Controversial extension of the tenure of Delhi's Chief Secretary
The Supreme Court of India’s judgment, in November 2023, permitting a six-month extension to Delhi’s Chief Secretary Naresh Kumar is one more instance of the Court’s judicial self-abnegation.
The Court sets out the correct doctrine, but when the government digs in its heels and refuses to follow the law laid down.
The Court buckles down and invents a subsequent justification for the government to do as it wants.
Delhi’s incumbent Chief Secretary has serious charges of corruption and favouritism against him, with the Delhi Chief Minister Arvind Kejriwal writing to the Delhi Lt. Governor seeking the Chief Secretary’s removal.
He was anyway due to retire on November 30, 2023 and the Delhi Government had sought discussions with the Centre on appointing a successor.
Later the court was informed that the Centre had chosen to extend the Chief Secretary’s tenure by six months.
Arguments against the extension
If the requirement of the Government of National Capital Territory of Delhi recommendation does not strictly apply to the Delhi Chief Secretary as he also exercises control over some matters reserved for the Union Government.
The rule also contains two other pre-conditions for the extension of his tenure.
The rule requires “with full justification” and “in public interest”.
As mentioned earlier, serious allegations of conflict of interest have been levied against the incumbent Chief Secretary which are currently
under investigation, and the Chief Minister has recommended his immediate removal to the Delhi Lt. Governor.
When the Chief Secretary has completely lost the confidence of the Government of National Capital Territory of Delhi, the question of “full justification” or “public interest” does not even arise.
The role of a Chief Secretary in a government was first delineated by a five-judge Bench decision of the Supreme Court, in the Royappa case.
The ruling finds mention in its recent order only to be ignored.
In Royappa, the Court had held that the post of the Chief Secretary is a post of great confidence, as he is the “lynchpin in the administration”, necessitating a rapport between him and the Chief Minister.
But in Delhi now, the Court has evaded this ruling, saying that the application of Royappa to the matter of the Chief Secretary shall be decided when the Court hears the challenge to the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Act, 2023.
But while ignoring Royappa on this count, the Court then cherry-picks observations from Royappa to say that the Chief Secretary must comply with the directions of the elected government over matters on which their executive competence extends.
Article 239AA
Article 239 AA was inserted in the Constitution by The Constitution (69th Amendment) Act, 1991 to give Special Status to Delhi following the recommendations of the S Balakrishnan Committee that was set up to look into demands for statehood for Delhi.
It says that the NCT of Delhi will have an Administrator and a Legislative Assembly.
Subject to the provisions of the Constitution, the Legislative Assembly “shall have power to make laws for the whole or any part of the NCT with respect to any of the matters in the State List or Concurrent List.
So far as any such matter is applicable to Union territories” except on the subject of police, public order, and land.
Further, the Article 239AA also notes that L-G has to either act on the aid and advice of the Council of Ministers, or he is bound to implement the decision taken by the President on a reference being made by him.
Also, Article 239AA, empowers the L-G to refer a difference of opinion on ‘any matter’ with the Council of Ministers to the President.
Thus, this dual control between L-G and the elected government leads to a power tussle.
The Royappa case
This is a very important landmark case here the question of law was regarding Article 14 of the Constitution of India.
This article was interpreted and given a broadened meaning by the judgment given by Chief Justice Ray, Justice Palekar, Justice Chandrachud, Justice Bhagwati and Justice Krishna Iyer.
The new dimension and its surety against the arbitrariness of Article 14 were laid down in the renowned case of E.P. Royappa V State of Tamil Nadu AIR 1974 SCC 555.
Royappa case that the Supreme Court laid bare a new dimension to Article 14 which it had been a guarantee against arbitrariness.
From the very beginning the Supreme Court held that while Article 14 forbids class legislation, it doesn’t forbid reasonable classification.
If any statute is found to not suit the important requirements of Article 14, it’ll be struck down as void and no act of the legislature might be termed “arbitrary”.
Any order passed independently of a rule or without adequate determining principle would be arbitrary.
Here the valid determining principle is valid classification.
Article 14 isn’t a guarantee against arbitrariness classification would be arbitrary, if it doesn’t follow and is contrary to the norms laid down by the Supreme Court about classification.”
The facts of the Royappa case is that the petitioner was a member of the Indian Administrative Service in Tamil Nadu.
In 1969, in November when the position of the Chief Secretary fell vacant and the petitioner was suitable for that post.
He was selected and a draft order on the appointment that showcased the ascent of the Chief Minister.
Although the Government of the State gave permission and authority for the formation of a temporary post of Deputy Chairman in the State Planning Commission in the grade of Chief Secretary for 1 year and the petitioner was appointed to the same post.
Therefore it was entitled that the same rank and payment was permissible to the position of the Chief Secretary.
He that is the petitioner entered his office on 7th April 1971.
Royappa case in the context of the SC decision to extend the tenure of Delhi's Chief Secretary
The Delhi government did not ask for the Union Government to be completely divested of the power to appoint the Delhi Chief Secretary, and only asked for his appointment to be a collaborative process between the two Governments.
The Supreme Court erroneously held that while making a reference to the Union Government regarding appointment of the Chief Secretary, the Lt. Governor acts in his sole discretion.
While such a reference to the Union Government is required, it should be grounded
on the aid and advice of the elected Government of Delhi.
The Court reasoned that the Chief Secretary is concerned with the three subjects reserved for the Union Government, but completely ignored the fact that he is also concerned with more than 100 other subjects over which the Government of National Capital Territory of Delhi has competence.
Through the Services judgment, the Court went to great lengths explaining why the Delhi government’s control over services is necessary for proper democratic functioning.
The Court should have recognised that when the Chief Secretary completely loses the confidence of the elected government, the chain of accountability is broken.
This breakage is not one time in nature; it perpetuates the distrust between the elected government and the bureaucracy in all matters of governance.
Every matter related to services that the Court now hears will be a test of its own stance, its own reasoning, and its own conviction set out in Royappa and Services.
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