NEW DELHI

15 November 2018 17:21 IST

Madras HC had ruled that an administrator of a Union Territory has powers to act irrespective of the advice of the Council of Ministers.

The Union Territory of Puducherry is the “property” of the Union and there is no need for the Centre to consult the incumbent Congress government in Puducherry before making nominations to the Puducherry Assembly, the Centre told the Supreme Court on Thursday.

The Centre was countering the argument made by the Puducherry wing of the ruling Congress party, represented by senior advocate Kapil Sibal, who argued that the nomination should emanate from the local elected government but the final decision could be taken by the Union. This, Mr. Sibal, would be in the true spirit of “co-operative federalism”.

Mr. Sibal said the Centre cannot have “untrammelled power to nominate and the local government State should be consulted… Neither the Union is a stranger nor the State. Centre is the final authority, but the names should emanate from the State”.

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Appearing before a three-judge Bench led by Justice A.K. Sikri, Attorney-General K.K. Venugopal contended there is “no wholesale transfer of unlimited legislative and executive powers over Union Territories from the Centre to the local government unless otherwise provided by law”.

Process of consultation

The law is silent about any process of consultation and hence the court should not intervene, the Attorney-General argued.

“No local council of ministers have a right to impose over the will of the Union. It is my right to govern my property. The Centre is all-powerful. Will you force consultation when the law itself is silent? Here, the question of any sort of co-operative federalism does not arise,” Mr. Venugopal argued.

In fact, Mr. Venugopal reversed the logic applied by Mr. Sibal on “consultation”. The AG said any requirement for consultation would only encroach into the absolute right of the Centre, guaranteed under the Constitution and law, to administer its own property.

“Tomorrow, this ‘consultation process’ will be stretched to other areas which will upset the constitutional balance,” Mr. Venugopal argued.

‘Should not be treated as stranger’

Earlier in the day, Mr. Sibal asked what was wrong in consulting the local government, even assuming the power of nomination of MLAs lay with the Centre.

“There is no room in this situation to evolve a principle that the State is a stranger and cannot be consulted… My case is State should not be treated as a stranger,” Mr. Sibal submitted.

At one point, Justice S. Abdul Nazeer asked what according to him was the “correct way forward”.

“This court is the guardian of the Constitution. Your Lordships have enormous experience. You should evolve a mechanism in the best interest of collaborative and co-operative federalism. The mechanism should be in tune with the constitutional scheme,” Mr. Sibal replied.

The Supreme Court had earlier refused to stay the Madras High Court order upholding the Centre’s decision to nominate three BJP members as MLAs to Puducherry Assembly.

Directive to Speaker

The apex court asked the Speaker of Puducherry Assembly to allow the nominated members to function as MLAs till the adjudication of petition.

The High Court had on March 22 upheld the nomination of the three BJP members to the assembly by the Centre and their swearing-in by Lt Governor Kiran Bedi, over which the Congress government had protested.

The High Court had ruled that an administrator of a Union Territory has powers to act irrespective of the advice of the Council of Ministers.

It also held as invalid the Speaker’s order cancelling the nominations of the MLAs — V.Saminathan, K.G. Shankar and S. Selvaganapathy — sworn-in as MLAs by Ms. Bedi on July 4 last year.