Madras HC hears arguments on the Puducherry MLA Nomination Tussle

Adding to the list of politically fueled matters currently before it, the Madras High Court yesterday heard detailed submissions on the tussle between the Centre and the Puducherry government over the recent nomination of three BJP loyalist MLAs to the Puducherry Legislative Assembly..The matter came up for hearing before the First Bench of Chief Justice Indira Banerjee and Justice M Sundar..Through a notification dated June 23, 2017, the Union Ministry for Home Affairs had appointed three MLAs to the Assembly without consulting with the incumbent government in Puducherry. V Saminathan, the President of BJP’s Puducherry unit, KG Shankar, party treasurer, and S Selva Ganapathy were nominated..The nominees were thereafter sworn in by current Lieutenant Governor for Puducherry Kiran Bedi on July 4. However, in a communication dated November 12, Speaker V Vaithilingam rejected the nominations, declaring the appointments as having been made by an incompetent authority against the Constitutional scheme..The June notification and the subsequent appointment of the nominees were challenged in a writ petition by the Puducherry Chief Minister’s Parliamentary Secretary, K Lakshminarayanan. In doing so, Section 3 (3) of the Government of Union Territories Act, 1963 was also challenged as ultra vires the Constitution. The nominees, on the other hand, challenged the Speaker’s communication of rejection..Among others, Senior Advocates VT Gopalan and ARL Sunderesan made arguments on behalf of the petitioners. Government Pleader for the Puducherry Government, A Gandhiraj also appeared. Additional Solicitor General G Rajagopalan made arguments on behalf of the Central government, whereas Senior Advocates PS Raman and Arvindh Pandian made arguments on behalf of the other respondents..The petitioners argued that the Centre ought not have appointed the nominees without consulting the Puducherry Government. The role of the President in making such nomination was emphasised..The President is the administrative head with respect to Union Territories, and not the Central government. It was submitted that a conjoint reading of Section 3(8) of the General Clauses Act, 1898 and Article 239 of the Constitution would reveal that the Centre had made a jurisdictional error in issuing the impugned notification..These arguments were made in the context of a challenge to Section 3 (3) of the Government of Union Territories Act, 1963, which lays down that the Central government may nominate not more than three persons to be members of legislative members of Union Territory..The petitioner admitted that nominations in furtherance of appointing members having special knowledge or experience, or in the interest of community representation were permitted under the Constitutional Scheme..However, the impugned nominations allowed by Section 3(3) are not based on any disclosed reasons. The nominations made thereunder were not based on any intelligible differentia and fell afoul of the Right to Equality under Article 14. For this reason, both the provision under Section 3(3) as well as the notification made thereunder were liable to be quashed..The ASG contended that the Central government sources its powers to make the impugned nominations from the Constitution, particularly vide Article 239A. The same has not been challenged and hence the appointments cannot be challenged either..On behalf of the other respondents, the counsel focused their arguments on the lack of jurisdiction on the part of the Speaker to reject the impugned nominations. It was contended that the same amounts to Constitutional and judicial overreach..The adjudicatory powers of the Speaker, it was argued, are confined to powers under the Tenth Schedule to the Constitution concerning defection. Beyond that, the Speaker does not have the power to make such rejection. Further, the rejection was made without giving the nominees any opportunity to be heard, and therefore the same was amenable to judicial review..The Court noted that it would take longer to make a considered decision, and therefore adjourned the matter. In view of the fact that the Legislative Assembly is due to be held on November 23, the Court directed that any major decision taken by the Assembly on that day would be bound by the decision of the Court in the matter.