Lieutenant Governor cannot interfere in day-to-day affairs in Puducherry, Madras HC rules against Kiran Bedi

A plea filed against the Lieutenant Governor Kiran Bedi for acting to run a “parallel government” in Puducherry has culminated in the Madras High Court ruling that the elected government of the Union Territory generally assumes supremacy over the Lieutenant Governor..The judgment passed today by Justice R Mahadevan states,.“… the elected Government functioning through the Council of Ministers, cannot be defeated by the act of the Administrator who is also functioning under the provisions of the Constitution, by way of interfering in the day to day affairs of the Government and calling for each and every officer to the residence of the Administrator and running a parallel Government. .The elected representatives of the Government play a major role in decision making, or else, there would be no purpose in having an elected Government, who are the true representatives of the people. Even though technically the Lieutenant Governor is vested with powers to act as Administrator, the power is restricted and applicable only in circumstances explained [in the judgment]..The Administrator cannot interfere in the day-to-day affairs of the Government under the guise of supremacy or public interest, stating technical reasons.“.The Court, therefore, quashed two communications made by the Union Ministry of Home Affairs in January and June 2017, which the Court found had effectively undermined the power of the Legislative Assembly and elevated the power of the Administrator, though not exactly available under the applicable laws..The verdict was delivered on a petition brought by K Lakshminarayanan, a Congress member of the Puducherry Legislative Assembly and Parliamentary Secretary to incumbent Chief Minister, V Narayanaswamy..Senior Counsels P Chidambaram and VT Gopalan led arguments on behalf of the petitioner. Senior Counsel Sanjay Jain appeared for Bedi, whereas the Additional Solicitor General G Rajagopal appeared for the Central Government authorities..On a detailed examination of Articles 239A, 239B and 240 of the Constitution, the Government of Union Territories Act, 1963, the Rules of Business of the Government of Pondicherry, 1963 as well as the Delegation of Financial Powers Rules, 1978, the Court eventually ruled that the elected government in Puducherry assumes supremacy in governance over the Lieutenant Governor, save in few contingent situations. Even then, Justice Mahadevan highlighted that the Lieutenant Governor’s powers are carried out through the authority of the President of India and with his approval. As noted in the judgment,.“The Government of Puducherry is a Constituent Elected Body constituted by a Council of Ministers. When the Council of Ministers are not able to take a decision in certain policy issues, then the supervisory power vested with the Administrator comes into operation by which the Administrator can decide the issue and that too with the assent of the President, without causing any detriment to the interest of the elected body, because the Executive Government is formed according to the will and wish of the people by way of conducting elections, and that is prime in nature.”.Placing substantial reliance on the Supreme Court’s February judgment in Government of National Capital Territory of Delhi v Union of India, the High Court concluded as follows..The Union Territory of Puducherry has legislative powers to enact laws with respect to all matters enumerated in the State and Concurrent Lists as per the Constitutional Scheme in Articles 239A, 239B, 240 and 254 of the Constitution of India and the Government of Union Territories Act, subject to restrictions imposed in Articles 287, 288 and 304 of the Constitution and the assent of the president.The legislative body of the Union Territory of Puducherry enjoys similar power to that of a “State” though not a state and the authority of the Administrator remains intact with regard to exercise of discretion under certain circumstances when the assembly is not functioning or when a reference is bonafidely required and in cases where he exercises judicial or quasi-judicial functions.The Administrator is bound by the aid and advice of the Council of Ministers in matters where the Legislative Assembly is competent to enact laws as contemplated under Section 44 of the Government of Union Territories Act, 1962 though she is empowered to differ with the views of the Council based on some rationale which raises a fundamental issue regarding the action of the Government.A legitimate and warranted policy decision of the Council after deliberation is expected not to be interfered with. The proposal is to be mooted by the appropriate minister through the Chief Minister under the Schedule as enumerated under Rules 9 and 10 of the Rules of Business of the Government of Pondicherry, 1963.The scope of such difference can at most end only in a reference to the President or the Central Government, as the case may be, under Rule 56 of the Rules of Business of the Government of Pondicherry, 1963 and by no stretch of imagination or interpretation, the provisions enable the Administrator to reject any Bill.In financial matters, generally, the Council of Ministers and the Finance Department are entitled to take decisions, as provided under the Scheme of Government of Union Territories Act and the Rules of Business of the Government of Pondicherry, 1963.However, the Administrator or any other delegate including the Council of Ministers will have the authority to exercise the powers delegated to them under the Delegation of Financial Power Rules or any other Rule or Regulation issued by the Central Government. When the delegation is general, the Administrator, Council or any other authority will have to act in harmony, keeping the public interest in mind. In the absence of delegation, the authority shall vest with the Central Government through the President.The Court also ruled that the elected government generally assumes substantial powers in service matters. As per the judgment, in so far as the service conditions are concerned, it shall vest with the Administrative Head of the Department, viz. the particular Minister heading the Department. In every case, the Finance Ministry is to be consulted and the decision is to be taken based on the instructions of the Finance Ministry and the orders have to be executed in the name of the Administrator or such delegated authority.In matters relating to posting of officers under the Indian Administrative Service, it shall be by the Administrator in consonance with Article 320 of the Constitution of India.The decisions of the Council has to be forwarded to the Administrator. The communication is required to enable him/her to exercise his/her power of reference.When the assent of the Administrator is required, and there is a difference of opinion between the Administrator and the elected government, a constructive discussion has to be held with the Council of Ministers.In case, the difference still exists, the Administrator can withhold the same only for a brief period and the same has to be referred to the President at the earliest. The decision of the President is final in those matters.The Administrator cannot interfere in the day to day affairs of the Government. The decision taken by the Council of Ministers and the Chief Minister is binding on the Secretaries and other officials.Addressing the specific grievance raised by the petitioner that LG Bedi has been using social media to run a parallel government, the Court has held that Government officials cannot use their personal media to address the grievance of the public. A public redressal forum in the form of official e-mails, telephone numbers are to be circulated and used if already not put into use.The Administrator has no exclusive authority to run the administration in derogation of the Constitutional Principles and the Parliamentary Laws governing the issue.Both the orders dated 27.01.2017 bearing Ref.No.U- 11018/1/2017 – UTL and dated 16.06.2017 bearing Ref: U- 11018/2017-UTL , impugned in the writ petition (i.e. the MHA circulars challenged) are set aside..[Read the Judgment]