The Madras High Court verdict that the Lieutenant Governor of Puducherry should not interfere in the day-to-day administration of the Union Territory is a serious setback to the incumbent Administrator, Kiran Bedi. She 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 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 the National Capital Territory (NCT) 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 legislature is the creation of a parliamentary law, based on an enabling provision in Article 239A of the Constitution, whereas the NCT 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 NCT 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. In view of the Constitution Bench judgment on Delhi, he has differed with another Madras High Court decision of 2018 in which the LG’s power to act irrespective of the Cabinet’s advice was upheld. In the event that the latest judgment is taken up on appeal, a key question may be how far the decision of the five-judge Bench on the limits of the Delhi L-G’s powers would indeed apply to Puducherry.