Source: The Hindu

Introduction

The Supreme Court's decision in November 2023 in the case of Government of National Capital Territory of Delhi v. Union of India (2023) to permit a six-month extension to current Delhi's Chief Secretary has raised concerns about judicial self-abnegation. This case highlights a departure from established precedents and previous judicial wisdom. The decision in the case is getting considered as “writ in water”.

What is the Background of Chief Secretary's Extension?

• Allegations:
  • The current Chief Secretary of NCT of Delhi is facing serious allegations of corruption and favoritism, prompting Delhi Chief Minister to seek his removal.
• Discussion of Governments:
  • The Delhi Government had sought discussions with the Centre on appointing a successor as the Chief Secretary was due to retire on 30th November 2023.
• Petition Filed by Government of NCT of Delhi:
  • The Government of NCT of Delhi filed the petition before the SC on the ground of having reason to believe that the Union of India will unilaterally appoint or Union of India unilaterally extended the tenure of Chief Secretary in the exercise of the power under Sections 41 read with 45A(d) read with 45H(2) of the Government of NCT of Delhi Act, 1991 as amended by the Government of NCT of Delhi (Amendment) Act, 2023.
• Prior Approval:
  • The Government of NCT of Delhi contended third proviso to Rule 16 clearly stipulates that an extension of service can be granted to a person holding the post of Chief Secretary to a State Government on the recommendations made by the concerned State Government “with full justification and in public interest” with the prior approval of the Central Government.
  • Hence, it was urged that the power of extension can be exercised only on the recommendation of the State Government which, in the present case, must mean, the GNCTD.
• Union Government’s Request:
  • The Solicitor General appraised the court that the Union Government proposes to grant an extension of six months to the incumbent Chief Secretary.
• Court’s Ruling:
  • Three-judge bench of SC held that “Bearing in mind the subsequent developments which have taken place resulting in the enactment of the amendment to the Government of NCT of Delhi Act, 1991, the decision of the Union Government to extend the services of the incumbent Chief Secretary for a period of six months cannot be construed to be violative of law.

How the Court Ignored the Precedent?

• Criticism:
  • The Government of NCT of Delhi (Amendment) Act, 2023, challenged by the Delhi government, had not been stayed by the courts, leading to a presumption of constitutionality.
  • The Act sought to negate portions of a previous judgment of SC on same issue, asserting the elected state government's control over services in Delhi.
• Precedent:
  • The Court ignored the precedent set in the E.P. Royappa v. State of Tamil Nadu Bench (1974), which emphasized the Chief Secretary's role as a position of great confidence.
  • The Court fails to recognize that the 2023 amendment did not override the application of the Royappa case, exposing a flaw in its rationale.

What is the Government's Point on Appointment?

• The Delhi government's request for a collaborative appointment process is misconstrued by the Court, which erroneously grants the Lieutenant Governor sole discretion.
• The Court is said to have failed to acknowledge the Chief Secretary's involvement in more than 100 subjects within the competence of the Delhi government.

Conclusion

The SC's decision to allow the unilateral extension of Delhi's Chief Secretary's tenure not only deviates from constitutional logic but also disregards its own precedent, setting a concerning precedent for future cases related to the delicate balance of power between the elected government and bureaucracy.