Supreme Court stays oath of DERC chief, to hear Delhi govt’s challenge

The Supreme Court on Tuesday moved to stay the swearing-in of former Allahabad High Court judge Justice Umesh Kumar as the chairman of the Delhi Electricity Regulatory Commission (DERC), while allowing a petition filed by the Government of the National Capital Territory of Delhi (GNCTD) challenging his appointment. 

A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha observed that the petition raises a question of law regarding the validity of Section 45D of the GNCTD Act, as read in the latest order issued by the Centre, which gives superior powers to the Lieutenant Governor over the elected government in the matter of appointments to commissions and statutory bodies. The bench issued a notice to the Attorney General for India on this point of law and posted the matter for further hearing next Tuesday.

The bench was inclined to uphold the notification of the former judge's appointment as DERC chairman. However, she specifically abstained and recorded a statement that the swearing-in ceremony would be postponed. "It is understood that the administration of oath pursuant to the notification dated June 22, 2023 to the former Chief Justice of the Allahabad High Court shall be postponed," the bench observed in the order.

Chief advocate Dr. Abhishek Manu Singhvi, appearing for the Delhi government, sought a stay on the notification of Justice Kumar's appointment, saying the swearing-in ceremony was scheduled for Thursday. Singhvi argued that the LG's unilateral action is against the Constitution Bench judgment of the Supreme Court and also against the spirit of Article 239AA of the Constitution.

“As a political executive, I am giving power of 200 units to the poorest of the poor in Delhi. It is the most popular scheme in Delhi. Now they want to name someone and stop it!” Singhvi shouted.

Solicitor General of India Tushar Mehta pointed out that Justice Kumar was appointed after taking the approval of the Chief Justice of the Allahabad High Court, as per the law clarified by the Supreme Court on 19 May. At this point, Chief Justice of India DY Chandrachud asked who had written to the HC Chief Justice seeking his approval. "LG or Govt?" asked the CJI.

Following this, the court decided to issue a preliminary injunction. The SG said that it is the government's job to administer the oath, which they have been delaying since June 22 citing one reason or the other. "Please don't give your stamp of approval that they are postponing it since June 23. They are avoiding it for one reason or the other," SG said.

“Then we will stick with the announcement which we were already inclined to do... but somehow we wanted to give it a different feel,” the CJI said. Senior advocate Sanjay Jain, appearing for the LG, informed the court that a former judge recommended by the Delhi government, Justice Rajeev Kumar Shrivastava, had refused to accept the posting due to personal difficulties.