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OPINION: The selective assertion of State-like power by Puducherry

The recently concluded India Today conclave put the Chief Minister of one of the smallest territories of India in the limelight. The CM of Puducherry, Mr.V.Narayanasamy, made some bold political statements that took the large gathering of politicians, media persons, and intellects by surprise. Some such statements were largely sarcastic and filled the air with his grins and giggles. The understandably large auditorium was gushing with laughter when he made a few statements to mean that the problem with madam Kiran Bedi (Lt-Governor of Puducherry) was psychological as she was looking at things from the ‘police angle’; and that his photo-ops with Prime Minister Modi (in which both of them are seen smiling) in November could have ‘zero effect’ on their meeting.

Even as a few speakers were fawning, the main take-away in the Chief Minister’s speech was two-fold: firstly, that he was discriminated against by the Union NDA Government as he was from the Congress party; secondly, that there was inconsistent treatment of Puducherry as a Union Territory with a legislature. The former was largely a political question and does not have much to do with law. In fact, such political statements could largely be subjective judgments rather than being objective. However, the second statement has substantial legal ramifications which can affect the people and the polity of Puducherry in the long run. I was personally happy to see that most of his speech resonated well with the opinion I had earlier shared with TIJ. The crux of his largely legal argument was that Puducherry was a ‘State’ for all practical purposes as long as the legislature was in session.

His disappointment with Modi’s Government was not because Puducherry was treated like a ‘Union Territory without legislature’ but because of inconsistency in treatment – viz being treated like a ‘State’ when Puducherry wanted grants like Union Territory and being treated like a ‘Union Territory’ when sharing of tax receipts were sought like a ‘State’. He substantiated this by stating that for the purpose of GST, Puducherry was treated like a State but for the purpose of disbursement of ‘State funds’, it was treated like a ‘Union Territory’. On such hypocritical treatment by the Central Government, the Chief Minister lamented that ‘Puducherry was treated neither like a man nor like a woman’.

But is the Government of Puducherry not inconsistent regarding the same? Is Puducherry’s polity not hypocritical when it needs to act like a responsible ‘State’? In this article, I would move on to show how whenever considering Puducherry a ‘State’ will give the ruling dispensation assertive power, they consider themselves ‘State’ and whenever such consideration will make them more accountable and responsible, they consider themselves ‘Union Territory’ and fail to act as a ‘responsible State’.

Though successive Puducherry Governments have always exerted assertive power like ‘States’ under several statutes, last year when I filed a Writ Petition challenging the abolition of Puducherry ‘State’ Information Commission, the Puducherry Government filed an affidavit stating that it was only a ‘Union Territory’ but not a ‘State’ and therefore it was not empowered to establish the Commission under the Right To Information Act, 2005.

It is pertinent to note that unlike Union Territories which are directly administered by the President (Union Government), as Union Territory with legislature under Article 239A of the Constitution, there are several public authorities including Government Departments, educational institutions, Government of Puducherry undertakings and statutory institutions established, owned, controlled and substantially financed by the Government of Puducherry. My contention was that since these public authorities are not directly under the control of the Central Government, they must have ‘State Public Information officers’ appointed under the RTI Act under the appellate and supervisory jurisdiction of Puducherry State Information Commission. This was necessary in order to make the Government of Puducherry more accountable and responsible to the people who elect them. Since the Court had already made up its mind to not interfere with the merits of the issue as it dates back to 2007, it disposed off the matter by merely observing that ‘this is an aspect which has to be examined by the Central Government and it may take a call on the issue within a period of three months’.

The Right to Information Act has given citizens a powerful weapon to know what their Government is up to. Several Government fault lines have been identified and projected to the outside world by information collected under the RTI Act, 2005. However in my personal experience, I understand that Public Information Officers, who have been entrusted with the responsibility to provide information under the Act, find a way out to escape from divulging material that is self-incriminating. Some of them take the route of ‘exceptions’ provided under the Act and some others take the route of technicalities like mode of payment of information fee, the form of application etc. There are also cases in which the Information Officers say they do not possess information.

In order to provide remedy in such situations, the Act provides for institution of appeals and lodging of complaints by mandating the Central Government and the State Governments to establish the Central Information Commission and the State Information Commissions respectively. This is done so that the Information Officers do not escape their responsibility and ensure that the Act is implemented in letter and spirit.

The abolition of the Puducherry Information Commission is a severe blow to the ‘right to information’ vested with the people of Puducherry as the Puducherry Government can now, through its Public Information Officers, deny several incriminating information without any active check from the Information Commission. For several practical reasons, it is very difficult to approach the Central Information Commission and it has therefore given a much needed respite to the Puducherry Government to evade responsibilities under the RTI Act, 2005.

What Puducherry Government has done in similar situations over the years is apparently disapproving of what it did in the above Writ Petition. Whenever, some Parliamentary statute required ‘State Government’ to establish some authority, Puducherry Government has done it but only as long as it meant assertion of power without assuming any responsibility.

For instance, Sections 7 and 7A of the Industrial Disputes Act, 1947 provides that the appropriate Government may, by notification in the Official Gazette, constitute Labour Courts and Industrial Tribunals to adjudicate industrial disputes laid down under the Act. For this purpose, according to Section 2(a)(ii) ‘appropriate Government’ means ‘State Government’ in relation to any industrial dispute other than the ones listed under Section 2(a)(i). Under this provision, Puducherry Government has established Labour Court at Puducherry vide Government Order Ms. 34/84/LAB dated 10.04.1984.

Similarly, Section 9(b) of the Consumer Protection Act, 1986 provides that ‘there shall be established … a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the “State Government” in the State by notification’. Under this provision, the Puducherry Government established Puducherry State Consumer Commission in 1988. Further, Section 16 of the Act which speaks of ‘Composition of the State Commission’ lays down that the Commission ‘shall consist of (a) a person who is or has been a Judge of a High Court, appointed by the “State Government”, who shall be its President’. It is the Puducherry Government which appoints the President of the Puducherry State Consumer Commission till date under this provision.

If Puducherry is not a ‘State’ for the purpose of establishing Puducherry State Information Commission under the Right to Information Act, as a corollary it is also not entitled or empowered to establish a labour Court under the Industrial Disputes Act or the Puducherry State Consumer Commission under the Consumer Protection Act as shown above. However, while establishment of the Information Commission comes with the danger of being more responsible and accountable to the people, establishment of labour Court and Consumer Commission only manifests the ‘assertive power’ of the Government of Puducherry without any connected liability.

To show another example of appointment of public office like a ‘State Government’, recourse should be taken to the Code of Criminal Procedure, 1973. Under Section 24 (1) of the Code ‘For every High Court, ….the “State Government” shall…appoint a Public Prosecutor for conducting any prosecution, appeal or other proceeding on behalf of the…“State Government”.’ Section 24(2) similarly provides for appointment of Public Prosecutor and Additional Public Prosecutors by the “State Government” for every district. Under these provisions, the Puducherry Government has appointed Public Prosecutors in the High Court of Madras and in each of the 4 districts of Puducherry.

On the other hand, the Government of Puducherry is silent with respect to establishment of Lok Ayukta under Section 63 of the Lokpal and Lokayuktas Act, 2013. Section 63 of the Act provides as follows:

“Establishment of Lokayukta. – Every State shall establish a body to be known as the Lokayukta for the State, if not so established, constituted, or appointed, by a law made by the State legislature, to deal with complaints relating to corruption against certain public functionaries, within a period of one year from the date of commencement of this Act.”

This is a mandatory provision imposing a statutory duty upon the States to establish Lokayukta to deal with complaints relating to corruption against public functionaries in relation to the State. This provision should have been complied with by the State Governments within a period of one year from the date of commencement of the Act i.e., by 31.12.2014.

However, the Government of Puducherry has not established a Lokayukta even after the expiry of more than three years of the time period given to establish the same to deal with complaints of allegations pertaining to public functionaries including the Chief Minister of Puducherry, members of his council of ministers, the members of Puducherry legislative assembly, officers in the service of the Government of Puducherry and in the bodies established, controlled and substantially financed by laws of the Puducherry territorial assembly.

Though the Government of Puducherry has established similar statutory authorities under other statutes as shown above, it failed to establish Lok Ayukta by hiding behind the expression ‘State Government’ as it did with respect to establishment of State Information Commission. Since public functionaries in all other Union Territories are directly under the control of the Union Government, they are subjected to the jurisdiction of Lokpal under Section 3 of the Act. Similarly, in all States, the public functionaries of the State including their Chief Minister, Ministers and MLAs are subject to the jurisdiction Lok Ayukta under Section 63 of the Act. Puducherry is the only place whose public functionaries including its Chief Minister and MLAs will not be subjected either to jurisdiction of Lokpal or of Lok Ayukta if the Government hides behind the expression ‘State Government’. (The only other Union Territory with legislature, namely the ‘National Capital Territory of Delhi’ has established Lok Ayukta to receive complaints and investigate even its Chief Minister relating to allegations of corruption.)

Therefore, when Chief Minister Narayanasamy was complaining the Central Government of treating Puducherry with inconsistency, little did he acknowledge that his own Government at Puducherry was hypocritical and chose to exert its ‘power’ like a ‘State’ but did not want to be ‘responsible’ like a ‘State’ when law required it to be. Even as the Chief Minister wants to romanticize his powers under the Constitution, the Government of Puducherry Act, 1963 and under the various other statutes, he should be aware that his power also comes with responsibilities.

Nirmalkumar Mohandoss is Advocate at High Court of Madras. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.

V.Narayanasamy’s image from here.

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