The Supreme Court today asked the Puducherry Assembly speaker to allow the three nominated BJP leaders to function as MLAs and refused to stay the order of the Madras High Court upholding their nomination.
The top court said the issue of the Centre "unilaterally" appointing the three MLAs without the consultation of the elected government in the Union Territory requires "authoritative pronouncement".
A bench of justices A K Sikri and Ashok Bhushan agreed to hear the pleas of Congress leaders S Dhanalakshmi and K Lakshminarayanan, challenging the decision of the Centre to appoint the three MLAs.
It has also issued notices to the central and Puducherry governments.
The high court on March 22 upheld the nomination of BJP members V Saminathan, K G Shankar and S Selvaganapathy to the Assembly by the Centre and their swearing-in by Lt Governor Kiran Bedi on July 4 last year, over which the Congress government had protested.
It also held as invalid the speaker's order cancelling the nominations of the MLAs.
The apex court bench said, "The speaker of the Puducherry Assembly shall allow the nominated members to function as MLAs till the petitions are adjudicated."
It asked the Centre and the Puducherry government to file their affidavit on the appeal filed by the Congress leaders against the Madras High Court's order.
The top court said that during the Delhi versus Union of India Constitution bench hearing it was widely debated that Puducherry stands on a different footing than Delhi.
"Delhi has a special provision and powers, which no other Union Territory has," the bench said.
It said there are certain powers, which the administrator of a Union Territory exercises at his or her own discretion.
"The administrator is a representative of the central government in the Union Territory.
"The administrator is a delegatee of the Centre, which does not mean that the delegator cannot exercise power at its own discretion," the bench said.
The bench clarified that it is against the stay of the high court judgment by which nomination of the three members as MLAs was upheld.
During the hearing, Attorney General (AG) K K Venugopal, appearing for the Centre, said Puducherry is a territory of the Union of India and has no autonomy.
"It is the central government, which exercises control through its representative or administrator. The Centre can even ask neighbouring states to exercise control over the Union Territory (UT)," Venugopal said.
He said, "It is not a federal unit, which could function independent of the central government. It has no autonomy or autonomous powers".
The AG said that every UT shall be administrated through the President and its delegatee, who can be administrator or the lieutenant governor (L-G).
"L-G cannot make law on its own and it is the Parliament and Union of India which makes law for the Union Territory," Venugopal said adding that as far as services are concerned they have a special cadre of officers and not all India cadre.
"The officers are from separate services cadre like its Delhi, Andaman and Nicobar Islands Civil Service (DANICS) for Union Territories," the AG said.
The bench said that there are arguments from both sides and the issue needs "authoritative pronouncements".
At the outset, senior advocate Kapil Sibal, appearing for the three Congress leaders Dhanalakshmi and Lakshminarayanan, said, "We are under the federal structure of governance and their is a concept of co-operative federal structures."
"Despite the Constitutional scheme and there being an elected government in the Union Territory can the central government nominate members to the Assembly without consultation.
"That government is not consulted nor apprised of the appointment. They say that the elected government need not to be consulted," Sibal said.
He said that these are all constitutional issues and complicated questions that need to be adjudicated at the earliest.
To this, the bench said, "Yes, these are Constitutional issues but not that complicated".
Sibal continued that these are questions where no discussions have taken place earlier and there needs to be an authoritative pronouncement on the issues, and the matter should dealt by a Constitution bench.
"The high court has said that the power has been exercised by Centre under Article 77 of the Constitution which means it cannot be a decision of UT government," Sibal said, adding that this is even against the convention.
He said that if the central government takes arbitrary decisions like this, then it is bound to have reactions like this where the speaker would not allow them to enter house.
"It is government of the day which has power and confidence of the house and needs to be consulted before the nominations are being made," he said.
The bench said that prima facie it appears that rules does not say anything despite you having an arguments of federal structure and co-operative federalism.
"Article 239A of the Constitution says that Puducherry will have Assembly which will be partly elected and partly nominated. This means partly nominated members has to be nominated by Centre", it said.
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