Structural Problems with Union Territories

POLITY/ FEDERALISM

Topic:

• GS-2: Issues and challenges pertaining to the federal structure, devolution of powers 

Structural Problems with Union Territories

Context: Recently, some MLAs of ruling Congress Party from the Puducherry legislative assembly resigned which reduced the party’s majority in the House abruptly and lead to the fall of the government.

Do You Know?

• Resigning from the membership of the House is every member’s right. 
• But according to Article 190 of the Constitution, the resignation should be voluntary or genuine. If the Speaker has information to the contrary, he or she is not obliged to accept the resignation.

What is the recent issue with Federalism?

• There is by now a familiar pattern to the resignations of MLAs. Such resignations take place largely from the ruling parties in the States which are opposed to the ruling party at the Centre thus leading to fall of state/UT government. 
• This mode of toppling the government has an advantage in that no MLA has to defect and face disqualification and get a bad name.
• However, this is not the only way where the elected governments in Union territories are undermined. There are many constitutional and legal provisions that reflect the structural fragility of UTs

Structural Fragility of Union Territories

1. Composition of the Legislature

• Article 239A was originally brought in 1962 to enable Parliament to create legislatures for the UTs (objective was to fulfil the democratic aspirations of people in UTs through providing legislatures & Council of Ministers)
• However, a simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members. The question remain as to how a predominantly nominated House promote representative Democracy.

2. Issue of Nomination

• In a 33-member House for Puducherry, three are to be nominated by the Central government. However, no qualification is laid down either in Article 239A or the Government of Union Territories Act, making it liable to political misuse.
• So, when the Union government nominated three BJP members to the Assembly without consulting the government, it was challenged in the court. 
• Finally, the Supreme Court (K. Lakshminarayanan v. Union of India, 2019) held that the Union government is not required to consult the State government for nominating members to the Assembly and the nominated members have the same right to vote as the elected members.

3. Administrators Power

• As per Section 44 of the Government of Union Territories Act and Article 239 AA(4) of Constitution, the administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision (on aid & advice of Union government).
• The weaponisation of this constitutional provision is done in full measure when the UT is ruled by a different political party.
• Although in NCT of Delhi v. Union of India (2019), the Constitution Bench of the Supreme Court had said that the administrator should not misuse this power to frustrate the functioning of the elected government in the territory, the ground reality has unchanged

Conclusion

• Experience shows that the UTs having legislatures with ultimate control vested in the central administrator are not workable.
• The solution lies in the removal of the legal and constitutional provisions which weaken the structural fragility of UTs and instead provide them with more freedom so as to fulfil democratic aspiration of the people.

Connecting the dots:

• Process of delimitation in respect of UT of J&K
• Jurisdictional conflict in the running of Delhi