The top court dismissed the appeals filed by a Congress MLA and Chief Whip of Congress party K K Lakshminarayanan and S Dhanalakshami against the Madras High Court's March 22 order upholding the nomination of the three MLAs and added that they can also exercise their vote in budget and no-confidence motion against the government.
Lt Governor Kiran Bedi had administered the oath of office to the three members, V Saminathan, K G Shankar and S Selvaganapathi, in her chamber on July 4, 2017 after the Centre issued a notification nominating them. But Speaker V Vaithilingam declined to recongise them as MLAs and had cancelled their nomination.
Challenging the Speakers' action, the three MLAs had moved the Madras High Court, which upheld their nomination.
"We uphold the impugned judgment of the Madras High Court.... In the result, the appeals are dismissed subject to the deletion of recommendations ...," a bench of justices A K Sikri, Ashok Bhushan and SA Abdul Nazeer said Thursday.
The HC had recommended that there be a law for clarity in the nomination procedure.
The apex court held that Article 239 of the Constitution provides that unless provided by law passed by Parliament, every Union Territory has to be administered by the President through an administrator to be appointed by him, with such designation as he may specify.
It said that no order of the President or central government was 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 Government of Union Territories Act, 1963, any function has been delegated, authorised or instructed to the administrator.
"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," it said.
The bench said that when the Constitution expressly provides that it is 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 of the Act, 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," it said.
The top court said that nomination of MLAs cannot be the business of the government of Puducherry, as law passed by Parliament provides for the constitution of legislative assembly of the Union Territory which also includes nomination.
"The section 3 (2) of the Government of Union Territories Act, provides that the total number of seats in the Puducherry Legislative Assembly 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," the court said.
It added that when nomination of MLAs has to be done by the Centre, then there is no occasion for consultation with the council of ministers or the Chief Minister by the administrator.
"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. 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," the bench said.
It said that there is no breach of principles of federalism as argued by the petitioners as 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.
The court said that there are no 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.
The Madras High Court had dismissed the pleas challenging the nominations made by the Central Government in exercise of power under Section 3(3) of the Government of Union Territories Act, 1963 to the Legislative Assembly of Union Territory of Puducherry.
"We thank the three MLAs for their forbearance as they had gone through many unpleasant situations, sometimes highly disrespectful, to finally achieve this judgment today," she said adding "in the end law has prevailed."
The issue had deepened the rift between Bedi and the Congress government, which had assailed her action as "unconstitutional" and contended that the Centre had "unilaterally" nominated the MLAs without consulting the territorial government.
The MLAs also welcomed the apex court order.
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