Union Territory of Puducherry Assembly was suspended and placed under President rule from 22^nd February 2021 by the notification[1] issued by the Ministry of Home Affairs (MHA). This situation occurred due to confidence motion moved by the ruling party which ultimately could not be succeeded. There was a tie between the ruling party alliance members and the opposition members as there was 13:13 on both sides in total. The total 13 numbers of opposition include three Members nominated by the Union Government. Two members of the ruling alliance have resigned from their MLA post on the eve of confidence motion and brought down the strength to 11. The opposition alliance elected members were only 10. There were 11 elected members present on ruling side as against the opposition who had only 10 elected members and 3 nominated members.

The opposition parties with nominated members overthrowing the ruling government in power was made possible because of the Supreme Court Judgment in the nominated MLA s case in the year 2018 in (Lakshminarayanan vs. Lieutenant Governor, Puducherry)^*2. This altered the balance of power of the representative character of the legislature. The Supreme Court judgment held that the nominated MLA of Puducherry have right to vote in all matters including right to participate in budget and to vote in no confidence motion. This judgment nullified the democratic spirit of the representative character of the Legislative Assembly. The end result of the judgment reveals the façade or deficit of democracy in the Union Territory with Assembly. This article dwells on the comparative deficit of democracy in the Union Territories with Legislatures in India.

Thiru P.D.T Achary former Secretary General Lok Sabha in his article published in “The Hindu” dated 25^thFeb 2021 have rightly pointed out as  Union Territories were never given a fully democratic set up with necessary autonomy. Experience shows that the UT s having Legislature with ultimate control vested in the Union Government are not workable. The redemption for the harried Governments of these territories lies in the removal of the legal and Constitutional provisions which enable the Union Government in breaking down the neck of the elected Government by nominated MLAs.

II. Backdrop

Nomination as such is not new to the Indian Legislature. It started from the Government of India Act 1919 as Montagu-Chelmsford Reforms[2]. It provided special provision for nomination of Anglo Indians in the elected Parliament from the year 1920. Exactly this provision lasted up to January 24^th 2020 through the subsequent Government of India Acts 1935 and Constitution of India, 1950.As on October 31^st, 2019 there were eight UTs with two categories. i.e five UTs without Legislature[3] and three UT s with Legislature[4]. Puducherry, Jammu & Kashmir and Delhi are the U Ts having representation in the Rajya Sabha.

III. Legislative Framework

Article 239 stipulates that every Union Territory is to be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. The opening words of Article 239, however, are ‘save as otherwise provided by Parliament by law’, which means that Parliament by law can provide different schemes of administration for such Union Territories, i.e., different than what is stated in Article 239.[5]Art 239A[6] of the Constitution of India is applicable for the Puducherry and Jammu and Kashmir U.T s/ Article 239AA is applicable for Delhi as a National Capital Territory.

These two Articles 239A, 239AA  of the Constitution provide for elected Legislature through the following Parliamentary Acts.

1. Government of Union Territories.Act, 1963 for Puducherry
2. Jammu & KashmirReorganizationAct,2019
3. Government of National Capital Territory of Delhi, Act 1991

The first two Acts provide for creation of Legislature partly nominated and partly elected to function as legislature for the Union Territory. Under the Government of Union TerritoriesAct, 1963, Puducherry is the only U.T. with Legislature till 30.10.2019. With effect from 31.10.2019 the provisions contained in Article 239-A which are applicable to U.T.of Puducherry shall also apply to U.T of Jammu & Kashmir (J&K) by Section 13 of the Jammu and Kashmir Reorganization Act, 2019.

Government of U.T. Act, 1963 Section 3(3)states that the Central Government may nominate not more than three persons, not being persons in the service of Government to be Members of the Legislative Assembly of the Union Territory.[7] The Jammu & Kashmir Reorganization Act, 2019 Section 13[8] provide for applicability of article 239A of Constitution which are applicable to Union Territory of Puducherry. The Act 2019 Section 14(3) and Section 15 provide for elected and nominated Members of Legislature.

Sec. 14(3) states that the total number of seats in the Assembly of Jammu and Kashmir to be filled by persons chosen by direct election shall be 107. After excluding 24 members assigned for Pakistan occupied Kashmir, the net elected members will be 83 MLAs[9]. And Sec. 15 highlights that notwithstanding anything in sub Section (3) of Section 14, that Legislative Government may nominate two Members to the Legislative Assembly to give representation to Women, if in L.Gs opinion, women are not adequately represented in the Legislative Assembly[10].

In effect Jammu and Kashmir will have 83 elected MLAs, 2 women nominated MLAs and 3 more nominated MLAs under Government of Union Territory Act, 1963. Thus, total number of MLAs will be 88 or 86 depending upon availability of elected women MLAs.In the case of nominated MLAs Puducherry and Jammu & Kashmir are in the same boat.  Both are peculiarly covered by Treaties with Union of India.  Jammu and Kashmir is annexed with Union by Instrument of Accession, 1948 which is executed under India Independence Act, 1947.  Puducherry is annexed with Union of India by French- India Treaty of Cession 1956 which is executed under 5^th Constitution of French Republic and Constitution of India (Article 253).

Delhi Union Territory with Legislature is escaped from provisioning of nominated MLAs.  The Government of National Capital Territory of Delhi, Act, 1991 enacted under Art 239AA do not provide for nominated MLAs.  However, being a national capital it suffers from the attitude of the Union, which is explicitly subjugated recently by Government of National Capital Territory of Delhi (Amendment) Act 2021.The Act stated that the legislative Assembly shall not make any rule to enable itself or its committees to consider the matters of the day to day administration of the National Capital or conduct inquiries in relation to the administrative decisions.

The difference between nominated and elected MLAs can be seen from the Forms of oaths or Affirmations to be made by MLAs of Puducherry, Jammu & Kashmir and Delhi. The form of oath provided for elected Member only in the case of Legislative Assembly of the Union Territory Delhi. The form of oath does not provide for nominated Members for Delhi UT and on the other hand Government of UT Act, 1963 for Puducherry and Reorganization of  Jammu and Kashmir Act, 2019 provide for Form of oaths or Affirmations to be made by elected or nominated Members of the Legislative Assembly.

IV. Rationale of Nomination

The following Articles of the Constitution provide for nominated Members to the Rajya Sabha, the Lok Sabha, Legislative Assembly, Legislative Council, Assemblies for Union Territories and Tribal Areas in Assam.  Artical 80(1)(a)[11], and (3)[12] for Rajya Sabha and  Art, 81[13], and Art. 331[14] for Lok Sabha, and  Art. 171 (3)(e)[15]& (5)[16], for Legislative Council and

Article 170[17] and 333 for Legislative Assemblies and 239A(1)[18] for Union Territories and 244A for Tribal Areas in Assam.

Section 3(3) of the Government of Union Territory Act, 1963 and Sec. 13 and Sec. 15 of the Jammu and Kashmir Reorganization Act, 2019 are not regulated clearly in respect of nominated MLAs. But the provisions for nomination to the Rajya Sabha, Lok Sabha, Legislative Council and Legislative Assembly are having some rationale and reasons to have the provisions.  They provide inter-alia the rationale for the nominated members as that the person and criteria’s are

1. Should be an Indian Citizen and resident of a State
2. Should have the age not less than thirty years
3. Special knowledge or practical experience in respect of matters of Literature, Science, Art and Social Service and Co-Operative movement
4. Women, wherever applicable.
5. Anglo –Indian, wherever applicable.
6. Limitation of 70 years of time period as in  case of  Anglo-Indian nomination. It is expired on 24^th January, 2020.

So, there is a nexus between the object of nomination and regulation of nominated MP and MLA and MLC.

Such regulation or rational or object is not found in providing power to the Central Government in Sec. 3(3) of the Government of Union Territory Act, 1963 and in Sec. 13 of RJ & K Act, 2019.  It is an unbridled, unregulated and unguided power to the Union Executive which amounts to excessive delegation of power by the Parliament.  This is against the recommendation of Lok Sabha Committee on Delegated Legislation. Delegation to Executive by the parliament should be on details and not on substantive matters. When to the learned Supreme Court it was pointed out to fill up the gap, it refused to do so vide Para 91 of the judgment in Civil Appeal No.11887 of 2018 dated December 06, 2018.  It held therein “the power is to be exercised by Central Government is presumed that Central Government, in exercise of its power, shall be guided by objective and rational considerations.  We, however, hasten to add there is no inhibition in Central Government or the Legislature to make Rules or a Statute for more convenient transaction of business regarding nominations”.  In our humble opinion, the Supreme Court should have filled the gap in law by invoking the power under Art. 142 of the Constitution for rendering complete justice to the elected MLAs.  Instead it set aside all the recommendations made by the High Court judicature, Madras to the Central Government in respect of nominated MLAs. of Puducherry.

V. The Supreme Court Judgement and its implications

The Supreme Court judgment[19] dated December, 06, 2018 held that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly.[20] It was added that when nomination of MLAs has to be done by the Centre, then there is no occasion for consultation with the council of ministers or the Chief Minister by the administrator. “The nomination in the Legislative Assembly in the Puducherry is to be made by the Central Government by virtue of Article 239A read with Section 3(3) of the Act, 1963. In view of the foregoing discussion, we are of the clear opinion that nomination in the Legislative Assembly of Puducherry is not the Business of the Government of Puducherry. It is a business of Central Government as per Sec. 3(3) of Act, 1963,” the bench said.[21]

Further the Court held that there is no basis for submission that nominated members cannot exercise their vote in budget and no confidence motion against the Government.  The statutory provision does not give indication that nominated members have no vote on budget and no confidence motion against the Government.  This enabled the nominated MLAs to topple the elected Government of Puducherry in February 2021.  This is the first time an elected Government though having majority elected members was defeated in Puducherry with the help of 3 nominated MLAs.

VI. Constructive Criticism

No Voting Power to Nominated Members

It is humbly to be pointed out that the Constitution provisions do not provide for voting powers to the nominated Members of Parliament and Legislatures.  Art. 54 say that the President shall be elected by Members of an electoral college consisting of (a). the elected Members of both houses of Parliament (Nominated 12 Rajya Sabha Members and 2 Lok Sabha Members are excluded implicitly). (b). the elected Members of the Legislative Assemblies of the States (nominated MLAs of Puducherry and Jammu Kashmir Legislatures are excluded by Explanation to Art. 54.  Under in Art. 54 and Art. 55 “State” includes the National Capital Territory of Delhi and the Union Territory of Pondicherry. The Union Territory of Jammu and Kashmir is yet to be included in this explanation to Art. 54. Thus, the elected MLAs of Jammu and Kashmir U.T.  Legislature, have no right to elect the President of India. This requires amendment to Explanation to Article 54 of the Constitution is answered..

The Government of Union Territory Act, 1963, Sec. 53(1) (b) provide to fill the seat in the House of the People and the seat in the Council of States allotted to the Union territory of Puducherry.  Though it did not say about voting right of nominated MLA to fill the seat in the Council of States, Constitution Article 54 (b) and Explanation thereto provide right to vote to elected MLAs of the Legislature.  Art. 54 (a) also do not give right to vote to nominated Anglo – Indian Member of Parliament in Lok Sabha and State Assemblies.

In addition, the Constitution bars the Rajya Sabha and Legislative Councils that a Money Bill shall not be introduced in the Council of States and Legislative Council vide Art. 109 (1), (5) and Art. 198 (1), (4), (5).  The Money Bill transmitted to Rajya Sabha and Legislative Council shall be deemed to have been passed at the expiration of fourteen days if the Money Bill is not returned to the House of the People or State Legislature with or without recommendation.  These facts show that the nominated MP, MLA and MLCs have no say with respect to the

1. Election of President
2. Election of Rajya Sabha Member
3. Right to Vote on Money Bill
4. Right to Vote on confidence or No confidence motion against the Government.

Elected members only could move no confidence motion in the parliament and in the Legislative Assembly have to be noted.

At the most the nominated MLAs in Legislatures can be considered as Council Members in the House as they not represent

 any territorial constituencies. Thus, they must be treated as Legislative Council members and not as Legislative Assembly members.  Therefore, the decision of the Supreme Court deserves review and guidance for fair procedure.  According to P.D.T. Achary the Supreme Court took too technical view on the matter of nomination and did not go into the need to specify the fields from which those persons could be nominated and also lay down a fair procedure to be followed for nomination of members.  As things stand, the Law invites arbitrariness in dealing with the nomination of members to the Union territory Legislatures.

The Supreme Court judgment Dated December 06, 2018 in Para 54 it says: “At the same time, this Constitutional provision, i.e. Art. 239A, with regards to the Union territory of Puducherry itself envisages the Constitution of Legislative Council partly by nomination and partly by election.  Further, specific authority to nominate in the Legislative Council has been conferred by law i.e. under Sec. 3[22] to the Central Government.  Factually, Government of Union Territory Act, 1963, speak about two kinds of MLAs under Part II Legislative Assemblies for Union territories and their composition in section 3(2) for elected MLA and in section 3 (3 ) for nominated members.

The persons chosen by direct election under Sec. 3(2) of the Act, 1963 to the Assembly are to be Members of Legislative Assembly and nominated members by the Central Government under Section 3(3) to the Assembly are to be Members of Legislative Council as correctly said by the Supreme Court in Para 54.  These Council members should have the limited powers as available in the matters of election of President, election of Rajya Sabha Member, Money Bills and Confidence /No confidence motions.  This must be reflected in the Government of Union Territory Act, 1963 by way of explicit explanation.  The unguided Sec. 3(3) provision has escaped the attention of Democracy loving leaders and peoples.  This arbitrariness of Union Executive need to be corrected immediately to uphold the supremacy of People or otherwise it shed  relevance of election in respect of Union Territories with Legislatures will have no meaning. It will become farce or façade.

VII. Puducherry Legislature’s Distinguishability

1. Union Territories of Puducherry (1962), NCT of Delhi (1991) and Jammu and Kashmir (2019) are each distinct union territories with separate Acts.  Out of the three Union Territories, Puducherry is more distinguishable by virtue of French-India Treaty, 1956.  In pursuance of De Facto Agreement dated 21^st October, 1954, Article 2, and 3 the Representative Assembly of Pondicherry shall be maintained.  The Government of India shall succeed to the rights and obligations resulting from such acts of the French Administration as are binding on these Establishment.

The Representative Assembly of the State of Pondicherry was established under French Decree No.46 – 2381 dated 25^thOctober, 1946 i.e. under Fourth Constitution of  French Republic 1946 dated 13^th October 1946 which lasted up to 3^rd October 1958.  The French-India treaty dated 28^thday of May, 1956 was ratified by the French Parliament in May, 1962 under Fifth Republic of French Constitution, 1958.  The fifth Constitutions of French Republic was in force in the State of Puducherry on the eve of De jure independence of Puducherry in August 1962. 

This applicability of French Fifth Republic Constitution in Pondicherry since August 1962 is distinguishable. H.R. Seervai, in his book Constitutional law of India under the “Chapter Federalism in India” para 5.12. P.287, 288 Seervai says “Our Constitution also constituted new States into the provinces of India and there were no pre-existing States with Constitutions of their own”. The fact is not so in respect of Pondicherry State in 1962.  The existence of French Fifth Constitution and Pondicherry State under the Ministry of Overseas Territories as one of the States of France vindicate that Puducherry had a pre-existing State with Constitution of its own.

This State of Puducherry became a Union Territory of India by the Constitution (14^th amendment) Act, 1962. The Jammu and Kashmir Act, 2019 converted Jammu and Kashmir State into two Union Territories as UTs of Jammu and Kashmir with Legislature and Ladakh without Legislature.. At the time of accession to India in 1948 J & K have no vestige of sovereignty outside the Constitution of India. Constitution of Jammu and Kashmir is subordinate to the Constitution of India. 

It is therefore wholly incorrect to describe Jammu and Kashmir as being sovereign in the sense of its residents constituting separate and distinct class in themselves.  Permanent residents of Jammu and Kashmir are first and foremost citizens of India so ruled by Supreme Court of India in  State Bank of India Vs Santosh Gupta AIR 2017 Civil Appeal No.12237, 12238 of 2016 dated 16^th December, 2016.  But,   Puducherry as being sovereign in the sense of its residents constituting separate and distinct class in themselves till August 15, 1962. Unlike Jammu and Kashmir, Puducherry is distinguishable in respect of having vestige of sovereignty being outside the Constitution of India which was ceded to India under French-India Treaty, 1956. The treaty of 1956 is  not subordinate to the Constitution of India, vide Art. II[23], Art. III[24], and Art. XXX[25] of the Treaty 1956.

This treaty of 1956 and the Constitution of India, 1950 came into force in the State of Puducherry on 16^th August, 1962.  Article 53[26] of French Constitution is in force from 16^th August, 1962 to till date in Puducherry by virtue of Article 2, 3 and 30 of the Treaty, 1956.  Hence, Puducherry people still have vestige of French Sovereignty and being outside the Constitution of India under French India Treaty, 1956.The treaty of 1956 is not subordinate to the Constitution of India vide Article 2 ,Article 3 and Article 30 of the Treaty1956.

This Treaty of 1956 and the Constitution of India 1950 came in to force in the state of Puducherry on 16^th August 1962 to till date in Puducherry by virtue of Article 2,3 and 30 of Treaty 1956.Hence Puducherry people have vestige of French Sovereignty outside the Constitution of India.  This is another distinguishable feature.  Parliament of India before making any law under Article 3 (a) of the Constitution by uniting any territory of Puducherry to part of any State has to abide by the Article 2, 3 and 30 of the Treaty, 1956 read with Article 53 of the 5^th Constitution of French Republic and Article 51(C) of the Constitution of India 27A.

b )The Representative Assembly of the State of Pondicherry by the Decree No.46-2381, Dated 25^th October, 1946 and Council of Government in the State of Pondicherry by the Decree No.47-1490 Dated 12^th August, 1947 did not have provisions for nominated MLAs in that Representative Assembly.  Not having nominated MLAs in the Representative Assembly by French Decrees are right inherited by the Puducherry people.  This has to be honoured in letter and spirit in view of the Treaty, 1956.  Thus from the above, it is clear that nominated MLA under Art. 3(3) of the Government of Union Territory Act 1963 are violative of International Treaty and principles of representative democracy of the Constitution of India.  It also weakens the Co-operative Federalism.  It snatches the value of sovereign people and subjugates the people as subjects.

VIII. Judicial Remedy Vis-à-vis Legislative remedy

These facts of Treaty 1956, obligations of the Central Government for maintaining elected MLAs only in Puducherry Assembly should be placed before the Supreme Court by way of review of its judgment dated December 06, 2018 to invoke its power under Art. 142 for doing  complete justice and for fulfilling   democracy in the matter of elected MLAs. The following points needs to be considered for the said purpose.

1. The Legislature of Puducherry, as rightly said by the Supreme Court in para 91 of the judgment, dated 06.12.2018, could make Rule or a Statute for more convenient transaction of business regarding nominations or
2. The President shall, under Art. 239 A(1) make Rule for the more convenient transaction of business with regard to the powers and functions in respect of partly nominated MLAs.  The Rule shall be made explicit that the nominated MLAs will be treated with powers as of nominated members of Legislative council i.e. they cannot move cut motion in Money Bills and motion of confidence/no confidence. or
3. Alternatively, the Section 3(3) of the Government of Union Territory Act 1963 should be struck down by filing a PIL for excessive/ and unregulated delegation of power by Parliament to the Union Executive. or
4. Parliament by itself should delete the Section 3(3) of the Government of Union Territory Act, 1963 as it is an anachronism to the spirit of democracy and Rule of Law. or
5. The words in Art. 239A(1)(a) “or partly nominated and partly elected” should be   deleted altogether so as to bring the Article  in  harmony with Constitutional morality.

IX. Democracy Deficit or façade  in Union Territories

After the passing of the Government of National Capital Territory of Delhi (Amendment) Act 2021, many legal luminaries like made many critics.  K.V. Viswanathan, Senior Supreme Court Lawyer[27] said that “it is an extraordinary legislative misadventure”.  It is opposite of what the Apex Court said when it interpreted Art. 239 AA of the Constitution.  That Constitutional provision remains unamended.  Any legislation which speaks to the contrary would be plainly illegal.  The act is an attempt to overrule a judgment and violative of Constitution Article 239A (7) (8).  That would be an exercise of judicial power, which Parliament does not possess.

The deification of Lieutenant Governor would render election as Dead Sea Fruits that would make voters to keep off the polling booths, for their vote will be meaningless.  The elected representative and the council of Ministers, being accountable to the voters must have the appropriate powers so that they can perform their functions effectively and efficiently.  Any other interpretation would nullify the concepts of pragmatic federalism and collaborative federalism.  The Supreme Court emphasized so in the judgment of NCT of Delhi dated 06.12.2018.  But the Act of 2021 is not only against that judgment but also against the Constitutional morality and spirit of Democracy which in turn enlarge the democratic deficit in UTs.

X. Excessive delegation of Power to Union Executive by the Parliament

We have already mentioned that there is an excessive delegation of power by the Parliament to the Executive under Section 3(3) of the Government of Union Territory Act 1963, and in Sec. 13 of the Jammu and Kashmir Reorganization Act, 2019. By enacting further amendment to the Government of National Capital Territory of Delhi (Amendment) Act, 2021 under Section. 21,24,33 and 44 of the Government of National Capital Territory of Delhi Act, the Parliament empowered the Union Executive and the Lieutenant Governor of Delhi as Viceroy of India and Resident Commissioner respectively. The amendment of NCT of Delhi Act, 2021, provides that “before taking any executive action in pursuance of the decision of the Council of Ministers or a Minster to exercise power of Government, under any law in force in the Capital, the opinion of Lieutenant Governor shall be obtained on all such matters as may be specified by general or special order, by Lieutenant Governor.”  This proves to be another incidence of excessive delegation of power.

There were provisions for five nominated MLAs in the Delhi Administration Act, 1966.  Instead of nominated MLAs, now Union Executive by this Amendment Act, 2021 straight away bestowed unlimited and unregulated power to its subordinate executive i.e. the Lieutenant Governor.  Thus, Delhi will have an unrepresentative Administration.

Article 239AA(7)(a) do not intend for such matters incidental or consequential power to the Parliament to amend the basic structure of the 1). Supremacy of the Constitution 2). Republican and Democratic form of Government 3). Federal character of Constitution and 4) Separation of powers between the Legislature, the Executive and the Judiciary and 5) Secular character of the Constitution.  The present Amendment Act, 2021 violates the above four basic structure of the Constitution.  This affects dignity and freedom of the Delhi people which is of supreme importance. Thiru. Sanjay Hegde’s in an article in “The Hindu” dated March 23, 2021 quoted the Supreme Court judgment in respect of Delhi Legislature. 

The Supreme Court has already cautioned “Interpretation [viz (Art. 239AA(7) (b) deemed not to be an amendment of the Constitution – Authors]  cannot ignore the conscience of the Constitution”.  That apart, when we take a broader view, we are also alive to the consequence of such an interpretation.  If the expressions in  case of difference and on any matter are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set up, although different from states as understood under the Constitution, will lose its purpose in simple semantics. This Amendment, 2021 brings forth the urgency of Statehood to Delhi Union Territory.  The delegation of excessive power to the Union Executive leads to autocracy and not strengthen the federal democracy.

Conclusion

Our Indian democracy is structured as per the model of Westminster Abbey form of Parliamentary system. There can be no liberty where the legislative and executive powers are united in the same person, or body of Authority.  It may justly be pronounced as the very definition of tyranny.  Basic structure of the Constitution is built on the basic foundation i.e. the dignity and freedom of the individual which is of supreme importance.  This cannot by any form be destroyed.  The law declared by the Supreme Court clearly indicates that the Indian Constitution is basically federal in form.  The “Union Territory” concept is one of many ways in which India regulates relations between the Centre and its units.  It should not be used to subvert the basis of electoral democracy.

The mind set of Union Government is that Union Territory is “their property and under the absolute control of the Union Government”.  It means peoples in Union Territory with legislatures are merely the subjects and not citizens, notwithstanding that though they are empowered to elect their Government under the People Representation Act.  This mind set seems to be against the basic structure of the Republican and Democratic form of Government and Federal character of the Constitution.

The working of Union Territories with legislatures with ultimate control vested in the Central Administrator causes alienation from participatory democracy among the electorates of those peoples.  In fact the working of the Constitution under Art. 239A(1) and the  Government of Union Territory Act, 1963 with provision for nominated MLAs shows that India is one country but two system of governance just like Hong Kong Special Administrative Region which is run by elected and nominated Legislative Council. 

The provision for nominated MLAs in the Act, 1963 and Art. 239A(1) of the Constitution itself should be deleted.  There should be only either Union Territory without Legislatures or Union Territory with Legislature but without nominated MLAs.  A Legislature without a Council of Ministers or a Council of Ministers without a legislature is a conceptual absurdity.  Similarly, a legislature that is partly elected and partly nominated is another anomaly.  That is why Puducherry, Jammu and Kashmir and NCT of Delhi people longing for full statehood so as to feel not as subject to Union Government but to feel as free citizens of India having full and equal sovereignty power. Otherwise people of Union Territory with Legislature will feel the Union Government “grabbed” their right to vote for those they deem fit to administer.

In short, parliamentary democracy either should have unicameral legislature or bicameral legislature and not a mix of both as partly elected and partly nominated.  Experience shows that the Union Territories having legislatures with ultimate control vested in the Union Government are not workable.  As things stand, either same party or different party runs the Government in the Union Territories this nomination provision of Acts and Art. 239A (1) will be used by the Union Government as if they are its own territorial possession, which is what happened in Puducherry.  To supplant this democracy deficit in Union Territories with Legislatures, remedy lies in having one country one system of elected representative states, abolishing thereby Union Territory with Legislatures and  by upgrading them to full Statehood.

---

¹ http://egazette.nic.in/WriteReadData/2021/225455.pdf visited on 03.04.2021

The notification issued by Union Home Secretary Ajay Kumar Bhalla said the “Legislative Assembly of the said Union Territory is hereby placed under suspended animation.”

² 2018 Supreme Court Case On Line SC2730 in Lakshminarayanan Vs L.t. Governor, Puducherry. Civil appeal No.11887 of 2018 dated December 06, 2018.

[2] The Montagu–Chelmsford Reforms or more briefly known as Mont-Ford Reforms (MCR ) were reforms introduced by the colonial government in British India to introduce self-governing institutions gradually in India. MCR along with brought various new dimensions in Indian polity which were unknown hitherto like parliamentary system in India, involvement in budget making and policy formulation, participation in central legislative assembly, diarchy i.e. decentralised form of govt etc.

[3] The Union Territories without Legislature are Andaman & Nicobar Islands, Lakshadweep, Dadra Nagar Haveli& Daman& Diu, Chandigarh and Ladakh

[4] These three union territories have representation in the upper house of the Indian Parliament, the Rajya Sabha. 

[5] https://main.sci.gov.in/supremecourt/2016/29357/29357_2016_Judgement_14-Feb-2019.pdf

[6] In the year 1962, Article 239A was inserted, providing a little departure from the Scheme of administration contained in Article 239, insofar as Union Territory of Puducherry is concerned.

[7] Sec. 3(3) of The Government Of Union Territories Act, 1963 – the Central Government may nominate not more than three persons, not being persons in the service of Government, to be members of the Legislative Assembly ofthe Union territory.

[8] Sec. 13 – on and from the appointed day, the provisions contained in article 239A, which are applicable to “Union territory of Puducherry”, shall also apply to the “Union territory of Jammu and Kashmir”.

[9] Sec. 14(3) Legislative Assembly for the Union Territory of Jammu and Kashmir and its composition – The total number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir to be filled by persons chosen by direct election shall be 107.

[10] Sec. 15 Representation of women – Notwithstanding anything in sub-section (3) of section 14 the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate two members to the Legislative Assembly to give representation to women, if in his opinion, women are not adequately represented in the Legislative Assembly.

[11] Art. 80(1)(a) – Composition of the Council of States (1) The Council of States shall consist of— (a) twelve members to be nominated by the President in accordance with the provisions of clause (3)

[12] Art. 80(3) – The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely Literature, science, art and social service.

[13] Art. 81 – Composition of the House of the People. – (1) Subject to the provisions of article 331, the House of the People shall consist of— (a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and (b) not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide. 

[14] Art. 331: Representation of the Anglo-Indian Community in the House of the People.— Notwithstanding anything in article 81, the President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People.

[15] Art. 171 (3)(e): Composition of the Legislative Councils – the remainder shall be nominated by the Governor in accordance with the provisions of clause (5).

[16] Art. 171 (5): The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely literature, science, art, co-operative movement and social service.

[17] Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred and not loss than sixty, members chosen by direct election from territorial Constituencies in the State.

[18] Art. 239A: Parliament may  by law create for the Union Territory of Puducherry (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory or (b) a Council of Ministers or both with such Constitution, powers and functions, in each case, as may be specified in the law.

18 A Art 333 as in draft ii. Page 5,6

[19] K. Lakshiminarayanan vs Union of India, Supra Note 2.

[20] The Supreme Court ruled that the Central Government was empowered to nominate three members to the Legislative Assembly of Puducherry. A bench of Justices A K Sikri, Ashok Bhushan and S Abdul Nazeer rejected two separate petitions filedby K Lakshminarayanan and S Dhanalakshmi against the Madras High Court’s judgement of March 22 that dismissed their plea questioning the power of the Union government to nominate.The top court said the nomination to the State Assembly is to be made by the Central Government by virtue of Article 239A of the Constitution read with Sec. 3(3) of the Government of Union Territories Act, 1963.

Available at: https://www.deccanherald.com/national/centre-empowered-nominate-3-706779.html

[21] https://www.business-standard.com/article/pti-stories/sc-upholds-centre-s-decision-to-nominate-three-bjp-members-to-puducherry-assembly-118120601123_1.html

[22] Sec. 3: Legislative Assemblies for Union territories and their composition.―(1) There shall be a Legislative Assembly for each Union territory. (2) The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty. (3) The Central Government may nominate not more than three persons, not being persons in the service of Government, to be members of the Legislative Assembly of  the Union territory.

* Former Secretary General of Lok Sabha.

[23] H.R. Seervai, Constitutional law of India P.288. “Chapter Federalism in India” Para 5.12.

²⁵ rt.II – The Establishments will keep the benefit of the special administrative status which was in force prior to 1^st  November, 1954. Any constitutional changes in this status which may be made subsequently shall be made after ascertaining the wishes of the people.

[24] ²⁶Art.III The Government of India shall succeed to the rights and obligations resulting from such acts of the French administrations as are binding on these Establishments.

[25]²⁷Art.XXX Any disagreement in respect of the application or interpretation of the present treaty which cannot be resolved through diplomatic negotiation or arbitration shall be placed before the International Court of Justice at the request of one or other of the High Contracting Parties

[26]28Art. 53 of French Constitution -Peace Treaties, Trade Agreements, treaties or agreements relating to international organization, those committing the finances of the State, those modifying provisions which are the preserve of Statute law, those relating to the status of persons, and those involving the ceding, exchanging or acquiring of territory, may be ratified or approved only by an Act of Parliament.

They shall not take effect until such ratification or approval has been secured.

No ceding, exchanging or acquiring of territory shall be valid without the consent of the population concerned.

^27A Art 51(C) of  Constitution of India: The State shall endeavor to foster respect for international law and treaty obligations in the dealings or organized people with one another.

[27]29 Mr. K. V. Viswanathan in his article in “The Hindu”: dated March, 24, 2021 come against the Act 2021.

---

Author: Dr. S. Srinivasan, Principal at Dr. Ambedkar Govt. Law College, Mathoor Road, Puducherry.

---