Delhi govt’s contention that only it has monopoly over concern for Delhi citizens fundamentally flawed: LG to SC

It is a “fundamentally-flawed contention” of the Arvind Kejriwal-led political establishment in Delhi that only they “monopolise” the issues of concern for the citizens here, the lieutenant governor of the national capital told the Supreme Court on Monday.

In an affidavit filed in the apex court, which is seized of a plea moved by the city government concerning a row over the appointment of the Delhi Electricity Regulatory Commission (DERC) chairperson, the office of the LG said it is “preposterous” to assume that the President of India, who acts on the aid and advice of the democratically-elected central government, would not be sensitive to the needs and requirements of the citizens of the national capital.

A bench headed by Chief Justice D Y Chandrachud had said on July 4 that it would examine the constitutional validity of a provision of the Centre’s recent ordinance governing appointments, such as that of the DERC chairperson, even as the Delhi government had informed the court that the oath taking of Justice (retired) Umesh Kumar as the chief of the city’s electricity regulatory authority stands deferred.

The appointment of Justice Kumar as the DERC chairperson has become yet another flashpoint in the turf war between the Aam Aadmi Party (AAP) government in Delhi and the Bharatiya Janata Party-led Centre.

During the hearing in the matter on Monday, the top court asked Delhi Chief Minister Arvind Kejriwal and LG V K Saxena to discuss the names of former judges who could head the DERC, saying the two constitutional functionaries have to rise above “political bickering”.

In its affidavit filed in the apex court, the LG office has said the appointment of Justice Kumar as the DERC chairman was in accordance with law and suffers from no infirmities.

“It is a fundamentally-flawed contention on the part of the political establishment of GNCTD to contend that it is they only who monopolise the issues of concern for the citizens of Delhi and to portray a picture that the central government would be opposed to the same,” it said.

The affidavit added that the writ petition filed by the Delhi government is “completely misconceived and liable to be dismissed”.

It said the president appointed Justice Kumar after the receipt of the recommendation or concurrence of the Allahabad High Court.

“Thus, the petition suffers from a serious eclipse, insofar as it completely fails to appreciate that there is no arbitrariness in section 45D (of the National Capital Territory of Delhi (Amendment) Ordinance 2023) and the provision merely echoes the constitutional scheme, as discussed above,” it said.

The affidavit said the Delhi government has asserted that because the bodies referred to in section 45D are financed by the budget determined by the Legislative Assembly and they work in the interest of the people of Delhi, the control cannot be transferred to the Union of India.

“It is submitted that the aforesaid contention is devoid of any merit because it excludes the fundamental premise of two CB (Constitution bench) judgments, which have unequivocally held that what is primary to the administration of the NCT of Delhi is the principles of cooperative federalism and further, such a submission ignores the fact that notwithstanding the insertion of Article 239AA, Delhi remains a UT (Union Territory) and in any UT, the participation of the central government cannot be construed as alien to the principles of governance or an unwarranted interference,” it said.

The affidavit said in January, a proposal relating to the appointment of Justice Rajeev Kumar Shrivastava, a retired judge of the Madhya Pradesh High Court, as the DERC chairperson, as approved by the Delhi chief minister, was placed before the LG.

The affidavit said it transpired that through an e-mail dated June 15, Justice Shrivastava communicated his inability to be appointed to the post “due to family commitments and requirements”.

“It is further submitted that in the entire petition, no fundamental rights under Part III have been alleged to be violated. It is submitted that even otherwise, no cogent grounds have been pleaded to seek a judicial review of the impugned ordinance or for that matter, no case has been made out to invoke Article 32 of the Constitution of India,” it said.

The affidavit said while the Delhi government has challenged section 45D of the Presidential Ordinance in the writ petition, simultaneously, it has mounted a separate challenge to the entire Presidential Ordinance by way of another writ petition, which also includes a challenge to section 45D.

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Claiming that it is the conduct of the petitioner that reeks of mala fide, it said such conduct, where a judicial and constitutional functionary, a senior retired judge, is treated with utmost disrespect needs to be seriously deprecated.

“Given that the parliamentary competence and plenary jurisdiction so far as the NCT of Delhi is unquestionably clear, there can be no quarrel on the power of the president to promulgate an ordinance under Article 123 of the Constitution for the objects and reasons enunciated in the ordinance. Therefore, it is impermissible to the petitioner to question the impugned ordinance on the alleged ground of arbitrariness,” it said.

The apex court said it will again take up the issue for consideration on Thursday.

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