Case: K. LAKSHIMINARAYANAN Vs. UNION OF INDIA

2. The background facts leading to filing of the writ petitions giving rise to these appeals are as follows:-2.1 Part VIII of the Constitution of India dealing with the Union Territories was amended by Constitution (Fourteenth Amendment) Act, 1962 by inserting Article 239A, which provides for creation of local Legislatures or Council of Ministers or both for certain Union Territories. Article 239A provided that Parliament, may by law, create for the Union Territory of Pondicherry, a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. After the above Constitutional amendment inserting Article 239A, the Parliament enacted Government of Union Territories Act, 1963 to provide for Legislative Assembly and Council of Ministers for certain Union Territories and for certain other matters2.2 At the time of commencement of Act, 1963, there were large number of Union Territories, which were to be governed by the Act, 1963. Gradually, several Union Territories were upgraded to the status of a State and as on date, the definition of Union Territories under Section 2(h) defines Union Territory as the Union Territory of Puducherry. Section 3 of the Act, 1963 provides for Legislative Assemblies for Union territories and their composition. According to Section 3(2), the total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and as per Section 3(3), the Central Government may nominate not more than three persons, not being persons in the service of Government, to be members of the Legislative Assembly of the Union territory2.3 Election for filling thirty seats in the Legislative Assembly of Puducherry was held in the year 2016. Indian National Congress, who bagged fifteen out of thirty seats with support of DMK and one independent candidate has formed the Government in Puducherry. Writ Petition (C) No. 16275 of 2017 as K. Lakshminarayanan Vs. Union of India & Anr. was filed in the Madras High Court praying for a writ of mandamus forbearing the respondents from in any manner nominating or filing up the nominated seats of Members for the Puducherry Legislative Assembly except with the consultation and choice of the elected Council of Ministers. The writ petition was filed on 27.06.2017. The Government of India, Ministry of Home Affairs had issued a notification on 23.06.2017 nominating Shri V. Saminathan, Shri K.G. Shankar and Shri S. Selvaganabathy as members of the Legislative Assembly of the Union Territory of Puducherry. An application for amendment was filed in the writ petition praying for quashing the notification dated 23.06.2017. Another Writ Petition (C) No. 18788 of 2017 – S. Dhanalakshmi Vs. Union of India & Ors. Was filed in the Madras High Court praying for following reliefs:-Writ of Certiorarified Mandamus calling for the records on the file of the third respondent relating to the impugned Notification bearing Ref. No. F.No.U-11012/1/2014-UTL dated 23-06-2017 and quash the same and consequently direct the respondents 1 to 3 to nominate the members to the Puducherry Legislative Assembly only with the consultation and choice of the elected Council of Ministers and pass such further or other orders and thus render justice.2.4 On 13.11.2017, the Secretary of Puducherry Legislative Assembly communicated the decision of the Speaker of the Legislative Assembly that the nominated members could not be recognised as members of the Assembly, having been appointed in contravention of the Constitution and the Act, 1963. The communication dated 13.11.2017 was challenged by three nominated members by filing three separate writ petitions being Writ Petition Nos. 29591, 29592 and 29593 of 2017. All the writ petitions, i.e. Writ Petition No. 16275 of 2017, Writ Petition No. 18788 of 2017 and Writ Petitions No. 29591, 29592 and 29593 of 2017 were heard and decided by Division Bench of Madras High Court vide its judgment dated 22.03.2018. The Writ Petition Nos. 16275 of 2017 and 18788 of 2017 challenging the notification dated 23.06.2017 has been dismissed, whereas the Writ Petition Nos. 29591, 29592 and 29593 have been allowed. Two separate but concurring judgments have been delivered by Division Bench of Madras High Court. Operative portion of the judgment delivered by Justice M. Sundar, with which judgment, Chief Justice expressed absolute agreement, was to the following effect:-W.P. No. 16275 of 2017 filed by the Whip and W.P. No. 18788 of 2017 filed by PIL petitioner are dismissed. Writ petitions, being W.P. Nos. 29591 to 29593 of 2017 filed by nominated MLAs are allowed. Considering the nature of the matter and in the light of the trajectory this litigation has taken, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed2.5 Against the aforesaid Division Bench judgment of Madras High Court dated 22.03.2018, only two appeals have been filed, one by K. Lakshminarayanan and other by S. Dhanalakshmi challenging the judgment of Division Bench by which Writ Petition No. 16275 of 2017 has been dismissed and another appeal has been filed against the judgment of Division Bench in Writ Petition No. 18788 of 2017 by which writ petition was dismissed. In so far as judgment of Division Bench in Writ Petitions Nos. 29591, 29592 and 29593 of 2017 filed by three nominated MLAs, by which their writ petitions were allowed quashing the decision of the Speaker dated 23.11.2017, no appeals have been filed.

Court's reasoning:
21. Thus, it is clear that the definition of Central Government, which means the President is not controlled by the second expression and shall include the administrator. The ordinary or popular meaning of the word the President occurring in Section 3(8)(b) has to be given and the second part of the definition shall not in any way control or affect the first part of the definition as observed above. In the definition of Central Government, an administrator shall be read when he has been authorised or delegated a particular function under the circumstances as indicated above. No statutory rules or any delegation has been referred to or brought on record under which the administrator is entitled or authorised to make nomination in the Legislative Assembly of the Union Territory of Puducherry. Thus, in the present case, the definition of Central Government, as occurring in Section 3(3) of the Act, 1963 has to be read as to mean the President and not the administrator. The issue is answered accordingly26. As per Rule 48 with regard to matters referred to in sub-rule (2) of Rule 4, the Administrator may, if he deems fit, either consult his Council or the Chief Minister, before exercising of his powers or discharging his functions in respect of that matter. But the question which needs to be answered for the present case is as to whether the nomination of a member in the Legislative Assembly of Puducherry is covered by expression remaining business of the Government. The Government has been defined in Rule 2(f) as the Government of Puducherry. The Government occurring in Rule 4(2) cannot be stretched to be Central Government. When Section 3(3) of Act, 1963 empowers the Central Government to nominate not more than three persons to the Legislative Assembly of the Union Territory, it is the business of the Central Government to make nominations as per Parliamentary law27. The business of the Government as occurring in Rule 4 has to be business which under any law is to be performed by the Government of Puducherry. Article 239A of the Constitution provides that Parliament may by law create a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory or Council of Ministers or both with such Constitution, powers and functions, in each case, as may be specified in the law28. The expression law used in Article 239A(1) is a Parliamentary law. When the Constitution expressly provides that it is the Parliament which may provide by law, constitution of Legislature for the Union Territory, it is the Parliament alone which can provide for constitution of Legislative Assembly for Union Territory under the Act, 1963. Section 3 does provide for constitution of Legislative Assembly for Union Territory with thirty members to be elected members and three members to be nominated by the Central Government. When the Parliamentary law as envisaged by Article 239A provides for the constitution of Legislative Assembly of the Union Territory which also includes nomination, the said constitution which also includes nomination can not be the business of the Government of Puducherry. The nominations of the members to the Legislative Assembly of Puducherry thus can never be covered by expression remaining business of the Government as occurring in Rule 4(2). When Rule 4(2) itself is not attracted in reference to the nomination in the Legislative Assembly, there is no occasion of applicability of Rule 48 that is consultation with the Council of Ministers or the Chief Minister by the Administrator. We, thus, do not find any substance in the submission of Shri Kapil Sibal that nomination in the Legislative Assembly in the Puducherry is the business of the Government of Puducherry and is to be exercised in accordance with Rule 4(2) read with Rule 48. The nomination in the Legislative Assembly in the Puducherry is to be made by the Central Government by virtue of Article 239A read with Section 3(3) of the Act, 196332. Thus, as per Transaction of Business Rules, the matter of nomination in the Legislative Assembly of Puducherry not being a matter in regard to consultation with other departments and submission of the cases to the Prime Minister, the Cabinet and its Committees and the President, the above business is to be disposed of by or under the general or special orders or the directions of the Minister-in-charge that is Home Minister33. In view of the foregoing discussion, we are of the clear opinion that nomination in the Legislative Assembly of Puducherry is not the Business of the Government of Puducherry. It is a business of Central Government as per Section 3(3) of Act, 1963 which is to be carried out in accordance with the Government of India (Allocation of Business) Rules, 1961 and Government of India (Transaction of Business) Rules, 1961. The issue is answered accordingly52. It has been laid down by this Court in the above cases, which is clear from above precedents that Indian Constitution has adopted federal structure. Although, it is not in the strict mould of federalism as understood in theory. That is why, different Constitution Benches of this Court have termed the Indian Constitution as a quasi-federal but the essential characteristics of the federal system are ingrained in the Constitution and reflect in different Constitutional provisions which are (i) the distribution of legislative and executive power between the Union and the States, (ii) the distribution of such legislative and executive power is by the Constitution itself, and (iii) an independent judiciary to interpret the Constitutional provisions and lay down validly in case of any dispute or doubt53. The concepts of cooperative federalism, collaborative federalism and pragmatic federalism as has been noticed by the Constitution Bench in State (NCT Of Delhi) (supra) essentially engraft the same concept, i.e. faithful discharge of the functions, both Union and States have to follow Constitutional principles and not to encroach in the field reserved to other by the Constitution54. The principle of federalism as adopted in the constitution of India are well settled as noticed above. The submission, which needs to be answered in the present case is as to whether the federal principles as ingrained in the Constitution are in any manner sacrificed in the present case, i.e., by nominations made by Central Government without concurrence of the Government of Union Territory of Puducherry. Article 239A by which creation of local Legislatures or Council of Ministers or both for certain Union Territories was provided by the Constitution (Fourteenth Amendment) Act, 1962 empowering the Parliament by law, to create for the Union Territory of Puducherry, a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. The Constitution, thus, by Article 239A has empowered the Parliament to create Legislature for the Union Territory by law with such constitution, powers and functions as may be specified in the law. Thus, it is the Constitution itself, which is empowering Parliament to provide by law for Constitution of Union Territory. Further, the Legislature as a body contemplated by Article 239A is a body, whether elected or partly nominated and partly elected. Thus, the Constitution provision itself contemplate creation of Legislature whether elected or partly nominated and partly elected. When the Constitution itself empowers the Parliament to frame law to create a body, which may be partly nominated and partly elected and Section 3 of the Act, 1963, which provide for thirty seats to be filled up by persons chosen by direct election and three seats by nominations made by the Central Government, we fail to see that how the law made by Parliament or nominations made by Central Government breaches the principles of federalism. The Constitution of Legislative body for Union Territory being entrusted to the Parliament by Constitution and there being no indication in the Constitutional provision or provisions of the Act, 1963 that said nomination has to be made with concurrence of Government of Union Territory of Puducherry, we fail to see any substance in the argument of Shri Kapil Sibal that by nominations made by Central Government, federal principles or principle of cooperative federalism has been violated. The concept of federalism itself envisages distribution of power between Union and States. It is further to be noticed that Union Territories are not States. These Union Territories, ordinarily, belong to the Union (i.e. the Central Government) and therefore they are called Union Territories. That is why they are governed under the administrative control of the President of India. That is the clear purport behind Article 239. However, to a limited extent, the power of the Union is diluted with respect to Puducherry vide Article 239A. At the same time, this constitutional provision, i.e. Article 239A. With regard to the Union Territory of Puducherry itself envisages the constitution of Legislative Council partly by nomination and partly by election. Further, specific authority to nominate in the Legislative Council has been conferred by law i.e. under Section 3 to the Central Government. Thus no breach of federal principles are made out and the submission on the basis of breach of federal principles in nomination by the Central Government is unfounded65. The above debates in the Constituent Assembly clearly indicate that Constitutional conventions were very much in the contemplation during the debates in the Constituent Assembly. Conventions were expected to grow from time to time and the President and Governors in their respective spheres were to be guided by those conventions68. The constitutional conventions are born and recognised in working of the Constitution. The purpose and object of constitutional convention is to ensure that the legal framework of the Constitution is operated in accordance with constitutional values and constitutional morality. The constitutional conventions always aims to achieve higher values and objectives enshrined in the Constitution. The conventions are not static but can change with the change in constitutional values and constitutional interpretations. No constitutional convention can be recognised or implemented which runs contrary to the expressed constitutional provisions or contrary to the underlined constitutional objectives and aims which Constitution sought to achieve83. We will take up the three questions which are to be posed for deciding the question. First is what are the. From the facts noticed above, although it is indicated that on several occasions on the recommendations of the Chief Minister/LG nominations were made by the Central Government, one relevant fact cannot be lost sight that recommendations made by CM/LG were readily accepted by the Central Government when the Government of Puducherry and the Central Government were of the same political party or were of allies. But the instance of year 1995 indicates that the recommendations made by Chief Minister were not followed and the nominations were made taking one name from Chief Ministers recommendation, one name from Puducherry Pradesh Congress Committee and one name at the instance of the Central Government itself which nominations, however, subsequently were cancelled. In the year 2001 recommendations made by Chief Minister and LG were not accepted and no nominations were made. Similarly, in the year 2011 recommendations were made by Chief Minister and LG but no nominations were made. The above facts does not indicate uniform precedent in making nominations by the Central Government84. Now, we come to the second test that is did the actors in the precedents believed that they were bound by the rules.The said test is not satisfied in the present case since more than one occasion There is material on records that the Central Government concluded that it is not bound by any rule that recommendations made by Chief Minister is to be accepted by the Central Government or recommendations of Chief Minister is a condition precedent for exercising power under sub-section (3) of Section (3). No uniform procedure was followed nor the Central Government was under the belief that it is bound under the Rule to accept the recommendations made by the Chief Minister. It is true that there is no inhibition in the Central Government considering the recommendations sent by Chief Minister or LG or ask for suitable names from Chief Minister/LG or even suggests suitable names to the Chief Minister/LG but the fact that the Central Government can consider the recommendations or call for names is not akin to saying that there was any precedent or rule that unless the names are recommended by Chief Minister the Central Government is incapacitated in exercising its powers under sub-section (3) of Section 3 of the Act, 1963. The instance where the Central Government readily accepted recommendations made by LG or Chief Minister which emanated from the Government belonging to the same political party cannot be said to be action of then Central Government by virtue of any rule or convention rather the acts have to be treated as convenient exercise of power. The Central Government can receive input from any quarter including the Chief Minister or LG for nomination87. The above judgment although was considering law made by the Parliament where in the present case we are concerned with the exercise of statutory power of the Central Government under sub-section (3) of Section 3 of the Act, 1963. In exercising the power under Section 3(3) no particular statutory procedure having been prescribed except the exercise of power as per Allocation of Business Rules and Transaction of Business Rules, 1961 nominations made cannot be held to be vitiated on the submission that a particular procedure which was followed in some earlier cases was not followed88. We do not find any established practice or convention to the fact that names for nominations to members of the Legislative Assembly has to emanate from Chief Minister and can be made by the Central Government only after concurrence by Chief Minister. Both the issues are answered accordingly90. We have perused the recommendations made in Paragraph No. 5 of the judgment of Justice M. Sundar. The recommendations contained in paragraph No. 5 are nothing but recommendations to the Parliament to frame legislation on various aspects as enumerated in the recommendation. We have, in the foregoing discussions, concluded that it is the Central Government, which is under Section 3(3) empowered to nominate members in the Legislative Assembly of Union Territory. The procedure and manner of taking decision by Central Government has already been regulated by Rules of Business framed by President in exercise of power under Article 77 of the Constitution of India. The Rules framed by President of India under Article 77(3) are applicable to all executive actions of the Central Government including Constitutional and Statutory functions.91. There being already Rules of Business for carrying out the functions by the Central Government as per Article 77(3) of the Constitution of India, we fail to see any justification for making recommendation in paragraph No. 5 of the impugned judgment. Furthermore, the power is to be exercised by Central Government and it is to be presumed that Central Government, in exercise of its power, shall be guided by objective and rational considerations. We, however, hasten to add that there is no inhibition in Central government or the Legislature to make Rules or a Statute for more convenient transaction of business regarding nominations. Recommendations to the Legislature and the high Constitution authorities are not made in a routine manner and we are of the view that High Court ought to have desisted for making any recommendations as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside92. One of the submissions, which has been pressed by Shri Kapil Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions of Act, 1963 refers to members of the Legislative Assembly. Section 11 provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression every member of the Legislative Assembly of the Union territory shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression all questions at any sitting of the Legislative Assembly, the expression all questions shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word one-third of the total number of members of the Assembly, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly.