Delhi Full Statehood Issue

[op-ed of the day] The primacy of the elected

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing MUch

Mains level : Puducherry Governance Crisis should be resolved as soon as possible.

Note- Op-ed of the day is the most important editorial of the day. Aspirants should try to cover at least this editorial on a daily basis to have command over most important issues in news. It will help in enhancing and enriching the content in mains answers. Please do not miss at any cost.

CONTEXT

1.Federalism Endangered

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.

2.President’s Rule

  • 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.

Distinct provisions in Puducherry

Background

  • 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.
  • 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.

Puducherry and Delhi comparison

  • 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.

1.Article 239 A and 239 AA-

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.

No restrictions – 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.

Broader lawmaking power than Delhi – 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.

2.Limited power of LG –

After analysing the laws and rules governing Puducherry, the Madras High Court held that the LG has very limited independent powers.

Article 239B – Under Article 239B, the LG can issue an ordinance only when the Assembly is not in session and with the prior approval of the President.

On the difference of opinion – 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.

Only in exceptional” situations – 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.

Way Forward

Respecting federalism

Primacy of elected government – 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.

Upholding High Court’s Order – 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.

Upholding Federalism –  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.

Conclusion

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.

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