The Structural Fragility of Union Territories

Context: Recent resignations of members from Puducherry Assembly toppling the Government, showcases Union Territories UTs having legislatures with ultimate control vested in the central administrator are not workable.

Legal provisions: in reference to the resignation of member/s of the Legislative Assembly

• Article 190: While resigning from the membership of the House is every member’s right, under Article 190, the resignation should be voluntary or genuine. 
• If the Speaker has information to the contrary, he/she is not obliged to accept the resignation.

Innovative method of toppling Government

• Unanticipated and abrupt resignation of the exact number of MLAs, such that Government in power loses the majority in the legislature.
• No MLA has to defect or face disqualification and get a bad name.

Analyzing the Structural fragility in position of UTs

• Against democratic aspirations: The ruling of the President with the administrator (under 239) subverts people’s democratic aspirations. (raising the demand for legislatures (Article 239A))
  • Section 44 of the GUTA and Article 239 AA(4) of the Constitution, the administrator has the right to disagree with the decisions of the Council of Ministers. 
  • Missing checks and balances: despite the SC ruling in NCT of Delhi v. Union of India (2019) - the administrator should not misuse power to frustrate the functioning of the elected Government
• Absurdities in the composition of the legislature: 
  • Lack of clarity in whether the legislature is an elected, or partly elected and partly nominated body. Also, there can be a Council of Ministers without a legislature.
  • Issues with the nomination:
    • Unilateral powers of Union: A simple amendment in the Government of Union Territories Act, 1963 (GUTA) can create a legislature with more than 50% nominated members.
    • In K. Lakshminarayanan v. Union of India, 2019 case, the Supreme Court held that Union government is not required to consult State government for nominating members.
    • The nominated members have the same right to vote as the elected members. Also, 
    • No qualification provisions are laid down for nominated members. (as opposed to the qualification provided for nomination for Rajya Sabha under Article 80(3))