Asymmetric federalism means federalism based on unequal powers and relationships in political, administrative and fiscal arrangements between the units constituting a federation.
Asymmetric federalism means different constituent states possess different powers. One or more of the states has considerably more independence than the others, though they have the same constitutional status.
- Union Territory.
- 5th and 6th Schedule.
Union Territory (Part VIII, Article 239-241)
A “Union Territory” may be defined as a centrally administered area governed by the President through an Administrator. Thus status of a Union Territory under the Constitution is not the same as that of a State. The Union Executive and Parliament exercise supreme authority over a Union Territory. However, Parliament may by law provide a change in the status of these Territories.
Difference in status of State and UT:
|It is an independent unit which is run by the state legislature which either is unicameral or bicameral||It is not an independent unit but is run by the administrators appointed by the President of India|
|Centre’s relationship is Federal||Centre’s relationship is Unitary.|
|The Governor is the constitutional head of the state.||The President is the executive head of the union territory|
|States have their own set of powers||Union territories are not self-governing|
Reasons for creation of Union Territories
The union territories have been created for a variety of reasons. These are mentioned below:
- Political and administrative considerations – Delhi and Chandigarh.
- Cultural distinctiveness – Puducherry, Dadra and Nagar Haveli, and Daman and Diu.
- Strategic Importance – Andaman and Nicobar Islands and Lakshadweep.
- Special treatment and care of the backward and tribal people – Mizoram, Manipur, Tripura, and Arunachal Pradesh which later became states.
Administration of Union Territories (Article 239):
- Article 239(1) provides that every Union Territory shall be administered by the President as he thinks fit, through administrator to be appointed by him with such designation as he may specify”. Parliament may by law provide otherwise.
- Clause (2) of Article 239 says that a Governor of a State may also appointed, by the President, as the administrator of an adjoining Union Territory, where a Governor is so appointed as the administrator for the Union Territory, he shall exercise his functions as such administrator independently of his Council of Ministers.
- The administrator appointed under Clause (1) has such powers as be conferred on him by the President. But he does not have the power do anything in a Union Territory which the President can do.
Creation of Legislature or Council of Ministers for Pondicherry:
- Article 239-A provides that Parliament may, by law, create for the Union Pondicherry, a Legislature, or a Council of Ministers or both. The law so created, may be an elected or partly nominated and partly elected. Such law shall determine the constitution, powers and functions of the legislature or the Council of Ministers, so created. Any such law shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.
- Article 239-A was inserted by the Constitution (Fourteenth amendment) Act, 1962.
Power of Administrator to Promulgate Ordinances (Article 239-B):
This article Confers on the Administrator of the Union Territory of Pondicherry, power to promulgate Ordinances when –
- The Legislature of the Union Territory of Pondicherry is not in Session and
- The Administrator is satisfied that circumstances exist which render it necessary for him to take immediate action.
However, no such Ordinance shall be promulgated by the Administrator without the prior instructions from the President in that behalf. Further that administrator shall not promulgate an Ordinance when the Legislature is either dissolved or suspended on account of any action taken under any such law as is referred to in Article 239-A (1).
Powers and sources of LG of Puducherry
- Discretion: Section 44 of the Union Territories Act, 1963, allows the LG to “act in his discretion” in the matter of law making, even though the Council of Ministers has the task of aiding and advising him. In case of a difference of opinion between the LG and his Ministers on any matter, the Administrator is bound to refer it to the President for a decision and act according to the decision given by the President. However, the Administrator can also claim that the matter is urgent and take immediate action as he deems necessary.
- Mandatory Prior sanction: Under Section 22 of the Act, prior sanction of the Administrator is required for certain legislative proposals. These include Bills or amendments that the Council of Ministers intends to move in the Legislative Assembly, and which deal with the “constitution and organisation of the court of the Judicial Commissioner”, and “jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or the Concurrent List”.
- Obligatory provisions: Section 23 of the Act also makes it obligatory on the part of the UT government to seek the “recommendation” of the LG before moving a Bill or an amendment to provide for “the imposition, abolition, remission, alteration or regulation of any tax”,
- Regulatory powers: Under Rule 47, which deals with persons serving in the UT government, the Administrator exercises powers regulating the conditions of service of such persons in consultation with the Chief Minister. In case the LG has a difference of opinion with the Chief Minister, he can refer the matter to the central government for the decision of the President.
- Veto powers: Once the Assembly has passed a Bill, the LG can either grant or withhold his assent; or reserve it for the consideration of the President. He can also send it back to the Assembly for reconsideration.
Power of President to make Regulations Territories (Article 240):
- Clause (1) of Article 240 empowers the President to make regulation for the peace progress and good government of the Union Territory of the Andaman & Nicobar Islands, Lakshadweep, Dadra and Nagar Havel However, if a Legislature for the Union Territory of Pondicherry Daman & Diu, and Pondicherry.
- However, if the legislature of Pondicherry is created under Article 239-A, the President shall, not make any regulations under Article 240(1) for that Union Territory. But during the period when Legislature is dissolved or suspended, the President may make regulation.
- Clause (2) of Article 240 provides that regulations made by the President for that Territory,” shall have the same force and effect as an Act of Parliament. The regulations may repeal or amend any law made by Parliament under its powers conferred by Articles 245 and 246.
Special Provision with respect to Delhi (Article 239 AA & 239 AB):
- Clause (1) of Article 239-AA declares that the Union Territory of Delhi shall be called the National Capital Territory of Delhi, to be referred to as the National Capital Territory (NCT). The Administrator to be appointed for Delhi under Article 239 shall be designated as the Lieutenant Governor.
Creation of Legislative Assembly for NCT [Article 239-AA (2) & (3)]:
- There shall be a Legislative Assembly for the NCT and the seats in such Assembly shall be filled by members chosen by election from territorial constituencies in the NCT.
- Parliament, by law, shall regulate the total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the NCT into territorial constituencies, the basis of such division, and all other matters relating to the functioning of the Assembly.
- The provisions of Articles 324 to 327 and 329 relating to Superintendence, direction and control of election, shall apply in relation to the NCT and its Assembly.
- The Legislative Assembly of the NCT shall have power to make laws for the whole or any part of its Territory with respect to any of the matters enumerated in the State List or Current List, except the matters with respect to Police, Public order and Land.
- However, the powers of Parliament to make laws with respect to any Union Territory or any part remains unaffected. If any of a law made by the Legislative Assembly w.r.t any matter is repugnant to any provision of a law made by Parliament w.r.t. that matter, passed before or after the law made by the Assembly, such law, shall be declared void.
- However, if any such law made by the Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the NCT. But, if Parliament makes any law with respect to the matter subsequent to the law made by the Assembly, the Parliamentary law will prevail.
Creation of Council of Ministers for N.C.T. [Article 239-AA (4)] :
- Clause (4) of Article 239-AA provides that there shall be a Council of minister with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions
- The Council of Ministers of the NCT shall consist of not more than ten percent of the total number of members in the Legislative Assembly.
- Clause (4) of Article 239-AA says that in the case of difference between the Lieutenant Governor and his Ministers on any matter. Lieutenant Governor shall refer it to the President for decision and act according to the decision given by the President.
- During the pendency of the matter with the President, the Lieutenant Governor may take such action or give such direction as he deems necessary if the matter is urgent and he is of the opinion that it is necessary for him to take immediate action.
- Constitution Bench of the Supreme Court in NCT of Delhi v. Lt. Governor Delhi, held that Article 239-AA. was 18 que provision and gave the Ltd. Governor more powers and authority, in comparison to other centrally administered territories.
Appointment of the Chief Minister and other Ministers:
- Clause (5) of Article 239-AA provides that the Chief Minister shall be appointed by the President and the other Ministers shall be appointed the President on the advice of the Chief Minister.
- The Ministers shall office during the pleasure of the President.
- Clause (6) provides that the Council of Ministers shall be responsible to the Legislative Assembly. Parliament is empowered to make law for giving effect to or supplementing the provisions contained in Article 239-AA.
- Any such law, so made, shall not be deemed to be an amendment of Constitution for the purposes of Article 368.
Ordinance-making Power [Article 239-AA (8)] :
- Clause (8) of Article 239-AA confers on the Lieutenant Governor of the NCT, power to promulgate Ordinances during the recess of the Assembly and when the circumstances so require. In this respect the provisions of Artic 239-B would be applicable to NCT as they apply to the Union Territory of Pondicherry.
Failure of Constitutional Machinery in NCT (Article 239-AB)
Article 239-AB contains provisions similar to those contained in Article 356 in respect of a Proclamation declaring the breakdown of the constitutional machinery in the States. Article 239-AB provides that if the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-
- That a situation has arisen in which the administration of the NCT cannot be carried on in accordance with the provisions of Article 239-AA or of any law made in pursuance of that Article; or
- That for the proper administration of the NCT it is necessary or expedient so to do, the President may by order-
- Suspend the operation of any provision of Article 239-AA or all or any of the provisions of any law made in pursuance that Article for such period and subject to such conditions a may be specified in such law, and
- make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the NCT in accordance with the provisions of Article 239 Article 239-AA.
Comparison with Powers of LG of Delhi and Puducherry
|Power of LG of Delhi||Power of LG of Puducherry|
|The LG of Delhi has “Executive Functions” that allow him to exercise his powers in matters connected to public order, police and land “in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution”.||The LG of Puducherry has no such “Executive Functions or powers”. Puducherry legislative assembly deals with all these matters.|
|LG of Delhi is guided by the Government of National Capital Territory of Delhi Act, 1991, the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, and Union Territories Act, 1963. Thus the LG of Delhi enjoys greater powers than the LG of Puducherry.||LG of Puducherry is guided mostly by the Government of Union Territories Act, 1963 and provisions under it. Thus, it’s power are limited.|
|Article 239AA imposes several restrictions on the legislature of Delhi.||No such restrictions had been imposed explicitly in the case of Puducherry under Article 239A.|
|Under the constitutional scheme, the Delhi Assembly has the power to legislate on all subjects except law and order and land.||The Puducherry Assembly can legislate on any issue under the Concurrent and State Lists|
Tussle between Government of Delhi and Central Government
Context: The Constitution Bench of the Supreme Court in Government of NCT of Delhi vs. Union of India (2018) said: “The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.
Constitutional and Legal Scheme for the administration of Delhi:
- Article 239 says Administrator can act as he thinks fit and UT Act 1963 also says administrative discretion is final.
- Article 239 AA (7)(8), says that Parliament has power to change the provisions of UT.
- Article 239 AB says the President can suspend any provision relating to the Council of Minister.
- Section 49 of the NCT Act says the CM and his Council of Ministers shall be under the general control of the President. This has disturbed the delicate balance between the central and Delhi government.
Due to the co-existence of Article 239 and 239AA, there is a jurisdictional conflict between the government of NCT and the Union Government and its representative, the Lieutenant Governor. According to the Union government, New Delhi being a Union Territory Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers. However, the state government of Delhi held that the Article 239AA of the Constitution bestows special status to Delhi of having its own legislatively elected government.
Issues between these two Governments:
- The Delhi government has appointed the public prosecutors for conducting the Delhi riot cases in the High Court. However, the Lieutenant Governor (LG) has stalled this decision, by referring it to the President under provision to Article 239AA (4).
Demand for Statehood by Delhi Government
Arguments in favour of statehood:
- The government also has no say in the issues pertaining to recruitment and conditions of service of officials of IAS, clerks etc. Also, present Delhi government has accused the centre to be meddling in its work and putting barricade through LG.
- Delhi Development Authority (DDA): The Delhi government has no say over the affairs of DDA. This hinders the effective allocation, use of land and implementing welfare schemes.
- Police: Due to the absence of control over the police force, the Delhi government faces problem in proper maintenance of law and order in the state.
- Municipal Corporation of Delhi: Government of Delhi has no control over the MCD. The government is of the opinion that it hinders in implementing development measures.
- Role of LG: The role and power of LG and Delhi government’s Council of Ministers has always been an area of contestation. The LG has often been accused of delays and disruptions in the work of the elected government.
Arguments against the Statehood:
- Being the national capital, Delhi hosts various critical infrastructures such as parliament, presidential estates, and embassies. Maintenance of these is extremely important and cannot be handed over to a different entity.
- Granting statehood might lead to various administrative problems especially in law and order which would be detrimental for the national capital.
- Quality of governance might decline due to the impact on finances.
- Security concerns: Security of embassies, parliaments. Further, there is the issue of safety and security of visiting dignitaries from different countries and also head of states. The responsibility of ensuring security to them lies on Centre and state cannot be entrusted with it.
- Control over land is required especially in areas with central government institutions, embassies.
- Appointment of Chief Secretary by the Delhi Government was Rejected by Lt Governor. Transaction of Business Rules states that proposals of Delhi Government have to be submitted to the Governor. But nowhere it is written that Lt Governor can reject or cancel it.
- Case of Sending back Bill by Home Ministry: Bill passed by Delhi legislative assembly was sent back and the ground was it requires sanction of Home Ministry. However, Transaction of Business Rules provides for this, but only when a bill is reserved for President Assent under Article 239 AA (3).
Amendment to NCT of Delhi Act, 2021
Impact of such amendment:
- The basic function of the legislature is to hold the executive accountable, how it will be possible if they can’t even discuss things freely in the house.
- The committee who works freely without any interference of the political party will also get impacted.
- Discretionary Power of the LT Governor is a critical issue. SC directives on his power is mentioned below:
- “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’.”
- “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor. “The Supreme Court says, “Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has powers to legislate.”
- The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4). But this proviso cannot totally override the executive decisions of the State government.
Jammu Kashmir as UT
Jammu and Kashmir Reorganisation Act, 2019:
- Application of provisions on elected legislatures: The Act provides that Article 239A of the Constitution, which is applicable to the union territory of Puducherry, shall also apply to the union territory of J&K. Article 239A provides for the constitution of a union territory of Puducherry with: (i) a legislature, which may be elected, or partly nominated and partly elected, or (ii) a Council of Minister.
- The Act states that in addition to Article 239A, any other provision of the Constitution which refers to elected members of a legislative assembly of a state and is also applicable to the union territory of Puducherry, will apply to the union territory of J&K.
- Section 55 of the Act says: The Lieutenant Governor shall make rules on the advice of the Council of Ministers.
- For the allocation of business to the Ministers;
- For the more convenient transaction of business with the Ministers including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.
This means that the recommendation of the council of ministers is binding when framing rules dealing with procedures of power-sharing between the LG and the elected representatives of J&K UT.
- Role of Lieutenant Governor:
- The LG’s executive powers will include police, public order, All India Services, and anti-corruption, suggesting that the Chief Minister or the Council of Ministers will have no input in how they are run.
- Before issuing any orders, proposals or matters affecting or likely to affect the peace and tranquillity of the UT or the interests of any minority community, the Scheduled Castes, Scheduled Tribes, or the Backward Classes “shall essentially be submitted to the Lieutenant Governor through the Chief Secretary, under intimation to the Chief Minister”.
- The “decision of the Lieutenant Governor shall be considered to have been accepted by the Council of Ministers” if there is a disagreement between the LG and a Minister and no agreement can be reached after a month.
- The total seats in the assembly rose to 114 seats, out of which 24 seats are designated for areas that fall under Pakistan Administered Kashmir. Out of the remaining 90 seats, 43 seats are in Jammu division and 47 seats are in the Kashmir division.