Comment

The primacy of the elected

The return of the Bharatiya Janata Party-led National Democratic Alliance government in 2019 with a resounding majority in the 17th Lok Sabha raises pertinent questions about the future of federalism in India. Will a “strong” Union government which does not require the support of “regional” allies be detrimental to the interests of States? While the Prime Minister has often invoked the need for “cooperative federalism”, the actions of his government in its first term sometimes went against this stated ideal. These include dismantling the Planning Commission and transferring its power to make state grants to the Finance Ministry; introducing terms of reference to the Finance Commission which threaten to lower the revenue share of the southern States; and the partisan use of the Governor’s office to appoint Chief Ministers in cases of hung Assemblies.

The most blatant abuse of power was the imposition of President’s Rule in Opposition-ruled Arunachal Pradesh and Uttarakhand, decisions the Supreme Court subsequently held as unconstitutional. Further, through the Lieutenant Governor (LG), the Centre ran a protracted war with the Delhi government which brought its administration to a stalemate until the Supreme Court affirmed the primacy of the elected government. A similar long-running battle between the LG and Chief Minister of Puducherry has now reached the Supreme Court. This case will further test the strength of Indian federalism in the Modi era.

 

Distinct provisions

Since the appointment of Kiran Bedi as the LG in May 2016, Puducherry Chief Minister V. Narayanasamy has protested her continual interference in the daily affairs of the Puducherry government and running an alleged parallel administration. The Union Government, in clarifications issued in January and June 2017, further bolstered the case of the LG. When this was legally challenged, the Madras High Court quashed the clarifications issued by the Union government and ruled that the LG must work on the aid and advice of the Council of Ministers and not interfere in the day-to-day affairs of the government. The Union government challenged this decision in the Supreme Court where a vacation Bench passed interim orders recently restricting the Puducherry cabinet from taking key decisions until further hearing.

The Madras High Court had relied on the 2018 decision of the Supreme Court regarding the power of the National Capital Territory (NCT) government of Delhi. In that case, a five-judge Bench unanimously held that the Chief Minister and not the Lieutenant Governor is the executive head of the NCT government, and that the LG is bound by the aid and advice of the Council of Ministers. It held that the executive power of the NCT government is co-extensive with the legislative power of Delhi’s Legislative Assembly and the LG must follow the decisions of the cabinet on all matters where the Assembly has the power to make laws.

Puducherry, like Delhi, is a Union Territory with an elected legislative Assembly and the executive constituted by the Lieutenant Governor and Council of Ministers. However, Puducherry and Delhi derive their powers from distinct constitutional provisions. While Article 239AA lays out the scope and limits of the powers of the legislative assembly and council of ministers for Delhi, Article 239A is merely an enabling provision which allows Parliament to create a law for Puducherry. Interestingly, while Article 239AA restricts Delhi from creating laws in subjects such as police, public order and land, no such restriction exists for Puducherry under Article 239A. In fact, the Government of Union Territories Act, 1963 which governs Puducherry vests the legislative assembly with the power to make laws on “any of the matters enumerated in the State List or the Concurrent List”. Hence, the legislative and executive powers of Puducherry are actually broader than that of Delhi.

After analysing the laws and rules governing Puducherry, the Madras High Court held that the LG has very limited independent powers. Under Article 239B, the LG can issue an ordinance only when the Assembly is not in session and with the prior the approval of the President. If there is a “difference of opinion” between the LG and the cabinet on “any matter”, like in Delhi, the LG can refer it to the President or resolve it herself if it is expedient. However, the Supreme Court in the NCT Delhi case held that “any matter” shall not mean “all matters” and it should be used only for “exceptional” situations. Hence, there is no legal basis for the LG to exercise powers independently and bypass the elected government of Puducherry.

Respecting federalism

Ultimately, the question is whether state actions should respect the underlying principles of democracy and federalism. Why should a legislative Assembly be elected and a Council of Ministers appointed if actual powers are independently exercised by an unelected nominee of the Centre? The Supreme Court, in the NCT Delhi case, rightly employed a purposive interpretation of the Constitution to hold that since representative government is a basic feature of the Constitution, the elected government must have primacy. Given this precedent and the fact that Puducherry has lesser legal restrictions on its powers, the Supreme Court should uphold the Madras High Court judgment and ensure that the LG acts only as per the aid and advice of the elected government.

Perhaps because of its distance from Delhi, small area and relatively low political heft, the constitutional crisis in Puducherry has received far less attention than it deserves. However, the questions it raises are fundamental to the concerns regarding federalism in India. While Puducherry may not be a “State” under the Constitution, the principle of federalism should not be restricted to States but also include the legislative Assemblies of Union Territories and, arguably, councils of local governments. As more centralising measures such as simultaneous elections to Parliament and State Assemblies are being proposed by the Centre, it is important to reaffirm the values of federalism at every forum.

Mathew Idiculla is a research consultant at the Centre for Law and Policy Research, Bengaluru

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Printable version | May 11, 2021 9:03:12 PM | https://www.thehindu.com/opinion/op-ed/the-primacy-of-the-elected/article28275565.ece

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