Democratic slide in Delhi: The Supreme Court's judgment on Chief Secretary tenure extension

In a recent judgment, the Supreme Court prima facie validated the unilateral extension of the tenure of the Chief Secretary of the National Capital Territory (NCT) of Delhi. The decision has raised serious concerns surrounding the principles of federalism and constitutional morality.

Despite emphasising the pivotal role of the Chief Secretary as a “post of great confidence - a lynchpin in the administration,” the Supreme Court, in light of the amendment to the GNCTD Act 1991, has curtailed the fundamental right of the elected government of the NCT of Delhi to appoint or extend the tenure of its Chief Secretary.

This decision of the apex court strikes at the very core of federalism, a bedrock of our democratic structure. The Supreme Court, in response to the Government of NCT of Delhi's plea to stay the GNCTD Amendment Act, has deferred the matter to a Constitution Bench, citing a substantial question of law concerning the interpretation of the Constitution.

The Government of NCT of Delhi asserted that it obstructs the fulfilment of its democratic mandate, highlighting instances wherein senior bureaucrats flagrantly disregarded orders from the relevant Minister. These acts of insubordination included neglecting calls to activate the National Disaster Relief Force during the Delhi flood crisis, the Directorate of Vigilance issuing work allocation orders in direct defiance of previous directives from the Minister-in-charge, and the unilateral termination of contracts for 437 consultants across various government departments by the Lieutenant Governor, without consultation with the elected government. Of notable concern was also the letter issued by the Lieutenant Governor on July 5, 2023, terminating the engagement of specialists, fellows, and consultants. These actions have brought the government to a complete standstill and has paralysed the governance.

Despite the bureaucrats' complete disregard for the mandate of the elected government, the Supreme Court has merely deemed it fit to advise the Chief Secretary to comply with the directions of the elected government in matters over which its executive competence extends. It also held that the actions (or inactions) of the Chief Secretary must not put the elected government at a standstill.

Federalism and the essence of local governance

Federalism, as enshrined in the Indian Constitution, is not just a concept. It is a fundamental principle designed to distribute powers between the Central and state governments, ensuring a fair balance and autonomy for regional entities. The appointment of the Chief Secretary is a critical aspect of this decentralisation of power, as it directly impacts the effective functioning of local governance.

However, the Supreme Court’s decision flies in the face of federalism by allowing the Central government to unilaterally extend the Chief Secretary’s tenure. By doing so, the judgment centralises power and dilutes the autonomy that the elected government of NCT of Delhi should rightfully possess. Such centralisation undermines the spirit of federalism, preventing states and union territories from exercising their legitimate authority over key administrative appointments. In a democratic setup, the elected government is the voice of the people, chosen through a free and fair electoral process. Granting the authority to appoint or extend the tenure of the Chief Secretary to the elected government is not just a matter of administrative convenience; it is a recognition of the people's will and a testament to the principles of self-governance.

Constitutional morality at stake

The judgment also raises concerns about constitutional morality. The Constitution is not a static document; it evolves and adapts to the changing needs of society. The right to appoint or extend the tenure of the Chief Secretary should be seen as an integral part of this constitutional evolution, aligning with the democratic aspirations of the people. By allowing the Central government to extend the Chief Secretary's tenure, the Supreme Court inadvertently contributes to the ongoing trend of centralization. This undermines the essence of local governance and weakens the federal structure carefully woven into the constitutional fabric.

It is imperative to recognise and respect the autonomy of elected governments in administering their territories. The right to appoint or extend the tenure of key administrative officials is a vital element of this autonomy and should not be subject to undue central intervention.

As the guardian of constitutional principles, the judiciary must revaluate its stance to ensure the preservation of federalism and uphold the democratic spirit of our nation. This verdict jeopardises the delicate balance of power between the Central and state governments and prompts fundamental questions about the integrity and consistency of judicial pronouncements on constitutional matters.

As the people of Delhi grapple with the prima facie view until the final verdict on the constitutional validity of the amendment to the GNCTD Act 1991, there is an unsettling ripple effect on administrative decisions and the functioning and policies of the elected government of NCT of Delhi. The implications are far-reaching, casting shadows over the intricate web of governance that underpin our nation.

Subham Jain is an advocate.

Anurag Kundu is the former Chairperson of the Delhi Commission For Protection of Child Rights.

Views expressed are personal.