# K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR

- **Citation:** [2018] 14 S.C.R. 689
- **Court:** Supreme Court of India
- **Decided:** 2018-12-06
- **Case number:** Civil Appeal No. 11887 of 2018
- **Bench:** A. K. Sikri, Ashok Bhushan, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-lakshminarayanan-v-union-of-india-anr-32697
- **Pages:** 66

## Headnote

Government of Union Territories Act, 1963:
s.3(3) - Nominations made by the Central Government in
exercise of power u/s. 3(3) to the Legislative Assembly of Union
Territory of Puducherry - Whether Central Government under
obligation to consult the Council of Ministers/Chief Minister of
Government of Union Territory of Puducherry and the nomination
by Central Government to be made only with the concurrence of
the Government of Puducherry - Whether there is a constitutional
convention to consult the Government of Puducherry, on the strength
of the fact that on six earlier occasions when the nominations were
made, the Central Government has consulted the Government of
Puducherry before making nominations - Held: For nomination by
Central Government, concurrence of Council of Ministers/Chief
Minister of Government of Union Territory of Puducherry not
required - There is no established practice or convention that names
for nominations to members of the Legislative Assembly has to
emanate from Chief Minister and can be made by Central
Government only after concurrence by Chief Minister - In exercising
the power u/s. 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.
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
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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 a

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K. LAKSHMINARAYANAN
v.
UNION OF INDIA & ANR.
(Civil Appeal No. 11887 of 2018)
DECEMBER 06, 2018
[A. K. SIKRI, ASHOK BHUSHAN AND
S. ABDUL NAZEER, JJ.]
Government of Union Territories Act, 1963:
s.3(3) - Nominations made by the Central Government in
exercise of power u/s. 3(3) to the Legislative Assembly of Union
Territory of Puducherry - Whether Central Government under
obligation to consult the Council of Ministers/Chief Minister of
Government of Union Territory of Puducherry and the nomination
by Central Government to be made only with the concurrence of
the Government of Puducherry - Whether there is a constitutional
convention to consult the Government of Puducherry, on the strength
of the fact that on six earlier occasions when the nominations were
made, the Central Government has consulted the Government of
Puducherry before making nominations - Held: For nomination by
Central Government, concurrence of Council of Ministers/Chief
Minister of Government of Union Territory of Puducherry not
required - There is no established practice or convention that names
for nominations to members of the Legislative Assembly has to
emanate from Chief Minister and can be made by Central
Government only after concurrence by Chief Minister - In exercising
the power u/s. 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.
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
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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.
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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
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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
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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
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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
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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]
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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
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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]
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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]
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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
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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
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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]
Case Law Reference
[1976] 2 SCR 809
referred to
Para 16
[1997] 4 Suppl. SCR 133
referred to
Para 19
[1973] Suppl. SCR 1
referred to
Para 39
[1978] 1 SCR 1
referred to
Para 41
[1994] 2 SCR 644
referred to
Para 43
[2006] 5 Suppl. SCR 1
referred to
Para 45
[2016] 1 SCR 1
referred to
Para 46
(2018) 8 SCC 501
referred to
Para 48
[1993] 2 Suppl. SCR 659
referred to
Para 63
[1971] Suppl. SCR 46
referred to
Para 69
[2009] 13 SCR 664
referred to
Para 85
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11887
of 2018.
From the Judgment and Order dated 22.03.2018 of the High
Court of Madras in W.P. (C) No. 16275 of 2017.
With
Civil Appeal No. 11888 of 2018.
Kapil Sibal, Ranjit Kumar, Sr. Advs., Imtiaz Ahmed, Ms. Naghma
Imtiaz, Antony R.Julian, Ms. Lubna Naaz, Vikramaditya Singh,
M/S. Equity Lex Associates, Ms. Anusha Nagarajan, Mrs. Pragya
Baghel, Ms. Ranjeeta Rohatgi, Abhishek Thakaral, Raghav Tankha,
Koshy John, Adit S. Pujari, M. Nizamuddin Pasha, M. Vaikunth, Thomas
Franklin Ceasar, S. Gowthaman, Ms. Shradha Deshmukh, B. V. Balaram
Das, V. G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, Advs.
for the appearing parties.
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR.
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
These two appeals have been filed against the common judgment
of Madras High Court dated 22.03.2018 by which the writ petitions filed
by the appellants questioning the nominations made by the Central
Government in exercise of power under Section 3(3) of the Government
of Union Territories Act, 1963 (hereinafter referred to as "Act, 1963"),
to the Legislative Assembly of Union Territory of Puducherry has been
dismissed.
2. The background facts leading to filing of the writ petitions giving
rise to these appeals are as follows:-
2.1
Part VIII of the Constitution of India dealing with the Union
Territories was amended by Constitution (Fourteenth
Amendment) Act, 1962 by inserting Article 239A, which
provides for "creation of local Legislatures or Council of
Ministers or both for certain Union Territories." Article
239A provided that Parliament, may by law, create for the
Union Territory of Pondicherry, 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. After the above
Constitutional amendment inserting Article 239A, the
Parliament enacted Government of Union Territories Act,
1963 to provide for Legislative Assembly and Council of
Ministers for certain Union Territories and for certain other
matters.
2.2
At the time of commencement of Act, 1963, there were
large number of Union Territories, which were to be
governed by the Act, 1963. Gradually, several Union
Territories were upgraded to the status of a State and as
on date, the definition of Union Territories under Section
2(h) defines "Union Territory" as the Union Territory of
Puducherry. Section 3 of the Act, 1963 provides for
Legislative Assemblies for Union territories and their
composition. According to Section 3(2), the total number
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of seats in the Legislative Assembly of the Union territory
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, not being persons in
the service of Government, to be members of the Legislative
Assembly of the Union territory.
2.3
Election for filling thirty seats in the Legislative Assembly
of Puducherry was held in the year 2016. Indian National
Congress, who bagged fifteen out of thirty seats with support
of DMK and one independent candidate has formed the
Government in Puducherry. Writ Petition (C) No. 16275
of 2017 as K. Lakshminarayanan Vs. Union of India &
Anr. was filed in the Madras High Court praying for a writ
of mandamus forbearing the respondents from in any
manner nominating or filling up the nominated seats of
Members for the Puducherry Legislative Assembly except
with the consultation and choice of the elected Council of
Ministers. The writ petition was filed on 27.06.2017. The
Government of India, Ministry of Home Affairs had issued
a notification on 23.06.2017 nominating Shri V. Saminathan,
Shri K.G. Shankar and Shri S. Selvaganabathy as members
of the Legislative Assembly of the Union Territory of
Puducherry. An application for amendment was filed in the
writ petition praying for quashing the notification dated
23.06.2017. Another Writ Petition (C) No. 18788 of
2017 - S. Dhanalakshmi Vs. Union of India & Ors. was
filed in the Madras High Court praying for following reliefs:-
"Writ of Certiorarified Mandamus calling for the records
on the file of the third respondent relating to the impugned
Notification bearing Ref. No. F.No.U-11012/1/2014UTL dated 23-06-2017 and quash the same and
consequently direct the respondents 1 to 3 to nominate
the members to the Puducherry Legislative Assembly
only with the consultation and choice of the elected
Council of Ministers and pass such further or other
orders and thus render justice".
2.4
On 13.11.2017, the Secretary of Puducherry Legislative
Assembly communicated the decision of the Speaker of
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR.
[ASHOK BHUSHAN, J.]
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the Legislative Assembly that the nominated members could
not be recognised as members of the Assembly, having been
appointed in contravention of the Constitution and the Act,
1963. The communication dated 13.11.2017 was challenged
by three nominated members by filing three separate writ
petitions being Writ Petition Nos. 29591, 29592 and 29593
of 2017. All the writ petitions, i.e. Writ Petition No. 16275
of 2017, Writ Petition No. 18788 of 2017 and Writ Petitions
No. 29591, 29592 and 29593 of 2017 were heard and
decided by Division Bench of Madras High Court vide its
judgment dated 22.03.2018. The Writ Petition Nos. 16275
of 2017 and 18788 of 2017 challenging the notification dated
23.06.2017 has been dismissed, whereas the Writ Petition
Nos. 29591, 29592 and 29593 have been allowed. Two
separate but concurring judgments have been delivered by
Division Bench of Madras High Court. Operative portion
of the judgment delivered by Justice M. Sundar, with which
judgment, Chief Justice expressed absolute agreement, was
to the following effect:-
"W.P. No. 16275 of 2017 filed by the Whip and W.P.
No. 18788 of 2017 filed by PIL petitioner are dismissed.
Writ petitions, being W.P. Nos. 29591 to 29593 of 2017
filed by nominated MLAs are allowed. Considering the
nature of the matter and in the light of the trajectory this
litigation has taken, there shall be no order as to costs.
Consequently, connected miscellaneous petitions are
closed."
2.5
Against the aforesaid Division Bench judgment of Madras
High Court dated 22.03.2018, only two appeals have been
filed, one by K. Lakshminarayanan and other by S.
Dhanalakshmi challenging the judgment of Division Bench
by which Writ Petition No. 16275 of 2017 has been
dismissed and another appeal has been filed against the
judgment of Division Bench in Writ Petition No. 18788 of
2017 by which writ petition was dismissed. In so far as
judgment of Division Bench in Writ Petitions Nos. 29591,
29592 and 29593 of 2017 filed by three nominated MLAs,
by which their writ petitions were allowed quashing the
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decision of the Speaker dated 23.11.2017, no appeals have
been filed.
3. We have heard Shri Kapil Sibal and Shri Salman Khurshid,
learned senior counsel appearing for the appellants. We have heard
Shri K.K. Venugopal, learned Attorney General for the Union of India.
Shri Ranjit Kumar, learned senior counsel has been heard for the
respondents.
4. Shri Kapil Sibal challenging the nominations made by the Central
Government has raised various submissions. Shri Sibal submits that the
Government of Puducherry has vital interest in the constitution of the
Assembly, since it enjoys the confidence of Legislative Assembly and
accountable to the people. The Government of Puducherry cannot be a
stranger in the nominations made to the Assembly. He submits that
nominations of the members of the Assembly must emanate from the
Government of Puducherry and should have concurrence of the
Government. It was open for the Central Government to adopt any fair
procedure for nominating the members. The nominees could have been
originated from Government of Puducherry. The President could have
asked the names from the Government of Puducherry. He submits that
let this Court decide on a valid procedure, which is to be adopted while
making nominations by Central Government in the Legislative Assembly
of Puducherry. He further submits that there has been at least six
occasions when elected Government of Puducherry was consulted before
nominating the members in the Legislative Assembly by the Central
Government. In the year 2001, when Lieutenant Governor without
consulting the Government of Puducherry forwarded the names for
nomination to the Assembly, objection was raised by the Government of
Puducherry and the proposed list of nominated members was referred
back to the Lieutenant Governor for lack of consultation with the elected
Government. He submits that earlier incidents when the Government of
Puducherry was consulted before nomination has taken shape of a
constitutional convention, which is nothing but a constitutional law to be
followed by all concerned. He submits that while making nominations
vide notification dated 23.06.2017, the above constitutional convention
has not been followed, which renders the nomination illegal and
unsustainable. He further submits that in the counter affidavit filed by
the Union of India before the High Court, it was stated that Lieutenant
Governor has not sent any nominations to the Central Government and
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR.
[ASHOK BHUSHAN, J.]
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Central Government on its own has made nominations under Section
3(3) of the Act, 1963. Shri Kapil Sibal submits that the expression "Central
Government" as occurring in Section 3(3) of the Act, 1963 has not been
correctly understood by the High Court. He submits that according to
the definition given under Section 3(8) of the General Clauses Act, 1897,
the Central Government means the President and include in relation to
the administration of a Union Territory, the administrator thereof. It is
submitted that the President has framed Rules of Business of the
Government of Puducherry, 1963, Rule 4 of which Rules is relevant for
the present case. It is submitted that as per the Business Rules, it is the
administrator, who was required to make nominations that too after
consultation of Council of Ministers. Shri Sibal refers to Rule 4(2) and
Rule 48 of the Business Rules to buttress his submission. It is submitted
that the nomination to Legislative Assembly is fully covered by expression
"remaining business of the Government" as occurring in Rule 4(2).
Therefore, Rule 4(2) read with Chapter IV of the Rules of Business,
cover the entire gamut of executive power exercisable by the President
under Article 239 of the Constitution. Since Section 3(3) of the Act,
1963 refers to "Central Government", thereby indicating exercise of
power in terms of Article 239 of the Constitution, Rule 4(2) read with
Chapter IV of the Rules of Business of the Government of Puducherry
would apply. Therefore, the power to nominate members under Section
3(3) of the Act, 1963 has to necessarily involve the administrator acting
in accordance with Chapter IV.
5. Shri Sibal further submits that in event interpretation is accepted
that the Government of Puducherry has no role to play in the nominations
of members to Legislative Assembly, it is de-establishing cooperative
federalism.