Reading time: 6-8 minutes.
The appointment of the State Election Commissioner (SEC) of Puducherry has become the latest breaking point between the Lieutenant Governor Kiran Bedi and Chief Minister V. Narayanasamy. The Ministry of Home Affairs in December 2019 directed the elected government to select a State Election Commissioner through a transparent, competitive and fair process, the applications for which would be invited through an all India advertisement and the selection would be made through a selection committee that would be headed by the Chief Secretary for the timely completion of the election process.
After the appointment of T.M Balakrishnan as the SEC, who happens to be a former bureaucrat, the Lt. Governor objected that due process for selection as directed by the Ministry of Home Affairs has not been followed.
The Chief Minister responded by pointing out that since the selection has not been canceled by the Ministry of Home Affairs itself and neither the Lt. Governor nor the MHA has the power to remove a SEC. Hence, the Chief Minister has ruled out the possibility of any revaluation of the appointment of the SEC.
The power tussle between Chief Minister and Lt. Guv. in Puducherry
The recent feud between the Lt. Governor and the Chief Minister has added fuel to the fire which has been going on since the last few years. The power tussle between the Lt. Governor and the Chief Minister started in 2016, ever since Kiran Bedi was appointed as the Lt. Governor.
The recurring friction between the Lt Governor and the Chief Minister does not attract the same limelight as the Jung-Kejriwal tussle in Delhi despite having similar political undertones.
The turf war started in December 2016 when a Civil Services Officer was suspended by Bedi because he had sent an obscene video on a WhatsApp group which was created by Bedi to increase administrative efficiency. The suspension order by Bedi provoked the government, following which the Chief Minister issued an order prohibiting all MLAs and Ministers from using social media platforms for official communication. Bedi struck down the order declaring it null and void.
In March 2017, Bedi ceased an order passed by the Assembly speaker V Vaithilingam which directed the transfer of the Commissioner of Puducherry Municipality. The Commissioner, R. Chandirasekaran is known to be Bedi’s close aide. Lt Governor desisted the order and asked the Chief Secretary to ensure that the Commissioner stays in his position.
In July 2017, the Chief Minister and Lt. governor were at loggerheads again, over the appointment of three nominated members, two of whom belonged to the BJP. The list of nominees was pronounced by Bedi without any consultation with the government. The Supreme Court on December 6, 2018, stated that the Lt. Governor had the authority to nominate the MLAs.
In April 2018, Bedi passed an Order stating that free distribution of rice to the villagers would be stopped if the villages were not declared as open defecation free. This decision was termed as dictatorial and bordering on absurd by the government.
Another bone of contention was the helmet issue. While the Chief Minister wanted to raise awareness about the rule before its implementation, Bedi insisted on immediate enforcement and came down to the streets to catch and punish those not wearing a helmet.
Legal/constitutional provisions regarding the balance of power CM and Lt. Governor
The Lt. Governors have similar powers and functions as the President, limited to the Union territories and National Capital Territory of Delhi. The Lt. Governor is appointed by the President for a period of five years whereas the Chief Minister is elected by a state for a period of five years.
According to Article 239 of the Constitution of India, every Union Territory in India shall be administered by the President, through an administrator appointed by him. Such an administrator is known as the Lt. Governor. Articles 239 to 241 deal with the administration of the Union Territories of India.
The legal provisions were set out in the five-judge bench of the Supreme Court comprising of then Chief Justice Deepak Mishra in the matter of NCT of Delhi vs Union of India, which laid down certain guidelines about the functioning and the roles of the Lt. Governor, solving the major dispute between the Chief Minister and then Lt. Governor of Delhi.
The constitutional bench also suggested a harmonious way for the Lt. Governor and the Chief Minister for working together but only solved the issues that were raised. The issue regarding the power to appoint and transfer State and Public officers still have not been resolved. The Supreme Court did suggest the two to work harmoniously but did not lay down any guidelines for the same.
Case law: NCT of Delhi vs Union of India
The power tussle between the Chief Minister of Delhi Arvind Kejriwal and the Retired Lt. Governor Najeeb Jung led to a legal controversy. The issue revolves around the administrative powers of the Lt. Governor of Delhi in light of the special status of Delhi as a Union Territory under Article 239AA of the Constitution of India, which was inserted by the 69th Constitutional Amendment Act in 1991. According to Article 239AA of the Constitution of India, the Delhi government does not have any authority over the issues relating to police, public order, and land.
The main issues were as follows:
- The power to appoint and transfer the officers of State and Public services
- The power over the Anti-Corruption Bureau (ACB)
- The implementation of the Electricity Reforms Act in Delhi
In February 2019, the two-judge bench consisting of Justice’s Ashok Bhushan and A.K Sikri declared that the power over the Anti-Corruption Bureau would come under the Central government and the Delhi Government has the power to appoint special public prosecutors and directors under the Electricity Act.
The issue regarding the power to appoint and transfer State and Public officers would be heard by a larger bench as there was a split decision between the two judges.
The five-judge bench of the Supreme Court in July 2018, declared that the issues relating to land, law, and order, the Centre has executive power. The Delhi government must be allowed to legislate and govern other issues and the Lt. Governor cannot stall decisions mechanically.
All the decisions taken by the Chief Minister must be communicated to the Lt. Governor but they do not require the Lt. Governor’s concurrence. The Lt. Governor can refer it to the President but cannot sit on it.
This judgment cannot be set as a complete precedent to the turf war between the Chief Minister and Lt. Governor of Puducherry because there is a distinction between the administration of the Delhi under Article 239AA and the administration of Puducherry under Article 239A of the Constitution of India.
Conclusion: Way forward
The Madras High Court in May 2019, in a writ petition filed by the Puducherry Congress MLA Lakshminarayanan which questioned the powers of the Lt. Governor to interfere in the day-to-day affairs administration despite the presence of council of members, declared that the Lt. Governor cannot interfere in the day-to-day affairs nor does the Lt. Governor has the power to call for files and give orders to officials.
The Court also declared the following: –
- The decision taken by the Council of Ministers (CoM) and the Chief Minister is binding on the secretaries and other officials of the Union Territory.
- The Lt. Governor has no ‘exclusive authority’
- The order taken by the elected government is final.
While the Court gave an order in favor of the elected government, the Lt. government and the Chief Minister being highly educated, can figure out a streamlined and transparent way of making decisions, without hampering the constitutional scheme of the country being a republic and democratic.
Those in power can work for the benefit of the common man if they keep their personal problems aside and if they actually want to benefit the society. This is not limited to just the Lt. Governor and Chief Minister of Puducherry; it is for everyone in power.
Author: Mohsin Rahim from O.P Jindal Global University, Sonipat.
Editor: Tamanna Gupta from RGNUL, Patiala.