Central Idea

• The recent promulgation of an ordinance by the Union government, amending the Government of National Capital Territory of Delhi (NCTD) Act, 1991, has raised concerns about federalism, democracy, bureaucratic accountability, executive law-making, and judicial review. This move nullified the Supreme Court judgment that recognized the elected government of Delhi’s legislative and administrative powers over services.

What is mean by asymmetric federalism?

• Asymmetric federalism refers to a governance model in which different regions or constituent units within a country are granted varying degrees of autonomy or special provisions based on their unique characteristics, circumstances, or historical factors.
• It recognizes that not all regions or constituent units are the same and may require different arrangements to accommodate their specific needs and aspirations

Key points regarding Delhi’s unique position and asymmetric federalism

• Sui generis status: The Supreme Court recognized that the addition of Article 239AA in the Constitution granted the National Capital Territory of Delhi (NCTD) a distinct and special status. This acknowledgment indicates that Delhi does not fit neatly into the category of either a full-fledged state or a union territory.
• Examples of special governance arrangements: India’s federal system already incorporates examples of asymmetric federalism. For instance, the special provisions under Article 370 (before its dilution) for Jammu and Kashmir and the protections provided under Article 371, as well as the 5th and 6th Schedule Areas, demonstrate the existence of differential treatment based on regional considerations.
• Legislative and administrative powers: The Supreme Court’s verdict on May 11 acknowledged that the elected government of Delhi possesses legislative and administrative powers over certain subjects, including services. This recognition further solidifies the idea that Delhi operates under a distinctive constitutional framework, allowing it to exercise powers similar to those of states.
• Federal entity status: While Delhi remains a Union Territory, the Court’s judgment emphasized that the unique constitutional status conferred upon it makes it a federal entity. This recognition affirms the existence of a distinct arrangement for Delhi within India’s federal structure.
• Contrasts with Jammu and Kashmir: It is worth noting that the Court’s application of asymmetric federalism principles in Delhi contrasts with the situation in Jammu and Kashmir, where similar principles were not upheld. This discrepancy highlights the need for consistent application and recognition of federalism across different regions.

Inconsistent Application of Asymmetric Federalism

• Differential treatment: Inconsistencies arise when different regions or constituent units within a country receive varying degrees of autonomy, special provisions, or protections based on their unique characteristics, historical factors, or political considerations.
• Unequal distribution of powers: In some cases, certain regions may enjoy greater devolved powers, legislative authority, or administrative autonomy compared to others. This disparity can create imbalances in decision-making and resource allocation, leading to perceptions of favoritism or discrimination.
• Varying levels of cultural or linguistic protections: Asymmetric federalism may involve granting special cultural or linguistic protections to specific regions or constituent units. However, the extent and nature of these protections can differ, leading to disparities in the preservation and promotion of cultural diversity and linguistic rights.
• Financial arrangements: Inconsistent application of asymmetric federalism can also manifest in the distribution of financial resources. Some regions may benefit from preferential funding or fiscal arrangements, while others may receive fewer resources, resulting in economic disparities and regional imbalances.
• Selective application based on political considerations: In some cases, the application of asymmetric federalism may be influenced by political factors, resulting in inconsistent treatment. Regions that align with the ruling party or have greater political influence may receive more favourable treatment, while others may be neglected or marginalized.
• Perception of unfairness and tensions: Inconsistencies in the application of asymmetric federalism can lead to a sense of unfairness, grievances, and tensions among regions or constituent units. This can undermine trust, unity, and cooperative governance within a federal system.

Facts for prelims

Challenges Posed by the Ordinance

• Judicial independence: The swift and brazen act of undoing a Supreme Court judgment through an ordinance raises concerns about judicial independence. While the legislature has the authority to alter the legal basis of a judgment, directly overruling it undermines the independence of the judiciary.
• Executive overreach: The use of an ordinance, which is meant to address extraordinary situations, for political ends raises questions about executive overreach. The Supreme Court has previously held that ordinances should not be perverted to serve political objectives, indicating that their use should be limited and justified.
• Constitutional subterfuge: The ordinance adds an additional subject of exemption (services) to the legislative power of Delhi without amending the Constitution. This raises concerns about constitutional subterfuge, as it potentially circumvents the constitutional amendment process and undermines the constitutional framework.
• Bureaucratic accountability: The creation of a National Capital Civil Service Authority, where appointed bureaucrats can overrule an elected Chief Minister, undermines established norms of bureaucratic accountability. This consolidation of power in the hands of bureaucrats weakens democratic principles and dilutes the authority of elected representatives.
• Assault on federalism: The ordinance directly assaults the principles of federalism by limiting the control and decision-making power of the elected government of Delhi. It erodes the federal structure by introducing a mechanism where Union-appointed bureaucrats and the Lieutenant Governor can overrule the decisions of the Chief Minister and the elected government.
• Threat to democracy: The ordinance’s provisions, including the majority voting system and the decision-making authority of the Lieutenant Governor, raise concerns about democratic principles. By allowing unelected officials to wield significant power over elected representatives, it undermines the democratic ideals of representative governance and the will of the people.

Way Ahead: The Need for a New Politics of Federalism

• Protection of constitutional values: As the foundations of India’s constitutionalism are threatened, a new politics of federalism is required to safeguard the core values enshrined in the Constitution. Federalism serves as a vital mechanism to ensure a balance of power, protect the rights of states and regions, and uphold democratic principles.
• Counter-hegemonic idea: By championing the principles of decentralization, autonomy, and cooperative governance, a renewed focus on federalism can challenge the concentration of power and promote a more inclusive and participatory political system.
• Normative framework: Opposition parties often fail to take a principled stance on federalism or articulate it as a normative idea. A new politics of federalism should aim to establish federalism as a guiding principle based on first principles, emphasizing the importance of cooperative governance, checks and balances, and the protection of regional diversity.
• Articulating underlying values: A reimagined politics of federalism should consistently articulate the underlying values of federal governance. This includes recognizing the interplay between federalism and democracy, understanding the diverse interests and aspirations of regions, and ensuring equitable distribution of powers, resources, and opportunities.
• Balancing the centre-state dynamics: A robust politics of federalism can foster a healthy balance between the central government and the states or regions. It should promote dialogue, cooperation, and respect for the autonomy and authority of elected representatives at all levels.

Conclusion

• The recent ordinance amending the Government of NCTD Act has ignited debates about federalism, democracy, and bureaucratic accountability. Opposition parties must recognize the importance of federalism as a guiding principle and act to safeguard it. The protection of federalism requires a principled approach that upholds democratic values and ensures the balance of power between different tiers of government.

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