Madras HC Curbs L-G Role In Puducherry

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By admin May 15, 2019 14:36

The Madras HC (High Court) ruled that the Lieutenant-Governor (L-G) of Puducherry could not interfere with the day-to-day administration of the Union Territory when an elected government was in place.

Issue

  • L-G has been locked in a prolonged dispute over the extent of her powers with Chief Minister of Puducherry.
  • The MHA had in 2017 in the clarifications made it clear that the lieutenant governor (L-G) of the Union Territory enjoys more power than a governor of a state and can act without the aid and advice of the council of ministers.
  • In a Madras High Court decision of 2018 LG’s power to act irrespective of the Cabinet’s advice was upheld.
  • Even after the Supreme Court order curtailing the exercise of powers by the Delhi Lt Governor, L-G of Puducherry contended that the ruling was not applicable to Puducherry and continued appropriating the powers of the elected government.
In a verdict on the power tussle between the Delhi government and the Centre, the Supreme Court had in 2018 said that Lieutenant Governor does not have independent decision-making powers, and is bound to act on the aid and advice of the Council of Ministers. LG should not act in a mechanical manner and stall the decisions of the Council of Ministers.

Constitutional & Statutory Provisions

  • The Government of Union Territories Act, 1963 provides for a Legislative Assembly of Pondicherry (as Puducherry was then called), with a Council of Ministers to govern the “Union Territory of Pondicherry”.
  • The extent of legislative power: Section 18 of the Act, says that MLAs “may make laws for the whole or any part of the Union Territory with respect to any of the matters enumerated in the State List or the Concurrent List”.
  • Council of Ministers and its working: Section 44 of the Act, says the Council of Ministers headed by a Chief Minister will “aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has the power to make laws”. The same clause also allows the LG to “act in his discretion” in the matter of lawmaking, even though the Council of Ministers has the task of aiding and advising him.
  • In case of a difference of opinion between the LG and his Ministers – the Administrator is bound to refer it to the President for a decision and act according to the decision given by the President. However, the Administrator can also claim that the matter is urgent, and take immediate action as he deems necessary.
  • Prior sanction of the Administrator – As per, section 22 of the Act, prior sanction of the Administrator is required for certain legislative proposals. Once the Assembly has passed a Bill, the LG can either grant, withhold his assent, sent back for reconsideration; or reserve it for the consideration of the President.

Judgement – Keypoints

  • Incessant interference from the L-G would amount to running a “parallel government”.
  • Decision taken by the Council of Ministers and the Chief Minister is binding on the Secretaries and other officials.
  • The administrator is bound by the ‘aid and advice’ clause in matters over which the Assembly is competent to enact laws.
  • The L-G’s power to refer any matter to the President to resolve differences should not mean “every matter”.
  • The Central government and the Administrator [the term used in the Constitution to refer to the L-G] should be true to the concept of democratic principles.
  • The court disapproved of the alleged practice of government officials being part of social media groups through which the L-G was issuing instructions to them.
  • Looking at the Business Rules as well as other statutory provisions on Puducherry, the court has sought to give greater credence to the concept of a representative government.
  • Since the Government of Union Territories Act, 1963 does not specify the ‘special responsibilities’ in relation to which the L-G could apply his/her discretion, “it is the bounden duty of the Administrator and the Council of Ministers to avoid logjam and facilitate the smooth functioning of the government in public interest, leaving the political differences apart.
  • The judgement quashed two clarifications issued by the Union Home Ministry in 2017 with regard to the powers of the L-G.

 Outlined Key Differences between the Powers of Delhi and Puducherry

Legislative Powers

  • The Puducherry legislature is the creation of parliamentary law, based on an enabling provision in Article 239A of the Constitution, whereas the NCT legislature has been created by the Constitution itself under Article 239AA.
  • Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except law and order and land. However, the Puducherry Assembly can legislate on any issue under the Concurrent and State Lists.

L-G Powers

  • While the LG of Delhi is guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963.
  • The LG of Delhi has “Executive Functions” that allow him to exercise his powers in matters connected to public order, police and land “in consultation with the Chief Minister if it is so provided under any order issued by the President under Article 239 of the Constitution”.
  • Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly underline that Delhi is a UT, where the Centre, whose eyes and ears are the LG, has a much more prominent role than in Puducherry.

In order to realise our constitutional vision, it is indispensable that all citizens and high functionaries, in particular, inculcate a spirit of constitutional morality which negates the idea of the concentration of power in the hands of a few.

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By admin May 15, 2019 14:36