JUDICIAL CONTRADICTION IN DELHI CHIEF SECRETARY’S EXTENSION

Print

THE CONTEXT: 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.

ISSUES:

• Judicial self-abnegation: It has been observed that government has been hard headed in this case. Court abstained from self-restraint and justified the government stance. Apex court is criticised for being inconsistent with its past rulings.
• Ignoring the accusations: Supreme court has justified the extension with Government of National Capital Territory of Delhi (GNTCD) amendment act 2023 despite having allegations of corruption and favouritism The Solicitor General has mentioned that the central government is the ultimate decision-making body over the appointment of a chief secretary for the Government of the national capital territory of Delhi.
• Executive circumventing the judiciary: GNTCD amendment Act 2023 was passed to negate the service judgement by supreme court which held that under Article 239AA of the Constitution, the elected government of Delhi exercises control over services in Delhi. Delhi government’s recommendation was necessary for extending the tenure of the Chief Secretary under Rule 16 of the All-India Services Rules, 1958.
• Creating exception as an excuse: Supreme Court has carved an exception for the Chief Secretary of Delhi by holding that he is differently placed than other services and not bound by the Services judgment. 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, undone the Court’s own reasoning and constitutional logic.
• Unresolved conflicts: Serious allegations of corruption are imposed on the chief secretary which are currently under investigation. Chief secretary has completely lost the trust and confidence of elected government. Therefore, chief secretary tenure can’t be extended in the name of public interest and any justification. Otherwise, it perpetuates the distrust between the elected government and the bureaucracy in all matters of governance.
• Ignoring the landmark judgements: Supreme court has not taken Royappa case into account in which it has explained the significance of chief secretary. Royappa held that Chief secretary is lynchpin in administration necessitating rapport between him and chief minister.
• Deciding matter on convenience: The court failed to note that the 2023 amendment did not overrule the application of Royappa case, and it 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.
• Impacting the federal relations: Supreme Court erroneously held that Lt. Governor can act in his sole discretion in appointment of Chief Secretary of Delhi. However, 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 overlooked the hundred state subjects over which Delhi government has competence.

THE WAY FORWARD

• Adherence to the constitution: Judges should maintain a firm commitment to uphold the Constitution. This involves actively ensuring that all laws and acts of the executive are in line with constitutional mandates.
• Maintaining right judicial position: The Supreme court should revisit and recollect the past judgements related to services to give reasonable and consistent judgements. Developing and adhering to robust legal principles and frameworks can help guide when self-restraint is appropriate and when it veers into self-abnegation.
• Addressing the corruption: There should not be even an iota of complacency in addressing the complaints of corruption. Investigations should be held in time bound manner.
• Impact on governance and accountability: The Supreme court should uphold the constitutional principles consistently. The judiciary should assert its independence by refraining from undue deference to the political branches of government.

THE CONCLUSION:

The key is for the judiciary to find the right balance in fulfilling its constitutional duties effectively while respecting the functions and competencies of the legislative and executive branches. The Supreme Court may enhance the clarity in orders and appropriateness with reasonability of its decisions on matters related to the services in NCT of Delhi.

UPSC PREVIOUS YEAR QUESTION

Q.1 Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (2018)

MAINS PRACTICE QUESTION

Q.1 Examine the concept of judicial abnegation within the context of the Supreme Court’s handling of service matters pertaining to the Chief Secretary of Delhi. Discuss the implications of the Supreme Court’s decision in the context of administrative control within the National Capital Territory.

Source: https://www.thehindu.com/opinion/lead/judicial-contradiction-in-delhi-chief-secretarys-extension/article67745632.ece