The structural fragility of Union Territories
- The sudden and inexplicable resignations of MLAs recently from the Puducherry Assembly had a devastating effect. In both cases, the governments lost the majority and went out of office.
- Resigning from the membership of the House is every member’s right. But according to Article 190 of the Constitution, the resignation should be voluntary or genuine. If the Speaker has information to the contrary, he or she is not obliged to accept the resignation.
- Resignations are done with such precision that the exact number of MLAs required to reduce the majority resign, not more. This mode of toppling a government has an odd attractiveness about it because of its sheer novelty.
- The beauty of this scheme is that no MLA has to defect and face disqualification and get a bad name. It is a wonderful way to end defection and save the honour of the legislators.
These is to unravel the structural fragility of Union Territories (UTs) as units of the Indian federation which perhaps makes it easier for powerful operators in the political
system to destabilise them.
Composition of the legislature
- Article 239A was originally brought in, in 1962, to enable Parliament to create legislatures for the UTs.
- The Constitution Makers/ Parliament provides a legislature and Council of Ministers to some of the UTs to fulfil the democratic aspirations of the people of these territories.
- In other words, there was a realisation that the administration of these territories directly by the President through the administrators under Article 239 does not meet the democratic aspirations of the people.
Some of the provisions in the Constitution reveal that this aim has often been defeated by the Union.
- In our constitutional scheme, a legislature is the lawmaking body and a legislative proposal is initiated by the government, which is responsible to the legislature.
- The Composition of the UT legislature is a body that is elected, or partly elected and partly nominated. There can be a Council of Ministers without a legislature, or there can be a legislature as well as a Council of Ministers. A legislature without a Council of Ministers or a Council of Ministers without a legislature is a conceptual absurdity. Neither can the legislature exist without a Council of Ministers nor can the Council of Ministers exist without a legislature.
- Similarly, a legislature that is partly elected and partly nominated is another absurdity. In fact, a simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members. This provisions of the predominant nominated House affects the representative democracy
Issue of nomination
The issue of nomination of members to the Puducherry Assembly had raised a huge controversy.
- The Government of Union Territories Act provides for a 33 member House for Puducherry of whom three are to be nominated by the Central government. So, when the Union government nominated three members to the Assembly without consulting the UT government, it was challenged in the court.
- Finally, the Supreme Court in K. Lakshminarayanan v. Union of India, 2019 held that the Union government is not required to consult the State government for nominating members to the Assembly and the nominated members have the same right to vote as the elected members.
- Nomination as such is not new to the Indian legislature. There is provision for nomination of members to the Rajya Sabha. But, in the case of nomination to the Puducherry Assembly, no such qualification is laid down either in Article 239A or the Government of Union Territories Act. This leaves the field open for the Union government to nominate anyone irrespective of whether he or she is suitable.
- The Supreme Court took too technical a view on the matter of nomination and did not go into the need to specify the fields from which those persons could be nominated and also lay down a fair procedure to be followed for nomination of members. As things stand, the law invites arbitrariness in dealing with the nomination of members to the UT legislature
- The power in UT is vested in the administrator, who is known as the Lieutenant Governor in the UTs having a legislature under Section 44 of the Government of Union Territories Act and Article 239 AA(4).
- The administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision. The President decides on the advice of the Union government. So, in effect, it is the Union government which finally determines the disputed issue. The administrator can, in fact, disagree with all crucial decisions taken by the State government when the territory is ruled by a different political party.
- Although in NCT of Delhi v. Union of India (2019), the Constitution Bench of the Supreme Court had said that the administrator should not misuse this power to frustrate the functioning of the elected government in the territory and use it after all methods have failed to reconcile the differences between him/her and the Council of Ministers.
- Both in New Delhi and Puducherry, the conflicts between the Lt. Governor and the Chief Minister were perennial about the complaints against the Lt. Governor from the ministers about the noncooperative federalism being practised by him or her.
- As a matter of fact, such conflicts between the administrator, who is the nominee of the President, and the elected government is inherent in the constitutional arrangement created for the UTs. This weaponization of the constitutional provision is done in full measure when the UT is ruled by a different political party
Source : The Hindu