K. Lakshminarayanan vs Union of India & Anr.

s.3(3) – Nomination of members of the Legislative Assembly of Union territory by Central Government – Expression “Central Government” in s.3(3) – Whether the expression “Central Government” means an Administrator, who has to exercise the power of nomination that too on the aid and advise of the Council of Ministers of the Union Territory of Puducherry – Held: Definition of Central Government, as occurring in s.3(3) has to be read as to mean the President and not the administrator – Definition of Central Government means the President is not controlled by the second expression “and shall include the administrator” – Ordinary or popular meaning of the word “the President” occurring in s.3(8)(b) of the 1897 Act 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 – In the definition of Central Government, an administrator shall be read when he has been authorised or delegated a particular function under the circumstances – General Clauses Act, 1897 – s. 3(8).

s.3(3) – Nomination in the Legislative Assembly of the Puducherry, whether a business of the Government to be transacted in accordance with r.4(2) rw r.48 of the 1963 Rules – Held: It is not the Business of the Government of Puducherry – It is a business of Central Government as per s.3(3), 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 – Rules of Business of the Government of Puducherry, 1963. s.3(3) – Nomination by Central Government in the Legislative Assembly without concurrence of Government of Union Territory of Puducherry – If violative of principles of Federalism and cooperative Federalism – Held:Art.239A with regard to the Union Territory of Puducherry itself envisages the constitution of Legislative Council partly by nomination and partly by election – Specific authority to nominate in the Legislative Council has been conferred by law u/s. 3 to the Central Government – Thus, there is no breach of federal principles.

s.3(3) – Recommendations made by the High Court in so far as recommendations made in paragraph 5(iv) of the impugned judgment – Sustainability of – Held: Recommendations contained in paragraph No. 5 are nothing but recommendations to the Parliament to frame legislation on various aspects as enumerated in the recommendation – There being already Rules of Business for carrying out the functions by the Central Government as per Article 77(3) of the Constitution, there is no justification for making recommendation in paragraph No. 5 of the impugned judgment – Thus, recommendations are set aside.

s. 12 – Nominated members in the Legislative Assembly – Right to vote in the matter of budget and no-confidence motion against the Government – Held: 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, while interpreting s. 12(1) the nominated members cannot be excluded – Thus, the statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government.

Dismissing the appeals, the Court

HELD: 1.1 The Government of Union Territories Act, 1963 does not define the expression “Central Government”. The provision of General Clauses Act, 1897 had to be looked into to find out the definition of the expression “Central Government”. Section 3(8) of the 1897 Act defines the expression “Central Government”. In Section 3(8)(b) Central Government has been defined as to “mean the President”. The next phrase used after the semi-colon is “and shall include”. The definition of Central Government given in Section 3(8) is a restrictive and exhaustive definition. When the definition uses the word “mean the President”, the clear intention is that Central Government is the President, the next phrase “and shall include in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under Article

239 of the Constitution” has been added with a purpose and object. Article 239 of the Constitution provide that save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. As per definition of Section 3(8)(b)(iii) administrator shall include in the definition of Central Government when in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. Thus, the administrator will be Central Government when he acts within the scope of the authority given to him under Article 239. Under Article 239, Rules of Business have been framed. Executive functions of the administrator as contemplated by Rule 4(2) read with Rule 48 shall include a variety of the executive functions, which he is authorised to discharge. A perusal of the Rules of Business, which have been framed under Article 239 as well as Section 46 of the Act, 1963 does not expressly indicate that in so far as power of nomination to be exercised by the Central government under Section 3(3), the administrator or Government of Puducherry has been authorised or delegated any function. No order of the President or Central Government has been brought on the record on the basis of which it can be concluded that with regard to right of a nomination to be exercised by the Central Government under Section 3(3) of Act, 1963, any function has been delegated, authorised or instructed to the administrator. The definition of Central Government given under Section 3(8)(b)(iii), which mean the President cannot be given a go bye to rely on the next expression “shall include” the administrator. The context of subject has to be looked into while finding out as to whether in context of Section 3(3), the Central government shall mean the President or the administrator. [Para 15][711-B-E, G-H; 712-A-B]

1.2 The definition clause in Section 3 of the General Clauses Act, 1897 begins with the expression “In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context”. Thus, the subject or context has to be looked into to apply the definition given in Section 3(8)(b) of the 1897 Act. [Para 18][713-G-H]

1.3 The definition of Central Government 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) of the 1897 Act 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. In the definition of Central Government, an administrator shall be read when he has been authorised or delegated a particular function under the circumstances. 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, the definition of Central Government, as occurring in Section 3(3) has to be read as to mean the President and not the administrator. [Para 21][717-C-E]

Jagir Singh and Others v. State of Bihar and Ors. (1976)

2 SCC 942 : [1976] 2 SCR 809 ; Black Diamond Beverages and Anr v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Others (1998)

1 SCC 458 : [1997] 4 Suppl. SCR 133 – referred to.

2.1 The business of the Government as occurring in Rule

4 of the Rules of Business of the Government of Puducherry, 1963 has to be business which under any law is to be performed by the Government of Puducherry. Article 239A 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 law. [Para 27][718-G-H]

2.2 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 cannot 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. Thus, it cannot be said 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, 1963.[Para 28][719-A-E]

2.3 As per Government of India (Transaction of Business) Rules, 1961 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 Minister. The 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. [Paras 32-33][721-D-F]

3. The principle of federalism as adopted in the Constitution of India are well settled. 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, it cannot be seen 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, it cannot be said 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 unfounded. [Para 54][734-B-H; 735-A-D]

Special Reference No.1 of 1964 AIR 1965 SC 745 ; Kesavananda Bharati v. State of Kerala (1973) 4 SCC

225 : [1973] Suppl. SCR 1 ; State of Rajasthan v. Union of India, (1977) 3 SCC 592 : [1978] 1 SCR 1 ; S.R. Bommai v. Union of India, (1994) 3 SCC 1 : [1994]

2 SCR 644 ; Kuldip Nayar v. Union of India, (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1 ; Jindal Stainless Limited and Another v. State of Haryana and Others, (2017) 12 SCC 1 : [2016] 1 SCR 1 ; State (NCT of Delhi) v. Union of India & Another, (2018) 8 SCC 501 ; Supreme Court Advocates-On-Record Association and Others v. Union of India (1993) 4 SCC 441: [1993] 2 Suppl. SCR

659 – referred to.

4.1 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 achieve.[Para 68][739-D-E]

4.2 As regards the test, ‘what are the precedents’, 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 Minister’s 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 2011 recommendations were made by Chief Minister and LG but no nominations were made. The said facts does not indicate uniform precedent in making nominations by the Central Government. [Para 83][748-C-E]

4.3 The second test that is “did the actors in the precedents believed that they were bound by the rules”, is not satisfied 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 Section 3(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 nomination. [Para 84][748-F-H; 749-A-C]

4.4 In the instant case, the concern is 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 followed. No established practice or convention is found 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. [Para 87-88][750-C-E]

U.N.R. Rao v. Smt. Indira Gandhi (1971) 2 SCC 63 : [1971] Suppl. SCR 46 ; Supreme Court Advocates-OnRecord Association and Others v. Union of India (1993)

4 SCC 441 : [1993] 2 Suppl. SCR 659 ; Consumer Education and Research Society v. Union of India and others, (2009) 9 SCC 648 : [2009] 13 SCR 664 – referred to.

“Law of the Constitution” by Professor A.V. Dicey; “Modern Constitutions” by Sir Kenneth Wheare – referred to.

5.1 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. It has been 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. 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. [Para 90][751-A-C]

5.2 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, there is no 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. However, 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 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. Thus, not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 are set aside. [Para 91][751-G-H; 752-A-D]

6.1 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 members. [Para 92][752-F-H; 753-A-B]

6.2 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, while interpreting Section 12(1) the nominated members cannot be excluded. 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. The words to provision of Section 12 are clear and express. Further, subsection(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. 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 that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The impugned judgment of the High Court is upheld except the directions in paragraph 5 which are deleted. [Paras 94, 95] [754-A-G]