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The SC clarifies an elected government cannot be undermined by an unelected administrator

In ruling that the Lieutenant Governor of Delhi has no independent decision-making power, and has to act mainly on the aid and advice of the Council of Ministers, the Supreme Court has restored the primary role played by the “representative government” in the National Capital Territory. Though seen as a Union Territory, Delhi was created as a separate category, with an elected Assembly with powers to enact laws in all matters falling under the State and Concurrent lists, with the exception of public order, police and land. This gave it a status higher than other UTs. The demand for full statehood has been around for many years now, but after the Aam Aadmi Party came to power the constitutional tussle between the two tiers of government has become an acrimonious battle between AAP and the BJP at the Centre. Until now, the situation was tilted in favour of the Centre because of the Lt. Governor’s claim that he had the authority to refer any matter to the President. The proviso that allowed him to make such a reference was used to block major decisions of the AAP regime. The Delhi High Court agreed with this two years ago, giving the impression that administrative decisions needed the Lt. Governor’s concurrence.

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Should Delhi be given statehood?

In a judgment that essentially reaffirms the constitutional position, the Supreme Court has ruled that the Lt. Governor has to ordinarily act on the aid and advice of the Council of Ministers. At the same time, it has retained the Lt. Governor’s powers to refer matters to the President for a decision. However — and this is the nub of the judgment — it has significantly circumscribed this power. The power to refer “any matter” to the President no longer means “every matter”. Further, there is no requirement of the Lt. Governor’s concurrence for any proposal. The ‘reference’ clause may give rise to conflict even now. However, the court has significantly limited its potential for mischief. It has not given an exhaustive list of matters that can be referred, but Justice D.Y. Chandrachud, in a separate but concurring opinion, has indicated that it could “encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union.” Every trivial difference of opinion will not fall under the proviso. Overall, the verdict is an appeal to a sense of constitutional morality and constitutional trust among high functionaries. It has ruled out Mr. Kejriwal’s demand of full statehood, and the critical powers — over police, land and public order — still remain vested with the Centre. However, the court having stressed that the elected government is the main authority in Delhi’s administration, the controversies over the arbitrary withholding of Cabinet decisions may end, or at least diminish. The basic message is that an elected government cannot be undermined by an unelected administrator. The larger one is that the Union and its units should embrace a collaborative federal architecture for co-existence and inter-dependence.

What are the powers of LG of Puducherry?

  • Government of Union Territories Act, 1963 provides for a Legislative Assembly of Pondicherry, with a Council of Ministers to govern the “Union Territory of Pondicherry”.
  • It states that the UT will be administered by the President of India through an Administrator (LG). It also has following provisons.
  • Extent of legislative power – MLAs “may make laws for the whole or any part of the Union Territory with respect to any of the matters enumerated in the State List or the Concurrent List”.
  • Council of Ministers – The Council of Ministers headed by a Chief Minister will “aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws”.
  • LG – The same clause also allows the LG to “act in his discretion” in the matter of lawmaking, even though the Council of Ministers has the task of aiding and advising him.
  • In case of a difference of opinion between the LG and his Ministers on any matter, the Administrator is bound to refer it to the President for a decision and act accordingly.
  • However, the Administrator can also claim that the matter is urgent, and take immediate action as he deems necessary.
  • Prior permission – A prior sanction of the Administrator is required for certain legislative proposals. They include Bills or amendments that deal with the “constitution and organisation of the court of the Judicial Commissioner”, and “jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or the Concurrent List”.
  • Recommendation – It is obligatory on the part of the UT government to seek the “recommendation” of the LG before moving a Bill or an amendment to provide for “the imposition, abolition, remission, alteration or regulation of any tax”, “the amendment of the law with respect to any financial obligations undertaken or to be undertaken”, and anything that has to do with the Consolidated Fund of the UT.
  • Once the Assembly has passed a Bill, the LG can either grant or withhold his assent; or reserve it for the consideration of the President. He can also send it back to the Assembly for reconsideration.
  • The manner in which the LG functions vis-à-vis the elected government (Council of Ministers) is also spelt out in the Rules of Business of the Government of Pondicherry, 1963, issued on June 22, 1963.
  • The Administrator exercises powers regulating the conditions of service of persons serving in the UT government, in consultation with the Chief Minister.
  • In case the LG has a difference of opinion with the Chief Minister, he can refer the matter to the central government for the decision of the President.

How it is different from Delhi?

  • Both Delhi and Puducherry has an elected legislature and government but the powers of the LG of Puducherry are different from the ones of the LG of Delhi.
  • The LG of Delhi has “Executive Functions” that allow him to exercise his powers in matters connected to public order, police and land “in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution”.
  • While the LG of Delhi is also guided by the Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, the LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963.
  • Articles 239 and 239AA of the Constitution, as well as the Government of National Capital Territory of Delhi Act, 1991, clearly underline that Delhi is a UT, where the Centre, whose eyes and ears are the LG, has a much more prominent role than in Puducherry.
  • Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except law and order and land.
  • However, the Puducherry Assembly can legislate on any issue under the Concurrent and State Lists.
  • However, if the law is in conflict with a law passed by Parliament, the law passed by Parliament prevails.
  • Simply put, the LG of Delhi enjoys greater powers than the LG of Puducherry.
  •  source : hindu news

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