Indian Federalism and the National Capital Territory of Delhi (Amendment) Bill, 2021

The Bill confers upon the LG enormous powers to refer all matters to the President. These provisions are inherently violative of the Supreme Court's 2018 judgment and is abusive of the Doctrine of Pith and Substance.
Anil Baijal, Arvind Kejriwal
Anil Baijal, Arvind Kejriwal

On March 25, 2021, Rajya Sabha Member Dr. Abhishek Manu Singhvi rose to oppose the Government of National Capital Territory of Delhi (Amendment) Bill, 2021. In his speech, the Senior Advocate termed the said Bill to be “the most pernicious and most unconstitutional bill Rajya Sabha has ever received”.

This Bill has resurrected the old but important discussion on federalism.

One of the most notable characteristics of the Indian Constitution is that it establishes the structure of a federation. For a long time, the precise nature of India's federation of states has been a bone of contention. In the Constituent Assembly, federalism was also a major topic of debate. While detailing the proposed Constitution, JB Kriplani, who was the President at the historic Meerut Session of the Indian National Congress in 1946, asserted that India must be federal in nature with maximum autonomy granted to the states.

After Partition, a trend toward centralization became increasingly irresistible. However, the Indian situation did not rule out the need for a federation, as the Indian State's composite and heterogeneous nature was far too real to be overlooked. A federal state structure with significant autonomy for provinces and regions was thus historically necessary, even though the Union would undoubtedly be much stronger than the Cabinet Mission had predicted.

As far as judicial interpretation of Basic Structure is concerned, subsequent to Kesavananda, the Supreme Court made occasional exploratory searches to identify the basic features the Constitution. In Kesavananda itself, Chief Justice SM Sikri enumerated what he considered were some of the basic features of the Constitution:

  1. Supremacy of the Constitution

  2. Republican and Democratic form of Government

  3. Secular character of the Constitution

  4. Separation of powers between the legislature, the executive & the judiciary

  5. Federal Character of the Constitution

The federal concept may be the result of a voluntary contract between several independent states who agree to become a nation and to surrender such integral part of the power of governance to the Centre at the national level. On the other hand, it could be the result of a historical process in which a new nation emerges and, in order to preserve its newly discovered national unity, splits itself into sub-national units for the purpose of sharing power at two levels. The former is American federalism, and the latter is Indian federalism.

Justice AM Ahmadi went on to say in SR Bommai that the essence of a federation is the existence of the Union and the States, as well as the distribution of powers between them. Federalism thus entails the separation of powers in a federal accord. The observations by Justices Jeevan Reddy and SC Agrawal are also of utmost importance. They had observed,

"The expression "Federation" or "federal form of Government" has no fixed meaning. It broadly indicates a division of powers between a Central (federal) Government and the units (States) comprised therein. No two federal constitutions are alike. Each of them, be it of USA, Canada, Australia or of any other country, has its own distinct character. Each of them is the culmination of certain historical process. So is our Constitution. It is, therefore, futile to try to ascertain and fit our Constitution into any particular mould. It must be understood in the light of our own historical process and the constitutional evolution. One thing is clear it was not a case of independent States coming together to form a Federation as in the case of USA..."

...The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States..."

In ITC Ltd v. Agricultural Produce Market Committee, a case concerning levy of licence fee by the Centre in respect of the sale of tobacco in Bihar, the Supreme Court observed that in order to ensure the federal character of the Constitution, it was necessary to interpret the Constitution in a manner that it does not whittle down the powers of state legislature and preserves the federal character while upholding Central supremacy as contemplated by some of its articles.

Coming back to the conflict between the Government of NCT of Delhi and the Union government, there is a jurisdictional dispute between the two due to the coexistence of Articles 239 and 239AA.

Article 239 empowers the Lieutenant Governor (LG) to act independently of his Council of Ministers, according to the Union government, since New Delhi is a Union Territory. The state government of Delhi, on the other hand, argued that Article 239AA of the Constitution grants Delhi special status as a legislatively elected government. This creates a power struggle over the LG's and state government's administrative powers in the NCT of Delhi.

In Govt. Of NCT Of Delhi v. Union of India, a five-judge Bench of the Supreme Court held that the LG’s concurrence is not required on issues other than police, public order and land. The Court further added that that decisions of the Council of Ministers will, however, have to be communicated to the LG and that the LG was bound by the aid and advice of the Council of Ministers.

The Court also said that the status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense. It had also pointed out that the elected government must keep in mind that Delhi is not a state.

The recently passed Amendment Bill will make it mandatory for the Government of NCT of Delhi to take the opinion of the LG before taking executive actions. Further, the LG has been made synonymous with the government. Also, the Bill confers upon the LG enormous powers to refer all matters to the President. These provisions are inherently violative of the 2018 judgment of the Supreme Court and is abusive of the Doctrine of Pith and Substance. Logically speaking, the apex court should take advantage of the current controversy to permanently settle the jurisdiction.

India will only prosper if all of its states do as well. The solid foundations of federalism and democracy on which our country has thrived will begin to crumble if there is strife between the Centre and the States.

The authors are students of Vivekananda Institute of Professional Studies, Delhi & Department of Law, PIMR Indore.

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