The structural fragility of Union Territories

The recent political development in Puducherry has tremendous political significance. Thus, it is important to understand the current structural fragility of Union Territories and to find measures for better operation in the political system.

• Recently, some MLAs from the Puducherry legislative assembly resigned.
• The resignations reduced the party’s majority in the House abruptly, which led to the fall of the government.
• However, this is not the only way where the elected governments in Union territories are undermined.
• Many constitutional and legal provisions reflect the structural fragility of Union Territories (UTs) as units of the Indian federation.
• Simultaneously, there also lies the lacunae in the administrative and governance set up that had been regularly came to the fore in the recent past in different UTs especially in the NCT of Delhi and Puducherry.

What are Union Territories and how are they different from State?

• Unlike the State of India, which has its governments, Union Territories (UTs) are the federal territories, administered by the Union Government of India.
• In UTs, the Central Government appoints the Lieutenant Governors, who is the administrator and the representative of the President of India.

• Currently, India has eight Union Territories including Delhi, Andaman and Nicobar, Chandigarh, Dadra and Nagar Haveli, and Daman and Diu, Jammu and Kashmir, Ladakh, Lakshadweep, and Puducherry.

• Articles 239 to 241 in Part VIII of the Constitution deal with the Union Territories.
• Every UT is administered by the President acting through an administrator appointed by him.
  • The President can specify the designation of an administrator; it may be Lieutenant Governor or Chief Commissioner or Administrator.
• Presently, out of all the UTs, the Union Territories of Puducherry (in 1963), NCT of Delhi (in 1992), and Jammu and Kashmir (in 2019) are provided with a legislative assembly and a council of ministers headed by a chief minister.
• But, the establishment of such institutions in the union territories does not diminish the supreme control of the president and Parliament over them.
• Legislative Power of Parliament over UTs- The Parliament can make laws on any subject of the three lists (including the State List) for the union territories. This means that the legislative power of Parliament for the UTs on subjects of the State List remains unaffected even after establishing a local legislature for them.
• Legislative assembly of Puducherry can also make laws on any subject of the State List and the Concurrent List.
• Similarly, the legislative assembly of NCT of Delhi can make laws on any subject of the State List (except public order, police, and land), and the Concurrent List and the legislative assembly of Jammu and Kashmir can make laws on any subject of the State List (except public order and police) and the Concurrent List.

• 14^th Constitutional Amendment 1962: Article 239A was originally brought in to enable Parliament to create legislatures for the UTs. Under this article, the parliament enacted the Government of Union Territories Act, 1963.
• The 69th Amendment Act, 1992: It added two new Article 239AA and Article 239AB under which the Union Territory of Delhi has been given a special status. It also provides for a Council of Ministers for Delhi consisting of not more than 10% of the total number of members in the assembly. The President shall make appointments to the Council of Ministers including the Chief Minister.

• Issues pertaining to the composition of the Legislature: Since the composition of Legislative assemble is regulated by an Act of Parliament a simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members. So, in this case, the question remains, how can a predominantly nominated House promote representative democracy.
• Issue pertaining to the Nomination:The nomination of the members to the Assembly by the Union can be done without consulting the government of UTs.
• Scope of arbitrariness in the Nomination:In the case of nomination to the Puducherry Assembly, no qualification is laid down either in Article 239A or the Government of Union Territories Act. Due to this, the law invites arbitrariness in dealing with the nomination of members to the UT legislature.
• Tussle between Administrator and elected Government: The power vested in the administrator (Lieutenant Governor) conflicts with the powers of the elected government of UTs having a legislature.
  • Section 44 of the Government of Union Territories Act and Article 239 AA(4) (proviso) of the Constitution vests the power in the administrator to express his or her disagreement and refer the matter to the President
  • The President decides on the advice of the Union government. So, in effect, it is the Union government that finally determines the disputed issue.
  • This can be reflected in the Chief Minister of Puducherry asking removal of the Lt. Governor.
  • Similarly, in the National Capital Territory of Delhi, one often hears of complaints against the Lt. Governor from the ministers about the non-cooperative federalism being practiced by him.
• Overlapping Areas:Although the legislative assembly of Puducherry is empowered to make laws, the administrator is not bounded by the aid and advice of the council of ministers headed by the Chief Minister. This creates overlapping of jurisdictions, which in turn leads to conflict between the union government and elected government of union territory. (After the above-mentioned SC case this issue is resolved for Delhi but the Puducherry, is still hinging in the air).

• Cooperative federalism:The Constitution Bench of the Supreme Court in NCT of Delhi v. Union of India (2019), had said that the administrator’s power can be exercised only in the exceptional situations where there is a genuine difference of opinion with the Council of Ministers. It should not be misused to hinder the functioning of the elected government in the territory. Thus, both the government and UTs need to imbibe the ethos of cooperative federalism.
• Exploring the other model of Governance: Indian Government can emulate the model of administrative sharing of power between the Union government and the Governments of UTs.
• Necessary Reforms: For effective autonomy to the governments of union territories, there is a need for amendment in the legal and constitutional provisions that accommodate the major concerns of the UT governance.

The Union government should respect the reason why these UTs were thought fit to provide a legislature and Council of Ministers to some of the UTs. In this context, the Union government should take note of the Supreme court’s observation that the administration of Union Territories is by the Central government but that does not mean the Union Territories become merged with the Central government. They are centrally administered but retain their independent entity.