‘The ordinance raises several legal and political questions with regard to federalism, democracy, bureaucratic accountability, executive law making and judicial review’ | Photo credit: Shiv Kumar Pushpakar
On May 19 this year, the Central government issued ordinance to make amends Government of National Capital Territory of Delhi (NCTD) Act, 1991 which effectively repealed May 11 decision of the Supreme Court On powers over bureaucratic appointments in Delhi. After an eight-year-long legal battle, a five-judge constitution bench headed by Chief Justice of India DY Chandrachud unanimously held that Delhi’s elected government had legislative and administrative powers over the “services”.
The Ordinance removes Entry 41 (Services) of the State List from the control of the Delhi government and creates a National Capital Civil Services Authority consisting of the Chief Minister, Chief Secretary and Principal Secretary-Home to decide service matters in Delhi. The decisions of the authority will be by majority, which means that two bureaucrats appointed by the union can remove the chief minister from office. Further, the Ordinance provides that if a disagreement arises between the Authority and the Lieutenant Governor (LG), the decision of the LG shall prevail. The Ordinance raises several legal and political questions with respect to federalism, democracy, bureaucratic accountability, executive law making and judicial review. Barring the Congress, several opposition parties have supported the Aam Aadmi Party (AAP) government in opposing the ordinance. Congress leader Ajay Maken said that “principles of cooperative federalism do not fit” Delhi as it is the “national capital”. In this context, it is important to examine how ideas of federalism fit into unique contexts such as Delhi.
Asymmetric Federalism and Delhi
Delhi’s position in the federal constitutional scheme of India is not straightforward. The Supreme Court, in its May 11 judgement, had said that the addition of Article 239AA to the Constitution conferred “sui generis” status on the National Capital Territory of Delhi (NCTD). The Court held that there is no “homogeneous class” of Union Territories and States; Rather, the Constitution of India has several examples of special regimes that treat federal units as distinct from each other. It noted that the special provisions for states under Article 371 are in the nature of “asymmetric federalism” made to “accommodate the differences and specific needs of regions”.
Federalism scholars have long argued that for countries with deep social cleavages along ethnic, linguistic and cultural lines, an asymmetric model of federalism, which accommodates the interests of different social groups through territorial units, is desirable. Is. India’s federal system has been described as asymmetric due to the special status granted to Jammu and Kashmir under Article 370 (before its dilution) and Article 371, and special protection under 5th and 6th Schedule areas.
What is striking about the Court’s judgment is that it used the asymmetric federalism framework to clarify the position of the NCTDs in the federal scheme of India. It remarked that although the NCTD is not a full-fledged State, as its Legislature is constitutionally mandated to legislate on subjects in the State and Concurrent Lists, the insertion of Article 239AA has created an “asymmetric federal model” for the NCTD. Therefore, while NCTD remains a Union Territory, “the unique constitutional status conferred on it makes it a federal entity”.
While the call for asymmetric federalism for Delhi is interesting, the Court remained a mute spectator when the idea fizzled out in Jammu and Kashmir. Nevertheless, the expression of the underlying principles of federalism in this case is welcome. The Court held that the principles of federalism and democracy are intertwined as the legislative power of the states influences the aspirations of the people and federalism creates a “dual expression of public will” in which the priorities of the two sets of governments “are not” just different. bound to be, but intended to be separate”. Such a clear expression of the federal principle defies the hollow doctrines of “cooperative federalism” that have been weaponized to centralize Indian politics.
Law and Politics of Federalism
The Presidential Ordinance is problematic on several levels. First, the swift and brazen act of the government in overturning the Constitution Bench judgment does not augur well for judicial independence. Although the legislature can change the legal basis of a decision, it cannot directly overrule it. Further, executive law-making by way of an ordinance, as held by the Supreme Court in DC Wadhwa (1987), is only to “meet an extraordinary situation” and has to be “perverted to serve political purposes”. “Can’t be done. Most importantly, adding an additional subject of exemption (services) to the existing exemptions (land, public order and police) of Delhi’s legislative power listed in Article 239AA, without amending the Constitution, is arguably an act of constitutional deceit. Finally, creating a civil service authority where bureaucrats can overrule an elected chief minister subverts long-established norms on bureaucratic accountability.
For all these reasons, this ordinance is a direct attack on federalism and democracy. Such brazen power grab by the central government should be opposed by all those who care about India’s future as a federal democracy. However, opposition parties often do not take a position on federalism on first principles or articulate it as an ideal idea. So, the AAP rejoiced at diluting Article 370, and now the Congress has refused to oppose the ordinance. This creates limits for federalism to function as a counter-hegemony idea. As the foundation of India’s constitutionalism is under threat, we need a new politics of federalism that consistently reflects and articulates the underlying values of federalism.
Mathew Idicula is a legal advisor and visiting faculty at Azim Premji University, Bengaluru