Madras HC upholds nomination of Puducherry MLAs, proposes guidelines [Read Order]

The Madras High Court on Thursday upheld the Central government’s nomination of BJP-affiliated MLAs V Saminathan, KG Shankar and S Selvaganabathy to the Puducherry Legislative Assembly..The nomination, made last June, had been 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. A communication issued on his behalf on November 13, 2017, made reference to an order passed by the Speaker rejecting the nominations..Protesting this rejection, the three nominees had also approached the Madras High Court..The Bench of Chief Justice Indira Banerjee and Justice M Sundar was called upon to examine in some detail the Constitutional provisions concerning the nomination of Members of Legislative Assembly (MLAs) in Union Territories..The primary ground of the challenge to the nominations was that they were in violation of long established procedure that had assumed the character of a Constitutional convention..As per the petitioners, only the elected government may forward suitable names for nomination to the Administrator. The Administrator in turn would send them to the President for approval. Further, nomination could only be made on the aid and advice of the Chief Minister and the Council of Ministers..This ground was rejected on the Court’s finding that there was no material on record evincing the existence of such a convention..“…we do not have sufficient material placed before us to conclusively decide whether this procedure was construed to be so sanctus that it was followed without a shred of deviation on all previous occasions, so as to attain the status of a constitutional convention as contended.”.The second broad ground of challenge was that the nominees were not eligible to hold the office of MLA. In this regard, pending FIRs against the nominees were brought up. Their political affiliation to the BJP, which had no presence in the Puducherry Legislative Assembly, was also objected to..The Court, however, noted that the political affiliation of a person was no bar to his nomination as an MLA under existing law. As far as criminal antecedents are concerned, it was noted that the complaints were only at the stage of FIRs, which were likely to have been filed owing to their involvement in political and public causes..Notably, a challenge was also made to the Constitutionality of Section 3(3) of the Union Territories Act, 1963. This provision allows the nomination of MLAs by the Centre to Union Territories. The ground for challenge was the likelihood of misuse of this provision, given the unfettered, unguided and uncontrolled discretionary powers it confers on the Central government..The Court, however, rejected this challenge, primarily on the ground that the Constitutionality of a provision in a statute cannot be assailed on the ground of possibility of misuse..Speaker cannot interfere with Nomination of MLAs by the Centre.Ultimately, the Court was constrained to scrutinise the Constitutional limits of the Speaker’s powers qua nomination of MLAs by the Central government..On this aspect, the Court has unequivocally held that the Speaker has no power to interfere with the nomination of MLAs by the Central government to Union Territories..The Centre’s power to nominate MLAs can be found under Section 3(3) of the Union Territories Act, read with Article 239A of the Constitution. On the other hand, there is no legal provision enabling the Speaker to take a call on such matters..In the common order, Justice Sundar points out,.“While the competence of a legislator to sit in the House can be examined by the Speaker under Tenth Schedule to COI, which is an anti-defection mechanism…there is no constitutional provision for the Speaker to examine the validity or otherwise of nominations of legislators made to the legislative assembly..… [the] order of Speaker, setting at naught and nullifying the nomination made to the legislative assembly will clearly and squarely be covered under the ground of ‘violation of constitutional mandate’ inter alia for two reasons. One is, the Speaker’s order runs contrary to the spirit of Article 239A, particularly sub article (a) of Article 239A of COI. Second is, the order is not traceable to any provision of COI. Not even to the statute, i.e., UT Act.”.Endorsing this view, Chief Justice Banerjee has said,.“None of the Rules confer on the Speaker the power and/or authority to decide if the election or nomination of any Member of the Legislative Assembly is valid, or to decide the question of disqualification of any Member, except in case of disqualification under the Tenth Schedule of the Constitution of India, which has expressly been incorporated into the UT Act with contextual modifications by Section 14A of the UT Act.”.On these grounds, the Court concluded,.“[the] nomination of three MLAs to Puducherry Legislative Assembly is valid. The impugned order dated 13.11.2017, communicating the order / proceedings of Hon’ble Speaker and the order of the Hon’ble Speaker dated 12.11.2017 are set aside, as a consequence of which the three nominated MLAs will take their seat in the Puducherry Legislative Assembly forthwith.”.Guidelines for nomination of MLAs.Interestingly, the Court acknowledged that a factor which played a role in the dispute before it was the current political climate..“We were informed that nominations of MLAs to Puducherry Legislative assembly had not been challenged in the past six occasions, though all the grounds that are being canvassed now were available for challenge on earlier occasions also (with the exception of violation of procedure ground). .Apparently, the political complexion of the ruling establishments being same (or at least not diametrically opposite political opponents) in the Union Territory and the Central Government is what had made the difference in the earlier occasions..This, we were able to notice from the nature of submissions that were made before us, as one of the submissions was that a political party which has no presence in the legislature or in other words a political party which does not have a single MLA in the legislative assembly is bringing in three MLAs through the nominated MLAs route.”.The Court did not go beyond recording its awareness in this respect. However, to address certain lacunae in the law noticed during hearing, the Bench has proposed certain guidelines to be followed for the nomination of MLAs..The following recommendations have accordingly been made:.A clear and unambiguous procedure has to be laid down for nomination of MLAs to the Puducherry Legislative Assembly, with particular clarity about where it should emanate from and how it should be carried to its logical end.It has to be laid down with specificity as to who/which office will actually exercise the powers of nomination under Section 3(3) of the UT Act eliminating the need to resort to inferential process which has become necessary in the instant case.Qualifications, qualities and credentials which will go to make a ‘well rounded personality’ for qualifying for being nominated as an MLA have to be set out. To be noted, we are not on ‘eligibility’ or ‘educational qualification’. We are on ‘suitability’.If the nominated MLA belongs to a political party on the date of nomination, it should be made clear that he shall become part of the legislature party of that political party. If there is no legislature party in the house on the date of nomination, the nominated MLA/s shall constitute the legislature party of that political party. This is inter-alia owing to Explanation (b) to paragraph 2(1)(b) of Tenth Schedule to COI using the term ‘political party’ and not ‘legislature party’..Read Order: