Federal structure under threat?

The ongoing face-off between the Lieutenant Governor-Najeeb Jung and the elected Delhi government over the transfer and posting of bureaucrats; along with the tug of war over the powers of the Anti-Corruption Bureau have been making headlines for the past two weeks. While many political leaders, constitutional experts, chief ministers and former bureaucrats have given their opinion on this conflict, there is also a need to examine it from the perspective of federalism in India and the current predicament of Centre-State relations. Federalism in India is as much – if not more – political, as it is constitutional. Centre-State relations, from the time of Independence, have been marked by repeated  assertions by the Central and State governments to establish their relative political strength.

The Constitution was written against the backdrop of the violent communally-tinged pogrom that followed Partition and the process of integration of British-ruled provinces along with more than 500 princely states into one functional unit. And while federalism was repeatedly debated in the Constituent Assembly, the overriding concern was whether India would survive as a nation-state or whether its diversity and ‘fissiparous tendencies’ would lead to its disintegration. It is for this reason that a structure of ‘unitary’ federalism was decided upon, where the <g data-gr-id="62">polity</g> would have more dominant ‘unitary’, rather than ‘federal’ characteristics. India was to be a ‘Union of States’ and the Central government was given the power to reorganise the States through Parliament. The Governor would play a crucial role in the formation of State governments and the Centre was vested with powers to dismiss State governments and impose President’s Rule under Article 356. Predominant powers of taxation also lay with the Central government. The ‘federal’ characteristics lay in the division of subjects between the Centre and States, as well as the process of judicial review of Centre-State relations.

The history of federalism in India has been marked by a constant tension between the Centre and the State, where political equations and battles have determined the relative powers of these units. The first phase of Indian federalism – up to the mid-1960s – was marked by centralization, as ‘nation-building’ was the primary concern of the government. This was also a period where the Central and State governments were controlled by the Congress, and Centre-State relations were managed within the intra-party structure of the Congress. This changed from 1967 when its numbers were reduced to a simple majority in Parliament and many states moved out of the Congress party’s control. And while there were initial attempts at dialogue and accommodation, from 1967 onwards Indira Gandhi strongly asserted control over State governments. The instruments of this tacit control were the Governors, who repeatedly used Article 356 to undercut democratically elected governments and arbitrarily impose President’s Rule. Between 1966 and 1977, Article 356 was used thirty-three times. 

Gandhi’s attempts at centralization finally resulted in the Emergency, wherein all federal features of the polity were suspended. The third phase of federalism in India  started from the 1980s with the assertion of regional parties in coalition and minority governments at the Centre. Also significant in this regard was the landmark judgement in the S.R. Bommai <g data-gr-id="67">vs</g>. Union of India case in 1994, which curtailed the arbitrary imposition of President’s rule by the Central government and laid down strict guidelines for the use of Article 356. Both these developments have led to a shifting balance in Centre-State relationships.

The coming to power of a single-party government in 2014 portends the beginning of another chapter in the history of federalism in India. And while the BJP government has been propagating the empty rhetoric of ‘cooperative federalism’, its conflict with the Delhi government seems to indicate its ulterior motive of curtailing the power of States. The first instance of this was seen in 2014-15 when Delhi was kept under President’s rule for 10 months, and the Assembly was dissolved only under judicial pressure. The same motive can be attributed to LG Najeeb Jung’s current actions, which are a reminder of the manner in which Governors were used to <g data-gr-id="76">control</g> States in the 1970s and 80s. The notification by the Home Ministry on 22nd May is a reflection of the Central Government’s true intent, where a constitutional provision for Delhi government’s autonomy is sought to be bypassed via a notification from the Centre. When Delhi was given a legislature by the GNCTD Act of 1991, the Constitution was amended to give Delhi a special status as a Union Territory whereby the elected government would have authority over all issues barring Land, Police and Law & Order. 

The Central government has sought to circumscribe the powers given to the Delhi government, by a notification claiming that ‘Services’ are also excluded from its purview. The same notification also sought to circumscribe the powers of the Anti-Corruption Bureau of the Delhi government. As in earlier Centre-State conflicts, it is the judiciary which has spoken out on the Central government’s overreach. On 25th May, the Delhi High Court had called the notification ‘suspect’ and stated that, “… (by) an executive fiat, the Union Government could not have exercised the executive power in respect of a matter falling within the legislative competence of Legislative Assembly of the NCT, since the law made by the Parliament, namely the GNCTD Act read with Article 239 AA put fetters on the executive authority of the President.” Once again it is the judiciary that has clarified this to ensure that the unitary character of India’s federalism cannot undemocratically erode the power and autonomy of States, despite the clear intent of the Central government to do so.

The relative political authority of the Central government and the predominance of the unitary character of governance in the Constitution arose out of the specific context of the creation of the Indian nation-state, where the concern of keeping together this newly formed country was paramount. This predominance was never intended as a license for Central governments to undemocratically paralyse or control the functioning of elected State governments. Yet various governments have made this attempt, and the current face-off in Delhi is also an attempt by a single-party Central government to assert its political control over an ‘uncomfortable’ State government. As this conflict plays out, the Centre would do well to recall the spirit of autonomy for States enshrined in the Constitution, as well as the repeated judicial pronouncements that have upheld the same.