A Hard Year For Federalism— Part 1 of the interview with P.D.T. Achary

In the first part of this The Leaflet exclusive interview, one of India's foremost constitutional and parliamentary procedure experts, P.D.T. Achary, expresses his thoughts on the general state of federalism in India and the Delhi 'services' question.

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Aakritee Raj: Greetings and welcome to a very special The Leaflet interview. My name is Aakriti and as 2023 draws to a close, we find ourselves examining a wall that separates the Union and the states.

This wall of federalism has fewer bricks in it at the end of 2023 than it did at the beginning of the year.

To guide us through this very complex landscape of India's asymmetric federalism, we have with us P.D.T. Achary, a distinguished figure in the Indian political discourse and a noted constitutional expert.

With his vast experience as the former secretary general of the Lok Sabha and author of insightful books such as Resurgent India: Glimpses of Rajiv Gandhi's Vision of India and Law of Elections, he brings a wealth of knowledge and wisdom to our conversation today.

Thank you for being here once again, sir.

At the outset, let me ask you, what are the main takeaways for you on the general state of affairs vis-à-vis federalism in India this year?

P.D.T. Achary: Well, Dr B.R. Ambedkar has said that our Constitution is federal when there is normalcy everywhere, but it is unitary in times of emergency. It is an apt description of Indian federalism.

India is a federal country, as everyone knows. But it is not a federal country like the United States. We are a federal country because of the division of legislative power between the Union and the states. That is the main feature of Indian federalism. Otherwise, Indian federalism, of course, has been described as federalism with strong unitary features.

The point is that India does not fit into the mould of classical federalism. We have very strong unitary features, and that is understandable because when the country became independent, there was a lot of bloodshed because of the Partition and there was instability and a very uncertain future was staring us in the face.

Also read: Who controls Delhi's civil servants? Supreme Court sets out to decide

So naturally, the framers of the constitution had the unity of the country in mind. Unity had precedence over everything else. The country had to remain united at all costs. Which is why they crafted the kind of federalism which we have.

It was thought that federalism was the most suited form for this country because of the diversity that exists, but at the same time the framers felt that we must have a strong Centre. Only a strong Centre could hold the country together.

As you know, in classical federalism, state units are more important. They come together and they arrive at an agreement. The federal government is created by the states.

But here, it is just the other way around. The Central authorities created these states— the federal units.

In a classical federal system, the residuary powers are vested in the states. Here, it is the other way around. They are vested in the Union.

That is why, as Ambedkar said that in times of emergency the State acquires a unitary character.

If you look at the provisions of the Constitution, you will find that there are many Articles through which the Union government can control the states, even in normal times. For example, Article 3.

The Parliament has been given enormous powers to redraw the boundaries of a state, amalgamate two states or two or three states, create new states and Union territories, and change the name of a state.

All such changes can be brought about through a law by the Parliament. So the Parliament has been given the power to redraw the boundaries of a state, change the shape of the state, diminish the area, increase the area, and so on.

Doing all this is only possible in a unitary State, it cannot happen in a federal State.

Then there is Article 254. If there is a clash between a Union law and a state law on a Concurrent subject, the Union law will prevail.

The Parliament has also been given the power to repeal a state law under the Concurrent subjects.

Also read: 'Direct contempt of the SC', 'blissfully ignorant of law': Reactions pour in after ordinance takes away GNCTD's powers over services

Then you come to Articles 256 and 257. Article 256 says that the Executive power of the state shall be used so that Union laws are implemented in full.

The government can issue directions to states for this purpose. So, the Union government issuing directions to the state to act in a particular manner goes against the essence of federalism.

The Union can issue directions to states on how to exercise their Executive power so as not to impede the exercise of the Executive power of the Union.

These are some of the provisions which can be used in normal times, not in an Emergency.

In an Emergency, the Parliament has the power to legislate on any subject, a state subject or a Union subject. The president may also impose an Emergency, a financial Emergency, drastically curtailing the powers of the state in the matter of finance, financial management of the state and so on.

In reference to the power of the Union to issue directions under Articles 256 and 257, if a state government refuses such directions, the President can conclude that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution. Then Article 356 comes into operation.

A.R.: Thank you for saying that because some of these issues will be the basis of our conversation. Let us turn our attention to Delhi for a moment, as it has been a flashpoint in the federal conflict this year.

So May 11th was a historic day as the Supreme Court delivered two judgments, one on the GNCTD Act, the other on the Maharashtra issue. What are your thoughts on the Delhi judgment and the subsequent Parliamentary intervention?

P.D.T.A.: The services were transferred to the Union government through a notification, which was challenged by the government. The Supreme Court had given a very classic judgment in favor of the state.

They said, this is a subject that belongs to the state and certainly it is the state that has the authority or control over that subject.

Also read: Delhi government, not LG, controls bureaucracy: Supreme Court verdict

But within two weeks after that, the Union government had issued an Ordinance, taking away that power. I had written about it at that time, stating that the Union government cannot nullify a Supreme Court verdict on an issue, unless the basis of the judgment has been changed.

The Supreme Court has made it very clear in many judgments that one can change the basis of a judgment, but one cannot say that the judgment is wrong and it should not be adhered to.

Neither the Union government nor the Parliament has the judicial power to nullify a Supreme Court Order. When the Bill was introduced, I had referred to a Section 3A in the Ordinance, which was later deleted when the Bill was passed. The Supreme Court is yet to set a date for a hearing on this issue.

When the Bill was passed in the Lok Sabha, the Union Home Minister, Amit Shah, had stated that the Parliament can make any law on any subject as far as the Union territory is concerned. The Parliament has overriding powers.

However, under Article 239AA(7), the Parliament has been given power to supplement the constitutional provisions, contained in Article 239AA, which governs Delhi. One cannot supplant the provisions. One can't change the basic character of these provisions or go against them.

As previously stated, the Parliament can make any law overriding, repealing or amending any law made by a state, and in this case, a Union territory.

In this scenario, the amendment made to the GNCTD Act under Article 239AA(7) comes under the ambit of 'supplemental' law.

It is not an independent law as the Union Home Minister has mentioned in the Lok Sabha. Now, a supplemental law cannot go against the provisions of that particular Article. The services will continue to remain with the Union.

A.R: The Bill essentially allows the lieutenant governor to override the decision of the council of ministers and exercise sole discretionary power.

The Ordinance was challenged in the Supreme Court and was referred to a larger Bench to examine the applicability of Article 239AA(7) as it was previously not examined.

Also read: Supreme Court considers referring challenge to Delhi Services Ordinance to Constitution Bench

Given that the Bill was passed by Rajya Sabha on August 7, 2023, while a challenge to it with respect to Article 239 AA(7) is still pending before the Supreme Court, what do you think is the future of the Bill?

P.D.T.A: The matter may still be under challenge, but the Parliament can go ahead and pass the Bill. The Supreme Court takes the final decision in this matter. If it upholds the Ordinance, the Bill will still be in effect.

If the court repeals the Ordinance, the Bill will be struck down as well. Powers will not be transferred to the Union government and will remain with the state.

A.R: What do you think are some of the broader implications of going over and above the Supreme Court's judgment in this manner? Does it affect other states as well?

Once there is a judgment, a notification follows and it is challenged and set aside. Then, another notification or an Ordinance comes straight from the president.

Is a right precedent being set? Will it have broader implications on the state of affairs?

P.D.T.A: When the Supreme Court gives an Order or a judgment, it becomes the law of the land. It needs to be enforced. However, the Parliament has the legislative power to make another law, changing the whole basis of the Supreme Court judgment.

On this issue, where the Constitution itself says that services belong to the state government. Then, was it necessary for the Union to move a Bill like this immediately to nullify the Supreme Court's verdict?

Services usually remain under the control of states. Without services, no government can function. I don't know why the services have been shifted from the state to the Union. It remains an enigma.

Transcribed by Shrikha Gowri.