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Right to nominate Puducherry MLAs by L-G under judicial scrutiny

Any major decision taken in UT Assembly will be subject to final orders on a batch of PILs in Madras HC; one Congress MLA, 3 nominated MLAs file separate pleas

Published: 23rd November 2017 03:08 AM  |   Last Updated: 23rd November 2017 08:44 AM   |  A+A-

By Express News Service

CHENNAI: ANY major decision taken in the Puducherry Assembly will be subject to the outcome of orders to be passed on a batch of PILs challenging the nomination of three MLAs and the provisions that enable the Lt Governor to do so, the first bench of the Madras High Court said on Wednesday.
The bench of Chief Justice Indira Banerjee and Justice M Sundar made the observation while passing interim orders on petitions questioning the validity of the provisions, which enabled Puducherry Lt Governor Kiran Bedi to nominate three persons -- V. Saminathan and K G Shankar, president and treasurer of Puducherry unit of BJP and S Selvaganapathy, correspondent of Vivekananda Matriculation School at Lawspet -- as members of the Puducherry Assembly.

The other two PILs are from Congress MLA Lakshmi Narayanan and the three nominated MLAs.
While Narayanan sought to stay the operation of the nomination order of Bedi, the MLAs challenged the order of the Assembly Speaker preventing them from entering the Assembly, respectively.
The Assembly session is scheduled to begin from Thursday (November 23).

The petitioner contended that the nomination notification suffered serious constitutional infirmity. When the enabling provision of 3 of General Clauses Act itself was sought to be declared as unconstitutional, the impugned notification issued in exercise of the power conferred by the said provision also deserved to be sought as unconstitutional. In the event of the enabling provision being declared as unconstitutional, then the impugned notification has no legs to stand on its own and has to necessarily fall as a consequence, petitioner said.

It is worth mentioning that the nominating authority under the impugned statutory provision to ‘nominate’ members for the Legislative Assembly for the Union Territory of Puducherry is the central government.
Under Sec 3 (8) of the Act, the term central government refers only to the Administrator thereof acting within the scope of the authority given to him/her under Article 239 of the Constitution. Though the Union Territories are centrally administered under the provisions of Article 239, they do not become merged with the central government and they form part of no State and yet are the Territories of the Union. Thus a conjoint reading of Sec. 3(8) of the Act and Article 239 of Constitution would make it clear that the notification suffered serious jurisdictional error.

When the provision specifically vests the power only with the administrator, the secretary and joint secretary of Union Home Ministry cannot usurp the same, petitioner contended and sought to declare the enabling provision of the Act and the notification dated June 23 last of the Union Home Ministry, as unconstitutional and ultra vires. Her interim prayer is to stay their operation.

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