Union Territories and Special Areas Notes

Union Territories and Special Areas

Introduction

• The 7th Constitutional Amendment Act (1956) and the States Re-organization Act (1956) established 'Union Territories' in 1956. (1956).
• Some of these union territories have been elevated to statehood, such as Himachal Pradesh, Manipur, Tripura, Mizoram, Arunachal Pradesh, and Goa, which are now states.

There are currently eight Union Territories, 

• Andaman and Nicobar Islands
• Chandigarh
• Dadra and Nagar Haveli and Daman and Diu
• National Capital Territory of Delhi
• Jammu and Kashmir
• Lakshadweep
• Ladakh
• Puducherry

Union territories were established for a variety of reasons, including

• Delhi and Chandigarh are being considered for political and administrative reasons.
• Puducherry, Dadra and Nagar Haveli, and Daman and Diu are culturally distinct.
• Andaman and Nicobar Islands and Lakshadweep are strategic islands.
• Mizoram, Manipur, Tripura, and Arunachal Pradesh, which later became states, received special treatment and care for backward and tribal people.
• Articles 239–241 of Part VIII of the Constitution deal with union territories, and their administrative systems are not uniform.
• The President administers each union territory through an administrator appointed by him.
• The administrator of a union territory is a representative of the central government, not the head of state, as a governor is.
• The President may also appoint the governor of a state to be the administrator of a union territory that borders it.
• Some UTs do not have administrators; instead, they are directly governed by the president.

Parliamentary Legislative Power

• The Parliament has the authority to enact legislation on any subject from the three lists (including the State List) for union territories.
• The President has the authority to issue regulations to ensure the peace, progress, and good governance of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, and Daman and Diu.
• A regulation issued by the President has the same force and effect as a parliamentary act.
• A high court for a union territory can be established by Parliament.

Delhi's Constitutional Provisions

• Art 239 - The President shall administer the Union Territory through an Administrator to be appointed by the President.
• Article 239A authorises the establishment of local legislatures, councils of ministers, or both in certain Union Territories.
• The 69th Constitutional Amendment Act, of 1991, added Article 239AA to the Indian Constitution. It states that the Union Territory of Delhi will be known as the National Capital Territory of Delhi and that the Administrator appointed under Article 239 will be known as the Lieutenant Governor.
• The National Capital Territory will have a Legislative Assembly (NCT).
• The Assembly shall pass laws on the subjects specified in the state list (Except matters of Public order, Police and land)
• If any law made by the legislative assembly concerning any matter is repugnant to any provision of law made by parliament concerning that matter, the provision of law made by Parliament shall prevail, and the law made by the legislative assembly shall be void to the extent of repugnancy.
• If a law passed by the Legislative Assembly is preserved for consideration by the President and receives his assent, it takes precedence in the NCT; however, parliament can pass laws supplementing, modifying, or repealing laws passed by the Legislative Assembly.
• There shall be a Council of Ministers, consisting of not more than one-tenth of the total Assembly members, with Chief Ministers at its apex, to assist and advise the Lieutenant Governor in the discharge of his duties.
• In the event of a disagreement between the Council of Ministers and the Lieutenant Governor, the Lieutenant Governor shall refer the matter to the President for his decision and shall act in accordance with the President's instructions.

Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021

• The Government of National Capital Territory (GNCT) of Delhi (Amendment) Act, 2021 came into force.
• Section 44 of the 1991 GNCT Act deals with the conduct of business and there is no structural mechanism for effective time-bound implementation of the said section.
• Section 44 of the 1991 Act says that all executive actions of the L-G, whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the LG.
• Further, there is no clarity as to what proposal or matters are required to be submitted to Lieutenant Governor before issuing an order thereon.

Key Highlights of the Act 

• It amended Sections 21, 24, 33 and 44 of the GNCT of Delhi Act, 1991
• According to the legislation, the "government" in Delhi means the "Lieutenant Governor."
•  The city government will now mandatorily have to take the opinion of the L-G before taking any executive action.
• The Act defines the responsibilities of the elected government and the L-G along with the “constitutional scheme of governance of the NCT” interpreted by the Supreme Court in recent judgements regarding the division of powers between the two entities.
• It will also seek to ensure that the L-G is “necessarily granted an opportunity” to exercise powers entrusted to him under proviso to clause (4) of Article 239AA of the Constitution.
• This particular clause provides for a Council of Ministers headed by a Chief Minister for the NCT to “aid and advise the Lieutenant Governor” in the exercise of his functions for matters in which the Legislative Assembly has the power to make laws.
• It will also provide for rules made by the Legislative Assembly of Delhi to be “consistent with the rules of the House of the People” or the Lok Sabha.

Criticism

• It is an unholy attempt to curtail the powers of a democratically elected Government 
• It is an affront not only to the will of the people but to the spirit of federalism 
•   It is being argued that by virtually handing over executive powers to the Lieutenant Governor, the government has acted against the spirit of the Supreme Court ruling that aimed to safeguard the elected government of Delhi from undue interference or obstacles from the Lieutenant Governor. 
• The amendment stipulates that the State government shall obtain the Lieutenant Governor’s opinion on its decisions before taking executive action on them. 
• This prevents the government from urgently acting in case of an emergency as it would have to wait for the Lieutenant Governor’s assent/viewpoint.
• Significantly, the Lieutenant Governor is not obliged to give his opinion to the State government within a time frame. 
• Critics argue that the Lieutenant Governor could politically exploit these unbridled powers to hamper the government’s administrative work and thus turn the political tides against the incumbent if he so desires. 
• That truly would undermine the interests of the party in power and also of the people.

Union Government's Stand

• Government has attempted to contradict all the above observations. 
• This will increase the administrative efficiency of Delhi and will ensure a better relationship between the executive and the legislator. This is a technical Bill. This is not a Bill related to politics. 
• It will bring accountability and overall transparency in governance.
• The amendments have been brought to remove ambiguities in the existing Act and stressed that changes in the law have been sought in the spirit of what has been said by a Supreme Court justice.
• It will further define the responsibilities of the elected government and the L-G, in line with the constitutional scheme of governance of Delhi.

Previous Issue between Lieutenant Governor and Delhi Government 

• The genesis of the act lies in the administrative tug of war between the Aam Aadmi Party (AAP) led-Delhi government and then Delhi Lieutenant Governor (L-G) Najeeb Jung immediately after the former came to power for a second stint in 2015. 
• Between early 2015 and mid-August 2016, several orders issued by the Delhi government relating to the matters such as the transfer of bureaucrats, setting up of Commissions of Inquiry and the administration of the Anti-Corruption Branch (ACB), were either declared void or reversed by the L-G citing procedural lacunae ranging from lack of approval from his office to not being constitutionally empowered to take such decisions.
•  Over the years, there was friction between the Chief Minister and the Lieutenant Governor over power-sharing. 
• The focal point of these conflicts was that in case of a difference between the Lieutenant Governor and the Council of Ministers on any matter, the matter was to be referred to the President by the Lieutenant Governor for his decision and pending such decision the Lieutenant Governor was empowered to take any action on the matter as he deemed right.
• The issue was taken by the Delhi government to the Delhi High Court which, in August 2016, held that the L-G had “complete control” of matters related to the NCT and “nothing will happen without the concurrence of the L-G.” 
• However, the judge held that the L-G was bound by the aid and advice of the Council of Ministers on some matters.
• The Delhi government then moved to the Supreme Court.

Judgement of the Supreme Court:

• The Constitution Bench of the Supreme Court, in Government of NCT of Delhi vs Union of India in 2018, held that the government was not under obligation to seek the concurrence of the Lieutenant Governor on its decisions and that any differences between them should be resolved keeping in view the constitutional primacy of representative government and cooperative federalism. 
• The Supreme Court ruled that the Lieutenant Governor should attempt to resolve the differences within the framework of the law and the Transaction of Business Rules before he decided to refer a matter to the President.
• Essentially, the Supreme Court judgment made it extremely difficult for the Lieutenant Governor to refer such matters to the President. 

The Government of National Capital Territory of Delhi Act, 1991

• Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act through which Articles 239AA and 239BB were introduced in the Constitution. 
• Article 239AA provides that the Union Territory of Delhi be called the National Capital Territory of Delhi and its administrator shall be known as Lt. Governor.
• This article provided Delhi with an Assembly, fully elected, and a Council of Ministers responsible to the Assembly. It stipulated that the Delhi Assembly could legislate on all matters in the State List as well as the Concurrent List except land, police and public order..
• Article 239AB provides that the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that article. This provision resembles Article 356 (President’s Rule)
• For all practical purposes, the GNCTD Act outlines the powers of the Assembly, the discretionary powers enjoyed by the L-G, and the duties of the Chief Minister with respect to the need to furnish information to the L-G.

Scheduled Areas 

• Article 244(1) - Except for Meghalaya, Tripura, Assam, and Mizoram, the provisions of the Fifth Schedule shall apply to the administration and control of scheduled areas in all states.
• Article 244(2) - The provisions of the Sixth Schedule apply to the administration and control of tribal areas in Meghalaya, Tripura, Assam, and Mizoram.
• The following criteria are used to designate an area as a Scheduled Area: 1. Predominance of tribal population; 2. Compactness and reasonable size of the area; 3. Underdeveloped nature of the area; and 4. A significant disparity in people's economic standards.

Special Provisions for Areas of the Fifth Schedule

• The President has the authority to declare an area a Scheduled Area.

• Part X of the Indian Constitution contains the provisions for Scheduled and Tribal Areas, which are covered by Articles 244 - 244A.
• The Governor of each state with Scheduled Areas (SA) shall submit to the President an annual report on the administration of Scheduled Areas in that state, or whenever the President so directs.
• The Union Government shall have executive authority to direct the administration of the Scheduled Areas by the States.
• President can change, add, or reduce the boundary of a Scheduled Area with the approval of the governor of the state.
• Section 4 of the Fifth Schedule calls for the formation of a Tribes Advisory Council (TAC) in any state with Scheduled Areas.
• It has a total of 20 members. Three-fourths of those are Scheduled Tribes' representatives in the state legislature.
• If the number of ST representatives in the State Legislative Assembly is less than the number of TAC seats to be filled by such representatives, the remaining seats shall be filled by other members of those Tribes.
• The Governor has the authority to decide whether any central or state legislation implies jurisdiction over the state's scheduled areas.
• The Governor may also repeal or amend any regulations pertaining to the state's scheduled areas, but only with the approval of the President of India.
• No regulations shall be issued unless the Governor consults with the Tribal Advisory Council (if one exists).
• In 1960, UN Dhebar chaired the first commission to report on the administration and welfare of the Scheduled Areas.
• At the moment, ten states have Fifth Schedule Areas: Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.
• The Fifth Schedule of the Constitution deals with the administration and control of Scheduled Areas and Scheduled Tribes residing in any state other than the aforementioned states that have not been brought under the Fifth or Sixth Schedule.

Special Provisions for Sixth Schedule Areas

• Sixth Schedule mentions the provisions related to the tribal areas of the four states – Assam, Meghalaya, Tripura and Mizoram.
• People living in these four states' tribal areas have been given significant autonomy to govern themselves.
• The tribal areas in these four states are known as 'Autonomous Districts,' but the state retains executive authority over them.
• The governor of the state has the authority to organise and reorganise tribal areas as autonomous districts. He can also change the name and boundaries of tribal areas.
• A single autonomous district may contain multiple tribes, which are divided into autonomous regions by the governor for better administration.
• Each autonomous district has its own district council:
• It consists of 30 people.
• 4 are appointed by the governor and serve at the governor's pleasure. 26 are elected using the adult franchise. - They will serve a five-year term.
• Each autonomous district has its own regional council.

The laws related to the following can be made by the regional and autonomous councils with the assent of the governor:

• Land
• Forests
• Canal water
• Shifting cultivation
• Village administration
• Inheritance of property
• Marriage and divorce
• Social customs
• The central and state acts do not apply on these autonomous and regional councils (unless modified and accepted).
• Special Provisions For Other States
• Apart from Article 370 (Temporary Provisions with Regard to the State of Jammu and Kashmir), Part XXI of the Constitution contains Articles 371, 371A, 371B, 371C, 371D, 371E, 371F, 371G, 371H, and 371J, which define special provisions with Regard to other states of the Indian Union.
• All of these provisions take into account the unique circumstances of individual states and establish a wide range of specific safeguards deemed necessary for these states.
• Article 371I - which deals with Goa - is notable in that it contains no "special" provisions.
• Article 371E - deals with Andhra Pradesh and Telangana, too, is not that "special".
• replaced by the Andhra Pradesh Reorganization Act of 2014)
• Difference between Articles 370 and 371 compared to Articles 371A-H and 371J
• Articles 370 and 371 have been part of the Constitution from the time of its commencement on January 26, 1950.
• Articles 371A-H and 371J, however, were incorporated into the Constitution by Parliament through amendments under Article 368.
• Maharashtra and Gujarat (Article 371)
• Nagaland (Article 371A) (13th Amendment Act, 1962)
• Assam (Article 371B) (22nd Amendment Act, 1969)
• Manipur (Article 371C) (27th Amendment Act, 1971)
• Sikkim (Article 371F) (36th Amendment Act, 1975)
• Mizoram (Article 371G) (53rd Amendment Act, 1986)
• Arunachal Pradesh (Article 371H) (55th Amendment Act, 1986)
• Karnataka (Article 371J) (98th Amendment Act, 2012)

Advisory Committee

• All the 5 UTs without legislature (A&N Islands, Chandigarh, Daman Diu and Dadra – Nagar Haveli, Lakshadweep and Ladakh) have the forum of Home Minister’s Advisory Committee (HMAC)/Administrator’s Advisory Committee (AAC).
• HMAC is chaired by the Union Home Minister,
• AAC is chaired by the Administrator of the concerned UTs.
• Members – MPs and elected members from the local bodies among others.

Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories) Act, 2019

• Recently, Dadra and Nagar Haveli and Daman and Diu (Merger of Union Territories) Act, 2019 was passed.
• Act amends the First Schedule to merge the two union territories into the UT of Dadra and Nagar Haveli and Daman and Diu.
• Amendment to the First Schedule of the constitution is not recognized as a constitutional amendment under Article 368 of the constitution.
• First Schedule to the Constitution specifies the territories that come under various states and UTs.
• Article 240(1) – allows the President to make regulations for certain UTs, including the UTs of Dadra-Nagar Haveli and Daman-Diu.
• The First Schedule to the RPA, 1950 provides two seats in Lok Sabha to merge UT.
• Jurisdiction of the Bombay HC will continue to extend to the merged UT.

J&K Reorganisation Act 2019

• State of J&K bifurcated into two UTs – J&K(legislative assembly) and Ladakh (without a legislature) with Kargil and Leh districts.
• 1st L-Gof Ladakh and J&K- R.K Mathur Girish and Chandra Murmu, that of Jammu & Kashmir (J&K).
• Reorganisation act scrapped Art. 370 and Art. 35A.
• New UTs, Ladakh and J&K, officially came into existence on the 144th birthday anniversary of Sardar Vallabhai Patel (31st October 2019). This is the first time that a state has been divided into UTs.
• Flag and constitution of J&K, as well as the Ranbir Penal Code (RPC), cease to exist, with the IPC now extending to both UTs.
• The Parliament can make laws on any subject of the three lists for the union territories.
• LG would be empowered to “act in his discretion” in matters related to All India Services and Anti-Corruption Bureau (ACB)
• Henceforth, the term of the UT of J&K would be for five years (from six years earlier)
• By area, Ladakh became largest UT in India.
• The Legislative Council of J&K would be abolished. The number of seats to be filled through direct elections would be 107, which will be further enhanced to 114 after a delimitation exercise is carried out.

Key Facts

• Now, only six states have legislative assemblies- Maharashtra, Uttar Pradesh, Andhra Pradesh, Telangana, Bihar and Karnataka.
• The legislative assembly of Puducherry can also make laws on any subject of the State List and the Concurrent List.
• The legislative assembly of Jammu and Kashmir can make laws on any subject of the State List (except public order and police) and the Concurrent List.
• President can make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu and Ladakh.
• Constitution does not contain any separate provisions for the administration of acquired territories.
• Delhi is the only UT with its own High Court.