Recently in Puducherry, resignation of ruling party MLAs has lead to fall of the government.
This highlights the structural issues present in creation of Union Territories (UTs) in Indian federation.
What are the structural issues in UTs’ constitutional setup?
The issues pertain to legislature composition, nomination of member to the assembly and administrators power.
In order to fulfil the democratic aspirations of the people in UTs, Constitution-makers provided legislature and Council of Ministers (CoM’s) to some of the UTs.
In 1962, Article 239A was brought in which enabled the Parliament to create legislatures for the UTs.
But detailed analysis of this provision reveals that it goes against the policy of the state to promote democracy.
In UTs, legislatures can be a body that is elected or partly elected or partly nominated.
There can also be CoM’s without legislature or there can be a legislature as well as a CoM’s.
Legislature without a CoM’s or a CoM’s without legislature is absurd because in our constitutional scheme the government is responsible to the legislature.
Similarly, a legislature that is partly elected and partly nominated is another absurdity.
This is because simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members which cannot be a representative democracy.
What is the issue with nomination in UTs?
The purpose of nomination is to enrich the debate in the House by their expertise.
In Puducherry, Government of Union Territories Act provides for 33-member House where in three are nominated by Centre.
When the centre nominated its members to the Assembly without consulting the state, it was challenged in the Supreme Court.
In K. Lakshminarayanan v. Union of India case, Court held that centre is not required to consult for nominating & nominated members have the same right to vote as the elected members.
Article 80 also has the provision for nomination of members to the Rajya Sabha but it clearly specifies the fields from which they can be nominated.
But in case of Puducherry Assembly, no such qualification is laid down.
This creates arbitrariness where centre can nominate anyone irrespective of whether he or she is suitable.
What is the issue in Administrator’s power?
Article 239 AA states that administrator or Lieutenant Governor can disagree with the decisions of COMs and refer it to the President for final decision.
Then it is the President who decides based on the advice given by the Union government.
So it is the Union government which finally determines the disputed issue.
The administrator of UTs can in fact disagree with all crucial decisions taken by the State when the territory is ruled by a different political party.
In NCT of Delhi v. Union of India case, Court said that the administrator should not misuse the power provided in Article 239 AA & use it if all other methods fail to reconcile the differences.
But the reality is very much different from the court’s verdict.
What can we infer from this?
No Union government will like the idea of a free and autonomous government in the UTs and it tries to control UTs with an administrator.
But experience shows that the UTs having legislatures with ultimate control vested in the central administrator is not workable.
Hence the legal and constitutional provisions which enable the administrator to stand over the elected government needs to be removed.
