22 April 2024 – The Indian Express

Tenure of the Chief Secretary decided by the Supreme Court

• Delhi’s National Capital Territory (NCT) is special since it houses both the Delhi government and the federal government. To guarantee coordination and collaboration between the central government and the elected government of Delhi, special measures are put in place. The President of India is represented in the territory by the Lieutenant Governor (LG), who holds the position of constitutional head of the Delhi NCT.
• The national government and the lieutenant governor have authority over certain matters, like land, public order, and law enforcement, as opposed to Delhi’s elected government. There has been political and constitutional discussion on the division of duties and authority between the elected government and the lieutenant governor. The current dispute concerns Delhi’s Chief Secretary’s term extension.

What is the ongoing dispute with the Delhi NCT administration?

Notification for the year 2015:

• The central government’s 2015 notification expanded Entry 41’s list of exceptions under Article 239 AA(3(a)) and gave the Delhi LG the power to handle issues pertaining to land, public order, services, and law enforcement while consulting with the Chief Minister.
• As Entry 41 – “Services” falls outside the jurisdiction of the NCT of Delhi’s legislative assembly, the notification—which was affirmed by the Delhi High Court in 2016—states that the Government of the NCT of Delhi is not authorised to enact legislation regarding it.
• The Supreme Court’s Reversal:
• In the case of Government of the NCT of Delhi v. Union of India (2023), the SC’s constitution bench determined that the NCT of Delhi possesses legislative and executive authority over administrative services within the National Capital. However, this authority does not extend to matters concerning public order, law enforcement, or land, in which case the LG will be subject to the Delhi Government’s decision.

The Triple Network of Accountability:

• The Supreme Court specifically acknowledged the idea of the “triple chain of accountability” in the aforementioned ruling.
• Representative democracy requires the threefold chain of accountability, which works as follows:
• The cabinet is responsible for overseeing civil officials.
• The Legislative Assembly, the body that oversees legislation, is the cabinet’s superior.
• The electorate holds the Legislative Assembly (periodically) accountable.
• The foundation of our democracy, representative governance, is a vital constitutional principle that is severely threatened by any action that breaks this “triple chain of accountability.”

The Central Government’s Reaction Following Verification:

• The Government of the NCT of Delhi (Amendment) Ordinance was subsequently issued by the Central Government, overturning the decision made by the Apex Court.
• After the Delhi Government challenged the Ordinance in court, the SC referred the case to a Constitution Bench for decision-making.
• The Government of National Capital Territory of Delhi (Amendment) Act, 2023, which gave the central superintendence over Delhi administration, was passed by the Parliament while the case was still before the Constitution Bench.
• One such use of the central government’s power is the six-month extension of the Chief Secretary of Delhi’s term.

What is the Delhi Government (Amendment) Act, 2023?

• Creation of NCCSA: The purpose of the Act is to create a permanent body known as the “National Capital Civil Service Authority” to make decisions about the control and posting of civil workers.
• The Principal Secretary, the Chief Secretary, and the Chief Minister of Delhi, who are all employed by the Government of the National Capital Territory of Delhi, will make up the NNCSA.
• Its job is to advise the LG on the postings and transfers of all Group ‘A’ officers working for the Government of the National Capital Territory of Delhi, with the exception of those who are in charge of land, public order, and law enforcement.
• Section 45D: The aforementioned Ordinance’s Section 45D has been modified to grant the Centre authority over nominations to Delhi-based statutory commissions and tribunals.
• According to Section 45D, the President shall appoint, constitute, or nominate any authority, board, commission, or statutory body, as well as any office bearer or member thereof, established or appointed by or under any law now in effect, in and for the NCT of Delhi.
• The statute grants LG ultimate authority; in the event of a disagreement, LG’s judgement will take precedence.
• NCT of Delhi Ministers are circumvented: The new Act permits department secretaries to bring issues before the LG, Chief Minister, and Chief Secretary without first speaking with the relevant minister.
• Regarding entities established under the Delhi Assembly Laws: in compliance with section 45H, NCCSA shall suggest a group of qualified individuals for the LG to nominate, appoint, or constitute.

What Concerns the Government of the NCT of Delhi Act, 2023?

Democracy is being undermined:

• The fundamental tenets of India’s constitutional order—representative democracy and responsible governance—are compromised by the Act.
• It deprives the elected Delhi government, which is mandated by the people of Delhi to legislate and govern on their behalf, of control over services.
• Additionally, it lowers the Chief Minister and the Council of Ministers to a rubber stamp position because two NCCSA bureaucrats, who ultimately answer to the Lieutenant Governor and the Centre, have the authority to overrule them.

Constitutional Infraction:

• This Act disobeys and annuls the ruling of the Supreme Court, which maintained that the Delhi government has legislative and executive authority over all services provided in the nation’s capital, with the exception of those related to land, public order, and law enforcement.
• Additionally, it violates Article 239AA of the Constitution, which grants Delhi special status as a Union Territory with a legislative assembly and calls for good relations between the federal government and the Delhi administration.
• In addition, the Act intrudes on State territory and transgresses the fundamental constitutional principle of federalism.

What Are the Various Issues in the Latest Supreme Court Ruling?

Constitutional Logic and Traditional Wisdom Are Lost:

• The usefulness of constitutional interpretation is diminished by the Court’s decision to permit the unilateral extension of the Chief Secretary’s tenure, which not only deviates from constitutional reasoning but also goes against its historical consensus.
• Concerns concerning the Court’s shifting position on constitutional issues are raised by this deviation.

Application of Certain Rules Only to the Chief Secretary:

• The Chief Secretary was released from regulations needing the government’s request for a tenure extension by the Court’s order.
• This break from accepted practice calls into question the Court’s coherence and commitment to constitutional reasoning.

Criteria for Tenure Extension and Allegations of Conflict of Interest:

• Allegations of a conflict of interest force the Chief Secretary to contest the requirements for tenure extension, which include “full justification” and “public interest.”
• The legitimacy of the extension is called into question by the Court’s inability to address these concerns, since the government is beginning to lose faith in him.

Chief Secretary’s Function and Sidestepping Precedents:

• The Court’s current ruling runs counter to its previous position on the Chief Secretary’s duties, which was stated in the 1974 Royappa case.
• Since the Chief Secretary is the “lynchpin in the administration,” the Court concluded in Royappa that the position is one of considerable confidence and that he and the Chief Minister must get along.
• The Court eventually absorbs its views selectively, leading to a faulty reading of the law, even though it first avoids implementing its own viewpoint as stated in the Royappa case.

Misunderstanding of the Delhi Government’s Appointment Position:

• The Court assumes that the Delhi administration wants the Union administration to completely relinquish its power to name the Chief Secretary.
• In reality, though, the government challenges the Court’s interpretation and calls for a collaborative appointment process.

Breach of the Governance Accountability Chain:

• The Court’s unwillingness to acknowledge the accountability collapse that occurs when the Chief Secretary loses the faith of the government feeds mistrust in questions of governance.
• The Court’s prior emphasis on accountability in the Services ruling is at odds with this error.
• Neglecting Several Subjects Under the Purview of the Delhi Government:
• The Chief Secretary is involved in more than 100 areas that fall under the purview of the Delhi government, yet the Court ignores this.
• The Court downplays the breadth of his duties, even as it highlights his relationship to Union Government affairs.

What Path Should We Take Next?

Establishing an Expert Committee:

• It is possible to organise an expert committee with representatives from the legal, constitutional, and administrative fields to offer suggestions for how to resolve the problem.
• This group shall conduct a thorough analysis of the administrative and legal issues, examine prior decisions, and provide workable solutions that respect democratic ideals and preserve the delicate balance of power between the federal government and Delhi’s elected government.

Conversation and Bargaining:

• The central government and the Delhi administration must have real conversations and negotiations in order to resolve the matter.
• In order to find a solution that satisfies both sides’ needs and respects both Delhi’s special status as the nation’s capital as well as democratic values, the parties should get together to address their respective issues and concerns.

Respect for the Principles of the Constitution:

• All parties involved in the resolution process must show that they are committed to preserving the fundamental rights of elected officials, democratic government, and the separation of powers.
• A fair and open resolution to the dispute can be achieved by upholding the constitutional framework.
• The Supreme Court appears to have taken a different position by permitting the Chief Secretary’s tenure to be extended unilaterally. The Court had previously stressed the significance of the elected government’s authority over services. The Court’s cherry-picking of observations and selective application of legal principles, such as ignoring the Royappa case, cast doubt on the coherence and integrity of its rulings. This judgement compromises the delicate balance between elected government and bureaucracy in aspects of governance, in addition to undermining constitutional reasoning.