Governance of UTs in India

Context: The Centre has sought a review of a Supreme Court verdict upholding the Delhi Government’s power to make laws and wield control over civil services in the national capital.

Governance of UTs in India Background

• The dispute over whether the Lieutenant Governor or the Chief Minister would have powers over the administrative services in Delhi went to the Supreme Court.
• The administrative services include appointments and transfers, in the national capital.
• The Supreme Court held that the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land.
  • The Centre has moved the Supreme Court seeking review of this verdict.

What are Union Territories?

• According to Article 1 of the Constitution of India, the territory of India can be classified into three categories:
  • Territories of the states
  • Union territories
  • Territories that may be acquired by the Government of India at any time.
• Unlike the states of India, which have their own governments, Union Territories (UTs) are the federal territories, administered by the Union government of India.

Evolution of Union Territories

• At the time of Independence, there were many princely states and former British India provinces needed to be coalesced together. The Indian Constitution that came into force in 1950 went a step further, recognizing four different categories of territories in Schedule 1:
  • Part A comprised former 9 British India provinces, having a Governor and a legislature.
  • Part B comprised former 9 princely states, governed by a ‘rajpramukh’ with legislatures.
  • Part C was a combination of princely states and Chief Commissioner’s provinces, being governed by a Chief Commissioner. These Part C states (in all 10 in number) were centrally administered.
  • The administrators of all three above categories were appointed by the President.
  • Part D comprised the lone territory of Andaman and Nicobar Islands, which had a Lieutenant Governor appointed by the Central Government. It was Part D that would go on to form the basis for the creation of Union Territories.

Need for Formation of Union Territories

• During the discussion on reorganization of states in 1956, the States Reorganization Commission identified that these territories were economically unbalanced, financially weak and administratively and politically unstable and found that it was necessary to have them centrally administered.
• These territories were created for many reasons like:
  • Political and Administrative Reason:  Some Union Territories were created for better political and administrative governance like Delhi and Chandigarh.
  • Cultural Uniqueness: Union Territories were also created to conserve and secure their cultural distinctiveness like Puducherry, Dadra & Nagar Haveli, Daman and Diu.
  • Strategic Significance: Some areas were strategically important for India like Andaman Nicobar, Lakshadweep owing to their location and international borders. Hence, they were better suited for Union Territories so that the Central Government could directly administer them.
• Union Territories were constituted in 1956 by the 7th Constitutional Amendment Act (1956) and the States Re-organization Act (1956).
• In due course of time, some union territories have been elevated to state statuses such as Himachal Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh, and Goa.

Currently, there are total 8 Union Territories

• Andaman and the Nicobar Islands
• Chandigarh
• Dadra and Nagar Haveli and Daman and Diu
• National Capital Territory of Delhi
• Jammu and Kashmir
• Lakshadweep
• Puducherry
• Ladakh

Constitutional Provisions for Union Territories

• Articles 239 to 241 in Part 8 of the Indian Constitution provide for the administration of the Union Territories.
• Although all the Union Territories belong to one category, there is no uniformity in their administrative system.

Administration of Union Territories

• According to Article 239-1, the President, acting through an administrator chosen by him, is responsible for overseeing every union territory.
  • A union territory’s administrator is the President’s representative, not its head of state like a governor.
  • An administrator may be given designations like Lieutenant Governor, Chief Commissioner, or Administrator, as determined by the President.
• The governor of a state may be appointed by the President to serve as the administrator of a nearby union territory (Article 239- 2). The governor is expected to act in that capacity and independent of his council of ministers.
• For the administration of Union Territories, the Parliament can make laws on any subject of the three lists i.e. the Union List, the State List, and the Concurrent List.
• According to Article 240, the President of India has the power to make regulations for UTs not having their own legislature.

Union Territories with Legislative Assembly

• Puducherry:  Article 239A of the Constitution provides for the creation of ‘local legislatures’ and a ‘Council of Ministers’ for the “Union territory” of Puducherry.
  • It was added by the 14th Constitutional Amendment Act, 1962.
  • Legislative Assembly of Puducherry can make laws on any subject of the State List and the Concurrent List.
  • The strength of the Legislative Assembly is fixed at 33.
  • All the members are directly elected by the people on the basis of adult franchise.
• Delhi: The 69th Amendment Act, 1992 added new Article 239AA in the Indian Constitution. It conferred Special Status upon Delhi following the recommendations of the S Balakrishnan Committee that was set up in 1987 to look into Delhi’s demands for statehood.
  • According to Article 239AA, the NCT of Delhi will have an Administrator and a Legislative Assembly.
  • Legislative Assembly of Delhi is empowered to make laws on any subject of the State List except public order, police and land and the Concurrent List.
  • Article 239AB provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article.
  • The seats of Delhi’s Legislative Assembly are to be filled by direct elections.
  • Total seats in Delhi Assembly are fixed at 70.

Issues Concerning Union Territories

• Composition of the Legislature: Article 239A was originally brought in 1962, to enable Parliament to create legislatures for the UTs.
  • The composition of Legislature is a body that is elected, or partly elected and partly nominated.
  • There can be a Council of Ministers without a legislature, or there can be a legislature as well as a Council of Ministers.
  • A legislature without a Council of Ministers or a Council of Ministers without a legislature is a conceptual absurdity.
  • In our constitutional scheme, a legislature is the law-making body, and a legislative proposal is initiated by the government, which is responsible to the legislature.
  • Neither can the legislature exist without a Council of Ministers nor can the Council of Ministers exist without a legislature. Similarly, a legislature that is partly elected and partly nominated is another absurdity.
  • A simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members.
  • Hence, a pertinent question remains that how can a predominantly nominated House promote representative democracy.
• Issue of Nomination: The issue of nomination of members to the Puducherry Assembly had raised a huge controversy.
  • The Government of Union Territories Act provides for a 33-member House for Puducherry of whom three are to be nominated by the Central government.
  • So, when the Union government nominated three members to the Assembly without consulting the government, it was challenged in the court.
  • Finally, the Supreme Court held that the Union government is not required to consult the State government for nominating members to the Assembly and the nominated members have the same right to vote as the elected members.
• Arbitrariness in Nomination: There is provision for the nomination of members to the Rajya Sabha (under Article 80). The Article specifies the fields from which they will be nominated.
  • The purpose of this nomination is to enable the House to draw on the expertise of those eminent members who are nominated and thus enrich the debate in the House.
  • But in the case of nomination to the Puducherry Assembly, no such qualification is laid down either in Article 239A or the Government of Union Territories Act. This leaves the field open for the Union government to nominate anyone irrespective of whether he or she is suitable.
  • Due to this, the law invites arbitrariness in dealing with the nomination of members to the UT legislature.
• Administrator’s Power: The UTs are given a fully democratic set-up with necessary autonomy.
  • The power vested in the administrator, who is known as the Lieutenant Governor in the UTs having a legislature, bear this out.
  • The administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision. The President decides on the advice of the Union government. So, in effect, it is the Union government which finally determines the disputed issue.
  •  The administrator can, in fact, disagree with all crucial decisions taken by the State government when the territory is ruled by a different political party.
  • Section 44 of the Government of Union Territories Act and Article 239 AA(4)  of the Constitution vests the power in the administrator to express his or her disagreement and refer the matter to the President and then take all actions he or she deems fit in the matter in total disregard of the elected government.

Way Forward

• Cooperative Federalism: In NCT of Delhi v. Union of India (2019), the Supreme Court had said that the administrator should not misuse this power to frustrate the functioning of the elected government in the territory and use it after all methods have failed to reconcile the differences between him/her and the Council of Ministers.
• Exploring the Washington DC Model: The Government of India can reproduce the model of administrative sharing of power between the Union Government and the Union Territories.
  • Given this, the institution of strategic importance like political institutions, defense establishments, etc. can remain under the jurisdiction of the Union Government, and areas other than these can effectively be handed over to UTs governments.
• Necessary Reforms: For effective autonomy to the governments of union territories, there is a need for amendment in the legal and constitutional provisions.

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