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Structural flaws in UTs

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February 26, 2021

What is the issue?

  • 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.

 

Source: The Hindu

 

 

 

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