Cooperative to ‘coercive’ federalism

If the BJP were in power in Delhi and the present Opposition in control of the national government, the BJP would itself reject this Bill. 

Published: 11th August 2023 12:37 AM  |   Last Updated: 12th August 2023 05:22 PM   |  A+A-

Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)

The Union government predictably bulldozed its Delhi Bill by ratifying its controversial ordinance that deprives the elected state government of control over its institutions and officials.

During the Bill’s introduction, I had strongly opposed its being brought to the House at a time when a motion of no-confidence was pending, in violation of the established practice and procedure of Parliament, which states that no substantive motion on policy matters may be raised until the motion is disposed of. During 27 no-confidence motions introduced since Independence, no bills were debated or passed—until the BJP government passed two bills in 2018. This time, 19 bills have been passed amid the din of disruption. So much for democratic morality.

The Bill is no ordinary legislation: it represents yet another assault on Indian democracy. Four years ago, the government unceremoniously sealed the fate of a democratically elected government in Jammu and Kashmir, disregarding the basic constitutional relationship of its people to the Republic of India without consulting them or their elected representatives. It was a breathtaking betrayal of our democracy, revealing utter contempt for the people of the state and the value of political decency meant to animate our culture. This ominous precedent has been repeated in Delhi.

Today, the Union of States, so original and aspirational in its genesis, faces a crisis. In stark contrast to the government’s claims of ‘cooperative federalism’, we routinely see the government impinging upon the sovereign domain of the states, from vacillating on GST dues to delaying MNREGA payments. ‘Coercive federalism’ is now the name of the game.

The Bill removes services from the legislative competence of the Delhi Assembly. By adding services to the existing exemptions of land, public order, and police, it amends the Constitution without being a Constitutional Amendment Bill, an act of constitutional chicanery. It establishes the National Capital Civil Services Authority, consisting of the chief minister, chief secretary of Delhi, and principal home secretary, to make recommendations to the Lieutenant-Governor regarding transfers and postings of officials and disciplinary matters. The two officials can outvote the CM and even constitute a quorum in his absence to take decisions with which he disagrees. So, bureaucrats will exercise the authority that voters have given to their elected public representatives.

In our system, ministers bear the responsibility before the legislature for every action undertaken by public officials in their respective departments, However, under the Bill, a Delhi minister cannot hold his public officials accountable even for bureaucratic delays.

In its May 2023 judgment that the Bill overrode, the Supreme Court argued that democratic government rests on a triple chain of accountability: civil servants are accountable to ministers, ministers are accountable to legislatures, and legislatures are accountable to the electorate. If a democratically elected government is not provided the authority to control its own officials, this severs the first link of the triple chain of accountability, contradicting the core principle of parliamentary democracy and the very framework of the Constitution’s basic structure.

Article 239AA, which conferred a special status on the National Capital Territory of Delhi and constitutionally entrenched a representative form of government, was incorporated in the Constitution in the spirit of federalism so that the residents of the capital city would have a voice in how they are governed. It is the responsibility of the NCTD government to express the will of the people of Delhi who elected them. The Court had noted that the principles of federalism and democracy are interlinked since the states’ exercise of legislative power gives effect people’s aspirations; federalism creates a “dual manifestation of the public will” in which the priorities of the two sets of governments “are not just bound to be different, but are intended to be different”.

Article 239AA says the L-G has to act on the aid and advice of the Council of Ministers, except when exercising his responsibility for the peace and tranquillity of Delhi, relations of the Delhi government with any state government, the Supreme Court, and the High Court of Delhi, and the summoning and dissolving of the Legislative Assembly. The Bill expands this and gives him extraordinary discretionary power so that if there is a difference of opinion between the L-G and the CM, the L-G’s opinion will take precedence. These provisions blatantly violate the principle of the L-G acting on the aid and advice of the Council of Ministers on matters within the executive competence of the latter. They also contradict the 2018 judgment of the Supreme Court, which stated that the decision-making power lies with the elected government.

We have repeatedly seen a sustained attempt to curtail states’ autonomy under this government. The list is extensive, from the unjustified push to impose Hindi on the southern states to the weaponisation of regulatory and investigative bodies like the Enforcement Directorate, the CBI and the Income Tax department to clamp down on the government’s political opponents from regional parties. Add the use of legislation like the Disaster Management Act, whose obscure provision was used to ride roughshod over states’ rights in imposing successive lockdowns during the Covid pandemic; the creation and misuse of the PM CARES fund, which limited the flow of cash to state-run Disaster Relief Funds; and the disproportionate increase in Centrally sponsored schemes, which effectively reduce states to mere implementing agencies.

To cap it all, there’s the growing tendency to undermine the careful balance in our fiscal federalism that enabled our states to pursue their priorities, including the record number of cesses currently levied by the Central government, whose proceeds are not shared with the states. The latest legislation reiterates that the ruling dispensation’s hyper-nationalist desire for uniformity will ride roughshod over the diversity that keeps our country united.

In the debate, the home minister completely overlooked the basic constitutional question. I have no doubt that were the roles reversed—if the BJP were in power in Delhi and the present Opposition in control of the national government—the BJP would itself reject this Bill. It is a classic case of “where you stand depends on where you sit”. In this unabashed power grab, the dignity of the legislature and the nation has suffered. Will the Supreme Court let it succeed?

Shashi Tharoor

Third-term Lok Sabha MP from Thiruvananthapuram and the Sahitya-Akademi-winning author of 24 books, most recently Ambedkar: A Life


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