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The Central Government has moved a Division Bench of the Madras High Court challenging the single judge order passed against Lieutenant Governor of Puducherry Kiran Bedi, in which the Court had held that the elected government in the Union Territory of Puducherry assumes supremacy over the Lieutenant Governor.
The appeal was mentioned on Friday before the second Bench of Justices Vineet Kothari and CV Karthikeyan to condone the delay in filing the appeal. The delay was condoned given that in July this year, the Supreme Court had granted leave to the appellants to approach the High Court while dismissing a Special Leave Petition filed in the matter.
In April this year, a plea filed in the Madras High Court against the Lieutenant Governor Kiran Bedi for acting to run a “parallel government” in Puducherry had culminated in Justice R Mahadevan ruling that the administrator of Puducherry (i.e. Bedi) “cannot interfere in the day-to-day affairs of the Government under the guise of supremacy or public interest, stating technical reasons.“
The Court, therefore, quashed two communications made by the Union Ministry of Home Affairs in January and June 2017, which the Court found had effectively undermined the power of the Legislative Assembly and elevated the power of the Administrator, though not exactly available under the applicable laws.
The verdict was delivered on a petition brought by K Lakshminarayanan, a Congress member of the Puducherry Legislative Assembly and Parliamentary Secretary to incumbent Chief Minister, V Narayanaswamy.
The Central Government has now challenged this verdict before a Division Bench, contending that,
“The impugned order disregards the interplay between Articles 239 and 239A of the Constitution and virtually obliterates the distinction between Articles 239A and 239AA of the Constitution. The present case concerns a Union Territory, not assimilated into a State, and having a status distinct from that of a State…”
In another part of its affidavit, the Central Government has submitted,
“It is wrong to assimilate the Union Territory of Puducherry into a State when the Constitution itself recognizes a clear distinction between the two.”
The Central Government has argued that Justice Mahadevan has not applied his mind in applying the Rules of Business of Government of Pondicherry, 1963, read with the Government of Union Territories Act, 1963.
“… [the Single Judge] failed to distinguish between the power to legislate under Article 239B of the Constitution and the powers regarding day to day administration of the Union Territory which is governed by the UT Act and the Rules of Business. The Ld Single Judge failed to appreciate that as far as the administration of Puducherry is concerned, the powers are demarcated among the Council of Ministers and the Administrator under the UT Act and rules made thereunder, therefore the Legislatures of the Puducherry Assembly are bound by the provisions of the said Act, rules and notifications issued thereunder.
Therefore, the reliance on Article 239B of the Constitution to hold that the Legislature is supreme and that the President and the Administrator cannot step into the shoes of the Legislature, is erroneous.“
Challenging the reliance placed by the single judge on the Supreme Court’s verdict in State (NCT of Delhi) v UOI, it has been argued that Delhi is a special Union Territory, which cannot be comparable to the Union Territory of Puducherry. Accordingly, the Lieutenant Governor of Delhi is also not comparable to the Administrator of Puducherry, argues the Government.
“Article 239A of the Constitution states that the Parliament at its discretion “may enact” law for constituting a body to function as a Legislature or a Council of Ministers for the Union Territory of Puducherry. This is different from Article 239AA of the Constitution where there is a mandate for the creation of a Legislature for NCT of Delhi within the Constitution itself. Even the Constitution does not provide that in terms of law made thereunder, the Council of Ministers so appointed will have any exalted status. Thus the body so created cannot be given a status equivalent to one which is constitutionally sanctioned to a State, or one which is constitutionally mandated for the NCT of Delhi….
…The status of the Adminstrator in Puducherry is different from that of the Governor of a State as also from the Lieutenant Governor of the NCT of Delhi, a difference not noticed or dealt with in the impugned judgment.”
On the other hand, it is also argued that the single judge order had also erroneously equated the administration in Puducherry to that of a full-fledged state.
“.. unike full-fledged State, as far as Union Territory is concerned, it is administered by the President through an Administrator appointed by him, and such administration shall be governed by the laws enacted by the Parliament.”
Another ground of challenge concerns the degree to which the Administrator of Puducherry controls the funds to be used for Puducherry. The appeal plea states,
“… subject to the delegation made by the Administrator, the Administrator of the Union Territory will be in control of the funds held in the Consolidated Fund for the Union Territory of Puducherry. No distinction can be made between the funds received from the Central Government or those raised by the Union Territory, and in so acting, the Administrator is not bound by the aid and advice of the Council of Ministers.”
Inter alia, a specific objection is also registered to the Single Judge’s order against the use of social media for administration, it is submitted,
“The finding of the learned judge that social media should not be used to communicate is unwarranted and against settled principles of constitutional jurisprudence and good governance.“
Moreover, the Central Government has also challenged the locus standi of K Lakshminarayanan in the matter. While pointing out that the proceedings that were challenged are in the nature of communication given by the Ministry of Home Affairs to the Government of Puducherry, the appellants have contended,
“When the Government of Puducherry has not questioned the said communication as illegal, it is not open to a private individual to question the internal communication between the Central Government and the Government of a Union Territory.”
The Centre had earlier moved the Supreme Court challenging the Single Judge verdict. However, on July 12, the Supreme Court declined to interfere in the matter, while granting the Government liberty to move the Madras High Court itself on appeal.