Amid the face-off between Arvind Kejriwal Government and Lieutenant Governor Vinai Kumar Saxena over the appointment of the Delhi electricity regulatory commission (DERC) chief, the Supreme Court on Tuesday deferred the oath taking ceremony of its 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.
It also took on record the Delhi Government’s statement about deferring the oath taking ceremony of Justice Kumar, whose appointment has become yet another flashpoint in the turf war between the AAP Government and the Centre.
A bench of Chief Justice DY Chandrachud and Justice PS Narasimha said it wanted to deal with the plea challenging the Centre’s notification appointing Justice Kumar as the DERC chairperson in a “non-controversial” manner on July 11 and so the administration of oath to him be deferred.
“Dr Abhishek Manu Singhvi, senior counsel appearing on behalf of the petitioner (Delhi Government) states that the administering of oath in pursuance of the notification of the Union Ministry of Home Affairs dated June 21, 2023 to the former Judge of the Allahabad High Court shall stand deferred presently,” the order, uploaded on the apex court’s website, said.
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 top court also issued notices to the Centre and the office of Lieutenant Governor Saxena on the plea of the Delhi Government which also challenges the June 21 notification of the Union Ministry of Home Affairs appointing Justice Kumar as the DERC chairperson.
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.
When the counsel for the Centre objected to the deferment of oath taking of the former judge, the bench comprising Chief Justice Chandrachud and Justice Narasimha observed that it was rather inclined to stay the MHA notification.
Observing that since the matter involved a “pure question of law”, the bench sought the assistance of attorney general Venkataramani and fixed the plea for hearing on July 11. “Issue notice. Since the constitutional validity of the Section 45 D of the National Capital Territory of Delhi (Amendment) (Ordinance), 2023 has been called into question, a formal notice shall also be served on the attorney general for India.”
“Having regard to the urgency of the matter, the proceedings shall be listed for hearing and final disposal at this stage on 11 July 2023. Since a pure question of law is raised, liberty to the parties to file brief written submissions. In the event that any counter affidavit is to be filed, a copy shall be served on the petitioner by July 10, 2023,” it ordered.
The bench also said it recorded the submissions of senior lawyer A M Singhvi, appearing for the Delhi Government, on deferring the oath taking process to deal with the matter in a “non-controversial” manner.
“It has been understood that the administering of oath, in pursuance of the notification of the Union Ministry of Home Affairs dated June 21, 2023 to the former judge of the Allahabad High Court shall stand deferred.”
The appointment of the DERC chairperson has led to a power tussle between the Delhi Government and the office of the LG and it led to filing of a fresh case in the top court. At the outset, Singhvi sought a stay of the notification appointing Justice Kumar as the DERC chairperson.
The senior lawyer alleged that the unilateral action of the LG was against the spirit of the apex court’s recent judgement. “As a political executive, I give free power of 200 units to the poorest of the poor in Delhi. It is the most popular scheme in Delhi. Now they want to appoint someone of their choice to stop this,” he said.
The solicitor general said that Justice Kumar was appointed after taking the concurrence of the Chief Justice of the Allahabad High Court as directed by the top court on May 19. The bench then asked as to who took the views of the chief justice of the high court.
Solicitor general replied that it was L-G and said, “Please do not give a stamp of approval to the fact that they are already deferring this since June 23. The Delhi Government has been dodging this for one reason or the other.”
“Then we will better stay the notification and which we were inclined to do. But, we thought that we will deal with it in a non-controversial manner,” the CJI said.
The post of DERC chairperson was vacant after former head of the commission Justice Shabihul Hasnain demitted office on January 09, 2023.