THE DECLINING FEDERALISM OF INDIA

On the 26th day of November 1949, the newly formed democracy of India adopted its constitution and on the very first page under Article 1(1), it was imprinted that “India that is Bharat shall be Union of states.” A union of states because the framers of our constitution believed that our first step towards a welfare state should be providing citizens with grassroots democracy. They dreamt of a Union where the central government would act as a paperweight to bind different opinions of people of different origins in this vastly diverse country. But this idea of our founding fathers seem to be suppressed in recent times.

India has adopted the system of Federal Parliamentary Constitutional Republic which means that citizens of India have the right to elect their representatives at the central and provincial level. Both governments have the right to make laws on their respective subjects as described in part eleven of the Constitution. Federal states differ from confederations where the central government is comparatively weak and subordinate to the regional governments and from a Unitary state which has a strong and restraining central government with no or subordinate regional power.

In the past few years, federalism and democracy in India are neglected whether it’s the enactment of the Government of National Capital Territory Of Delhi (Amendment) Act or the central government supported the political crisis in many states. Enactment of the GNCTD Amendment Act is the most recent example of a union government neglecting both, federal nature of Indian governance and the order of the Honourable Supreme Court.

To understand the politics of Delhi we have to go back to the pre-independent India where Delhi was governed directly by the Viceroy through his representative, The Chief Commissioner. In 1951, after India attained Independence, The Government of Part C States Act was passed. According to which Delhi would have an elected Legislative Assembly and a Chief Minister who would have all the powers to govern the state except Police, Public Order and Land. These three subjects were to be controlled by the central government through an appointed Chief Commissioner.

In 1956, with the passing of the States Reorganisation Act and recommendations of the Fazal Ali Commission, Delhi was classified as Union Territory and its Legislative Assembly was, subsequently, dissolved. The post of Chief Minister of Delhi was reintroduced in the year 1991 when following widespread demand of Legislative Assembly Constitution (sixty-ninth amendment) Act and Government of National Capital Territory of Delhi was passed.

In 2017, an appeal was filed to an August 2016 verdict of the Delhi High Court that ruled that the lieutenant governor of Delhi exercised “complete control of all matters regarding National Capital Territory (NCT) of Delhi“. In its verdict the Supreme Court of India quashed the High Courts judgment and bench led by, then, Chief Justice of India Deepak Mishra pronounced its judgement, on June 4, 2018, as: ‘The lieutenant governor of Delhi had no independent decision-making powers and was bound to follow the “aid and advice” of the Delhi chief-minister-headed council of ministers of the Government of Delhi on all matters except those pertaining to police, public order and land.’

On March 15th, Central Government presented a bill in the parliament titled The Government of NCT of Delhi (Amendment) Act that defines Lieutenant Governor as the absolute authority in Delhi. The other notable point of the act is it prohibits the Legislative Assembly from making any rule to enable itself or its Committees to:

• consider the matters of the day-to-day administration of the NCT of Delhi; and
• conduct any inquiry to administrative decisions.

Summarily, the powers of the elected government of Delhi is minimized and the centre will now exercise full control over the territory through its representative. The alignment of the incumbent party is trying to justify this decision while the government of Delhi opposed it. Soon after the bill was presented in the Parliament, Deputy Chief Minister of Delhi Manish Sisodia called a press conference and asserted that because the party running the central government couldn’t win the assembly polls held last year, they found another way to control the territory. Apart from all these political statements, this is, undoubtedly, an attempt to change the basic structure of the Constitution and misuse of power.

While justifying the validation of this act, a spokesperson of the central government said that if the people of Delhi wanted the AAP government, they would have voted for them in the 2019 general elections. This is where it is hard for one to decide whether to laugh at such thinking or be compassionate of the one possessing it. India’s founding fathers always believed that people’s opinion may differ at every level of government. System of Panchayati Raj is the best example of it where the people have the right to vote at even the smallest units of democracy. Potentially, the spokesperson and the leadership of the ruling party of worlds largest democracy failed to understand the basics of a federal system.

The act was also widely criticized by the top bureaucrats of the country as there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing an order thereon. Some retired Administrative Services officers, who have served the country in different prominent fields in past, remarked that this act will practically paralyse the Government of Delhi.

While discussing the suppression of the federal nature of our country, the Revocation of Special Status and partition of Jammu and Kashmir state becomes remarkable. In August 2019, speculations were accelerated that something ‘major’ was going to happen in the valley when the central government doubled the deployment of central forces in the state, specifically Kashmir valley.

On the morning of 5th August, Home Minister Amit Shah announced in the Parliament that all the subsections, except clause 1, of Article 370 of the constitution, that had given J&K special status, were going to be ineffective. In addition Jammu and Kashmir Reorganisation Act 2019 was introduced according to which the state of J&K was to be partitioned into two Union Territories, namely, Jammu and Kashmir, with unicameral legislature, and Ladakh, without legislature.

It is true that without proper knowledge of the political temperament of the region one cannot comment whether the revocation of Article 370 was right or not but the way it was implemented was unethical, for sure. Rather than consulting the representatives of the state about this matter, the central government had put all prominent Kashmiri leaders under house arrest. Talking about J&K Reorganisation Act, this is surely an injustice to the people of the state, to the citizens who still believe in democracy. Ideally, before taking such a decision for any state government should have the consent of the state legislature. The argument from the Centre’s side was given that the legislature was not in function. Here is another question: Why was the legislature not in function? Because the President’s rule was imposed by the central government in the state since 2018. That implies, someday government can handpick one state, that could be Maharashtra or Rajasthan, dissolve its legislature and then splitting it into several central controlled territories with a clarification that the legislature was not in function. This way there would only be two types of Province in India, either ruled by the party ruling the centre or controlled by the centre.

There are evident incidents in recent past where the Central Government has ignored Federal Nature of the Constitution like approval of Farm Bill in Rajya Sabha, which is state government’s representation in the centre, through voice vote or mass-exodus of MLA’s in several states just before Rajya Sabha polls. Still it is a topic that could be debated upon. But before you make an opinion ask yourself the question: Where are we heading to and where we should be?

Syed Mohammad Ali is a student pursuing Economics from Jamia Millia Islamia.

Edited by: Malaika M Khan

Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.