Federalism in India has lately been going through a tumultuous phase owing to a growing centralising drift in centre-state relations particularly in the last decade or so. Every now and then, the central government is in a constant tussle with the opposition ruled States and Union Territories (UTs). This is despite an elaborate constitutional framework on the distribution of powers between the Centre and the federal units. Needless to say, one of the many distinguishing features of India’s federal principle has been its asymmetrical skew in favour of some States due to special historical and political reasons that define their relationship with the Union.
The confrontational relationship of the Centre with the States and the UTs has played out in myriad ways. While there have been egregious instances of the misuse of the offices of Governors to overthrow elected governments in different States in recent past, the power battle between the Centre and the elected government of National Capital Territory (NCT) of Delhi on the question of control over ‘civil services’ particularly since 2015 best exemplifies the growing centralising drift.
However, after a series of chequered judicial interventions since 2015, on 11 May 2023, a five judge Constitution Bench of the Supreme Court, through a unanimous judgement, authored by Chief Justice of India DY Chandrachud, finally settled the Delhi power tussle in favour of its elected government, and rightly so.
Drawing from the Westminster model of parliamentary democracy, and in the court’s own words, to ensure a ‘triple chain of accountability’ - civil service officers should be accountable to ministers who in turn are accountable to the legislature which is ultimately accountable to the electorate. This is a massive relief to the elected government of the NCT given the dissonance between the ministers and the civil service officers in the recent past. Apart from this, the judgement stands out for its exponentially meaningful interpretation it has given to an otherwise beleaguered federal principle of the Constitution and the need for representative governments in federal units.
A Revival of the Asymmetrical Model of Federalism
At a time when the narrative of a ‘strong Centre’ has gained popularity in some sections of the political spectrum, particularly peddled by the ruling party at the Centre, the judgement is a kind of a federal resurrection. This is due to the focus it places, using a purposive interpretive framework, on the original federal model of the Constitution, which not only accommodates regional aspirations but, in some situations, skews the balance in favour of federal entities. Given the variety of religious, regional, ethnic, cultural and linguistic aspirations, India represents an unmatched plurality. Therefore, the skewed division of powers in some cases in order to ensure, as the Court observed, ‘the representation of diverse interests’. The Court further added: ‘recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy’ (paragraph 74).
The Court has extensively cited constitutional provisions, constituent assembly debates and its own previous precedents, particularly the 2018 judgement, on the same issue in order to drive home the importance of asymmetrical federalism as a defining feature of India’s polity. The Court minces no words in observing that ‘the Constitution treats federal units differently from each other to account for their specific circumstances’. Rightly so. Interestingly, the Court walks an extra mile here in citing Article 371 of the Constitution which recognises the special constitutional status of a host of States.
An interpretation of this kind is a red flag for the Central Government’s abrogation of Article 370 which guaranteed a similar rather more robust special constitutional framework for the erstwhile State of J&K. Whether the court would reiterate and apply this interpretation in the challenge to abrogation of Article 370 pending before it since August 2019 remains to be seen.
In sharp contrast to some of its own previous precedents, the Court observed that sovereign powers of the States in their own domains are to be respected. For instance, in paragraph 69, the Court has specifically cited one of the seminal speeches of Dr B R Ambedkar in the Constituent Assembly in order to emphasise on the sovereignty of the federal units:
‘Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution… The Indian Constitution proposed in the Draft Constitution is not a league of States nor are the States administrative units or agencies of the Union Government’.
Representative Democracy as a Precursor to Federalism
As argued above, the Central Government has on several occasions misused the office of Governors to overthrow elected governments in opposition ruled States. The events in Maharashtra last year are the case par excellence to elucidate the point. Interestingly, on the same day, a separate Constitution Bench of the court declared the Governor’s action calling for a floor test illegal as the disqualification petitions against the defecting members of Shiv Sena were pending. It’s another matter the Court did not turn the clock back in the State because it said the then Chief Minister Uddhav Thackeray resigned before facing the floor test. That this reeks of a calibrated approach of the top court towards the ruling party at the centre is not far fetched.
Cut to the NCT, the Court explained that its Legislative Assembly embodies the constitutional principle of representative democracy similar to the Legislative Assembly of the states. As a corollary, the electors of the NCT have a say in who governs them. The Court emphatically ruled that all UTs can not be bracketed in the same framework of governance; UTs with a Legislative Assembly are similar to States, and as a consequence, their executive powers should be co-extensive with legislative powers (paragraph 75).
This interpretation is likely to reinforce the demand for elections in the now Union Territory of Jammu and Kashmir. The last time elections were held in J&K was in 2014; J&K has been under the Centre’s direct rule ever since the last Legislative Assembly of the state was dissolved on 21 November 2018. The bottomline is that the ruling in Government of NCT of Delhi v. Union of India underlines the essence of asymmetrical federalism and representative governments in federal units as embodiments of a parliamentary democracy.
Whether the Apex Court is able to take this new jurisprudential reasoning underlying India’s federal principle forward remains to be seen. The real challenge lies ahead.
(Burhan Majid is an Assistant Professor of Law at the School of Law, Jamia Hamdard, and a doctoral fellow at NALSAR University of Law, Hyderabad. The Quint neither endorses nor is responsible for the same.)
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