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JUDICIAL CONTRADICTION IN DELHI CHIEF SECRETARY’S EXTENSION
Relevance: GS 2 – Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Why in the News?
- The Supreme Court of India granted a six-month extension to Delhi’s Chief Secretary Naresh Kumar in November 2023.
- The Court’s approval of an extension for Delhi’s Chief Secretary is seen as an instance of judicial self-abnegation.
- The article raises concerns about the Court’s reversal of its previous Services judgment, emphasizing the elected government’s authority over Delhi’s services.
- The presence of serious corruption charges against the Chief Secretary, coupled with the Delhi Chief Minister’s recommendation for removal, raises concerns about a conflict of interest.
- Criticisms are directed at the Court’s reliance on the 2023 amendment and its interpretation of the Chief Secretary’s role, noting inconsistencies with prior rulings, including Royappa Case.
Issue of Judicial Self-Abnegation
- Despite setting out the correct doctrine, the Supreme Court is accused of compromising its stance when the government refuses to comply with established laws.
- In such cases, the Court allegedly backtracks and provides justifications for the government’s non-compliance, leading to a perception that its judgments are not enforceable.
Allegations Against Chief Secretary Naresh Kumar
- The incumbent Chief Secretary of Delhi, Naresh Kumar, faces serious charges of corruption and favoritism.
- Delhi Chief Minister Arvind Kejriwal wrote to the Delhi Lt. Governor, urging the removal of Chief Secretary Naresh Kumar.
- Chief Secretary Naresh Kumar was initially due to retire on November 30, 2023.
- The Delhi Government had sought discussions with the Centre regarding the appointment of a successor.
Solicitor-General Viewpoints
- On November 28, the Chief Justice raised the option of letting Chief Secretary Naresh Kumar retire and appointing a fresh successor.
- The Solicitor-General cited a 2023 Amendment Act, asserting the Centre’s statutory authority over civil services in the national capital.
- Later, the Court was informed that the Centre had chosen to extend Chief Secretary Naresh Kumar’s tenure by six months.
Passage of the Government of NCT of Delhi (Amendment) Act 2023
- The Act was challenged by the Delhi government, but courts did not stay it, presuming its constitutionality.
- It aimed to nullify aspects of the Services judgment of May 11, 2023, which granted control over services in Delhi to the elected government under Article 239AA of the Constitution.
- Services Judgment and Constitutional Interpretation:
- The Services judgment by a five-judge Constitution Bench clarified that “state government” in relevant All India Rules (AIR) or Joint Cadre Rules (JCR) related to Delhi means the Government of Delhi.
- This ruling implied that the Delhi government’s recommendation was necessary for extending the Chief Secretary’s tenure under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
Exception for Chief Secretary’s Tenure
- The Supreme Court carved an exception for the Chief Secretary, stating he is differently placed than other officers under AIR or JCR.
- This exception implies that the Chief Secretary is not bound by the Services judgment, allowing the Union Government greater autonomy in extending his tenure.
- The Court, in the Services judgment, acknowledged that if the government controls services, its choice should prevail in appointing the Chief Secretary.
- However, the November 29, 2023 order seemingly contradicts this logic by permitting the Union Government to extend the Chief Secretary’s tenure unilaterally, despite opposition from the Delhi Government.
- Contradiction in Court’s Order:
- The Court’s order appears to undo its own reasoning and constitutional logic, as it allows the Union Government to extend the Chief Secretary’s tenure against the backdrop of the Services judgment.
Conflict of interest
- The strict application of the Government of NCT of Delhi’s recommendation for the Delhi Chief Secretary is questioned due to his control over matters reserved for the Union Government.
- However, the rule mandates two other pre-conditions for extension: “with full justification” and “in public interest.”
- Serious Allegations and Lack of Confidence: The incumbent Chief Secretary faces serious conflict of interest allegations currently under investigation.
- The Chief Minister has recommended his immediate removal to the Delhi Lt. Governor, indicating a loss of confidence in the Chief Secretary.
Royappa vs State of Tamil Nadu case 1973
- The role of Chief Secretary in a government was defined by a Supreme Court five-judge Bench decision in the Royappa case.
- The case highlights that Article 14 strikes at the arbitrariness in state action and ensure fairness and equality of treatment.
- Royappa emphasized the Chief Secretary’s pivotal role and the need for rapport between him and the Chief Minister.
- The recent Court order in Delhi ignores the Royappa ruling, stating that the application of Royappa to the Chief Secretary’s matter will be decided when the Court hears the challenge to the constitutional validity of the 2023 Amendment Act.
- Despite this, the Court selectively refers to Royappa observations, asserting that the Chief Secretary must comply with the elected government’s directions on matters within their executive competence.
- Flaw in Court’s Legal Position
- The Court, in deciding the matter based on the “position of law as it exists today,” fails to recognize that the 2023 amendment did not exclude the application of the Royappa case.
- The Court’s order does not rely on the 2023 amendment, as it lacks provisions related to the appointment or extension of the Delhi Chief Secretary’s tenure.
Delhi Government’s Request for Collaborative Appointment Process
- The Delhi government did not seek the complete divestment of the Union Government’s power to appoint the Delhi Chief Secretary.
- Instead, it proposed a collaborative appointment process between the Union Government and the Delhi Government.
- The Supreme Court, however, incorrectly held that the Lt. Governor acts in his sole discretion when making a reference to the Union Government for the Chief Secretary’s appointment.
- The Court failed to acknowledge that such a reference should be grounded in the aid and advice of the elected Government of Delhi.
- Overemphasis on Union Government’s Concerns:
- The Court’s reasoning focused on the Chief Secretary involvement in three subjects reserved for the Union Government.
- It overlooked the Chief Secretary’s role in more than 100 other subjects within the competence of the Government of National Capital Territory of Delhi.
- Breakage in Chain of Accountability:
- The Services judgment highlighted the necessity of Delhi government’s control over services for proper democratic functioning.
- The Court should have recognized that the Chief Secretary losing the confidence of the elected government breaks the triple chain of accountability, perpetuating distrust between the elected government and the bureaucracy.
- Court’s Loss of Constitutional Logic:
- The Supreme Court’s decision to allow the unilateral extension of the Delhi Chief Secretary’s tenure is seen as a departure from constitutional logic and the wisdom expressed in past judgments like Royappa and Services.
- Every future service-related matter the Court hears will now be a test of its own stance, reasoning, and conviction outlined in these landmark cases. The recent decision is perceived as a deviation from the Court’s own established principles.
Source:
Mains question
In the context of the recent Supreme Court decision on the Delhi Chief Secretary’s tenure, critically examine the implications on the constitutional balance and the Court’s adherence to its precedent. (250 words)
