Examining the Impact of the Delhi Ordinance on Asymmetric Federalism

The Union government’s recent decree altering the Government of National Capital Territory of Delhi (NCTD) Act, 1991, has aroused issues regarding federalism, democracy, bureaucratic accountability, executive law-making, and judicial scrutiny. This action rendered the Supreme Court decision that recognised Delhi’s elected government’s legislative and administrative powers over services null and void.

What exactly is asymmetric federalism?

  • Asymmetric federalism is a governance paradigm in which various areas or component entities within a country are granted differing degrees of autonomy or special provisions based on their distinct qualities, circumstances, or historical causes.
  • It acknowledges that not all regions or constituent entities are the same and may necessitate alternative arrangements to meet their unique requirements and objectives.

Important considerations about Delhi’s unique situation and asymmetric federalism

  • Exceptional status: The Supreme Court acknowledged that the inclusion of Article 239AA to the Constitution conferred on the National Capital Territory of Delhi (NCTD) a distinct and distinctive status. This acknowledgement shows that Delhi does not easily fit within the categories of a full-fledged state or a union territory.
  • Examples of specific governance arrangements: Asymmetric federalism is already present in India’s federal system. For example, the unique provisions in Article 370 (before to its dilution) for Jammu and Kashmir, as well as the protections in Article 371, as well as the 5th and 6th Schedule Areas, illustrate the existence of unequal treatment based on regional considerations.
  • Legislative and administrative powers: The Supreme Court ruled on May 11 that Delhi’s elected government has legislative and administrative powers over certain topics, including services. This acknowledgment reinforces the notion that Delhi functions within a different constitutional framework, allowing it to exercise powers comparable to those of states.
  • While Delhi remains a Union Territory, the Court’s decision emphasised that the special constitutional position bestowed upon it makes it a federal institution. This acknowledgement confirms the existence of a separate system for Delhi under India’s federal structure.
  • In contrast to Jammu and Kashmir, the Court’s application of asymmetric federalism principles in Delhi contrasts with the situation in Jammu and Kashmir, where comparable principles were not upheld. This disparity underlines the importance of applying and recognising federalism consistently throughout different regions.

Inconsistent Use of Asymmetric Federalism

  • Distinctive treatment: When different regions or component entities within a country enjoy varying degrees of autonomy, special provisions, or safeguards based on their unique traits, historical factors, or political concerns, inconsistencies occur.
  • Unequal power distribution: In some circumstances, particular regions may have more devolved powers, legislative authority, or administrative autonomy than others. This discrepancy might lead to perceived favouritism or prejudice in decision-making and resource distribution.
  • Various levels of cultural or linguistic protection: Asymmetric federalism may entail granting specific regions or constituent units special cultural or linguistic safeguards. However, the scope and nature of these safeguards might vary, resulting in discrepancies in the preservation and promotion of cultural diversity and linguistic rights.
  • Inconsistent application of asymmetric federalism can also be seen in the distribution of financial resources. Some regions may obtain preferred funding or fiscal arrangements, whilst others may receive fewer resources, resulting in economic inequities and regional imbalances.
  • Selective application based on political concerns: In some circumstances, asymmetric federalism’s application may be influenced by political considerations, resulting in uneven treatment. Regions that support the ruling party or have more political clout may be given preferential treatment, while others may be ignored or marginalised.
  • Inconsistencies in the application of asymmetric federalism can result in a perception of unfairness, grievances, and conflicts among regions or component entities. Within a federal system, this can erode trust, unity, and cooperative government.
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