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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[2018]  7  S.C.R. 1
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GOVERNMENT OF NCT OF DELHI
v.
UNION OF INDIA & ANOTHER
(Civil Appeal No. 2357 of 2017)
JULY 04, 2018
[DIPAK MISRA, CJI, A. K. SIKRI, A. M. KHANWILKAR,
DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Constitution of India:
Art. 239AA and 239AB – Special provisions with respect to
Delhi – National Capital Territory of Delhi – Status of – Held: NCT
of Delhi cannot be accorded the status of a State under the present
constitutional scheme – Status of NCT of Delhi is sui generis – Status
of 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 – LG cannot act
independently and is bound by the aid and advice of the elected
council of ministers subject to proviso to Art. 239 AA to refer the
matter to the Parliament – Decisions of the Council of Ministers
must be communicated to the Lieutenant Governor but this does not
mean that the concurrence of the Lieutenant Governor is required
– Power of the Lieutenant Governor under proviso to Art. 239AA(4)
has to be exercised in exceptional circumstances keeping in mind
the standards of constitutional trust and morality, 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 –
Lieutenant Governor should not act in a mechanical manner
without
due application of mind so as to refer every decision of the Council
of Ministers to the President – Exercise of establishing a democratic
and representative form of government for NCT of Delhi by insertion
of Arts. 239AA and 239AB would turn futile if the Government 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 –
Constitution (Sixty-ninth Amendment) Act, 1991.
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Art. 239AA – Interpretation of – Held: Interpretative dissection
of Art.239AA(3)(a) reveals that the Parliament has the power to
make laws for the NCT of Delhi with respect to any matters
enumerated in State List and Concurrent List – Legislative Assembly
of Delhi also has power to make laws over all those subjects which
figure in Concurrent List and all, but three excluded subjects (public
order, police and land), in the State List – As a natural corollary,
Union of India has exclusive executive power with respect to NCT
of Delhi relating to the three matters in the State List in respect of
which the power of Delhi Legislative Assembly has been excluded –
In respect of other matters, the executive power is to be exercised
by the Government of NCT of Delhi – This, however, is subject to
the proviso to Article 239AA(4) – Such an interpretation would be
in consonance with the concepts of pragmatic federalism and federal
balance by giving the Government of NCT of Delhi some required
degree of independence subject to the limitations imposed by the
Constitution.
Representative governance – Ideals/principles of – Held: In
a democratic republic, the sovereign elect their law making
representatives for enacting laws and shaping policies – Main
purpose of representative government is to represent the public will
– Elected representatives being accountable to the public must be
accessible, approachable and act in a transparent
manner – Thus,
the elected representatives must display constitutional objectivity
as a standard of representative governance.
Constitutional morality and constitutional objectivity –
Concept of – Held: Constitutional morality is that fulcrum which
acts as an essential check upon the high functionaries and citizen
alike – Further, the theory of checks and balance gives rise to
principle of constitutional objectivity – Constitutional trust expects
the functionaries under the Constitution to be guided by
constitutional morality, objective pragmatism and the balance,
required to sustain proper administration – Lieutenant Governor
need not, in a mechanical manner, refer every decision of the Council
of Ministers to the President – He has to be guided by the concept
of constitutional morality and is to act with constitutional objectivity.
Constitutional governance and the conception of legitimate
constitutional trust – Held: Concept of constitutional governance
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has two features, the principles of fiduciary nature of public power
and the system of checks and balances – It gives rise to the requisite
constitutional trust which must be exhibited by all constitutional
functionaries while performing their official duties – Power of the
Lieutenant Governor under proviso to Art.239AA(4) is to be exercised
in exceptional circumstances keeping in mind 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 – Lieutenant Governor
should not act in a mechanical manner without due application of
mind so as to refer every decision of the Council of Ministers to the
President.
Collective responsibility – Principle of – Held: Parliamentary
form of government is guided by the principle of collective
responsibility of the Cabinet – Cabinet owes a duty towards the
legislature for every action taken in any of the Ministries and every
individual Minister is responsible for every act of the Ministry –
Principle of collective responsibility is of immense significance in
the context of ‘aid and advice’ – If a well deliberated legitimate
decision of Council of Ministers is not given effect to due to an
attitude to differ on the part of the Lieutenant Governor, then the
concept of collective responsibility would stand negated.
Federal
functionalism and democracy – Concept of – Held:
Constitution contemplates a meaningful instrumentation of
federalism and democracy to put in place an egalitarian social order,
a classical unity in a contemporaneous diversity and a pluralistic
setting in eventual cohesiveness without losing identity.
Collaborative federalism, pragmatic federalism and federal
balance – Concept of – Held: Constitutional vision beckons both
the Central and the State Governments alike with the aim to have a
holistic structure – Thus, the Union and the State Governments must
embrace a collaborative federal planning by displaying harmonious
co-existence and interdependence so as to avoid any possible
constitutional discord – Acceptance of pragmatic federalism and
achieving federal balance has become a necessity requiring
disciplined wisdom on the part of Union and State Governments by
demonstrating a pragmatic orientation – These concept has
applicability to NCT of Delhi.
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Federal balance – Concept of – Held: Federalism is a concept
which envisions a form of Government where there is a distribution
of powers between the States and the Centre – Principle of federal
balance is that the Centre and the States must act within their own
spheres – Union not to usurp all powers and the States enjoy freedom
without any unsolicited interference from the Central Government
with respect to matters which exclusively fall within their domain –
Role of the Court in ensuring the federal balance, assumes great
importance.
Constitutional culture and pragmatism – Need for – Held:
Term ‘constitutional culture’ is the conceptual normative spirit that
transforms the Constitution into a dynamic document – It constantly
enables to keep in stride with the rapid and swift changes occurring
in the society – Responsibility of fostering a constitutional culture
is on the State and the populace – 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 – In order to promote and
nurture the spirit of constitutional culture, pragmatic approach of
interpretation adopted by the courts have ushered in an era of
‘constitutional pragmatism’.
Constitutional renaissance – Understanding of – Held: It is
fulfillment of constitutional idealism ignoring anything that is not
permissible by the language of the provisions of the Constitution
and showing regard to its sense, spirit and silence – Constitution is
a constructive one – There is no room for absolutism or anarchy in
the field of constitutional governance and rule of law –
Constitutional functionaries are expected to cultivate the
understanding of constitutional renaissance – Lieutenant Governor
and the Council of Ministers to follow this idealism.
Interpretation of Statutes:
Interpretation of the Constitution – Approach to be adopted
– Held: Constitutional Courts to read the words of the Constitution
in the light of the spirit of the Constitution so that the ideal democratic
nature of the Constitution and the paradigm of representative
participation are not destroyed – Several factors must be given their
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due weightage in order to come up with a solution harmonious with
the purpose with which the different provisions were introduced –
Judges to see 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.
Interpretation of the Constitution – Purposive interpretation
– Held: 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 situation, the courts to interpret
the Constitution in a purposive manner so as to give effect to its
true intention and the provisions do not remain static and rigid.
HELD:
Per Dipak Misra, CJI  (For himself,  A. K. Sikri and A. M.
Khanwilkar, JJ.):
1.1 NCT of Delhi cannot be accorded the status of a State
under the present constitutional scheme. The status of NCT of
Delhi is sui generis, a class apart, 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.  With the insertion of Article
239AA by virtue of the Sixty-ninth Amendment, the Parliament
envisaged a representative form of Government for the NCT of
Delhi. The said provision intends to provide for the Capital a
directly elected
Legislative Assembly which shall have legislative
powers over matters falling within the State List and the
Concurrent List, barring those excepted, (public order, police
and land) and a mandate upon the Lieutenant Governor to act on
the aid and advice of the Council of Ministers except when he
decides to refer the matter to the President for final decision.
The meaning of ‘aid and advise’ employed in Article 239AA(4)
has to be construed to mean that the Lieutenant Governor of
NCT of Delhi is bound by the aid and advice of the Council of
Ministers and this position holds true so long as the Lieutenant
Governor does not exercise his power under the proviso to clause
(4) of Article 239AA. The Lieutenant Governor has not been
entrusted with any independent decision-making power. He has
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to either act on the ‘aid and advice’ of Council of Ministers or he
is bound to implement the decision taken by the President on a
reference being made by him. [Para 277-xii, xiii, xvii]
1.2 The interpretative dissection of Article 239AA(3)(a)
reveals that the Parliament has the power to make laws for the
National Capital Territory of Delhi with respect to any matters
enumerated in the State List and the Concurrent List. At the
same time, the Legislative Assembly of Delhi also has the power
to make laws over all those subjects which figure in the
Concurrent List and all, but three excluded subjects, in the State
List, public order, police and land. [Para 277-xiv] [180-B-D;
181-C-D]
1.3 As a natural corollary, the Union of India has exclusive
executive power with respect to the NCT of Delhi relating to the
three matters in the State List in respect of which the power of
the Delhi Legislative Assembly has been excluded. In respect of
other matters, the executive power is to be exercised by the
Government of NCT of Delhi. This, however, is subject to the
proviso to Article 239AA(4) of the Constitution. Such an
interpretation would be in consonance with the concepts of
pragmatic federalism and federal balance by giving the
Government of NCT of Delhi some required degree of
independence subject to the limitations imposed by the
Constitution. [Para 277-xvi] [181-A-C]
New Delhi Municipal Corporation v. State of Punjab
[1996]
10 Suppl. SCR 472: (1997) 7 SCC 339 –
followed.
Ideals/principles of representative governance:
2.1 Representative Governance in a republican form of
democracy is a kind of democratic setup wherein the people of a
nation elect and choose their law making representatives. The
representatives so elected are entrusted by the citizens with the
task of framing policies which are reflective of the will of the
electorate. The main purpose of a representative government is
to represent the public will, perception and the popular sentiment
into policies. The representatives, thus, act on behalf of the people
at large and remain accountable to the people for their activities
as lawmakers. Therefore, representative form of governance
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comes out as a device to bring to fore the popular will. The
Constitution of India has embraced the representative model of
governance at all levels, i.e., local, State and the Union. Thus
perceived, the people are the sovereign since they exercise the
power of adult franchise that ultimately builds the structure of
representative democracy. That apart, every constituent of the
sovereign is entitled to air his/her grievances through their
elected representatives. The twin idea establishes the
cornerstone of the precept of accountability to the public because
there rests the origin of power and responsibility. [Paras 49, 52,
53] [81-G-H; 82-E; 83-B]
State of Bihar and another v. Bal Mukund Sah and others
[2000] 2 SCR 299 : 2000 (4) SCC 640 – referred to.
The Principles of Representative Government by
Bernard Manin, Cambridge University Press, 1997
– referred to.
2.2 In a democratic republic, the collective who are the
sovereign elect their law making representatives for enacting
laws and shaping policies which are reflective of the popular will.
The elected representatives being accountable to the public must
be accessible, approachable and act in a transparent manner.
Thus, the elected representatives must display constitutional
objectivity as a standard of representative governance which
neither tolerates ideological fragmentation nor encourages any
utopian fantasy, rather it lays stress on constitutional ideologies.
[Para 277 (ii)] [177-F-G]
2.3 When
elected representatives and constitutional
functionaries enter their office, they take oath to bear allegiance
to the Constitution and uphold the Constitution. Thus, it is
expected of them not only to remain alive to the provisions of
the Constitution but also to concepts like constitutionalism,
constitutional objectivity and constitutional trust, etc. The support
expressed by the sovereign in the form of votes cannot become
an excuse to perform actions which fall foul to the Constitution
or are ultra vires. Though the elected representatives are
expected to act as instruments of transforming popular will into
policies and laws, yet they must do so within the contours of the
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Constitution. They must display constitutional objectivity as a
standard of representative governance, for that is ingrained in
the conceptual democratic majority which neither tolerates
ideological fragmentation nor encourages any kind of utopian
fantasy. It lays stress on realizable constitutional ideologies. [Para
56] [83-G-H; 84-A-B]
Constitutional morality:
3.1 Constitutional morality in its strictest sense of the term
implies strict and complete adherence to the constitutional
principles as enshrined in various segments of the document.
When a country is endowed with a Constitution, there is an
accompanying promise which stipulates that every member of
the country right from its citizens to the high constitutional
functionaries must idolize the constitutional fundamentals. This
duty imposed by the Constitution stems from the fact that the
Constitution is the indispensable foundational base that functions
as the guiding force to protect and ensure that the democratic
setup promised to the citizenry remains unperturbed. The
constitutional functionaries owe a greater degree of responsibility
towards this eloquent instrument for it is from this document
that they derive their power and authority and, as a natural
corollary, they must ensure that they cultivate and develop a spirit
of constitutionalism where every action taken by them is governed
by and is in strict conformity with the basic tenets of the
Constitution.
[Para 57] [84-C-E]
3.2 Constitutional morality is that fulcrum which acts as an
essential check upon the high functionaries and citizens alike, as
experience has shown that unbridled power without any checks
and balances would result in a despotic and tyrannical situation
which is antithetical to the very idea of democracy. Constitutional
morality acts as a check against lapses on the part of the
governmental agencies and colourable activities aimed at affecting
the democratic nature of polity. [Paras 59, 61] [84-G-H; 85-A, E]
3.3 Constitutional morality, appositely understood, means
the morality that has inherent elements in the constitutional
norms and the conscience of the Constitution. Any act to garner
justification must possess the potentiality to be in harmony with
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the constitutional impulse. In order to realize the constitutional
vision, it is indispensable that all citizens and high functionaries
in particular inculcate a spirit of constitutional morality which
negates the idea of concentration of power in the hands of a few.
When one is expressing an idea of generosity, he may not be
meeting the standard of justness. There may be an element of
condescension. But when one shows justness in action, there is
no feeling of any grant or generosity. That will come within the
normative value. That is the test of constitutional justness which
falls within the sweep of constitutional morality. It advocates the
principle of constitutional justness without subjective exposition
of generosity. [Para 61] [85-F-G; 86-A-B]
Manoj Narula v. Union of India [2014] 9 SCR 965 :
(2014) 9 SCC 1; Krishnamoorthy v. Sivakumar and
others [2015] 4 SCR 987 : (2015) 3 SCC 467 –
referred to.
Constitutional objectivity:
4.1 The Constitution, in its grandness, resolutely embraces
the theory of “checks and balances”. This theory in turn, gives
birth to the principle of “constitutional objectivity”. The
Constitution expects the organs of the State adorned by high
constitutional functionaries that while discharging their duties,
they remain alive to the allegiance they bear to the Constitution.
Neutrality as envisaged under the constitutional scheme should
guide them in the performance of their duties and functions under
the Constitution. This is the
trust which the Constitution reposes
in them. [Para 62] [86-B-D]
4.2 The concept of constitutional objectivity is, by itself,
inherent in the vision of the founding father and it is incumbent
upon the organs of the State to make comprehensive efforts
towards realization of this vision. But, at the same time, they
must remain true to the Constitution by upholding the trust which
the Constitution places in them and thereby exhibit constitutional
objectivity in its truest sense. The decisions taken by
constitutional functionaries and the process by which such
decisions are taken must have normative reasonability and
acceptability. Such decisions, therefore, must be in accord with
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the principles of constitutional objectivity and symphonious with
the spirit of the Constitution. It is not only the decision itself but
also the process adopted in such decision making which should
be in tune with constitutional objectivity. A decision by a
constitutional functionary may, in the ultimate analysis, withstand
scrutiny but unless the process adopted for arriving at such a
decision is in tandem with the idea of constitutional objectivity, it
invites criticism. Therefore, the decision making process should
never by-pass the established norms and conventions which are
time tested and should affirm to the idea of constitutionalism.
[Paras 63, 64] [86-D-E, 87-B-D]
Indra Sawhney v Union of India and Others 1993 AIR
477 : [1992] 2 Suppl SCR 454 – referred to.
Constitutional governance and the conception of legitimate
constitutional trust:
5.1 The Constitution being the supreme instrument
envisages the concept of constitutional governance which has,
as its twin limbs, the principles of fiduciary nature of public power
and the system of checks and balances. Constitutional governance,
in turn, gives birth to the requisite constitutional trust which must
be exhibited by all constitutional functionaries while performing
their official duties. [Para 277(v)] [178-D]
5.2 The concept of constitutional governance in a body polity
like ours, is neither hypothetical nor an abstraction but is real,
concrete and grounded.
The word ‘governance’ encapsulates the
idea of an administration, a governing body or organization
whereas the word ‘constitutional’ means something sanctioned
by or consistent with or operating under the fundamental organic
law, i.e., the Constitution. Thus, the word ‘governance’ when
qualified by the term ‘constitutional’ conveys a form of governance/
government which adheres to the concept of constitutionalism.
The said form of governance is sanctioned by the Constitution
itself, its functions are consistent with the Constitution and it
operates under the aegis of the Constitution. The concept of
constitutional governance is a natural consequent of the doctrine
of constitutional sovereignty. [Paras 65, 68] [87-E-F; 89-B]
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Kalpana Mehta and others v. Union of India and others
(2018) 7 SCALE 106; B.R. Kapur v. State of T.N. and
another [2001] 3 Suppl. SCR 191 : 2001 (7) SCC 231;
Manoj Narula v. Union of India [2014] 9 SCR 965 :
(2014) 9 SCC 1; Re: Dr. Ram Ashray Yadav, Chairman,
Bihar Public Service Commission [2000] 2 SCR 688 :
2000 (4) SCC 309; Subhash Sharma and others and
Firdauz Taleyarkhan v. Union of India and another
1990 (2) SCALE 836 – referred to.
5.3 The Constitution of India, 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. [Para 77] [93-D-F]
Collective responsibility:
6. Ours is a parliamentary form of government guided by
the principle of
collective responsibility of the Cabinet. The
Cabinet owes a duty towards the legislature for every action taken
in any of the Ministries and every individual Minister is
responsible for every act of the Ministry. This principle of
collective responsibility is of immense significance in the context
of ‘aid and advice’. If a well deliberated legitimate decision of the
Council of Ministers is not given effect to due to an attitude to
differ on the part of the Lieutenant Governor, then the concept
of collective responsibility would stand negated.[Para 277(vi)]
[178-E-F]
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State of Karnataka v. Union of India and another [1978]
2 SCR 1; R.K. Jain v. Union of India and others (1993)
3 SCR 802; Common Cause, A Registered Society v.
Union of India and others [1999] 3 SCR 1279 : 1999
(6) SCC 667 – referred to.
“Government and Law”: An introduction to the
working of the Constitution in Britain by T. C. Hartley
and J.A.G. Griffith 2ndedn. 1981 London; Weidenfeld
and Nicholson – referred to.
Federal functionalism and democracy:
7.1 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. 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. The said
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. [Paras 86, 88, 89] [98-
A-B, D-E, G
7.2 Democracy 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
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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 the constitutional
federalism. [Para 106] [107-F-G]
7.3 Our Constitution contemplates a meaningful
orchestration of federalism and democracy to put in place an
egalitarian social order, a classical unity in a contemporaneous
diversity and a pluralistic milieu in eventual cohesiveness without
losing identity. Sincere attempts should be made to give full-
fledged effect to both these concepts. 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. [Para 277(vii), 106] [178-G-H;
108-B-C]
Mohinder Singh Gill and another v. Chief Election
Commissioner, New Delhi and others [1978] 2 SCR
272 : (1978) 1 SCC 405; Raghbir Singh Gill v. S.
Gurcharan Singh Tohra 1980 AIR 1362 : [1980}
SCR 1302; Kesavananda Bharati v State of Kerala AIR
(1973) SC 1461 : [1973] Suppl. SCR 1; Indira Nehru
Gandhi v. Raj Narain [1976] SCR 347 : 1975 Suppl.
SCC 1; T.N. Seshan, CEC of India v. Union of India
and others. [1995] 2 Suppl. SCR 106 : (1995) 4 SCC
611; KuldipNayar v. Union of India others. [2006] 5
Suppl. SCR 1 : (2006) 7 SCC 1; In re: Under Article
143, Constitution of India, (Special Reference No. 1
of 1964) 1965
AIR 745 : [1965] SCR 413; State of
Karnataka v. Union of India and another
[1978] 2 SCR 1; Shamsher Singh v. State of Punjab
1974 AIR 2192 : [1975] 1 SCR 814; S.R. Bommai v.
Union of India [1994] 2 SCR 644 : (1994) 3 SCC 1;
ITC 
Ltd. 
v. 
Agricultural 
Produce 
Market
Committee [2002] 1 SCR 441 : (2002) 9 SCC 232 –
referred to.
Federal Government by Prof. K.C. Wheare, 1963
Edn. p.33; Black’s Law Dictionary 6th Edn.p. 432 –
referred to.
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Collaborative federalism:
8.1 The vision enshrined in the Preamble, i.e., to achieve
the golden goals of justice, liberty, equality and fraternity, beckons
both the Union Government and the State Governments, alike.
The constitutional vision beckons both the Central and the State
Governments alike with the aim to have a holistic edifice. Thus,
the Union and the State Governments must embrace a
collaborative federal architecture by displaying harmonious co-
existence and interdependence so as to avoid any possible
constitutional discord.  [Paras 108, 277(viii)] [108-E; 179-A-B]
8.2 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 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. [Para 114] [109-F-G; 110-A]
8.3 The idea behind the concept of collaborative federalism
is negotiation
and coordination so as to work 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. Both the Centre and the States must work
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within their 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. [Para 117] [110-
E-G; 111-A-B]
8.4 Though the authorities referred to 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. [Para 120] [112-B]
State of Rajasthan and others v. Union of India (1978)
1 SCR 1 - referred to.
Some aspects of Indian federalism by M.P. Jain –
referred to.
Carmichael v. S. Coal & Coke Co. 301 U.S. 495, 525-
26 (1937) – referred to.
The Passing of Dual Federalism by Edward S. Corwin
36 VA.L.REV. 1,4 (1950); Modern Federalism by
Geoffrey Sawer (Pitman Australia, 1976) 1; Inter
governmental relations in Canada: The emergence of
collaborative federalism by Cameron, D. and Simeon
R. Publius, 32(2) : 49-72; Collaborative federalism :
Economic reform in Australia in the 1990s by Martin
Painter, Cambridge University Press, 2009; The
Constitution of a Federal Commonwealth: The Making
and Meaning of the Australian Constitution, 2009 by
Prof. Nicholas Aroney – referred to.
Pragmatic federalism:
9.1 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
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Constitution has certain features which can very well be perceived
as deviations from the federal character. Though Constitution
broadly has a federal character, yet it still has certain striking
unitary features too. The need is to understand the thrust and
implication of a provision. Acceptance of pragmatic federalism
and achieving federal balance has become a necessity requiring
disciplined wisdom on the part of the Union and the State
Governments by demonstrating a pragmatic orientation. [Para
121, 277(viii)] [112-D-E; 113-C-D; 119-B]
9.2 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. 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. [Paras 125-126] [113-G-H; 114-A-B]
Concept of federal balance:
10.1 Constitution has mandated a federal balance wherein
independence of a certain required degree is assured to the State
Governments. As opposed to centralism, a balanced federal
structure mandates that the Union does not usurp all powers and
the States enjoy freedom without any unsolicited interference from
the Central Government with respect to matters which
exclusively fall within their domain. The need is for federal balance
which required mutual respect and deference to actualize the
workability of a constitutional provision. [Para 277 (ix), 127]
[179-C; 114-E-F]
10.2 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 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
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principle of federal balance which is entrenched in the Constitution
is that the Centre and the States must act within their own spheres.
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. [Paras 129, 131] [114-G-H; 115-A-B; 116-B-C]
In re: Under Article 143, Constitution of India, (Special
Reference No. 1 of 1964); UCO Bank v. Dipak
Debbarma [2016] 11 SCR 723 : (2017) 2 SCC 585 –
referred to.
Interpretation of the Constitution:
11.1 While interpreting the provisions of the Constitution,
the safe and most sound approach for the Constitutional Courts
to adopt is to read the words of the Constitution in the light of
the spirit of the Constitution so that the quintessential democratic
nature of the Constitution and the paradigm of representative
participation by way of citizenry engagement are not annihilated.
The Courts must adopt such an interpretation which glorifies the
democratic spirit of the Constitution. Constitution is a dynamic
and heterogeneous instrument, the interpretation of which
requires consideration of several factors which must be given
their due weightage in order to come up with a solution
harmonious with the purpose with which the different provisions
were introduced by the framers of the Constitution or the
Parliament. [Para 277(i), (x)] [177-E; 179-E-F]
11.2 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
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
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not eventually subserve the purpose of a living document. [Para
133] [116-G-H; 117-A-B]
R.C. Poudyal v. Union of India and others [1993]
1 SCR 891 : (1994) 1 Suppl. SCC 324; Supreme Court
Advocates-on-Record Association and another v. Union
of India [1993] 2 Suppl. SCR 659 : (1993) 4 SCC 441–
referred to.
Dred Scott v Sanford 60 U.S. (19 How.) 393 (1857);
Home Building and Loan Association v Blaisdell, 290
U.S. 398 (1934) West Coast Hotel Co. v Parrish 300
US 379 (1937); McCulloch v. Maryland 17 US
(4Wheat) 316 (1819); State v Superior Court (1944) at
547; Gompers v US 233 (1914); Burnett v Coronado
Oil and Gas Co., 285 US (1932); American
Communication Association v Douds 339 US (1950)
Poulos v New Hamshire, 345 US (1953); *—-Helvering
v. Gregory 69 F. 2d 809, 810-II (1934); Hunter v.
SouthamInc [1984] 2 SCR 145; Edwards v Attorney
General for Canada [1930] AC 124, 136;  – referred
to.
Jurisprudence by Bodenheimer, Edgar (Universal Law
Publishing Co.Pvt. Ltd, Fourth Indian Reprint, 2004) p
405; “A Constructivist Coherence Theory of
Constitutional Interpretation”, by Richard H. Fallon,
Harvard Law Review Association, 1987; “Words and
Music: Some remarks on Statutory Interpretation,” by
Jerome N. Frank Columbia Law Review 47 (1947):
1259-1367; The Interpretation of Legislation in Canada
by Pierre-André Côté, 2nd Ed (Cowansville. Quebec:Les
Editions Yvon Blais. Inc. 1992) – referred to.
Purposive interpretation:
12. In
the light of the contemporary issues, the purposive
method has gained importance over the literal approach and the
Constitutional Courts, with the vision to realize the true and
ultimate purpose of the Constitution not only in letter but also in
spirit and armed with the tools of ingenuity and creativity, must
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not shy away from performing this foremost duty to achieve
constitutional functionalism by adopting a pragmatic approach.
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 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 spirit and conscience of the
Constitution should not be lost in grammar and the popular will
of the people which has its legitimacy in a democratic set up cannot
be allowed to lose its purpose in simple semantics. [Paras 146,
151, 277(xi)] [179-G; 122-D-E; 124-A-B]
S.R. Chaudhuri v. State of Punjab and others [2001] 1
Suppl. SCR 621 : (2001) 7 SCC 126; Ashok Kumar
Gupta and another v. State of U.P. and others [1997]
3 SCR 269 : (1997) 5 SCC 201; Indian Medical
Association v. Union of India and others [2011]
6 SCR 599 : (2011) 7 SCC 179; M. Nagaraj v. Union
of India (2006) 8 SCC 202 – referred to.
Attorney
General of Trinidad and Tobago v. Whiteman
[1991] 2 AC 240; Regina (Quintavalle) v. Secretary of
State for Health (2003) UKHL 13 : (2003) 2 AC 687 :
(2003) 2 WLR 692 (HL); Cabell v. Markham 148 F 2d
737 (2d Cir 1945)– referred to.
Purposive Interpretation in Law by Sharon Barak
Princelon University Press, 2005– referred to.
Constitutional culture and pragmatism:
13. The 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
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spirit that transforms the Constitution into a dynamic document.
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. 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”. Exposition of judicial sensibility
to the functionalism of the Constitution is called constitutional
pragmatism. [Paras 158, 161, 162, 277(xi)] [126-F-G; 127-C-D]
Supreme Court Advocates-on-Record-Association and
others v. Union of India (2016) 5 SCC 1; R.C. Poudyal
v. Union of India and others [1993] 1 SCR 891 : (1994)
(1) Suppl. SCC 324; The State of Karnataka and
another v. Shri Ranganatha Reddy and another [1978]
1 SCR 641: (1977) 4 SCC 471; Union of India v.
Sankalchand Himatlal Sheth and another [1978] 1 SCR
423 – referred to.
Willaim J. Brennan, Jr., The Constitution of the United
States: Contemporary Ratification in interpreting The
Constitution: The Debate Over Original Intent at 23,
27 (Jack N. Rakove ed., 1990); Constitutional Theory,
Constitutional Culture, by Andrew M. Siegel, 18 U.PA.J.
Const. L. 1067 (2016) – referred to.
Interpretation of Articles 239 and 239A:
14.1
Article 239 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. 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 of a Union Territory which is adjacent
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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. [Paras 173-174] [131-G-H; 132-A-B]
Shamsher Singh v. State of Punjab 1974 AIR 
2192 : [1975] 1 SCR 814; Union of India and others
v. Surinder S [2012] 12 SCR 1077 : (2013) 1 SCC 403
– referred to.
14.2 Article 239 A was brought into force by the Constitution
(Fourteenth Amendment) Act, 1962. 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. 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, Puducherry
cannot be compared with the NCT of Delhi as it is solely governed
by the provisions of Article 239A. [Paras 178-180] [133-E, G-H;
134-A-B]
Interpretation of Article 239AA
15. The Articles 239AA and 239AB 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 amendment really
conceives of conferring special status on Delhi. This fundamental
grammar has to be kept in view when the interpretative dissection
of Article 239AA and other articles that are pertinent to
understand the said provision are looked into. [Paras 181, 182]
[134-C; 138-A-B]
Status of NCT of Delhi:
16. 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
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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). [Para 195] [146-C-E]
Shamsher Singh v. State of Punjab 1974 AIR 
2192 : [1975] 1 SCR 814; Devji Vallabhbhai Tandel
and others v. Administrator of Goa, Daman and Diu
and another [1982] 3 SCR 553 : (1982) 2 SCC 222;
Sea Customs Act, Re, AIR 1963 SC 1760 : [1964] 3
SCR 787; New Delhi Municipal Corporation v. State
of Punjab [1996] 10 Suppl. SCR 472 : (1997) 7 SCC
339 – referred to.
Executive power of the Council of Ministers of Delhi:
17.1 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 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. [Para 199] [148-G-H; 149-A-B]
17.2 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
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scheme and purpose of Part VIII (Union Territories) of the
Constitution infructuous. [Para 200] [149-B-D]
Essence of Article 239AA of the Constitution:
18.1 The constitutional amendment conceives of conferring
special status on Delhi. This has to be kept in view while
interpreting Article 239AA. 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. [Paras 201-202] [149-B-D, F-G]
18.2 The Sixty-ninth amendment highlight the uniqueness
attributed to Delhi with the 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, 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 to give a purposive
interpretation to Article 239AA so that the principles of
democracy and federalism which are part of the basic structure
of the Constitution are reinforced in NCT of Delhi in their truest
sense. 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. [Paras
203, 204] [149-H; 150-A-B]
18.3 The stark difference in the language of Article 239A
clause (1) and that of Article 239AA clause (2) is noticed. 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
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to perform the functions of a Legislature for the Union Territory
of Puducherry. 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. This
difference is highlighted 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. [Paras 208-210] [151-C-H]
18.4 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). [Para 214] [152-F-G]
18.5 Clause (4) of Article 239AA 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 Lieutenant Governor in the exercise
of his functions in relation to matters 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. The proviso to clause (4) stipulates that
in case of a difference of opinion on any matter between the
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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. [Paras 215-216] [152-G-H;
153-A-C]
18.6 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. [Para 217, 277(xv)] [153-D; 180-G-H]
18.7 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. [Para 218]
[153-E-F]
18.8 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 it
is said that the Union has 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
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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. [Para 219] [153-G-H; 154-A-B]
18.9 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. The words ‘any
matter’ occurring in the proviso to Article 239AA(4) does not
necessarily need to be construed to mean ‘every matter’. 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 weightage so
as to deduce the real intention and purpose in which the word
has been used. [Paras 223, 232, 277(xviii)]
18.10 The power of the Lieutenant Governor under the
said proviso represents the exception and not the general rule
which has to be exercised in exceptional circumstances by the
Lieutenant Governor keeping in mind 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 Lieutenant
Governor need not, in a mechanical manner, refer every decision
of his Ministers to the President. 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
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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. [Para 233, 277(xviii)] [159-B-E; 181-E-F]
How to do things with words by J.L. Austin, The William
James Lectures delivered at Harvard University, 1955
– referred to.
18.11 The proviso to Article 239AA(4), 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. 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. 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 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 this is called constitutional pragmatism. [Para
234] [159-F-H; 160-A]
18.12 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. [Para 235, 277(xxii)] [160-B-C; 182-C-E]
18.13 Interpretation cannot ignore the conscience of the
Constitution. That apart, when a broader view is taken, this Court
is 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
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in a democratic set up, although different from States as
understood under the Constitution, will lose its purpose in simple
semantics. 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 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. [Para
236, 277(xix)] [160-D-G; 161-A-B; 181-G-H]
Shri Balaganesan Metals v. M. N. Shanmugham Chetty
and others [1987] 2 SCR 1173 : (1987) 2 SCC 707;
Kihoto Hollohan v. Zachillhu and others 1993 AIR 412 :
[1992] (1) SCR 686; A.V.S. Narasimha Rao and Ors. v.
The State of Andhra Pradesh and another [1970] 1 SCR
115 : (1969) 1 SCC 839; Workmen of Dimakuchi Tea
Estate v. The Management of Dimakuchi Tea Estate
1958 AIR 353 : [1958] SCR 1156 – referred to.
Small v. United States 544 U.S. 385 (2005); United States
v. Palmer 16 U.S. 3 Wheat .610610 (1818); Warburton
v. Huddersfield Industrial Society [1892] 1 QB 817,
pp. 821-22 – referred to.
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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
19.1 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. 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. [Paras 238, 240] [162-
C,  B-C]
19.2 Section 42 deals with the aid and advice tendered by
the Council of Ministers to the Lieutenant Governor. The
wordings and phraseology of Section 42 of the 1991 Act is identical
to that of clause (2) of Article 74 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. 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. [Paras
241, 242] [163-C-F]
19.3 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. In exercise of the powers conferred under
the provision, the President has framed the Transaction of
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Business of the Government of National Capital Territory of Delhi
Rules, 1993. The 1991 Act and the TBR, 1993, when read
together, reflect the scheme of governance for the NCT of Delhi.
[Para 244-245] [164-D-E]
19.4 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. 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. [Para 247] [165-B-D]
19.5 The Transaction of Business Rules, 1993 stipulates
the procedure to be followed by the Lieutenant Governor in case
of difference between him and his Ministers. The Lieutenant
Governor and the Council of Ministers must attempt
to settle
any point of difference by way of discussion and dialogue. By
contemplating such a procedure, the TBR, 1993 suggest that
the Lieutenant Governor must work harmoniously with his
Ministers and must not seek to resist them every step of the
way. The need for harmonious resolution by discussion is
recognized especially to sustain the representative form of
governance as has been contemplated by the insertion of Article
239AAA. [Para 277(xx)] [182-A-C]
19.6 The scheme that has been conceptualized by the
insertion of Articles 239AA and 239AB read with the provisions
of the GNCTD Act, 1991 and the corresponding TBR, 1993
indicates that the Lieutenant Governor, being the Administrative
head, shall be kept informed with respect to all the decisions
taken by the Council of Ministers. The terminology “send a copy
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thereof to the Lieutenant Governor”, “forwarded to the
Lieutenant Governor”, “submitted to the Lieutenant Governor”
and “cause to be furnished to the Lieutenant Governor” employed
in the said rules leads to the only possible conclusion that the
decisions of the Council of Ministers must be communicated to
the Lieutenant Governor but this does not mean that the
concurrence of the Lieutenant Governor is required. The said
communication is imperative so as to keep him apprised in order
to enable him to exercise the power conferred upon him under
Article 239AA(4) and the proviso thereof. [Para 277(xxi)]
[182-C-E]
19.7 A conjoint reading of the 1991 Act and the TBR, 1993
formulated in pursuance of Section 44 of the 1991 Act divulges
that the Lieutenant Governor of Delhi is not a titular head, rather
he enjoys the power of that of an administrator appointed by the
President under Article 239AA. The constitutional scheme
adopted for the NCT of Delhi conceives of the Council of
Ministers as the representatives of the people on the one hand
and the Lieutenant Governor as the nominee and appointee of
the President on the other, who are required to function in
harmony within the constitutional parameters. In the said scheme
of things, the Lieutenant Governor should not emerge as an
adversary having a hostile attitude towards the Council of
Ministers of Delhi, rather he should act as a facilitator. [Para 268]
[174-A-C]
R. S. Nayak v. A.R. Antulay [1984] 2 SCR 495 :
(1984)
2 SCC 183; Shrimant Shamrao Suryavanshi v. Pralhad
Bhairoba Suryavanshi [2002] 1 SCR 393 : (2002) 3
SCC 676; TMA Pai Foundation v. State of Karnataka
(2002) 8 SCC 481: [ 2002] 3 Suppl. SCR 587 –
referred to.
Maumsell v. Olins [1975] AC 373; Eastman
Photographic Materials Company v. Comptroller-
General of Patents, Designs and Trademarks (1989)
AC 571; Tikri Banda Dullewe v. Padma Rukmani
Dullewe (1969) 2 AC 313; Black Clawson International
Ltd. v. PapierwerkeWaldhof-Aschaffenburg (1975) AC
591 – referred to.
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Constitutional renaissance:
20.1 Fulfillment of constitutional idealism ostracizing
anything that is not permissible by the language of the provisions
of the Constitution and showing veneration to its spirit and silence
with a sense of reawakening to the vision of the great living
document is, in fact, constitutional renaissance. The Constitution
is a constructive one. There is no room for absolutism. There is
no space for anarchy. Sometimes it is argued, though in a different
context, that one can be a “rational anarchist”, but the said term
has no entry in the field of constitutional governance and rule of
law. The constitutional functionaries are expected to cultivate
the understanding of constitutional renaissance by realization of
their constitutional responsibility and sincere acceptance of the
summon to be obeisant to the constitutional conscience with a
sense of reawakening to the vision of the great living document
so as to enable true blossoming of the constitutional ideals. The
Lieutenant Governor and the Council of Ministers headed by
the Chief Minister are to constantly remain alive to this idealism.
[Para 272, 273, 277(xxiii)] [182-G; 183-A; 176-C-D; 183-B-D]
20.2 The said concept garners strength when there is
rational difference by the Lieutenant Governor on a constitutional
prism, any statutory warrant, executive disharmony between the
Centre and NCT of Delhi on real justifiable grounds, when an
executive decision runs counter to the legislative competence
and the decision of the Council of Ministers defeats the national
interest. These are only a few illustrations. The Constitution does
not state the nature of the difference. It leaves it to the wisdom
of the Council of Ministers who have the collective responsibility
and the Lieutenant Governor. That is the constitutional trust which
expects the functionaries under the Constitution to be guided by
constitutional morality, objective pragmatism and the balance that
is required to sustain proper administration. The idea of
obstinance is not a principle of welfare administration. The
constitutional principles do not countenance a nomadic
perception. They actually expect governance for the betterment
of society, healthy relationship and mutual respect having an open
mind for acceptance. [Para 274] [176-E-G]
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20.3 The goal is to avoid any disharmony and anarchy.
Sustenance of constitutionally conferred trust, recognition and
acceptance of the principle of constitutional governance,
adherence to the principles and norms and the constitutional
conduct having regard to the elevated guiding precepts stated in
the Preamble will tantamount to realization of the feeling of
constitutional renaissance. [Para 275] [176-G; 177-A-B]
Keshavan Madhava Menon v. The State of Bombay 1951
SCR 228; Madhav Rao Jivaji Rao Scindia and others
v. Union of India and anr [1971] 3 SCR 9 : (1971) 1
SCC 85; State of Kerala and anr v. N. M. Thomas and
others [1976] 1 SCR 906 : (1976) 2 SCC 310; R.C.
Cooper v. U.O.I. [1970] 3 SCR 530 : (1970) 1 SCC
248; Maneka Gandhi v. U.O.I. [1978] 2 SCR 621 :
(1978) 1 SCC 248; Justice K.S. Puttaswamy (Retd.) v.
U.O.I. (2017) 10 SCC 1; Rai Sahib Ram Jawaya Kapur
v. State of Punjab 1955 AIR 549 : [1955] SCR 225;
Tej Kiran Jain v. N. Sanjiva Reddy [1971] 1 SCR 612 :
(1970) 2 SCC 272 – referred to.
Per Dr D Y Chandrachud, J. (Concurring):
1. The introduction of Article 239AA into the Constitution
was the result of the exercise of the constituent power. The 69th
amendment to the Constitution has important consequences for
the special status of Delhi as the National Capital Territory, albeit
under the rubric of a Union territory governed by Part VIII of the
Constitution. The content of such a constitutional amendment
cannot be confined or constrained by the
content of legislations
which governed Delhi in the past. The constitutional amendments
sought to bring stability and permanence to the democratic
governance of the NCT. An amendment which enhances the basic
features of the Constitution must bear an interpretation which
will fulfil its true character. [Para 143] [304-G-H; 305-A-C]
2. The Administrator appointed by the President under
Article 239(1) is designated, with reference to the NCT as its
Lieutenant Governor. The substantive source of power to appoint
the Lieutenant Governor arises from Article 239 of the
Constitution. While Article 239(1) indicates that the administration
of a Union territory is by the President, the opening words of the
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provision (“Save as otherwise provided by Parliament by law”)
indicate that the nature and extent of the administration by the
President is as indicated in the law framed by Parliament.
Moreover, the subsequent words of the provision (“to such
extent as he thinks fit”) support the same position [Para 143]
[305-C-E]
3. By adopting Article 239AA, Parliament as a constituent
body, provided Delhi with a special status by creating
constitutionally entrenched institutions of governance. Article
239AA mandates the existence of a legislative assembly and
Council of Ministers to govern the affairs of the National Capital.
[Para 143] [305-E-F]
4. The provisions of Article 239AA represent a clear
mandate of the Constitution to provide institutional governance
founded on participatory, representative and responsive
government. These features emerge from the provisions of Article
239AA which require direct election to the legislative assembly
from territorial constituencies; engage the constitutional functions
of the Election Commission of India under Articles 324, 327 and
329; confer law making authority on the legislative assembly in
respect of matters governed by the State List (save for excepted
matters) and the Concurrent List; mandate the collective
responsibility of the Council of Ministers to the legislative
assembly; and provide (in the substantive part of Article
239AA(4)) that the Lieutenant Governor shall act on the aid
and
advise of the Council of Ministers headed by the Chief Minister.
In adopting these provisions through an amendment, the
Constitution has recognized the importance of the cabinet form
of government to govern the affairs of Delhi. [Para 143] [305-F-
H; 306-A-C]
5. The distribution of legislative power in Article 239AA is
indicative of the predominant role assigned to Parliament as a
legislative body. This emerges from the position that Parliament
is empowered to legislate on subjects falling in the State List as
well as the Concurrent List; and the carving out of the three
subjects of public order, police and land (Entries 1, 2 and 18 of
the State List) and of offences, jurisdiction of Courts and fees
(Entries 64, 65 and 66 in so far as they relate to the previous
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entries), all of which are within the exclusive legislative domain
of Parliament. Principles of repugnancy govern any inconsistency
between laws enacted by the legislative assembly and those by
Parliament and the laws of Parliament are to prevail unless a
Presidential assent has been received. [Para 143] [306-C-F]
6. The executive power of the government of NCT is co-
extensive with the legislative power. The principle of aid and
advice under clause 4 of Article 239AA extends to areas where
the Lieutenant Governor exercises functions in relation to matters
where the legislative assembly has the power to make laws. In
consequence, those matters on which the legislative assembly
does not have the power to enact legislation are not governed by
the principle of aid and advice. Similarly, the Lieutenant Governor
is not subject to aid and advice on matters where he is required
to exercise his own discretion by or under any law. [Para 143]
[306-F-H; 307-A]
7. The GNCTD Act, 1991 has been enacted by Parliament
in pursuance of the legislative authority conferred upon it by
clause 7(a) of Article 239AA. The President has made the
Transaction of Business Rules for the NCT as contemplated in
the GNCTD Act, 1991. Section 41 of the GNCTD Act indicates
that in matters which lie outside the legislative powers entrusted
to the legislative assembly and where there has been an
entrustment or delegation of functions by the President to the
Lieutenant Governor under Article
239; and on matters where
the Lieutenant Governor exercises his own discretion by or under
any law, he is not subject to the aid and advice of the Council of
Ministers; Section 44 of the GNCTD Act indicates that aid and
advice governs areas other than those specified in Section
44(1)(i). [Para 143] [307-A-D]
8. Under the Rules, the Lieutenant Governor must be kept
duly apprised on all matters pertaining to the administration of
the affairs of the NCT. The Rules indicate the duty of the Council
of Ministers to inform the Lieutenant Governor right from the
stage of a proposal before it. The duty to keep the Lieutenant
Governor duly informed and apprised of the affairs of the NCT
facilitates the discharge of the constitutional responsibilities
entrusted to him and the fulfilment of his duties under the GNCTD
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Act, 1991 and the Transaction of Business Rules. [Para 143]
[307-E-F]
9. While the provisions contained in the Transaction of
Business Rules require a scrupulous observance of the duty
imposed on the Council of Ministers to inform the Lieutenant
Governor on all matters relating to the administration of the NCT,
neither the provisions of Article 239AA nor the provisions of the
Act and Rules require the concurrence of the Lieutenant
Governor to a decision which has been taken by the Council of
Ministers. Rule 14 of the Rules in fact indicates that the duty is
to inform and not seek the prior concurrence of the Lieutenant
Governor. However, in specified areas which fall under Rule 23;
it has been mandated that the Lieutenant Governor has to be
apprised even before a decision is implemented. [Para 143] [307-
F-H; 308-A-B]
10. The feature which stands out from the Transaction of
Business Rules is that an obligation and duty has been cast upon
the elected government and its officers to duly keep the
Lieutenant Governor informed of proposals relating to
governmental business. The duty to keep the Lieutenant
Governor informed is a necessary element of the process and
essential for the exercise of the constitutional authority which
has been vested in the Lieutenant Governor. It is only when the
Lieutenant Governor is kept duly apprised of matters relating to
the administration of the National Capital Territory that a decision
can be taken on whether a reference should be made to the Union
government under Chapter V. A significant aspect of the Rules is
that on matters which fall within the ambit of the executive
functions of the government of NCT, decision making is by the
government comprised of the Council of Ministers with the Chief
Minister at its head.. [Para 103, 104] [271-D-F; G-H]
11. As a result of the provisions of Article 367, the General
Clauses Act, 1897 applies, subject to adaptations and
modifications made under Article 372, to the interpretation of
the Constitution. The definitions of the expressions ‘State’
(Section 3(58)) and ‘State Government’ (Section 3(60)) and ‘Union
Territory’ (Section 3(62A)) apply to the interpretation of the
provisions of the Constitution unless there is something
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repugnant in the subject or context of a particular provision of
the Constitution. [Para 143] [308-B-C]
12. Since the decision of this Court in Kanniyan case and
right through to the nine-judge Bench decision in NDMC case, it
is a settled principle that the expression ‘State’ in Article 246(4)
will not include a Union territory and that the definition contained
in the General Clauses Act will not apply having regard to the
subject and context of the provision. Decisions of this Court have
applied the subject and context test to determine whether the
expression ‘State’ in other provisions of the Constitution and in
statutory provisions would include a Union territory. [Para 143]
[308-D-E]
13. The use of the expression “State” in a particular
provision is not dispositive of whether or not its application would
stand excluded in relation to a Union territory. The outcome is
essentially based on the subject and context in which the word
has been used. [Para 143] [308-E-F]
14. While giving meaning and content to the proviso to
Article 239AA (4), it is necessary to harmonise two significant
precepts: that the Constitution has adopted a cabinet form of
government for the Union territory of Delhi by creating institutions
for the exercise of legislative power and an executive arm
represented by the Council of Ministers; and the vital national
interests are implicated in the governance of the National Capital
Territory. The doctrines of aid and advice and of
collective
responsibility give effect to (i) above while the empowerment of
the Lieutenant Governor to refer any matter on which there is a
difference of opinion to the President is a reflection of (ii) above.
[Para 143] [308-F-H; 309-A-B]
15. While it may not be possible to make an exhaustive
catalogue of those differences which may be referred to the
President by the Lieutenant Governor, it must be emphasised
that a difference within the meaning of the proviso cannot be a
contrived difference. If the expression ‘any matter’ were to be
read as ‘every matter’, it would lead to the President assuming
administration of every aspect of the affairs of the Union territory,
thereby resulting in the negation of the constitutional structure
adopted for the governance of Delhi. [Para 143] [309-B-C]
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16. Before the Lieutenant Governor decides to make a
reference to the President under the proviso to Article 239AA(4),
the course of action mandated in the Transaction of Business
Rules must be followed. The Rules define the modalities which
the Lieutenant Governor must follow in the event of a difference
of opinion with the Council of Ministers. The Lieutenant
Governor must, by a process of dialogue and discussion, seek to
resolve any difference of opinion with a Minister and if it is not
possible to have it so resolved to attempt it through the Council
of Ministers. A reference to the President is contemplated by
the Rules only when the above modalities fail to yield a solution,
when the matter may be escalated to the President. [Para 143]
[309-C-E]
17. In a cabinet form of government, the substantive power
of decision making vests in the Council of Ministers with the
Chief Minister as its head. The aid and advice provision contained
in the substantive part of Article 239AA(4) recognises this
principle. When the Lieutenant Governor acts on the basis of
the aid and advise of the Council of Ministers, this recognises
that real decision-making authority in a democratic form of
government vests in the executive. Even when the Lieutenant
Governor makes a reference to the President under the terms of
the proviso, he has to abide by the decision which is arrived at by
the President. The Lieutenant Governor has, however,
been
authorised to take immediate action in the meantime where
emergent circumstances so require. The provisions of Article
239AA(4) indicate that the Lieutenant Governor must either act
on the basis of aid and advice or, where he has reason to refer
the matter to the President, abide by the decision communicated
by the President. There is no independent authority vested in
Lieutenant Governor to take decisions (save and except on
matters where he exercises his discretion as a judicial or quasi-
judicial authority under any law or has been entrusted with powers
by the President under Article 239 on matters which lie outside
the competence of the Government of NCT). [Para 143] [309-E-
H; 310-A-B]
18. The proviso to Article 239AA is in the nature of a
protector to safeguard the interests of the Union on matters of
national interest in relation to the affairs of the National Capital
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Territory. Every trivial difference does not fall under the proviso.
The proviso will, among other things, encompass substantial
issues of finance and policy which impact upon the status of the
national capital or implicate vital interests of the Union. Given
the complexities of administration, and the unforeseen situations
which may occur in future, it would not be possible for the court
in the exercise of judicial review to exhaustively indicate the
circumstances warranting recourse to the proviso. [Para 143]
[310-C-E]
19. Constitutional morality underscores the ethics of politics
in a country. It gives politics the identity to succeed.
Constitutional morality requires filling in constitutional silences
to enhance and complete the spirit of the Constitution. A
Constitution can establish a structure of government, but how
these structures work rests upon the fulcrum of constitutional
values. Constitutional morality purports to stop the past from
tearing the soul of the nation apart by acting as a guiding basis to
settle constitutional disputes. [Paras 14-15] [192-B; 193-D]
20. Any interpretation of the Constitution must be
unabashed in accepting the importance of the Constitution as a
political document which incorporates a blue print for democratic
governance. The words of the Constitution cannot be construed
merely by alluding to what a dictionary of the language would
explain. While its language is of relevance to the content of its
words, the text of
the Constitution needs to be understood in the
context of the history of the movement for political freedom. [Para
17] [194-C-D]
21. Collective responsibility of the Council of Ministers
ensures accountability to the legislature and to the electorate.
Collective responsibility governs the democratic process, as it
makes a government liable for every act it does. It envisages
that a government works effectively to ensure and fulfil the
interests of the public. It purports to ensure transparency in
government decisions. Collective responsibility rests on the
foundations of constitutional morality, which reflects constitutional
ethics. [Para 37] [214-C-E]
22. Collective responsibility and aid and advice are mutually
reinforcing principles. Each of them and both in conjunction affirm
and enhance the democratic values on which the Cabinet form of
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government is founded. Collective responsibility ensures that
government speaks as one political entity which owes allegiance
to the elected representatives of the people. The principle of
collective responsibility and aid and advice fosters a responsive
and accountable government. The doctrine of aid and advice
enhances the commitment to the democratic values which form
the basis of collective responsibility. The mandate that a titular
head of government must act on the aid and advice of the Council
of Ministers ensures that the form of democratic governance is
subservient to its substance, which mandates that the real
authority to take decisions must reside in the elected arm of the
government. [Para 41, 43] [219-D-E; 220-E-F]
U.N.R. Rao v Smt. Indira Gandhi (1971) 2 SCC 63 :
[1971] 0 Suppl. SCR 46; Samsher Singh v State of
Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; PU
Myllai Hlychho v State of Mizoram (2005) 2 SCC 92 :
[2005] 1 SCR 279; Nabam Rebia and Bamang Felix v.
Deputy Speaker, Arunachal Pradesh Legislative
Assembly; (2016) 8 SCC 1 : [2016] 6 SCR 1; Kihoto
Hollohan v Zachillhu (1992) SCC Supl. (2) 651 : [1992]
1 SCR 686 – referred to.
The Indian Constitution: Cornerstone of a Nation by
Granville Austin, Oxford University Press (1966) p.
xi – referred to.
23. In defining the ambit of the constitutional powers
entrusted to the Council of Ministers for the NCT and their
relationship with Lieutenant Governor as a
delegate of the
President, the Court cannot be unmindful of the constitutional
importance which has to be assigned to representative
government. Governance of the NCT involves national
imperatives. They must also weigh in the balance. The proviso
Article 239AA(4) is constitutional indicator of the national
concerns which were borne in mind when the constituent power
was exercised to establish the NCT as a political arm of
governance by a special constitutional provision. Those national
imperatives have led to the carving out of the areas of police,
public order and land from the sphere of legislative authority of
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the legislative assembly and their entrustment to Parliament. [Para
74] [250-B-D]
24. The constitutional principle which emerges is that while
Delhi presents a special case, quite unlike the other Union
territories, the constitutional provisions governing it are an
amalgam between national concerns (reflected in control by the
Union) and representative democracy (expressed through the
mandate of a Council of Ministers which owes collective
responsibility to a directly elected legislature). There is no gain
saying the fact that the control by the Union, is also control of the
President acting on the aid and advice of the Union Council of
Ministers which in turn owes collective responsibility to
Parliament. Constitutional statesmanship between the two levels
of governance, the Centre and the Union territory, ought to ensure
that practical issues are resolved with a sense of political maturity
and administrative experience. [Para 75] [250-G-H; 251-A-B]
25. The survey of the provisions of the GNCTD Act 1991
indicates that there is a significant interface between the President
and the Lieutenant Governor in matters relating to the
administration of the Capital. The Lieutenant Governor has been
conferred with certain specific powers by the provisions of the
Act including, among them, requirements of seeking the prior
recommendation of the President to the introduction of financial
Bills. Lieutenant Governor has been vested with the power to
act in his own
discretion in matters which fall outside the ambit
and power of the legislative assembly and which have been
delegated to him by the President as well as in regard to those
matters where he is required under law to exercise his own
discretion or to act in exercise of judicial or quasi judicial functions.
Rules for the conduct of business are framed by the President in
relation to National Capital Territory. [Para 87] [259-A-B, D-E]
Keshavan Madhava Menon v State of Bombay [1951]
2 SCR 228; Tej Kiran Jain v N Sanjiva Reddy (1970) 2
SCC 272 : [1971] 1 SCR 612; G Narayanaswami v G
Pannerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172;
Kuldip Nayar v Union of India (2006) 7 SCC 1 : [2006]
5 Suppl. SCR 1; Manoj Narula v Union of India (2014)
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9 SCC 1 : [2014] 9 SCR 965; Satya Dev Bushahri v
Padam Dev [1955] 1 SCR 549; Devji Vallabhbhai
Tandel v Administrator of Goa, Daman & Diu [1982] 2
SCC 222 : [1982] 3 SCR 553; Goa Sampling Employees’
Association v General Superintendence Co. of India
Pvt. Ltd. (1985) 1 SCC 206 : [1985] 2 SCR 373; The
State of Madhya Pradesh v Shri Moula Bux (1962) 2
SCR 794; State (NCT of Delhi) v Navjot Sandhu (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79; New Delhi
Municipal Council v State of Punjab (1997) 7 SCC 339 :
[1996] 10 Suppl. SCR 472; TM Kanniyan v Income Tax
Officer, Pondicherry [1968] 2 SCR 103; Management
of Advance Insurance Co. Ltd. v Shri Gurudasmal
(1970) 1 SCC 633; Union of India v Prem Kumar Jain
(1976) 3 SCC 743 : [1976] 0 Suppl. SCR 166; Manoj
Narula v Union of India (2014) 9 SCC 1 : [2014] 9
SCR 965; Kesavananda Bharati v State of Kerala AIR
(1973) SC 1461 : [1973] 0 Suppl. SCR 1; Puttaswamy
(2017) 10 SCC 1; I.R. Coelho v State of Tamil Nadu
(2007) 2 SCC 1 : [2007] 1 SCR 706; Rai Sahib Ram
Jawaya Kapur v The State of Punjab [1955] 2 SCR
225; A Sanjeevi Naidu v State of Madras (1970) 1 SCC
443 : [1970] 3 SCR 505; Samsher Singh v State of
Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; State
of Karnataka v Union of India (1977) 4 SCC 608 :
[1978] 2 SCR 1; Common Cause, A Registered Society
v Union of India (1999) 6 SCC 667 : [1999] 3
SCR 1279; Subramanian Swamy v Manmohan Singh
(2012) 3 SCC 64 : [ 2012] 3 SCR 52 –
referred to.
Politics and Ethics of the Indian Constitution by Rajiv
Bhagava (ed.), Oxford University Press (2008), p. 9;
The Indian Constitution: Cornerstone of a Nation by
Granville Austin, Oxford University Press (1966)
p. xi; Politics and Ethics of the Indian Constitution by
Rajiv Bhagava, Oxford University Press (2008)p.15;
The Burden of Democracy, Penguin Books (2003) by
Pratap Bhanu Mehta pp. 35-36; What is constitutional
morality?” by Pratap Bhanu Mehta Seminar (2010);
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Constituent Assembly Debates, Vol. 11 (25th November,
1949); The Oxford Handbook of the Indian Constitution
by Sujit Choudhry, Madhav Khosla and Pratap Bhanu
Mehta Oxford University Press (2016) p.12;
“The Quest 
and 
the 
Questions”
by Raju
Ramchandran;Outlook (25 August, 2014); London
School of Economics & Political Science by Niraja
Gopal Jayal and Pratap Bhanu Mehta (eds.) (February
2007); “Government Accountability” by Dilip
Mookherjee ; The Oxford Companion to Politics in
India, Oxford University Press (2010), p. 477;
“Executive” by Shubhankar Dam; in Sujit Choudhry,
Madhav Khosla and Pratap Bhanu Mehta (eds.); The
Oxford Handbook of the Indian Constitution, Oxford
University Press (2016), p. 319; Politics and Ethics of
the Indian Constitution by Rajiv Bhagava Oxford
University Press (2008) (ed.) p. 9 - referred to.
“The Glory of Democracy” by David Brooks The New
York Times December 14, 2017; Democracy and its
Institutions, by Andre Beteille Oxford University Press
(2012); “Constitutional Morality and the Rule of Law”,
Journal of Law and Politics by Bruce P. Frohnen and
George W. Carey (2011),Vol. 26, p.498; “The Silences
of 
Constitutions”, 
International 
Journal 
of
Constitutional Law by Martin Loughlin (2019, In Press);
Representative and Responsible Government, by George
Allen & Unwin Ltd (1964), p.131; The English
Constitution by Walter Bagehot, 2nd Edition (1873),
p. 118; The Growth of the English Constitution by
Edward A. Freeman (1872);
Cabinet Government by
Ivor Jennings, Cambridge University Press (1959),
3rd Edition, p. 279; Ministerial responsibility by G
Marshall, Oxford University Press (1989), p. 2-4;
“Individual and Collective Performance and the Tenure
of British Ministers by Samuel Berlinski, Torun Dewan
and Keith Dowding1945-1997”; “The Silences of
Constitutions” by Martin Loughlin, International
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Journal of Constitutional Law (2019, In Press) –
referred to.
Per Ashok Bhushan, J. (Concurring):
Principles of Constitutional Interpretation
1.1 The general rule for interpreting a Constitution are the
same as those for interpreting a general Statute. There cannot
be denial to the fact that the Court has to respect the language
used in the Constitution wherever possible, the language be such
interpreted as may best serve the purpose of the Constitution. A
Constitutional document should be construed with less rigidity
and more generosity than other acts. A 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. [Para
41-42][332--D; 333-F, G]
1.2 As regards applying the doctrine of silence and doctrine
of implications in interpreting a Constitutional provision, express
provision cannot be given a go-bye. The purpose and intent of
Constitutional provisions especially the express language used
which reflect a particular scheme has to give full effect to and
express Constitutional scheme cannot be disregarded on such
principles.[Para 56] [343-B-C]
1.3 It is apparent that Constitutional interpretation has to
be purposive taking into consideration the need of time and
Constitutional principles. The intent of
Constitution framers and
object and purpose of Constitutional amendment always throw
light on the Constitutional provisions but for interpreting a
particular Constitutional provision, the Constitutional Scheme
and the express language employed cannot be given a go-bye.
The purpose and intent of the Constitutional provisions have to
be found from the very Constitutional provisions which are up
for interpretation.  Thus, while interpreting Article 239AA the
purpose and object for which Sixty Ninth Constitution
(Amendment) Act, 1991 was brought into force has to be kept in
mind.[Para 57, 119-I] [343-D-E; 376-F]
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Keshavan Madhava Menon v. State of Bombay AIR
1951 SC 128 : [1951] SCR 228; S. R. Chaudhuri v.
State of Punjab & Ors. (2001) 7 SCC 126 : [2001] 1
Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam
and Others (1972) 3 SCC 717 : [1973] 1 SCR 172;
B.R. Kapur v. State of T. N. and Another (2001) 7 SCC
231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and
Others v. Union of India and Others (2006) 7 SCC 1 :
[2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N.
(2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee
Cooper v. Union of India (1970) 1 SCC 248 :  AIR
1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v.
Union of India and Another (1978)1 SCC 248 : AIR
1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar
and Another v. State of Karnataka 1985 Supp. SCC
714 : [1985] Suppl. SCR 352; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referred
to.
“A critical commentary” on Constitutional Law of India
by Shri H.M. Seervai; “Principles of Statutory
Interpretation by Justice G.P. Singh 14th Edn; Forward:
A Judge on judging the role of a Supreme Court in a
Democracy by Aharon Barak; Nature and Significance
of Constitutional Legislation by David Feldman 2013
(129) LQR 343-358 – referred to.
Constitutional Scheme of Article 239AA
2. Article 239A which was inserted by Constitutional
Fourteenth Amendment Act, 1962 had already contemplated that
Parliament may by law provide for Legislative Assembly for a
Union territory. The report also highlighted the necessity
of
certain subjects being kept out of jurisdiction of legislative
assembly of Delhi which were to be dealt with by the Union. The
Parliamentary Committee Report can be looked into to find out
the intent and purpose of legislation-Sixty Ninth Constitutional
Amendment. The statement of object and reasons of Sixty Ninth
Amendment Act has also referred to the Balakrishnan’s report.
The recommendation of the Committee that Delhi should continue
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to be Union territory providing with a Legislative Assembly and
Council of Ministers responsible to such Assembly was thus,
accepted and to give effect the same Article 239AA was inserted
in the Constitution.  There is no denying that one of the purposes
for insertion of Article 239AA is to permit a democratic and
republican form of Government. The principle of cabinet
responsibility was the Constitutional intent which has to be kept
in mind while interpreting the Constitutional provisions. [Para
60, 61, 65-67] [344-C-H; 346-F-G; 347-C-D]
Kalpana Mehta and others v. Union of India and others
2018 (7) SCALE 106 – referred to.
Legislative Power of Parliament and that of GNCTD
3.1 Clause (3) of the 239AA deals with power to make laws
for the whole or any part of the National Territory of Delhi by the
Legislative Assembly as well as by Parliament. Article 239 Clause
(3) makes it clear that Legislative Assembly shall have power to
make laws in respect of 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 (public order, police and land) of the State
List and Entries 64, 65 and 66 of the List.  Power to make laws in
State List or in Concurrent List is hedged by phrase “in so far as
any such matter is applicable to Union territories”. [Para 69-71]
[348-B-D; 349-C]
3.2 A perusal of the List
II and III indicates that although
in various entries there is specific mention of words ‘State’ but
there is no express reference of ‘Union Territory in any of the
entries. The phrase ‘in so far as any such matter is applicable to
‘Union Territory’ is inconsequential. On the commencement of
the Constitution, there was no concept of Union Territories and
there were only Part A, B, C and D States. After Seventh
Constitutional Amendment, where First Schedule as well as
Article 2 of the Constitution were amended which included
mention of Union Territory both in Article 1 as well as in First
Schedule. Thus, the above phrase was used to facilitate the
automatic conferment of powers to make laws for Delhi on all
matters including those relatable to the State List and Concurrent
List except where an entry indicates that its applicability to the
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Union Territory is excluded by implication or any express
Constitutional provision. Thus, there is no difficulty in
comprehending the Legislative power of the NCTD as expressly
spelled out in Article 239AA. The Union Territories are part of
the India which are not included in any State. Thus, Parliament
will have power to make laws for any matter with regard to Union
territories. In clause (4) of Article 246 by Seventh Constitutional
Amendment, in place of words “in Part A or Part B of the First
Schedule” the words “in State” have been substituted. Thus,
overriding power of the Parliament was provided with regard to
Part C and D States on enforcement of the Constitution which
Constitutional Scheme is continued after amendment made by
Seventh Constitutional Amendment. [Para 72-76] [349-D-G, H;
350-H; 351-A]
3.3 The Parliament has power to make laws for NCTD with
respect to any of the matter enumerated in State List or
Concurrent List. The Legislative Assembly of NCT has legislative
power with respect to any of the matters enumerated in the State
List or in the Concurrent List excluding the excepted entries of
State List. [Paras 80, 119-II] [354-F; 376-G]
NDMC v. State of Punjab (1997) 7 SCC 339 : [1996]
10 Suppl. SCR 472 – referred to.
Executive Powers of the Union(President /LG) And That of the
GNCTD
4.1 Although there is no express provision in the
Constitutional Scheme conferring executive power to LG of the
Union territory of Delhi, as has been
conferred on the Union under
Article 73 and conferred on the State under Article 154. Under
the Constitutional Scheme executive power is co-extensive with
the Legislative power. The Executive power is given to give effect
to Legislative enactments. Policy of legislation can be given effect
to only by executive machinery. The executive power has to be
conceded to fulfill the constitutionally conferred democratic
mandate. Article 239(4) AA deals with the exercise of executive
power by the Council of Ministers with the Chief Minister as the
head to aid and advice the LG in exercise of the above functions.
Union and States can exercise Executive power on the subjects
on which they have power to legislate. [Para 81,82, 119-III] [354-
H; 355-A-B-C; 376-H]
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Rai Sahib Ram JawayaKapur and Others v. State of
Punjab AIR 1955 SC 549 : [1955] SCR 225 – referred
to.
4.2 The proviso to Article 73(1) provides that the executive
power referred to in sub clause (a) shall not, save as expressly
provided in this Constitution or in any law made by Parliament,
extend in any State to matters with respect to which the
Legislature of the State has also power to make laws. Obviously,
the proviso refers to the Concurrent List where both Parliament
and State has power to make laws. Executive power in reference
to Concurrent List has been deliberately excluded to avoid any
duplicacy in exercise of power by two authorities. The Article 73
as it stood prior to Constitution Seventh Amendment Act, 1956
contained the expression after the word State “specified in Part
A or Part B of the First Schedule”.  Thus, the executive power
was excluded of the Union only with regard to Part A and Part B
States alone. Thus, when the Constitution was enforced, executive
power of Union in reference to Part C States was not excluded
with regard to Concurrent List also.Part C States having been
substituted as now by Union Territories by Constitution Seventh
Amendment Act. The word “State” in Proviso to Article 73 cannot
be read to include Union Territory. Reading the word Union
Territory within the word “State” in proviso to Article 73(1) shall
not be in accordance with Scheme of Part VIII (Union Territories)
of
the Constitution. Union Territories are administered by the
President. Exercise of executive power of the Union through
President is an accepted principle with regard to Union
Territories. The above interpretation is also reinforced due to
another reason. Under Article 239AA(4) proviso, the Lieutenant
Governor, in case of difference of opinion, can make a reference
to the President for decision and has to act according to the
decision given thereon.  The President, thus, with regard to a
particular executive action, which has been referred, has exclusive
jurisdiction to take a decision, which both Council of Ministers
as well as Lieutenant Governor has to follow. The provision does
not indicate that power of the President is confined only to
executive actions which are mentioned in List II. When the
President as provided by the Constitutional Scheme, is entitled
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to take executive decision on any matter irrespective of the fact
whether such executive decision taken by the Council of
Ministers or Ministers related to matters covered by List II and
List III, the executive power to Union through President cannot
be confined to List II. Overriding power to the Union even on
the executive matters has to be conceded to be there as per
Constitutional scheme. It is another matter that for exercise of
executive powers by the Union through President and by Council
of Ministers, headed by Chief Minister of NCTD, the Constitution
itself indicates a scheme which advances the constitutional
objectives and provide a mechanism for exercise of executive
powers, which aspect shall be, however, further elaborated while
considering sub-clause(4) of Article 239AA. Legislative power
of the Union is co-extensive with its executive power in relation
to NCT is further indicated by the provisions of the Government
of National Capital Territory of Delhi Act, 1991. The insertion of
Article 239AA by the Constitution 69th Amendment has been
followed by enactment of the Government of National Capital
Territory of Delhi Act, 1991 which Act was enacted by the
Parliament in exercise of power under Article 239AA(7)(a) of
the Constitution. [Para 85, 119-IV] [359-B-G; 360-A-C; 377-A-B]
4.3 Legislative power of the Union is exercised by the
President as per the constitutional scheme and Section 49 itself
indicates that Parliament clearly envisaged
Council of Ministers
and the Lieutenant Governor shall be under the general control
of, and comply with such particular directions issued by the
President from time to time. The power of the President to issue
direction is not limited in any manner so as to put any restriction
on the executive power of the Union. The President further is
empowered under Section 44 of Act, 1991 to make rules 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. As per Article
239AA sub-clause (4) read with business rules, the manner and
procedure of conduct of business including executive functions
of GNCTD has to be administered. Although the Union ordinarily
does not interfere with or meddle with the day to day functions of
the GNCTD which is in tune with the constitutional scheme as
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delineated by Article 239AA and to give meaning and purpose to
the Cabinet form of Government brought in place in the National
Capital of Territory. But as the overriding legislative power of
the Parliament is conceded in the constitutional scheme,
overriding executive power has also to be conceded even though
such power is not exercised by the Union in the day to day
functioning of the GNCTD. Thus, the executive power of the Union
is co-extensive on all subjects referable to List I and List II on
which Council of Ministers and the NCTD has also executive
powers. [Para 86-87] [360-E-H; 361-A-B]
4.4 The provision of the Article 239AB is a special provision
where President may suspend the provision of Article 239AA or
any of the provision of any law made in pursuance of that article.
The above provision is akin to Article 356.The power under
Article 356/239AA is conferred on Union in larger interest of
State. It cannot be said that executive power can be exercised by
the Union through President only when power under Article
239AB is exercised. The provision of Article 239AB is for entirely
different purpose, and is not a provision regarding exercise of
general executive power by the Union. [Para 89] [361-H;
362-A-B]
Article 239AA(4) proviso
5.1 The Governor is to act on aid and advice of the Council
of Ministers and as contemplated under Article 163, according
to the Constitutional scheme, Governor is not free to
disregard
the aid and advice of the Council of Ministers except when he is
required to exercise his function in his discretion. The aid and
advice as given by Council of Ministers as referred to in sub-
clause(4) of Article 239AA has to be followed by the Lieutenant
Governor unless he decides to exercise his power given in proviso
of sub-clause(4) of Article 239AA.The proviso is an exception to
the power as given in sub-clause(4).  A case when falls within the
proviso, the “aid and advice” of the Council of Ministers as
contemplated under sub-clause (4) is not to be adhered to and a
reference can be made by Lieutenant Governor.  This is an
express Constitution scheme, which is delineated by sub-
clause(4) of Article 239AA proviso. The scheme which is reflected
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by sub-clause(4) of Article 239AA proviso is the same scheme
which is contained under Section 44 of the Government of Union
Territories Act, 1963. [Para 92, 119-VI] [365-B, E-G]
Shamsher Singh v. State of Punjab and Another (1974)
2 SCC 831 : [1975] 1 SCR 814 – referred to.
5.2 With regard to Union Territories, the exception as
carved out in proviso was very much there since before. Thus,
the scheme as contained in proviso was well known scheme
applicable in the Union Territories. When there is an express
exception when the aid and advice given by the Council of
Ministers is not binding on the Lieutenant Governor and he can
refer it to the President and pending such decision in case of
urgency take his own decision, it cannot be accepted that aid and
advice is binding on the Governor under Article 163. The
Legislative Assembly of the NCTD being representing the views
of elected members their opinion and decision has to be respected
and in all cases, except where Lieutenant Governor decides to
make a reference. [Para 92-93, 119-VII] [366-D-E; 377-D]
5.3 The proviso uses the phrase “any matter” in the first
sentence, i.e., “provided that in the case of difference of opinion
between the Lieutenant Governor and his Ministers on any
matter...”The word “any matter” are words of wide import and
the language of Article 239AA(4) does not admit any kind of
restriction in operation of proviso. There is nothing in the
provision of sub-clause (4) to read any
restriction or limitation
on the phrase “any matter” occurring in proviso. The word “any
matter” has also been used in Article 239AA(3) while providing
for power to make laws as also in sub-clause(b). The use of word
“any matter” in above two clauses clearly indicate that it is not
used in any limited or restricted manner rather use of word “any
matter” is used referring to the entire extent of legislation. When
the same phrase has been used in proviso to sub-clause(4), similar
interpretation has to be given to the same word used in earlier
part of the same Article. [Para 95] [367-D, G]
Tej Kiran Jain and Others v. N. Sanjiva Reddy and
Others (1970) 2 SCC 272 : [1971] 1 SCR 612 –
referred to.
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5.4 It is clear that aid and advice of the Council of Ministers
is binding on the Lieutenant Governor except when he decides
to exercise his power given in proviso of sub-clause(4) of Article
239AA. In the matters, where power under proviso has not been
exercised, aid and advice of the Council of Ministers is binding
on the Lieutenant Governor. Proviso to sub-clause(4) of Article
239AA cannot be given any other interpretation relying on any
principle of Parliamentary democracy or any system of
Government or any principle of Constitutional silence or
implications.[Para 97] [368-D-F]
5.5 Proviso to sub-clause(4) of Article 239AA envisages
an extreme and unusual situation and is not meant to be a norm.
The exercise of power under proviso cannot be a routine affair
and it is only in cases where Lieutenant Governor on due
consideration of a particular decision of the Council of Ministers/
Ministers, decides to make a reference so that the decision be
not implemented.  The overall exercise of administration of Union
Territory is conferred on President, which is clear from the
provisions contained in Part VIII of the Constitution.  The
submission that Article 239 is not applicable with regard to NCTD
after Article 239AA has been inserted in the Constitution, cannot
be accepted on account of the express provisions which are
mentioned under Article 239AA and Article 239AB itself. Article
239AA sub-clause(1) itself contemplates
that administrator
appointed under Article 239 shall be designated as the Lieutenant
Governor. Thus, the administrator appointed under Article 239
is designated as LG. Article 239AB is also applicable to NCTD.
The provisions contained in Part VIII have to be looked into in
its entirety. Thus, all the provisions of Part VIII has to be
cumulatively read while finding out the intention of the
Constitution makers, which makes it clear that Article 239 is
also applicable to the NCTD. [Para 98] [368-F-H; 369-A-C]
Whether concurrence of Lieutenant Governor is required on
executive decision of GNCTD.
6.1 The constitutional provision of Article 239AA does not
indicate that the executive decisions of GNCTD have to be taken
with the concurrence of LG. The constitutional provisions inserted
by 69th Constitution Amendment are with the object to ensure
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stability and permanence by providing Legislative Assembly and
Council of Ministers by the constitutional provisions itself. With
regard to executive decision taken by the Council of Ministers/
Ministers of GNCTD proviso gives adequate safeguard
empowering the LG to make a reference to the President in the
event there is difference of opinion between executive decisions
of the GNCTD and the LG, but the scheme does not suggest that
the decisions by Council of Ministers/Ministers have to be taken
with the concurrence of the LG. The above conclusion is re-
enforced by looking into the 1991 Act as well as Rules framed by
the President under Section 44 of 1991 Act, namely, the
Transaction of Business of the Government of National Capital
Territory of Delhi Rules, 1993. The provisions of 1991 Act
although provide for communication of proposal, agenda and
decisions of the Council of Ministers/Ministers to LG but there
is no indication in any of the provisions that the concurrence of
LG is required with regard to the aforesaid decisions. [Para 99]
[369-C-G]
6.2 Earlier enactments governing the Delhi administration
did provide the word concurrence of LG for implementing
decisions taken by GNCTD but the said scheme having been
given a go-bye in the 1991 Act, there is no requirement of any
concurrence of LG to the executive decisions taken by the
GNCTD. [Para 100] [369-G-H]
Communication to the LG, its purpose and object
7.1 The scheme as delineated by 1991 Act and
Rules 1993
clearly indicates that LG has to be kept informed of all proposals,
agendas of meeting and decisions taken. The purpose of
communication of all decisions is to keep him posted with the
administration of Delhi. The communication of all decisions is
necessary to enable him to go through the proposals and decisions
so as to enable him to exercise powers as conceded to him under
1991 Act and Rules 1993. Further, the power given under proviso
to 239AA(4) can be exercised only when LG is informed and
communicated of all decisions taken by GNCTD. The
communication of all decisions is necessary to enable the LG to
perform duties and obligations to oversee the administration of
GNCTD and where he is of different opinion he can make a
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reference to the President. The purpose of communication is not
to obtain his concurrence of the decision but purpose is to post
him with the administration so as to enable him to exercise his
powers conceded to him under proviso to Article 239AA sub-
clause (4). The powers given in proviso to sub-clause (4) is not
to be exercised in a routine manner rather it is to be exercised
by the LG on appropriate reasons to safeguard the interest of the
Union Territory.[Para 101, 113, 119-VIII, X] [377-G-H; 378-A;
374-F-H; 377-E]
7.2 The 1991 Act and 1993 Rules cover the entire gamut,
manner and procedure of executive decisions taken by the Council
of Ministers/Minister their communication, and implementation
and the entire administration is to be run accordingly. The duty
of observance of 1993 Rules and other statutory provisions lay
both on Council of Ministers, Chief Minister and LG. All have to
act in a manner so that the administration may run smoothly
without there being any bottleneck. The object and purpose of
all constitutional provisions, Parliamentary enactments and the
Rules framed by the President is to carry the administration in
accordance with the provisions in the interest of public in general
so that rights guaranteed by the Constitution to each and every
person are realised. When the duty is entrusted on persons
holding high office, it is expected that they shall conduct
themselves, in faithful, discharge of
their duties to ensure smooth
running of administration and protection of rights of all concerned.
[Para 114, 116] [375-E-F; 376-A-C]
S.R. Chaudhuri v. State of Punjab &Ors. (2001) 7 SCC
126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v.
G. Paneerselvam and Others (1972) 3 SCC 717 : [1973]
1 SCR 172; B.R. Kapur v. State of T. N. and Another
(2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; Kuldip
Nayar and Others v. Union of India and Others (2006)
7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State
of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom
Cavasjee Cooper v. Union of India (1970)1 SCC 248 :
AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi
v. Union of India and Another (1978)1 SCC 248: AIR
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1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar
and Another v. State of Karnataka (1985) Supp. SCC
714 : [1985] Suppl. SCR 352; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kalpana
Mehta and others v. Union of India and others 2018
(7) SCALE 106; NDMC v. State of Punjab (1997) 7
SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram
Jawaya Kapur and Others v. State of Punjab AIR 1955
SC 549 : [1955] SCR 225; Shamsher Singh v. State of
Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR
814; Tej Kiran Jain and Others v. N. Sanjiva Reddy
and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 –
referred to.
“A critical commentary” on Constitutional Law of India
by Shri H.M. Seervai; “Principles of Statutory
Interpretation by Justice G.P. Singh, 14th Edn –
referred to.
Case Law Reference
In the Judgment of Justice Dipak Misra, CJI
[1951] SCR 228
referred to
Para 7
[1971] 3 SCR 9
referred to
Para 8
[1976] 1 SCR 906
referred to
Para 9
[1993] 2 Suppl. SCR 659
referred to
Para 10
[1970] 3 SCR 530
referred to
Para 24
[1978] 2 SCR 621
referred to
Para 24
[2017] 10 SCC 1  
referred to
Para 24
[1955] SCR 225
referred to
Para 25
[1975] 1 SCR 814
referred to
Para 25
[1971] 1 SCR 612
referred to
Para 44
[2000] 2 SCR 299
referred to
Para 52
[2014] 9 SCR 965
referred to
Para 59
[2015] 4 SCR 987
referred to
Para 61
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[1992] 2 Suppl. SCR 454
referred to
Para 63
2018 (7) SCALE 106
referred to
Para 67
[2001] 3 Suppl. SCR 191
referred to
Para 70
[2000] 2 SCR 688 
referred to
Para 73
1990 (2) SCALE 836
referred to
Para 73
[1978] 2 SCR 1
referred to
Para 79
[1993] 3 SCR 802
referred to
Para 81
[1999] 3 SCR 1279
referred to
Para 82
[1978] 2 SCR 272
referred to
Para 87
[1980] SCR 1302 
referred to
Para 88
[1976] SCR 347 
referred to
Para 90
[1995] 2 Suppl. SCR 106
referred to
Para 90
[2006] 5 Suppl. SCR 1
referred to
Para 90
[1965] SCR 413
referred to
Para 97
[1994] 2 SCR 644 
referred to
Para 100
[2002] 1 SCR 441
referred to
Para 104
[1978] 1 SCR 1
referred to
Para 119
[2016] 11 SCR 723
referred to
Para 130
[1993] 1 SCR 891
referred to
Para 135
[1984] 2 SCR 145
referred to
Para 141
[2001] 1 Suppl. SCR 621
referred to
Para 147
[1997] 3 SCR 269
referred to
Para 149
[2011] 6 SCR 599
referred to
Para 150
(2006) 8 SCC 202
referred to
Para 150
(2016) 5 SCC 1
referred to
Para 164
[1978] 1 SCR 641
referred to
Para 166
[1978] 1 SCR 423
referred to
Para 169
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[2012] 12 SCR 1077
referred to
Para 176
[1982] 3 SCR 553
referred to
Para 188
[1964] 3 SCR 787
referred to
Para 189
[1987] 2 SCR 1173 
referred to
Para 227
[1992] 1 SCR 686 
referred to
Para 228
[1970] 1 SCR 115 
referred to
Para 229
[1958] SCR 1156
referred to
Para 231
[1984] 2 SCR 495
referred to
Para 269
[2002] 1 SCR 393
referred to
Para 269
[2002] 3 Suppl. SCR 587
referred to
Para 269
[1996] 10 Suppl. SCR 472
followed
           Para 277(xii)
In the Judgment of Justice D Y Chandrachud
[2014] 9 SCR 965
referred to
Para 14
[1973] Suppl. SCR 1
referred to
Para 17
(2017) 10 SCC 1
referred to
Para 21
[1992] 1 SCR 686
referred to
Para 23
[2007] 1 SCR 706
referred to
Para 23
[1955] 2 SCR 225
referred to
Para 36
[1970] 3 SCR 505
referred to
Para 36
[1975] 1 SCR 814
referred to
Para 36
[1978] 2 SCR 1
referred to
Para 36
[1999] 3 SCR 1279
referred to
Para 36
[2012] 3 SCR 52
referred to
Para 36
[1971] Suppl. SCR 46
referred to
Para 39
[1975] 1 SCR 814
referred to
Para 39
[2005] 1 SCR 279
referred to
Para 40
[2016] 6 SCR 1
referred to
Para 40
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[1951] 2 SCR 228
referred to
Para 107
[1971] 1 SCR 612
referred to
Para 108
[1973] 1 SCR 172
referred to
Para 109
[2006] 5 Suppl. SCR 1
referred to
Para 110
[2014] 9 SCR 965
referred to
Para 110
[1955] 1 SCR 549
referred to
Para 114
[1982] 3 SCR 553
referred to
Para 115
[1985] 2 SCR 373
referred to
Para 117
[1962] 2 SCR 794
referred to
Para 117
[2005] 2 Suppl. SCR 79
referred to
Para 118
[1996] 10 Suppl. SCR 472
referred to
Para 119
[1968] 2 SCR 103
referred to
Para 123
(1970) 1 SCC 633
referred to
Para 124
[1976] Suppl. SCR 166
referred to
Para 125
In the Judgment of Justice Ashok Bhushan
[1971]1 SCR 612
referred to
Para 27
[1951] SCR 228
referred to
Para 41
[2001] 1 Suppl. SCR 621
referred to
Para 42
[1973] 1 SCR 172
referred to
Para 43
[2001] 3 Suppl. SCR 191
referred to
Para 44
[2006] 5 Suppl. SCR 1
referred to
Para 45
[2007] 1 SCR 706 
referred to
Para 46
[1970] 3 SCR 530
referred to
Para 47
[1978] 2 SCR 621
referred to
Para 47
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D
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[1985] Suppl. SCR 352
referred to
Para 47
[2014] 9 SCR 965
referred to
Para 53
2018 (7) SCALE 106
referred to
Para 62
[1996] 10 Suppl. SCR 472
referred to
Para 77
[1955] SCR 225
referred to
Para 81
[1975] 1 SCR 814
referred to
Para 91
[1971] 1 SCR 612
referred to
Para 96
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357
of 2017.
From the Judgment and Order dated 04.08.2016 of the High Court
of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015
WITH
Contempt Petition (C) No. 175 of 2016 in W.P. (Crl.) No. 539
of 1986
C. A. No. 2360, 2359, 2363, 2362, 2358, 2361 and 2364 of 2017
Crl. A. No. 277 of 2017.
Maninder Singh, ASG, P. Chidambaram, Dr. Rajeev Dhawan,
Shekhar Naphade, Ms. Indira Jaising, Gopal Subramaniam,
Mrs. V. Mohana, Sidharth Luthra, Sr. Advs., Shadan Farasat, Ms. Nitya
Ramakrishnan, Rahul Mehra, Ahmed Said, Ms. Rudrakshi Deo, Shashi
Pratap Singh, Suhail Rashid Bhat, Ms. Neha Sangwan, Chirag M. Shroff,
Naveen R. Nath, Abhimanyu Verma, Nehmat Kaur, Gautam Bhatia,
Prateek Chadha, Ankur Kashyap, Kushagra Pandey, B. Krishna Prasad,
Sija N. Pal, Satya Mitra, Prabhas Bajaj, R. Bala Subramanian, Ms. Binu
Tamta, Prateek Jalan, Ritin Rai, P. K. Mullick, Ritesh Kumar,
Ms. Meenakshi Grover, Kirtiman Singh, Jayant Malik, Aabhas Kshetarpal,
Ms. Kritika, Abhipsit Mishra, Ms. Madhavi Divan, Rahul Kriplani, Ankit
Yadav, Mrs. Soma Mullick, Sebat Kumar Devria, Ayush Puri,
B. V. Balram Das, K. R. Sasiprabhu, Gautam Khazandvi, Mrs. Gargi
Khanna, Nikhil
Nayyar, Dr. Monika Gusain, Manpreet Kaur Bhalla,
Siddharth Aggarwal, Ms. Stuti Gujral, Zeeshan Diwan, Senthil
Jagadeesan, Aman Hingorani, Ms. Priya Hingorani, Dr. Shweta
Hingorani, Advs. for the appearing parties.
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The Judgments of the Court were delivered by
DIPAK MISRA, CJI (FOR  HIMSELF, A. K. SIKRI AND
A.M. KHANWILKAR, JJ.)
CONTENTS
A. Prologue……………………………………………............    3-22
B. Rivalised Submissions…………………………...................   22-23
B.1 Submissions on behalf of the appellant……………...........    23-34
B.2 Submissions on behalf of the respondents..........................    34-45
C. Ideals/principles of representative governance....................     45-50
D. Constitutional morality………………………....................     50-54
E. Constitutional objectivity……………………......................    54-57
F. Constitutional governance and the conception of legitimate
   constitutional trust…………………………………………     57-68
G. Collective responsibility………………………...................    68-73
H. Federal functionalism and democracy...............................     74-93
I. Collaborative federalism………………………..................   93-100
J. Pragmatic federalism…………………………….............  101-104
K. Concept of federal balance……………………...............  104-108
L. Interpretation of the Constitution…………......................  108-120
M. Purposive interpretation………………………................  120-127
N. Constitutional culture and pragmatism….........................  127-135
O. Interpretation of Articles 239 & 239A….........................  135-140
P. Interpretation of Article 239AA of the  Constitution……...  140-145
Q. Status of NCT of
Delhi………………………….............  146-160
R. Executive power of the Council of Ministers of Delhi.......  160-164
S. Essence of Article 239AA of the Constitution...................  164-188
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 .....................  188-213
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U. Constitutional renaissance…………………...................     213-217
V. The conclusions in seriatim…………………................
217-231
A. Prologue:
The present reference to the Constitution Bench has its own
complexity as the centripodal issue in its invitation of the interpretation
of Article 239AA of the Constitution invokes a host of concepts, namely,
constitutional objectivity navigating through the core structure with the
sense and sensibility of having a real test of constitutional structure; the
culture of purposive interpretation because the Court is concerned with
the sustenance of glory of constitutional democracy in a Democratic
Republic as envisioned in the Constitution;  and understanding the idea
of citizenry participation viewed with the lens of progressive perception
inherent in the words of a great living document emphasizing on the
democratic theme to achieve the requisite practical goal in the world of
reality.  We may call it as pragmatic interpretation of a constitutional
provision, especially the one that has the effect potentiality to
metamorphose a workable provision into an unnecessary and unwarranted
piece of ambiguity. In such a situation, the necessity is to scan the anatomy
of the provision and lift it to the pedestal of constitutional ethos with the
aid of judicial creativity that breathes essentiality of life into the same. It
is the hermeneutics of law that works. It is the requisite constitutional
stimulus to sustain the
fundamental conception of participative democracy
so that the real pulse is felt and further the constitutional promise to the
citizens is fulfilled. It gets rid of the unpleasant twitches and convulsions.
To put it differently, the assurance by the insertion of Article 239AA by
the Constitution (Sixty-ninth Amendment) Act, 1991 by exercise of the
constituent power is not to be renounced with any kind of rigid
understanding of the provision. It is because the exercise of constituent
power is meant to confer democratic, societal and political powers on
the citizens who reside within the National Capital Territory of Delhi
that has been granted a special status.
2. The principal question is whether the inhabitants or voters of
NCT of Delhi remain where they were prior to the special status conferred
on the Union Territory or the amended constitutional provision that has
transformed Delhi instills “Prana” into the cells. Let it be made clear
that any ingenious effort to scuttle the hope and aspiration that has ignited
the idea of “march ahead” among the inhabitants by any kind of linguistic
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gymnastics will not commend acceptation. The appellant claims that the
status of the voters of NCT Delhi after the Sixty-Ninth Amendment has
moved from notional to real but the claim has been negatived by the
Delhi High Court. Learned counsel for the appellant criticize the judgment
and order of the High Court by contending, apart from other aspects,
that the language employed in the entire Chapter containing Article
239AA, unless appositely interpreted,  shall denude the appellant, the
National Capital Territory of Delhi, of its status.
3. The criticism is founded on the base that the Constitution of
India, an organic and continuing document, has concretised their desire
and enabled the people to have the right to participate as a collective in
the decision making process that shall govern them and also pave the
path of their welfare. The participation of the collective is the vital force
for larger public interest and higher constitutional values spelt out in the
Constitution and the silences therein and the same are to be protected. It
is the assertion that the collective in a democracy speak through their
elected representatives seeking mitigation of the grievances.
4. This Court, being the final arbiter of the Constitution, in such a
situation, has to enter into the process of interpretation with the new
tools such as constitutional pragmatism having due regard for sanctity of
objectivity, realization of the
purpose in the truest sense by constantly
reminding one and all about the sacrosanctity of democratic structure as
envisaged by our Constitution, elevation of the precepts of constitutional
trust and morality, and the solemn idea of decentralization of power and,
we must say, the ideas knock at the door to be invited. The compulsive
invitation is the warrant to sustain the values of democracy in the
prescribed framework of law. The aim is to see that in the ultimate
eventuate, the rule of law prevails and the interpretative process allows
the said idea its deserved space, for when the rule of law is conferred its
due status in the sphere of democracy, it assumes significant credibility.
5. We would like to call such a method of understanding
“confluence of the idea and spirit of the Constitution”, for it celebrates
the grand idea behind the constitutional structure founded on the cherished
values of democracy.
6. As we have used the words “spirit of the Constitution”, it becomes
our obligation to clarify the concept pertaining to the same.  The canon
of constitutional interpretation that glorifies the democratic concepts lays
emphasis not only on the etymology of democracy but also embraces
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within its sweep a connotative expansion so that the intrinsic and innate
facets are included.
7. A seven-Judge Bench of the Court in Keshavan Madhava
Menon v. The State of Bombay1 observed:-
“An argument founded on what is claimed to be the spirit of the
Constitution is always attractive, for it has a powerful appeal to
sentiment and emotion; but a court of law has to gather the spirit
of the Constitution from the language of the Constitution. What
one may believe or think to be the spirit of the Constitution cannot
prevail if the language of the Constitution does not support that
view. Article 372(2) gives power to the President to adapt and
modify existing laws by way of repeal or amendment. There is
nothing to prevent the President, in exercise of the powers
conferred on him by that article, from repealing, say the whole or
any part of the Indian Press (Emergency Powers) Act, 1931. If
the President does so, then such repeal will at once attract Section
6 of the General Clauses Act. In such a situation all prosecutions
under the Indian Press (Emergency Powers) Act, 1931, which
were pending at the date of its repeal by the President would be
saved and must be proceeded with notwithstanding the repeal of
that Act unless an express provision was otherwise made in the
repealing Act. It is therefore clear that the idea of the preservation
of past inchoate rights or liabilities and pending proceedings to
enforce the same is not foreign or abhorrent to the
Constitution of
India. We are, therefore, unable to accept the contention about
the spirit of the Constitution as invoked by the learned counsel in
aid of his plea that pending proceedings under a law which has
become void cannot be proceeded with. Further, if it is against the
spirit of the Constitution to continue the pending prosecutions under
such a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such repressive
law before the Constitution of India came into force should continue
to rot in jail. It is, therefore, quite clear that the court should construe
the language of Article 13(1) according to the established rules of
interpretation and arrive at its true meaning uninfluenced by any
assumed spirit of the Constitution.”
[Emphasis is ours]
1 1951 SCR 228
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The aforesaid decision has to be understood in the context of the
phraseology ‘spirit of the Constitution’. As we understand, the Court
has not negatived the concept as an alien one. It has laid emphasis on
the support from the language used. It has not accepted the assumed
spirit of the Constitution.  Needless to say, there cannot be assumptions.
Every proposition should have a base and the Constitution of India to be
an organic and living one has to be perceived with progressive dynamism
and not stuck with inflexibility.  Flexibility has to be allowed room and
that is what we find in later authorities.
8. In Madhav Rao Jivaji Rao Scindia and others v. Union of
India and another2, Hegde, J, in his concurring opinion, emphasized on
the spirit of the Constitution.  The learned Judge, while not accepting the
exercise of power for collateral reasons, stated:-
“Exercise of power for collateral reasons has been considered by
this Court in several decisions as a fraud on that power — see
Balaji v. State of Mysore. Breach of any of the Constitutional
provisions even if made to further a popular cause is bound to be
a dangerous precedent. Disrespect to the Constitution is bound to
be broadened from precedent to precedent and before long the
entire Constitution may be treated with contempt and held up to
ridicule. That is what happened to the Weimar Constitution. If the
Constitution or any of its provisions have ceased to serve
the
needs of the people, ways must be found to change them but it is
impermissible to by-pass the Constitution or its provisions. Every
contravention of the letter or the spirit of the Constitution is bound
to have chain reaction. For that reason also the impugned orders
must be held to be ultra vires Article 366(22).”
[underlining is ours]
9. In State of Kerala and another v. N. M. Thomas and others3,
Krishna Iyer, J., in his concurring opinion, opined thus:-
“106. Law, including constitutional law, can no longer “go it alone”
but must be illumined in the interpretative process by sociology
and allied fields of knowledge. Indeed, the term “constitutional
law” symbolises an intersection of law and politics, wherein issues
of political power are acted on by persons trained in the legal
2 (1971) 1 SCC 85
3 (1976) 2 SCC 310
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tradition, working in judicial institutions, following the procedures
of law, thinking as lawyers think. So much so, a wider perspective
is needed to resolve issues of constitutional law. Maybe, one
cannot agree with the view of an eminent jurist and former Chief
Justice of India:
“The judiciary as a whole is not interested in the policy
underlying a legislative measure.”
Moreover, the Indian Constitution is a great social document, almost
revolutionary in its aim of transforming a medieval, hierarchical
society into a modern, egalitarian democracy. Its provisions can
be comprehended only by a spacious, social-science approach,
not by pedantic, traditional legalism. Here we are called upon to
delimit the amplitude and decode the implications of Article 16(1)
in the context of certain special concessions relating to
employment, under the Kerala State (the appellant), given to
scheduled castes and scheduled tribes (for short, hereinafter
referred to as harijans) whose social lot and economic indigence
are an Indian reality recognized by many articles of the
Constitution. An overview of the decided cases suggests the need
to reinterpret the dynamic import of the “equality clauses” and, to
stress again, beyond reasonable doubt that the paramount law,
which is organic and regulates our nation’s growing life, must
take in its sweep “ethics, economics, politics and sociology”.
Equally pertinent to the issue mooted before us is the lament of
Friedmann:
     “It
would be tragic if the law were so petrified as to be
unable to respond to the unending challenge of evolutionary or
revolutionary changes in society.”
    The main assumptions which Friedmann makes are:
     “First, the law is, in Holmes’ phrase, not a ‘brooding
omnipotence in the sky’, but a flexible instrument of social
order, dependent on the political values of the society which it
purports to regulate . . . .”
107. Naturally surges the interrogation, what are the challenges
of changing values to which the guarantee of equality must respond
and how? To pose the problem with particular reference to our
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case, does the impugned rule violate the constitutional creed of
equal opportunity in Article 16 by resort to a suspect classification
or revivify it by making the less equal more equal by a legitimate
differentiation? Chief Justice Marshall’s classic statement in
McCulloch v. Maryland followed by Justice Brennan in
Katzenbach v. Morgan remains a beacon light:
      “Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are constitutional”.”
[Emphasis is added]
10. In Supreme Court Advocates-on-Record Association and
another v. Union of India4, this Court observed that a fortiori any
construction of the constitutional provisions which conflicts with the
constitutional purpose or  negates the avowed object has to be eschewed,
being opposed to the true  meaning and spirit of the Constitution and,
therefore, being an alien concept.
11. We have referred to the aforesaid precedents to state that the
spirit of the Constitution has its own signification.  In the context of the
case at hand, the democratic nature of our Constitution and the paradigm
of representative participation are undoubtedly comprised in the “spirit
of the Constitution”.  While interpreting the provisions of the Constitution,
the safe and most sound approach is to read the
words of the Constitution
in the light of the avowed purpose and spirit of the Constitution so that it
does not result in an illogical outcome which could have never been the
intention of the Constituent Assembly or of the Parliament while exercising
its constituent power.  Therefore, a constitutional court, while adhering
to the language employed in the provision, should not abandon the concept
of the intention, spirit, the holistic approach and the constitutional
legitimate expectation which combinedly project a magnificent facet of
purposive interpretation. The Court should pose a question to itself
whether a straight, literal and textual approach would annihilate the sense
of the great living document which is required to be the laser beam to
illumine. If the answer is in the affirmative, then the constitutional courts
should protect the sense and spirit of the Constitution taking aid of
purposive interpretation as that is the solemn duty of the constitutional
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courts as the final arbiters of the Constitution. It is a constitutional summon
for performance of duty. The stress has to be on changing society, relevant
political values, absence of any constitutional prohibition and legitimacy
of the end to be achieved by appropriate means. We shall refer to the
aspect of purposive interpretation regard being had to the context and
other factors that gain primacy to be adverted to at a subsequent stage.
12. Having prefaced thus, we shall now proceed to state the
controversy in brief since in this batch of appeals which has been referred
to the Constitution Bench, we are required to advert to the issue that
essentially pertains to the powers conferred on the Legislative Assembly
of the National Capital Territory of Delhi and the executive power
exercised by the elected Government of NCT of Delhi. The facts
involved and the controversy raised in each individual appeal need not
be dwelled upon, for we only intend to answer the constitutional issue.
13. The primordial adjudication, as is presently the requisite,
commands our focus on the interpretation of Article 239AA of the
Constitution of India.  The said interpretation, be it noted, is not to be
done in an exclusive compartment but in the context in which it has been
introduced and also keeping in view the conceptual structure of the other
relevant articles of the Constitution.  Before we delve into the various
facets of Article 239AA and other provisions of the
Constitution which
have been pressed into service by the learned counsel appearing for the
appellant and the learned Additional Solicitor General, we think it
appropriate to narrate a brief history of Delhi.
14. On 12.12.1911, Delhi became the capital of India.  Delhi Tehsil
and Mehrauli Thana were separate from Punjab and annexed to Delhi
headed by a Commissioner and it came to be known as the Chief
Commissioner’s province. In 1912, the Delhi Laws Act, 1912 came into
force with effect from 01.10.1912 making certain laws prevalent in Punjab
to be applicable to Delhi.  The Delhi Laws Act, 1915 empowered the
Chief Commissioner, Delhi to determine application of laws by issuing
appropriate notification in the Gazette of India.  The Government of
India Act, 1919 and the Government of India Act, 1935 retained Delhi as
a centrally administered territory.  On coming into force of the Constitution
of India on 26.01.1950, Delhi became a Part C State.  In the year 1951,
the Government of Part C States Act, 1951 was enacted providing, inter
alia, for a Legislative Assembly in Delhi.  Section 21(1) of the 1951 Act
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empowered the Legislative Assembly to make laws on all matters of
List II of the Seventh Schedule of the Constitution except (i) public
order; (ii) police (including railway police); (iii) constitution and powers
of municipal corporations and local authorities, etc.-public utility
authorities; (iv) lands & buildings vested in/in possession of the Union
situated in Delhi or New Delhi; (v) offences against laws about subjects
mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to
the above matters and court fee thereon.
15. On 19.10.1956, the Constitution of India (Seventh  Amendment)
Act, 1956 was passed to implement the provisions of the States Re-
organization Act, 1956 which did away with Part A, B, C and D States
and only two categories, namely, States and Union Territories remained
and Delhi became a Union Territory to be administered by an administrator
appointed by the President.  The Legislative Assembly of Delhi and the
Council stood abolished.  In the year 1953, the Government of Union
Territories Act, 1963 was enacted to provide for Legislative Assemblies
and Council of Ministers for various Union Territories but the provisions
of the said Act were not made applicable to Delhi.  The Delhi
Administration Act, 1966 was enacted to provide for limited representative
Government for Delhi through a Metropolitan Council comprising of 56
elected members and five nominated members.  In the same
year, on
20.08.1966, the Ministry of Home Affairs issued S.O. No. 2524 that
provided, inter alia, that the Lieutenant Governor/Administrator/Chief
Commissioner shall be subject to the control of the President of India
and exercise such powers and discharge the functions of a State
Government under the Commission of Inquiry Act, 1952 within the Union
Territories.  In the year 1987, the Balakrishnan Committee was set up to
submit its recommendations with regard to the status to be conferred on
Delhi and the said Committee recommended that Delhi should continue
to be a Union Territory but there must be a Legislative Assembly and
Council of Ministers responsible to the said Assembly with appropriate
powers; and to ensure stability, appropriate constitutional measures should
be taken to confer the National Capital a special status.  The relevant
portion of the Balakrishnan Committee report reads as follows:-
“6.5.5 In paragraphs 6.5.2 and 6.5.3 we have briefly  summarised
the arguments for and against making Delhi a  constituent State
of the Union. After the most careful consideration of all the
arguments and on an objective appraisal, we are fully convinced
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that most of the arguments against making Delhi a State of the
Union are very substantial, sound and valid and deserve
acceptance. This was also the view expressed before us by some
of the eminent and knowledgeable persons whom we interviewed.
As these arguments are self-evident we find it unnecessary to go
into them in detail except those relating to constitutional and
financial aspects covered by them.
6.5.6 The important argument from the Constitutional angle is
based on the federal type of our Constitution under which there is
a constitutional division of powers and functions between the Union
and the State. If Delhi becomes a full- fledged State, there will be
a constitutional division of sovereign, legislative and executive
powers between the Union and the State of Delhi. One of the
consequences will be that in respect of matters in the State List,
Parliament will have no power on jurisdiction to make any law
except in the special and emergency situations provided for under
the Constitution and to that extent the Union Executive cannot
exercise executive powers or functions. The constitutional
prohibition on the exercise of powers and functions will make it
virtually impossible for the Union to discharge its special
responsibilities in relation to the national capital as well as to the
nation itself. We have already indicated in an earlier chapter the
special features of the national capital and the need for keeping it
under the control of the Union
Government. Such control is vital
in the national interest irrespective of whether the subject matter
is in the State field or Union field. If the administration of the
natural capital is divided into rigid compartments of State of field
and Union field, conflicts are likely to arise in several vital matters,
particularly if the two Governments are run by different political
parties. Such conflicts may, at times, prejudice the national
interest……
x
x
x
6.5.9 We are also impressed with the argument that Delhi as the
national capital belongs to the nation as a whole and any constituent
State of the Union of which Delhi will become a part would sooner
or later acquire a predominant position in relation to other States.
Sufficient constitutional authority for Union intervention in day-
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to-day matters, however vital some of, them may be, will not be
available to the Union, thereby prejudicing the discharge of its
national duties and responsibilities.
x
   x
x
LT. GOVERNOR AND COUNCIL OF MINISTERS
6.7.19 As anecessary corollary to the establishment of a
responsible Government for Delhi the structure of the executive
should be more or less on the pattern provided by the Constitution.
Accordingly, there should be a Head of the Administration with a
Council of Ministers answerable to the Legislative Assembly. As
Delhi will continue to have the status of a Union territory, Article
239 will apply to it and so it will have an Administrator with such
designation as may be specified. The present designation of the
Lt. Governor may be continued and recognized in the Constitution
itself. …
x
x
  x
6.7.21 The Administrator should be expressly required to perform
his functions on the aid and advice of the Council of Ministers.
The expression “to aid and advice” is a well understood term of
art to denote the implications of the Cabinet system of Government
adopted by our Constitution. Under this system, the general rule
is that the exercise of executive functions by the Administrator
has to be on the aid and advice of his Council of Ministers which
means that it is virtually the Ministers that should take decisions
on such matters. However, for Delhi, the following modifications
of this general rule will have to be
adopted:
(i) Firstly, the requirement of acting on the aid and advice of the
council of Ministers cannot apply to the exercise by the
Administrator of any judicial or quasi-judicial functions.  The reason
is obvious because in respect of such functions there is no question
of acting on the advice of another person.
(ii) Secondly, the requirement is only in relation to matters in respect
of which the Legislative Assembly has the powers to make laws.
This power will be subject to the restrictions already dealt with
earlier in the Report.  Accordingly, the Council of Ministers will
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not have jurisdiction to deal with matters excluded from the purview
of the Legislative Assembly.
(iii) Thirdly, there is need for a special provision to resolve
differences between the Administrator and his Council of Ministers
on any matter concerning the administration of Delhi. Normally,
the general principle applicable to the system of responsible
Government under the Constitution is that the Head of the
Administration should act as a mere Constitutional figurehead and
will have to accept the advice of the Council of Ministers except
when the matter is left to his discretion. However, by virtue of
Article 239 of the Constitution, the ultimate responsibility for good
administration of Delhi is vested in the President acting through
the Administrator. Because of this the Administrator has to take a
somewhat more active part in the administration than the Governor
of a State. It is, therefore, necessary to reconcile between the
need to retain the responsibility of the Administrator to the Centre
in this regard and the need to enforce the collective responsibility
of the Council of Ministers to the Legislature. The best way of
doing this is to provide that in case of difference of opinion which
cannot be resolved between the Administrator and his Council of
Ministers, he should refer the question to the President and the
decision of the President thereon will be final. In cases of urgency,
if immediate action is necessary, the Administrator may direct
action to be taken pending such decision of the President. A
provision of this kind was made for this very reason not only in
the 1951 Act, but also in the 1963 Act relating to the Union
territories as well as in the 1978 Bill.”
16. As the chronology would show, after due deliberation, the
Parliament, in exercise of its constituent power, amended the Constitution
by the Constitution (Sixty-ninth Amendment) Act in the year 1991 and
inserted Articles 239AA and 239AB in the Constitution to which we
shall refer at an appropriate stage when we dwell upon the interpretative
process.
B. Rivalised Submissions:
17. Now, we may note the rivalised submissions at the Bar. We
have heard Mr. P. Chidambaram, Mr. Gopal Subramaniam, Dr. Rajiv
Dhawan, Ms. Indira Jaising and Mr. Shekhar Naphade, learned senior
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counsel appearing on behalf of the Government of NCT of Delhi. Mr.
Maninder Singh, learned Additional Solicitor General of India, has
advanced arguments on behalf of the Union of India and the Lieutenant
Governor of Delhi.
18. A common written submission has been filed on behalf of the
Government of NCT of Delhi and Mr. Maninder Singh, learned Additional
Solicitor General of India, has filed written submissions on behalf of both
the Union of India and the Lieutenant Governor of NCT of Delhi.
19. An application for intervention being I.A. No. 10556 of 2017
was filed by the applicant, Reliance Industries Ltd. We have heard Dr.
A.M. Singhvi, learned senior counsel on behalf of the said intervenor.
Another application for intervention was filed by The Kapila and Nirmal
Hingorani Foundation and we have heard Mr. Aman Hingorani, learned
counsel on behalf of the said Foundation.
B.1 Submissions on behalf of the appellant:
20. It is submitted by learned senior counsel appearing on behalf
of the appellant that the NCTD occupies a unique position in the
constitutional scheme by virtue of the insertion of Articles 239AA and
239AB and the consequent enactment of the 1991 Act that has shaped
the NCTD into a constitutional hybrid and has led Delhi to acquire certain
special characteristics solely attributed to full-fledged States under the
Constitution. As per the appellant, the Government of NCT of Delhi
enjoys far more power than
the administrative set ups of other Union
Territories especially after the constitutional amendment and coming into
force of the 1991 Act.
21. After expansively referring to the constitutional history of the
NCTD, it is urged on behalf of the appellant that the insertion of Article
239AA was intended to eradicate the hierarchical structure which
functionally placed the Lieutenant Governor of Delhi in a superior position
to that of the Council of Ministers, especially with respect to the executive
powers and the Lieutenant Governor has to be treated as a titular head
alone in respect of matters that have been assigned to the Legislative
Assembly and the Council of Ministers.
22. The appellant has alluded to the nine-Judge Bench decision in
New Delhi Municipal Corporation v. State of Punjab5 to contend that
5 (1997) 7 SCC 339
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the Union Territory of Delhi is a class by itself different from all other
Union Territories which our Constitution envisages, and the larger Bench
had no occasion to decide in what shape and form the NCTD is different
from other Union Territories, for the said issue did not arise therein.
Nevertheless, the majority opinion clearly rules as regards Delhi’s unique
constitutional status unlike other Union Territories by virtue of the
constitutionally created Legislative Assembly, Council of Ministers and
Westminster style cabinet system of government that have been brought
by the Sixty-ninth Amendment and the 1991 Act.
23. It is further submitted by the appellant that the Sixty-Ninth
Amendment to the Constitution and the consequent 1991 Act were passed
with the aim to give the citizens of NCT of Delhi a larger say in the
governance of NCTD. Democracy being one of the facets of the basic
structure of the Constitution, the Sixty-ninth amendment was aimed at
furthering democracy in Delhi and hence, Article 239AA should be
interpreted in the backdrop of the fact that Delhi has been conferred
special status among various UTs and in such a way that democracy in
its true sense is established in Delhi.
24. It is submitted that constitutional jurisprudence in the Indian
context has undergone a sea change after the decisions in R.C. Cooper
v. U.O.I6and Maneka Gandhi v. U.O.I7. Learned counsel for the
appellant submit that this Court should adopt a more purposive and
an
organic method of interpretation as adopted by this Court in a catena of
cases including the recent one in Justice K.S. Puttaswamy (Retd.)
and another v. U.O.I. and others8 wherein the majority observed that
the decisions of this Court prior to R.C. Cooper (supra) and Maneka
Gandhi (supra) must be understood in their historical context.
25. Article 239AA has deliberately excluded the words “assist
and advice” as were used in the 1963 and 1966 Acts, rather the said
Article employs the expression “aid and advice” and, therefore, it
consciously obviates the requirement of the Lieutenant Governor’s
concurrence on every matter. Thus, it is the proponement of the appellant
that Article 239AA of the Constitution which has conferred a Westminster
style cabinet system of government for the NCT of Delhi makes the
Lieutenant Governor bound by the ‘aid and advice’ of the Council of
6 AIR 1970 SC 564
7 AIR 1978 SC 597
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Ministers. To buttress its argument, the appellant has referred to the
judgments in Rai Sahib Ram Jawaya Kapur and Ors. v. State of
Punjab9 and Shamsher Singh v. State of Punjab10 which, as per the
appellant, though arose in the context of the State of Punjab, decided
that since our Constitution has conferred a Westminster style cabinet
system for the Government of State of Punjab, an executive Government
established under the aegis of the Constitution should be able to exercise
all executive powers necessary to fulfill the needs that the situation
warrants and consequently, the Governor has to act in accordance with
the aid and advice tendered by the Council of Ministers with the Chief
Minister as its head.
26. It is further argued that GNCTD has the sole power to take
executive actions on all matters on which the Delhi Legislature is
competent to pass laws irrespective of whether or not the Legislature
has actually passed a law on the subject. Emphasis is laid on the principle
of collective responsibility to a democratically elected legislative body
and, on that basis, it is proponed that the Lieutenant Governor of Delhi is
bound by the aid and advice of the Council of Ministers of Delhi. It is put
forth that such an interpretation can alone meet the purpose of
constitutionally mandated governance in Delhi post insertion of Article
239AA in the Constitution.
27. It is the stand of the appellant that the extent of
executive
powers of the Government of NCT of Delhi can be understood by
appositely juxtaposed reading of Article 239AA(3) with Article 239AA(4)
which stipulates that the Government of NCT of Delhi has exclusive
executive powers in relation to matters which fall within the purview of
Delhi Assembly’s legislative competence. Article 239AA(3) gives the
Delhi Legislative Assembly the legislative powers over all except three
subjects in the State List and all subjects in the Concurrent List and as a
natural corollary, Article 239AA(4) confers executive power on the
Council of Ministers over all those subjects in respect of which the Delhi
Legislative Assembly has the legislative power to legislate.
28. It is asserted by the counsel for the appellant that Article
239AA preserves the Parliament’s legislative powers over all subjects
in the State and the Concurrent Lists, but no such executive power is
reserved for the Union. The appellant contends that there is conscious
9 AIR 1955 SC 549
10 AIR 1974 SC 2192
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difference between the language of Article 239AA(3) which gives
overriding legislative powers to the Parliament and that of Article
239AA(4) which refrains from doing the likewise in the context of
executive powers. The Centre’s executive power stems from Article 73
and would normally be co-extensive with the Parliament’s legislative
powers, but this is explicitly subject to other provisions of the Constitution
which has to include Article 239AA. Thus, Article 239AA has, in the
case of Delhi, whittled down the executive power of the Centre to only
the three reserved subjects falling outside the purview of the executive
power of the Council of Ministers of Delhi.
29. The appellant has argued that though Article 73 of the
Constitution lays down the principle that there may exist under the
Constitution concurrent legislative powers between the Parliament and
the State Legislative Assemblies, yet there can never be concurrent
executive powers between the Central and the State Governments as
such a situation would result in chaos in the absence of any responsibility/
accountability for executive actions. This principle, as per the appellant,
must apply equally in relation to matters contained in List II and List III
of the Seventh Schedule and the effect of Article 239AA(3) is that all
matters on which the Delhi Legislative Assembly has power to legislate
are effectively equivalent to matters of the Concurrent List.
30. Article 239AB would become redundant if
it is to be accepted
that the Constitution allows the Union Government to override all
executive actions/decisions of the GNCTD in the ordinary course of
things, as in such a situation, it would never be necessary to invoke the
special provision in the form of Article 239AB for the Union Government
to take over the administration of Delhi. Further, Article 239AB stipulates
that if the administration of Delhi is not carried out in accordance with
Article 239AA, the President may suspend the operation of any part or
whole of Article 239AA. This, as per the appellant, clearly shows that
when an elected government is in place, the administration of Delhi has
to be carried out in accordance with Article 239AA.
31. After quoting Dr. Ambedkar on federalism in the Constituent
Assembly Debates dated 25.11.1949, the appellant has contended that
Article 239AA is an example of the hallmark of federalism in our
Constitution which reserves legislative primacy of the Parliament in
certain limited areas but there is no such corresponding provision in the
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Constitution which reserves the executive powers of the Central
Government vis-a-vis GNCTD.
32. It is contended on behalf of the appellant that there is necessity
for uniform and consistent interpretation of the phrase ‘aid and advice’
used in different articles of the Constitution such as Article 74, Article
163 and Article 239AA in the context of the functions of the President,
the Governor and the Lieutenant Governor respectively. It is urged that
the provisions of the Constitution being on a higher pedestal than ordinary
statutory provisions require to be interpreted in a different manner and
in view of the same, Article 239AA(4) deserves to be interpreted in a
manner as other provisions of the Constitution and, hence, there is warrant
for interpreting the phrase ‘aid and advice’ in a broad sense so that such
‘aid and advice’ is binding on the nominee of the President, i.e., the
Lieutenant Governor. It would be an anathema to the constitutional
philosophy to surmise that just because the Constitution permits a
difference of opinion between the Lieutenant Governor and the Council
of Ministers, the ‘aid and advice’ tendered by the Council of Ministers is
not binding upon the Lieutenant Governor.
33. The appellant has further submitted that under Article
239AA(4), the Government of NCT of Delhi and the Council of Ministers
of the NCT of Delhi have exclusive power over all matters in relation to
subjects under List II
(excluding Entries 1, 2 and 18 thereof and Entries
34, 65 and 66 in so far as they apply to Entries 1, 2 and 18 thereof) and
List III of the Seventh Schedule. According to the appellant, the substantive
part of Article 239AA(4) itself lays down the exception to it, i.e., when
the Lieutenant Governor is to act in his discretion under the law and not
as per the advice of the Council of Ministers. The proviso to Article
239AA(4), as per the appellant, comes into play where the ‘aid and
advice’ of the Council of Ministers transgresses the areas constitutionally
prescribed to it and the proviso does not allow the Lieutenant Governor
to have a different view on the merits of the ‘aid and advice’ that has
been tendered by the Council of Ministers. According to the appellant,
the proviso to Article 239AA(4) operates only in exceptional situations
and is not a general norm. Any attempt to expand the scope of the
proviso beyond exceptional matters is not tenable as it would have the
effect of rendering the main part of Article 239AA(4) otiose. To rely
upon the proviso to Article 239AA(4) to say that the ‘aid and advice’ of
the Council of Ministers is not binding upon the Lieutenant Governor in
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areas in which the Delhi Legislative Assembly has competence to legislate
would defeat the purpose for which institutions necessary to
operationalize democracy in Delhi were created. It is submitted by the
appellant that the 1991 Act as well as the Rules themselves cannot be
used to interpret the constitutional provisions inasmuch as they only reflect
the scheme of governance.
B.2 Submissions on behalf of the respondents:
34. The submissions put forth by Mr. Maninder Singh, learned
Additional Solicitor General of India, appearing on behalf of the
respondents, Union of India and Lieutenant Governor of Delhi, revolve
around the argument that although the insertion of Article 239AA
envisages the constitution of a Legislative Assembly for the National
Capital Territory of Delhi, yet the President shall remain its Executive
head, acting through the Lieutenant Governor, and that the powers of
the Parliament in respect of the Union Territories shall not be derogated
in any manner by the insertion of the said Article 239AA.
35. The respondents submit that the constitutional scheme
envisaged for the Union Territories has been dealt with in New Delhi
Municipal Corporation (supra) case and although the Court in this
case had contemplated three categories of Union Territories, yet it had
arrived at the conclusion that those surviving as Union Territories and
not having acquired Statehood shall remain so and Delhi, now referred
to as “National Capital Territory of
Delhi”, is still a Union Territory. The
respondents further submit that once it has been determined that Delhi
continues to be a Union Territory, its governance shall be regulated by
the provision of Article 239 which stipulates that all Union Territories
shall be governed by the President of India and neither a plain textual
reading nor a contextual reading of Article 239AA stipulates any vertically
divided exclusive jurisdiction with the Legislative Assembly or the Council
of Ministers.
36. The respondents, thereafter, in their submissions, after citing
several authorities, have sought to impress upon this Court that Article
239AA be given its literal and true interpretation as there exists no
ambiguity attracting the requirement  of  purposive interpretation. The
respondents have also submitted that since it was on the
recommendations made by the Balakrishnan Committee, which had been
accepted in toto, that the Sixty-ninth amendment and the 1991 Act came
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into force, the Court should consider the report of the Committee and
the reasons provided therein in order to ascertain the true intention of
the exercise of the constituent power of the Parliament for bringing
about the said amendment as well as the GNCTD Act.
37. It is also asserted by the respondents that Article 239 is an
integral part of the Constitution and the foundation stone of Part VIII
and that Article 239AA shall be read conjointly with Article 239 which
provides that the ultimate administration with respect to Delhi shall remain
with the President acting through its administrator.
38. The respondents also contend that although Article 239AA
confers on the Legislative Assembly of Delhi the power to legislate with
respect to subject matters provided in List II and List III of the Seventh
Schedule, yet the said power is limited by the very same Article when it
employs the phrase “in so far as any such matter is applicable to Union
Territories....” and also by specifically excluding from the legislative power
of the Assembly certain entries as delineated in Article 239AA(3)(a).
This restriction, as per the respondents, limits the power of the Legislative
Assembly to legislate and this restriction has to be understood in the
context of conferment of special status.
39. To reiterate the position that the President remains the Executive
head for all Union Territories, Mr. Singh has drawn the attention of the
Court to Articles 53 and 73 read with Article 246(4) of the Constitution.
It is further urged that nowhere in the Constitution, including Articles
239A or 239AA, it has been stipulated that the executive power of a
Union Territory shall vest in the Council of Ministers/Legislative Assembly.
It has been argued that the contention of the appellant that on the creation
of Legislative Assembly, there was an automatic investiture of executive
power on the said Assembly is flawed as the constitutional scheme does
not envisage any conferment of automatic power on the Council of
Ministers. Further, as the submission is structured, Article 239AA(4)
employs the phrase “Lieutenant Governor and his Ministers” which
implies that it is the “Lieutenant Governor” and not the “Council of
Ministers” who is responsible for the administration of the Union Territory.
That apart, the provisions of Articles 298, 299 and 239AB of the
Constitution and Section 52 of the 1991 Act also reiterate the position
that the Constitution does not stipulate any automatic conferral of
executive power and the same is echoed in the Balakrishnan Committee
Report.
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40. The respondents contend that the contention of the principle
laid down in the judgment of Ram Jawaya Kapur (supra), that wherever
there is existence of legislative power there is co-extensive existence of
executive power, is with respect to only the Union and the States and is
not applicable to Union Territories as the same would be against the
constitutional mandate as laid down in its various provisions.
41. The respondents, to further advance their arguments, have
pointed out the distinction between Articles 239AB and 356 of the
Constitution and have submitted that Article 356 envisages that the
President shall assume to himself the functions of the State Government
and the powers vested in the Governor in case of failure of “constitutional
machinery” but in the case of Union Territories, this clause would become
inapplicable as the executive power of a Union Territory remains vested
with the President. The respondents would further submit that Article
239AB does not stipulate any “assumption of powers” by the President
but merely provides for suspension of operation of Article 239AA in the
NCT of Delhi in case the President is satisfied that it is necessary to do
so for the proper administration of NCT of Delhi.
42. The respondents, in their submissions, also point out that a
close reading of Article 239 with Article 239AA along with Section 44 of
the GNCTD Act, 1991 would reveal that the expression “Executive action
of the Lt. Governor” and not
the “Executive action of NCT of Delhi”
has been stipulated in the said provisions. The said intention can also be
seen from the fact that the phrase Lieutenant Governor “with the
Ministers” has been used in Section 44(1)(b) and further Article 239AA(4)
also engages the phrase “his functions”. This leads to the implication
that the extent of contribution/participation to be made by the Council of
Ministers is only to render aid and advice to the Lieutenant Governor.
43. It has been further submitted on behalf of the respondents
that the aid and advice rendered by the Council of Ministers is not binding
upon the Lieutenant Governor and he is empowered to form an opinion
that differs from the opinion of the Council of Ministers. In such a
situation, the proviso to Article 239AA(4) comes into play which provides
that in case of such difference of opinion, the decision of the President
shall be final. Learned Additional Solicitor General has stressed that this
is in recognition of the fact that the ultimate responsibility in relation to
the administration of the Union Territories lies with the Union and there
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is clear demarcation of difference as regards the manner of governance
between States and Union Territories whereby in case of the former,
the Governor is bound by the advice tendered by the Council of Ministers.
44. The respondents further point out that a combined reading of
Article 239AA(4) and Section 41(2) of the 1991 Act would suggest that
when the question arises if a matter is one where the Lieutenant Governor
shall exercise his discretion, the decision of the Lieutenant Governor
shall be final. Article 239AA(4) and the proviso thereto is not an exception
and, hence, should not be given a restrictive meaning and the phrase
“any matter” has been deliberately kept of the widest import. To bring
home the point, reliance has been placed on the dictum laid down in Tej
Kiran Jain and others v. N. Sanjiva Reddy and others11 where the
word “anything” has been said to mean “everything”. Therefore, the
phrase “any matter” has to be interpreted to mean “every matter”. The
said interpretation, as per the respondents, would be in accord with the
objective of the Constitution that the Union shall retain the ultimate
authority to legislate on any matter with respect to the National Capital
Territory of Delhi.
45. The respondents also submit that Article 239AA does not
contemplate a new scheme and it is similar to that envisaged under
Article 239A which pertains to the administration and governance of the
Union Territory of
Puducherry. A comparison of the scheme provided
under Article 239, Article 239A read with the 1963 Act for Puducherry
on one hand and Article 239, Article 239AA read with the 1991 Act for
Delhi on the other hand would reveal that both the schemes are similar
to the extent that the intention is to retain the continuing control of the
President and the Parliament for the executive and legislative functioning
of the Union Territories.
46. The respondents contend that Article 239AA, and in particular,
clause 4 of the said provision, is not the first of its kind and a similar
provision in the form of Section 44 existed in the Government of Union
Territories Act, 1963 and that the issue of interpretation of this Section
had come up before this Court in several cases wherein it has been laid
down that the “State Government” with respect to Union Territory would
mean “Central Government” in terms of Section 3(60) of the General
Clauses Act. Hence, when a similar provision such as Article 239AA(4)
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has already been given a certain interpretation by this Court, then merely
because of the fact that special provisions have been placed in the
Constitution for the NCT of Delhi, which is not so in the case of other
Union Territories, it shall not bar the Courts from adopting an interpretation
of Article 239AA which is similar to Section 44 of the 1963 Act.
47. The respondents finally submit that as per the constitutional
mandate, the ultimate responsibility with respect to all matters governing
the NCT of Delhi fall within the domain of the Union Government. To
bolster the said stand, the respondents have placed reliance upon relevant
portions of the Balakrishnan Committee Report and also various other
provisions of the Constitution of India and the 1991 Act. Further, the
respondents argue that to devolve exclusive legislative or exclusive
executive power on the Legislative Assembly or Council of Ministers of
the NCT of Delhi would result in elevating a Union Territory to the
status of a State, a demand which has been rejected by the Constitution
makers on several instances. That apart, it would be impermissible under
any interpretation of the constitutional text and also contrary to the
constitutional mandate.
48. Before we dwell upon the submissions, we are of the considered
view that we should state certain principles and analyse certain
constitutional concepts.  Frankly speaking, we feel the necessity as we
are really concerned with the interpretation
of a constitutional provision
having regard to its operational perspective in a democracy. We have
said so in the prelude. We do not think and we are not persuaded to think
that the present controversy can rest on either of the extremes  propagated
before us.  We are convinced that a holistic approach has to be adopted
from a constitutional vision which is bound to encapsulate crystalline
realism.
C. Ideals/principles of representative governance:
49. Representative Governance in a Republican form of democracy
is a kind of democratic setup wherein the people of a nation elect and
choose their law making representatives. The representatives so elected
are entrusted by the citizens with the task of framing policies which are
reflective of the will of the electorate. The main purpose of a
Representative Government is to represent the public will, perception
and the popular sentiment into policies. The representatives, thus, act on
behalf of the people at large and remain accountable to the people for
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their activities as lawmakers. Therefore, representative form of
governance comes out as a device to bring to fore the popular will.
50. Bernard Manin in “The Principles of Representative
Government”12 has deliberated on the postulate that the concept of
representation has its origin around the Middle ages in the context of the
church and in the context of cities in their relation to the king or the
emperor. The idea, as Manin says, was to send out delegates having
power to connect to those who appointed them in the first place and
there lies the kernel of the concept of representation. This technique
then got transferred and used for other purposes.
51. Thomas Jefferson, in the United States Declaration of
Independence (1776), highlights on the stipulation that governments derive
their just powers from the consent of the governed. This idea, simply
put, reflects the concept of representative governance. The cogent factors
for constituting the representative form of government are that all citizens
are regarded as equal and the vote of all citizens, which is the source of
governing power, is assigned equal weight. In this sense, the views of all
citizens carry the same strength and no one can impose his/her views on
others.
52. The Constitution of India has embraced the representative
model of governance at all levels, i.e., local, State and the Union.
Acknowledging the representative form of governance adopted by our
Constitution and the elected representatives being the instruments for
conveying the popular will of the people, the Court in State of Bihar
and another v. Bal Mukund Sah and others13 has observed:-
“...Besides providing a quasi federal system in the country and
envisaging the scheme for distribution of legislative powers between
the State and the center, it emphasizes the establishment of the
rule of law. The form of Government envisaged under a
parliamentary system of democracy is a representative democracy
in which the people of the country are entitled to exercise their
sovereignty through the legislature which is to be elected on the
basis of adult franchise and to which the executive, namely, the
Council of Ministers is responsible. The legislature has been
12 Bernard Manin, The Principles of Representative Government, Cambridge Univer-
    sity Press, 1997
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acknowledged to be a nerve center of the State activities. It is
through parliament that elected representatives of the people
ventilate people’s grievances.
[Emphasis is ours]
53. Thus perceived, the people are the sovereign since they exercise
the power of adult franchise that ultimately builds the structure of
representative democracy. That apart, every constituent of the sovereign
is entitled to air his/her grievances through their elected representatives.
The twin idea establishes the cornerstone of the precept of accountability
to the public because there rests the origin of power and responsibility.
54. A representative form of government should not become a
government by elites where the representatives so elected do nothing to
give effect to the will of the sovereign. The elected representatives must
not have an ulterior motive for representing their constituents and they
should not misuse the popular mandate awarded to them by covertly
transforming it into ‘own rule’.  The inherent value of public accountability
can never be brushed aside.
55. Another ideal for representative governance is accessibility
and approachability. Since responsiveness to the needs and demands of
the people is the basic parameter for evaluating the effectiveness of
representative governance, it is necessary that elected representatives
develop a sense of belonging with their constituents.   The sense of
belonging has its limitation also. If the desire of the constituent
is rational
and draws strength from legal paradigms, it deserves to be given due
acceptance but if the aspiration blows from some illogical or unacceptable
proposition, the same should not be allowed any space. It is because in a
representative form of government, aspirations and desires are canvassed
and propounded on the bedrock of constitutional principles. Hence, we
may say that inherent constitutional aspirations should draw inspiration
from the Constitution. There can never be sacrifice of constitutional
conscience.
56. Be it remembered, when elected representatives and
constitutional functionaries enter their office, they take oath to bear
allegiance to the Constitution and uphold the Constitution. Thus, it is
expected of them not only to remain alive to the provisions of the
Constitution but also to concepts like constitutionalism, constitutional
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objectivity and constitutional trust, etc. The support expressed by the
sovereign in the form of votes cannot become an excuse to perform
actions which fall foul to the Constitution or are ultra vires. Though the
elected representatives are expected to act as instruments of transforming
popular will into policies and laws, yet they must do so within the contours
of the Constitution. They must display constitutional objectivity as a
standard of representative governance, for that is ingrained in the
conceptual democratic majority which neither tolerates ideological
fragmentation nor encourages any kind of utopian fantasy. It lays stress
on  realizable constitutional ideologies.
D. Constitutional morality:
57. Constitutional morality in its strictest sense of the term implies
strict and complete adherence to the constitutional principles as enshrined
in various segments of the document. When a country is endowed with
a Constitution, there is an accompanying promise which stipulates that
every member of the country right from its citizens to the high
constitutional functionaries must idolize the constitutional fundamentals.
This duty imposed by the Constitution stems from the fact that the
Constitution is the indispensable foundational base that functions as the
guiding force to protect and ensure that the democratic setup promised
to the citizenry remains unperturbed. The constitutional functionaries
owe a greater degree
of responsibility towards this eloquent instrument
for it is from this document that they derive their power and authority
and, as a natural corollary, they must ensure that they cultivate and develop
a spirit of constitutionalism where every action taken by them is governed
by and is in strict conformity with the basic tenets of the Constitution.
58. In this context, the observations made by Dr. B.R. Ambedkar
are of great significance:-
“Constitutional morality is not a natural sentiment. It has to be
cultivated. We must realize that our people are yet to learn it.
Democracy in India is only a top-dressing on an Indian soil, which
is essentially undemocratic.”14
59. Constitutional morality is that fulcrum which acts as an essential
check upon the high functionaries and citizens alike, as experience has
shown that unbridled power without any checks and balances would
result in a despotic and tyrannical situation which is antithetical to the
14 Constituent Assembly Debates 1989: VII, 38.
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very idea of democracy. The following passage from Manoj Narula v.
Union of India15 can aptly be quoted to throw some light on the idea:-
“If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which
is to be administered by men over men, the great difficulty lies in
this: you must first enable the government to control the governed;
and in the next place oblige it to control itself. A dependence on
the people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary
precautions.16”
60. In the said case, it has been further observed:-
“Regard being had to the aforesaid concept, it would not be out of
place to state that institutional respectability and adoption of
precautions for the sustenance of constitutional values would
include reverence for the constitutional structure. It is always
profitable to remember the famous line of Laurence H. Tribe that
a Constitution is “written in blood, rather than ink”17.”
61. Constitutional morality acts as a check against lapses on the
part of the governmental agencies and colourable activities aimed at
affecting the democratic nature of polity. In Krishnamoorthy v.
Sivakumar and others18, it has been explained thus:-
“Democracy, which has been best defined as the government of
the people, by the people and for the people, 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.”
Constitutional morality, appositely understood, means the morality
that has inherent elements in the constitutional norms and the conscience
of the Constitution. Any act to garner justification must possess the
potentiality to be in harmony with the constitutional impulse. We may
give an example. When one is expressing an idea of generosity, he may
not be meeting the standard of justness. There may be an element of
15 (2014) 9 SCC 1
16 Jamesh Madison as Publius, Federalist 51
17 Laurence H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)
18 (2015) 3 SCC 467
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condescension. But when one shows justness in action, there is no feeling
of any grant or generosity.  That will come within the normative value.
That is the test of constitutional justness which falls within the sweep of
constitutional morality. It advocates the principle of constitutional justness
without subjective exposition of generosity.
E. Constitutional objectivity:
62. Our Constitution, in its grandness, resolutely embraces the
theory of “checks and balances”. This concept of checks and balances,
in turn, gives birth to the principle of “constitutional objectivity”. The
Constitution expects the organs of the State adorned by high constitutional
functionaries that while discharging their duties, they remain alive to the
allegiance they bear to the Constitution. Neutrality as envisaged under
the constitutional scheme should guide them in the performance of their
duties and functions under the Constitution. This is the trust which the
Constitution reposes in them.
63. The founding fathers of our Constitution had a vision for our
Nation whose ultimate aim was to make right the upheaval that existed
before setting up of the Constituent Assembly. The concept of
constitutional objectivity is, by itself, inherent in this vision and it is
incumbent upon the organs of the State to make comprehensive efforts
towards realization of this vision. But, at the same time, they must remain
true to the Constitution by upholding
the trust which the Constitution
places in them and thereby exhibit constitutional objectivity in its truest
sense. In Indra Sawhney v. Union of India and others19, the Court
observed:-
“...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.”
The aforesaid passage tells us in an illuminating manner how the
Court is expected to proceed on the path of judicial creativity in
consonance with constitutional objectivity having a keen sense of
pragmatism.
19 AIR 1993 SC 477
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64. It can be said without inviting any controversy that the concept
of constitutional objectivity has to be equally followed by the Executive
and the Legislature as it is the Constitution from which they derive their
power and, in turn, the Constitution expects them to be just and reasonable
in the exercise of such power. The decisions taken by constitutional
functionaries, in the discharge of their duties, must be based on normative
acceptability. Such decisions, thus, have to be in accord with the principles
of constitutional objectivity which, as a lighthouse, will guide the authorities
to take a constitutionally right decision. This action, needless to say, would
be in the spirit of the Constitution. It may be further noted here that it is
not only the decision itself but also the process adopted in such decision
making which should be in tune with constitutional objectivity. A decision
by a constitutional functionary may, in the ultimate analysis, withstand
scrutiny but unless the process adopted for arriving at such a decision is
in tandem with the idea of constitutional objectivity, it invites criticism.
Therefore, the decision making process should never by-pass the
established norms and conventions which are time tested and should
affirm to the idea of constitutionalism.
F. Constitutional governance and the conception of
legitimate constitutional trust:
65. The concept of constitutional governance in a body polity like
ours, where the
Constitution is the supreme fundamental law, is neither
hypothetical nor an abstraction but is real, concrete and grounded. The
word ‘governance’ encapsulates the idea of an administration, a governing
body or organization whereas the word ‘constitutional’ means something
sanctioned by or consistent with or operating under the fundamental
organic law, i.e., the Constitution. Thus, the word ‘governance’ when
qualified by the term ‘constitutional’ conveys a form of
governance/government which adheres to the concept of
constitutionalism. The said form of governance is sanctioned by the
Constitution itself, its functions are consistent with the Constitution and
it operates under the aegis of the Constitution.
66. According to Encyclopedia Britannica, “Constitutional
Government” means:-
“...the existence of a constitution—which may be a legal
instrument or merely a set of fixed norms or principles generally
accepted as the fundamental law of the polity—that effectively
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controls the exercise of political power. The essence of
constitutionalism is the control of power by its distribution among
several state organs or offices in such a way that they are each
subjected to reciprocal controls and forced to cooperate in
formulating the will of the state....”
67. It is axiomatic that the Constitution of India is the suprema
lex, i.e., the paramount law of the land. All the three wings of the State,
i.e., the legislature, the judiciary and the executive derive their power
and authority from the Constitution. It is the Constitution which endows
the requisite amount of oxygen and other necessary supplies which, in
turn, enable these organs to work for the betterment of the nation and
the body polity.  In the context of the supremacy of the Constitution, the
Court in Kalpana Mehta and others v. Union of India and others20
has laid down:-
“The Constitution of India is the supreme fundamental law and all
laws have to be in consonance or in accord with the Constitution.
The constitutional provisions postulate the conditions for the
functioning of the legislature and the executive and prescribe that
the Supreme Court is the final interpreter of the Constitution. All
statutory laws are required to conform to the fundamental law,
that is, the Constitution. The functionaries of the three wings,
namely, the legislature, the executive and the judiciary, as has
been stated in His Holiness Kesavananda
Bharati
Sripadagalvaru v. State of Kerala and another21. derive their
authority and jurisdiction from the Constitution. The Parliament
has the exclusive authority to make laws and that is how the
supremacy of the Parliament in the field of legislation is understood.
There is a distinction between parliamentary supremacy in the
field of legislation and constitutional supremacy. The Constitution
is the fundamental document that provides for constitutionalism,
constitutional governance and also sets out morality, norms and
values which are inhered in various articles and sometimes are
decipherable from the constitutional silence. Its inherent dynamism
makes it organic and, therefore, the concept of — constitutional
sovereignty is sacrosanct. It is extremely sacred and, as stated
earlier, the authorities get their powers from the Constitution. It is
20 (2018) 7 SCALE 106
21 AIR 1973 SC 1461 : (1973) 4 SCC 225