House Talk | Does Delhi Services Bill Cleared in Parliament Violate Federalism? What Experts Say

Monday evening witnessed the passage of the Government of the National Capital Territory of Delhi (Amendment) Bill, 2023 in the Rajya Sabha, four days after it was passed in the Lok Sabha. The bill dilutes the power of the Delhi government with respect to the appointments and transfers of Delhi government officers and empowers the Lieutenant Governor (LG) regarding the decisions of all Group ‘A’ officers barring officers handling matters related to public order, land, and police.

The Bill, after becoming law, will establish a permanent authority named “National Capital Civil Service Authority" to take decisions with respect to the services of civil servants working under the Delhi government.

The Bill has been a bone of contention between the Delhi government led by Chief Minister Arvind Kejriwal and the Union government. The Aam Aadmi Party government had accused the Union government of “usurping the power of the democratically elected government".

Congress MP Abhishek Manu Singhvi had said, “This Bill is completely unconstitutional. It is fundamentally anti-democratic. It is a frontal assault on the regional voice and the regional aspirations of the people of Delhi. It violates all principles of federalism, all norms of civil service accountability, all models of Assembly-based democracy,"

However, the passage of the bill in Rajya Sabha after getting cleared from the Lok Sabha gives it political legitimacy. Moreover, the support from former Chief Justice of India (CJI) and Rajya Sabha MP Ranjan Gogoi gives it legal sanctity.

Speaking in support of the Bill on Monday, Gogoi said, “I will confine myself to the legality of the proposed legislation and address the house and chair from three standpoints — sub-judice, the overreaching of the Supreme Court’s order, and the constitutional validity."

He said that there are some faint voices regarding propriety and went on to add that what is pending before the court is the validity of the ordinance and what house of debating is the validity of the law.

He clarified that the Supreme Court is hearing validity of the ordinance while two questions that have been referred to the constitution bench have nothing to do with what is being debated in the house.

Regarding the question of overreach against the Supreme Court judgment, Gogoi said, “The state legislature makes laws for the state and the Parliament makes laws for Union Territories".

“For the National Capital Territory of Delhi, which has a special status, the state legislature makes the laws on all state subjects, except three. Parliament (on the other hand) has the powers to make laws beyond these three. So, there is no question of overreaching," he said.

Giving his final word on the law that the Bill goes to bring in, he categorically said, “Is this law arbitrary? It doesn’t appear to be so".

Here’s What Experts Say

The opposition has claimed that the proposed legislation was unconstitutional and violates the principles of federalism. However, experts say that the bill addresses the long-term vision of a strong nation.

“India from the very beginning was a federalism with strong center considering unique situations prevailing in the country then and now also. Federalism was always a compromise to address regional aspirations. In the long term, it was to emerge as a strong nation. Long term vision was to emerge as one nation," Shubhra Ranjan, an expert on constitutional and polity issues, said.

“Delhi is not a state, it is still a union territory with the flexibility given to provide self-governance depending on the circumstances. India’s asymmetrical federalism grants enough scope for differential treatment depending on the context," she added.

Ranjan further said that in any of the country like India, Germany or Brazil, the federal state are to be administered under overall surveillance of the Union government.

“Supreme Court in the Sarfesi case related to Jammu and Kashmir itself held India is quasi-federal. There is no provision in the constitution or any other law which prevents parliament from exercising its powers to make laws on the subjects given to it by the constituent assembly," she added.

Moreover, the Supreme Court can declare a law unconstitutional only after the law comes into existence.