Delhi services bill: Tharoor says coercive federalism exists; Lekhi hits back

Congress MP Shashi Tharoor on Thursday alleged that "blatant subversion of the constitutional separation of powers" was taking place through the bill to replace the Delhi services ordinance and said while Prime Minister Narendra Modi talks about cooperative federalism, the country was witnessing "coercive federalism".

Participating in the debate in the Lok Sabha on the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, Tharoor argued that the proposed bill represents a "grave chapter in the history of the Indian republic, seeking to ratify an ordinance that in many ways is an assault on our democratic heritage and the spirit of federalism."

Intervening during the debate, Minister of State for External Affairs and Culture Meenakshi Lekhi said India has a quasi-federal structure with the Centre having primacy.

She said the bill has been brought to statutorily balance the interests of the nation and the Union Territory of Delhi.

"India has a quasi-federal structure, which the Constitution demarcates. India is not federal," Lekhi said, adding that many practicing lawyers are "misleading" the country on this.

The Centre has primacy, otherwise, it would not be possible for the government to run a large and diverse country like India, she said.

"Parliament of India and the Government of India have been given primacy in the Constitution. Parliament has every right to correct the wrong and bring the right thing," the minister said.

Tharoor hit out at Lekhi for her remarks, saying she asserted that India is not federal, and if it is so, then why does the country then have a union list, a state list and a concurrent list.

The bill to replace an ordinance promulgated for handling the transfers and postings of senior officers in the Delhi government was passed in the House amid a walkout by opposition parties.

The Government of National Capital Territory of Delhi (Amendment) Bill, 2023 was passed after a nearly four-hour-long debate which was replied to by Union Home Minister Amit Shah.

Tharoor argued that the bill with such a substantive policy change should not have been brought in the first place when a motion of no-confidence was pending against the government.

"The Bhagavad Gita of parliamentary practice and procedure -- MN Kaul and SL Shakdher (book) -- explicitly states that when the leave of the House to the moving of a motion of no-confidence is granted, no substantive motion on policy matters is to be brought before the House by the government till the motion of no-confidence is disposed of," Tharoor said.

"In 27 motions of no-confidence brought since independence to this House, no bills were debated and passed (during the period of no-confidence motion) before this government did so with two bills in 2018," he said.

"Therefore, such an improper introduction of a substantive policy change while the no-confidence motion is pending is against the democratic morality," the Congress MP said.

"What we have repeatedly seen under this government is a brazen effort being made to curtail the autonomy of our states. PM Modi talks about cooperative federalism but we are witnessing instead coercive federalism that seeks to centralise all power in the hands of the central government," he said.

He said the prime minister has hailed India as the 'mother of democracy', so how can a "mother treat her children this way?".

Tharoor also recalled that in the Lok Sabha, almost four years ago, the government had "unceremoniously" passed a bill that sealed the fate of a state government practically overnight.

Referring to the Centre's move to take away the statehood of Jammu and Kashmir and abrogating its special status, he said the government had showed "rampant disregard" for the basic constitutional relationship of the people of J-K to the republic of India without consulting them or their elected representatives.

"This government is showcasing the same attitude…A breathtaking betrayal of our democratic political culture, an utter contempt for the people of the state and of the value of the political representation they give themselves through elections," the MP from Thiruvananthapuram said.

"Four years later, we are back in the house with the government that is clearly bringing the same attitude to our national capital," he added.

Tharoor also referred to Home Minister Amit Shah citing India's first prime minister Jawaharlal Nehru while pitching the bill for consideration of the House, and said the truth is "times change and with that facts change".

Referring to the treasury benches, he said they oppose everything that Nehru said and "stood for so why not on this one too".

"They also went on about alliance politics, but let me stress this is not about alliance politics but this is about principle," he asserted.

The democratic and federal republic of India today finds a grave shadow cast upon it, Tharoor said.

"The Union of states, so original and aspirational in its genesis, faces a crisis of the federal division of powers. In stark contrast to the government's claims of 'cooperative federalism', we routinely see the ruling party impinging upon the sovereign domain of the states, from vacillating on GST dues and MNREGA payments to states to bulldozing through laws on subjects from the State List. A blatant subversion of the constitutional separation of powers is taking place again today through this Bill," he alleged.

In his speech in the Lok Sabha, Tharoor said the Supreme Court was loud, clear and unequivocal on the matter, asserting that the government seems determined to ignore the highest court of the land.

He went on to list "dangerous prongs" of the amendment, pointing out that it removes services from the legislative competence of the Delhi legislative assembly.

"In other words, it amends the Constitution without being a Constitutional Amendment Bill. It establishes the National Capital Civil Services Authority, which consists of the Chief Minister, Chief Secretary of Delhi, Principal Home Secretary of Delhi. The Authority in which the elected CM can be outvoted by the other two, will make recommendations to the Lieutenant Governor regarding transfers and postings of officials and disciplinary matters," he said.

"In fact, the other two can meet without the CM and take decisions without his participation. In other words, bureaucrats will henceforth exercise authority that voters have given to their elected public representatives," Tharoor argued.

If the BJP would have been in power in Delhi, would they have accepted this bill, he asked, and added that "it seems a case of where you stand depends on where you sit".

The bill empowers the LG to exercise his sole discretion on several matters including those related to National Capital Civil Services Authority, and the summoning, prorogation and dissolution of the Delhi Legislative Assembly, he pointed out.

This implies that the elected chief minister may be unable to convene a session needed for essential government business, Tharoor said.

The LG can overrule over a unanimous decision of this authority, he added.

Executive law-making through an ordinance, as the Supreme Court held in D.C. Wadhwa (1987), is only to “meet an extraordinary situation” and cannot be “perverted to serve political ends”, Tharoor said, quoting some portions from court verdicts.

But the government has done so in a brazen display of power, he alleged.

"Most crucially, adding an additional subject of exemption (services) to the existing exemptions (land, public order, and police) of Delhi's legislative power listed in Article 239AA, without amending the Constitution, is arguably an act of constitutional subterfuge," Tharoor said.

He claimed that this is a "Constitutional amendment bill in disguise".

"How ironic that when the Supreme Court has said there is a complete breakdown of the constitutional machinery in Manipur, you don't want to discuss it but you want to amend the constitutional machinery when it is functioning in working order," he said.

Referring to the Supreme Court's May 2023 judgement, Tharoor said the top court has argued that democratic government rests on a triple chain of accountability -- civil servants are accountable to ministers; ministers are accountable to legislatures; and legislatures are accountable to the electorate.

If a democratically-elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant, he argued.

By severing the first link of the triple chain of accountability, the bill is essentially contradicting the principles of parliamentary democracy, Tharoor contended.

In 'New India', some states will come first if they are ruled by the right party while others must remain subservient to the political wishes of those in New Delhi, the Congress MP said.

There has been the cultural aspect to these assaults on states' rights by the Centre through the unjustified push towards imposing Hindi on the southern states, he alleged.

There is also a law and enforcement angle through the "weaponisation of independent regulatory and investigative bodies" like the Enforcement Directorate, the CBI and the Income Tax department to clamp down on the government's political opponents from regional parties, Tharoor said.

There is also the use of legislation like the Disaster Management Act, an obscure provision of which was used to ride roughshod over states' rights in imposing successive lockdowns during the Covid pandemic, he said.

"The record number of cesses that are currently being levied by the central government, the proceeds of which are not shared with the states…One wonders if this is new definition of 'Na Khaunga, Na Khane Dunga'," he said.

"We should not let such a travesty of a bill pass this House," Tharoor said.

Retorting the comments of the opposition that the bill is a malicious piece of legislation, minister Lekhi said it is a "purposeful" legislation.

The purpose to strike a balance between domestic and national needs because Delhi is a capital city where balance needs to be kept between local as well as national and international requirements, she added.

The real story behind the opposition for the bill is for hiding the "inaction" of Delhi government led by the AAP and the vigilance and the non-vigilance related matter, she said.

The Delhi government has a Budget of Rs 13,500 crore for hoardings and posters, rather than on spending on development activities, Lekhi said.

Aam Aadmi Party Rajya Sabha MP Sanjay Singh, in a statement, termed the bill unconstitutional and alleged that the BJP-led Centre wants to grab power from the backdoor and run the Delhi government.

"The bill is not only against the judgement of the Supreme Court's five-judge Constitution bench but also against the country's federal structure, democracy and the Constitution," he charged.

Singh was on July 24 suspended from the Rajya Sabha for the rest of the Monsoon session for repeatedly "violating" the directives of the Chair while protesting on the Manipur issue.

Speaking on the bill, Congress MP Karti Chidambaram said the government meddles in places where it has low political capital.

"They have lost successive local and state elections here (in Delhi), and in order to meddle, they are bringing this law...They are mute and blind to what is happening in Manipur," he said.

Opposing the bill, AIMIM MP Asaduddin Owaisi said the Supreme Court had stated that ordinances can be used in instances mandating necessity and immediate action.

He said days are not far when Chennai, Bengaluru, Hyderabad or Mumbai "could become Union Territories".

Members of the opposition parties, including Indian Union Muslim League, J-K National Conference, AAP, Shiv Sena-Uddhav Balasaheb Thackeray, Communist Party of India-Marxist and Revolutionary Socialist Party, opposed the bill.

BJP member Manoj Tiwari said immediately after the Supreme Court judgement, Chief Minister Arvind Kejriwal transferred the Vigilance Officer at a time when the party was being investigated in the liquor "scam".

The Delhi government had approached the Supreme Court for staying the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, promulgated on May 19.

However, the Supreme Court last month refused to grant an interim stay on the Centre's ordinance on control over services in Delhi. It referred the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to a Constitution bench.

The National Capital Civil Services Authority will consists of the Delhi chief minister, the chief secretary of Delhi and the principal home secretary of Delhi.

The bill empowers the Authority to make recommendations to the Delhi Lieutenant Governor regarding transfers and postings of officials and disciplinary matters.

It also empowers the LG to exercise his sole discretion on several matters including those recommended by the National Capital Civil Services Authority, and the summoning, prorogation and dissolution of the Delhi Legislative Assembly.