Representative government


The Madras High Court verdict saying that the Lieutenant Governor Kiran Bedi should not interfere in the day-to-day working of the Union Territory is a welcome directive so far as the powers of the elected government are concerned. It appears that the Madras HC has been inspired by the Delhi High Court decision that gave credence to the working of the elected government in the Union capital in the routine working. The Delhi HC also curtailed the powers of the Lieutenant Governor, who asked the elected government of Delhi to seek permission from the administrator before enacting any law or submitting a proposal to the central government for implementation. The tussle between the Delhi’s elected government and the L-G had unfortunately led to stalling many development schemes and routine working of the elected government in implementation of some of the social welfare projects on health, education and social security. The ultimate sufferer was the common man in Delhi for the L-G took it for granted to wield his powers stalling the working of the government. Similarly, the L-G in Puducherry was interfering in the working of the government without any authority and started issuing directions to the elected government for implementation of certain orders, which did not enjoy the legal and democratic sanction from the local legislative assembly. Since it was Congress government, Kiran Bedi taking cue from the dictatorial style of functioning of the BJP-government wanted to assert her authority over the democratically elected government. The Madras HC verdict was also a serious setback to the incumbent administrator in Puducherry. Kiran Bedi, for that matter, has been locked in a prolonged dispute over the extent of her powers with Chief Minister V Narayanasamy, who says she has been disregarding the elected regime and seeking to run the Union Territory on her own. The High Court has laid down that ‘the decision taken by the Council of Ministers and the Chief Minister is binding on the Secretaries and other officials’. Inspired by the Supreme Court’s appeal to constitutional morality and trust among high dignitaries, the High Court has also reminded the Centre and the administrator that they should be true to the concept of democratic principles, lest the constitutional scheme based on democracy and republicanism be defeated. The judgment is based mainly on the principles that were laid down in last year’s Constitution Bench decision on the conflict between the elected regime in Delhi and its Lt Governor. The five-judge Bench had ruled that the L-G has to either act on the ‘aid and advice’ of the Council of Ministers, or refer to the President for a decision any matter on which there is a difference with the Ministry, but has no independent decision-making powers. The High Court also says the administrator is bound by the ‘aid and advice’ clause in matters over which the Assembly is competent to enact laws. The L-G’s power to refer any matter to the President to resolve differences should not mean ‘every matter’, the court has cautioned. Justice R Mahadevan, who delivered the Madras High Court judgment, is conscious of the difference in status between Delhi and Puducherry. The Puducherry Legislative Assembly is the creation of a parliamentary law, based on an enabling provision in Article 239A of the Constitution, whereas the Delhi legislature has been created by the Constitution itself under Article 239AA. The Supreme Court had described the NCT as ‘sui generis’. At the same time, the Delhi Assembly is limited in the extent of its legislative powers, as it is barred from dealing with the subjects of public order, police and land. However, looking at the Business Rules as well as other statutory provisions on Puducherry, the judge has sought to give greater credence to the concept of a representative government. He has set aside two clarifications issued by the Centre in 2017 to the effect that the L-G enjoys more power than the Governor of a State and can act without aid and advice. The point is that the Puducherry and Delhi cases are different but in a democracy, the elected institution has to be given precedence over administrative powers of the L-Gs for healthy democratic traditions.