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
placed on Constitutional Bench Judgment of this Court
in Manoj Narula Vs. Union of India, (2014) 9 SCC 1.  Constitution
Bench in the above case while considering principles of Constitutional
silence or abeyance laid down following in Paras 65-66:-
“65. The next principle that can be thought of is constitutional
silence or silence of the Constitution or constitutional
abeyance. The said principle is a progressive one and is applied
as a recognised advanced constitutional practice. It has been
recognised by the Court to fill up the gaps in respect of certain
areas in the interest of justice and larger public interest.
Liberalisation of the concept of locus standi for the purpose
of development of public interest litigation to establish the
rights of the have-nots or to prevent damages and protect
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environment is one such feature. Similarly, laying down
guidelines as procedural safeguards in the matter of adoption
of Indian children by foreigners in Laxmi Kant Pandey v.
Union of India [(1987) 1 SCC 66] or issuance of guidelines
pertaining to arrest in D.K. Basu v. State of W.B. [(1997) 1
SCC 416] or directions issued in Vishaka v. State of Rajasthan
[(1997) 6 SCC 241] are some of the instances.
66. In this context, it is profitable to refer to the authority in
Bhanumati v. State of U.P. [(2010) 12 SCC 1] wherein this
Court was dealing with the constitutional validity of the U.P.
Panchayat Laws (Amendment) Act, 2007. One of the grounds
for challenge was that there is no concept of no-confidence
motion in the detailed constitutional provision under Part IX
of the Constitution and, therefore, the incorporation of the
said provision in the statute militates against the principles of
Panchayati Raj institutions. That apart, reduction of one year
in place of two years in Sections 15 and 28 of the Amendment
Act was sought to be struck down as the said provision diluted
the principle of stability and continuity which is the main
purpose behind the object and reason of the constitutional
amendment in Part IX of the Constitution. The Court, after
referring to Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6),
243-F(1), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4)
of the Constitution and further taking note of the amendment,
came to hold that the statutory
provision of no-confidence is
contrary to Part IX of the Constitution. In that context, it has
been held as follows: (Bhanumati case, SCC p. 17, paras 49-
50)
“49. Apart from the aforesaid reasons, the arguments by
the appellants cannot be accepted in view of a very well-
known constitutional doctrine, namely, the constitutional
doctrine of silence. Michael Foley in his treatise on The
Silence of Constitutions (Routledge, London and New York)
has argued that in a Constitution ‘abeyances are valuable,
therefore, not in spite of their obscurity but because of it.
They are significant for the attitudes and approaches to
the Constitution that they evoke, rather than the content
or substance of their strictures’. (p. 10)
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50. The learned author elaborated this concept further by
saying, “Despite the absence of any documentary or
material form, these abeyances are real and are an integral
part of any Constitution. What remains unwritten and
indeterminate can be just as much responsible for the
operational character and restraining quality of a
Constitution as its more tangible and codified components.’
(p. 82)”
54. It is further relevant to notice that although above well known
Constitutional doctrine was noticed but the Court held that express
Constitutional provisions cannot be ignored while considering such
doctrine and principles.  After what has been stated above about above
principles in Paras 65 and 66, following was held in Para 67:-
“67. The question that is to be posed here is whether taking
recourse to this doctrine for the purpose of advancing
constitutional culture, can a court read a disqualification to
the already expressed disqualifications provided under the
Constitution and the 1951 Act. The answer has to be in the
inevitable negative, for there are express provisions stating
the disqualifications and second, it would tantamount to
crossing the boundaries of judicial review.”
55. Doctrine of Constitutional implications was also noticed by
Constitution Bench in Para 68 to the following effect:-
“68. The next principle that we intend to discuss is the
principle of constitutional implication. We are obliged to
discuss
this principle as Mr Dwivedi, learned Amicus Curiae,
has put immense emphasis on the words “on the advice of the
Prime Minister” occurring in Article 75(1) of the Constitution.
It is his submission that these words are of immense
significance and apposite meaning from the said words is
required to be deduced to the effect that the Prime Minister is
not constitutionally allowed to advise the President to make a
person against whom charge has been framed for heinous or
serious offences or offences pertaining to corruption as
Minister in the Council of Ministers, regard being had to the
sacrosanctity of the office and the oath prescribed under the
Constitution. The learned Senior Counsel would submit that
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on many an occasion, this Court has expanded the horizon
inherent in various articles by applying the doctrine of
implication based on the constitutional scheme and the
language employed in other provisions of the Constitution.”
56. There cannot be any dispute with regard to doctrine of silence
and doctrine of implications as noticed above.  But while applying above
said doctrines 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 any such principles.
57. From the above discussions, 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.  We, thus, while
interpreting Article 239AA have to keep in mind the purpose and object
for which Sixty Ninth Constitution (Amendment) Act, 1991 was brought
into force.
After noticing the above principles, we now proceed further
to examine the nature and content of the Constitutional provisions.
CONSTITUTIONAL SCHEME OF ARTICLE 239AA
58. To find out the Constitutional Scheme as delineated by Article
239AA, apart from looking into the express language of Article 239AA,
we have also to look into the object and purpose of Constitutional
provision, on which sufficient light is thrown by the object and reasons
as contained in Sixty Ninth Constitutional Amendment as well as
Balakrishnan’s Report which was the basis of Sixty Ninth Constitutional
Amendment. We have already referred to some relevant parts of
Balakrishnan’s report in preceding paragraph of this judgment.
59. The task before Balakrishnan Report in words of Balakrishnan
himself was to synchronise the two competing claims i.e. “On the one
hand, effective administration of the National Capital is of vital importance
to the National Government not only for ensuring a high degree of security
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and a high level of administrative efficiency but also for enabling the
Central Government to discharge its national and international
responsibilities”.  To ensure this, it must necessarily have a complete
and comprehensive control over the affairs of the capital. On the other
hand, legitimate demand of the large population of the capital city for the
democratic right of participation in the Government at the city level is
too important to be ignored.  We have endeavoured to design a
Governmental structure for Delhi which we hope, would reconcile these
two requirements”.
60. For administration of Delhi, there has been earlier a
Parliamentary Legislation. Legislative Assembly functioned in Delhi after
the enforcement of the Constitution till 01.11.1956.  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. While considering the salient features of
the proposed structure, following was stated in Para 6.7.2 of the Report:
“6.7.2
As we have already stated, any governmental set-up
for Delhi should ensure that the Union is not fettered or
hampered in any way in the discharge of its own special
responsibilities in relation to the administration of the national
capital by a constitutional division of powers, functions and
responsibilities between the union and the Delhi
Administration.  The
only way of ensuring this arrangement
is to keep Delhi as a Union territory for the purposes of the
Constitution.  Thereby, the provision in article 246(4) of the
Constitution will automatically ensure that Parliament has
concurrent and overriding powers to make laws for Delhi on
all matters, including those relateable to the State List.
Correspondingly, the Union Executive can exercise executive
powers in respect of all such matters subject to the provisions
of any Central law governing the matter.  We, therefore,
recommend that even after the creation of a Legislative
Assembly and Council of Ministers for Delhi it should continue
to be a Union territory for the purposes of the Constitution.”
61. 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.
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62. At this juncture, it is also relevant to note the issue pertaining
to admissibility of the Balakrishnan Report.  The issue regarding
admissibility of Parliamentary Committee’s Report in proceeding under
Article 32/Article 136 of the Constitution of India was engaging attention
of the Constitution Bench when hearing in these matters were going on.
The  Constitution Bench has delivered its judgment in Writ Petition (C)
No. 558 of 2012 Kalpana Mehta and others Vs. Union of India and
others on 09.05.2018. The Constitution Bench had held that
Parliamentary Committee Reports can be looked into and referred to by
this Court in exercise of its jurisdiction under Article 32/136. The Chief
Justice delivering his opinion(for himself and on behalf of Justice A.M.
Khanwilkar) in the conclusions recorded in Paragraph 149 in sub
paragraph (iv) and (vii), has laid down:
“(iv) In a litigation before this Court either under Article 32 or
Article 136 of the Constitution of India can take on record the
report of the Parliamentary Standing Committee. However, the
Court while taking the report on record as a material can take aid
of as long as there is no contest or the dispute on the content
because such a contest would invite the court to render a verdict
either accepting the report in toto or in part or rejecting it in entirety.
(vii) In a public interest litigation where the adversarial position is
absent, the Court can take aid of the said report in larger interest
of
the society to subserve the cause of welfare State and in any
furtherance to rights provided under the Constitution or any
statutory provision.“
63. Justice D.Y. Chandrachud (one of us) answering the
reference has held at Page 86:
“(i) As a matter of principle, there is no reason why reliance
upon the report of a Parliamentary Standing Committee cannot
be placed in proceedings under Article 32 or Article 136 of
the Constitution;
(ii) Once the report of a Parliamentary Committee has been
published, reference to it in the course of judicial proceedings
will not constitute a breach of parliamentary privilege. The
validity of the report is not called into question in the court.
No Member of Parliament or person can be made liable for
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what is stated in the course of the proceedings before a
Parliamentary Committee or for a vote tendered or given; and
(iii) However, when a matter before the court assumes a
contentious character, a finding of fact by the court must be
premised on the evidence adduced in the judicial proceeding.”
64. Myself (Justice Ashok Bhushan) delivering my concurring
opinion has also laid down following in Paragraph 151(ii,vii):
“(ii) The publication of the reports not being only permitted,
but also are being encouraged by the Parliament. The general
public are keenly interested in knowing about the
parliamentary proceedings including parliamentary reports
which are steps towards the governance of the country. The
right to know about the reports only arises when they have
been published for use of the public in general.
(vii) Both the parties have not disputed that Parliamentary
Reports can be used for the purposes of legislative history of
a Statute as well as for considering the statement made by a
minister. When there is no breach of privilege in considering
the Parliamentary materials and reports of the committee by
the Court for the above two purposes, we fail to see any valid
reason for not accepting the submission of the petitioner that
Courts are not debarred from accepting the Parliamentary
materials and reports, on record, before it, provided the Court
does not proceed to permit the parties to question and impeach
the
reports.”
65. Thus, it is now well settled that Parliamentary Committee
Report can be looked into to find out the intent and purpose of legislation,
in the present case, Sixty Ninth Constitutional Amendment.
66. The statement of object & reasons of Sixty Ninth Amendment
Act has also referred to the Balakrishnan’s Report.  While referring to
the Balakrishnan’s Report, following has been noted:
“The Committee went into the matter in great detail and
considered the issues after holding discussions with various
individuals, associations, political parties and other experts
and taking into account the arrangements in the National
Capitals of other countries with a federal set-up and also the
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debates in the Constituent Assembly as also the reports by
earlier Committees and Commissions.  After such detailed
inquiry and examination, it recommended that Delhi should
continue to be a Union territory and provided with a
Legislative Assembly and a Council of Ministers responsible
to such Assembly with appropriate powers to deal with matters
of concern to the common man.  The Committee also
recommended that with a view to ensure stability and
permanence the arrangements should be incorporated in the
Constitution to give the National Capital a special status
among the Union territories.”
67. The recommendation of the Committee that Delhi should
continue 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.
68. There are many facets of Article 239AA which need elaborate
consideration. Different facets shall be separately dealt under following
heads:
A   LEGISLATIVE POWER OF PARLIAMENT AND THAT
OF GNCTD
B   EXECUTIVE POWER OF UNINON (PRESIDENT/ LG)
AND THAT OF
GNCTD
C   PROVISO TO ARTICLE 239AA
   (i) AID AND ADVICE
(ii) IN MATTER
D  WHETHER CONCURRENCE OF LG REQUIRED FOR
EXCLUSIVE DECISION OF GNCTD
E  COMMUNICATION OF DECISION OF COUNCIL OF
MINISTERS / MINISTER AND LG, ITS PURPOSE AND
OBJECT
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F     ADMINISTARTIVE FUNCTION OF THE GNCTD AND
LG AS DELINEATED BY 1991 ACT AND THE
TRANSACTIONS OF BUSINESS RULEs, 1993.
A. LEGISLATIVE   POWER   OF   PARLIAMENT   AND
             THAT OF GNCTD
69. 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. Clause (3) of Article 239 is extracted
for ready reference:
“(3) (a) Subject to the provisions of this Constitution, the
Legislative Assembly shall have power to make laws for the
whole or any part of the National Capital Territory with respect
to any of the matters enumerated in the State of List or in the
Concurrent List in so far as any such matter is applicable to
Union territories except matters with respect to Entries 1, 2,
and 18 of the State List and Entries 64, 65 and 66 of that List
in so far as they relate to the said Entries 1, 2,and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers
of Parliament under this Constitution to make laws with respect
to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a
law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the
Legislative Assembly, then, in
either case, the law made by
Parliament, or, as the case may be, such earlier law, shall
prevail and the law made by the Legislative Assembly shall,
to the extent of the repugnancy, be void;
Provided that if any such law made by the Legislative Assembly
has been reserved for the consideration of the President and
has received his assent such law shall prevail in National
Capital Territory :
Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to
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the same matter including a law adding to, amending, varying
or repealing the law so made by the Legislative Assembly.”
70. The above provision 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 of the State List and Entries 64, 65 and 66 of the
List.
71. The provision is very clear which empowers the Legislative
Assembly to make laws with respect to any of the matters enumerated
in the State List or in the Concurrent List except the excluded entries.
One of the issue is that 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”.
72. A look of the Entries in List II and List III indicates that there
is no mention of Union Territory. A perusal of the List II and III indicates
that although in various entries there is specific mention of word “State”
but there is no express reference of “Union Territory” in any of the
entries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42 and 43,
there is specific mention of word “State”. Similarly, in List III Entry 3, 4
and 43 there is mention of word “State”.  The above phrase “in so far as
any such matter is applicable to Union Territory” is inconsequential.
The reasons are two fold. 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 Union Territory is
excluded by implication or any express Constitutional provision.
73. Thus, there is no difficulty in comprehending the Legislative
power of the NCTD as expressly spelled out in Article 239AA. Now,
we turn to find out Legislative power of the Parliament. Sub-clause (b)
of Clause (3) of the Article 239AA mentions “nothing in sub clause (a)
shall derogate from the powers of Parliament under this Constitution to
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make laws with respect to any matter for a Union Territory or any part
thereof.
74. It is relevant to note that sub clause (3) begins with the word
“subject to the provisions of this Constitution”. Article 246 thus, by Chapter
1st of the Part X1 of the Constitution dealing with the Legislative relations
has to be looked into and to be read alongwith Article 239AA clause (3).
Article 246 provides as follows:
“246. Subject-matter of laws made by Parliament and by the
Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to
any of the matters enumerated in List I in the Seventh Schedule
(in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament and,
subject to clause (1), the Legislature of any State also, have
power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any part
thereof with respect to any of the matters enumerated in List
II in the Seventh Schedule (in this Constitution referred to as
the “State List”).
(4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included (in a
State) notwithstanding that such
matter is a matter enumerated
in the State List.”
75. Article 246 clause (4) expressly provides that Parliament has
power to make laws with respect to any matter for any part of the
territory of India not included in a State; notwithstanding that such matter
is a matter enumerated in the State List.
76. 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
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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.
77. The issue regarding constitutional scheme envisaged for Delhi
consequent to insertion of Article 239AA of Sixty Ninth Constitution
Amendment came for consideration before a Nine Judge Bench of this
Court in NDMC Vs. State of Punjab (1997) 7 SCC 339.  The issue in
the NDMC case was whether the property tax levied by NDMC On the
immovable properties of States situated within the Union Territory of
Delhi would be covered by the exemption provided in Article 289 of the
Constitution of India.  Delhi High Court had been pleased to hold that
the exemption under Article 289 would apply and the assessment and
demand notices of NDMC were quashed.  The appeal came to be
decided by a Nine Judge Bench of this Court.
78. The majority opinion was delivery by Justice B.P. Jeevan
Reddy.  The majority held that States and Union territories are different
entities, which is clear from the scheme of Articles 245 and 246.  Following
was laid down in Paragraphs 152, 155 and 160:-
……………152. On a consideration of rival contentions, we
are inclined to agree with the respondents-States. The States
put together do not exhaust the territory of India. There are
certain territories which
do not form part of any State and
yet are the territories of the Union. That the States and the
Union Territories are different entities, is evident from clause
(2) of Article 1 — indeed from the entire scheme of the
Constitution. Article 245(1) says that while Parliament may
make laws for the whole or any part of the territory of India,
the legislature of a State may make laws for the whole or any
part of the State. Article 1(2) read with Article 245(1) shows
that so far as the Union Territories are concerned, the only
law-making body is Parliament. The legislature of a State
cannot make any law for a Union Territory; it can make laws
only for that State. Clauses (1), (2) and (3) of Article 246
speak of division of legislative powers between Parliament
and State legislatures. This division is only between Parliament
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and the State legislatures, i.e., between the Union and the
States. There is no division of legislative powers between the
Union and Union Territories. Similarly, there is no division of
powers between States and Union Territories. So far as the
Union Territories are concerned, it is clause (4) of Article
246 that is relevant. It says that Parliament has the power to
make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that
such matter is a matter enumerated in the State List. Now,
the Union Territory is not included in the territory of any State.
If so, Parliament is the only law-making body available for
such Union Territories. It is equally relevant to mention that
the Constitution, as originally enacted, did not provide for a
legislature for any of the Part ‘C’ States (or, for that matter,
Part ‘D’ States). It is only by virtue of the Government of Part
‘C’ States Act, 1951 that some Part ‘C’ States including Delhi
got a legislature. This was put an end to by the States
Reorganisation Act, 1956. In 1962, the Constitution
Fourteenth (Amendment) Act did provide for creation/
constitution of legislatures for Union Territories (excluding,
of course, Delhi) but even here the Constitution did not itself
provide for legislatures for those Part ‘C’ States; it merely
empowered Parliament to provide for the same by making a
law. In the year 1991, the
Constitution did provide for a
legislature for the Union Territory of Delhi [National Capital
Territory of Delhi] by the Sixty-Ninth (Amendment) Act
(Article 239-AA) but even here the legislature so created was
not a full-fledged legislature nor did it have the effect of —
assuming that it could — lift the National Capital Territory of
Delhi from Union Territory category to the category of States
within the meaning of Chapter I of Part XI of the Constitution.
All this necessarily means that so far as the Union Territories
are concerned, there is no such thing as List I, List II or List
III. The only legislative body is Parliament — or a legislative
body created by it. Parliament can make any law in respect
of the said territories — subject, of course, to constitutional
limitations other than those specified in Chapter I of Part XI
of the Constitution. Above all, the Union Territories are not
“States” as contemplated by Chapter I of Part XI; they are
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the territories of the Union falling outside the territories of
the States. Once the Union Territory is a part of the Union
and not part of any State, it follows that any tax levied by its
legislative body is Union taxation. Admittedly, it cannot be
called “State taxation” — and under the constitutional scheme,
there is no third kind of taxation. Either it is Union taxation
or State taxation………………
……………… 155. In this connection, it is necessary to
remember that all the Union Territories are not situated alike.
There are certain Union Territories (i.e., Andaman and
Nicobar Islands and Chandigarh) for which there can be no
legislature at all — as on today. There is a second category
of Union Territories covered by Article 239-A (which applied
to Himachal Pradesh, Manipur, Tripura, Goa, Daman and
Diu and Pondicherry — now, of course, only Pondicherry
survives in this category, the rest having acquired Statehood)
which have legislatures by courtesy of Parliament. Parliament
can, by law, provide for constitution of legislatures for these
States and confer upon these legislatures such powers, as it
may think appropriate. Parliament had created legislatures
for these Union Territories under the “the Government of
Union Territories Act, 1963”, empowering them to make laws
with respect to matters in List II and List III, but subject to its
overriding power. The third category is Delhi. It had no
legislature with effect from 1-11-1956 until one has been
created
under and by virtue of the Constitution Sixty-Ninth
(Amendment) Act, 1991 which introduced Article 239-AA. We
have already dealt with the special features of Article 239-
AA and need not repeat it. Indeed, a reference to Article 239-
B read with clause (8) of Article 239-AA shows how the Union
Territory of Delhi is in a class by itself but is certainly not a
State within the meaning of Article 246 or Part VI of the
Constitution. In sum, it is also a territory governed by clause
(4) of Article 246. As pointed out by the learned Attorney
General, various Union Territories are in different stages of
evolution. Some have already acquired Statehood and some
may be on the way to it. The fact, however, remains that those
surviving as Union Territories are governed by Article 246(4)
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notwithstanding the differences in their respective set-ups —
and Delhi, now called the “National Capital Territory of
Delhi”, is yet a Union Territory……………”
……………160. It is then argued for the appellants that if the
above view is taken, it would lead to an inconsistency. The
reasoning in this behalf runs thus: a law made by the
legislature of a Union Territory levying taxes on lands and
buildings would be “State taxation”, but if the same tax is
levied by a law made by Parliament, it is being characterised
as “Union taxation”; this is indeed a curious and inconsistent
position, say the learned counsel for the appellants. In our
opinion, however, the very premise upon which this argument
is urged is incorrect. A tax levied under a law made by a
legislature of a Union Territory cannot be called “State
taxation” for the simple reason that Union Territory is not a
“State” within the meaning of Article 246 (or for that matter,
Chapter I of Part XI) or Part VI or Articles 285 to
289……………”
79. After examining the Constitutional Scheme delineated by Article
239AA, another constitutional principle had been laid down by the
Constitution Bench that Union territories are governed by Article 246(4)
notwithstanding their differences in respective set-ups and Delhi, now
called the “National Capital Territory of Delhi” is yet a Union Territory.
The Constitution Bench had also recognised that the Union territory of
Delhi is in a
class by itself, certainly not a State.  Legislative power of
the Parliament was held to cover Union Territories including Delhi.
80. The above clearly indicates that 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.
B. EXECUTIVE POWERS OF THE UNION (PRESIDENT
/LG) AND THAT OF THE GNCTD
81. 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
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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. Clause (4) of Article 239AA 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.
The submission of the respondent is that executive power in relation to
all matters contained in List II and List III is vested in the President.
82. The Union and States can exercise Executive power on the
subjects on which they have power to legislate.  This Court in Rai Sahib
Ram Jawaya Kapur and Others Vs. State of Punjab, AIR 1955 SC
549 while considering the extent of the Executive power in Paragraph 7
held following:-
“7. Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding provision in
regard to the executive powers of a State is contained in Article
162. The provisions of these articles are analogous to those
of Sections 8 and 49(2) respectively of the Government of
India Act, 1935 and lay down the rule of distribution of
executive powers between the Union and the States, following,
the same analogy as is provided in regard to the distribution
of legislative powers between them. Article 162, with which
we
are directly concerned in this case, lays down:
“Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to
which the legislature of the State has power to make laws:
Provided that in any matter with respect to which the
legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
this Constitution or by any law made by Parliament upon
the Union or authorities thereof.”
     Thus under this article the executive authority of the State
is exclusive in respect to matters enumerated in List II of
Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution itself
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or in any law passed by Parliament. Similarly, Article 73
provides that the executive powers of the Union shall extend
to matters with respect to which Parliament has power to make
laws and to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of India by
virtue of any treaty or any agreement. The proviso engrafted
on clause (1) further lays down that although with regard to
the matters in the Concurrent List the executive authority shall
be ordinarily left to the State it would be open to Parliament
to provide that in exceptional cases the executive power of
the Union shall extend to these matters also. Neither of these
articles contain any definition as to what the executive
function is and what activities would legitimately come within
its scope. They are concerned primarily with the distribution
of the executive power between the Union on the one hand
and the States on the other. They do not mean, as Mr Pathak
seems to suggest, that it is only when Parliament or the State
Legislature has legislated on certain items appertaining to
their respective lists, that the Union or the State executive, as
the case may be, can proceed to function in respect to them.
On the other hand, the language of Article 172 clearly
indicates that the powers of the State executive do extend to
matters upon which the State Legislature is competent to
legislate and are not confined to matters over
which legislation
has been passed already. The same principle underlies Article
73 of the Constitution. These provisions of the Constitution
therefore do not lend any support to Mr Pathak’s contention.”
83. The Constitution Bench has also in above case laid down that
in our Constitution; we have adopted the same system of Parliamentary
democracy as in England.  In this regard, following was held in Para
Nos. 13 and 14:-
“13. The limits within which the executive Government can
function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the executive
which our Constitution has set up. Our Constitution, though
federal in its structure, is modelled on the British
parliamentary system where the executive is deemed to have
the primary responsibility for the formulation of governmental
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policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining
the confidence of the legislative branch of the State. The
executive function comprises both the determination of the
policy as well as carrying it into execution. This evidently
includes the initiation of legislation, the maintenance of order,
the promotion of social and economic welfare, the direction
of foreign policy, in fact the carrying on or supervision of
the general administration of the State.
14. In India, as in England, the executive has to act subject
to the control of the legislature; but in what way is this control
exercised by the legislature? Under Article 53(1) of our
Constitution, the executive power of the Union is vested in
the President but under Article 75 there is to be a Council of
Ministers with the Prime Minister at the head to aid and advise
the President in the exercise of his functions. The President
has thus been made a formal or constitutional head of the
executive and the real executive powers are vested in the
Ministers or the Cabinet. The same provisions obtain in regard
to the Government of States; the Governor or the Rajpramukh,
as the case may be, occupies the position of the head of the
executive in the State but it is virtually the Council of Ministers
in each State that carries on the executive Government. In
the Indian Constitution, therefore, we have the same system
of parliamentary
executive as in England and the Council of
Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, “a hyphen which joins,
a buckle which fastens the legislative part of the State to the
executive part”. The Cabinet enjoying, as it does, a majority
in the legislature concentrates in itself the virtual control of
both legislative and executive functions; and as the Ministers
constituting the Cabinet are presumably agreed on
fundamentals and act on the principle of collective
responsibility, the most important questions of policy are all
formulated by them.”
84. The appellant relying on Article 73 of the Constitution had
submitted that Article 73 lays down the principle that while there may
exist under the Constitution concurrent legislative powers on two different
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federal units, there can never be any concurrent executive powers.  It
was further submitted that the above principle equally applies to matters
listed in List II and List III of the Constitution of India for NCTD.
Referring to the Article 239AA(3)(b), it is contended that the said
provision confers power on Parliament to enact legislations in matters in
both state list and concurrent lists.  Such power is also available under
Article 246.  However, it does not follow from the above that the said
provision also confers executive powers in relation to matters in the
state list and concurrent list.  It is further submitted that Parliament may
by law confer executive powers in relation to matters in the concurrent
list on the Union Government for States, it may also do so in relation to
the NCTD. But, if such thing is not done, Union Government will, as a
general rule, have no executive powers in respect of matters under List
II (except the excluded Entries) and it is the GNCTD, which shall enjoy
exclusive executive powers.  We are of the view that the above
interpretation as put up by the appellant on Constitutional provisions
cannot be accepted.  The principle is well established that Executive
powers co-exist with the Legislative powers.  Reference to Article 73
has been made in this context, which need to be noted.  Article 73 provides
as follows:-
“73. (1) Subject to the provisions of this Constitution, the
executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power
to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
any treaty or agreement:
Provided that the executive power referred to in subclause
(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.
(2) Until otherwise provided by Parliament, a State and any
officer or authority of a State may, notwithstanding anything
in this article, continue to exercise in matters with respect to
which Parliament has power to make laws for that State such
executive power or functions as the State or officer or
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authority thereof could exercise immediately before the
commencement of this Constitution.”
85. The proviso to Article 73(1) provides that the executive power
referred to in subclause (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 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
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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. Section 49 of the Act, 1991 provides as follows:
“49. Relation of Lieutenant Governor and his Ministers to
President.- Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be
under the general control of, and comply with such particular
directions, if any, as may from time to time be given by the
President.”
86. 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.
87. 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 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
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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. We thus conclude that 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.
88. Learned counsel for the appellants have also referred to Article
239AB.  One of the submissions raised by the appellants is that the
executive power  can be exercised by Union or the Lieutenant Governor
only in the circumstances as mentioned in Article 239AB i.e. only when
constitutional machinery in National Capital Territory has failed and
National Capital Territory is unable to carry out the administration in
accordance with the provisions of Article 239AB.  Article 239AB was
also added by Constitution Sixty Ninth Amendment Act, which is as
follows:-
“239AB. Provision in case of failure of constitutional
machinery.- If the President, on receipt of a report from the
Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of
the National Capital Territory cannot be carried on in
accordance with the provisions of Article 239AA or of any
law made in pursuance of that article; or
(b) that for the proper administration of the National Capital
Territory it is necessary or expedient so
to do, the President
may by order suspend the operation of any provision of Article
239AA or of all or any of the provisions of any law made in
pursuance of that article for such period and subject to such
conditions as may be specified in such law and make such
incidental and consequential provisions as may appear to him
to be necessary or expedient for administering the National
Capital Territory in accordance with the provisions of Article
239 and Article 239AA.”
89. 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 subject of both the provisions, i.e.,
Article 239AB and Article 356 is same, i.e., “provision in case of failure
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of constitutional machinery”.  The power under Article 356/239AA is
conferred on Union in larger interest of State.  The submission that
executive power can be exercised by the Union through President only
when power under Article 239AB is exercised, cannot be accepted.
The provision of Article 239AB is for entirely different purpose, and is
not a provision regarding exercise of general executive power by the
Union.
Article 239AA(4) Proviso
90. The interpretation of the proviso to sub-clause(4) is the main
bane of contention between the parties.  There are two broad aspects
which need detailed consideration. The first issue is the concept of the
words “aid and advice” as contained in sub-clause (4) of Article 239AA.
The appellants case is that the content and meaning of aid and advice is
same as has been used in Article 74 and Article 163 of the Constitution.
Article 163 Sub-clause(1) is extracted for ready reference:-
163.Council of Ministers to aid and advise Governor:-  (1)
There shall be a council of Ministers with the Chief Minister as
the head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under this constitution
required to exercise his functions or any of them in his discretion.
91. The appellant’s have placed reliance on Constitution Bench
judgment of this Court in Shamsher Singh Vs. State of Punjab and
Another, (1974) 2 SCC 831.  The Constitution Bench of
this Court in
the above case had occasion to examine the phrase “aid and advice” as
used in Article 163 of the Constitution. This Court found that our
Constitution embodies generally the Parliamentary system of the
Government of British model both for Union and the States. Both
President and Governor have to act on the basis of aid and advice
received from the Council of the Ministers except when they have to
exercise their function in their discretion. Paras 27, 28, 30, 32 and 33,
which are relevant are quoted as follows:-
“27. Our Constitution embodies generally the Parliamentary
or Cabinet system of Government of the British model both
for the Union and the States. Under this system the President
is the constitutional or formal head of the Union and he
exercises his powers and functions conferred on him by or
under the Constitution on the aid and advice of his Council
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of Ministers. Article 103 is an exception to the aid and advice
of the Council of Ministers because it specifically provides
that the President acts only according to the opinion of the
Election Commission. This is when any question arises as to
whether a Member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause
(1) of Article 102.
28. Under the Cabinet system of Government as embodied in
our Constitution the Governor is the constitutional or formal
head of the State and he exercises all his powers and functions
conferred on him by or under the Constitution on the aid and
advice of his Council of Ministers save in spheres where the
Governor is required by or under the Constitution to exercise
his functions in his discretion.
30. In all cases in which the President or the Governor
exercises his functions conferred on him by or under the
Constitution with the aid and advice of his Council of
Ministers he does so by making rules for convenient
transaction of the business of the Government of India or the
Government of the State respectively or by allocation among
his Ministers of the said business, in accordance with Articles
77(3) and 166(3) respectively. Wherever the Constitution
requires the satisfaction of the President or the Governor for
the exercise of any power or function by the President or the
Governor, as the case may be, as for example in Articles 123,
213, 311(2) proviso (c), 317, 352(1), 356
and 360 the
satisfaction required by the Constitution is not the personal
satisfaction of the President or of the Governor but is the
satisfaction of the President or of the Governor in the
constitutional sense under the Cabinet system of Government.
The reasons are these. It is the satisfaction of the Council of
Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions.
Neither Article 77(3) nor Article 166(3) provides for any
delegation of power. Both Articles 77(3) and 166(3) provide
that the President under Article 77(3) and the Governor under
Article 166(3) shall make rules for the more convenient
transaction of the business of the Government and the
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allocation of business among the Ministers of the said
business. The Rules of Business and the allocation among
the Ministers of the said business all indicate that the decision
of any Minister or officer under the Rules of Business made
under these two articles viz. Article 77(3) in the case of the
President and Article 166(3) in the case of the Governor of
the State is the decision of the President or the Governor
respectively.
32. It is a fundamental principle of English Constitutional
law that Ministers must accept responsibility for every executive
act. In England the Sovereign never acts on his own
responsibility. The power of the Sovereign is conditioned by
the practical rule that the Crown must find advisers to bear
responsibility for his action. Those advisers must have the
confidence of the House of Commons. This rule of English
Constitutional law is incorporated in our Constitution. The
Indian Constitution envisages a Parliamentary and
responsible form of Government at the Centre and in the States
and not a Presidential form of Government. The powers of
the Governor as the constitutional head are not different.
33. This Court has consistently taken the view that the powers
of the President and the powers of the Governor are similar
to the powers of the Crown under the British Parliamentary
system. (See Ram Jawaya Kapur v. State of Punjab, A.
Sanjeevi Naidu v. State of Madras4, U.N.R. Rao v. Indira
Gandhi5).
In Ram Jawaya Kapur case Mukherjea, C.J.
speaking for the Court stated the legal position as follows.
The Executive has the primary responsibility for the
formulation of governmental policy and its transmission into
law. The condition precedent to the exercise of this
responsibility is that the Executive retains the confidence of
the legislative branch of the State. The initiation of legislation,
the maintenance of order, the promotion of social and
economic welfare, the direction of foreign policy, the carrying
on of the general administration of the State are all executive
functions. The Executive is to act subject to the control of the
Legislature. The executive power of the Union is vested in the
President. The President is the formal or constitutional head
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of the Executive. The real executive powers are vested in the
Ministers of the Cabinet. There is a Council of Ministers with
the Prime Minister as the head to aid and advise the President
in the exercise of his functions.”
92. It is well settled that 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.  There cannot be any dispute to
the proposition as laid down by this Court in Shamsher Singh (supra)
and followed thereafter in number of cases. Whether the “aid and advice”
as used in Article 239AA(4) has to be given the same meaning as is
contained in Article 163 and Article 74 is the question to be answered.
The appellant’s case is that Constitution scheme as delineated in Article
239AA itself having accepted Westminster model of Governing system,
“aid and advice” of the Council of Ministers is binding on the LG and he
cannot act contrary to the aid and advice and is bound to follow the aid
and advice.  It is submitted that any other interpretation shall run contrary
to the very concept of Parliamentary democracy, which is basic feature
of the Constitution.  There could have been no second opinion had the
proviso to sub-clause(4) of Article 239AA was not there.  The aid and
advice as given by Council of
Ministers as referred to in sub-clause(4)
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.  It is relevant to note that the scheme which is
reflected 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.  Section 44 of the Act is quoted below:-
“There shall be a Council of Ministers in each Union Territory
with the Chief Minister at the head to aid and advise the
Administrator in the exercise of his functions in relation to
matters with respect to which the Legislative Assembly of the
Union Territory has power to make laws except in so far as
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he is required by or under this Act to act in his discretion or
by or under any law to exercise any judicial or quasi-judicial
functions.
Provided that in case of difference of opinion between the
Administrator and his Ministers on any matter, the
Administrator shall refer it to the President for decision and
act according to the decision given thereon by the President,
and pending such decision, it shall be competent for the
Administrator in any case where the matter in his opinion is
so urgent that it is necessary for him to take immediate action,
to take such action or to give such direction in the matter as
it deems necessary”.
93. Thus, 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, we are not persuaded to accept 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.
94. Another issue which needs
consideration is the meaning of
the word “any matter” as occurring in first sentence of the proviso to
sub-clause(4).  Another issue which needs to be considered in this context
is as to whether the operation of the proviso to sub-clause(4) is confined
to only few categories of cases as contended by appellant or the proviso
can be relied by Lieutenant Governor in all executive decisions taken by
Council of Ministers.  According to appellants, the proviso operates in
the following areas, when the decision of the Council of Ministers of the
NCTD:-
a.  is outside the bounds of executive power under Article
239AA(4);
b.  impedes or prejudices the lawful exercise of the executive
power of the Union;
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c.   is contrary to the laws of the Parliament;
d.   falls within Rule 23 matters such as -
i.   matters which affect the peace and tranquillity of the Capital;
ii.  interests of any minority community;
iii. relationship with the higher judiciary;
iv. any other matters of administrative importance which the
Chief Minister may consider necessary.
95. Thus, appellants contended that apart from above categories
mentioned above, proviso has no application in any other matter.  We
are not able to read any such restriction in the proviso as contended by
the appellants.  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.  Sub-clause(3)(a) reads “subject to the provisions
of this Constitution, the Legislative Assembly shall have power to make
laws for the whole or any part of the National Capital Territory with
respect to any of the matters stated in the State List or in the Concurrent
List in so far as any such matter is applicable to Union
Territories……………”. Further, sub-clause(b) provides “Nothing in sub-
clause(a) shall derogate from the powers of Parliament under the
Constitution to make laws with respect to any matter for a Union Territory
or any part thereof”.  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), we are of the view that similar interpretation has to be given
to the same word used in earlier part of the same Article.
96. In this context, we refer to Tej Kiran Jain and Others Vs.
N. Sanjiva Reddy and Others, (1970) 2 SCC 272.  In the above case,
this Court had occasion to consider the word “any thing” as used in
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Article 105(2) of the Constitution of India. This Court stated following in
Paragraph 8:-
“8. In our judgment it is not possible to read the provisions of
the article in the way suggested. The article means what it
says in language which could not be plainer. The article
confers immunity inter alia in respect of “anything said ... in
Parliament”. The word “anything” is of the widest import and
is equivalent to “everything”. The only limitation arises from
the words “in Parliament” which means during the sitting of
Parliament and in the course of the business of Parliament.
We are concerned only with speeches in Lok Sabha. Once it
was proved that Parliament was sitting and its business was
being transacted, anything said during the course of that
business was immune from proceedings in any Court this
immunity is not only complete but is as it should
be……………………….”
97. From the above discussions, it is thus 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.  We are of the view that 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.
98. The submission of the appellants that proviso to sub-clause(4)
of Article 239AA envisages an extreme and unusual situation and is not
meant to be a norm, is substantially correct. 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.  Although, it was
contended by the appellant that Article 239 is not applicable with regard
to NCTD after Article 239AA has been inserted in the Constitution.
The above submission cannot be accepted on account  of the express
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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.  Article
239AB in turn refers to Article 239. The provisions contained in Part
VIII of the Constitution 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.
Whether concurrence of Lieutenant Governor is required
on executive decision of GNCTD.
99.  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 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.
100. 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.
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Communication to the LG, its purpose and object
101. The scheme of 1991 Act clearly delineates that LG has to be
informed of all proposals, agendas and decisions taken by the Council of
Minister/Ministers. Section 44 deals with the conduct of business which
is to the following effect:
“44.Conduct of business :
(1) The President shall make rules : 
(a)   for the allocation of business to the Ministers in so far
as it is business with respect to which the Lieutenant
Governor is required to act on the aid and advice of his
Council of Ministers; and
(b)  for the more convenient transaction of business with
the ministers, including the procedure to be adopted in
the case of a difference of opinion between the
Lieutenant Governor and the Council of Ministers or a
Minister.
(2) Save as otherwise provided in this Act, all executive action
of Lieutenant Governor whether taken on the advise of
his Ministers or otherwise shall be expressed to be taken
in the name of the Lieutenant Governor. 
(3) Orders and other instruments made and executed in the
name of the Lieutenant Governor shall be authenticated
in such manner as may be specified in rules to be made
by the Lieutenant Governor and the validity of an order
or instrument which is so authenticated shall not be
called in question on the ground that it is not an order
or instrument made or executed by the Lieutenant
Governor.”
102. Under Section 45, Chief Minister is to furnish
information to
the LG about all decisions of the Council of Ministers relating to the
administration of the affairs of the Capital and the proposals for legislation
and to furnish such information as may be called for by the LG. Section
45 is as follows:
“45. Duties of Chief Minister as respects the furnishing of
information to the Lieutenant Governor, etc. :
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It shall be the duty of the Chief Minister –
(a) to communicate to the Lieutenant Governor all decisions
of the Council of Ministers relating to the administration of
the affairs of the Capital and proposals for legislation;
(b) to furnish such information relating to the administration
of the affairs of the Capital and proposals for legislation as
Lieutenant Governor may call for, and
(c) if the Lieutenant Governor so requires, to submit for the
consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not
been considered by the Council.”
103. Rules have been framed under Section 44 of 1991 Act,
namely, 1993 Rules, which throw considerable light over the actual
functioning of GNCTD and LG. Rule 9 sub-rule (2) provides that if it is
decided to circulate any proposal, the Department to which it belongs,
shall prepare a memorandum setting out in brief the facts of the proposal,
the points for decision and the recommendations of the Minister in charge
and when the same is circulated to the Ministers, simultaneously a copy
thereof is to be sent to the LG. Rule 10 is as follows:
“10. (1) While directing that a proposal shall be circulated,
the Chief Minister may also direct, if the matter be of urgent
nature, that the Ministers shall communicate their opinion to
the Secretary to the Council by a particular date, which shall
be specified in the memorandum referred to in rule 9.
(2) If any Minister fails
to communicate his opinion to the
Secretary to the Council by the date so specified in the
memorandum, it shall be assumed that he has accepted the
recommendations contained therein.
(3) If the Minister has accepted the recommendations
contained in the memorandum or the date by which he was
required to communicate his opinion has expired, the Secretary
to the Council shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if
he has no observation to make, he shall return the proposal
with his orders thereon to the Secretary to the Council.
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(5) On receipt of the proposal, the Secretary to the Council
shall communicate the decision to the Lieutenant Governor
and pass on the proposal to the Secretary concerned who
shall thereafter take necessary steps to issue the orders unless
a reference to the Central Government is required in
pursuance of the provisions of Chapter V.”
104. The above provision also indicates that after proposal is
accepted by the Chief Minister, the same shall be communicated to the
LG and only thereafter necessary step to issue the orders is to be taken
provided no reference is made to the Central Government by the LG
under Chapter V of the Rules.
105. Rule 13 sub-rule (3) provides that an agenda showing the
proposals to be discussed in a meeting of the Council has been approved
by the Chief Minister shall be sent to the LG. The agenda approved by
the Chief Minister shall be sent by the Secretary to the Council, to the
LG. Rule 13 sub-rule (3) is as follows:
“Rule 13(3) After an agenda showing the proposals to be
discussed in a meeting of the Council has been approved by
the Chief Minister, copies thereof, together with copies of such
memoranda as have not been circulated under rule 11, shall
be sent by the Secretary to the Council, to the Lieutenant
Governor, the Chief Minister and other Ministers, so as to
reach them at least two days before the date of 7 such meeting.
The Chief Minister may, in case of urgency, curtail the said
period of two days.”
106. Rule 14 again provides that decisions taken by the Council
on each proposal shall be communicated to the LG. Standing orders
issued by the Minister-in-charge for the disposal of proposals or matters
in his Department are also required to be communicated to LG, as required
by Rules 15 and 16.
107.  Rule 19 sub-rule (5) empowers the LG to call for papers
relating to any proposal or matter in any Department and such requisition
shall be complied with by the Secretary to the Department concerned.
108. Rule 23 enumerates certain matters which are to be submitted
to LG before issuing any orders thereon. Rule 23 is as follows:
“23. The following classes of proposals or matters shall
essentially be submitted to the Lieutenant Governor through
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the Chief Secretary and the Chief Minister before issuing any
orders thereon, namely:
     (i) matters which affect or are likely to affect the peace
and tranquility of the capital;
     (ii) matters which affect or are likely to affect the interest
of any minority community, Scheduled Castes and backward
classes;
    (iii) matters which affect the relations of the Government
with any State Government, the Supreme Court of India or
the High Court of Delhi;
   (iv) proposals or matters required to be referred to the
Central Government under the Act or under Chapter V;
   (v) matters pertaining to the Lieutenant Governor’s
Secretariat and personnel establishment and other matters
relating to his office;
   (va) matters on which Lieutenant Governor is required to
make order under any law or instrument in force;
   (vi) petitions for mercy from persons under sentence for
death and other important cases in which it is proposed to
recommend any revision of a judicial sentence;
   (vii) matters relating to summoning, prorogation and
dissolution of the Legislative Assembly, removal of
disqualification of voters at elections to the Legislative
Assembly, Local Self Government Institutions and other matters
connected with those; and
   (viii) any other proposals or matters of administrative
importance which the Chief Minister may consider necessary.
109. Under Rule 24, the LG is empowered to require any order
passed by the Minister-in-charge to be placed before the
Council for
consideration.
110. Rule 25 obliges the Chief Minister to furnish to the LG such
information relating to the administration of the Capital and proposals
for legislation as the LG may call for.
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111.  Rule 49 deals with the difference of opinion between the LG
and Minister in regard to any matter, whereas Rule 50 deals with
difference of opinion between the LG and the Council with regard to
any matter. Rules 49 and 50 are as follows:
“49. In case of difference of opinion between the Lieutenant
Governor and a Minister in regard to any matter, the Lieutenant
Governor shall endeavour by discussion on the matter to settle
any point on which such difference of opinion has arisen.
Should the difference of opinion persist, the Lieutenant
Governor may direct that the matter be referred to the Council
50. In case of difference of opinion between the Lieutenant
Governor and the Council with regard to any matter, the
Lieutenant Governor shall refer it to the Central Government
for the decision of the President and shall act according to
the decision of the President.”
112. Rule 49 enable and oblige the LG to discuss the matter when
there is some difference with decision of a Minister.  The discussion to
sort out difference and to arrive at an acceptable course of action is
always welcome and is a measure employed in all organisational
functioning.
113. 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 reference to the President. As
observed above 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). We have already
observed that the powers given in proviso to sub-clause (4) is not to be
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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.
114. Learned Additional Solicitor General has submitted before
us that in the last few years there have been very few references by the
LG in exercise of powers under proviso to sub-clause (4) of Article
239AA. Rule 14 sub-rule (2) of 1993 Rules empowers the Minister
concerned to take necessary action to give effect to the decision of the
Council after decision has been communicated to the LG. The purpose
of communication is to enable the LG to discharge obligation to oversee
and scrutinise the decision. Although, there is no indication in the 1993
Rules as to after communication of the decisions of the Council as to
what stage the decisions are to be implemented. As observed no
concurrence is required on the decisions and communication is only for
the purpose of enabling the LG to formulate opinion as to whether there
is any such difference which may require reference.   Only a reasonable
time gap is to elapse, which is sufficient to the LG to scrutinise the
decision. It is for the LG and the Council of Ministers to formulate an
appropriate procedure for smooth running of the administration decisions
which can very well be implemented by the GNCTD immediately after
the decisions are communicated to LG and are “seen” by the LG. When
LG has seen a decision and does not decide to make a reference, the
decision has to
be implemented by all means. We are, thus, of the view
that 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.
115. The 1993 Rules provide that Chief Secretary and the Secretary
of the Department concerned are severally responsible for the careful
observance of these Rules and when either of them considers that there
has been any material departure, he shall bring it to the notice of the
Minister-in-charge, Chief Minister and the LG. Rule 57 is as follows:
“57. The Chief Secretary and the Secretary of the Department
concerned are severally responsible for the careful observance
of these rules and when either of them considers that there
has been any 20 material departure from these rules, he shall
personally bring it to the notice of  the Minister-in-charge,
Chief Minister and the Lieutenant Governor.”
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116. 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.
117. I have perused the elaborate opinion of My Lord, the Chief
Justice with which I substantially agree, but looking to the importance of
the issues, I have penned my own views giving reasons for my conclusions.
118. I have also gone through the well researched and well
considered opinion of Brother Justice D.Y. Chandrachud. The view
expressed by Justice Chandrachud are substantially the same as have
been expressed by me in this judgment.
119. In view of the foregoing discussions we arrive on the following
conclusions on the issues which have  arisen before us:
CONCLUSIONS
I. The interpretation of the Constitution has to be purposive taking
into
consideration the need of time and Constitutional principles. The
intent of the Constitution framers, the object and reasons of a Constitutional
Amendment always throw light on the Constitutional provisions. For
adopting the purposive interpretation of a particular provision the express
language employed cannot be given a complete go-bye.
II. The Parliament has power to make laws for NCTD in respect
of any of the matters enumerated in State List and Concurrent List. The
Legislative Assembly of NCTD has also legislative power with respect
to matters enumerated in the State List (except excepted entries) and in
the Concurrent List.
III. Executive power is co-extensive with the legislative power.
Legislative power is given to give effect to legislative enactments. The
Policy of legislation can be given effect to only by executive machinery.
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IV. When the Constitution was enforced, executive power of Union
in reference to Part C States with regard to Concurrent List was not
excluded. Part C States having been substituted by 7th Constitution
Amendment as Union Territories. The word ‘State’ as occurring in proviso
to Article 73 after 7th Constitution Amendment cannot be read as including
Union Territory. Reading the word ‘Union Territory’ within the word
‘State’ in proviso to Article 73 shall not be in consonance with scheme
of Part VIII (Union Territories) of the Constitution.
V. Executive power of the Union is co-extensive on all subjects
referable to List II and III on which Legislative Assembly of NCTD has
also legislative powers.
VI. The “aid and advice” given by Council of Ministers as referred
to in sub-clause (4) of Article 239AA is binding on  the LG unless he
decides to exercise his power given in proviso to sub-clause (4) of Article
239AA.
VII. The Legislative Assembly of NCTD being representing the
views of elected representatives, their opinion and decisions have to be
respected in all cases except where LG decides to make a reference to
the President.
VIII. The power given in proviso to sub-clause (4) to LG is not to
be exercised in a routine manner rather it is to be exercised by the LG
on valid reasons after due consideration, when it becomes necessary to
safeguard the interest of the Union Territory.
IX. For the Executive decisions taken by the Council of Ministers/
Ministers of
GNCTD, proviso to sub-clause (4) gives adequate safeguard
empowering the LG to make a reference to the President in the event
there is difference of opinion between decisions of the Ministers and the
LG, but the Constitutional Scheme does not suggest that the decisions by
the Council of Ministers/Ministers require any concurrence of the LG.
X. The scheme as delineated by 1991 Act and 1993 Rules  clearly
indicates that LG has to be kept informed of all proposals, agendas 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 so as to enable him
to exercise the powers as conceded to him under proviso to sub-clause
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(4) as well as under 1991 Act and 1993 Rules. The purpose of
communication is not to obtain concurrence of LG.
XI. From persons holding high office, it is expected that they shall
conduct themselves in faithful discharge of their duties so as to ensure
smooth running of administration so that rights of all can be protected.
120. We having answered the constitutional issues raised before
us in the above manner let these matters be now placed before the
appropriate Bench for hearing after obtaining orders from Hon’ble the
Chief Justice.
Nidhi Jain
                           Matter to be placed before appropriate
              regular Bench.