Cover Story

Federalism in peril

Print edition : April 23, 2021

Prime Minister Narendra Modi and other BJP MPs during the parliamentary party meeting in New Delhi on March 23. Photo: ATUL YADAV/PTI

Delhi Lieutenant Governor Anil Baijal with Chief Minister Arvind Kejriwal at Raj Niwas in New Delhi on August 9, 2018. Photo: PTI

The Delhi government Bill and other legislative measures adopted by the Narendra Modi government and State governments headed by the BJP fit in well with the Sangh Parivar’s long-term project of dismantling the symbols and institutions considered anathema to the ‘Hindu ethos’.

In the early 1990s, when the Bharatiya Janata Party (BJP) was still a part of the opposition at the national level and practised “collective leadership” in its organisational structure, many senior members of the party and its associate outfits in the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar, including Lal Krishna Advani, Atal Behari Vajpayee, Ashok Singhal and Acharya Giriraj Kishore, used to find time to speak at length to the media and share their ideas about re-moulding India. In early 1993, a couple of months after the demolition of the Babri Masjid by kar sevaks of the Sangh Privar in December 1992, this writer was witness to such an exposition by two Hindutva stalwarts of the time, Acharya Giriraj Kishore, senior leader of the Viswa Hindu Parishad (VHP), and Mahant Ramachandra Paramahans, chairman of the Sri Ramajanmabhumi Nyas, the trust founded by the VHP with the professed objective of completing the work on the Ayodhya Ram Mandir.

‘Historical blemishes’

Giriraj Kishore and Ramachandra Paramahans were exuberant during that interaction and both spent considerable time explaining the reasons for their elation. Giriraj Kishore had said: “A 450- year-old blot on the face of India was removed by valiant Hindutva warriors through the demolition of the Babri Masjid. This is a major historical victory for Hindutva ethos, culture and socio-political practice.” Both were certain that more triumphs were on the way and these would ultimately lead to the establishment of a Hindu Rashtra. However, Giriraj Kishore added: “In the course of reaching that ultimate goal, many historical blemishes similar to the Babri Masjid would have to be removed.”

The leaders went on to list some of these “historical blemishes” that deserved to be “delivered from shame”. Of course, the list contained the targets to be removed, such as the Kashi Gyanvapi mosque and the Mathura Jama masjid adjoining the Sri Krishna Janmasthan temple. The Taj Mahal in Agra and Qutab Minar in Delhi also figured prominently in the list. Giriraj Kishore and Ramachandra Paramahans contended that the Taj Mahal was a Siva temple that it once went by the name of ‘Tejo Mahalya’ and that Qutab Minar was built by Muslim invaders after demolishing a Hindu-Jain religious complex consisting of 27 temples.

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But the list also comprised some other amazing targets, not discussed so widely in public by senior Sangh Parivar leaders. Giriraj Kishore listed the Indian Parliament as one of the “institutional signs of subjugation and shame”. Starting from the architectural designs of the building to the parliamentary systems and practices, the entire package, including the legislative processes adopted by the Union and State government, was portrayed as a persisting symbol of the British domination. The Indian Constitution was seen as an extension of the parliamentary system that violates the spirit of Bharat and its Hindu ethos. Guru ji M.S. Golwalkar had expressed such views even as the Constitution was being formalised. The Hindu Rashtra of the Sangh Parivar will undo all this.

Ramachandra Paramahans, who was known for his boisterousness, said that just as in the case of the decades-long expedition leading to the demolition of the Babri Masjid, the dismantling of the other “symbols of shame” would involve diverse strategies and tactics of the “sama-dana-behda-danda” (conciliation, gifts, dissension, and coercive force), and the upayas (approaches to achieving an objective in state politics) identified by Kautilya. Such multiple strategies, which included lying and deceiving the public as well as vital constitutional institutions such as the Supreme Court and National Integration Council (NIC), had come into play time and again during the Ayodhya campaign.

Ramachandra Paramahans passed away in 2003, after seeing BJP leader A.B. Vajpayee hold office at the Centre for nearly six years as the leader of the National Democratic Alliance (NDA) government. Giriraj Kishore died in July 2014, barely a couple of months after the BJP secured a huge majority in the Lok Sabha under the leadership of Narendra Modi. Five years later, in the 2019 Lok Sabha election, the BJP repeated its victory under the leadership of Modi, with a bigger majority. Nearly seven years into the domineering single-party rule, leaders of the BJP or other Sangh Parivar outfits no longer interact with the media or socio-political observers to explain and discuss their idea of reworking India. All ideas and implementation techniques flow from a command centralised, controlled and operated by the supreme leader, Prime Minister Modi.

However, the larger project of dismantling symbols and institutions considered anathema to the ‘Hindu ethos’ continues apace as delineated by the two Sangh Parivar leaders way back in 1993. Every single key institution of the Indian republic, starting from Parliament to the judiciary and the Election Commission, has been systematically subjugated and undermined by the Modi regime. Throughout this nearly seven-year period, Parliament was a special target. It has been manipulated and undermined by deploying the sama, dana, behda, danda strategy.

Coercive force

Right from the time the Modi government’s second tenure began in May 2019, there have been signs of danda, or coercive force, being used. The most glaring examples of this practice were the abrogation of Article 370 of the Constitution in August 2019 to take away the special status accorded to Jammu and Kashmir and bring the State under the jackboot; the reckless enactment of the Citizenship (Amendment) Act, in December 2019; and the passage of the three controversial farm Bills in September 2020 taking advantage of the ruling party’s brute majority in the Lok Sabha and adopting a questionable voice-vote method in the Rajya Sabha. Every one of these dubious pieces of legislation evoked widespread resentment and massive protests. The farmers protest triggered by the controversial farm laws has been continuing at the borders of the national capital for over four months now.

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However, developments during the Budget session of Parliament in February 2021 underscored the fact that the Modi regime is determined to bulldoze its way through the popular resistance and bring new areas in its grip. In the span of a single day, March 15, 2021, the government brought in three amendment Bills that sought to blatantly abrogate the powers of other components in the democratic and federal system, including the Delhi government and the judiciary.

Targeting the Delhi government

The most brazen of these moves was the introduction of the Government of National Capital Territory of Delhi (Amendment) Bill (GNCTD), 2021, which sought to change the meaning of the “expression ‘government’ in relation to any law to be made by the Delhi Legislative Assembly. The change suggested was that the expression government shall mean the Lieutenant Governor”. Another amendment, which dealt with assent to Bills passed by the Legislative Assembly, stated that the Lieutenant Governor shall not assent to and pass on to the President for consideration any Bill which “incidentally covers any of the matters which falls outside the purview of the powers conferred on the Legislative Assembly”.

The Bill was rushed through both Houses of Parliament in less than 10 days after it was introduced in the Lok Sabha and sent for presidential assent. What this Bill does, in simple terms, is to undermine the powers of Delhi’s elected government in absolute terms. In the process, it also violated the Supreme Court’s landmark judgment in 2018, which upheld the primacy of the elected legislature in matters of governance. Political and legal experts said that a legislation with such deep import should have been discussed thoroughly in Parliament and should not have been rushed through. These experts even suggested that the Bill should be referred to a Select Committee. Several members of the Congress, Left parties and the ruling Aam Aadmi Party (AAP) have made a similar demand.

The other two Bills pertained to Juvenile Justice (Care and Protection of Children) Act and the Mines and Minerals (Development and Regulation) Act. The first Bill sought to transfer certain powers vested in courts to District Magistrates and Additional District Magistrates, especially in relation to adoption of children. Congress leader Shashi Tharoor objected to the introduction of the Bill. He pointed out that it was a clear attempt to marginalise the judiciary and its role in juvenile care and protection. The second Bill, with the ostensible aim of reforming the mining sector, sought to make several mines available for private auctions. The suggested amendments would facilitate future auctions of mineral mines without captive end-use restrictions and allow existing captive coal mines to sell up to half of their production. Tharoor objected to the introduction of the Bill on the grounds that its provisions failed to acknowledge the adverse impact on environment and biodiversity, and threatened the lives of people residing close to the mines and impinged on the federal structure.

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Perhaps inspired by such arbitrary manoeuvring of legislative processes, State government led by the BJP and its allies have tried to enact legislation that concentrates extraordinary powers in the hands of the state. A recent case in point is the move by the Nitish Kumar-led Janata Dal (United)-BJP government in Bihar to bring in the Special Armed Police Bill, which, among other things, empowers the State police to arrest people without a warrant (see story on page 18). The laws introduced by the BJP governments in Gujarat, Uttar Pradesh and Madhya Pradesh on what they termed as “love jehad” also smacked of similar arbitrariness

Restrictions on Parliament

The project of “dismantling Parliament”, which has become more blatant in the past seven years of the Modi regime, is majorly disconcerting and has caused consternation among political and legal observers. In the first term of the Modi regime (2014-19), the BJP along with its allies in the NDA did not have a majority in the Rajya Sabha despite possessing a crushing majority in the Lok Sabha. So, opposition parties such as the Biju Janata Dal (BJD) and the Telengana Rashtra Samithi (TRS) were placated with special financial packages for their States to enlist their support for crucial moves in the Rajya Sabha. These placatory moves were not uniformly successful and several proposed pieces of legislation of the Modi regime, especially those relating to controversial matters such as Aadhaar, had got stuck in the Rajya Sabha. In such situations, the government repeatedly resorted to the dubious “Money Bill route”. This sleight of hand worked well as the Rajya Sabha has no power to reject a Money Bill.

New parameters imposed

However, after the BJP was re-elected in 2019, more non-Congress regional parties, including the TRS, the YSR Congress and even the AAP, were ready to support the BJP on controversial decisions. But the government could not take the support of these parties for granted on questions such as the CAA. It was in such a context that the COVID-19 pandemic situation was used by the regime to impose new restrictions on the functioning of Parliament. In the very first Parliament session after the advent of the pandemic, new parameters were imposed, cutting short, either in full or in parts, three important components of parliamentary practice—Question Hour, Zero Hour and Private Member’s Bill. The Question Hour, considered the liveliest daily engagement in Parliament, was scrapped, which meant that. members could no longer direct specific questions at Ministers on specific projects or hold them accountable for the functioning of their Ministries or elicit information. Since Independence the Question Hour had helped members expose irregularities in the functioning of Ministers and Ministries or forced the government to take purposive action. The Zero Hour, which is considered an innovation of the Indian parliamentary system, was curtailed on the pretext of imposing COVID-19 restrictions.

Akhilesh Yadav, Samajwadi Party (S.P.) president and former Uttar Pradesh Chief Minister, and Sanjay Singh, the AAP’s Rajya Sabha, pointed out that the Modi regime has undertaken the dismantling of Parliament essentially to stifle the political opposition to it. Akhilesh Yadav said: “In the case of Jammu and Kashmir, the government raised a justification citing the need to counter terrorism, but even that fig leaf is not available in the case of the Delhi Act.”

Sanjay Singh said the only reason for introducing the GNCTD Bill was that the AAP had defeated the BJP in two successive elections and that too by a large majority. “The BJP and its leader Advani were instrumental in making concrete moves for the statehood of Delhi. Now, because the BJP could not gain power here legitimately through election, and its efforts to use the Lieutenant Governor’s office to interfere were not fully successful, it is trying to acquire it through the back door through legislative excesses,” Sanjay Singh told Frontline.

Also read: DISPATCHES | Union government introduces a Bill in the Lok Sabha curtailing the powers of the elected government in Delhi and arming the Lt Governor with overarching administrative powers

Congress leader Abhishek Manu Singhvi pointed out that Delhi was given a fully elected Legislative Assembly and a responsible government through an amendment of the Constitution in 1991. He said: “Article 239AA was added to Part VIII of the Constitution and this Article provided for an Assembly, fully elected, and a Council of Ministers responsible to the Assembly. It conferred on the Assembly the power to legislate on all matters in the State List as well as the Concurrent List except land, police and public order. The purpose behind granting a special status to Delhi has been explained by the Supreme Court in GNCTD vs Union of India in the following words: The real purpose behind the Constitution (69th Amendment) Act, 1991, as we believe, is to establish a democratic set up and representative from of government wherein the majority has a right to embody their opinions in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the constitution. And it is this right that the Modi government is trying to take away.”

Singhvi said the GNCDT Bill was the most unconstitutional Bill that the Rajya Sabha had ever considered. “Make no mistake, this is not about the AAP, or the Congress or the BJP. It is about the fundamentals of federalism and seeks to bring in an era of coercive federalism.” Singhvi was also of the view that the new amendment was not legally maintainable and would be thrown out by the courts.

However, there is no clarity on how long it would take for the judiciary to address the legal challenges to the Act and take them up for consideration. Political and legal observers are of the view that the recent track record of the judiciary does not instill optimism about any legal redress.

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