Centre v. Puducherry reaches Supreme Court: No stay on nomination of 3 BJP MLAs

Days after the Supreme Court verdict in NCT of Delhi v. Union of India, another similar battle has reached the Supreme Court – between the Central government and Union Territory of Puducherry..The Supreme Court today refused to stay the Madras High Court decision to uphold the nomination made by the Centre of three MLAs to the Puducherry Legislative Assembly and also turned down the submissions of the appellants to refer the case to a Constitution Bench..A Bench of Justice AK Sikri and Ashok Bhushan however, issued notice in the matter after hearing the submissions made by Senior Counsel Kapil Sibal appearing for the appellants, S Dhanalakshmi and K Lakshminarayanan..Attorney General KK Venugopal appeared for the Union of India while Senior Counsel Mukul Rohatgi represented the three MLAs whose nomination is in question..By way of background, three BJP-affiliated MLAs V Saminathan, KG Shankar and S Selvaganabathy were nominated by the Centre last year to be members of the Puducherry Legislative Assembly..The nomination was challenged before the Madras High Court by K Lakshminarayan, Chief Government Whip of the Puducherry Assembly, and S Dhanalakshmi, a voter in one of the Puducherry constituencies..Prior to this, the Speaker had already intimated his refusal to recognise the nominees as members of the Puducherry Assembly. Protesting this rejection, the three nominees had also approached the Madras High Court..The Madras High Court had upheld these nominations. It is against that decision that Lakshminarayan and Dhanalakshmi have approached the Supreme Court..Sibal, appearing for the appellants, argued that the federal structure, and more importantly, the co-operative federal structure of the Basic Structure of the Constitution of India was violated and this was a ground for the matter to be heard by a larger Bench..It was submitted by Sibal that though the government of Puducherry did not have a problem per se with the three BJP members who were nominated by the Centre, the issue was that the elected government should have at least been consulted. The bone of contention was that the unilateral nomination of three MLAs by the Central government to be members of Puducherry’s Legislative Assembly was bad..Justice Sikri highlighted, that similar questions relating to the powers of the Central government and issues over Article 239A of the Constitution were raised in the Government of National Capital Territory of Delhi vs Union of India case and the position of Puducherry and other Union Territories was also part of the discussion..However, Justice Sikri told Sibal that prima facie it appears that there is no rule to say that in case of such nominations, the Central government ought to consult the elected government of the Union territory. He said,.“The questions is that there are certain powers under the jurisdiction of administrative powers of the Central Government which can be exercised. You may argue that the (Puducherry) government should be consulted but prima facie the rules don’t say that.”.Justice Bhushan also weighed in saying that making the nominations is the duty of the Central government..“When the concept of nominations comes, nominations are made by who? Union of India. It is the business of the Central government under Article 239A. When the Assembly is part-elected, part-nominated, the nominations are by the Central government.”.AG KK Venugopal argued that Union Territories are territories of the Government of India and “this is only Centre administering its territory.” It was argued that even by nomenclature, Union territories fall under the executive power of the Centre..“Suppose there was no law passed to set up the Legislative Assembly in Union Territories, who would have governed them?… Union of India. There is no autonomy here. Article 239A says that the President will govern the Union Territories and the delegator appointed is the Lieutenant Governor.”.Mukul Rohatgi representing the three MLAs requested the Court that a positive order be passed to allow the three MLAs to function normally in the Legislative Assembly. Rohtagi claimed that despite the Madras High Court order upholding the nomination of these MLAs, they were prevented from entering and participating in the legislative functions..While the Bench did not heed Sibal’s submission that the matter needs to be heard by a Constitution Bench, it passed an order saying the MLAs in question be allowed to carry out their functions normally till the matter was adjudicated. Additionally, the Centre and the Puducherry government were directed to file their response.