Judgment in Plain English

April 30th 2019

The Madurai Bench of the Madras High Court held that Puducherry’s Lieutenant Governor must work on the advice of the Council of Ministers and not run a parallel administration.

Puducherry is a Union Territory with a democratically-elected legislative assembly and a Centre appointed Lieutenant Governor. The Chief Minister and the Lieutenant Governor have both asserted power as Puducherry’s highest administrative authority. In January and June 2017, the Central Government issued communications to the Lieutenant Governor, elevating her powers. The Chief Minister’s Principal Secretary challenged these communications before the Madras High Court for vesting powers beyond the constitutional scheme. It was contended that the communications violate the the Government of Union Territories Act 1963, the Rules of Business of the Government of Pondicherry 1963 and the 2018 5-Bench Supreme Court ruling that the Chief Minister is the executive head of the National Capital Territory (Delhi).

In April 2019, the Madras High Court invoked the democratic and republic scheme of the Constitution. It held that:

1. The Lieutenant Governor has very limited administrative powers:

Articles 239A and 239B of the Constitution indicate the supremacy of Puducherry’s legislative body above the Lieutenant Governor. Article 239 of the Constitution provides for the President’s administration of Union Territories through the Lieutenant Governor, except where the Parliament has created laws for the administration of Union Territories. The Parliament inserted Article 239A in the Constitution to establish a legislative assembly and executive in Puducherry. This reduces the Lieutenant Governor’s administrative powers. Under Article 239B, Puducherry’s Lieutenant Governor does not have the powers to promulgate ordinances even when the legislative assembly is dissolved.

Thus, Puducherry is not a State but it has legislative powers similar to a State’s. The Lieutenant Governor must work on the advice of the Council of Ministers and not interfere in day-to-day administrative affairs or warranted policy decisions. Administrative officials must also abide by the Chief Minister’s and Council of Ministers’ decisions.

2. Differences between the Lieutenant Governor and Council of Ministers must be settled at the earliest:

The Lieutenant Governor may disagree with the Council of Ministers’ view on a fundamental issue regarding government action. However, the Lieutenant Governor cannot reject any Bill. The matter must be settled by referral to the President or the Central Government, as directed by the 1963 Rules of Business.

Further, the High Court held that the Council of Ministers must take decisions in financial matters. Occasionally, the Lieutenant Governor may have delegated powers under the Delegation of Financial Power Rules, or other Central Government Regulations. The Lieutenant Governor must consider public interest when exercising such general delegated financial powers.

Service conditions vest with the particular Minister, although orders are executed by the Lieutenant Governor. If the Lieutenant Governor’s assent is required, a difference of opinions must be resolved through constructive discussion with the Council of Minsters. If the difference persists, the matter must be referred to the President at the earliest. The President’s decision is final.

Under Section 44 of the 1963 Act, the Lieutenant Governor has the powers to determine whether a matter falls under her authority. The Court held that the use of the word ‘any’ in Section 44 does not mean the power to determine ‘everything’. The Lieutenant Governor must follow previous decisions.