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. This kind of reversal renders the Court’s judgments as “writ in water”.
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. On November 28, the Chief Justice asked the Solicitor-General, “Or you (Centre) can let this man superannuate and make a fresh appointment… Don’t you have an IAS officer who can be appointed Chief Secretary?” The Solicitor-General responded that a 2023 Amendment Act gave the Centre statutory authority over the civil services in the national capital. Later the court was informed that the Centre had chosen to extend the Chief Secretary’s tenure by six months.
Passage of the Amendment Act
It must be noted that the Government of National Capital Territory of Delhi (Amendment) Act 2023, had been challenged by the Delhi government but had not been stayed by the courts due to a presumption of constitutionality. The Act had been passed to negate portions of the earlier Services judgment dated May 11, 2023, which held that under Article 239AA of the Constitution, the elected government of Delhi exercises control over services in Delhi. In its five-judge Constitution Bench Services judgment, the Court held unequivocally that references to “state government” in the relevant All India Rules (AIR) or Joint Cadre Rules (JCR) which related to Delhi, shall mean the Government of Delhi.
Going by this ruling, the Delhi government’s recommendation was necessary for extending the tenure of the Chief Secretary under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. But now, the Supreme Court has carved an exception for the Chief Secretary of Delhi by holding that he is differently placed than other officers under the AIR or JCR and thus not bound by the Services judgment. If the government indeed controls services, its choice must prevail in the choosing of its prime servant, the Chief Secretary. However the Court’s current order of November 29, 2023, permitting the Union Government to unilaterally extend the tenure of the incumbent Delhi Chief Secretary despite the Delhi Government’s opposition, seems to have undone the Court’s own reasoning and constitutional logic.
Alleged conflict of interest
Even 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.
The Court then proceeded to decide the matter based on the “position of law as it exists today,” but failed to note that the 2023 amendment did not oust the application of Royappa case, and hence, Royappa is the “position of law as it exists today”. This flaw is clear from the fact that the Court order does not even rely on the 2023 amendment, for there is no provision under it relating to the appointment, or the extension of tenure, of the Delhi Chief Secretary.
Delhi’s government’s point on appointment
Interestingly, 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. But 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. It recognised the triple chain of accountability between the people, their representatives (Members of Parliament/Members of the Legislative Assembly), the Council of Ministers, and the bureaucrats. 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.
In the Services matter, the Supreme Court faced a simpler challenge than what it faces today. 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. By allowing the unilateral extension of Delhi’s Chief Secretary’s tenure, the Court has not only lost sight of the constitutional logic but also its own past wisdom that had given meaning to, and attributed great value to, that constitutional interpretation.
Sanjay Hegde is Senior Advocate of the Supreme Court of India
