The Supreme Court on Tuesday deferred the oath taking ceremony of Delhi electricity regulatory commission (DERC) chairperson-designate Justice (retd) Umesh Kumar and sought responses from the Centre and the office of the Lieutenant Governor (L-G) on a plea of the Delhi government challenging the law governing such an appointment.
Issuing notice on the petition filed by the Delhi government, a bench of chief justice of India (CJI) Dhananjaya Y Chandrachud and justice PS Narasimha agreed to hear the matter on July 11 as the petition raised a legal issue with regard to the constitutional validity of Section 45D of the Government of National Capital Territory of Delhi (GNCTD) Ordinance 2023 recently brought in by the Centre after the apex court ruled on May 11 giving Delhi government control over services in the national Capital.
The Court said, “Having regard to urgency of the matter, let the petition be listed on July 11… It will be understood that administering of oath in pursuance of notification of June 21 to the former judge of the Allahabad high court shall stand deferred presently.”
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Solicitor general Tushar Mehta appeared for Centre while senior advocate Sanjay Jain appeared for L-G.
The Court also issued notice to Attorney General of India R Venkatramani to assist in the matter.
The Court told Mehta that till the next date of the hearing, the L-G should not seek administering of oath when the matter is pending in the Court.
Mehta told the Court that the oath is to be administered by the Delhi government which it has been delaying since June 21.
He referred to the chain of events pointing out that despite several communications, the former judge has not been administered oath.
The oath was to be administered on July 3, but the Delhi power minister Atishi expressed her inability after she fell ill and sought deferment of oath till July 6.
“Will this Court permit such kind of approach to a former judge,” Mehta said, adding, “They (Delhi government) have been playing with the judge in this manner.”
Mehta further noted that this petition intends to test the waters before the petition challenging the ordinance is taken up.
“Ordinance is already under challenge. This is testing the water by challenging Section 45D. Don’t permit such games to be played”, he said.
As the oath has to be administered by the Delhi government, Singhvi appearing for Delhi said that no steps will be taken in this regard till the next date.
Section 45D states, “Notwithstanding anything contained in any other law for the time being in force, any authority, board, commission or any statutory body, by whatever name it may be called, or any office-bearer or member thereof, constituted or appointed by or under any law for the time being in force, in and for the National Capital Territory of Delhi, shall be constituted or appointed or nominated by the President.”
Using this provision, the Centre appointed justice Umesh Kumar, a former judge of the Allahabad high court on June 21 which has been challenged by the Delhi government in the top court.
The Aam Aadmi Party (AAP) government has also challenged the ordinance by way of a separate petition which is yet to come up for hearing in the top court.
The DERC chairperson post has been vacant since January and on May 19, the Supreme Court had directed the L-G to process the name forwarded by Delhi government within two weeks.
The Delhi government had named a former Madhya Pradesh high court judge, Justice (retd) Rajeev Kumar Srivastava for the DERC chairman post.
Singhvi pointed out that though the two weeks expired in the first week of June, nothing was done by the L-G and on June 16 justice Srivastava expressed his disinclination for the post.
On June 21, the Delhi government recommended the name of a former Rajasthan high court judge for the same post but the same evening, the President issued the notification appointing justice Kumar.
Singhvi told the Court that the Centre wants its choice of person as DERC chairperson as it wants to stop the Delhi government’s scheme of providing free and subsidised electricity to people.
Senior advocate Sanjay Jain appearing for L-G told the Court that the May 19 judgment of the top court had held that while appointing DERC chairperson, the consent of the chief justice of the parent high court to which the retired judge belongs should be taken.
In this case, Jain pointed out that the consent of Allahabad high court chief justice was taken.
