GOVERNMENT OF NCT OF DELHI versus UNION OF INDIA & ANOTHER
[2018] 7 S.C.R. 1, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Ratio
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—the source. Sometimes, the constitutional sovereignty is
described as the supremacy of the Constitution.
[Emphasis is ours]
68. Thus, the concept of constitutional governance is a natural
consequent of the doctrine of constitutional sovereignty.  The writings of
Locke and Montesquieu also throw light on the concept of constitutional
governance. Locke lays stress on the fiduciary nature of public power
and argues that sovereignty lies with the people. Montesquieu, on the
other hand, in his postulate of constitutional governance, has laid more
stress on the system of “checks and balances” and “separation of powers”
between the executive, legislature and the judiciary. According to the
ideas of Montesquieu, it can be said that constitutional governance involves
the denial of absolute power to any one organ of the State and a system
of checks and balances is the basic foundation of constitutional
governance. In constitutional form of Government, power is distributed
amongst the three organs of the State in such a way that the constitutional
goal as set out in the Preamble of our Constitution is realised.
69. The postulates laid by Locke and Montesquieu are inherent in
our constitutional scheme and have also been recognized by the Court.
Therefore, it can safely be said that the nomenclature of constitutional
governance has at its very base a Constitution which is the supreme law
of the land and the conception, in its width, embraces two more ideas,
i.e.,
fiduciary nature of public power and the system of checks and
balances.
70. We may hasten to add that the Court, while interpreting various
provisions of the Constitution on different occasions, has always been
alive to the concept of constitutional governance. In B.R. Kapur v. State
of T.N. and another22, the majority, while dealing with the issue of a
writ of quo warranto, ruled that if a non-legislator could be sworn in as
the Chief Minister under Article 164 of the Constitution, then he or she
must satisfy the qualification of membership of a legislator as provided
under Article 173. Recently, in Manoj Narula (supra), while interpreting
Article 75(1) of the Constitution, the Court observed:-
“...In a controlled Constitution like ours, the Prime Minister is
expected to act with constitutional responsibility as a consequence
of which the cherished values of democracy and established norms
22 (2001) 7 SCC 231
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of good governance get condignly fructified. The framers of the
Constitution left many a thing unwritten by reposing immense trust
in the Prime Minister. The scheme of the Constitution suggests
that there has to be an emergence of constitutional governance
which would gradually grow to give rise to constitutional
renaissance.”
[Emphasis is ours]
71. The provisions of the Constitution need not expressly stipulate
the concepts of constitutionalism, constitutional governance or
constitutional trust and morality, rather these norms and values are
inherent in various articles of the Constitution and sometimes are
decipherable from the constitutional silences as has been held in Kalpana
Mehta (supra).
72. Having discussed about the concept of constitutional
governance, in the obtaining situation, we may allude to the conception
of legitimate constitutional trust. In this regard, the speech of Dr.
Ambedkar reflects his concern:-
“I feel that the Constitution is workable; it is flexible and it is
strong enough to hold the country together both in peacetime and
in wartime. Indeed, if I may say so, if things go wrong under the
new Constitution the reason will not be that we had a bad
Constitution. What we will have to say is that Man was vile.”
73. In Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission23, the Court discussed the role of the members of
Public Service Commissions and, treating them as
constitutional trustees,
observed that the credibility of the institution of Public Service Commission
is founded upon the faith of the common man on its proper functioning.
The faith would be eroded and confidence destroyed if it appears that
the Chairman or the Members of the Commission act subjectively and
not objectively.  In Subhash Sharma and others and Firdauz
Taleyarkhan v. Union of India and another24, in the context of
appointment of Judges, it has been stated that it “is essentially a discharge
of a constitutional trust of which certain constitutional functionaries are
collectively repositories.”
23 (2000) 4 SCC 309
24 1990 (2) SCALE 836
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74. The framers of the Constitution also did recognize that the
adoption of the Constitution would not ipso facto, like a magic wand,
instill in the countrymen the values of constitutionalism. The founding
fathers expected that constitutional functionaries who derive their
authority from the Constitution shall always remain sincerely obeisant to
the Constitution. The Court in Manoj Narula (supra), while highlighting
the responsibility conferred on the Prime Minister under the Constitution,
discussed the doctrine of constitutional trust and, in that context,
reproduced what Edmund Burke had said centuries ago:-
“All persons possessing any portion of power ought to be strongly
and awfully impressed with the idea that they act in trust: and that
they are to account for their conduct in that trust to the one great
Master, Author and Founder of Society.”
75. Thereafter, the Court went on to state:-
“This Court, in re Art. 143, Constitution of India and Delhi Laws
Act (1912)25, opined that the doctrine of constitutional trust is
applicable to our Constitution since it lays the foundation of
representative democracy. The Court further ruled that accordingly,
the Legislature cannot be permitted to abdicate its primary duty,
viz. to determine what the law shall be. Though it was stated in
the context of exercise of legislative power, yet the same has
signification in the present context, for in a representative
democracy, the doctrine of constitutional trust has to
be envisaged
in every high constitutional functionary.”
76. The Court further observed:-
“... we shall proceed to deal with the doctrine of “constitutional
trust”. The issue of constitutional trust arises in the context of the
debate in the Constituent Assembly that had taken place pertaining
to the recommendation for appointment of a Minister to the Council
of Ministers. Responding to the proposal for the amendment
suggested by Prof. K.T. Shah with regard to the introduction of a
disqualification of a convicted person becoming a Minister, Dr.
B.R. Ambedkar had replied: -
“His last proposition is that no person who is convicted may be
appointed a Minister of the State. Well, so far as his intention
is concerned, it is no doubt very laudable and I do not think any
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Member of this House would like to differ from him on that
proposition. But the whole question is this whether we should
introduce all these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not sufficient that we
should trust the Prime Minister, the Legislature and the public
at large watching the actions of the Ministers and the actions
of the Legislature to see that no such infamous thing is done
by either of them? I think this is a case which may eminently
be left to the good- sense of the Prime Minister and to the
good sense of the Legislature with the general public holding a
watching brief upon them. I therefore say that these
amendments are unnecessary.”
And again:-
“98. From the aforesaid, it becomes graphically vivid that the
Prime Minister has been regarded as the repository of
constitutional trust. The use of the words “on the advice of the
Prime Minister” cannot be allowed to operate in a vacuum to
lose their significance. There can be no scintilla of doubt that
the Prime Minister’s advice is binding on the President for the
appointment of a person as a Minister to the Council of Ministers
unless the said person is disqualified under the Constitution to
contest the election or under the 1951 Act, as has been held in
B.R. Kapur case. That is in the realm of disqualification. But,
a pregnant one, the trust reposed in a high constitutional
functionary like the Prime
Minister under the Constitution does
not end there. That the Prime Minister would be giving apposite
advice to the President is a legitimate constitutional expectation,
for it is a paramount constitutional concern. In a controlled
Constitution like ours, the Prime Minister is expected to act
with constitutional responsibility as a consequence of which
the cherished values of democracy and established norms of
good governance get condignly fructified. The Framers of the
Constitution left many a thing unwritten by reposing immense
trust in the Prime Minister. The scheme of the Constitution
suggests that there has to be an emergence of constitutional
governance which would gradually grow to give rise to
constitutional renaissance.
x
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100. Thus, while interpreting Article 75(1), definitely a
disqualification cannot be added. However, it can always be
legitimately expected, regard being had to the role of a Minister
in the Council of Ministers and keeping in view the sanctity of
oath he takes, the Prime Minister, while living up to the trust
reposed in him, would consider not choosing a person with
criminal antecedents against whom charges have been framed
for heinous or serious criminal offences or charges of corruption
to become a Minister of the Council of Ministers. This is what
the Constitution suggests and that is the constitutional
expectation from the Prime Minister. Rest has to be left to the
wisdom of the Prime Minister. We say nothing more, nothing
less.”
77. The Constitution of India, as stated earlier, is an organic
document that requires all its functionaries to observe, apply and protect
the constitutional values spelt out by it. These values constitute the
constitutional morality. This makes the Constitution of India a political
document that organizes the governance of Indian society through specific
functionaries for requisite ends in an appropriate manner. The
constitutional culture stands on the fulcrum of these values.  The element
of trust is an imperative between constitutional functionaries so that
Governments can work in accordance with constitutional norms. It may
be stated with definiteness that when such functionaries exercise their
power under the
Constitution, the sustenance of the values that usher in
the foundation of constitutional governance should remain as the principal
motto. There has to be implicit institutional trust between such
functionaries. We shall elaborate the functional aspect of this principle
when we scan the language employed under Article 239AA and other
adjunct articles to decipher the true purpose of the said provision from
the perspective of the workability of the Constitution in the sphere of
governance.
G. Collective responsibility:
78. In the Constituent Assembly Debates, Dr. B.R. Ambedkar
spoke thus on collective responsibility:-
“I want to tell my friend Prof. K.T. Shah that his amendment
would be absolutely fatal to the other principle which we want to
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enact, namely collective responsibility. All Members of the House
are very keen that the Cabinet should work on the basis of collective
responsibility and all agree that is a very sound principle. But I do
not know how many Members of the House realise what exactly
is the machinery by which collective responsibility is enforced.
Obviously, there cannot be a statutory remedy. Supposing a Minister
differed from other Members of the Cabinet and gave expression
to his views which were opposed to the views of the Cabinet, it
would be hardly possible for the law to come in and to prosecute
him for having committed a breach of what might be called
collective responsibility. Obviously, there cannot be a legal sanction
for collective responsibility. The only sanction through which
collective responsibility can be enforced is through the Prime
Minister. In my judgment collective responsibility is enforced by
the enforcement of two principles. One principle is that no person
shall be nominated to the Cabinet except on the advice of the
Prime Minister. Secondly, no person shall be retained as a Member
of the Cabinet if the Prime Minister says that he shall be dismissed.
It is only when Members of the Cabinet both in the matter of their
appointment as well as in the matter of their dismissal are placed
under the Prime Minister, that it would be possible to realise our
ideal of collective responsibility. I do not see any other means
or
any other way of giving effect to that principle.
Supposing you have no Prime Minister; what would really happen?
What would happen is this, that every Minister will be subject to
the control or influence of the President. It would be perfectly
possible for the President who is no ad idem with a particular
Cabinet, to deal with each Minister separately singly, influence
them and thereby cause disruption in the Cabinet. Such a thing is
not impossible to imagine. Before collective responsibility was
introduced in the British Parliament you remember how the English
King used to disrupt the British Cabinet. He had what was called
a Party of King’s Friends both in the Cabinet as well as in
Parliament. That sort of thing was put a stop to by collective
responsibility. As I said, collective responsibility can be achieved
only through the instrumentality of the Prime Minister. Therefore,
the Prime Minister is really the keystone of the arch of the Cabinet
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and unless and until we create that office and endow that office
with statutory authority to nominate and dismiss Ministers there
can be no collective responsibility.”
79. In State of Karnataka v. Union of India and another26, the
Court, after reproducing a few passages from Sir Ivor Jennings and Mr.
Joseph Chamberlain, observed:-
“...The following discussion on the subject in “Representative and
Responsible Government” by A. H. Birch will be found useful in
this connection:-
“Ministerial accountability to Parliament has two aspects : the
collective responsibility of Ministers for the policies of the
Government and their individual responsibility for the work of
their departments. Both forms of responsibility are embodied
in conventions which cannot be legally enforced. Both
conventions were developed during the nineteenth century, and
in both cases the practice was established before the doctrine
was announced (page 131).”
80. In “Government and Law” by T. C. Hartley and J.A.G.
Griffith27, the position in regard to the collective responsibility of Ministers
to the Legislature is tersely stated as under:-
“Ministers are said to be collectively responsible. This is often
elevated by writers to the level of a ‘doctrine’ but is in truth
little more than a political practice which is commonplace and
inevitable. Ordinarily, Ministers form the governmental team,
all being appointed by the Prime Minister from one political
party. A Cabinet Minister deals with his
own area of policy
and does not normally have much to do with the area of other
Ministers. Certainly no Cabinet Minister would be likely to make
public statements which impinged on the work of another
Minister’s department. On a few important issues, policy is
determined by the Cabinet after discussion. Collective
responsibility means that Cabinet decisions bind all Cabinet
Ministers, even if they argued in the opposite direction in
Cabinet. But this is to say no more than a Cabinet Minister
26 (1978) 2 SCR 1
27 Hartley T.C. and Griffith J.A.G., Government and Law; an introduction to the working
of the Constitution in Britain 2nd edition, 1981 London; Weidenfelf and Nicholson
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who finds himself in a minority must either accept the majority
view or resign. The team must not be weakened by some of
its members making clear in public that they disapprove of the
Government’s policy. And obviously what is true for Cabinet
Ministers is even more true for other Ministers. If they do not
like what the team is doing, they must either keep quiet or
leave.”
81. Speaking  on  collective  responsibility, the  Court  in the  case
of R.K. Jain v. Union of India and others28 has opined that each
member of the Cabinet has personal responsibility to his conscience and
also responsibility to the Government. Discussion and persuasion may
diminish disagreement, reach unanimity, or leave it unaltered. Despite
persistence of disagreement, it is a decision, though some members like
less than others. Both practical politics and good government require
that those who like it less must still publicly support it. If such support is
too great a strain on a Minister’s conscience or incompatible with his/
her perceptions of commitment and he/she finds it difficult to support
the decision, it would be open to him/her to resign. So, the price of
acceptance of Cabinet office is the assumption of responsibility to support
Cabinet decisions and, therefore, the burden of that responsibility is
shared by all.
82. In Common Cause, A Registered Society v. Union of India
and others29, the Court, explaining the concept of collective
responsibility,
stated:-
“30. The concept of “collective responsibility” is essentially a
political concept. The country is governed by the party in power
on the basis of the policies adopted and laid down by it in the
Cabinet Meeting. “Collecting Responsibility” has two meanings :
The first meaning which can legitimately be ascribed to it is that
all members of a Govt, are unanimous in support of its policies
and would exhibit that unanimity on public occasions although
while formulating the policies, they might have expressed a
different view in the meeting of the Cabinet. The other meaning
is that Ministers, who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally
responsible for its success and failure.”
28 (1993) 3 SCR 802
29 (1999) 6 SCC 667
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83. The principle of collective responsibility is of immense
significance in the context of ‘aid and advice’ of the Council of Ministers.
The submission of the learned counsel of the appellant is that when after
due deliberation between the Chief Minister and the Council of Ministers
a decision is taken, but the same is not given effect to because of
interdiction of the Lieutenant Governor, the value of collective
responsibility that eventually gets transformed into a Cabinet decision
stands absolutely denuded. It is emphatically submitted that if the
collective responsibility of the Council of Ministers is not given the
expected weightage, there will be corrosion of the essential feature of
representative government.
H. Federal functionalism and democracy:
84. Democracy is a form of government where the people rule.
Aristotle viewed democracy as a form of government in which the
supreme powers are in the hands of freemen and where people form a
majority in an elected sovereign government to exercise some role in
decision making. Thomas Jefferson defined democracy as a “government
by its citizens in mass, acting directly and personally, according to rules
established by the majority”. Abraham Lincoln defined democracy as “a
government of the people, by the people, and for the people”. The Black’s
Law Dictionary defines democracy as:-
“That form of government in which the sovereign power resides
in and is exercised by the whole body of free citizens; as
distinguished from a monarchy, aristocracy, or oligarchy. According
to the theory of a pure democracy, every citizen should participate
directly in the business of governing, and the legislative assembly
should comprise the whole people.”30
85. The Preamble to our Constitution, at the outset, proclaims that
India is a sovereign democratic republic. The citizens of India are the
sovereign and participate in the process of governance by exercising
their virtuous right to vote under the system of universal adult suffrage.
The citizens elect their representatives and send them to the Parliament
and State Legislatures for enacting laws and shaping policies at the Union
and State level respectively which are reflective of the popular will of
the collective.
30 Black’s Law Dictionary 6th Edition Pg.432
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86. The parliamentary form of democracy as envisaged by the
Constitution has at its very base the power bestowed upon people to
vote and make the legislature accountable for their functioning to the
people. If the legislature fails to transform the popular will of the people
into policies and laws, the people in a democracy like ours have the
power to elect new representatives by exercise of their vote. The political
equality makes people aware of their right in unison and there is a
consistent endeavour to achieve the same.
87. In this context, we may turn to a passage from Mohinder
Singh Gill and another v. Chief Election Commissioner, New Delhi
and others31 wherein Krishna Iyer, J. quoted with approval the statement
of Sir Winston Churchill which is to the following effect:-
“At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross
on a little bit of paper - no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of
the point.”
88. Thus, democratic set up has its limbs firmly entrenched in the
ability of the people to elect their representatives and the faith that the
representatives so elected will best represent their interest. Though this
right to vote is not a fundamental right, yet it is a right that lies at the
heart of democratic form of government. The right to vote is the most
cherished value of democracy as it inculcates in the people a sense of
belonging. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra32, the
learned Judges, after referring to Mohinder Singh Gill’s case, stated
that nothing can diminish the overwhelming importance of the cross or
preference indicated by the dumb sealed lip voter. That is his right and
the trust reposed by the Constitution in him is that he will act as a
responsible citizen in choosing his representatives for governing the
country.
89. The aforesaid situation warrants for reciprocative functionalism
by thought, action and conduct.  It requires the elected representatives
to uphold the faith which the collective have reposed in them. Any undue
interference amounts to betrayal of the faith of the collective in fulfilment
of their aspirations of democratic self-governance. In Kesavananda
31 AIR 1978 SC 851
32 AIR 1980 SC 1362
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Bharati (supra), it has been observed that the two basic postulates of
democracy are faith in human reason and faith in human nature and that
there is no higher faith than faith in democratic process. The Court further
stated that democracy on adult suffrage is a great experiment with its
roots in the faith in the common man.  P. Jaganmohan Reddy, J., in his
opinion, stated that the republican and democratic form of government
is a part of the basic structure of the Constitution and the Parliament has
no power to abrogate or emasculate the basic elements or fundamental
features of the Constitution such as the sovereignty of India and the
democratic character of our polity. Further, he stated that the framers of
the Constitution adopted a sovereign democratic republic to secure for
the citizens of India the objectives of justice, liberty and equality as set
out in the Preamble to our Constitution.
90. Dealing with the concept of democracy, the majority in Indira
Nehru Gandhi v. Raj Narain33 ruled that ‘democracy’ as an essential
feature of the Constitution is unassailable. The said principle has been
reiterated in T.N. Seshan, CEC of India v. Union of India and others.34
and Kuldip Nayar v. Union of India others.35.  When it is conceived
that democracy is a part of the basic structure of the Constitution, the
essential value of democracy has to be condignly understood and that is
why we have referred to certain precedents.  The correctness or fallacy
of the
interpretation of Articles 239 to 239AB would depend upon our
appreciation of democratic form of government in a mature body polity.
91. The Court in Manoj Narula (supra), while delineating the
concept of democracy, stated that democracy has been best defined as
the Government of the People, by the People and for the People, which
expects prevalence of genuine orderliness, positive propriety, dedicated
discipline and sanguine sanctity by constant affirmance of constitutional
morality which is the pillar stone of good governance. Further, it is stated
that democracy in India is a product of rule of law which aspires to
establish an egalitarian social order and that it is not only a political
philosophy but also an embodiment of constitutional philosophy.
Democracy being a cherished constitutional value needs to be protected,
preserved and sustained and for that purpose, instilment of certain norms
in the marrows of the collective is absolutely necessitous. In the said
33 AIR 1975 SC 2299
34 (1995) 4 SCC 611
35 AIR 2006 SC 3127
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case, the Court, while emphasizing that good governance is a sine qua
non for a healthy democracy, stated thus:-
“In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as primary
one and any other interest secondary. The maxim Salus Populi
Suprema Lex, has not only to be kept in view but also has to be
revered. The faith of the people is embedded in the root of the
idea of good governance which means reverence for citizenry
rights, respect for Fundamental Rights and statutory rights in any
governmental action, deference for unwritten constitutional values,
veneration for institutional integrity, and inculcation of accountability
to the collective at large. It also conveys that the decisions are
taken by the decision making authority with solemn sincerity and
policies are framed keeping in view the welfare of the people,
and including all in a homogeneous compartment. The concept of
good governance is not an Utopian conception or an abstraction.
It has been the demand of the polity wherever democracy is
nourished. The growth of democracy is dependant upon good
governance in reality and the aspiration of the people basically is
that the administration is carried out by people with responsibility
with service orientation.”
               [Emphasis supplied]
92. Now, we shall proceed to discuss the concept of federalism in
the context of the Constitution of India.
Encyclopedia Britannica defines
federalism as:-
“Federalism, mode of political organization that unites separate
states or other polities within an overarching political system in
such a way as to allow each to maintain its own fundamental
political integrity. Federal systems do this by requiring that basic
policies be made and implemented through negotiation in some
form, so that all the members can share in making and executing
decisions. The political principles that animate federal systems
emphasize the primacy of bargaining and negotiated coordination
among several power centres; they stress the virtues of dispersed
power centres as a means for safeguarding individual and local
liberties.”
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93. In common parlance, federalism is a type of governance in
which the political power is divided into various units. These units are
the Centre/Union, States and Municipalities. Traditional jurists like Prof.
K.C. Wheare lay emphasis on the independent functioning of different
governing units and, thus, define federalism as a method of dividing powers
so that the general/central and regional governments are each within a
sphere co-ordinate and independent. As per Prof. Wheare “the systems
of Government embody predominantly on division of powers between
Centre and regional authority each of which in its own sphere is
coordinating with the other independent as of them, and if so is that
Government federal?”36
94. However, modern jurists lay emphasis on the idea of
interdependence and define federalism as a form of government in which
there is division of powers between one general/central and several
regional authorities, each within its sphere interdependent and co-ordinate
with each other.
95. The framers of our Constitution, during debates in the
Constituent Assembly on the draft Constitution, held elaborate discussions
on whether to adopt a unitary system of government or federal system
of government. During the Constituent Assembly debates, Shri T.T.
Krishnamachari said:-
“...Are we framing a unitary Constitution? Is this Constitution
centralizing power in Delhi? Is there any way provided by means
of which the position of people in various areas
could be
safeguarded, their voices heard in regard to matters of their local
administration? I think it is a very big charge to make that this
Constitution is not a federal Constitution, and that it is a unitary
one. We should not forget that this question that the Indian
Constitution should be a federal one has been settled by our Leader
who is no more with us, in the Round Table Conference in London
eighteen years back.”
“I would ask my honourable friend to apply a very simple test so
far as this Constitution is concerned to find out whether it is federal
or not. The simple question I have got from the German school of
political philosophy is that the first criterion is that the State must
exercise compulsive power in the enforcement of a given political
36 Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33
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order, the second is that these powers must be regularly exercised
over all the inhabitants of a given territory; and the third is the
most important and that is that the activity of the State must not
be completely circumscribed by orders handed down for execution
by the superior unit. The important words are ‘must not be
completely circumscribed’, which envisages some powers of the
State are bound to be circumscribed by the exercise of federal
authority. Having all these factors in view, I will urge that our
Constitution is a federal Constitution. I urge that our Constitution
is one in which we have given power to the Units which are both
substantial and significant in the legislative sphere and in the
executive sphere.”
96. In this context, Dr. B.R. Ambedkar, speaking on the floor of
the Constituent Assembly, said:-
“There is only one point of Constitutional import to which  I propose
to make a reference. A serious complaint is  made on the ground
that there is too much of centralization and that the States have
been reduced to  Municipalities. It is clear that this view is not
only an exaggeration, but is also founded on a misunderstanding
of what exactly the Constitution contrives to do. As to the relation
between the Centre and the States, it is necessary to bear in mind
the fundamental principle on which it rests. The basic principle of
Federalism is that the legislative and executive authority is
partitioned
between the Centre and the States not by any law to
be made by the Centre but the Constitution itself. This is what the
Constitution does. The States, under our Constitution, are in no
way dependent upon the Centre for their legislative or executive
authority. The Centre and the States are co-equal in this matter. It
is difficult to see how such a Constitution can be called centralism.
It may be that the Constitution assigns to the Centre too large a
field for the operation of its legislative and executive authority
than is to be found in any other Federal Constitution. It may be
that the residuary powers are given to the Centre and not to the
States. But these features do not form the essence of federalism.
The chief mark of federalism, as I said lies in the partition of the
legislative and executive authority between the Centre and the
Units by the Constitution. This is the principle embodied in our
Constitution.”
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97. The Court in In re: Under Article 143, Constitution of India,
(Special Reference No. 1 of 1964)37 observed that the essential
characteristic of federalism is the distribution of limited executive,
legislative and judicial authority among bodies which are coordinate with
and independent of each other. Further, the Court stated that the
supremacy of the Constitution is fundamental to the existence of a federal
State in order to prevent either the legislature of the federal unit or those
of the member States from destroying or impairing that delicate balance
of power which satisfies the particular requirements of States which are
desirous of union, but not prepared to merge their individuality in a unity.
This supremacy of the Constitution, the Court stated, is protected by the
authority of an independent judicial body to act as the interpreter of a
scheme of distribution of powers and, thus, the dominant characteristic
of the British Constitution cannot be claimed by a Federal Constitution
like ours.
98. Gajendragadkar, C.J., in the said case, observed that our
Constitution has all the essential elements of a federal structure as was
the case in the Government of India Act 1935, the essence of federalism
being the distribution of powers between the federation or the Union
and the States or the provinces. In State of Karnataka v. Union of
India (supra), Untwalia, J. (speaking for Justice Singhal, Justice Jaswant
Singh and for himself) observed that the
Constitution is not of a federal
character where separate, independent and sovereign States could be
said to have joined to form a nation as in the United States of America or
as may be the position in some other countries of the world. It is because
of this reason that sometimes it has been characterized as quasi-federal
in nature.
99. In Shamsher Singh (supra), this Court held that our founding
fathers accepted the parliamentary system of quasi-federalism while
rejecting the substance of Presidential style of Executive. Dr. Ambedkar
stated on the floor of the Constituent Assembly that the Constitution is
“both unitary as well as federal according to the requirement of time and
circumstances”. He further stated that the Centre would work for the
common good and for the general interest of the country as a whole
while the States would work for the local interest. He also refuted the
plea for exclusive autonomy of the States.
37 AIR 1965 SC 745
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100. In S.R. Bommai v. Union of India38, the Court considered
the nature of federalism under the Constitution of India. A.M. Ahmadi,
J. (as the learned Judge then was) observed:-
“In order to understand whether our Constitution is truly federal,
it is essential to know the true concept of federalism. Dicey calls
it a political contrivance for a body of States which desire Union
but not unity. Federalism is, therefore, a concept which unites
separate States into a Union without sacrificing their own
fundamental political integrity. Separate States, therefore, desire
to unite so that all the member-States may share in formulation of
the basic policies applicable to all and participate in the execution
of decisions made in pursuance of such basic policies. Thus the
essence of a federation is the existence of the Union and the
States and the distribution of powers between them. Federalism,
therefore, essentially implies demarcation of powers in a federal
compact.”
101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh, J.)
opined that the States are constitutionally recognised units and not mere
convenient administrative divisions as both the Union and the States
have sprung from the provisions of the Constitution. After quoting
extensively from H.M. Seervai’s commentary - Constitutional Law of
India, he expressed thus:-
“99. The above discussion thus shows that the States have an
independent constitutional existence
and they have as important a
role to play in the political, social, educational and cultural life of
the people as the Union. They are neither satellites nor agents of
the Centre. The fact that during emergency and in certain other
eventualities their powers are overridden or invaded by the Centre
is not destructive of the essential federal nature of our Constitution.
The invasion of power in such circumstances is not a normal
feature of the Constitution. They are exceptions and have to be
resorted to only occasionally to meet the exigencies of the special
situations. The exceptions are not a rule.
100. For our purpose, further it is really not necessary to determine
whether, in spite of the provisions of the Constitution referred to
above, our Constitution is federal, quasi-federal or unitary in nature.
38 (1994) 3 SCC 1
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It is not the theoretical label given to the Constitution but the
practical implications of the provisions of the Constitution which
are of importance to decide the question that arises in the present
context, viz., whether the powers under Article 356(1) can be
exercised by the President arbitrarily and unmindful of its
consequences to the governance in the State concerned. So long
as the States are not mere administrative units but in their own
right constitutional potentates with the same paraphernalia as the
Union, and with independent Legislature and the Executive
constituted by the same process as the Union, whatever the bias
in favour of the Centre, it cannot be argued that merely because
(and assuming it is correct) the Constitution is labeled unitary or
quasi-federal or a mixture of federal and unitary structure, the
President has unrestricted power of issuing Proclamation under
Article 356(1).”
102. K. Ramaswami, J., in paragraphs 247 and 248 of his separate
judgment, observed:-
“247. Federalism envisaged in the Constitution of India is a basic
feature in which the Union of India is permanent within the
territorial limits set in Article 1 of the Constitution and is
indestructible. The State is the creature of the Constitution and
the law made by Articles 2 to 4 with no territorial integrity, but a
permanent entity with its boundaries alterable by a law made by
Parliament. Neither the relative importance of the legislative entries
in Schedule
VII, Lists I and II of the Constitution, nor the fiscal
control by the Union per se are decisive to conclude that the
Constitution is unitary. The respective legislative powers are
traceable to Articles 245 to 254 of the Constitution. The State qua
the Constitution is federal in structure and independent in its
exercise of legislative and executive power. However, being the
creature of the Constitution the State has no right to secede or
claim sovereignty. Qua the Union, State is quasi-federal. Both
are coordinating institutions and ought to exercise their respective
powers with adjustment, understanding and accommodation to
render socio-economic and political justice to the people, to preserve
and elongate the constitutional goals including secularism.
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248. The preamble of the Constitution is an integral part of the
Constitution. Democratic form of Government, federal structure,
unity and integrity of the nation, secularism, socialism, social justice
and judicial review are basic features of the Constitution.”
103. B.P. Jeevan Reddy, J., writing a separate opinion (for himself
and on behalf of S.C. Agrawal, J.), concluded in paragraph 276 thus:-
“276. The fact that under the scheme of our Constitution, greater
power is conferred upon the Centre vis-a-vis the States does not
mean that States are mere appendages of the Centre. Within the
sphere allotted to them, States are supreme. The Centre cannot
tamper with their powers. More particularly, the courts should not
adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to
the States. It is a matter of common knowledge that over the last
several decades, the trend the world over is towards strengthening
of Central Governments be it the result of advances in
technological/scientific fields or otherwise, and that even In USA
the Centre has become far more powerful notwithstanding the
obvious bias in that Constitution in favour of the States. All this
must put the court on guard against any conscious whittling down
of the powers of the States. Let it be said that the federalism in
the Indian Constitution is not a matter of administrative
convenience,
but one of principle the outcome of our own historical
process and a recognition of the ground realities. This aspect has
been dealt with elaborately by Shri M.C. Setalvad in his Tagore
Law Lectures “Union and State relations under the Indian
Constitution” (Eastern Law House, Calcutta, 1974). The nature
of the Indian federation with reference to its historical background,
the distribution of legislative powers, financial and administrative
relations, powers of taxation, provisions relating to trade, commerce
and industry, have all been dealt with analytically. It is not possible
nor is it necessary for the present purposes to refer to them. It is
enough to note that our Constitution has certainly a bias towards
Centre vis-a-vis the States...”
104. In ITC Ltd. v. Agricultural Produce Market Committee39,
the Court observed that the Constitution of India deserves to be
39 (2002) 9 SCC 23
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interpreted, language permitting, in a manner that it does not whittle
down the powers of the State Legislature and preserves federalism while
also upholding the central supremacy as contemplated by some of its
articles.
105. In Kuldip Nayar (supra), the Court, while dealing with the
question of state domicile for elections to the Rajya Sabha, opined that it
is true that the federal principle is dominant in our Constitution and the
said principle is one of its basic features but it is equally true that federalism
under the Indian Constitution leans in favour of a strong Centre, a feature
that militates against the concept of strong federalism. Some of the
provisions that can be referred to in this context include the power of the
Union to deal with extraordinary situations such as during emergency
and in the event of a proclamation being issued under Article 356 that
the governance of a State cannot be carried on in accordance with the
provisions of the Constitution; the power of the Parliament to legislate
with respect to a matter in the State List in the national interest in case
there is a resolution of the Council of States supported by prescribed
majority; the power of the Parliament to provide for the creation and
regulation of All India Services common to the Union and the States in
case there is a resolution of the Council of States supported by not less
than two-thirds majority; the existence of only one citizenship, namely,
the citizenship of
India; and, perhaps most important, the power of the
Parliament in relation to the formation of new States and alteration of
areas, boundaries or names of States.
106. From the foregoing discussion, it is clear as day that both the
concepts, namely, democracy, i.e., rule by the people and federalism are
firmly imbibed in our constitutional ethos. Whatever be the nature of
federalism present in the Indian Constitution, whether absolutely federal
or quasi-federal, the fact of the matter is that federalism is a part of the
basic structure of our Constitution as every State is a constituent unit
which has an exclusive Legislature and Executive elected and constituted
by the same process as in the case of the Union Government. The
resultant effect is that one can perceive the distinct aim to preserve and
protect the unity and the territorial integrity of India. This is a special
feature of our constitutional federalism.
107. It is self-evident that there is a meaningful orchestration
between the concepts of federalism and nature of democracy present in
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our Constitution. It would not be a fallacious metaphor if we say that just
as in a fusion reaction two or more atomic nuclei come together to form
a bigger and heavier nucleus, the founding fathers of our Constitution
envisaged a fusion of federalism and democracy in the quest for achieving
an egalitarian social order, a classical unity in a  contemporaneous
diversity. The vision of diversity in unity and the perception of plurality in
eventual cohesiveness is embedded in the final outcome of the desire to
achieve the accomplished goal through constitutional process. The
meeting of the diversity in unity without losing identity is a remarkable
synthesis that the Constitution conceives without even permitting the
slightest contrivance or adroitness.
I. Collaborative federalism:
108. The Constituent Assembly, while devising the federal
character of our Constitution, could have never envisaged that the Union
Government and the State Governments would work in tangent. It could
never have been the Constituent Assembly’s intention that under the
garb of quasi-federal tone of our Constitution, the Union Government
would affect the interest of the States. Similarly, the States under our
constitutional scheme were not carved as separate islands each having
a distinct vision which would unnecessarily open the doors for a contrarian
principle or gradually put a step to invite anarchism. Rather, the vision
enshrined in the
Preamble to our Constitution, i.e., to achieve the golden
goals of justice, liberty, equality and fraternity, beckons both the Union
Government and the State Governments, alike. The ultimate aim is to
have a holistic structure.
109. The aforesaid idea, in turn, calls for coordination amongst
the Union and the State Governments. The Union and the States need to
embrace a collaborative/cooperative federal architecture for achieving
this coordination.
110. Corwin, an eminent thinker,  in the context of the United
States, coined the term ‘Collaborative Federalism’ and defined it as:-
“...the National Government and the States are mutually
complementary parts of a single governmental mechanism all of
whose powers are intended to realize the current purposes of
government.”40
40 Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950)
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111. The U.S. Supreme Court in  Carmichael v. S. Coal & Coke
Co.41 propounded that a State Unemployment Statute had not been
coerced by the adoption of the Social Security Act and the United States
and the State of Alabama are not alien governments but they coexist
within the same territory. Unemployment within it is their common
concern. The U.S. Supreme Court further observed that the two statutes
embody a cooperative legislative effort by the State and National
governments for carrying out a public purpose common to both, which
neither could fully achieve without the cooperation of the other and the
Constitution does not prohibit such cooperation.
112. Geoffrey Sawer proposes that cooperative federalism is
evidenced by the following characteristics: ‘each of the parties to the
arrangement has a reasonable degree of autonomy, can bargain
about the terms of cooperation, and at least if driven too hard,
decline to cooperate’42.
113. Later, Cameron and Simeon described “collaborative
federalism,” as:-
“[T]he process by which national goals are achieved, not by the
federal government acting alone or by the federal government
shaping provincial behavior through the exercise of its spending
power, but by some or all of the governments and the territories
acting collectively.”43
Although the said statement of law may not be strictly applicable,
yet the need for co-operation to sustain the federal structure has its own
importance as an idea.
114. Thus, the
Union and the State Governments should always
work in harmony avoiding constitutional discord. In such a collaboration,
the national vision as set out in the Preamble to our Constitution gets
realized. The methods and approach for the governments of the Union
and the States may sometimes be different but the ultimate goal and
objective always remain the same and the governments at different levels
should not lose sight of the ultimate objective. This constitutional objective
as enshrined in the Constitution should be the guiding star to them to
41 301 U.S. 495, 525 - 26 (1937)
42 Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1.
43 Cameron,  D.  and  Simeon,  R.  2002.  Intergovernmental  relations  in  Canada:  The
   emergence of Collaborative federalism.  Publius, 32(2):49-72
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move on the path of harmonious co-existence and interdependence. They
are the basic tenets of collaborative federalism to sustain the strength of
constitutional functionalism in a Welfare State.
115. In a Welfare State, there is a great necessity of collaborative
federalism. Martin Painter, a leading Australian proponent of collaborative
federalism, lays more stress on negotiations for achieving common goals
amongst different levels of governments and, thus, says:-
“The practical exigencies in fulfilling constitutionally sanctioned
functions should bring all governments from different levels together
as equal partners based on negotiated cooperation for achieving
the common aims and resolving the outstanding problems.” 44
116. In the Australian context, Prof. Nicholas Aroney in his book45
has said:-
“Rather than displaying a strictly defined distribution of
responsibility between two or more “co-ordinate” levels of
government, federal systems tend in practice to resemble
something more like a “marble cake”, in which governmental
functions are shared between various governmental actors within
the context of an ever-shifting set of parameters shaped by
processes of negotiation, compromise and, at times, cooperation.”
117. Thus, the idea behind the concept of collaborative federalism
is negotiation and coordination so as to iron out the differences which
may arise between the Union and the State Governments in their
respective pursuits of development. The Union Government and the State
Governments should endeavour to address the common problems with
the intention to arrive at a solution by showing statesmanship, combined
action and sincere cooperation. In collaborative federalism, the Union
and the State Governments should express their readiness to achieve
the common objective and work together for achieving it. In a functional
Constitution, the authorities should exhibit sincere concern to avoid any
conflict. This concept has to be borne in mind when both intend to rely
on the constitutional provision as the source of authority. We are absolutely
unequivocal that both the Centre and the States  must work within their
44 Martin Painter, Collaborative federalism: Economic reform in Australia in the 1990s.
45 Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth:  The Making
and Meaning of the Australian Constitution, 2009
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spheres and not think of any encroachment. But in the context of exercise
of authority within their spheres, there should be perception of mature
statesmanship so that the constitutionally bestowed responsibilities are
shared by them. Such an approach requires continuous and seamless
interaction between the Union and the State Governments. We may
hasten to add that this idea of collaborative federalism would be more
clear when we understand the very essence of the special status of
NCT of  Delhi and the power conferred on the Chief Minister and the
Council of Ministers on the one hand and the Lieutenant Governor on
the other by the Constitution.
118. The idea of cooperative/collaborative federalism is also not
new to India. M.P. Jain in his book46, in a different manner, sets forth the
perception thus:-
“Though the Constitution provides adequate powers to the Centre
to fulfil its role, yet, in actual practice, the Centre can maintain its
dynamism and  initiative not through a show of its powers —
which should be exercised only as a last resort in a demonstrable
necessity — but on the cooperation of the States secured through
the process of discussion, persuasion and  compromises. All
governments have to appreciate the essential point that they are
not independent but interdependent, that they should act not at
cross- purposes but in union for the maximisation of the common
good.”
119. In State of Rajasthan and others v. Union of India47, the
Court took
cognizance of the concept of cooperative federalism as
perceived by G. Austin and A.H Birch when it observed:-
“Mr. Austin thought that our system, if it could be called federal,
could be described as “cooperative federalism.” This term was
used by another author, Mr. A.H. Birch (see: Federalism, Finance
and Social Legislation in Canada, Australia and the United States
p. 305), to describe a system in which:
“...the practice of administrative cooperation between general
and regional governments, the partial dependence of the regional
governments upon payments from the general governments
and the fact that the general governments, by the use of
46 M.P. Jain, Some aspects of Indian federalism, 1968
47 (1978) 1 SCR 1
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conditional grants, frequently promote developments in matters
which are constitutionally assigned to the regions”...”
120. We have dealt with the conceptual essentiality of federal
cooperation as that has an affirmative role on the sustenance of
constitutional philosophy.  We may further add that though the authorities
referred to hereinabove pertain to Union of India and State Governments
in the constitutional sense of the term “State”, yet the concept has
applicability to the NCT of Delhi regard being had to its special status
and language employed in Article 239AA and other articles.
J. Pragmatic federalism:
121. In this context, we may also deal with an ancillary issue,
namely, pragmatic federalism. To appreciate the said concept, we are
required to analyse the nature of federalism that is conceived under the
Constitution. Be it noted, the essential characteristics of federalism like
duality of governments, distribution of powers between the Union and
the State Governments, supremacy of the Constitution, existence of a
written Constitution and most importantly, authority of the Courts  as
final interpreters of  the Constitution are all present under our constitutional
scheme. But at the same time, the Constitution has certain features
which can very well be perceived as deviations from the  federal
character. We may, in brief, indicate some of these features to underscore
the fact that though our Constitution
broadly has a federal character, yet
it still has certain striking unitary features too. Under Article 3 of the
Constitution, the Parliament can alter or change the areas, boundaries or
names of the States. During emergency, the Union Parliament is
empowered to make laws in relation to matters under the State List,
give directions to the States and empower Union officers to execute
matters in the State List.  That apart, in case of inconsistency between
the Union and the State laws, the Union Law shall prevail. Additionally,
a Governor of a State is empowered to reserve the bill passed by the
State Legislature for consideration of the President and the President is
not bound to give his assent to such a bill. Further, a State Legislature
can be dissolved and President’s rule can be imposed in a State either on
the report of the Governor or otherwise when there is failure of the
constitutional machinery in the State.
122. We have referred to the above aspects to lay stress on the
‘quasi-federal’ nature of our Constitution which has been so held by the
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Court in many a decision. We may state that these theoretical concepts
are to be viewed from the practical perspective. In S.R. Bommai’s
case, while interpreting Article 356, the Court observed:-
“That is why the Constitution of India is differently described,
more appropriately as ‘quasi-federal’ because it is a mixture of
the federal and unitary elements, leaning more towards the latter
but then what is there in a name, what is important to bear in mind
is the thrust and implications of the various provisions of the
Constitution bearing on the controversy in regard to scope and
ambit of the Presidential power under Article 356 and related
provisions.”
123. Thus, the need is to understand the thrust and implication of
a provision. To put it differently, the acceptance of ‘pragmatic federalism’
is the need of the day. One aspect needs to be clarified.  The acceptance
of the said principle should not be viewed as a simplistic phenomenon
entrenched in innocence. On the contrary, it would require disciplined
wisdom on the part of those who are required to make it meaningful.
And, the meaning, in essentiality, shall rest on pragmatic orientation.
124. The expression  ‘pragmatic federalism’ in the Indian context
has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein
he observes:-
“It would thus seem that the Indian Constitution has, in it, not only
features of a pragmatic federalism which, while distributing
legislative powers and indicating the
spheres of Governmental
powers of State and Central Governments, is overlaid by strongly
‘unitary’ features, particularly exhibited by lodging in Parliament
the residuary legislative powers, and in the Central Government
the executive power of appointing certain Constitutional
functionaries including High Court and Supreme Court Judges
and issuing appropriate directions to the State Governments and
even displacing the State Legislatures and the Government in
emergency situations, vide Articles 352 to 360 of the Constitution.”
125. The concept of pragmatic federalism is self explanatory.  It
is a form of federalism which incorporates the traits and attributes of
sensibility and realism. Pragmatic federalism, for achieving the
constitutional goals, leans on the principle of permissible practicability.
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126. It is useful to state that pragmatic federalism has the inbuilt
ability to constantly evolve with the changing needs and situations. It is
this dynamic nature of pragmatic federalism which makes it apt for a
body polity like ours to adopt. The foremost object of the said concept is
to come up with innovative solutions to problems that emerge in a federal
setup of any kind.
K. Concept of federal balance:
127. Another complementary concept in this context, we think, is
“federal balance”. Federalism in contradistinction to centralism is a
concept which envisions a form of Government where there is a
distribution of powers between the States and the Centre. It has been
advocated by the patrons of the federal theory that the States must
enjoy freedom and independence as much as possible and at the very
least be on an equal footing with the Centre. The Indian Constitution
prescribes a federal structure which provides for division of powers
between the States and the Centre, but with a slight tilt towards the
Centre. This unique quasi-federal structure is inherent in the various
provisions of the Constitution as it was felt by the framers of our
Constitution keeping in mind the needs of independent India and that is
why, the residuary powers in most, if not all, matters have remained with
the Centre. This, however, is not unconditional as the Constitution has
provided for a federal balance between the powers of the
Centre and
the States so that there is no unwarranted or uncalled for interference
by the Centre which would entail encroachment by the Centre into the
powers of the States.  The need is for federal balance which requires
mutual respect and deference to actualize the workability of a
constitutional provision.
128. Sawer’s ‘federal principles’ reiterate this concept of federal
balance when he states:-
“power of the centre is limited, in theory at least, to those
matters which concern the nation as a whole. The regions
are intended to be as free as possible to pursue their own
local interest.”
129. The interest of the States inherent in a federal form of
government gains more importance in a democratic form of government
as it is absolutely necessary in a democracy that the will of the people is
given effect to. To subject the people of a particular State/region to the
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governance of the Union, that too, with respect to matters which can be
best legislated at the State level goes against the very basic tenet of a
democracy. The principle of federal balance which is entrenched in our
Constitution has been reiterated on several instances holding that the
Centre and the States must act within their own spheres. In In re:
Under Article 143, Constitution of India, (Special Reference No. 1
of 1964) (supra), the Constitution Bench observed:-
“...the essential characteristic of federalism is the distribution of
limited executive, legislative and judicial authority among bodies
which are coordinate with and independent of each other’. The
supremacy of the Constitution is fundamental to the existence of
a federal State in order to prevent either the legislature of the
federal unit or those of the member States from destroying or
impairing that delicate balance of power which satisfies the
particular requirements of States which are desirous of union, but
not prepared to merge their individuality in a unity. This supremacy
of the Constitution is protected by the authority of an independent
judicial body to act as the interpreter of a scheme of distribution
of powers.”
             [Underlining is ours]
130. In UCO Bank v. Dipak Debbarma48, the Court has made
several observations on the federal character of our Constitution and
the need to maintain the federal balance which has been envisaged in
our Constitution to prevent any
usurpation of power either by the Centre
or the States. We reproduce the same with profit:-
“The federal structure under the constitutional scheme can also
work to nullify an incidental encroachment made by the
Parliamentary legislation on a subject of a State legislation where
the dominant legislation is the State legislation. An attempt to keep
the aforesaid constitutional balance intact and give a limited
operation to the doctrine of federal supremacy can be discerned
in the concurring judgment ofRuma Pal, J. inITC Ltd. vs.
Agricultural Produce Market Committee and Ors., wherein
after quoting the observations of this Court in the case of S.R.
Bomai v. Union of India (para 276), the learned Judge has gone
to observe as follows (para 94 of the report):
48 (2017) 2 SCC 585
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“276. The fact that under the scheme of our Constitution,
greater power is conferred upon the Centre vis-a-vis the States
does not mean that States are mere appendages of the Centre.
Within the sphere allotted to them, States are supreme. The
Centre cannot tamper with their powers. More particularly,
the courts should not adopt an approach, an interpretation, which
has the effect of or tends to have the effect of whittling down
the powers reserved to the States.””
131. Thus, the role of the Court in ensuring the federal balance,
as mandated by the Constitution, assumes great importance.  It is so as
the Court is the final arbiter and defender of the Constitution.
L. Interpretation of the Constitution:
132. We have already said that both the parties have projected
their view in extremes.  The issue deserves to be adjudged regard being
had to the language employed in the various articles in Chapter VIII, the
context and various constitutional concepts.  If the construction sought
to be placed by the appellant is accepted, such an acceptation would
confer a status on NCT of Delhi which the Parliament in exercise of its
constituent power has not conceived. The respondents, per contra,
highlight that by the constitutional amendment, introduction of the 1991
Act and the Rules of Business, the Lieutenant Governor functions as
the administrator in the truest sense as the contemporaneous documents
leading to the amendment
would show.  They would submit that though
Delhi has been conferred a special status, yet that does not bring any
new incarnation. The submission, as we perceive, destroys the
fundamental marrows of the conception, namely, special status. It, in
fact, adorns the Lieutenant Governor with certain attributes and seeks
to convey that NCT of Delhi remains where it was. The approach in
extremes is to be adjudged and the adjudication, as it seems to us, would
depend upon the concepts we have already adumbrated and further we
have to carefully analyse the principles of the interpretation of the
Constitution.
133. The task of interpreting an instrument as dynamic as the
Constitution assumes great import in a democracy. The Constitutional
Courts are entrusted with the critical task of expounding the provisions
of the Constitution and further while carrying out this essential function,
they are duty bound to ensure and preserve the rights and liberties of the
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citizens without disturbing the very fundamental principles which form
the foundational base of the Constitution.  Although, primarily, it is the
literal rule which is considered to be the norm which governs the courts
of law while interpreting statutory and constitutional provisions, yet mere
allegiance to the dictionary or literal meaning of words contained in the
provision may, sometimes, annihilate the quality of poignant flexibility
and requisite societal progressive adjustability.  Such an approach may
not eventually subserve the purpose of a living document.
134. In this regard, we think it appropriate to have a bird’s eye
view as to how the American jurists and academicians have contextually
perceived the science of constitutional interpretation. The most important
aspect of modern constitutional theory is its interpretation. Constitutional
law is a fundamental law of governance of a politically organised society
and it provides for an independent judicial system which has the onerous
responsibility of decisional process in the sphere of application of the
constitutional norms. The resultant consequences do have a vital impact
on the well-being of the people. The principles of constitutional
interpretation, thus, occupy a prime place in the method of adjudication.
In bringing about constitutional order through interpretation, the judiciary
is often confronted with two propositions - whether the provisions of the
Constitution should be interpreted
as it was understood at the time of
framing of the Constitution unmindful of the circumstances at the time
when it was subsequently interpreted or whether the constitutional
provisions should be interpreted in the light of contemporaneous needs,
experiences and knowledge. In other words, should it be historical
interpretation or contemporaneous interpretation.49 The theory of
historical perspective found its votary in Chief Justice Taney who
categorically stated in Dred Scott v Sanford50 that as long as the
Constitution continues to exist in the present form, it speaks not only in
the same words but also with the same meaning and intent with which it
spoke when it came from the hands of the framers. Similar observations
have been made by Justice Sutherland51. Propagating a different angle,
49 Bodenheimer, Edgar, Jurispurudence, (Universal Law Publishing Co. Pvt. Ltd,
50  60 U.S. (19 How.) 393 (1857)
51   Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) see West Coast
Hotel Co., v Parrish, 300 US 379 (1937) where he observed, the meaning of the
Constitution does not change with the ebb and flow of economic events that (if) the
words of the Constitution mean today what they did not mean when written is to rob
that instrument of the essential element...
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Chief Justice Marshall in McCulloch v Maryland52 has observed that
the American Constitution is intended to serve for ages to come and it
should be adopted to various crises of human affairs. Justice Hughes in
State v. Superior Court53 observed that the constitutional provisions
should be interpreted to meet and cover the changing conditions of social
life and economic life. Justice Holmes observed that the meaning of the
constitutional terms is to be gleaned from their origin and the line of their
growth.54 Cardozo once stated:-
“A Constitution states or ought to state not rules for the passing
hour but principles for an expanding future.”55
It would be interesting to note that Justice Brandeis tried to draw
a distinction between interpretation and application of constitutional
provisions56. The Constitution makers in their wisdom must have
reasonably envisaged the future needs and attempted at durable
framework of the Constitution. They must not have made the Constitution
so rigid as to affect the future. There is a difference between modification
and subversion of the provisions of the Constitution through interpretation.
The view is that there is sufficient elasticity but fundamental changes
are not envisaged by interpretation. Thus, there is a possibility of reading
into the provisions certain regulations or amplifications which are not
directly dealt with. There is yet another angle that the libertarian’s
absolutism principle never allows for restrictions to be read into the
liberties which are not already mentioned in the Constitution.57
135. Our Constitution, to repeat at the cost of repetition, is an
organic and living document. It contains words that potentially do have
many a concept.  It is evident from the following passage from R.C.
Poudyal v. Union of India and others58:-
“In the interpretation of a constitutional document, “words are but
the framework of concepts and concepts may change more than
words themselves”. The significance of the change of the concepts
52 17 US (4Wheat) 316 (1819)
53 State v. Superior Court (1944) at 547
54 Gompers v. US 233 (1914)
55 Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921
56 Burnett v Coronado Oil and Gas Co., 285 US (1932)
57 The activist Libertarians like Justice Black and Douglas never allowed reading such
restrictions.  See American Communication Association v Douds 339 US (1950) and
    dissenting in Poulos v New Hamshire, 345 US(1953)
58  AIR 1993 SC 1804
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themselves is vital and the constitutional issues are not solved by
a mere appeal to the meaning of the words without an acceptance
of the line of their growth. It is aptly said that “the intention of a
Constitution is rather to outline principles than to engrave
details””.”
136. Professor Richard H. Fallon has, in his celebrated work59,
identified five different strands of interpretative considerations which
shall be taken into account by judges while interpreting the Constitution.
They read thus:-
“Arguments from the plain, necessary, or meaning of the
constitutional text; arguments about the intent of the framers;
arguments of constitutional theory that reason from the
hypothesized purposes that best explain either particular
constitutional provisions or the constitutional text as a whole;
arguments based on judicial precedent; and value arguments that
assert claims about justice and social policy.”60
137. Comparing the task of interpretation of statute to that of
interpretation of musical notes, Judge Hand in the case of Helvering v.
Gregory61 stated:-
“The meaning of a sentence may be more than that of the separate
words, as a melody is more than the words.”
138. Jerome N. Frank62, highlighting the corresponding duty of
the public in allowing discretion to the Judges, has observed:-
“a “wise composer” expects a performer to transcend literal
meaning in interpreting his score; a wise public should allow a
judge to do the same.”
139. The room for
discretion while interpreting constitutional
provisions allows freedom to the Judges to come up with a formula
which is in consonance with the constitutional precepts while
simultaneously resolving the conflict in issue. The following observations
made in S.R. Bommai’s case,throw light on the aforesaid perception:-
59 Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional Interpreta-
tion”, Harvard Law Review Association, 1987
60 100 HARV. L. REV. 1189, 1189-90 (1987).10
61 69 F. 2d 809, 810-II (1934)
62 Jerome N. Frank, “Words and Music: Some remarks on Statutory Interpretation,”
Columbia Law Review 47 (1947): 1259-1367
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“Constitutional adjudication is like no other decision-making. There
is a moral dimension to every major constitutional case; the
language of the text is not necessarily a controlling factor. Our
Constitution works because of its generalities, and because of the
good sense of the judges when interpreting it. It is that informed
freedom of action of the judges that helps to preserve and protect
our basic document of governance.”
140. It is imperative that judges must remain alive to the idea that
the Constitution was never intended to be a rigid and inflexible document
and the concepts contained therein are to evolve over time as per the
needs and demands of the situation. Although the rules of statutory
interpretation can serve as a guide, yet the constitutional courts should
not, for the sake of strict compliance to these principles, forget that
when the controversy in question arises out of a constitutional provision,
their primary responsibility is to work out a solution.
141. In Supreme Court Advocates-on-Record Association
(supra), this Court, acknowledging the sui generis nature of the
Constitution, observed thus:-
“The constitutional provisions cannot be cut down by technical
construction rather it has to be given liberal and meaningful
interpretation. The ordinary rules and presumptions, brought in
aid to interpret the statutes, cannot be made applicable while
interpreting the provisions of the Constitution.
In Minister of Home
Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian
Constitution, Lord Wilberforce reiterated that a Constitution is a
document “sui generis, calling for principles of interpretation of its
own, suitable to its character””
142. Dickson, J., in Hunter v. Southam Inc63, rendering the
judgment of the Supreme Court of Canada, expounded the principle
pertaining to constitutional interpretation thus:-
“The task of expounding a constitution is crucially different from
that of construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the legitimate
exercise of governmental power and, when joined by a Bill or a
63 [1984] 2 SCR 145
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Charter of Rights, for the unremitting protection of individual rights
and liberties. Once enacted, its provisions cannot easily be repealed
or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical
realities often unimagined by its framers. The judiciary is the
guardian of the constitution and must, in interpreting its provisions,
bear these considerations in mind. Professor Paul Freund
expressed this idea aptly when he admonished the American courts
‘not to read the provisions of the Constitution like a last will and
testament lest it become one’.”
143. The Supreme Court of Canadaalso reiterated this view when
it held that the meaning of ‘unreasonable’ cannot be determined by
recourse to a dictionary or, for that matter, by reference to the rules of
statutory construction. The Court pointed out that the task of expounding
a Constitution is crucially different from that of construing a statute, for
a statute defines present rights and obligations and is easily enacted and
as easily repealed whereas a Constitution is drafted with an eye to the
future and its function is to provide a continuing framework for the
legitimate exercise of governmental power. Further, the Court observed
that once enacted, constitutional provisions cannot easily be repealed or
amended and hence, it must be capable of growth and development
over time to meet new social, political and historical realities often
unimagined by its framers and the judiciary, being the guardian of the
Constitution, must bear these considerations in mind while interpreting
it. The Court further stated that the judges must take heed to the warning
of Professor Paul Freund when he said that the role of the judges is “not
to read the provisions of the Constitution like a last will and testament,
lest it becomes one”.
144. This idea had pervaded the legal system way back in 1930
when the Privy Council through Lord Sankey LC in Edwards v Attorney
General for Canada64 had observed that the Constitution must be
approached as “a living tree capable of growth and expansion within its
natural limits”.
145. Professor Pierre-André Côté in his book65 has highlighted
the action based approach by stating that it must be kept in mind that the
64  [1930] AC 124, 136
65  Pierre-André Côté, The Interpretation of Legislation in Canada 2nd Ed (Cowansville.
    Quebec:Les Editions Yvon Blais. Inc. 1992)
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end goal of the process of legal interpretation is resolution of conflicts
and issues. It would be apt to reproduce his words:-
“Legal interpretation goes beyond the mere quest for historical
truth. The judge, in particular, does not interpret a statute solely
for the intellectual pleasure of reviving the thoughts that prevailed
at the time the enactment was drafted. He interprets it with an
eye to action: the application of the statute. Legal interpretation is
thus often an “interpretive operation’’, that is, one linked to the
resolution of concrete issues.”
M. Purposive interpretation:
146. Having stated the principles relating to constitutional
interpretation we, as presently advised, think it apt to devote some space
to purposive interpretation in the context, for we shall refer to the said
facet for understanding the core controversy. It needs no special emphasis
that the reference to some precedents has to be in juxtaposition with
other concepts and principles. As it can be gathered from the discussion
as well as the authorities cited above, the literal rule is not to be the
primary guiding factor in interpreting a constitutional provision, especially
if the resultant outcome would not serve the fructification of the rights
and values expressed in the Constitution. In this scenario, the theory of
purposive interpretation has gained importance where the courts shall
interpret the Constitution in a purposive
manner so as to give effect to its
true intention. The Judicial Committee in Attorney General of Trinidad
and Tobago v. Whiteman66 has observed:-
“The language of a Constitution falls to be construed, not in a
narrow and legalistic way, but broadly and purposively, so as to
give effect to its spirit…”
147. In S.R. Chaudhuri v. State of Punjab and others67, a three-
Judge Bench has opined that constitutional provisions are required to be
understood and interpreted with an object-oriented approach and a
Constitution must not be construed in a narrow and pedantic sense. The
Court, while holding that the Constituent Assembly debates can be taken
aid of, observed the following:-
“The words used may be general in terms but, their full import
and true meaning, has to be appreciated considering the true
66 [1991] 2 AC 240, 247
67 (2001) 7 SCC 126
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context in which the same are used and the purpose which they
seek to achieve.”
(Emphasis is ours)
148. The Court further highlighted that the Constitution is not just
a document in solemn form but a living framework for the government
of the people exhibiting a sufficient degree of cohesion and its successful
working depends upon the democratic spirit underlying it being respected
in letter and in spirit.
149. We have duly noted in the earlier part of the judgment that
the judiciary must interpret the Constitution having regard to the spirit
and further by adopting a method of purposive interpretation. That is the
obligation cast on the judges. In Ashok Kumar Gupta and another v.
State of U.P. and others68, the Court observed that while  interpreting
the Constitution, it must be borne in mind that words of width are both a
framework of concepts and means to the goals in the Preamble and
concepts may keep changing to expand and elongate the rights. The
Court further held that constitutional issues are not solved by mere appeal
to the meaning of the words without an acceptance of the line of their
growth and, therefore, the judges should adopt purposive interpretation
of the dynamic concepts of the Constitution and the Act with its
interpretative armoury to articulate the felt necessities of the time. Finally,
the Court pointed out:-
“To construe law one must enter into its spirit, its setting and
history.”
150. In Indian Medical Association v. Union of
India and
others69, referring to the pronouncement in M. Nagaraj v. Union of
India70, the Court said:-
“In M. Nagaraj, Kapadia J., (as he then was) speaking for the
Court, recognized that one of the cardinal principles of
constitutional adjudication is that the mode of interpretation ought
to be the one that is purposive and conducive to ensure that the
constitution endures for ages to come. Eloquently, it was stated
that the “Constitution is not an ephemeral legal document
embodying a set of rules for the passing hour”.”
(Emphasis is ours)
68 (1997) 5 SCC 201
69 (2011) 7 SCC 179
70 (2006) 8 SCC 202
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151. The emphasis on context while interpreting constitutional
provisions has burgeoned this shift from the literal rule to the purposive
method in order that the provisions do not remain static and rigid. The
words assume different incarnations to adapt themselves to the current
demands as and when the need arises. The House of Lords in Regina
(Quintavalle) v. Secretary of State for Health71 ruled:-
“The pendulum has swung towards purposive methods of
construction. This change was not initiated by the teleological
approach of European Community jurisprudence, and the influence
of European legal culture generally, but it has been accelerated
by European ideas: see, however, a classic early statement of the
purposive approach by Lord Blackburn in River Wear
Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL).
In any event, nowadays the shift towards purposive interpretation
is not in doubt. The qualification is that the degree of liberality
permitted is influenced by the context. ...”
[Emphasis is supplied]
152. Emphasizing on the importance of determining the purpose
and object of a provision, Learned Hand, J. in Cabell v. Markham72
enunciated:-
“Of course it is true that the words used, even in their literal sense,
are the primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature
and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some
purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”
153. The components of purposive interpretation have been
elucidated by Former President of  the Supreme Court of Israel, Aharon
Barak, who states:-
“Purposive interpretation is based on three components: language,
purpose, and discretion. Language shapes the range of semantic
possibilities within which the interpreter acts as a linguist. Once
71 (2003) UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL)
72 148 F 2d 737 (2d Cir 1945)
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the interpreter defines the range, he or she chooses the legal
meaning of the text from among the (express or implied) semantic
possibilities. The semantic component thus sets the limits of
interpretation by restricting the interpreter to a legal meaning that
the text can bear in its (public or private) language.”73
154. As per the observations made by Aharon Barak, judges
interpret a Constitution  according to its purpose which comprises of the
objectives, values and principles that the constitutional text is designed
to actualize. Categorizing this purpose into objective and subjective
purpose, he states74:-
“Subjective component is the goals, values, and principles that the
constituent assembly sought to achieve through it, at the time it
enacted the constitution. It is the original intent of the founding
fathers. Purposive interpretation translates such intent into a
presumption about the subjective purpose, that is, that the ultimate
purpose of the text is to achieve the (abstract) intent of its authors.
There is also, however, the objective purpose of the text -  the
goals, values, and principles that the constitutional text is designed
to achieve in a modern democracy at  the time of interpretation.
Purposive interpretation translates this purpose into the presumption
that the ultimate purpose of the constitution is its objective
purpose.”
[Emphasis supplied]
155. It is also apt to reproduce the observations made by him in
the context of the ever
changing nature of the  Constitution:-
“A constitution is at the top of a normative pyramid. It is designed
to guide human behavior for a long period of time. It is not easily
amendable. It uses many open ended expressions. It is designed
to shape the character of the state for the long term. It lays the
foundation for the state’s social values and aspirations. In giving
expression to this constitutional uniqueness, a judge interpreting a
constitution must accord significant weight to its objective purpose
and derivative presumptions. Constitutional provisions should be
interpreted according to society’s basic normative positions at the
time of interpretation.”
73 Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 -
     Law
74 ibid
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156. He has further pointed out that both the subjective as well as
the objective purposes have their own significance in the interpretation
of constitutional provisions:-
“The intent of the constitutional founders (abstract subjective
intent” remains important. We need the past to understand the
present. Subjective purpose confers historical depth, honoring the
past and its importance. In purposive interpretation, it takes the
form of presumption of purpose that applies immediately,
throughout the process of interpreting a constitution. It is not,
however, decisive. Its weight is substantial immediately following
the founding, but as time elapses, its influence diminishes. It cannot
freeze the future development of the constitutional provision.
Although the roots of the constitutional provision are in the past,
its purpose is determined by the needs of the present, in order to
solve problems in the future. In a clash between subjective and
objective purposes, the objective purpose of a constitution prevails.
It prevails even when it is possible to prove subjective purpose
through reliable, certain, and clear evidence. Subjective purpose
remains relevant, however, in resolving contradictions between
conflicting objective purposes.”75
N. Constitutional culture and pragmatism:
157. “Constitutional culture” is inherent in the concepts where
words are transformed into concrete consequences. It is an interlocking
system of
practices, institutional arrangements, norms and habits of thought
that determine what questions we ask, what arguments we credit, how
we process disputes and how we resolve those disputes.76
158. The aforestated definition of the term ‘constitutional culture’
is to be perceived as set of norms and practices that breathe life into the
words of the great document. It is the conceptual normative spirit that
transforms the Constitution into a dynamic document. It is the
constitutional culture that constantly enables the words to keep in stride
with the rapid and swift changes occurring in the society.
159. The responsibility of fostering a constitutional culture falls on
the shoulders of the State and the populace. The allegiance to promoting
a constitutional culture stems from the crying need of the sovereign to
75  ibid
76  Andrew M. Siegel, Constitutional Theory, Constitutional Culture, 18 U.PA.J. Const.
     L. 1067 (2016)
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ensure that the democratic nature of our society remains undaunted and
the fundamental tenets of the Constitution rest on strong platform.
160. The following observations made by the Court in R.C. Poudyal
(supra) throw light on this duty cast upon the functionaries and the
citizens:-
“Mere existence of a Constitution, by itself, does not ensure
constitutionalism or a constitutional culture. It is the political
maturity and traditions of a people that import meaning to a
Constitution which otherwise merely embodies political hopes and
ideals.”
161. The Constitutional Courts, while interpreting the constitutional
provisions, have to take into account the constitutional culture, bearing in
mind its flexible and evolving nature, so that the provisions are given a
meaning which reflect the object and purpose of the Constitution.
162. History reveals that in order to promote and nurture this
spirit of constitutional culture, the Courts have adopted a pragmatic
approach of interpretation which has ushered in an era of “constitutional
pragmatism”.
163. In this context, we may have some perspective from the
American approach. The perception is that language is a social and
contextual enterprise; those who live in a different society and use
language differently cannot reconstruct the original meaning. Justice
Brennan observed:-
“We current Justices read the Constitution in the only way that
we can: as Twentieth-Century Americans. We look to the history
of the time
of framing and to the intervening history of
interpretation. But the ultimate question must be, what do the words
of the text mean in our time? For the genius of the Constitution
rests not in any static meaning it might have had in a world that is
dead and gone, but in the adaptability of its great principles to
cope with current problems and current needs. What the
constitutional fundamentals meant to the wisdom of other times
cannot be their measure to the vision of our time. Similarly, what
those fundamentals mean for us, our descendants will learn, cannot
be the measure to the vision of their time.”77
77 William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratifi-
cation, in interpreting The Constitution: The Debate Over Oreiginal Intent at 23, 27
(Jack N. Rakove ed., 1990)
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164. In Supreme Court Advocates-on-Record-Association and
others v. Union of India78, the Court, while emphasizing on the aspect
of constitutional culture that governs the functioning of any constitutional
body, has observed:-
“The functioning of any constitutional body is only disciplined by
appropriate legislation. Constitution does not lay down any
guidelines for the functioning of the President and Prime Minister
nor the Governors or the Chief Ministers. Performance of
constitutional duties entrusted to them is structured by legislation
and constitutional culture. The provisions of the Constitution cannot
be read like a last will and testament lest it becomes one.”
165. Further, the Court also highlighted that a balance between
idealism and pragmatism is inevitable in order to create a workable
situation ruling out any absurdity that may arise while adopting either
one of the approaches:-
“The rule of law envisages the area of discretion to be the
minimum, requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks
against arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable in a
satisfactory manner.
xxx
xxx
  xxx
It is this pragmatic interpretation of the Constitution that was
postulated by the Constituent Assembly, which did not feel the
necessity of filling up every detail in the document, as indeed it
was not possible to do so.”
166. In The State of Karnataka and another v. Shri
Ranganatha Reddy and another79, the Court had laid stress on the
obligation and the responsibility of the judiciary not to limit itself to the
confines of  rigid principles or textualism and rather adopt an interpretative
process which takes into consideration the constitutional goals and
constitutional culture:-
78 (2016) 5 SCC 1
79 AIR 1978 SC 215
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“When cryptic phrases expressive of constitutional culture and
aspirational future, fundamental to the governance of the nation,
call for interpretative insight, do we merely rest content to consult
the O.E.D. and alien precedents, or feel the philosophy and share
the foresight of the founding fathers and their telescopic faculty?
Is the meaning of meanings an artless art?”
And again,
“There is a touch of swadeshi about a country’s jurisprudence
and so our legal notions must bear the stamp of Indian
Developmental amplitude linked to constitutional goals.”
167. Laying emphasis on the need for constitutional pragmatism,
the Court in Indra Sawhney  (supra) noted the observations made by
Lord Rockill in his presidential address to the Bentham Club at University
College of London on February 29, 1984 on the subject “Law Lords,
Reactionaries or Reformers?” which read as follows:-
“Legal policy now stands enthroned and will I hope remain one of
the foremost considerations governing the development by the
House of Lords of the common law. What direction should this
development now take? I can think of several occasions upon
which we have all said to ourselves “this case requires a policy
decision - what is the right policy decision?”The answer is, and I
hope will hereafter be, to follow that route which is most consonant
with the current needs of the society, and which will be seen to be
sensible and will pragmatically thereafter be easy to apply. No
doubt the
Law Lords will continue to be the targets for those
academic lawyers who will seek intellectual perfection rather than
imperfect pragmatism. But much of the common law and virtually
all criminal law, distasteful as it may be to some to have to
acknowledge it, is a blunt instrument by means of which human
beings, whether they like it or not, are governed and subject to
which they are required to live, and blunt instruments are rarely
perfect intellectually or otherwise. By definition they operate
bluntly and not sharply.””
[Emphasis is ours]
168. The Court also observed:-
“Be that as it may, sitting as a Judge one cannot be swayed either
way while interpreting the Constitutional provisions pertaining to
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the issues under controversy by the mere reflexes of the opinion
of any section of the people or by the turbulence created in the
society or by the emotions of the day.
We are very much alive to the fact that the issues with which we
are now facing are hypersensitive, highly explosive and extremely
delicate. Therefore, the permissible judicial creativity in tune with
the Constitutional objectivity is essential to the interpretation of
the Constitutional provisions so that the dominant values may be
discovered and enforced. At the same time, one has to be very
cautious and careful in approaching the issues in a very pragmatic
and realistic manner.
Since this is a constitutional issue it cannot be resolved by clinches
founded on fictional mythological stories or misdirected philosophies
or odious comparisons without any regard to social and economic
conditions but by pragmatic, purposive and value oriented approach
to the Constitution as it is the fundamental law which requires
careful navigation by political set up of the country and any
deflection or deviation disturbing or threatening the social balance
has to be restored, as far as possible, by the judiciary.”
[Emphasis is supplied]
169. Earlier, in Union of India  v. Sankalchand Himatlal Sheth
and another80, the Court had observed that:-
“…in a dynamic democracy, with goals of transformation set up
by the Constitution, the Judge, committee to uphold the founding
faiths and fighting creeds of the nation so set forth, has to act
heedless of executive hubris, socio-economic pressures and die-
hard obscurantism. This occupational heroism, professionally
essential, demands the inviolable independence woven around the
judiciary by our Constitution. Perfection baffles even the framers
of a Constitution, but while on statutory construction of an organic
document regulating and coordinating the relations among
instrumentalities, the highest Court must remember that law,
including the suprema lex, is a principled, pragmatic, holistic
recipe for the behavioral needs and norms of life in the raw-of
individuals, instrumentalities and the play of power and freedom”
80 (1978) 1 SCR 423
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170. The aforesaid passages set two guidelines. First, it permits
judicial creativity and second, it mentions one to be conscious of pragmatic
realism of the obtaining situation and the controversy. That apart, there
is a suggestion to take note of the behavioural needs and norms of life.
Thus, creativity, practical applicability and perception of reality from the
societal perspective are the warrant while engaging oneself with the
process of interpretation of a constitutional provision.
O. Interpretation of Articles 239 and 239A:
171. To settle the controversy at hand, it is imperative that we dig
deep and perform a meticulous analysis of Articles 239, 239A, 239AA
and 239AB all of which fall in Part VIII of the Constitution bearing the
heading, ‘The Union Territories’. For this purpose, let us reproduce the
aforesaid Articles one by one and carry out the indispensable and crucial
task of interpreting them.
172. Article 239 provides for the administration of Union Territories.
It reads as follows:-
“239. Administration of Union Territories.—(1) 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.
(2) Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State as the administrator of an
adjoining Union territory, and where a Governor is
so appointed,
he shall exercise his functions as such administrator independently
of his Council of Ministers.”
(Emphasis is ours)
173. The said Article was brought into existence by the Constitution
(Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing
the words ‘shall’, makes it abundantly clear that every Union territory is
mandatorily to be administered by the President through an administrator
unless otherwise provided by Parliament in the form of a law. Further,
clause (1) of Article 239 also stipulates that the said administrator shall
be appointed by the President with such designation as he may specify.
174. Clause (2) thereafter, being a non-obstante clause, lays down
that irrespective of anything contained in Part VI of the Constitution, the
President may appoint the Governor of a State to act as an administrator
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of a Union Territory which is adjacent and/or contiguous to the State of
which he is the Governor. The Governor of a State who is so appointed
as an administrator of an adjoining UT shall exercise his functions as an
administrator of the said UT independently and autonomously and not as
per the aid and advice of the Council of Ministers of the State of which
he is the Governor.
175. In this regard, the Court, in the case of Shamsher Singh
(supra), has observed thus:-
“The provisions of the Constitution which expressly require the
Governor to exercise his powers in his discretion are contained in
Articles to which reference has been made. To illustrate, Article
239(2) states that where a Governor is appointed an Administrator
of an adjoining Union Territory he shall exercise his functions as
such administrator independently of his Council of Ministers.”
176. Again, the Court, while interpreting Article 239 in Union of
India and others v. Surinder S81, observed:-
“The unamended Article 239 envisaged administration of the States
specified in Part C of the First Schedule of the Constitution by the
President through a Chief Commissioner or a Lieutenant Governor
to be appointed by him or through the Government of a neighbouring
State. This was subject to other provisions of Part VIII of the
Constitution. As against this, amended Article 239 lays down that
subject to any law enacted by Parliament every Union Territory
shall
be administered by the President acting through an
Administrator appointed by him with such designation as he may
specify. In terms of Clause (2) of Article 239 (amended), the
President can appoint the Governor of a State as an Administrator
of an adjoining Union territory and on his appointment, the Governor
is required to exercise his function as an Administrator
independently of his Council of Ministers. The difference in the
language of the unamended and amended Article 239 makes it
clear that prior to 1.11.1956, the President could administer Part
C State through a Chief Commissioner or a Lieutenant Governor,
but, after the amendment, every Union Territory is required to be
administered by the President through an Administrator appointed
by him with such designation as he may specify. In terms of Clause
81 (2013) 1 SCC 403
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2 of Article 239 (amended), the President is empowered to appoint
the Governor of State as the Administrator to an adjoining Union
Territory and once appointed, the Governor, in his capacity as
Administrator, has to act independently of the Council of Ministers
of the State of which he is the Governor.”
177. Now, let us proceed to scan Article 239A of the Constitution
which deals with the creation of local legislatures or Council of Ministers
or both for certain Union Territories. It reads as follows:-
“239A. Creation of local Legislatures or Council of
Ministers or both for certain Union territories.—(1)
Parliament may by law create for the Union territory of
Puducherry—
(a) a body, whether elected or partly nominated and partly elected,
to function as a Legislature for the Union territory, or
(b) a Council of Ministers, or both with such constitution, powers
and functions, in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) shall not be deemed
to be an amendment of this Constitution for the purposes of article
368 notwithstanding that it contains any provision which amends
or has the effect of amending this Constitution.”
178. The aforesaid Article was brought into force by the
Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971,
under Article 239A, the Parliament had the power to create by law
legislatures and/or Council of Ministers for the then Union territories of
Himachal Pradesh,
Tripura, Manipur, Goa and Daman and Diu. Thereafter,
on 25th January, 1971, Himachal Pradesh acquired statehood and
consequently, Himachal Pradesh was omitted from Article 239A.
Subsequently, on 21st January 1972, Tripura and Manipur were granted
statehood as a consequence of which both Manipur and Tripura were
omitted from Article 239A.
179. Likewise, with the enactment of the Goa, Daman and Diu
Reorganisation Act, 1987 on 30th May 1987, both Goa and Daman and
Diu were omitted from Article 239A. The Parliament, under the
Government of Union Territories Act, 1963, created legislatures for the
then Union Territories and accordingly, even after 30th May, 1987, the
applicability of Article 239A stands limited to UT of Puducherry.
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180. As a natural corollary, the Union Territory of Puducherry
stands on a different footing from other UTs of Andaman and Nicobar
Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and
Chandigarh. However, we may hasten to add that Puducherry cannot
be compared with the NCT of Delhi as it is solely governed by the
provisions of Article 239A.
P. Interpretation of Article 239AA of the Constitution
181. We shall now advert to the interpretation of Articles 239AA
and 239AB of the Constitution which are the gravamen of the present
batch of appeals. The said Articles require an elaborate interpretation
and a thorough analysis to unearth and discover the true intention of the
Parliament while inserting the said Articles, in exercise of its constituent
power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said
articles read as follows:-
“239AA. Special provisions with respect to Delhi.—(1) As
from the date of commencement of the Constitution (Sixty-ninth
Amendment) Act, 1991, the Union territory of Delhi shall be called
the National Capital Territory of Delhi (hereafter in this Part
referred to as the National Capital Territory) and the administrator
thereof appointed under article 239 shall be designated as the
Lieutenant Governor.
(2) (a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled by
members chosen by direct election from
territorial constituencies
in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division of
the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters relating
to the functioning of the Legislative Assembly shall be regulated
by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative Assembly
of the National Capital Territory and the members thereof as they
apply, in relation to a State, the Legislative Assembly of a State
and the members thereof respectively; and any reference in articles
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326 and 329 to “appropriate Legislature” shall be deemed to be a
reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any
part of the National Capital Territory with respect to any of the
matters enumerated in the State List or in the Concurrent List in
so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect to
any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a law
made by Parliament with respect to that matter, whether passed
before or after the law made by the Legislative Assembly, or of
an earlier law, other than a law made by the Legislative Assembly,
then, in either case, the law made by Parliament, or, as the case
may be, such earlier law, shall prevail and the law made by the
Legislative Assembly shall, to the extent of the repugnancy, be
void:
    Provided that if any such law made by the Legislative
Assembly has been reserved for the consideration of the President
and has received his assent, such law shall prevail in the National
Capital Territory:
     Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or
repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more
than ten per cent, of the total number of members in the Legislative
Assembly, with the Chief Minister at the head to aid and advise
the Lieutenant Governor in the exercise of his functions in relation
to matters with respect to which the Legislative Assembly has
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power to make laws, except in so far as he is, by or under any
law, required to act in his discretion:
Provided that in the case of difference of opinion between the
Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the Lieutenant
Governor in any case where the matter, in his opinion, is so urgent
that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems
necessary.
(5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the advice
of the Chief Minister and the Ministers shall hold office during the
pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the purposes
of article 368 notwithstanding that it contains any provision which
amends or has the effect of amending, this Constitution.
(8) The provisions of article 239B shall, so far
as may be, apply in
relation to the National Capital Territory, the Lieutenant Governor
and the Legislative Assembly, as they apply in relation to the Union
territory of Puducherry, the administrator and its Legislature,
respectively; and any reference in that article to “clause (1) of
article 239A” shall be deemed to be a reference to this article or
article 239AB, as the case may be.
239AB. Provision in case of failure of constitutional
machinery.—If the President, on receipt of a report from the
Lieutenant Governor or otherwise, is satisfied—
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(a) that a situation has arisen in which the administration of the
National Capital Territory cannot be carried on in accordance
with the provisions of article 239AA or of any law made in
pursuance of that article; or
(b) that for the proper administration of the National Capital
Territory it is necessary or expedient so to do, 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 for such period and subject to such conditions as 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 National Capital Territory in accordance with
the provisions of article 239 and article 239AA.”
[Emphasis supplied]
182. We deem it appropriate to refer to the Statement of Objects
and Reasons for the amendment which reads thus:-
“The question of re-organisation of the Administrative set-up in
the Union territory of Delhi has been under the consideration of
the Government for some time. The Government of India appointed
on 24-12-1987 a Committee to go into the various issues connected
with the administration of Delhi and to recommend measures inter
alia for the streamlining of the administrative set-up. The
Committee went into the matter in great detail and considered the
issues after holding discussions with various individuals,
associations, political parties and other
experts and taking into
account the arrangements in the national Capitals of other countries
with a federal set-up and also the debates in the Constituent
Assembly as also the reports by earlier Committees and
Commissions. After such detailed inquiry and examination, it
recommended that Delhi should continue to be a Union territory
and provided with a Legislative Assembly and a Council of
Ministers responsible to such Assembly with appropriate powers
to deal with matters of concern to the common man. The
Committee also recommended that with a view to ensure stability
and permanence the arrangements should be incorporated in the
Constitution to give the National Capital a special status among
the Union territories.
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2. The Bill seeks to give effect to the above proposals.”
The aforesaid, as we perceive, really conceives of conferring
special status on Delhi. This fundamental grammar has to be kept in
view when we penetrate into the interpretative dissection of Article
239AA and other articles that are pertinent to understand the said
provision.
Q. Status of NCT of Delhi:
183. The first proposition that has been built centering around the
conferment of special status on NCT of Delhi is that it is a State for all
purposes except the bar created pertaining to certain legislative matters.
The bedrock has been structured by placing heavy reliance on the purpose
of the constitutional amendment, the constitutional assurance to the
inhabitants of Delhi and the language employed in sub-article 3(a) of
Article 239AA of the Constitution. We have already referred to the
historical background and also the report submitted by the Balakrishnan
Committee.
184. Mr. Maninder Singh, learned Additional Solicitor General,
would contend that the aid and assistance of the Committee Report can
be taken into consideration to interpret the constitutional provisions and
also the statutory provisions of the 1991 Act. He has referred to certain
authorities for the said purpose. We shall refer to the said authorities at
a later stage. First, we think it seemly to advert to the issue whether the
NCT of Delhi can be called a State in the sense in which the
Constitution
expects one to understand. The said maze has to be cleared first.
185. We may now focus on the decision in Shamsher Singh
(supra). The issue centered around the role and the constitutional status
of the President. In that context, it has been held that the President and
the Governor act on the aid and advice of the Council of Ministers and
the Constitution does not stipulate that the President or the Governor
shall act personally without or against the aid and advice of the Council
of Ministers. Further, the Court held that the Governor can act on his
own accord in matters where he is required to act in his own discretion
as specified in the Constitution and even while exercising the said
discretion, the Governor is required to act in harmony with the Council
of Ministers. We may hasten to add that the President of India, as has
been held in the said case, has a distinguished role on certain occasions.
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We may, in this context, reproduce below certain passages from the
opinion of Krishna Iyer, J.:-
“The omnipotence of the President and of the Governor at State
level — is euphemistically inscribed in the pages of our
Fundamental Law with the obvious intent that even where express
conferment of power or functions is written into the articles, such
business has to be disposed of decisively by the Ministry
answerable to the Legislature and through it vicariously to the
people, thus vindicating our democracy instead of surrendering it
to a single summit soul whose deification is incompatible with the
basics of our political architecture — lest national elections become
but Dead Sea fruits, legislative organs become labels full of sound
and fury signifying nothing and the Council of Ministers put in a
quandary of responsibility to the House of the People and
submission to the personal decision of the head of State. A
Parliamentary-style Republic like ours could not have
conceptualised its self-liquidation by this process. On the contrary,
democratic capital-formation to strengthen the people’s rights can
be achieved only through invigoration of the mechanism of
Cabinet-House-Elections.
We declare the law of this branch of our Constitution to be that
the President and Governor, custodians of all executive and other
powers under various articles shall, by virtue of these provisions,
exercise their formal constitutional powers only upon and in
accordance with the
advice of their Ministers save in a few well-
known exceptional situations. Without being dogmatic or
exhaustive, these situations relate to (a) the choice of Prime
Minister (Chief Minister), restricted though this choice is by the
paramount consideration that he should command a majority in
the House; (b) the dismissal of a Government which has lost its
majority in the House, but refuses to quit office; (c) the dissolution
of the House where an appeal to the country is necessitous,
although in this area the head of State should avoid getting involved
in politics and must be advised by his Prime Minister (Chief
Minister) who will eventually take the responsibility for the step.
We do not examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the action
must be compelled by the peril to democracy and the appeal to
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the House or to the country must become blatantly obligatory. We
have no doubt that de Smith’s statement regarding royal assent
holds good for the President and Governor in India:
“Refusal of the royal assent on the ground that the Monarch
strongly disapproved of a Bill or that it was intensely
controversial would nevertheless- be unconstitutional. The only
circumstances in which the withholding of the royal assent
might be justifiable would be if the Government itself were to
advise such a course — a highly improbable contingency —
or possibly if it was notorious that a Bill had been passed in
disregard to mandatory procedural requirements; but since the
Government in the latter situation would be of the opinion that
the deviation would not affect the validity of the measure once
it had been assented to. prudence would suggest the giving of
assent.”
[Emphasis supplied]
186. That apart, A.N. Ray, C.J., in Shamsher Singh (supra), has
stated thus:-
“Article 163(1) states that there shall be a Council of Ministers
with the Chief Minister at the head to aid and advice the Governor
in the exercise of Was functions, except in so far as he is by or
under this Constitution, required to exercise his functions or any
of them in his discretion. Article 163(2) states that if any question
arises whether any matter is or is not a matter as respects which
the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be
final and the validity of anything done by the Governor shall not
be called in question on the ground that ought or ought not to have
acted in his discretion. Extracting the words “in his discretion” in
relation to exercise of functions, the appellants contend that the
Council of Ministers may aid and advise the Governor in Executive
functions but the Governor individually and personally in his
discretion will exercise the constitutional functions of appointment
and removal of officers in State Judicial Service and other State
Services. It is noticeable that though in Article 74 it is stated that
there shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President in the exercise of his
functions, there is no provision in Article 74 comparable to Article
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163 that the aid and advice is except in so far as he is required to
exercise his functions or any of them in his discretion. It is
necessary to find out as to why the words, in his discretion’ are
used in relation to some powers of the Governor and not in the
case of the President. Article 143 in the Draft Constitution became
Article 163 in the Constitution. The draft constitution in Article
144(6) said that the functions of the Governor under Article with
respect to the appointment and dismissal of Ministers shall be
exercised by him in his discretion. Draft Article 144(6) was totally
omitted when Article 144 became Article 164 in the Constitution.
Again Draft Article 153(3) said that the functions of the Governor
under clauses (a) and (c) of clause (2) of the Article shall be
exercised by him in his discretion. Draft Article 153(3) was totally
omitted when it became Article 174 of our Constitution. Draft
Article 175 (proviso) said that the Governor “may in his discretion
return the Bill together with a message requesting that the House
will reconsider the Bill”. Those words that “the Governor may in
his discretion” were omitted when it became Article 200. The
Governor under Article 200 may return the Bill with a message
requesting that the House will reconsider the Bill. Draft Article
188 dealt with provisions in case of grave emergencies, clauses
(1) and (4) in Draft Article 188 used to words “in his discretion in
relation to exercise of power by the
Governor. Draft Article 188
was totally omitted Draft Article 285(1) and (2) dealing with
composition and staff of Public Service Commission used the
expression “in his discretion” in relation to exercise of power by
the Governor in regard to appointment of the Chairman and
Members and making of regulation. The words “in his discretion”
in relation to exercise of power by the Governor were omitted
when it became Article 316. In Paragraph 15 (3) of the Sixth
Schedule dealing with annulment or suspension of acts or
suspension of acts and resolutions of District and Regional Councils
it was said that the functions of the Governor under the Paragraph
shall be exercised by him in his discretion. Sub-paragraph 3 of
Paragraph 15 of the Sixth Schedule was omitted at the time of
enactment of the Constitution.
It is, therefore, understood in the background of these illustrative
draft articles as to why Article 143 in the Draft Constitution which
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became Article 163 in our Constitution used the expression “in his
discretion” in regard to some powers of the Governor.”
[Emphasis supplied]
187. Thereafter,  A.N. Ray, C.J. discussed the provisions of the
Constitution as well as a couple of paragraphs of the Sixth Schedule
wherein the words “in his discretion” are used in relation to certain powers
of the Governor to highlight the fact that a Governor can act in his
discretion only when the provisions of the Constitution so permit.
188. In this context, we may refer with profit to the authority in
Devji Vallabhbhai Tandel and others v. Administrator of Goa,
Damanand Diu and another82.In the said case, the issue that arose
for consideration was whether the role and functions of the Administrator
stipulated under the Union Territories Act, 1963 is similar to those of a
Governor of a State and as such, whether the Administrator has to act
on the “aid and advice” of the Council of Ministers. The Court considered
the relevant provisions and after comparing the language of Articles 74
and 163 of the Constitution with the language of Section 44 of the Union
Territories Act, 1963, it observed that the Administrator, even in matters
where he is not required to act in his discretion under the Act or where
he is not exercising any judicial or quasi-judicial functions, is not bound
to act according to the advice of the Council of Ministers and the same
is manifest from the
proviso to Section 44(1). The Court went on to
say:-
“It transpires from the proviso that in the event of a difference of
opinion between the Administrator and his Ministers on any matter,
the Administrator shall refer the matter to the President for decision
and act according to the decision given thereon by the President.
If the President in a given situation agrees with what the
Administrator opines contrary to the advice of the Council the
Administrator would be able to override the advice of the Council
of Ministers and on a reference to the President under the proviso,
obviously the President would not according to the advice of the
Council of Ministers given under Article 74. Virtually, therefore,
in the event of a difference of opinion between the Council of
Ministers of the Union territory and the Administrator, the right to
decide would vest in the Union Government and the Council of
Ministers of the Union territory would be bound by the view taken
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by the Union Government. Further, the Administrator enjoys still
some more power to act in derogation of the advice of the Council
of Ministers. The second limb of the proviso to Section 44(1)
enables the Administrator that in the event of a difference of opinion
between him and the Council of Ministers not only he can refer
the matter to the President but during the interregnum where the
matter is in his opinion so urgent that it is necessary for him to
take immediate action, he has the power to take such action or to
give such directions in the matter as he deems necessary. In other
words, during the interregnum he can completely override the
advice of the Council of Ministers and act according to his light.
Neither the Governor nor the President enjoys any such power.
This basic functional difference in the powers and position enjoyed
by the Governor and the President on the one hand and the
Administrator on the other is so glaring that it is not possible to
hold on the analogy of the decision in Shamsher Singh’s case that
the Administrator is purely a constitutional functionary bound to
act on the advice of the Council of Ministers and cannot act on
his own.”
[Emphasis supplied]
189. Be it noted, Devji ValabhbhaiTandel (supra) depicts a pre
Sixty-ninth amendment scenario. On that foundation, it is submitted by
the learned counsel for the appellant to buttress the submission that after
the amendment, the status of NCT of Delhi is that of State and the
role
of the Lieutenant Governor is equivalent to that of the Governor of State
who is bound by the aid and advice of the Council of Ministers.
190. Now, let us allude to the post Sixty-ninth amendment nine-
Judge Bench decision in New Delhi Municipal Corporation (supra)
wherein B.P. Jeevan Reddy, J., speaking for the majority after taking
note of the rivalised submissions pertaining to “Union Taxation”, referred
to the decisions in Sea Customs Act, Re83 and came to hold thus:-
“152. ... In the year 1991, the Constitution did provide for a
legislature for the Union Territory of Delhi [National Capital
Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article
239-AA) but even here the legislature so created was not a full-
fledged legislature nor did it have the effect of — assuming that it
could — lift the National Capital Territory of Delhi from Union
Territory category to the category of States within the meaning of
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Chapter I of Part XI of the Constitution. All this necessarily means
that so far as the Union Territories are concerned, there is no
such thing as List I, List II or List III. The only legislative body is
Parliament — or a legislative body created by it. Parliament can
make any law in respect of the said territories — subject, of course,
to constitutional limitations other than those specified in Chapter
I of Part XI of the Constitution.”
And again:-
“155. ... it is necessary to remember that all the Union Territories
are not situated alike. There are certain Union territories (i.e.,
Andaman and Nicobar Islands and Chandigarh) for which there
can be no legislature at all-as on today. There is a second category
of Union Territories covered by Article 239-A (which applied to
Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and
Pondicherry - now, of course, only Pondicherry survives in this
category, the rest having acquired Statehood) which have
legislatures by courtesy of Parliament. The Parliament can, by
law, provide for Constitution of legislatures for these States and
confer upon these legislatures such powers, as it may think
appropriate. The Parliament had created legislatures for these
Union territories under the “The Government of India Territories
Act, 1963”, empowering them to make laws with respect to
matters in List-II and List-Ill, but subject to its over-riding power.
The third category is Delhi. It
had no legislature with effect from
November 1, 1956 until one has been created under and by virtue
of the Constitution Sixty-Ninth (Amendment) Act, 1991 which
introduced Article 239-AA. We have already dealt with the special
features of Article 239-AA and need not repeat it. Indeed, a
reference to Article 239-B read with Clause (8) of Article 239-
AA shows how the Union Territory of Delhi is in a class by itself
but is certainly not a State within the meaning of Article 246 or
Part-VI of the Constitution. In sum, it is also a territory governed
by Clause (4) of Article 246. ...”
[Emphasis supplied]
191. Thus, New Delhi Municipal Corporation (supra) makes it
clear as crystal that all Union Territories under our constitutional scheme
are not on the same pedestal and as far as the NCT of Delhi is concerned,
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it is not a State within the meaning of Article 246 or Part- VI of the
Constitution. Though the NCT of Delhi partakes a unique position after
the Sixty- Ninth Amendment, yet in sum and substance, it remains a
Union Territory which is governed by Article 246(4) of the Constitution
and to which the Parliament, in the exercise of its constituent power, has
given the appellation of the ‘National Capital Territory of Delhi’.
192. For ascertaining the binding nature of aid and advice upon
the President and the Governor on one hand and upon the Lieutenant
Governor of Delhi on the other, let us conduct a comparative analysis of
the language employed in Articles 74 and 163 on one hand and Article
239AA on the other. For this purpose, we may reproduce Articles 74
and 163 which read thus:-
“74. Council of Ministers to aid and advise President
(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice:
Provided that the President may require the council of Ministers
to reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after
such reconsideration.
(2) The question whether any, and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any court.
163. Council of Ministers to aid and advise Governor’s
(1) There shall be a council of
Ministers with the chief Minister at
the head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under this constitution
required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered
by Ministers to the Governor shall not be inquired into in any court.”
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193. It is vivid from Article 74 that the President is always bound
by the aid and advice of the Union Council of Ministers except a few
well known situations which are guided by constitutional conventions.
The Constitution, however, does not lay down any express provision
which allows the President to act as per his discretion.
194. The Governor of a State, as per Article 163, is bound by the
aid and advice of his Council of Ministers in the exercise of his functions
except where he is, by or under the Constitution, required to exercise his
functions or any of them in his discretion. Thus, the Governor may act in
his discretion only if he is so permitted by an express provision of the
Constitution.
195. As far as the Lieutenant Governor of Delhi is concerned, as
per Article 239AA(4), he is bound by the aid and advice of his Council
of Ministers in matters for which the Delhi Legislative Assembly has
legislative powers. However, this is subject to the proviso contained in
Clause (4) of Article 239AA which gives the power to the Lieutenant
Governor that in case of any difference between him and his Ministers,
he shall refer the same to the President for a binding decision. This
proviso to clause (4) has retained the powers for the Union even over
matters falling within the legislative domain of the Delhi Assembly. This
overriding power of the Union to legislate qua other Union Territories is
exposited under Article
246(4).
196. In the light of the aforesaid analysis and the ruling of the
nine-Judge Bench in New Delhi Municipal Corporation (supra), it is
clear as noon day that by no stretch of imagination, NCT of Delhi can be
accorded the status of a State under our present constitutional scheme
and the status of the Lieutenant Governor of Delhi is not that of a
Governor of a State, rather he remains an Administrator, in a limited
sense, working with the designation of Lieutenant Governor.
R. Executive power of the Council of Ministers of Delhi:
197. We may note here that there is a serious contest with regard
to the appreciation and interpretation of Article 239AA and Chapter
VIII where it occurs. The learned counsel for the appellant would submit
that the Government of NCT of Delhi has been conferred the executive
power that co-exists with its legislative power and the role of the
Lieutenant Governor is controlled by the phrase ‘aid and advice’ of the
Council of Ministers. The learned counsel for the respondents would
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submit with equal force that the Lieutenant Governor functions as the
administrator of NCT of Delhi and the constitutional amendment has not
diminished his administrative authority.
198. Analysing the provision, it is submitted by Dr. Dhawan and
other senior counsel that the Government of Delhi is empowered under
the Constitution to aid and advise the Lieutenant Governor in the exercise
of its functions in relation to matters in respect of which the Delhi
Legislative Assembly has the legislative power to make laws and the
said aid and advice is binding on the Lieutenant Governor.  Commenting
on the proviso, it is earnestly canvassed that the words ‘difference on
any matter’ has to be restricted to the field of any legislation or, at best,
the difference in relation to the three excepted matters.  For the said
argument, inspiration has been drawn from Articles 73 and 163 of the
Constitution.  Elaborating the argument, it is contended that the reference
of the matter to the President is made where there is doubt as to whether
the aid and advice touches the realm of the excepted entries as stipulated
under Article 239AA(3)(a) and nothing beyond.  To buttress the point,
heavy reliance has been laid on Ram Jawaya Kapur (supra) wherein
the Court, while interpreting the provisions of Article 162 of the
Constitution and delineating on the issue of the extent of the executive
powers of the State, observed:-
“7. Article 73 of the Constitution relates to the
executive powers
of the Union, while the corresponding provision in regard to the
executive powers of a State is contained in article 162. The
provisions of these articles are analogous to those of section 8
and 49 respectively of the Government of India Act, 1935 and lay
down the rule of distribution of executive powers between the
Union and the States, following the same analogy as is provided
in regard to the distribution of legislative powers between them.
Article 162, with which we are directly concerned in this case,
lays down :
“Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to
which the Legislature of the State has power to make laws :
Provided that in any matter with respect to which the Legislature
of a State and Parliament have power to make laws, the
executive power of the State shall be subject to, and limited by,
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the executive power expressly conferred by this Constitution
or by any law made by Parliament upon the Union or authorities
thereof.”
Thus under this article the executive authority of the State is
exclusive in respect to matters enumerated in List II of Seventh
Schedule. The authority also extends to the Concurrent List
except as provided in the Constitution itself or in any law passed
by the Parliament. Similarly, article 73 provides that the
executive powers of the Union shall extend to matters with
respect to which the Parliament has power to make laws and
to the exercise of such rights, authority and jurisdiction as are
exercisable by the Government of India by virtue of any treaty
or any agreement. The proviso engrafted on clause (1) further
lays down that although with regard to the matters in the
Concurrent List the executive authority shall be ordinarily left
to be State it would be open to the Parliament to provide that in
exceptional cases the executive power of the Union shall extend
to these matters also.
Neither of these articles contains any definition as to what the
executive function is and what activities would legitimately
come within its scope. They are concerned primarily with the
distribution of the executive power between the Union on the
one hand and the States on the other. They do not mean, as
Mr. Pathak seems to suggest, that it is only when the Parliament
or the State Legislature has
legislated on certain items
appertaining to their respective lists, that the Union or the State
executive, as the case may be, can proceed to function in
respect to them. On the other hand, the language of article 162
clearly indicates that the powers of the State executive do
extend to matters upon which the state Legislature is competent
to legislate and are not confined to matters over which
legislation has been passed already. The same principle
underlies article 73 of the Constitution...”
[Underlining is ours]
199. Drawing an analogy while interpreting the provisions of Article
239AA(3)(a) and Article 239AA(4) would reveal that the executive
power of the Government of NCT of Delhi is conterminous with the
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legislative power of the Delhi Legislative Assembly which is envisaged
in Article 239AA(3) and which extends over all but three subjects in the
State List and all subjects in the Concurrent List and,  thus, Article
239AA(4) confers executive power on the Council of Ministers over all
those subjects for which the Delhi Legislative Assembly has legislative
power.
200. The legislative power conferred upon the Delhi Legislative
Assembly is to give effect to legislative enactments as per the needs
and requirements of Delhi whereas the executive power is conferred on
the executive to implement certain policy decisions. This view is also
strengthened by the fact that after the Seventh Amendment of the
Constitution by which the words ‘Part C States’ were substituted by the
words ‘Union Territories’, the word ‘State’ in the proviso to Article 73
cannot be read to mean Union Territory as such an interpretation would
render the scheme and purpose of Part VIII (Union Territories) of the
Constitution infructuous.
S. Essence of Article 239AA of the Constitution:
201. It is perceptible that the constitutional amendment conceives
of conferring special status on Delhi. This has to be kept in view while
interpreting Article 239AA. Both the Statement of Objects and Reasons
and the Balakrishnan Committee Report, the relevant extracts of which
we have already reproduced in the earlier part of this judgment, serve as
an enacting history and corpus of public knowledge relative
to the
introduction of Articles 239AA and 239AB and would be handy external
aids for construing Article 239AA and unearthing the real intention of
the Parliament while exercising its constituent power.
202. At the outset, we must declare that the insertion of Articles
239AA and 239AB which specifically pertain to NCT of Delhi is
reflective of the intention of the Parliament to accord Delhi a sui generis
status from the other Union Territories as well as from the Union Territory
of Puducherry to which Article 239A is singularly applicable as on date.
The same has been authoritatively held by the majority judgment in the
New Delhi Municipal Corporation case to the effect that the NCT of
Delhi is a class by itself.
203. The Legislative Assembly, Council of Ministers and the
Westminster style cabinet system of government brought by the Sixty-
ninth amendment highlight the uniqueness attributed to Delhi with the
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aim that the residents of Delhi have a larger say in how Delhi is to be
governed. The real purpose behind the Constitution (Sixty-ninth
Amendment) Act, 1991, as we perceive, is to establish a democratic
setup and representative form of government wherein the majority has
a right to embody their opinion in laws and policies pertaining to the
NCT of Delhi subject to the limitations imposed by the Constitution. For
paving the way to realize this real purpose, it is necessary that we give a
purposive interpretation to Article 239AA so that the principles of
democracy and federalism which are part of the basic structure of our
Constitution are reinforced in NCT of Delhi in their truest sense.
204. 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 power to legislate for
the NCT of Delhi.
205. Further, the Statement of Objects and Reasons for the
Constitution (Seventy-fourth Amendment) Bill, 1991 which was enacted
as the Constitution (Sixty-ninth Amendment) Act, 1991 also lends support
to our view as it clearly stipulates that in order to confer a special status
upon the National Capital, arrangements should be incorporated in the
Constitution itself.
206. We
may presently carefully peruse each clause of Article
239AA for construing the meaning. A cursory reading of clause (1) of
Article 239AA shows that on 1st February, 1992, the Union Territory of
Delhi was renamed as the National Capital Territory of Delhi and it was
to be administered by a Lieutenant Governor from the date of coming
into force of the Sixty-ninth Amendment Act.
207. Sub-clause (a) of clause (2) specifies that the National Capital
Territory of Delhi shall have a Legislative Assembly, the seats of which
shall be filled by members chosen by direct election from territorial
constituencies in the National Capital Territory of Delhi. Sub--clause (b)
of clause (2) stipulates that the total number of seats in the Legislative
Assembly of the National Capital Territory of Delhi so established under
sub-clause (a), the number of seats reserved for Scheduled Castes in
the said Legislative Assembly, the division of the National Capital Territory
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of Delhi into territorial constituencies (including the basis for such division)
and all other matters relating to the functioning of the said Legislative
Assembly shall be regulated by law made by Parliament. Thereafter,
sub-clause (c) of clause (2) simply provides that the provisions of Articles
324 to 327 and 329 which pertain to elections and fall under Part XV of
the Constitution shall also apply to the National Capital Territory of Delhi,
its Legislative Assembly and the members thereof in the same manner
as the said provisions apply to the States. Further, sub--clause (c) provides
that the phrase “appropriate legislature” in Articles 326 and 329 shall, in
the context of the National Capital Territory of Delhi, mean the Parliament.
208. We must note here the stark difference in the language of
Article 239A clause (1) and that of Article 239AA clause (2). Article
239A clause (1) uses the word ‘may’ which makes it a mere directory
provision with no obligatory force. Article 239A gives discretion to the
Parliament to create by law for the Union Territory of Puducherry a
Council of Ministers and/or a body which may either be wholly elected
or partly elected and partly nominated to perform the functions of a
Legislature for the Union Territory of Puducherry.
209. On the other hand, Article 239AA clause (2), by using the
word ‘shall’, makes it mandatory for the Parliament to create by law a
Legislative Assembly for the National Capital Territory of Delhi.
Further,
sub-clause (a) of clause (2) declares very categorically that the members
of the Legislative Assembly of the National Capital Territory of Delhi
shall be chosen by direct election from the territorial constituencies in
the National Capital Territory of Delhi. Unlike Article 239A clause (1)
wherein the body created by the Parliament by law to perform the
functions of a Legislature for the Union Territory of Puducherry may
either be wholly elected or partly elected and partly nominated, there is
no such provision in the context of the Legislative Assembly of the NCT
of Delhi as per which members can be nominated to the Legislative
Assembly. This was a deliberate design by the Parliament.
210. We have highlighted this difference to underscore and
emphasize the intention of the Parliament, while inserting Article 239AA
in the exercise of its constituent power, to treat the Legislative Assembly
of the National Capital Territory of Delhi as a set of elected
representatives of the voters of the NCT of Delhi and to treat the
government of the NCT of Delhi as a representative form of government.
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211. The Legislative Assembly is wholly comprised of elected
representatives who are chosen by direct elections and are sent to Delhi’s
Legislative Assembly by the voters of Delhi. None of the members of
Delhi’s Legislative Assembly are nominated. The elected representatives
and the Council of Ministers of Delhi, being accountable to the voters of
Delhi, must have the appropriate powers so as to perform their functions
effectively and efficiently. This is also discernible from the Balakrishnan
Committee Report which recommended that though Delhi should continue
to be a Union Territory, yet it should be provided with a Legislative
Assembly and a Council of Ministers responsible to such Assembly with
appropriate powers to deal with matters of concern to the common man.
212. Sub-clause (a) of clause (3) of Article 239AA establishes
the power of the Delhi Legislative Assembly to enact laws for the NCT
of Delhi with respect to matters enumerated in the State List and/or
Concurrent list except in so far as matters with respect to and which
relate to entries 1, 2 and 18 of the State List.
213. Sub-clause (b) of clause (3) lays down that the Parliament
has the powers to make laws with respect to any matter for a Union
Territory including the NCT of Delhi or any part thereof and sub-clause
(a) shall not derogate such powers of the Parliament. Sub-clause (c) of
clause (3) gives the Parliament the overriding power to the effect
that
where any provision of any law made by the Legislative Assembly of
Delhi is repugnant to any provision of law made by the Parliament, then
the law made by the Parliament shall prevail and the law made by the
Delhi Legislative Assembly shall be void to the extent of repugnancy.
214. Thus, it is evident from clause (3) of Article 239AA that the
Parliament has the power to make laws for the NCT of Delhi on any of
the matters enumerated in the State List and the Concurrent List and at
the same time, the Legislative Assembly of Delhi also has the legislative
power with respect to matters enumerated in the State List and the
Concurrent List except matters with respect to entries which have been
explicitly excluded from Article 239AA(3)(a).
215. Now, it is essential to analyse clause (4) of Article 239AA,
the most important provision for determination of the controversy at
hand. Clause (4) stipulates a Westminster style cabinet system of
government for the NCT of Delhi where there shall be a Council of
Ministers with the Chief Minister at the head to aid and advise the
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Lieutenant Governor in the exercise of his functions in relation to maters
with respect to which the Delhi Legislative Assembly has power to enact
laws except in matters in respect of which the Lieutenant Governor is
required to act in his discretion.
216. The proviso to clause (4) stipulates that in case of a difference
of opinion on any matter between the Lieutenant Governor and his
Ministers, the Lieutenant Governor shall refer it to the President for a
binding decision. Further, pending such decision by the President, in any
case where the matter, in the opinion of the Lieutenant Governor, is so
urgent that it is necessary for him to take immediate action, the proviso
makes him competent to take such action and issue such directions as
he deems necessary.
217. A conjoint reading of Article 239AA (3) (a) and Article
239AA(4) reveals that the executive power of the Government of NCT
of Delhi is co-extensive with the legislative power of the Delhi Legislative
Assembly which is envisaged in Article 239AA(3) and which extends
over all but three subjects in the State List and all subjects in the
Concurrent List and, thus, Article 239AA(4) confers executive power
on the Council of Ministers over all those subjects for which the Delhi
Legislative Assembly has legislative power.
218. Article 239AA(3)(a) reserves the Parliament’s legislative
power on all matters in the State list and Concurrent list, but clause (4)
nowhere reserves the executive powers of the
Union with respect to
such matters. On the contrary, clause (4) explicitly grants to the
Government of Delhi executive powers in relation to matters for which
the Legislative Assembly has power to legislate. The legislative power
is conferred upon the Assembly to enact whereas the policy of the
legislation has to be given effect to by the executive for which the
Government of Delhi has to have co-extensive executive powers. Such
a view is in consonance with the observation in the case of Ram Jawaya
Kapur (supra) which has been discussed elaborately in the earlier part
of the judgment.
219. Article 239AA(4) confers executive powers on the
Government of NCT of Delhi whereas the executive power of the Union
stems from Article 73 and is co-extensive with the Parliament’s legislative
power. Further, the ideas of pragmatic federalism and collaborative
federalism will fall to the ground if we are to say that the Union has
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overriding executive powers even in respect of matters for which the
Delhi Legislative Assembly has legislative powers. Thus, it can be very
well said that the executive power of the Union in respect of NCT of
Delhi is confined to the three matters in the State List for which the
legislative power of the Delhi Legislative Assembly has been excluded
under Article 239 AA (3) (a). Such an interpretation would thwart any
attempt on the part of the Union Government to seize all control and
allow the concepts of pragmatic federalism and federal balance to prevail
by giving the NCT of Delhi some degree of required independence in its
functioning subject to the limitations imposed by the Constitution.
220. Another important aspect is the interpretation of the phrase
‘aid and advise’ in Article 239AA(4). While so interpreting, the authorities
in Shamsher Singh (supra) and Devji Ballabhbhai Tandel (supra)
have to be kept in mind. Krishna Iyer, J., in Shamsher Singh (supra),
has categorically held that the President and the Governor, being
custodians of all executive powers, shall act only upon and in accordance
with the aid and advice of their Ministers save in a few well known
exceptional situations. Devji Ballabhbhai Tandel  (supra), on the other
hand, has observed that there is a functional difference in the powers
and the position enjoyed by the President and Governor on one hand and
the Administrator on the other hand. It
has also been observed that it is
not possible to hold to the view laid down in Shamsher Singh (supra) in
the context of Governor and President to mean that the Administrator is
also purely a constitutional functionary who is bound to act on the ‘aid
and advice’ of the Council of Ministers and cannot act on his own.
221. It is necessary to note with immediacy that Devji Ballabhbhai
Tandel (supra) represents a pre¯Sixty-ninth Amendment view and that
too in the context of a Union Territory which does not have a unique
position as the NCT of Delhi does. Presently, the scheme of Article
239AA(4) is different.  It requires the Lieutenant Governor to act as per
the ‘aid and advice’ of the Council of Ministers with respect to all matters
for which the Legislative Assembly of Delhi has the power to enact
laws except what has been stated in the proviso which requires a
thoughtful interpretation.
222. The language employed in the proviso has to be understood
keeping in view the concepts which we have elaborately adumbrated
hereinbefore. As noted earlier, the submission of the learned counsel for
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the appellant is that the Lieutenant Governor can only exercise the power
or take refuge to the proviso to Article 239AA(4) where the said ‘aid
and advice’ of the Council of Ministers transgresses the area
constitutionally prescribed to them by virtue of Article 239AA(3)(a).
223. We may note here that a narrow or restricted meaning in
respect of the words, namely, “on any matter” as is suggested by the
appellant, takes away the basic concept of interpretative process, for
the said expression does not remotely convey that it is confined to the
excepted legislative fields.  Similarly, a broad or unrestricted interpretation
of the term to include every difference would obstruct the idealistic smooth
stream of governance.  Therefore, the Court has the duty to place such
a meaning or interpretation on the phrase that is workable and the need
is to establish the norm of fine constitutional balance.
224. The counsel for the respondents has sought to impress upon
this Court that the term “any” occurring in the proviso to clause (4) of
Article 239AA should be given widest import in order to include everything
within its ambit and for the said purpose, reliance has been placed upon
Tej Kiran (supra). It has been highlighted in the earlier part of this
judgment that while interpreting a constitutional provision and construing
the meaning of specific word(s) occurring in a constitutional provision,
the Court must read the same in the context in which the word(s)
occurs
by referring to the annexing words of the said provision and also bearing
in mind the concepts that we have adverted to. As regards the importance
of context while deciphering the true meaning and importation of a term,
Austin has made the following observations:-
“When I see the word “any” in a statute, I immediately know it’s
unlikely to mean “anything” in the universe. Any” will have a
limitation on it, depending on the context. When my wife says,
“there isn’t any butter.” I understand that she’s talking about what
is in our refrigerator, not worldwide. We look at context over and
over, in life and in law.”84
225. In this context, the observations made in the case of Small
v. United States85 are relevant to be noted:-
“The question before us is whether the statutory reference
“convicted in any court” includes a conviction entered in a foreign
84  J.L Austin, How to do things with words, The William James Lectures delivered at
      Harvard University 1955
85  544 U.S. 385 (2005)
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court. The word “any” considered alone cannot answer this
question. In ordinary life, a speaker who says, “I’ll see any film,”
may or may not mean to include films shown in another city. In
law a legislature that uses the statutory phrase “‘any person’”
may or may not mean to include “‘persons’” outside “the
jurisdiction of the state.”
226. Further, words of wide import must be construed by placing
reliance upon the intention with which the said words have been used.
Elucidating the importance of intention, Marshall, C.J. of the Supreme
Court of U.S. in the case of United States v. Palmer86 observed:-
“The words “any person or persons” are broad enough to
comprehend every human being. But general words must not only
be limited to cases within the jurisdiction of the state, but also to
those objects to which the legislature intended to apply them. Did
the legislature intend to apply these words to the subjects of a
foreign power who in a foreign ship may commit murder or robbery
on the high seas?
The 8th section also commences with the words “any person or
persons.” But these words must be limited in some degree, and
the intent of the legislature will determine the extent of this limitation.
For this intent we must examine the law”.”
227. At home, it has also been acknowledged that the word ‘any’
can have different meanings depending on the context in which it has
been used and the Courts must not mechanically
interpret it to mean
‘everything’. In Shri Balaganesan Metals v. M.N. Shanmugham
Chetty and others87, this Court has observed:-
“The word “any” has the following meaning:-
Some; one out of many; an indefinite number. One indiscriminately
of whatever kind or quantity.”
Word “any” has a diversity of meaning and may be employed to
indicate “all” or “every” as well as “some” or “one” and its meaning
in a given statute depends upon the context and the subject matter
of the statute.”
86 16 U.S. 3 Wheat .610610(1818)
87 (1987) 2 SCC 707
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It is often synonymous with “either”, “every” or “all”. Its generality
may be restricted by context; (Black’s Law Dictionary; Fifth
Edition).”
228. In Kihoto Hollohan v. Zachillhu and others88, the Court
has stated:-
“...the words “any direction” would cost it its constitutionality’
does not commend to us. But we approve the conclusion that
these words require to be construed harmoniously with the other
provisions and appropriately confined to the objects and purposes
of the Tenth Schedule. Those objects and purposes define and
limit the contours of its meaning. The assignment of a limited
meaning is not to read it down to promote its constitutionality but
because such a construction is a harmonious construction in the
context. There is no justification to give the words the wider
meaning.”
229. In A.V.S. Narasimha Rao and Ors. v. The State of Andhra
Pradesh and another89, while interpreting the expressions “any law”
and “any requirement”, the Court has refused to give a wide import to
the said phrases. The observations in that regard read thus:-
“The words ‘any requirement’ cannot be read to warrant something
which could have been said more specifically. These words bear
upon the kind of residence or its duration rather than its location
within the State. We accept the argument of Mr. Gupte that the
Constitution, as it stands, speaks of a whole State as the venue
for residential qualification and it is impossible to think that the
Constituent Assembly
was thinking of residence in Districts,
Taluqas, cities, towns or villages. The fact that this clause is an
exception and came as an amendment must dictate that a narrow
construction upon the exception should be placed as indeed the
debates in the Constituent Assembly also seem to indicate. We
accordingly reject the contention of Mr. Setalvad seeking to put a
very wide and liberal construction upon the words ‘any law’ and
any requirement’. These words are obviously controlled by the
words ‘residence within the State or Union territory’ which words
mean what they say, neither more nor less. It follows, therefore,
88 AIR 1993 SC 412
89 (1969) 1 SCC 839
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that Section 3 of the Public Employment (Requirement as to
Residence) Act, 1957, in so far as it relates to Telengana (and we
say nothing about the other parts) and Rule 3 of the Rules under
it are ultra vires the Constitution.”
230. To lend support to this view, we can refer to the observations
made by Lindley LJ in Warburton v. Huddersfield Industrial Society90
wherein he has stated:-
“I cannot myself avoid coming to the conclusion that ‘any lawful purpose’
in sub-s (7) means any lawful purpose which is consistent with the rules.
It cannot mean anything inconsistent with the rules...can it mean ‘any
lawful purpose’ under the sun’, or is it ‘any lawful purpose of the society?
If you look at the context, that which precedes and that which follows, I
do not think ‘anybody, certainly (I do not think any lawyer would construe
any lawful purpose, in the wide way in which Mr Cohen invites us to
construe it.”
231. That apart, the Court in Workmen of Dimakuchi Tea Estate
v. The Management of Dimakuchi Tea Estate91 held:-
“A little careful consideration will show, however, that the
expression “any person” occurring in the third part of the definition
clause cannot mean anybody and everybody in this wide world.
First of all. the subject matter of dispute must relate to (i)
employment or non-employment or (ii) terms of employment or
conditions of labour of any person; these necessarily import a
limitation in the sense that a
person in respect of whom the
employer- employee relation never existed or can never possibly
exist cannot be the subject matter of a dispute between employers
and workmen. Secondly, the definition clause must be read in the
context of the subject matter and scheme of the Act, and
consistently with the objects and other provisions of the Act.”
232. From the foregoing discussion, it is clear that the words ‘any
matter’ occurring in the proviso to Article 239AA(4) does not necessarily
need to be construed to mean ‘every matter’. As highlighted in the
authorities referred to hereinabove, the word ‘any’ occurring in a statute
or constitutional provision is not to be mechanically read to mean ‘every’
and the context in which the word has been used must be given due
90 (1892) 1 QB 817, PP 821-22
91 AIR 1958 SC 353
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weightage so as to deduce the real intention and purpose in which the
word has been used.
233. It has to be clearly understood that though ‘any’ may not
mean ‘every’, yet how it should be understood is extremely significant.
Let us elaborate. The power given to the Lieutenant Governor under the
proviso to Article 239AA(4) contains the rule of exception and should
not be treated as a general norm. The Lieutenant Governor is to act with
constitutional objectivity keeping in view the high degree of constitutional
trust reposed in him while exercising the special power ordained upon
him unlike the Governor and the President who are bound by the aid and
advice of their Ministers. The Lieutenant Governor need not, in a
mechanical manner, refer every decision of his Ministers to the President.
He has to be guided by the concept of constitutional morality. There has
to be some valid grounds for the Lieutenant Governor to refer the decision
of the Council of Ministers to the President in order to protect the interest
of the NCT of Delhi and the principle of constitutionalism.  As per the
1991 Act and Rules of Business, he has to be apprised of every decision
taken by the Council of Ministers. He cannot change the decision. That
apart, there is no provision for concurrence.  He has the authority to
differ. But it cannot be difference for the sake of difference. It cannot
be mechanical or in a routine matter. The power has been conferred to
guide, discuss and see
that the administration runs for the welfare of the
people and also NCT of Delhi that has been given a special status.
Therefore, the word ‘any’ has to be understood treating as a guidance
meant for the constitutional authority. He must bear in mind the
constitutional objectivity, the needed advice and the realities.
234. The proviso to Article 239AA(4), we say without any fear of
contradiction, cannot be interpreted in a strict sense of the mere words
employed treating them as only letters without paying heed to the thought
and the spirit which they intend to convey. They are not to be treated as
bones and flesh without nerves and neurons that make the nerves
functional. We feel, it is necessary in the context to read the words of
the provision in the spirit of citizenry participation in the governance of a
democratic polity that is republican in character.  We may hasten to add
that when we say so, it should not be construed that there is allowance
of enormous entry of judicial creativity, for the construction one intends
to place has its plinth and platform on the Preamble and precedents
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pertaining to constitutional interpretation and purposive interpretation
keeping in view the conception of sense and spirit of the Constitution. It
is, in a way, exposition of judicial sensibility to the functionalism of the
Constitution. And we call it constitutional pragmatism.
235. The authorities in power should constantly remind themselves
that they are constitutional functionaries and they have the responsibility
to ensure that the fundamental purpose of administration is the welfare
of the people in an ethical manner. There is requirement of discussion
and deliberation.  The fine nuances are to be dwelled upon with mutual
respect. Neither of the authorities should feel that they have been lionized.
They should feel that they are serving the constitutional norms, values
and concepts.
236. Interpretation cannot ignore the conscience of the Constitution.
That apart, when we take a broader view, we are also alive to the
consequence of such an interpretation. If the expressions “in case of
difference” and “on any matter” are construed to mean that the Lieutenant
Governor can differ on any proposal, the expectation of the people which
has its legitimacy in a democratic set up, although different from States
as understood under the Constitution, will lose its purpose in simple
semantics. The essence and purpose should not be lost in grammar like
the philosophy of geometry cannot be allowed to lose its universal
metaphysics in the methods of drawing. And that is why, we deliberated
upon many a concept. Thus, the Administrator, as per the Rules of
Business, has to be apprised of each decision taken by a Minister or
Council of Ministers, but that does not mean that the Lieutenant Governor
should raise an issue in every matter.  The difference of opinion must
meet the standards of constitutional trust and morality, the principle of
collaborative federalism and constitutional balance, the concept of
constitutional governance and objectivity and the nurtured and cultivated
idea of respect for a representative government.  The difference of
opinion should never be based on the perception of “right to differ” and
similarly the term “on any matter” should not be put on such a platform
as to conceive that as one can differ, it should be a norm on each occasion.
The difference must meet the concept of constitutional trust reposed in
the authority and there has to be objective assessment of the decision
that is sent for communication and further the rationale of difference of
opinion should be demonstrable and it should contain sound reason. There
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should not be exposition of the phenomenon of an obstructionist but
reflection of the philosophy of affirmative constructionism and a visionary.
The constitutional amendment does not perceive a situation of constant
friction and difference which gradually builds a structure of conflict.  At
the same time, the Council of Ministers being headed by the Chief Minister
should be guided by values and prudence accepting the constitutional
position that the NCT of Delhi is not a State.
T.      The Government of National Capital Territory of Delhi Act,
1991 and the Transaction of Business of the Government
of National Capital Territory of Delhi Rules, 1993
237. Our attention, in the course of the proceedings, has also been
drawn to the Government of National Capital Territory of Delhi Act,
1991 (for brevity, “the 1991 Act’) which came into force with effect
from 2nd January, 1992. The 1991 Act was enacted by the Parliament by
virtue of the power conferred upon it by clause (7)(a) of Article 239AA.
We think it appropriate to refer to the Statement of Objects and Reasons
of the said enactment. It is as follows:-
“STATEMENT OF OBJECTS AND REASONS
   Under the new article 239-AA proposed to be inserted by the
Constitution (Seventy-fourth Amendment) Bill, 1991, a Legislative
Assembly and Council of Ministers will be established for the
National Territory. Clause (7) (a) of the said article provides that
Parliament may by law make provisions for giving effect to or
supplementing the provisions contained in that article and for all
that matters incidental or consequential thereto.
2. In pursuance of the said clause, this bill seeks necessary provisions
in respect of the legislative Assembly and its functioning including
the provisions relating to the Speaker, Deputy Speaker,
qualifications or disqualifications for membership, duration,
summoning, prorogation or dissolution of the House privileges,
legislative procedures, procedure in financial matters, adders by
the Lieutenant Governor to the Legislative Assembly, constitution
of Consolidated Fund for the National Capital Territory,
Contingency Fund. etc. These are on the; lines of the provisions
made in respect of a legislative Assembly of a State with suitable
modifications.
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3.  Under the bill the delimitation of constituencies will be made by
the Election Commission in accordance with the Procedure set
out therein. Having regard to the special conditions prevailing in
Delhi, it has been provided that in respect of the frost constitution
of the Assembly, such delimitation will be on the basis of provisional
figures of population in relation to 1991 census, if final figures of
population in relation to 1991 census, if final figures have not been
published by them.
4.  The Bill seeks to give effect to the above proposals.”
238.  From the aforesaid, it is clear as crystal that the 1991 Act
was conceived to be brought into existence for supplementing the
constitutional provision and also to take care of incidental matters that
are germane to Article 239AA.
239. Upon scanning the anatomy of the 1991 Act, we find that
the Act contains fifty six Sections and is divided into five Parts, each
dealing with different fields. Now, we may refer to some of the provisions
contained in Part IV of the 1991 Act titled ‘Certain Provisions relating to
Lieutenant Governor and Ministers’ which are relevant to the case at
hand. Section 41 deals with matters in which the Lieutenant Governor
may act in his discretion and reads thus:-
“Section 41- Matters in which Lieutenant Governor to act
in his discretion.-(l) The Lieutenant Governor shall act in his
discretion in a matter-
(i) which falls outside the purview
of the powers conferred on
the Legislative Assembly but in respect of which powers or
functions are entrusted or delegated to him by the President;
or
(ii) in which he is required by or under any law to act in his discretion
or to exercise any judicial or quasi-judicial functions.
(2) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is by or under
any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final.
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is required by
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any law to exercise any judicial or quasi- judicial functions, the
decision of the Lieutenant Governor thereon shall be final.”
240. A careful perusal of Section 41 of the 1991 Act shows that
the Lieutenant Governor can act in his discretion only in matters which
fall outside the legislative competence of the Legislative Assembly of
Delhi or in respect of matters of which powers are entrusted or delegated
to him by the President or where he is required by law to act in his
discretion or to exercise any judicial or quasi-judicial functions and,
therefore, it is clear that the Lieutenant Governor cannot exercise his
discretion in each and every matter and by and large, his discretionary
powers are limited to the three matters over which the legislative power
of the Delhi Legislative Assembly stand excluded by clause (3)(a) of
Article 239AA.
241. Section 42 deals with the aid and advice tendered by the
Council of Ministers to the Lieutenant Governor and reads as under:-
“Section 42 Advice by Ministers:-The question whether any.
and if so what, advice was tendered by Ministers to the Lieutenant
Governor shall not be inquired into in any court.”
242. The wordings and phraseology of Section 42 of the 1991 Act
is identical to that of clause (2) of Article 74 of the Constitution which
also is an indication that the expression ‘aid and advice’ should receive a
uniform interpretation subject to other constitutional provisions in the
form of the proviso to clause
(4) of Article 239AA of the Constitution of
India. In other words, the ‘aid and advice’ given by the Council of
Ministers is binding on the Lieutenant Governor so long as the Lieutenant
Governor does not exercise the power conferred upon him by the proviso
to clause (4) of Article 239AA and refer the matter to the President in
exercise of that power for his ultimate binding decision.
243. Section 44 that deals with the conduct of business in the
NCT of Delhi reads thus:-
“Section 44 Conduct of business.—(1) the President shall make
rules -
(a)  for the allocation of business to the Ministers in so far as it is
business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of
Ministers; and
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(b)  for the more convenient transaction of business with the
Ministers, including the procedure to be adopted in the case
of a difference of opinion between the Lieutenant Governor
and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of
the Lieutenant Governor whether taken on the advice of his
Ministers or otherwise shall be expressed to be taken in the name
of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name
of the Lieutenant Governor shall be authenticated in such manner
as may be specified in rules to be made by the Lieutenant Governor
and the validity of an order or instrument which is so authenticated
shall not be called in question on the ground that it is not an order
or instrument made or executed by the Lieutenant Governor.”
244. Section 44 of the 1991 Act has made it mandatory for the
President to frame rules for the allocation of business to the Ministers
and also the procedure to be adopted in case of a difference of opinion
between the Lieutenant Governor and the Council of Ministers.
245. In exercise of the powers conferred under the aforesaid
provision, the President has framed the Transaction of Business of the
Government of National Capital Territory of Delhi Rules, 1993 (for brevity,
‘TBR, 1993’). The 1991 Act and the TBR, 1993, when read together,
reflect the scheme of governance for the NCT of Delhi. We
will
scrutinize and analyze the relevant rules from the TBR, 1993 after
analyzing the other relevant provisions of the 1991 Act.
246. Now, Section 45 deals with the duties of the Chief Minister
of Delhi regarding furnishing of information to the Lieutenant Governor
and reads as below:-
“Section 45. Duties of Chief Minister as respect the
furnishing of information to the Lieutenant Governor, etc. -
It shall be the duty of the Chief Minister -
(a) to communicate to the Lieutenant Governor all decisions of
the Council of Ministers relating to the administration of the
affairs of the Capital and proposals for legislation;
(b) To furnish such information relating to the administration of
the affairs of the Capital and proposals for legislation as
Lieutenant Governor may call for; and
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(c) If the Lieutenant Governor so requires, to submit for the
consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not
been considered by the Council.”
247. Again, Section 45 of the 1991 Act is identical and analogous
to Article 167 of the Constitution which makes it obligatory for the Chief
Minister of the NCT of Delhi to communicate to the Lieutenant Governor
all decisions of the Council of Ministers relating to the administration of
the affairs of the NCT of Delhi and proposals for legislation. Having
said that, the real purpose of such communication is not to obtain
concurrence of the Lieutenant Governor on all decisions of the Council
of Ministers relating to the administration of the affairs of the NCT of
Delhi and on proposals for legislation, but in actuality, the objective is to
have the Lieutenant Governor in synergy, to keep him in the loop and to
make him aware of all decisions of the Council of Ministers relating to
the administration of the affairs of the NCT of Delhi and proposals for
legislation so as to enable the Lieutenant Governor to exercise the power
conferred upon him by the proviso to clause (4) of Article 239AA.
248. Another important provision is Section 49 of the 1991 Act
which falls under Part V of the Act titled ‘Miscellaneous and Transitional
Provisions” and stipulates the relation of the Lieutenant Governor and
his Ministers to the President.  Section 49 reads
thus:-
“Section 49. Relation of Lieutenant Governor and his
Ministers to President: Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be under
the general control of, and comply with such particular directions,
if any, as may from time-to-time be given by the President.”
249. Section 49 of the 1991 Act discloses that the set up in the
NCT of Delhi is one where the Council of Ministers headed by the
Chief Minister on one hand and the Lieutenant Governor on the other
are a team, a pair on a bicycle built for two with the President as its rider
who retains the general control. Needless to say, the President, while
exercising this general control, acts as per the aid and advice of the
Union Council of Ministers.
250. Let us, in the obtaining situation, refer to the various rules in
TBR, 1993 which are necessary for dealing with the present case and
for discerning the real intention of the Parliament for inserting Articles
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239AA and 239AB. Rule 4 of the TBR, 1993 very categorically
underscores the collective responsibility of the Council of Ministers:-
“Rule 4(1) The Council shall be collectively responsible for all the
execution orders issued by any Department in the name of the
Lieutenant Governor and contracts made in the name of the
President in connection with the administration of the Capital
whether such orders or contracts are authorised by an individual
Minister in respect of a matter pertaining to the Department under
his charge or as a result or discussions at a meeting of the Council.”
251. Chapter III of the TBR, 1993 deals with ‘Disposal of Business
allocated among Ministers’. Rule 9 falling under Chapter III provides
for circulation of proposals amongst the Council of Ministers and reads
as under:-
“Rule 9(1) The Chief Minister may direct that any proposal
submitted to him under rule 8 may. instead of being placed for
discussion in a meeting of the Council, be circulated to the Ministers
for opinion, and if all the Ministers are unanimous and the Chief
Minister is of the opinion that discussions in a meeting of the Council
is not required, the proposal shall be treated as finally approved
by the Council. In case. Ministers are not unanimous or if the
Chief Minister is of the opinion that discussions in a meeting is
required, the proposal shall be discussed in a meeting of the Council.
(2) If it is decided to circulate any
proposal, the Department to
which it belongs, shall prepare a memorandum setting out in brief
the facts of the proposal, the points for decision and the
recommendations of the Minister in charge and forward copies
thereof to the Secretary to the Council who shall arrange to
circulate the same among the Ministers and simultaneously send
a copy thereof to the Lieutenant Governor.”
[Emphasis supplied]
Rule 9(2) stipulates that if it is decided that a proposal is to be
circulated, the department to which it belongs shall prepare a memo
setting out in brief its facts, points for decision and recommendations of
the Minister-in-charge. The said memo has to be forwarded to the
Secretary to the Council who shall circulate the same amongst the
Ministers and at the same time send its copy to the Lieutenant Governor.
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252. Rule 10, which is relevant, is reproduced below:-
“Rule 10. (1) While directing that a proposal shall be circulated,
the Chief Minister may also direct, if the matter be of urgent
nature, that the Ministers shall communicate their opinion to the
Secretary to the Council by a particular date, which shall be
specified in the memorandum referred to in rule 9.
(2) If any Minister fails to communicate his opinion to the Secretary
to the Council by the date so specified in the memorandum, it
shall be assumed that he has accepted the recommendations
contained therein.
(3) If the Minister has accepted the recommendations contained
in the memorandum or the date by which he was required to
communicate his opinion has expired, the Secretary to the Council
shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if he
has no observation to make, he shall return the proposal with his
orders thereon to the Secretary to the Council.
(5) On receipt of the proposal, the Secretary to the Council shall
communicate the decision to the Lieutenant Governor and pass
on the proposal to the Secretary concerned who shall thereafter
take necessary steps to issue the orders unless a reference to the
Central Government is required in pursuance of the provisions of
Chapter V.
[Underlining is ours]
Rule 10(5) stipulates that when a decision has been taken by the
Council of Ministers on a proposal as per the preceding sub-rules of
Rule 10, then the Secretary to the Council shall communicate the decision
to the Lieutenant Governor and pass on the proposal to the Secretary
concerned for taking necessary steps to issue the orders unless the
Lieutenant Governor decides to refer the decision to the Central
Government in pursuance of the provisions of Chapter V of the TBR,
1993.
253. Rule 11 of the TBR, 1993 states thus:-
“Rule 11. When it has been decided to place a proposal before
the Council, the Department to which it belongs, shall, unless the
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Chief Minister otherwise directs, prepare a memorandum indicating
precisely the salient facts of the proposal and the points for
decision. Copies of the memorandum and such other documents,
as are necessary to enable the proposal to be disposed of shall be
forwarded to the Secretary to the Council who shall arrange to
circulate the memorandum to the Ministers and simultaneously
send a copy thereof to the Lieutenant Governor.”
[Emphasis added]
Basically, Rule 11 of the TBR, 1993 deals with the procedure to
be adopted for placing a proposal before the Council of Ministers. The
said rule stipulates that the proposal shall be forwarded to the Secretary
to the Council who shall arrange to circulate a memorandum indicating
the salient facts of the proposal and the points for decision to the Ministers
and simultaneously send a copy thereof to the Lieutenant Governor.
254. The procedure is further detailed in Rule 13 which stipulates
as under:-
“Rule 13 (1) The council shall meet at such place and time as the
Chief Minister may direct.
(2) Except with the permission of the Chief Minister, no case
shall be placed on the agenda of a meeting unless papers relating
thereto have been circulated as required under rule 11.
(3) After an agenda showing the proposals to be discussed in a
meeting of the Council has been approved by the Chief Minister,
copies thereof, together with copies of such memoranda as have
not been circulated
under rule 11, shall be sent by the Secretary to
the Council, to the Lieutenant Governor, the Chief Minister and
other Ministers, so as to reach them at least two days before the
date of such meeting. The Chief Minister may, in case of urgency,
curtail the said period of two days.
(4) If any Minister is on tour, the agenda shall be forwarded to the
Secretary in the Department concerned who, if he considers that
the discussion on any proposal should await the return of the
Minister may request the Secretary to the Council to take the
orders of the Chief Minister for a postponement of the discussion
on the proposal until the return of the said Minister.
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(5) The Chief Minister or in his absence any other Minister
nominated by the Chief Minister shall preside at the meeting of
the Council.
(6) If the Chief Minister so directs, the Secretary of the Department
concerned may be required to attend the meeting of the Council.
(7) The Secretary to the Council shall attend all the meetings of
the Council and shall prepare a record of the decisions. He shall
forward a copy of such record to Ministers and the Lieutenant
Governor.”
[Emphasis supplied]
Rule 13, thus, deals with the meeting of Council of Ministers and
sub-rule (3) of Rule 13 stipulates that the agenda of the proposals to be
discussed in the meeting of the Council shall be sent by the Secretary to
the Lieutenant Governor amongst others.
255. Again, Rule 14 states as below:-
“Rule 14 (1) The decision of the Council relating to each proposal
shall be separately recorded and after approval by the Chief
Minister, or the Minister presiding, shall be placed with the records
of the proposal. After approval by the Chief Minister or the Minister
presiding, the decision of the Council as approved, shall be
forwarded by the Secretary to the Council to the Lieutenant
Governor.
(2) Where a proposal has been approved by the Council and the
approved record of the decision has been communicated to the
Lieutenant Governor, the Minister concerned shall take necessary
action to give affect to the decision.”
[Underlining is ours]
Rule 14 deals with the decision of the
Council on different
proposals. Sub-rule (1) of Rule 14 provides that once a decision of the
Council has been approved by the Chief Minister or the Minister presiding,
the said approved decision shall be forwarded by the Secretary to the
Council to the Lieutenant Governor.
256. Rule 23, elaborating on the classes of proposals or matters,
enumerates as under:-
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“Rule (23) The following classes of proposals or matters shall
essentially be submitted to the Lieutenant Governor through the
Chief Secretary and the Chief Minister before issuing any orders
thereon, namely:
(i)  matters which affect or are likely to affect the peace and
tranquility of the capital;
(ii)   matters which affect or are likely to affect the interest of any
minority community. Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with
any State Government , the Supreme Court of India or the
High Court of Delhi;
(iv)  proposals or matters required to be referred to the Central
Government under the Act or under Chapter V;
(v)  matters pertaining to the Lieutenant Governor’s Secretariat
and personnel establishment and other matters relating to his
office;
(vi) matters on which Lieutenant Governor is required to make
order under any law or instrument in force;
(vii) petitions for mercy from persons under sentence for death
and other important cases in which it is proposed to
recommend any revision of a judicial sentence;
(viii) matters relating to summoning, prorogation and dissolution
of the Legislative Assembly, removal of disqualification of
voters at elections to the Legislative Assembly, Local Self
Government Institutions and other matters connected with
those: and
(ix) any other proposals or matters of administrative importance
which the Chief Minister may
consider necessary.”
Rule 23 lays down a list of proposals or matters which are essential
to be submitted to the Lieutenant Governor through the Chief Secretary
and the Chief Minister before issuing any orders.
257. Rule 25 of the TBR, 1993 states thus:-
“Rule 25. The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such
information relating to the administration of the Capital and
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proposals for legislation as the Lieutenant Governor may call for:
and
(b) if the Lieutenant Governor so requires, submit for the
consideration of the Council any matter on which a decision has
been taken by a Minister but which has not been considered by
the Council.
Sub-rule (a) of Rule 25 requires the Chief Minister to furnish to
the Lieutenant Governor information relating to the administration of
the Capital and proposals for legislation as the Lieutenant Governor
may call for.
258. Further, Rule 42 prescribes the procedure after a Bill is passed
by the Legislative Assembly.  It reads as under:-
“Rule 42. (1) When a Bill has been passed by the Legislative
Assembly it shall be examined in the Department concerned and
the Law Department and shall be presented to the Lieutenant
Governor with:-
(a)   A report of the Secretary of the Department concerned as to
the reason, if any, why the Lieutenant Governor’s assent should
not be given: and
(b)   A report of the Law Secretary as to the reasons, if any, why
the Lieutenant Governor’s assent should not be given or the
Bill should not be reserved for consideration of the President.”
Rule 42 basically stipulates that when a bill has been passed by
the Legislative Assembly of Delhi, the same shall be presented to the
Lieutenant Governor along with a report of the Secretary of the
department concerned and a report of the Law Secretary.
259. It is also pertinent to refer to Rules 49 and 50 falling under
Chapter V
titled ‘Referring to Central Government’ which read as
follows:-
“CHAPTER-V
Referring to the Central Government
Rule 48 (Omitted)
Rule 49 In case of difference of opinion between the Lieutenant
Governor and a Minister in regard to any matter, the Lieutenant
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DIPAK MISRA, CJI]
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SUPREME COURT REPORTS
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Governor shall endeavour bv discussion on the matter to settle
any point on which such difference of opinion has arisen. Should
the difference of opinion persist, the Lieutenant Governor may
direct that the matter be referred to the Council.
Rule 50 In case of difference of opinion between the Lieutenant
Governor and the Council with regard to any matter, the Lieutenant
Governor shall refer it to the Central Government for the decision
of the President and shall act according to the decision of the
President.”
260. Rule 49 stipulates the procedure to be adopted in case of
difference of opinion between the Lieutenant Governor and a Minister
in regard to any matter. In such a scenario, as per Rule 49, the Lieutenant
Governor shall endeavour by discussion on the matter to settle any point
on which such difference of opinion has arisen. If such an approach and
attempt to settle a point of difference by discussion turns out to be futile
and the difference of opinion persists, then the Lieutenant Governor
may direct the matter to be referred to the Council. Rule 49 shows that
settlement can be achieved by way of discussion. It further highlights
how, by discussion and dialogue, a conflict can be avoided by adopting
an ideology of harmonious co-existence which would again be in tune
with the concepts of collaborative federalism, pragmatic federalism,
federal balance and constitutional objectivity.
261. Rule 50, on the other
hand, provides the procedure to the
effect that in case of difference of opinion between the Council and the
Lieutenant Governor with regard to any matter, the Lieutenant Governor
is required to refer it to the Central Government for the decision of the
President and shall act according to the decision of the President.
262. The approach of dialogue, settlement by discussion and
suppressing conflicts by harmonious co-existence as delineated by Rule
49 should also be adopted in case of difference of opinion between the
Lieutenant Governor on one hand and the Council on the other. Such an
approach would not only result in acceptance of the role of the Lieutenant
Governor but also help the NCT of Delhi to cherish the fruits of a
responsive government as intended by the Sixty-ninth Constitutional
Amendment.
263. We have referred to the relevant rules of TBR, 1993 which
require that the Lieutenant Governor has to be apprised and kept in the