Indian Federalism and the Banal Politics of the GNCTD (Amendment) Act, 2021
Guest Opinion
Introduction
India is a multicultural and multifaceted country with innumerable asymmetries abound. The Indian experience is fundamentally couched in the practices of diversity. India was amongst the first few democracies to embark on a multicultural path when the West still insisted on adopting a difference-blind approach and value neutrality. Diverse are its people, languages, cultures, religions, and belief systems. The India that was bestowed upon us fought valiantly against the homogenizing tendencies of its colonial masters and the ethnonationalist sentiments of its indigenous nationalists. It mandated a new path by recognizing its minorities, rather than turning a blind eye to them.
The Indian nation state emerged as a glistening diamond forged under the fiery pressures of accommodation and assimilation. It can thus be called a motley package of diversities that have together rendered it a unique identity and conditioned its performance as a democracy. Packaged within the acceptance of diversity, often came threats of differentiation underlined by secessionist underpinnings and attempts to break away from the huge patchwork quilt.
The pages of our history celebrate the iconic efforts of Sardar Patel to weave together a patchwork quilt of states through deliberations and negotiations. The underpinnings of diversity also manifest themselves into the procedures of integration of states, with each state striking a different deal with the national government.
Federalism
Article 1 of the Indian constitution defines that ‘India, that is Bharat, shall be a Union Of States.’ This highlights the unique concept of federalism that India incorporated into its Constitution and everyday statecraft. In simpler words, ‘Federalism’ refers to ‘a form of political organization wherein distribution of power is at two levels – mostly the national and the regional level.’ Taking instruction from this, political scientists further classify governments into Federal as opposed to Unitary models.
A definitional endeavour suggests that a Unitary government is one in which all powers are vested in the national government, and the regional governments ( if they exist at all) derive their authority from the national government. In a federal government, the division of powers between the national and regional governments is sanctioned by the Constitution, and both operate independently in their respective jurisdictions.
The Constitution of India established one such federal system of government. India contains all the usual features of a federation i.e. two governments, division of powers, written constitution, supremacy of constitution, bicameralism, and independent judiciary . However, the Indian case also encapsulates examples of unitary non-federal characteristics such as a strong centre, single constitution, single citizenship, integrated judiciary, appointment of state governor by centre, All India Services, and the emergency provisions.
Kutty employs a Dickensian staple (The orphan Oliver asking for more soup) as subtle metaphor for Centre-state relations/Image Credits: Outlook India
Surprisingly, the term Federation features nowhere in the Constitution. Thus, often the Indian system has been variously described as ‘federal in form but unitary in spirit’. K.C Wheare (1946) refers to the Indian case as ‘Quasi-Federal’ and Morris Jones (1960) refers to it as ‘Bargaining Federalism’. Granville Austin (1966) calls the Indian case as ‘Federation with a centralizing tendency.’
Asymmetrical Federalism– The Indian Experience
The Indian experience of federalism has been unique. Its diversity has validated India’s practice of Asymmetrical federalism. Simply put, ‘Asymmetrical Federalism’ refers to ‘a flexible type of union’ that grants special status to some federative units in the Constitution. Circumscribing the Indian experience is a great deal of ambivalence in this regard . Many modern postcolonial nationalists expressed their scepticism against any asymmetrical constitutional arrangements for they believed that it bore within it the seeds of separatism. Illustrative are the cases of Pakistan and Sri Lanka who almost totally rejected the federal ideals despite their ethno-national diversities. India and Nepal were the only two reluctant postcolonial federalists.
Ronald Watts (2008) brought about an interesting theoretical distinction between the political asymmetry that characterizes every federation based on the geographical and demographic sizes of units, and the Constitutional Asymmetry which pertains to the differences in status or differences in legislative and executive capacities, legitimized by the Constitution, to the different regional units. Constitutional Asymmetry had been manifest in the Special Status provided to the state of Jammu and Kashmir (abrogated recently) and that of Nagaland and Mizoram, at the state level.
However, constitutionally mandated asymmetries also percolate to sub-state levels. This encompasses the experience of special kinds of federating units referred to as Union Territories. Initially administered directly by the Union through centrally appointed administrators, none possessed legislatures but were still represented by at least one seat in the lower house of the Parliament – the Lok Sabha. Subsequently, two new Union Territories came to be created, namely Pondicherry by the virtue of the 14th Amendment Act in 1962, and Delhi by the virtue of the 69th Amendment Act in 1991.
A point of convergence in these two cases has been the grant of unicameral legislatures, membered by directly elected representatives. The legislatures are led responsibly by a Council of Ministers and headed by the Lieutenant Governor, an appointee of the Union Government, who performs the formal executive functions of the government. Both the territories are led by Chief Ministers accountable to their respective legislatures. However, the Chief Minister of Delhi is appointed by the President of India on the recommendation of the Lieutenant Governor (LG).
This is on account of the fact that Delhi is the National Capital Territory (NCT). Delhi Legislature enjoys only concurrent jurisdiction particularly in the context of conflicts that may emerge on questions of laws made by it and those made by the Parliament. In such situations, the laws of the latter are given precedence.
Delhi can be viewed as a semi state in that some of its vital subjects of land, police, and civil services are vested in the hands of the Union Government. The Government of Delhi enjoys only concurrent jurisdiction in other subjects. This has given impetus to the demands for full statehood for Delhi. It is in this context that the GNCTD Bill becomes an important focal point .
The GNCTD
The Government of Delhi or the Government of the National Capital Territory of Delhi (GNCTD) governs the Union Territory of Delhi. The Chief Minister and the Lieutenant Governor are the heads of the Government. It comprises a Legislative Assembly which is unicameral in its nature and is membered by 70 members.