The controversy surrounding the recent statehood resolution in the Jammu and Kashmir Legislative Assembly needs a fuller unddrstanding. The Chief Minister moved a resolution seeking restoration of statehood. The Speaker admitted it. Thereafter, the Law Secretary and the Chief Secretary reportedly communicated with the Assembly against taking up the resolution on the ground that the matter was sub judice. The Chief Minister subsequently stated in the House that he had neither been consulted nor was he aware of these communications. Significantly, he himself holds the Law portfolio. The real issue is therefore not whether the officers favoured or opposed statehood. Nor is it necessary presently to decide whether their opinion regarding the matter being sub judice was legally correct. The more important question is: Who authorised them to approach the Speaker against a resolution moved by the Chief Minister? 

Advice and Authority A Secretary is not expected to agree blindly with his Minister. On the contrary, a good civil servant must give frank and sometimes inconvenient advice. If the Law Secretary considered the resolution legally objectionable, he was entitled—perhaps duty-bound—to record that opinion. The Chief Secretary could similarly flag any constitutional or procedural difficulty. But there is an important difference between advising Government and assuming the authority of Government. A Law Secretary may record on a file that a proposed resolution is legally inadmissible. He may recommend reconsideration or reference to the competent authority. But can he, without approval of the Minister-in-charge or some other constitutionally competent authority, carry that disagreement directly to the Legislature and seek to prevent the Speaker from taking up the resolution? That is a different matter altogether. 

The Constitutional Position The seven-Judge Bench of the Supreme Court in Shamsher Singh v. State of Punjab, (1974) 2 SCC........

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