Undermining of the democratic rights of the people living in UTs:
- Citizens living in the union territories have no recourse to hold the people governing them accountable which undermines the democratic rights of these people which are otherwise available to people living in the states.
- There are 3.68 crore Indians living in eight UTs of India who are denied the democratic right of having their Assemblies with full powers as enjoyed by those living in the 28 states.
- Even in the case of UTs which do have an elected government, they have very limited powers as compared to the states.
- The UTs are often at the mercy of the appointees of the central government.
- Constitutional experts have pointed out the recent example of the protests in Lakshadweep island against the administrator’s policy as a case of the UT administration failing to represent the interests of the citizens of the UT.
The original criteria for the creation of UTs do not hold anymore:
- The population or size cannot be a criterion for deciding whether people deserve a state or a UT. As some erstwhile UTs like Mizoram, Arunachal Pradesh and Sikkim which have become states over time continue to have smaller populations as compared to some current UTs like Puducherry and Dadra and Nagar Haveli.
- Also, the argument that these UTs have a distinct culture and hence need to be protected does not hold in current times as there is no great cultural chasm separating them from the neighbouring states for smaller UTs like Daman and Diu or Puducherry. In fact, they continue to have cultural and linguistic ties with neighbouring states.
Structural fragility of UTs:
- This structural fragility of the UTs in the constitutional scheme of things makes it easier for the central government to interfere in the functioning of the UTs and destabilize them.
Composition of the legislature:
- As per the constitutional provisions regarding the composition of the legislature in UTs, it is a body that is elected, or partly elected and partly nominated.
- A legislature that is partly elected and partly nominated cannot uphold democratic aspirations. A simple amendment in the Government of Union Territories Act, 1963 can create a legislature with more than 50% nominated members. A predominantly nominated House cannot promote representative democracy.
Issue of nomination:
- The process of nomination is prone to politicization as observed in the case of Puducherry.
- The Union government had nominated members to the Assembly without consulting the government and this was challenged in the court.
- Unlike the provision for the nomination of members to the Rajya Sabha under Article 80 which specifies the fields from which members will be nominated, in the case of nomination to the Puducherry Assembly, no such qualification is laid down either in Article 239A or the Government of Union Territories Act. This leaves the field open for the Union government to nominate anyone irrespective of whether he or she is suitable.
Administrator’s power:
- The UTs have not been granted necessary autonomy thus depriving them of a fully democratic set-up. Enormous powers have been vested in the Administrator/Lieutenant Governor in the UTs.
- Under Section 44 of the Government of Union Territories Act and Article 239 AA(4) of the Constitution, the administrator has the right to disagree with the decisions of the Council of Ministers and then refer them to the President for a final decision. The administrator can then take all actions he or she deems fit in the matter in total disregard of the elected government. This allows the Union government to control the UT through the administrator and is a hindrance to the idea of a free and autonomous government in the UTs.
- The President decides on the advice of the Union government. So, in effect, it is the Union government which finally determines the disputed issue.
- Despite the SC noting in the NCT of Delhi v. Union of India (2019) case that the administrator should not misuse his/her power to frustrate the functioning of the elected government in the territory and use it after all methods have failed to reconcile the differences between him/her and the Council of Ministers, there has been no improvement in this regard.
- In Puducherry, the conflicts between the Lt. Governor and the Chief Minister were perennial.
- Similarly, in the National Capital Territory of Delhi, the tussle between the Lt. Governor and the CoM continues.