With elections around the corner for five state assemblies, much has been discussed and speculated about political equations and power struggles which are likely to ensue during and after the elections in bigger states.
Unfortunately for the people of Puducherry, their smaller territory and population keeps them and their peculiar constitutional problems away from deliberations across the national media and the larger Indian public.
After the Council of Ministers headed by the chief minister resigned recently, elections and democracy in Puducherry were reduced to a laughing stock. This is because the confidence motion initiated by the chief minister was almost defeated at the instance of three MLAs nominated by the Union Government — who helped Opposition members outnumber MLAs from the party elected by the People of Puducherry.
Interestingly, since then, the newly appointed Lieutenant Governor (in-charge) of Puducherry has been clearing several files, mostly welfare measures, stalled by the office of the Lieutenant Governor in the past, whenever the elected Council of Ministers sent them for approval.
Puducherry’s Unique Constitutional Problem
In fact, unusual to the constitutional set up, earlier, the Council of Ministers — elected by the people — had to sit in protest against the nominated Lieutenant Governor (LG) on account of their inability to deliver on their promises to the people due to constant interference from the latter.
According to the elected government, most files moved by them were rejected, returned or not acted upon by the LG. The spat between the CM as the head of the elected government, and the Lieutenant Governor as the representative of the Union Government, even led to a show of the latter’s power in inviting CISF to secure her safety — which then culminated in the resignation of the Council.
In a parliamentary democracy, immediately after elections to the legislature, the Head of the State (governor/administrator), invites the leader of the single largest party (or political alliance) to form the government. For example, in the election to the ‘30-seat’ Puducherry legislative assembly, if Party A wins 16 seats and Party B wins 14 seats, the LG invites the leader of Party A to form the government, respecting the people’s mandate.
However, in this context, the constitutionally-important problem that Puducherry faces due to its status as a ‘union territory with legislature’ is that of the nomination of members to the Puducherry legislature by the Union Government. The Government of Union Territories Act, 1963 enables (does not mandate) the Union Government to nominate 3 members to the Puducherry Legislative Assembly.
What’s the Purpose of the People’s Mandate in Puducherry?
In the example above, if Party B is the ruling party in the Union Government, and 3 MLAs are nominated by the Union Government from the party — can the Puducherry government — formed by Party A with 16 elected MLAs — be toppled with the help of 3 MLAs nominated from Party B?
If yes, then what is the relevance of the people’s mandate? What’s the purpose of elections in Puducherry?
In order to make elections in Puducherry purposeful, more particularly to respect the creation of the legislature and Council of Ministers at Puducherry, the MLAs nominated cannot have a status equivalent to the MLAs elected by the people. Shockingly, neither the Act of 1963 nor the Rules of Business of the Puducherry Legislative Assembly distinguish between power/responsibilities of elected MLAs and nominated MLAs.
By virtue of the Act of 1962, the Parliament established the legislature and Council of Ministers in Puducherry, also laying down their powers, functions and denoting their relationship with the ‘administrator’ known as the LG.
The natural question then is: is the power of the administrator (LG) — in relation to such legislature and Council of Ministers — governed by the statute, or is the LG empowered to override any authority created under the statute plainly because Article 239 says UTs are administered by the President through the administrator?
Rules of Business of the Govt of Puducherry
It is important to note that the Act of 1963 extensively adopts the provisions of Part VI of the Constitution which lay down the powers and functions of the Governor, Council of Ministers, Legislature etc, of ‘the states’ with some exceptions.
Similarly, the Rules of Business of the Government of Pondicherry, 1963 states under Rule 6(2) that the ‘Minister in-charge of the department shall be primarily responsible for the disposal of business pertaining to that department.’
It is only logical that the minister can be ‘responsible’ only for things he is ‘empowered’ to do.
In June 2017, the Ministry of Home Affairs provided certain clarifications to the chief minister. By highlighting certain points in the clarification, the office of the LG jubilantly interpreted that the Council is subordinate to her.
Some such points are:
- Under Rule 21(5) of Business Rules, the LG can call for papers relating to any case
- LG would have the power to call for the file of any particular case
- LG could, as a measure of courtesy, request the CM and any Cabinet colleague to update him on any doubt or query which the LG may have
However, Article 167 of the Constitution gives such powers even to the Governor of the state. The provision puts the onus on the chief minister to communicate all decisions of his Council to the governor, and to furnish all information as the governor may call for.
If the power of the governor under Article 167 does not mean overriding the decisions of the chief minister and his colleagues, then the identical power of the LG in Puducherry also does not mean such overriding power.
Ambiguity in Law: So, How Will LG Work in Unison With Council of Ministers?
Interestingly, Article 240, which empowers the President to make regulations for the peace, progress and good governance of certain UTs, also takes away such powers with respect to Puducherry, after the creation of its legislature. It is therefore legally impermissible to conclude that the LG prevails over the elected government at Puducherry under all circumstances.
In April 2019, in a major respite to the elected government, a single judge of the Madras High Court had declared that the LG cannot normally interfere with the day-to-day affairs of the Council of Ministers.
However, in early 2020, a division bench of the Court set aside the order since ‘a decree of Court cannot lay down the status’ but advised the LG to act in unison with the Council of Ministers.
In the absence of a definite procedure or clear law, it is now a question of interpretation on how the LG acts in unison with the Council of Ministers.
This calls for the introduction of a new law or amendment of old laws in the parliament, which also clearly distinguishes between the powers of an MLA elected by the people and an MLA nominated by the Union Government.
All said and done, only time will tell if the Puducherry electorate gets to elect leaders of their choice freely during the 2021 elections, or will they compromise their democratic right by submitting to New Delhi’s manipulation.
(Nirmalkumar Mohandoss is an Advocate at the High Court of Madras. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)