The Supreme Court on Monday asked Delhi Chief Minister Arvind Kejriwal and Lieutenant Governor V K Saxena to rise above 'political bickering' and discuss who could head the national capital's power regulator Delhi Electricity Regulatory Commission (DERC), saying the two constitutional functionaries should get down to 'serious work of governance' away from glare of publicity.
In a bid to break the ongoing deadlock over naming a retired judge for the DERC post, a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha suggested that the chief minister and the LG should meet and sit down together on Tuesday and reach a consensus either on one name or may exchange three names each.
"The two constitutional functionaries have to rise above political bickering and they should give a name for the post of DERC chairperson."
The bench then fixed for Thursday the plea of the Delhi government over the issue of appointment of the chairperson of the DERC.
"Does everything have to be run through the Supreme Court?" it asked, adding that 'with a degree of diplomacy and statesmanship, the solution can be found'.
"There is so much work of government that has to be done away from the glare of publicity and the glare of public space. I think both the functionaries should get down to serious work of governance and let both of them sit down together tomorrow...
"We are not so much concerned with the appointment of the DERC chairperson which will be done. We are at the larger issue. If both of them sit together, talk to each other as constitutional functionaries, I am sure this can be done. Please share the message to both of them that this is what the Supreme Court expects should be done by them," the CJI said.
The apex court had said on July 4 that it will 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 informed it that the oath taking of Justice (retd) Umesh Kumar as chief of the national capital's electricity regulatory authority stands deferred. Justice Kumar is a former judge of the Allahabad high court.
The appointment of Justice Kumar as the DERC chairperson has become yet another flashpoint in the turf war between the city's AAP government and the Centre.
At the outset, Solicitor General Tushar Mehta, appearing for the Centre, said the ordinance over the services was going to be presented before Parliament in the Monsoon session and the court may await the outcome of the parliamentary proceedings. The session starts on July 20.
Senior advocate Abhishek Singhvi, appearing for the Delhi government, said the issue of tariff and power subsidy are very crucial for the local administration and that the judicial proceedings cannot wait.
The court then suggested it will be better that both the constitutional functionaries sit together and find a solution to the impasse.
"I appear for the LG and I do not need instructions from my client and what your lordships have said is their constitutional duty and they must do it," said senior advocate Harish Salve, appearing for the LG.
Salve opposed the submissions of Singhvi that the latter was not hopeful of the solution.
"I only express regret that the lawyer for the Delhi government starts by saying that I have no expectations. I think we should go with the hope that in all probability, good sense will prevail and two constitutional functionaries will be able to solve it," Salve said.
The bench observed that if the CJI is authorised to select then it can be done 'in less than 15 minutes'.
"Why don't the two constitutional functionaries sit down and resolve it?" the CJI said repeating the suggestion.
Singhvi said he will approach the Delhi government and convey the observations.
"I am confident of my client and I will ask him to rise above all politics and sit as a constitutional functionary," Salve said.
So long as there is an underlying principle that an 'objective' person should head the DERC chairperson, there will not be any problem in finding the solution, the bench said.
It asked Salve and Singhvi to convey to the LG and the CM that the top court wanted them to meet and resolve it.
Salve, in a lighter vein, said he was contemplating filing a PIL in his name that constitutional functionaries should not communicate through 'Twitter and Instagram' and they should communicate as they used to before.
The bench had 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 and so the administration of oath to him should 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 had said.
The top court had issued notices to the Centre and Lieutenant Governor V K 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.
The Delhi government said in its petition that the office of the LG has to act on the aid and advice of the council of ministers which he has not.
The Centre's ordinance on services in the national capital territory gives overriding powers to the lieutenant governor over the elected government in the matter of appointments.
The post of the DERC chairperson has fallen vacant after Justice Shabihul Hasnain demitted office on January 9, 2023.
The AAP government had recommended the name of former Madhya Pradesh high court judge Justice Rajeev Srivastava for the position. However, Justice Srivastava expressed his inability to take charge due to 'family commitments and requirements'.
On May 19, the top court had said the lieutenant governor had to act on the aid and advice of the council of ministers and ordered that the chairperson of the DERC be appointed within two weeks.
Later, the government sent the name of Justice (retd) Sangeet Raj Lodha of the Rajasthan high court on June 21.
The central government, however, notified the name of Justice Kumar for the post the same evening, prompting the AAP government to move the top court challenging the notification.
On July 3, the lieutenant governor advised Chief Minister Kejriwal to complete the oath taking exercise of Justice Kumar through video conferencing, after the event was postponed due to Power Minister Atishi's 'ill health'.
