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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loop of the various proposals, agendas and decisions taken by the Council
of Ministers. However, a careful perusal of these rules nowhere suggests
that the communication to the Lieutenant Governor is to obtain his
concurrence or permission. The TBR, 1993 simply reflect the scheme
envisaged for the governance of NCT of Delhi wherein just as an
administrator in other UTs has to be apprised, likewise the Lieutenant
Governor in Delhi is also to be informed and notified about the business
being conducted.
264. The idea behind the aforesaid rules is just to keep the
Lieutenant Governor notified of the proposals, agendas and decisions so
that he is acquainted with the business carried out by the Council of
Ministers. The said view is evident from the various rules which employ
the words ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded
to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor and
‘cause to be furnished to the Lieutenant Governor’.
265. Thus, the irresistible conclusion is that the Council is only
required to communicate and inform its various proposals, agendas and
decisions to the Lieutenant Governor so as to keep him apprised and to
enable him to scrutinize the said proposals, agendas and decisions in
order to exercise his powers as bestowed upon him under clause (4) of
Article 239AA of the 1991 Act read with Rule 50 of the TBR, 1993.
266. It has to be clearly stated that requiring prior concurrence of
the Lieutenant
Governor would absolutely negate the ideals of
representative governance and democracy conceived for the NCT of
Delhi by Article 239AA of the Constitution. Any view to the contrary
would not be in consonance with the intention of the Parliament to treat
Delhi Government as a representative form of government.
267. The said interpretation is also in tune with our constitutional
spirit which ensures that the voice of the citizens does not go unrecognized
while making laws and this is only possible if the agency enacting and
enforcing the laws comprises of the elected representatives chosen by
the free will of the citizens. It is a well recognized principle of a true
democracy that the power shall not remain vested in a single person and
it is absolutely essential that the ultimate say in all matters shall vest with
the representative Government who are responsible to give effect to the
wishes of the citizens and effectively address their concerns.
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268. 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. At the cost of repetition, we may reiterate that 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.
269. We had earlier stated that Mr. Maninder Singh, learned
Additional Solicitor General, had urged that the report of the Balakrishnan
Committee should be taken aid of to interpret the constitutional provision
and for the said purpose, he had placed reliance on Maumsell v. Olins92,
Eastman Photographic Materials Company v. Comptroller-General
of Patents, Designs and Trademarks93, Tikri Banda Dullewe v.
Padma Rukmani Dullewe94, Black Clawson International Ltd. v.
Papierwerke Waldhof-Aschaffenburg95, R.S. Nayak v. A.R. Antulay96,
Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi97
and TMA Pai Foundation v. State of Karnataka98.  He had laid
emphasis on paragraph 34 of the judgment in A.R. Antulay (supra).
The relevant part of the said paragraph reads as follows:-
“34.
…the basic purpose underlying all canons of construction
is the ascertainment with reasonable certainty of the intention of
Parliament in enacting the legislation. Legislation is enacted to
achieve a certain object. The object may be to remedy a mischief
or to create some rights, obligations or impose duties. Before
undertaking the exercise of enacting a statute, Parliament can be
taken to be aware of the constitutional principle of judicial review
92 [1975] AC 373
93 (1989) AC 571
94 (1969) 2 AC 313
95 (1975) AC 591
96 (1984) 2 SCC 183
97 (2002) 3 SCC 676
98 (2002) 8 SCC 481
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meaning thereby the legislation would be dissected and subjected
to microscopic examination. More often an expert committee or
a joint parliamentary committee examines the provisions of the
proposed legislation. But language being an inadequate vehicle of
thought comprising intention, the eyes scanning the statute would
be presented with varied meanings. If the basic purpose underlying
construction of a legislation is to ascertain the real intention of the
Parliament, why should the aids which Parliament availed of such
as report of a special committee preceding the enactment, existing
state of law, the environment necessitating enactment of legislation,
and the object sought to be achieved, be denied to court whose
function is primarily to give effect to the real intention of the
Parliament in enacting the legislation. Such denial would deprive
the Court of a substantial and illuminating aid to construction.
Therefore, departing from the earlier English decisions we are of
the opinion that reports of the committee which preceded the
enactment of a legislation, reports of joint parliamentary committee,
report of a commission set up for collecting information leading to
the enactment are permissible external aids to construction.”
270. There can be no quarrel about the proposition that the reports
of the Committee enacting a legislation can serve as an external aid for
construing or understanding the statute.  However, in the instant case,
as we have
elaborately dealt with the meaning to be conferred on the
constitutional provision that calls for interpretation, there is no necessity
to be guided by the report of the Committee.
U. Constitutional renaissance:
271. Before we proceed to record our conclusions, we think it
apposite to reflect on a concept that illumines the basic tenet of
constitutional governance having requisite veneration for constitutional
philosophy and its applicability in the present context.
272. Though ordinarily the term ‘renaissance’ is used in the context
of renewed activity especially pertaining to art and literature, yet the
said word is not alien to the fundamental meaning of life in a solid civilized
society that is well cultivated in culture.  And, life, as history witnesses,
gets entrenched in elevated civilization when there is fair, appropriate,
just and societal interest oriented governance.  In such a situation, no
citizen feels like a subject and instead has the satisfaction that he is a
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constituent of the sovereign. When the citizens feel that there is
participatory governance in accordance with the constitutionally envisaged
one, there is prevalence of constitutional governance.
273. This prevalence is the recognition and acceptance of
constitutional expectation from the functionaries created by it.  It is to
remain in a constant awakening as regards the text, context, perspective,
purpose and the rule of law. Adherence to rationality, reverence for
expected pragmatic approach on the bedrock of the constitutional text,
context and vision and constant reflection on the valid exercise of the
power vested tantamounts to resurgent constitutionalism.  It may be
understood in a different manner. Our 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.  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.
274. Let us come to the present context and elaborate the concept.
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.
275. The goal is to avoid any disharmony and anarchy.  Sustenance
of constitutionally conferred trust, recognition and acceptance of the
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principle of constitutional governance, adherence to the principles and
norms which we have discussed earlier 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.
When we say renaissance, we do not mean revival of any classical note
with a sense of nostalgia but true blossoming of the constitutional ideals,
realization and acceptance of constitutional responsibility within the
boundaries of expression and silences and sincerely accepting the summon
to be obeisant to the constitutional conscience with a sense of
reawakening to the constitutional vision.
276. That is why, the 1991 Act and the TBR, 1993 conceive of
discussion, deliberation and dialogue. The exercise of entitlement to differ
has to be based on principle and supported by cogent reasons. But, the
primary effort has to be to arrive at a solution. That is the constitutional
conduct of a constitutional functionary.
V. The conclusions in seriatim:
277. In view of our aforesaid analysis, we record our conclusions
in seriatim:-
(i) 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 our
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.
(ii) 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.
(iii) Constitutional morality, appositely understood, means the
morality that has inherent elements in the constitutional norms
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and the conscience of the Constitution. Any act to garner
justification must possess the potentiality to be in harmony with
the constitutional impulse. In order to realize our 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.
(iv) All the three organs of the State must remain true to the
Constitution by upholding the trust reposed by the Constitution in
them. 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 the principles of constitutional objectivity and
symphonious with the spirit of the Constitution.
(v) 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.
(vi)   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.
(vii) 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.
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(viii) 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. 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.
(ix) The 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.
(x) There is no dearth of authorities with regard to the method
and approach to be embraced by Constitutional Courts while
interpreting the constitutional provisions. Some lay more emphasis
on one approach over the other, while some emphasize that a
mixed balance resulting in a unique methodology shall serve as
the best tool. In spite of diverse views on the said concept, what
must be kept primarily in mind is that the 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.
(xi) 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 not shy away
from performing this foremost duty to achieve constitutional
functionalism by adopting a pragmatic approach.  It is, in a way,
exposition of judicial sensibility to the functionalism of the
Constitution which we call constitutional pragmatism. The spirit
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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.
(xii) In the light of the ruling of the nine-Judge Bench in New
Delhi Municipal Corporation (supra), it is clear as noon day
that by no stretch of imagination, NCT of Delhi can be accorded
the status of a State under our present constitutional scheme.
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.
(xiii) 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, 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.
(xiv) 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.
(xv) A conjoint reading of clauses (3)(a) and (4) of Article 239AA
divulges that the executive power of the Government of NCTD is
co-extensive with the legislative power of the Delhi Legislative
Assembly and, accordingly, the executive power of the Council
of Ministers of Delhi spans over all subjects in the Concurrent
List and all, but three excluded subjects, in the State List. However,
if the Parliament makes law in respect of certain subjects falling
in the State List or the Concurrent List, the executive action of
the State must conform to the law made by the Parliament.
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(xvi) 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.
(xvii) 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 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.
(xviii) The words “any matter” employed in the proviso to clause
(4) of Article 239AA cannot be inferred to mean “every matter”.
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 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.
(xix) The difference of opinion between the Lieutenant Governor
and the Council of Ministers should have a sound rationale and
there should not be exposition of the phenomenon of an
obstructionist but reflection of the philosophy of affirmative
constructionism and profound sagacity and judiciousness.
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(xx) 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 239AA.
(xxi) 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 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.
(xxii)    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.
(xxiii) Fulfillment of constitutional idealism ostracizing anything
that is not permissible by the language of the provisions of the
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Constitution and showing veneration to its sense, spirit and silence
is constitutional renaissance. It has to be remembered that our
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.
278. The Reference is answered accordingly. Matters be placed
before the appropriate regular Bench.
DR. D. Y. CHANDRACHUD, J.
INDEX
A) Introduction
B) Constitutional Morality
C) Constitutional Interpretation
D) Part VIII of The Constitution: The Union Territories
E) Cabinet Form of Government
    - Collective Responsibility
  - Aid and Advice
F) The Nature of Executive Power
G) Constitutional History of the NCT
 - The Government of Part C States Act, 1951
 - The Government of Union Territories Act, 1963
 - The Delhi Administration Act, 1966
 -
The Balakrishnan Committee
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H) NCT: A Special Class among Union Territories?
I) The  Government  of  National  Capital  Territory  of  Delhi Act,
    1991
J) The Transaction of Business Rules, 1993
K) Precedents
  - Literal Interpretation
  - Relationship between Centre and Union Territories
  - Decision in NDMC
  - General Clauses Act
  - “Insofar as any such matter is applicable to Union territories”
L) Construction of the proviso to Article 239AA(4)
M) Conclusions
A Introduction
1. A batch of petitions in the Delhi High Court addressed unresolved
issues between the Lieutenant Governor of the National Capital Territory
and its Council of Ministers headed by the Chief Minister.  The judgment
of the Delhi High Court, delivered on 4 August 2016, travelled to this
Court.  When the Civil Appeals were heard, a Bench consisting of
Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in
an order dated 15 February 2017 was of the opinion that the appeals
should be heard by a Constitution Bench as substantial questions of law
about the interpretation of Article 239AA of the Constitution are involved.
2. This batch of cases is about the status of Delhi, after the Sixty-
ninth constitutional amendment1, but more is at stake.  These cases involve
vital questions about democratic governance and the role of institutions
in fulfilling constitutional values. The Constitution guarantees to every
individual the freedom to adopt a way of life in which
liberty, dignity and
autonomy form the core. The Constitution pursues a vision of fulfilling
these values through a democratic polity. The disputes which led to these
cases tell us how crucial institutions are to the realization of democracy.
It is through them that the aspirations of a democratic way of life, based
on the rule of law, are fulfilled.  Liberty, dignity and autonomy are
1The Constitution (Sixty Ninth Amendment) Act, 1891
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constraining influences on the power of the state. Fundamental human
freedoms limit the authority of the State.  Yet the role of institutions in
achieving democracy is as significant. Nations fail when institutions of
governance fail. The working of a democratic institution is impacted by
the statesmanship (or the lack of it) shown by those in whom the electorate
vests the trust to govern.  In a society such as ours, which is marked by
a plurality of cultures, a diversity of tradition, an intricate web of social
identity and a clatter of ideologies, institutional governance to be robust
must accommodate each one of them. Criticism and dissent form the
heart of democratic functioning. The responsiveness of institutions is
determined in a large measure by their ability to be receptive to
differences and perceptive to the need for constant engagement and
dialogue.  Constitutional skirmishes are not unhealthy. They test the
resilience of democracy.  How good a system works in practice must
depend upon the statesmanship of those who are in decision making
positions within them.  Hence, these cases are as much about interpreting
the Constitution as they are about the role of institutions in the structure
of democratic governance and the frailties of those who must answer
the concerns of citizens.
3. In the first of a series of articles in the New York Times of 14
December 2017, David Brooks laments events which occurred in various
parts of the world, casting a
shadow on democracy.  Liberal democracy
seemed to triumph with the fall of the Berlin wall in 1989 and the
dismantling of apartheid in South Africa. Many of those aspirations are
continuously under challenge. The foundation for addressing the
aspirations of a democratic spring  are  reflected  in  Brooks’article titled
– ironically – “the Glory of Democracy”.  Drawing from Thomas Mann’s
“The Coming Victory of Democracy” (1938), he has this to say:
“Democracy, Mann continues, is the only system built on respect
for the infinite dignity of each individual man and woman, on each
person’s moral striving for freedom, justice and truth.  It would be
a great error to think of and teach democracy as a procedural or
political system, or as the principle of majority rule.
It is a “spiritual and moral possession.”  It is not just rules; it is a
way of life.  It encourages everybody to make the best of their
capacities – holds that we have a moral responsibility to do so.  It
encourages the artist to seek beauty, the neighbour to seek
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community, the psychologist to seek perception, the scientist to
seek truth.
Monarchies produce great paintings, but democracy teaches
citizens to put their art into action, to take their creative impulses
and build a world around them. “Democracy is thought; but it is
thought related to life and action.” Democratic citizens are not
just dreaming; they are thinkers who sit on the town council.  He
quotes the philosopher Bergson’s dictum: “Act as men of thought,
think as men of action.”2
While we have to interpret the Constitution in deciding this reference, it
is well to remind ourselves that how citizens respond to their statesmen
has a powerful role in giving meaning to the fine print of law.
B Constitutional Morality
4. The Constitution was adopted in an atmosphere of expectation
and idealism. The members of the Constituent Assembly had led the
constitutional project with a commitment to the future of a nascent nation.
“India’s founding fathers and mothers”, Granville Austin observes,
“established in the Constitution both the nation’s ideals and the institutions
and processes for achieving them”.3 These ideals were “national unity
and integrity and a democratic and equitable society”4. The Constitution
was designed “to break the shackles of traditional social hierarchies and
to usher in a new era of freedom, equality, and justice”5. All this was to
be achieved through a democratic spirit using constitutional and
democratic institutions.6
5. Democracy is not limited to electing governments. It generates
aspirations and inspires passions. Democracy is based on “the recognition
that there is no natural source of authority that can exercise power over
individuals”.7 When India attained independence, it faced a major
2  David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017),
available at https://www.nytimes.com/2017/12/14/opinion/democracy-thomas-
mann.html
3  Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford Univer-
sity Press (1966), page xi
4  Ibid
5  Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University
Press (2008), at page 15
6  Granville Austin (Supra Note 3)
7  Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages
35-36
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dilemma. Democracy as an ideal had developed in the course of the
nationalist struggle against colonial rule. Democratic political institutions
were still to develop, at any rate fully:
“Democracy emerged in India out of a confrontation with a power
imposed from outside rather than an engagement with the
contradictions inherent in Indian society … In the West, the
democratic and industrial revolutions emerged together, reinforcing
each other and slowly and steadily transforming the whole of
society. The economic and social preconditions for the success of
democracy grew along with, and sometimes in advance of, the
political institutions of democracy. In India, the political argument
for democracy was adopted by the leaders of the nationalist
movement from their colonial rulers and adapted to their immediate
objective which was freedom from colonial rule. The building of
new political institutions took second place, and the creation of
the economic and social conditions for the successful operation
of those institutions, such as education, health care, and other
social services, lagged well behind.”8
6. The framers of the Constitution were aware of the challenges
which the newly instituted democracy could face. In his address to the
Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only
a top-dressing on an Indian soil, which is essentially undemocratic”.9  To
tackle these challenges, the Constitution envisaged the existence of a
responsible
and representative government. Provisions regarding
administration of democracy were incorporated, in detail, into the
Constitution by the members of the Constituent Assembly. Dr Ambedkar
made an impassioned plea that the core values of Indian democracy, to
be protected and sustained, ought to be guided by the presence of
constitutional morality.
7. While moving the Draft Constitution in the Constituent Assembly
on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote:
“By constitutional morality, Grote meant… a paramount reverence
for the forms of the constitution, enforcing obedience to authority
and acting under and within these forms, yet combined with the
8 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)
9 Constituent Assembly Debates, Vol. 7 (4th November 1948)
10 Ibid
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habit of open speech, of action subject only to definite legal control,
and unrestrained censure of those very authorities as to all their
public acts combined, too with a perfect confidence in the bosom
of every citizen amidst the bitterness of party contest that the
forms of constitution will not be less sacred in the eyes of his
opponents than his own.”
Dr Ambedkar made it clear that constitutional morality was to be
cultivated and learned. Constitutional morality was not a “natural
sentiment” and its diffusion could not be presumed. While highlighting
that the diffusion of constitutional morality is indispensable for “the
peaceful working of the democratic constitution”, Dr Ambedkar
observed that the form of the Constitution had to be in harmony with the
form of its administration:
“One is that the form of administration must be appropriate to and
in the same sense as the form of the Constitution. The other is
that it is perfectly possible to pervert the Constitution,
without changing its form by merely changing its form of
administration and to make it inconsistent and opposed to
the spirit of the Constitution.” (emphasis added)
8. If the moral values of our Constitution were not upheld at every
stage, the text of the Constitution may not be enough to protect its
democratic values. In order to truly understand what constitutional
morality reflects, it is necessary to answer “what it is that the Constitution
is
trying to say” and to identify “the broadest possible range… to fix the
meaning of the text”11. Bhargava’s work titled “Politics and Ethics of
the Indian Constitution”12 focuses on the necessity to identify the moral
values of the Constitution:
“There is… a pressing need to excavate the moral values
embedded in the Constitution, to bring out their connections, and
to identify the coherent or not-so-coherent ethical worldviews
within it. It is not implausible to believe that these values are simply
out there, holding their breath and waiting to be discovered. The
Constitution is a socially constructed object, and therefore it does
not possess the hard objectivity of natural objects. This element
of the Constitution is the ground for contesting interpretations. It
11 Rajiv Bhagava (Supra note 5), at page 6
12 Ibid
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is high time we identified these interpretations and debated their
moral adequacy.”13
9. Constitutional morality does not mean only allegiance to the
substantive provisions and principles of the Constitution. It signifies a
constitutional culture which each individual in a democracy must imbibe.
Pratap Bhanu Mehta identifies certain features of constitutional morality?
chief amongst them being liberal values? which governed the making of
India’s Constitution and created expectations from the polity:
“The Constitution was made possible by a constitutional morality
that was liberal at its core. Not liberal in the eviscerated ideological
sense, but in the deeper virtues from which it sprang: an ability
to combine individuality with mutual regard, intellectualism
with a democratic sensibility, conviction with a sense of
fallibility, deliberation with decision, ambition with a
commitment to institutions, and hope for a future with due
regard for the past and present.”14 (Emphasis supplied)
One of the essential features of constitutional morality, thus, is the ability
and commitment to arrive at decisions on important issues consensually.
It requires that “despite all differences we are part of a common
deliberative enterprise.”15 It envisages partnership and coordination
between various institutions created by the Constitution. Mehta has
underlined the importance of constitutional partnerships by referring to
the working of the Constituent Assembly:
“The
ability to work with difference was augmented by another
quality that is rarer still: the ability to acknowledge true value.
This may be attributed to the sheer intellectualism of so many of
the members. Their collective philosophical depth, historical
knowledge, legal and forensic acumen and sheer command over
language is enviable. It ensured that the grounds of discussion
remained intellectual. Also remarkable was their ability to
acknowledge greatness in others. It was this quality that allowed
Nehru and Patel, despite deep differences in outlook and
temperament, to acknowledge each other. Their statesmanship
was to not let their differences produce a debilitating polarization,
13 Ibid, at page 9
14 Pratap Bhanu Mehta, “What is constitutional morality?”,  Seminar (2010), available at
  http://www.india-seminar.com/2010/615 pratap bhanu mehta.htm.
15 Ibid
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one that could have wrecked India. They combined loyalty and
frankness.”16
10. Constitutional morality places responsibilities and duties on
individuals who occupy constitutional institutions and offices. Frohnen
and Carey formulate the demands of the concept thus:
“Constitutional moralities… can be understood as anticipated
norms of behavior or even duties primarily on the part of individuals
within our constitutional institutions. We use the term morality
and refer to constitutional morality with regard to these norms or
duties principally because of the purpose they serve; they can be
viewed as imposing an obligation on individuals and institutions to
ensure that the constitutional system operates in a coherent way,
consistent with its basic principles and objectives.”17
11. Another major feature of constitutional morality is that it
provides in a Constitution the basic rules which prevent institutions from
turning tyrannical. It warns against the fallibility of individuals in a
democracy, checks state power and the tyranny of the majority.
Constitutional morality balances popular morality and acts as a threshold
against an upsurge in mob rule:
“It is important not to forget that human beings are fallible, that
they sometimes forget what is good for them in the long run, and
that they yield to temptations which bring them pleasure now but
pain later. It is not unknown for people to acquire the mentality of
the mob
and act on the heat of the moment only to rue the
consequences of the decision later. By providing a framework of
law culled over from years of collective experience and wisdom,
constitutions prevent people from succumbing to currently
fashionable whims and fancies. Constitutions anticipate and try to
redress the excessively mercurial character of everyday politics.
They make some dimensions of the political process beyond the
challenge of ordinary politics.”18
12. No explanation of constitutional morality will be complete
without understanding the uniquely revolutionary character of the
16 Ibid
17 Bruce  P.  Frohnen  and  George  W. Carey, “Constitutional Morality and the Rule of
    Law”, Journal of Law and Politics (2011), Vol. 26, at page 498
18 Rajiv Bhagava (Supra note 5), at pages 14-15
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Constitution itself. Granville Austin has referred to the Indian Constitution
as a “social revolutionary” document, the provisions of which are aimed
at furthering the goals of social revolution.19 Austin described the main
features of the Indian Constitution as follows:
“It was to be a modernizing force. Social revolution and
democracy were to be the strands of the seamless web most
closely related. Democracy, representative government,
personal liberty, equality before law, were revolutionary for
the society. Social-economic equitableness as expressed in the
Directive Principles of State Policy was equally revolutionary. So
were the Constitution’s articles allowing abolishing untouchability
and those allowing for compensatory discrimination in education
and employment for disadvantaged citizens.”20 (Emphasis supplied)
The core of the commitment to social revolution, Austin stated, lies in
the Fundamental Rights and in the Directive Principles of State Policy,
which are the “conscience of the Constitution” and connect India’s future,
present, and past.21 Constitutional morality requires the existence of
sentiments and dedication for realizing a social transformation which the
Indian Constitution seeks to attain.
13. Constitutional morality highlights the need to preserve the trust
of the people in institutions of democracy. It encompasses not just the
forms and procedures of the Constitution, but provides an “enabling
framework that allows a society the
possibilities of self-renewal”22. It is
the governing ideal of institutions of democracy which allows people to
cooperate and coordinate to pursue constitutional aspirations that cannot
be achieved single-handedly. Andre Beteille in “Democracy and its
Institutions” (2012) speaks of the significance of constitutional morality:
“To be effective, constitutional laws have to rest on a substratum
of constitutional morality… In the absence of constitutional
morality, the operation of a Constitution, no matter how carefully
written, tends to become arbitrary, erratic, and capricious. It is
not possible in a democratic order to insulate completely the domain
of law from that of politics. A Constitution such as ours is expected
19 Granville Austing (Supra note 3), at pages 63
20 Ibid, at page xiii
21 Ibid, at page 63.
22 Pratap Bhanu Mehta (Supra note 14)
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to provide guidance on what should be regulated by the impersonal
rule of law and what may be settled by the competition for power
among parties, among factions, and among political leaders. It is
here that the significance of constitutional morality lies. Without
some infusion of constitutional morality among legislators, judges,
lawyers, ministers, civil servants, writers, and public intellectuals,
the Constitution becomes a plaything of power brokers.”23
14. Constitutional morality underscores the ethics of politics in a
country. It gives politics the identity to succeed. In his last address to the
Constituent Assembly on November 25, 1949, Dr Ambedkar discussed
the importance of the role of the people and political parties in a
constitutional democracy:
“I feel, however good a Constitution may be, it is sure to turn out
bad because those who are called to work it, happen to be a bad
lot. However bad a Constitution may be, it may turn out to be
good if those who are called to work it, happen to be a good lot.
The working of a Constitution does not depend wholly upon the
nature of the Constitution. The Constitution can provide only the
organs of State such as the Legislature, the Executive and the
Judiciary. The factors on which the working of those organs of
the State depend are the people and the political parties they will
set up as their instruments to carry out their wishes and their
politics.”24
He also
invoked John Stuart Mill to caution the nascent Indian democracy
of the perils of personifying institutions or laying down liberty “at the
feet of even a great man, or to trust him with power which enables him
to subvert their institutions”. In Dr Ambedkar’s words:
“[I]n India, Bhakti or what may be called the path of devotion or
hero-worship, plays a part in its politics unequalled in magnitude
by the part it plays in the politics of any other country in the world.
Bhakti in religion may be a road to the salvation of the soul. But in
politics, Bhakti or hero-worship is a sure road to degradation and
to eventual dictatorship.”25
Institution building is thus a facet of constitutional morality. It envisages
an institutional basis for political behaviour. It involves that the political
23 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)
24 Constituent Assembly Debates, Vol. 11 (25th November, 1949)
25 Ibid
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parties and the political process address issues affecting the public at
large. Constitutional morality reduces the gap between representation
and legitimacy.26 Justice Dipak Misra (as the learned Chief Justice then
was) held in Manoj Narula v Union of India27 that:
“The democratic values survive and become successful where
the people at large and the persons-in-charge of the institution are
strictly guided by the constitutional parameters without paving the
path of deviancy and reflecting in action the primary concern to
maintain institutional integrity and the requisite constitutional
restraints”.
It is only when political conflicts are regulated through negotiations and
accommodation that the enforcement of constitutional principles can be
achieved.
15. 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  fromtearing the soul of the nation apart by
acting as a guiding basis to settle constitutional disputes:
“Of necessity, constitutions are unfinished. What is explicit in the
text rests on implicit understandings; what is stated rests on what
is unstated.”28
16. Constitutional morality provides a principled understanding for
unfolding the work of governance. It is a compass to hold in troubled
waters. It specifies norms for institutions to survive and an expectation
of behaviour that will meet not just the text but the soul of the Constitution.
Our expectations may be well ahead of reality. But a sense of
constitutional morality, drawn from the values of that document, enables
us to hold to account our institutions and those who preside over their
destinies. Constitutional interpretation, therefore, must flow from
constitutional morality.
26  Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta,  The Oxford Handbook of
the Indian Constitution, Oxford University Press (2016), at page 12
27  (2014) 9 SCC 1
28 Martin Lughlin, “The Silences of Constitutions”, International Journal of
Constitutional Law (2019, In Press), available at https://www.jura,uni-freiburg de/de/
institute/rphil/freiburger vortraege/silences-of-constitutions-m-loughlin-
manuskript.pdf
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C Constitutional Interpretation
17. The primary task before the Court here, as in other
constitutional cases, is to interpret the Constitution. This reflects a truism.
For, while deciding what the Constitution means, we must understand
what it says. First and foremost, in understanding the text of the
Constitution, it must be borne in mind that the Constitution is not merely
a legal document. The Constitution embodies a political vision of a plural
democratic polity. This political vision combines with the values which
the founding fathers infused to provide a just social compact in which
individual aspirations for dignity and liberty would be achieved. Hence,
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 values which
the Constitution as a political document incorporates, provide the
foundation for understanding its text. It is in that sense that successive
generations of judges have reminded themselves that it is, after all, a
Constitution that we are expounding. 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.
Constitutional history
embodies events which predate the adoption of the Constitution.
Constitutional history also incorporates our experiences in the unfolding
of the Constitution over the past sixty eight years while confronting
complex social and political problems. Words in a constitutional text have
linkages with the provisions in which they appear. It is well to remember
that each provision is linked to other segments of the document. It is
only when they are placed in the wide canvas of constitutional values
that a true understanding of the text can emerge. The principle that the
text has to be deduced from context reflects the limitations in
understanding the Constitution only as a legal document. To perceive
the Constitution as a purely legal document would be an injustice to the
aspirations of those who adopted it and a disservice to the experience of
our society in grappling with its intractable problems. Justice HR Khanna
in Kesavananda Bharati v State of Kerala29 (“Kesavananda”) held
thus:
“A Constitution encompasses within itself the broad indications
as to how the nation is to march forward in times to come. A
29 AIR (1973) SC 1461
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Constitution cannot be regarded as a mere legal document... A
Constitution must of necessity be the vehicle of the life of a nation.
It has also to be borne in mind that a Constitution is not a gate but
a road. Beneath the drafting of a Constitution is the awareness
that things do not stand still but move on, that life of a progressive
nation, as of an individual, is not static and stagnant but dynamic
and dashful.”
18. The second value which must be borne in mind is that the
Constitution recognises the aspirations of popular sovereignty. As its
Preamble tells us, the document was adopted by “We the People of
India”. The Preamble sets forth at the outset the creation of a “sovereign...
democratic, republic”. It is through the expression of the sovereignty of
the people and on the cornerstone of a democratic and republican form
of government that the Constitution seeks to achieve justice, liberty,
equality and fraternity. The width of our constitutional aspirations finds
abundant reflection in the plurality and diversity of the elements which it
comprehends within justice, liberty, equality and fraternity. Justice
incorporates its social, economic, and political manifestations. Liberty
incorporates freedom of thought, expression, belief, faith and worship.
Equality is defined in its substantive sense to include equality of status
and opportunity. Fraternity seeks to assure dignity to the individual while,
at the same time, ensuring the unity and integrity
of the nation.
19. There are four abiding principles which are essential to
understanding the content of the Constitution. The first is that as a political
document, the Constitution is an expression of the sovereignty of the
people. The second is that the Constitution seeks to achieve its vision of
a political and social ordering on the basis of democracy. A democratic
form of government recognises that sovereignty resides within the people.
Popular sovereignty can exist when democracy is meaningful. The third
principle is that the Constitution adopts a republican form of government
in which the powers of sovereignty are vested in the people and are
exercised directly or through their elected representatives. The fourth,
which is not the least in importance, is the secular ideology of the
Constitution. For, it is on the foundation of a secular order that freedom,
liberty, dignity and equality to every citizen is achieved.
20. These principles, it is well to remind ourselves, are not just
political exhortations. They constitute the essence and substance of the
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Constitution and provide the foundation for the fine print of governance.
It is through the expression of popular sovereignty that the Constitution
has provided an assurance for the enforcement of equality and of equal
protection of the law. The four founding principles constitute the means
of achieving accountability and amenability to the rule of law. The
democratic method of governing the country is a value which is intrinsic
to the Constitution. Democracy as a way of life is also instrumental in
achieving fundamental freedoms which the Constitution assures to each
individual. Each of the four principles has an inseparable connect. They
provide the basis on which the Constitution has distributed legislative
and executive power between the Union and the states. They provide
the foundation for ensuring basic human freedoms in the realisation of
dignity, liberty and autonomy. They embody the architecture for the
governance of the nation. In many respects, the complexity of our
Constitution is a reflection of the intricate cultural and social structures
within Indian society. The Constitution has attempted to bring about an
equilibrium in which a diversity of tradition, plurality of opinion and
variations of culture can co-exist in one nation. To ignore the infinite
variety which underlies our constitutional culture is to risk its cohesion.
The integrity of the nation is founded on accepting and valuing co-
existence.
Constitutional doctrine must be evolved keeping in mind these
principles.
21. Unlike many other constitutional texts in the democratic world,
the Indian Constitution has lived through a multitude of amendments. In
Puttaswamy30, this Court had held:
“The Constitution was drafted and adopted in a historical context.
The vision of the founding fathers was enriched by the histories
of suffering of those who suffered oppression and a violation of
dignity both here and elsewhere. Yet, it would be difficult to dispute
that many of the problems which contemporary societies face
would not have been present to the minds of the most perspicacious
draftsmen. No generation, including the present, can have a
monopoly over solutions or the confidence in its ability to foresee
the future.”
The exercise of the amendatory power cannot be construed as a reflection
of the deficiency of its original text, as much as it is a reflection of the
felt need to create new institutions of governance, recognize new rights
30 (2017) 10 SCC 1
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and to impose restraints upon the assertion of majoritarian power. Over
time, the Constitution was amended to provide constitutional status to
local self-governing bodies, such as the Panchayats in Part IX, the
municipalities in Part IXA and co-operative societies in Part IXB. These
structures of governance have been constitutionally entrenched to
enhance participatory and representative democracy. In other
amendments, new rights have been expressly recognized such as the
right to free and compulsory education for children between the ages of
six and fourteen in Article 21A. As the nation gained sobering experiences
about the excess of political power during the Emergency, the constituent
power responded by introducing limitations (through the Forty Fourth
Amendment) on the exercise of the emergency powers under Article
352 and by circumscribing the power to override elected governments in
the states under Article 356.
22. The basic structure doctrine was evolved by judicial
interpretation in Kesavananda to ensure that the fundamentals of
constitutional governance are not effaced by the exercise of the
constituent power to amend the Constitution. The postulate of the doctrine
is that there are values which are so fundamental and intrinsic to the
democratic way of life, a republican form of government and to the
preservation of basic human freedoms, that these must lie outside the
power of legislative majorities to override by the exercise of constituent
powers. The doctrine was a warning to “a fledgling democracy of the
perils of brute majoritarianism”31. The basic structure doctrine and the
power of judicial review have ensured (in the course of the previous
thirty four years) the preservation of basic constitutional safeguards and
the continuance of constitutional institutions accountable to the sovereignty
of the people. The basic structure doctrine imposes a restraint on the
exercise of the constituent power. Equally, it is necessary to remember
that the exercise of the constituent power may in certain cases be
regarded as enhancing the basic structure. The constituent power
enhances the basic structure when it recognizes new sets of human
freedoms, sets up new structures of representative governance in the
constitutional text or imposes restraints on the power of the state to
override popularly elected institutions. Secularism, which is inherent in
the entire constitutional framework and flows from fundamental rights
31 Raju Ramchandran, “The Quest and the Questions”, Outlook (25 August, 2014),
available at https://www.outlookindia.com/magazine/story/the-quest-and-the-ques-
tions/291655
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guaranteed in Part III, is a part of the basic structure of the Constitution.32
Secularism is based on the foundations of constitutional morality and
reflects the idea of our democracy. The insertion of the word “Secular”
into the Preamble of the Constitution, by the 42nd amendment, did not
redefine the Constitution’s identity. The amendment formally recognized
the bedrock of the constitutional scheme. The amendment solidified the
basic structure of the Constitution.
23. Democracy has been held, by a Constitution Bench of this
Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic
structure of our Constitution. The insertion of Article 239AA by the
exercise of the constituent power is an instance of an amendment elevating
a democratic form of governance to a constitutional status for the National
Capital Territory. In interpreting such exercises of the constituent power
which fortify the basic structure, the meaning of the constitutional text
must be guided by the intent underlying such exercises of the constituent
power. A nine-judge Bench of this Court in I.R. Coelho v State of
Tamil Nadu34 had held thus:
“The Constitution is a living document. The constitutional
provisions have to be construed having regard to the march
of time and the development of law. It is, therefore,
necessary that while construing the doctrine of basic
structure due regard be had to various decisions which led
to expansion and
development of the law. The principle of
constitutionalism is now a legal principle which requires control
over the exercise of Governmental power to ensure that it does
not destroy the democratic principles upon which it is based. These
democratic principles include the protection of fundamental rights.
The principle of constitutionalism advocates a check and balance
model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centers of decision making.
The principle of constitutionalism advocates a check and balance
model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centers of decision making.”
(emphasis supplied)
32  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of
    India, (1994) 3 SCC 1
33 1992 SCC Supl. (2) 651
34  (2007) 2 SCC 1
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It is in this background that it would be necessary to turn to the provisions
of Part VIII of the Constitution.
D Part VIII of The Constitution: The Union Territories
24. Part VIII of the Indian Constitution, prior to 1956, dealt with
Part C of the First Schedule. Part VIII was amended by the Seventh
Amendment to the Constitution in 1956. Simultaneously, the First Schedule
was amended by the Seventh Amendment (together with Article 1). In
place of the Part A, B and C States, the Constitution now provides a
division of the territory of the nation between the States and the Union
Territories. While clause 1 of Article 1 stipulates that India is a Union of
States, clause 2 incorporates the States and the Union Territories of the
First Schedule. The territory of India, as Clause 3 of Article 1 provides,
comprises of :
(i) The territories of the States;
(ii) The Union territories; and
(iii) Territories which may be acquired.
25. Article 239 provides thus:
“239. (1) Save as otherwise provided by Parliament by law, every
Union territory shall be administered by the President acting, to
such extent as he thinks fit, through an administrator to be
appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State as the administrator of an
adjoining Union territory, and where a Governor is so appointed,
he shall exercise his functions as such administrator independently
of
his Council of Ministers.”
Clause 1 of Article 239 has several elements, which are significant to
understanding its content:
(i)    Clause 1, as its opening words indicate, is subject to Parliament
providing “otherwise… by law”;
(ii)  Every Union territory is administered by the President;
(iii)  Administration of a Union territory by the President is to such
extent as the President “thinks fit”;
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(iv) Administration by the President is through the office of an
Administrator; and
(v) The Administrator is appointed by the President with a
designation as he will specify.
Article 239A, which was inserted by the fourteenth amendment to the
Constitution in 1962, provides as follows:
“239A. Creation of local Legislatures or Council of Ministers or
both for certain Union territories.—
(1)  Parliament may by law create for the Union territory of
Puducherry—
(a)   a body, whether elected or partly nominated and partly
elected, to function as a Legislature for the Union
territory, or
(b)   a Council of Ministers,
or both with such constitution, powers and functions, in each
case, as may be specified in the law.
(2)  Any such law as is referred to in clause (1) shall not be
deemed to be an amendment of this Constitution for the
purposes of article 368 notwithstanding that it contains any
provision which amends or has the effect of amending this
Constitution.”
Article 239A applies to the Union territory of Puducherry (Goa, Daman
and Diu were excluded with effect from 1987 by the Goa, Daman and
Diu Reorganisation Act, 1987).
26. Article 239A is enabling. It enables Parliament to enact a law
for the Union territory so as to create a legislature or a Council of Ministers
or both. In creating a legislature, Parliament is left free to determine
whether the legislative body should be entirely elected or should consist
of a
certain number of nominated legislators. Parliament, in its legislative
power, may decide either to create a legislature or a Council of Ministers.
Whether to do so, in the first place, is left to its discretion. Whether one
or both of such bodies should be created is also left to the legislative
authority of Parliament. If it decides to enact a law, Parliament is
empowered to specify the constitutional powers and functions of the
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legislature and of the Council of Ministers. While the Constitution provides
an enabling provision, the setting up of a legislature, the creation of a
Council of Ministers and the ambit of their authority are to be governed
by an ordinary law to be enacted by Parliament. Such a law, clause 2
clarifies, would not constitute an amendment of the Constitution under
Article 368 even if it were to contain provisions which amend or have
the effect of amending the Constitution. Creating democratic institutions
for governing Union territories under Article 239A was left to the
legislative will of Parliament.
27. In contrast to the provisions of Article 239A is the text which
the Constitution has laid down to govern Delhi. The marginal note to
Article 239AA provides that the Article makes “special provisions with
respect to Delhi”. Article 239AA provides thus:
   “239AA. Special provisions with respect to Delhi.—
(1)   As from the date of commencement of the Constitution (Sixty-
ninth Amendment) Act, 1991, the Union territory of Delhi
shall be called the National Capital Territory of Delhi (hereafter
in this Part referred to as the National Capital Territory) and
the administrator thereof appointed under article 239 shall be
designated as the Lieutenant Governor.
(2)  (a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be
filled by members chosen by direct election from territorial
constituencies in the
National Capital Territory.
(b)  The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division
of the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters
relating to the functioning of the Legislative Assembly shall
be regulated by law made by Parliament.
(c)  The provisions of articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative
Assembly of the National Capital Territory and the members
thereof as they apply, in relation to a State, the Legislative
Assembly of a State and the members thereof respectively;
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and any reference in articles 326 and 329 to “appropriate
Legislature” shall be deemed to be a reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or
any part of the National Capital Territory with respect to any
of the matters enumerated in the State List or in the Concurrent
List in so far as any such matter is applicable to Union
territories except matters with respect to Entries 1, 2 and 18
of the State List and Entries 64, 65 and 66 of that List in so
far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect
to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a
law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the
Legislative Assembly, then, in either case, the law made by
Parliament, or, as the case may be, such earlier law, shall
prevail and the law made by the Legislative Assembly shall,
to the extent of the repugnancy, be void : Provided that if any
such law made by the Legislative Assembly has been reserved
for the consideration of the President and
has received his
assent, such law shall prevail in the National Capital Territory :
Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or
repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more
than ten per cent. of the total number of members in the
Legislative Assembly, with the Chief Minister at the head to
aid and advise the Lieutenant Governor in the exercise of his
functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except in so
far as he is, by or under any law, required to act in his discretion
: Provided that in the case of difference of opinion between
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the Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the
Lieutenant Governor in any case where the matter, in his
opinion, is so urgent that it is necessary for him to take
immediate action, to take such action or to give such direction
in the matter as he deems necessary.
(5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the
advice of the Chief Minister and the Ministers shall hold office
during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the
purposes of article 368 notwithstanding that it contains any
provision which amends or has the effect of amending, this
Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in
relation to the National Capital Territory, the Lieutenant
Governor and the Legislative Assembly, as they apply in relation
to the Union territory of Puducherry, the administrator
and its
Legislature, respectively; and any reference in that article to
“clause (1) of article 239A” shall be deemed to be a reference
to this article or article 239AB, as the case may be.”
Article 239AA is a product of the exercise of the constituent power,
tracing its origins to the sixty ninth amendment which was brought into
force on 1 February 1992. Under clause 1, with the commencement of
the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory
of Delhi is called the National Capital Territory of Delhi. Its Administrator,
who is appointed under Article 239, is designated as the Lieutenant
Governor. The administrator appointed by the President under Article
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239(1) is designated as the Lieutenant Governor for the National Capital
Territory. The source of the power to appoint the Lieutenant Governor
is traceable to Article 239(1).
28. Clause 2 of Article 239AA contains a constitutional mandate
that there shall be a legislative assembly for the NCT. This is unlike
Article 239A which left it to the discretion of Parliament to create a
legislature by enacting a law for the Union territories governed by that
provision. Article 239AA imprints the legislative assembly for the NCT
with a constitutional status. Its representative character is reflected in
the mandate that the members of the legislative assembly shall be “chosen
by direct election from territorial constituencies” in the NCT. The
necessity of direct election underlines the rule of participatory democracy
and of the members of the legislative assembly being representatives of
the people residing in the territorial constituencies comprised in the NCT.
Parliament has been assigned the role of regulating through a law, the
number of seats in the legislative assembly, reservation for the scheduled
castes, defining the division of the NCT into territorial constituencies
and of elucidating the functioning of the assembly in all matters. The
importance which the Constitution ascribes to the status of the legislative
assembly is evinced by the adoption of the provisions of Articles 324 to
327 and 329 in relation to the NCT
as they apply in the case of the
legislative assembly of a state. These articles (which are contained in
Part XV of the Constitution) ascribe constitutional status to the Election
Commission of India and assign to it the task of superintending, directing
and controlling the conduct of all elections. Article 325 is a guarantee
against discrimination based on religion, race, caste or sex. Article 326
embodies the principle of adult suffrage. Article 327 empowers Parliament
to enact a law in regard to the elections to the legislatures. Article 329
imposes a restraint on interference by courts in electoral matters. The
Constitution has considered the institutional existence of a legislative
assembly for Delhi to be a matter of such importance as to be elevated
to a constitutional requirement in clause 2 of Article 239AA and to warrant
the guarantee of free and fair elections which is enforced through the
constitutionally entrenched position of the Election Commission of India.
29. Clause 3 of Article 239 AA defines the legislative powers of
the legislative assembly for the NCT. Sub clause (a) empowers the
legislative assembly for the NCT to enact law with respect to any of the
matters contained in the State or Concurrent lists to the Seventh Schedule
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of the Constitution. The ability of the legislative assembly is circumscribed
“insofar as any such matter is applicable to Union territories”. The
legislative assembly can hence enact legislation in regard to the entries
in the State and Concurrent lists to the extent to which they apply to a
Union territory. Of equal significance is the exception which has been
carved out : Entries 1, 2 and 18 of the State List (and Entries 64, 65 and
66 insofar as they relate to Entries 1,2 and 18) lie outside the legislative
powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the
State List are thus:
“1.  Public order (but not including the use of any naval, military
or air force or any other armed force of the Union or of any
other force subject to the control of the Union or of any
contingent or unit thereof in aid of the civil power).
2.  Police (including railway and village police) subject to the
provisions of entry 2A of List I.
18. Land, this is to say, rights in o over land, land tenures including
the relation of landlord and tenant, and the collection of rents;
transfer and alienation of agricultural land; and improvement
and agricultural loans; colonization.”
The subjects of public order, police and land do not lie within the domain
of the legislative assembly. Entries 64, 65 and 66 provide thus :
“64. Offences against laws with respect to any of the matters in
this List.
 65. Jurisdiction and powers of all courts, except the Supreme
Court,
with respect to any of the matters in this List.
 66. Fees in respect of any of the matters in this List, but not
including fees taken in any court.”
The legislative assembly is disabled from enacting laws governing the
above entries (which deal with offences against laws referable to the
State List, jurisdiction of courts and fees) insofar as they relate to public
order, the police and land. This is a constitutional indication of the fact
that the NCT has been considered to be of specific importance from the
perspective of the nation to exclude three important areas which have a
vital bearing on its status as a national Capital. Apart from the exclusions,
the over-arching importance of the regulatory power of Parliament is
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underlined by the conferment upon Parliament of legislative power over
State as well as Concurrent List subjects in the Seventh Schedule. Unlike
state legislative assemblies which wield legislative power exclusively
over the State List, under the provisions of Article 246(3), the legislative
assembly for NCT does not possess exclusive legislative competence
over State List subjects. By a constitutional fiction, as if it were, Parliament
has legislative power over Concurrent as well as State List subjects in
the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA
contains a provision for repugnancy, similar to Article 254. A law enacted
by the legislative assembly would be void to the extent of a repugnancy
with a law enacted by Parliament unless it has received the assent of
the President. Moreover, the assent of the President would not preclude
Parliament from enacting legislation in future to override or modify the
law enacted by thelegislative assembly. Hence, the provisions of clause
2 and clause 3 of Article 239AA indicate that while conferring a
constitutional status upon the legislative assembly of NCT, the Constitution
has circumscribed the ambit of its legislativePowers firstly, by carving
out certain subjects from its competence (vesting them in Parliament)
and secondly, by enabling Parliament to enact law on matters falling
both in the State and Concurrent lists. Moreover, in the subjectswhich
have been assigned to it, the legislative authority of the Assembly is not
exclusive and is subject to laws which are enacted by Parliament.
E Cabinet Form of Government
30. Before deliberating upon the nature and extent of the executive
power of the NCT, it is necessary to discuss the essential features of the
cabinet form of government, which are of paramount importance in the
current context.
Collective Responsibility
31. Collective responsibility is a cornerstone of the Westminster
model. Initially developed35 as a constitutional convention in Britain
between 1780 and 1832, it began to appear36 in text-books in the 1860s
and 1870s. In 1867, Walter Bagehot, in his classic work titled “The English
Constitution”, called the “House of Commons” as “a real choosing body”,
which decides the path that the nationwould follow.37 The consequence
35 AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd
(1964), at page 131
36 Ibid, at page 136
37 Walter Bagehot, The English Constitution, 2nd Edition (1873), at page 118, available at
https://socialsciences,mcmaster,ca/econ/ugcm/3113/bagehot/constitution.pdf
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of such a systemic expectation in the British Parliamentary system,
Bagehot declared, was that the public can, “through Parliament, turn out
an administration which is not doing as it likes, and can put in an
administration which will do as it likes”38. The responsibility of Ministers
was set as their liability “to have all their public acts discussed in
Parliament”39. The Cabinet was defined as “a collective body bound
together by a common responsibility”.40 Later, Lord Salisbury formulated
this common responsibility thus:
“[F]or all that passes in a Cabinet, each Member of it who
does not resign is absolutely and irretrievably responsible,
and that he has no right afterwards to say that he agreed in one
case to a compromise, while in another he was persuaded by one
of his Colleagues... It is only on the principle that absolute
responsibility is undertaken by every Member of a Cabinet who,
after a decision is arrived at, remains a Member of it, that the joint
responsibility of Ministers to Parliament can be upheld, and one
of the most essential conditions of Parliamentary responsibility
established.”41                              (Emphasis supplied)
Ministers were liable to lose their offices, if they failed to retain the
confidence of the House of Commons or the Parliament.
In the 1880s, Dicey, “Law of the Constitution”, propounded that:
“[It] is now well-established law that the Crown can act only
through Ministers and according to certain prescribed
forms which
absolutely require the co-operation of some Minister, such as a
Secretary of State or the Lord Chancellor, who thereby becomes
not only morally but legally responsible for the legality of the act
in which he takes part. Hence, indirectly but surely, the action of
every servant of the Crown, and therefore, in effect of the Crown
itself, is brought under the supremacy of the land. Behind
parliamentary responsibility lies legal liability, and the acts of
Ministers no less than the acts of subordinate officials are made
subject to the rule of law.”42
38 Ibid, at page 34
39 Edward A. Freeman, The Growth of the English Constitution (1872)
40 Ibid
41 HLDeb vol 239 cc 833-4, 8 April 1878
42 Ibid, at page 327
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This fixed the responsibility of the Cabinet for the “general conduct of
affairs”43 of the government.
32. In the twentieth century, Sir Ivor Jennings conceptualized
collective responsibility of a Cabinet Government, thus:
“A Government that cannot make up its mind on a fundamental
issue ought not to be the Government and will be so regarded in
the constituencies. Its fall may be regarded as imminent.”44
The conduct of the cabinet determines the fate of the government.
33. Collective responsibility of Ministers to the Parliament is
comprehended in two aspects: (i) collective responsibility of Ministers
for the policies of the government; and (ii) individual responsibility of
Ministers for the work of their governments.45 The idea behind this
bifurcation, as explained by Birch, is to hold a government “continuously
accountable for its actions, so that it always faces the possibility that a
major mistake may result in a withdrawal of Parliamentary support.”46
In the British system, collective responsibility work on basis of certain
precepts  which define and regulate the existence of government.
Geoffrey Marshall (1989) identifies three strands within the principle47:
i)    The confidence principle: a government can only remain in
office for so long as it retains the confidence of the House of
Commons, a confidence which can be assumed unless and
until proven otherwise by a confidence vote;
ii)  The unanimity principle:
all members of the government
speak and vote together in Parliament, save in situations where
the Prime Minister and the Cabinet themselves make an
exception such as a free vote or an ‘agreement to differ’;
and
iii) The confidentiality principle: unanimity, as a universally
applicable situation, is a constitutional fiction, but one which
must be maintained, and is said to allow frank ministerial
discussion within the Cabinet and the Government.
43 Ibid, at page 327
44 Ivor Jennings, Cabinet Government, Cambridge University Press (1959), 3rd Edition,
at page 279
45 AH Birch (Supra note 35), at page 131
46 Ibid, at page 137
47 G Marshall, Ministerial responsibility, Oxford University Press (1989), at pages 2-4
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34. A study conducted by the London School of Economics and
Political Science in 2007 examined the individual and collective
performance of Ministers between 1945-1997. The findings of the study
revealed that though the principle acted “as a form of protection for an
individual Minister when policies pursued in his department are deemed
to have failed”, it also induced a cost for being a member of the
government. All the Ministers of the government, as a consequence of
the principle of solidarity, were perceived as jointly sharing the
responsibility of policy failure.48
The doctrine of collective responsibility has evolved as one of the
indispensable features of the parliamentary system of government and
reflects the political engagement between government and Parliament.
In a parliamentary democracy, the nuances of the doctrine are political.49
To maintain the notion of “collegiality and coherence”, the ministers work
as a team. In the Australian context, Wanna (2012) postulates that
collective responsibility thereby acts as an under-flowing current
necessary for the survival of a government:
“To survive as a government, ministries must show they can
maintain the confidence of the house, put up a credible front to
their political opponents and the media, and as a working ministry
find ways to deal with the business of state, much of which will
involve making collective decisions and imposing collegial executive
authority.”50
35. Granville Austin observes
that the framers of India’s
Constitution conceived that the democratic values of the Constitution
would be achieved in “the institutions of direct, responsible government”51.
The members of the Constituent Assembly borrowed the
48 Samuel Berlinski, Torun Dewan and Keith Dowding, “Individual and Collective Per-
formance and the Tenure of British Ministers 1945-1997”, London School of Eco-
nomics & Political Science (February 2007), available at http://eprints.Ise.ac.uk/19281/
1/Individual and Collective Performance and the Tenure of British Ministers 1945-
1997.pdf
49  V Sudheesh Pai, “Is The River Rising Higher Than The Source? Nature Of Rules
Business - Directory Or Mandatory?” Journal of Indian Law Institute (2011), at page
513
50  John Wanna, “Ministers as Ministries and the Logic of their Collective Action”, in
Keith Dowding & Chris Lewis (eds.), Ministerial Careers and Accountability in the
Australian Commonwealth Government, ANU Press (2012), available at http://press-
files.anu.edu.au/downloads/press/p191121/pdf/ch023.pdf
51  Granville Austin (Supra note 3), at page 145
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Parliamentary?Cabinet form of government from British constitutional
theory and adopted it into our Constitution.52 Though the Constituent
Assembly did not adopt British constitutional conventions in the written
form, collective responsibility of the Cabinet was specifically incorporated
into India’s constitutional framework.53
There is a direct relationship between the principle of collective
responsibility and government accountability. This relationship is
conceptualized in “The Oxford Companion to Politics in India”:
“[A]ccountability can be defined in terms of outcomes rather than
processes of government… It also includes the criterion of
responsiveness to changes in circumstances that alter citizen needs
and abilities… In other words, accountability refers to the extent
to which actual policies and their implementation coincide with a
normative ideal in terms of what they ought to be… In this broad
sense, accountability amounts to evaluating the nature of
governance itself, in outcome-oriented terms.”54
The Oxford Handbook of the Indian Constitution55 (2016) adverts to
several facets of collective responsibility:
“Collective responsibility has several facets. First, ministers act
as a common unit; cabinet decisions are binding on all ministers.
Disagreements, if any, may be aired in private. Ministers, however,
speak in one voice and stand by one another in Parliament and in
public. Those that cannot reconcile
themselves with particular
government policies, or are unwilling to defend them in public,
must resign. Conversely, decisions of particular ministers, unless
overruled, are decisions of the government.”
The principle has also been considered as a political component which
political parties in power invoke to maintain party discipline.56
52  Ibid, at page 166
53  Ibid, at page 172
54  Dilip Mookherjee, “Government Accountability” in Niraja Gopal Jayal and Pratap
Bhanu Mehta (eds.), The Oxford Companion to Politics in India, Oxford University
Press (2010), at page 477
55  Shubhankar Dam, “Executive” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu
Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University
Press (2016), at page 319
56  Ibid
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Collective responsibility also exists in practice in situations where ministers
have no knowledge of the actions taken by the subordinate officers of
their respective departments:
“Governing is a complex affair; hundreds of officials in dozens of
departments make many decisions on a daily basis… These
officials are also part of the executive, and ministers are responsible
for those that serve in their departments… Ordinarily, ministers
busy themselves with policy issues; matters of implementation
are usually left to officials over whom ministers command little or
no oversight. Yet, when they act, subordinates notionally do so on
behalf of ministers. Ministers, therefore, cannot seek refuge in
ignorance. Nor can they absolve themselves by pointing to their
officers. Both inside and outside Parliament, they are accountable
for their departmental shortcomings.”57
36. Collective responsibility, as a principle and practice, has been
given effect authoritatively in several judgments of this Court. The
Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v
The State of Punjab58, examined the functions of the executive. The
Court held that the President is “a formal or constitutional head of the
executive” and that the “real executive powers” are vested in the
Ministers or the Cabinet:
“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 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…
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
57 Ibid, at page 320
58 (1955) 2 SCR 225
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act on the principle of collective responsibility, the most
important questions of policy are all formulated by them.”
(Emphasis supplied)
The relationship between the responsibility of the Cabinet and individual
Ministers was dealt with in a Constitution Bench decision in A Sanjeevi
Naidu v State of Madras59:
“The cabinet is responsible, to the legislature for every action
taken in any of the ministries. That is the essence of joint
responsibility. That does not mean that each and every decision
must be taken by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate the personal
responsibility of the Ministers to discharge all or any of the
governmental functions. Similarly an individual Minister is
responsible to the legislature for every action taken or omitted to
be taken in his ministry. This again is a political responsibility and
not personal responsibility.”
In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking
for the majority) opined 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.”
A seven-judge Bench decision of this Court in State of Karnataka v
Union of India61 explained the substance of a government’s collective
responsibility. All the Ministers are treated as one entity. A government
could stay in office only so long as it commands the support and confidence
of a majority of the Members of the Legislature. The government is
59 (1970) 1 SCC 443
60 (1974) 2 SCC 831
61 (1977) 4 SCC 608
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politically responsible for the decisions and policies of each of the
Ministers and of his department. The sanction against any government
action was held to be embodied in the principle of collective responsibility,
which is enforced by the “pressure of public opinion” and expressed
specifically in terms of withdrawal of political support:
“The object of collective responsibility is to make the whole body
of persons holding Ministerial office collectively, or, if one may so
put it, “vicariously” responsible for such acts of the others is are
referable to their collective volition so that, even if an individual
may not be personally responsible for it, yet, he will be deemed to
share the responsibility with those who may have actually
committed some wrong.”
The decision in Common Cause, A Registered Society v Union of
India62 delivered by a three-judge Bench held that the concept of
collective responsibility is essentially a “political concept” and that the
country is governed by the party in power on the basis of the policies
endorsed by its Cabinet. The Court held that the concept of collective
responsibility has two meanings:
“The first meaning which can legitimately be ascribed to it is that
all members of a Govt. are unanimous in support of its policies
and would exhibit that unanimity on public occasions although
while formulating the policies, they might have expressed a
different view in the meeting of the Cabinet. The other meaning
is that
Ministers, who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally
responsible for its success and failure.”
The decision in Subramanian Swamy v Manmohan Singh63 theorises
that collective responsibility may be enforced only politically, thereby
making its legal implications unclear. In this case, a Minister was charged
with committing grave irregularities in the grant of telecom licenses.
The appellant had provided documents to the Prime Minister’s Office
(PMO) for the grant of sanction to prosecute under the Prevention of
Corruption Act, 1988. This Court held:
“In our view, the officers in the PMO and the Ministry of Law
and Justice, were duty bound to apprise Respondent No. 1 [Prime
62 (1999) 6 SCC 667
63 (2012) 3 SCC 64
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Minister] about seriousness of allegations made by the Appellant…
By the very nature of the office held by him, Respondent No. 1 is
not expected to personally look into the minute details of each and
every case placed before him and has to depend on his advisers
and other officers. Unfortunately, those who were expected to
give proper advice to Respondent No. 1 and place full facts and
legal position before him failed to do so. We have no doubt that if
Respondent No. 1 had been apprised of the true factual and legal
position regarding the representation made by the Appellant, he
would have surely taken appropriate decision and would not have
allowed the matter to linger for a period of more than one year.”
The decision implied that “individual ministerial decisions… do not always
generate collective legal responsibilities”64.
37. Collective responsibility represents a seminal principle for
modern parliamentary democracies.65 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.
Aid and Advice
38. Collective responsibility under our Constitution is based on a
“slightly modified version”66 of the British cabinet system. There is a
direct relationship between collective responsibility and the form of
government envisaged by the Constitution. The President was designated
as the titular head of government. The founding fathers and mothers of
the Constitution adopted the convention which made the President
generally bound by the advice of the Council of Ministers. This was
explained by Dr B R Ambedkar, while introducing the Draft Constitution
on 4th November 1948.
64  The Oxford Handbook of the India Constitution (Supra note 52), at page 320
65  See also Amarinder Singh v Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC
113; Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1; State of Himachal
Pradesh v. Satpal Saini, 20117(2) SCALE 292
66  Granville Austin (Supra note 3), at page 145
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“Under the Draft Constitution the President occupies the same
position as the King under the English Constitution. He is the head
of the State but not of the Executive. He represents the Nation
but does not rule the Nation. He is the symbol of the nation. His
place in the administration is that of a ceremonial device on a seal
by which the nation’s decisions are made known… The President
of the Indian Union will be generally bound by the advice of
his Ministers. He can do nothing contrary to their advice
nor can he do anything without their advice. The President
of the United States can dismiss any Secretary at any time.
The President of the Indian Union has no power to do so
long as his Ministers command a majority in Parliament…
A democratic executive must satisfy two conditions - (1) It must
be a stable executive and (2) it must be a responsible executive.
Unfortunately it has not been possible so far to devise a system
which can ensure both in equal degree…
In England, where the Parliamentary system prevails, the
assessment of responsibility of the Executive is both daily and
periodic. The daily assessment is done by members of Parliament,
through questions, Resolutions, No-confidence motions,
Adjournment motions and Debates on Addresses… The daily
assessment of responsibility which is not available under the
American system is it is felt far more effective than the periodic
assessment and far more necessary in a country like India. The
Draft
Constitution in recommending the Parliamentary
system of Executive has preferred more responsibility to
more stability.”67 (Emphasis supplied)
Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar:
“…that the Council of Ministers shall be collectively responsible
to the House of the People. If a President stands in the way of
the Council of Ministers discharging that responsibility to the House
he will be guilty of violation of the Constitution and he will be even
liable to impeachment. Therefore it is merely a euphemistic
way of saying that the President shall be guided by the advice
of his Ministers in the exercise of his functions. This
Council of Ministers will be collectively responsible to the
67 Constituent Assembly Debates, Vol. 7 (4th November 1948)
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House of the People, and the House of the People must
meet all situations in regard to the budget, in regard to
legislation, in regard to every matter connected with the
administration of the country. Therefore, if the Council of
Ministers is to discharge their responsibility, it will be the
duty of the President to see that the Constitution is
obeyed…”68 (Emphasis supplied)
As the Chairman of the Constituent Assembly, Dr Rajendra Prasad
expected the convention to be developed into a healthy practice in
independent India:
“We have had to reconcile the position of an elected President
with an elected Legislature and, in doing so, we have adopted
more or less the position of the British Monarch for the President…
[H]is position is that of a Constitutional President.
Then we come to the Ministers. They are of course responsible
to the Legislature and tender advice to the President who is bound
to act according to that advice. Although there are no specific
provisions, so far as I know, in the Constitution itself making it
binding on the President to accept the advice of his Ministers, it
is hoped that the convention under which in England the
King acts always on the advice of his Ministers will be
established in this country also and, the President, not so
much on account of the written word in the Constitution,
but as the result of this very healthy convention, will become
a Constitutional President in all matters.”69
(Emphasis
supplied)
The Constitution makers envisaged and adopted a limited role for the
President as the nominal head of the Indian State and imposed sanctions
on his or her constitutional authority by making them bound by the decisions
of the Council of Ministers generally. A similar role was adopted for the
Governor in the States.
39. After the Constitution had come into force, this Court gave
judicial sanction to the convention. In U.N.R. Rao v Smt. Indira
Gandhi70, the Constitution Bench held:
68 Ibid
69 Constituent Assembly Debates, Vol. 11 (26th November, 1949)
70 (1971) 2 SCC 63
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“It will be noticed that Article 74(1) is mandatory in form. We are
unable to agree with the appellant that in the context the word
“shall” should be read as “may”. Article 52 is mandatory. In other
words there shall be a President of India.... The Constituent
Assembly did not choose the Presidential system of Government.
If we were to give effect to this contention of the appellant we
would be changing the whole concept of the Executive. It would
mean that the President need not have a Prime Minister and
Ministers to aid and advise in the exercise of his functions. As
there would be no ‘Council of Ministers’ nobody would be
responsible to the House of the People. With the aid of advisers
he would be able to rule the country at least till he is impeached
under Article 61… Article 74(1) is mandatory and, therefore, the
President cannot exercise the executive power without the aid
and advice of the Council of Ministers. We must then harmonise
the provisions of Article 75(3) with Article 74(1) and Article 75(2).
Article 75(3) brings into existence what is usually called
“Responsible Government”.”
In Samsher Singh v State of Punjab71, while dealing with the question
whether the Governor as the Constitutional or the formal head of the
State can exercise powers and functions of appointment and removal of
members of the subordinate judicial service personally, Chief Justice
AN Ray delivered the majority judgment, holding that:
“The President as well as the
Governor is the constitutional or
formal head. The President as well as the Governor exercises 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. Wherever the Constitution
requires the satisfaction of the President or the Governor for the
exercise by the President or the Governor of any power or function,
the satisfaction required by the Constitution is not the personal
satisfaction of the President or Governor but the satisfaction of
the President or Governor in the Constitutional sense in the Cabinet
system of Government, that is, satisfaction of his Council of
Ministers on whose aid and advice the President or the Governor
generally exercise all his powers and functions. The decision of
71 (1974) 2 SCC 831
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any Minister or officer under rules of business made under any of
these two Articles 77(3) and 166(3) is the decision of the President
or the Governor respectively. These articles did not provide for
any delegation. Therefore, the decision of Minister or officer under
the rules of business is the decision of the President or the
Governor.”
The Court summed up the position of law as follows:
“[W]e hold that the President or the Governor acts on the aid and
advice of the Council of Ministers with the Prime Minister at the
head in the case of the Union and the Chief Minister at the head
in the case of State in all matters which vests in the executive
whether those functions are executive or legislative in character.
Neither the President nor the Governor is to exercise the executive
functions personally… Where the Governor has any discretion
the Governor acts on his own judgment. The Governor exercises
his discretion in harmony with his Council of Ministers.”
Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati,
delivered a concurring opinion.
40. The convention that the President shall be bound by the aid
and advice tendered by the Council of Ministers was explicitly made a
part of the Constitution by the forty-second constitutional amendment.
By the amendment, Article 74(1) was amended to ensure that the
President shall, in the exercise of his functions, act in accordance with
the advice tendered by the
Council of Ministers. Article 74(1) reads
thus:
“There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice.”
The Forty-fourth Constitution Amendment added another proviso to
Article 74 (1) so that the “President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such
reconsideration”. Therefore, the position which emerges is that where it
has not been expressly provided, the executive head shall be bound by
the advice tendered by the Council of Ministers. This constitutional
scheme, after the forty-second and forty-fourth amendments, has been
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judicially reaffirmed. Authoring the judgment of the Constitution Bench
in PU Myllai Hlychho v State of Mizoram72, Justice KG Balakrishnan
(as he then was) held that the “satisfaction” of the Governor required by
the Constitution for the exercise of any power or function is not the
personal satisfaction of the Governor but a satisfaction in the constitutional
sense under the Cabinet system of Government, i.e. on the aid and advice
of the Council of Ministers.
Justice Madan B Lokur, while delivering the concurring opinion in the
five-judge Constitution Bench deciJsion in Nabam Rebia and Bamang
Felix v Deputy Speaker, Arunachal Pradesh Legislative
Assembly73, opined that the absence of the expression “his individual
judgment” makes it apparent that the Governor would always be bound
by the aid and advice of the Council of Ministers, except in matters
where he/she is permitted under the Constitution to act “in his discretion”.
41. 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 government
is founded. Collective responsibility ensures that government speaks as
one political entity which owes allegiance to the elected representatives
of the people. By ensuring that government is responsible in its decision
making to the legislature, the principle of collective responsibility fosters
a responsive and accountable
government. Modern government, with
its attendant complexities, comprises of several components and
constituent elements. They include Ministers who are also elected as
members of the legislature and unelected public officials who work on
issues of daily governance. Discussion and dialogue are accepting of
dissent. In a system of constitutional governance, collective decision
making must allow room for differences. A synthesis can emerge in
government, when political maturity and administrative wisdom combine
in arriving at acceptable solutions to the problems of governance.
Collective responsibility allows for and acknowledges differences in
perception and ideology. Yet, what the doctrine does is to place a decision
taken by a constituent part of the government as a decision of the
government. All Ministers are bound by a decision taken by one of them
or their departments. In terms of its accountability to the legislature,
government is treated as one decision making unit so that the politics of
72 (2005) 2 SCC 92
73 (2016) 8 SCC 1
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decision making and administrative divergences do not dilute from the
responsibility which government owes as a political unit to the legislature.
This is crucial to ensuring that government is responsive to the aspirations
of the people in whom political sovereignty resides.
42. In Kihoto Hollohan v Zachillhu74, Chief Justice
Venkatachaliah speaking for this Court had held thus:
“Parliamentary democracy envisages that matters involving
implementation of policies of the Government should be discussed
by the elected representatives of the people. Debate, discussion
and persuasion are, therefore, the means and essence of the
democratic process. During the debates the Members put forward
different points of view. Members belonging to the same political
party may also have, and may give expression to, differences of
opinion on a matter. Not  often the view expressed by the Members
in the House have resulted in substantial modification, and even
the withdrawal, of the proposals under consideration. Debate and
expression of different points of view, thus, serve an essential and
healthy purpose in the functioning of Parliamentary democracy.”
43. The doctrine of aid and advice enhances the commitment to
the same 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 (decision making in the name of a titular head)
is  subservient  to  its  substance,  whichmandates that the real authority
to take decisions must reside in the elected arm of the government. The
doctrine of aid and advice enhances accountability and responsive
government – besides representative government – by ensuring that the
real authority to take decisions resides in the Council of Ministers, which
owes ultimate responsibility to the people, through a legislature to whom
the Council is responsible. Collective responsibility and the aid and advice
doctrine must not be construed as disjunctive but together constitute
integral parts of the discourse in ensuring the strength of and commitment
to democracy.
F The Nature of Executive Power
44. While the legislative power in relation to the NCT is defined in
clauses 2 and 3, its executive power forms the subject matter of clause
74 1992 SCC Supp. (2) 651
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4 of Article 239AA. Clause 4 institutionalises the position of the Council
of Ministers with a Chief Minister as its head. The constitutional role
which is ascribed to the Council of Ministers is to aid and advise the
Lieutenant Governor “in the exercise of his functions in relation to matters
with respect to which the legislative assembly has power to make laws”.
There are three salient features of the executive power which is vested
in the Council of Ministers. Firstly, the executive power is co-extensive
with the legislative power of the legislative assembly. The executive
power extends to all subjects upon which the assembly can legislate.
The executive power of the Council of Ministers does not extend to
matters on which the legislative assembly cannot legislate. What is beyond
the legislative competence of the Assembly is ultra vires the executive
powers of the Council of Ministers. Secondly, the delineation of the
executive power in clause 4 defines, at the same time, the relationship
between the Council of Ministers (headed by the Chief Minister) and
the Lieutenant Governor. The Council of Ministers aids and advises the
Lieutenant Governor; the corollary being that the Lieutenant Governor
has to act on the basis of the aid and advise tendered by the Council.
Thirdly, the exception to the aid and advice principle in the substantive
part of clause 4 is in respect of those matters in which the Lieutenant
Governor is required to act in its discretion
“by or under any law”. In
other words, save and except in regard to areas which are reserved for
the exercise of his discretion, the Lieutenant Governor must act on the
aid and advice tendered to him by the Council of Ministers.
45. The proviso to clause 4 forms the bone of contention. The
proviso envisages a situation where the Lieutenant Governor has a
difference of opinion with the Council of Ministers “on any matter”. In
such a case, the proviso entails the course of action which the Lieutenant
Governor must follow. The Lieutenant Governor is under a constitutional
mandate to refer the difference of opinion to the President for decision.
As a consequence, the Lieutenant Governor must necessarily act
according to the decision “given thereon” by the President. Pending a
decision by the President, the Lieutenant Governor is empowered to
take action or to issue directions where the matter is of such an emergent
nature as to require immediate action. The heart of the matter turns
upon interpreting the expression “difference of opinion” and the words
“on any matter”. Clause 4 does not specify what kind of a difference of
opinion would warrant a reference to the President. Nor for that matter,
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does it explain the nature of the matter on which a difference of opinion
is contemplated. Before we interpret the ambit of the proviso to clause
4, one facet is clear. Where a difference of opinion has arisen, warranting
a reference to the President, the proviso leaves the course of action to
be followed by the Lieutenant Governor beyond doubt. In a situation
where the conditions under the proviso exist, the Lieutenant Governor
has to refer the matter to the President and must abide by the decision
of the President.  Reading the substantive part of clause 4 and the proviso,
it is thus evident that the Lieutenant Governor has two courses of action
to follow. Primarily, under the substantive part of clause 4, the Lieutenant
Governor is bound by the aid and advice of the Council of Ministers (the
only exception being where under a provision of law, he has to act
according to his own discretion). However, the embargo upon the
Lieutenant Governor acting otherwise than on the aid and advice of the
Council of Ministers is lifted only to enable him to refer a difference of
opinion on any matter for a decision by the President. In other words,
the Lieutenant Governor must either abide by the aid and advice tendered
by the Council of Ministers or, in the event of a difference of opinion,
reserve it for a decision by the President and thereupon be bound to act
in accordance with the decision which has been rendered by the
President. Pending the decision by the President, the proviso enables
the Lieutenant Governor to attend to a situation requiring immediate
action.
46. Before elucidating the nature and ambit of the relationship
between the (i) Council of Ministers and the Lieutenant Governor; and
(ii) the Lieutenant Governor and the President, it would be necessary to
advert to some of the other provisions of Article 239AA which have a
bearing on those relationships. The Lieutenant Governor, as we have
noted earlier, is appointed by the President under Article 239(1) read
with Article 239AA(1). The Chief Minister is appointed by the President,
while the other ministers are appointed by the President on the advice of
the Chief Minister. They hold office during the pleasure of the President
(clause 5). The concept of collective responsibility of the Council of
Ministers to the legislative assembly is expressly embodied in clause 6.
A comparative analysis of the provisions of the Constitution relating to
the Council of Ministers in the Union and the States indicates that in the
case of the NCT, Article 239AA has engrafted the fundamental precept
of the collective responsibility of an elected government in a cabinet
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form of government to the elected legislature. Creating an executive
power in government which is co-extensive with the legislative power
of the elected legislature and the collective responsibility of the Council
of Ministers to the legislature are intrinsic to the cabinet form of
government.
47. Parliament has, by clause 7 of Article 239AA, been empowered
to make provisions to implement and to supplement the other provisions
of that Article. Any law enacted by Parliament to do so would not amount
to a constitutional amendment within the meaning of Article 368 even if
it amends or has the effect of amending any provision of the Constitution.
48. Article 239AB enunciates the course of action which the
President is empowered to follow where there has been a failure of
constitutional machinery in the NCT. Article 239AB provides 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.”
Under Article 239AB, the President is empowered to suspend the
operation of (i) any provision of Article 239AA; and of (ii) any provisions
of law made in pursuance of that Article and to make provisions to
administer the NCT, in accordance with Articles 239 and 239AA where,
upon a report from the Lieutenant Governor, the President is satisfied
that: (a) A situation has arisen where the administration of the NCT
cannot be carried on in accordance with Article 239AA or a law made
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in pursuance of it; or (b)  For the proper administration of the NCT.
Article 239B as already noted confers power upon the administrator of
Puducherry to promulgate ordinances during the recess of the legislature.
This power is also conferred upon the Lieutenant Governor of the NCT
by clause 8 of Article 239AA. Under Article 241, Parliament is
empowered to constitute a High Court for a Union territory.
49. In understanding the nature of the executive power in relation
to the NCT of Delhi and the relationship between the Council of Ministers
and the Lieutenant Governor on one hand, and the Lieutenant Governor
and the President on the other, it is necessary to draw a comparison with
the provisions of the Constitution governing the Union and the States.
Part V of the Constitution (consisting of Articles 52 to 151) deals with
the Union; Part VI (comprising of Articles 152 to 237) deals with the
States and Part VIII (comprising of Articles 239 to 241) deals with the
Union territories. Parts V and VI contain similar elucidations with some
important variations. Both Part V and Part VI deal with the executive,
the legislative power of the President, and the judiciary. Part V covers
the Union judiciary, while Part VI cover the High Courts and the
subordinate courts in the States.
50. Article 52 provides for the President. Article 53 stipulates that
the executive power of the Union shall be vested in the President and
shall be
exercised by him directly or through subordinate officers in
accordance with the Constitution. Under Article 73, the executive power
of the Union extends (a) to matters with respect to which Parliament
has power to make laws; and (b) to the exercise of rights, authority and
jurisdiction exercisable by the Union government under a treaty or
agreement. Article 73 provides thus:
“73. Extent of executive power of the Union.—
(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:
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Provided 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.
(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 authority thereof could exercise
immediately before the commencement of this Constitution.”
The proviso to Article 73(1) stipulates that except as may be expressly
provided by Constitution or in any law which has been enacted by
Parliament, the executive power of the Union under sub clause (a) of
clause 1 does not extend in a State to matters with respect to which the
legislature of the State has also power to make laws. The effect of the
proviso is that the executive power of the Union does not extend to
matters in the Concurrent List, since these are matters on which State
legislatures also have the power to make laws. Article 74(1) provides
for a Council of Ministers with the Prime Minister as the head. The
function of the Council of Ministers is “to aid and advice the President”.
The President is, in the exercise of his functions, under a mandate to
“act in accordance with such advice”.
Article 74 provides as follows:
“74. Council of Ministers to aid and advise President.—
(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the
exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the
advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered
by Ministers to the President shall not be inquired into in any
court.”
Article 77 provides for the conduct of the business of the Union
government:
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“77. Conduct of business of the Government of India.—
(1) All executive action of the Government of India shall be
expressed to be taken in the name of the President.
(2)  Orders and other instruments made and executed in the name
of the President shall be authenticated in such manner as
may be specified in rules to be made by the President, 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 President.
(3) The President shall make rules for the more convenient
transaction of the business of the Government of India, and
for the allocation among Ministers of the said business.”
By and under Article 77(1) the executive action of the Union government
is expressed to be taken in the name of the President. Under clause 2,
orders and instruments made and executed in the name of the President
are to be authenticated in such a manner as may be specified in the rules
made by the President. Clause 3 enables the President to make rules for
the transaction of the business of the government and for the allocation
of governmental business among ministers. Article 78 embodies the basic
duty of the head of the elected government in a Cabinet form of
government to communicate with and to furnish information to the
President. Article 78 provides as follows :
“78. Duties of Prime Minister as respects the
furnishing of
information to the President, etc.—
It shall be the duty of the Prime Minister—
(a) to communicate to the President all decisions of the Council
of Ministers relating to the administration of the affairs of the
Union and proposals for legislation;
(b) to furnish such information relating to the administration of the
affairs of the Union and proposals for legislation as the President
may call for; and
(c) if the President 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.”
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These provisions of the Constitution institutionalise the relationship
between the President and the Union Cabinet and re-affirm the position
of the President as the titular head of state. The President must act on
the aid and advise tendered by the Union Cabinet. The executive power
of the Union is co-extensive with the legislative power of Parliament. In
a cabinet form of government, it is the Council of Ministers which owes
collective responsibility to the House of the People. Collective
responsibility, as a constitutional doctrine, ensures accountability to the
sovereign will of the people who elect the members of the legislature.
Though all executive action is expressed to be taken in the name of the
President and orders and instruments made and executed in the name of
the President are authenticated in the manner prescribed by rules, the
constitutional position of the President is of a titular head. The use of the
expression “in the exercise of his functions” in Article 74(1) is formalistic
in nature since the substance of executive power is vested in and
conferred upon the government constituted through the Council of
Ministers which owes collective responsibility to Parliament. The proviso
to Article 74(1) stipulates that while the President may require the Council
of Ministers to reconsider his advice, once that has been done, the
President is bound to act on the advice tendered after reconsideration.
51. The position of the President as a
titular head of State is
evidenced in the constitutional provisions which define the relationship
between the President and Parliament. Under Article 111, a Bill is
presented to the President for assent upon being passed by the Houses
of Parliament. Under the proviso to Article 111, the President is
empowered to return a Bill for reconsideration (if it is not a Money Bill).
Upon being reconsidered, if the Bill is passed again by the Houses of
Parliament (with or without amendment) the President shall, thereafter,
not withhold assent.
52. In Part VI of the Constitution, the provisions which define the
role of the Governor in relation to the states indicate that the Governor is
also a titular head of government in each state. The executive power of
the State is vested in the Governor under Article 154. The Governor is
appointed by the President under Article 155 and holds office during the
pleasure of the President under Article 156. The executive power of the
state is co-extensive with the legislative power, by virtue of Article 162.
However, in relation to matters on which both the legislature of a State
and Parliament can enact law, the executive power of the state is subject
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to and limited by the conferment of executive power upon the Union by
the Constitution or by a law enacted by Parliament. In the States, Article
163 postulates a Council of Ministers with the Chief Ministers as its
head to aid and advice the Governor in the exercise of his functions,
except where the Governor is under the Constitution required to exercise
any of the functions in his own discretion. Where a question arises as to
whether the Governor is required to act in his discretion, Article 163(2)
makes the decision of the Governor final. While the Chief Minister is
appointed by the Governor under Article 164, other ministers are appointed
by the Governor on the advice of the Chief Minister and hold office
during the pleasure of the Governor. Article 164(2) incorporates the
principle of collective responsibility of the Council of Ministers to the
legislative assembly of the State. Article 166 contains a provision dealing
with the conduct of the business of the government of the State which is
pari materia with Article 77. Similarly, Article 167 incorporates the duty
of the Chief Minister to communicate with and to furnish information on
the affairs of the state to the Governor, in terms similar to Article 78.
53. While assessing the status of the National Capital Territory
under Article 239AA, certain significant aspects need to be borne in
mind:
(i)  Article 239AA is a result of the exercise of the constituent
power under Article 368 of the Constitution. By and as a
result of Article 239AA, special provisions have been made
for the National Capital Territory of Delhi. These provisions
are not an emanation of an act of ordinary legislation;
(ii)  For the NCT of Delhi, the exercise of the constituent power
has resulted in a constitutionally entrenched status both for
the legislature and for the Council of Ministers. The legislative
assembly is elected by the process of direct election. The
legislative assembly has the power to enact law in respect of
matters in the State List of the Seventh Schedule (save for
the excepted matters in Entries 1, 2 and 18 and Entries 64, 65
and 66 insofar as they relate to entries 1, 2 and 18). Yet,
while the legislative powers which have been conferred on
the legislative assembly extend to the State List (save for the
excepted entries) and the Concurrent List, Parliament has
been empowered to legislate both on matters falling within
the State and the Concurrent lists. Parliament possesses
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overriding legislative powers over matters falling in both the
State and Concurrent lists for the NCT; and
(iii)  Article 239AA(4) provides constitutional status to the Council
of Ministers and embodies the entrenched principle in a cabinet
form of government that a titular head of state acts on the aid
and advice tendered by his ministers, who owe collective
responsibility to the legislature. In setting up a structure of
governance in which there is a legislature elected through
the process of direct election and an executive arm which is
collectively responsible to the legislature and which, in the
discharge of its functions, tenders aid and advise to Lieutenant
Governor on matters which are co-extensive with legislative
power, the Constitution has incorporated the basic principles
of the cabinet form of government. The adoption of these
special features of the cabinet form of government in relation
to the NCT must weigh while interpreting Article 239AA.
54. At the same time, the constitutional scheme indicates several
features in relation to the NCT which have resulted in the conferment of
a constitutional status which falls short of the trappings of full statehood.
They include the following :
(a) The position of the National Capital Territory is subsumed
under Part VIII which applies to Union territories. Delhi is
and continues to be a Union territory governed by Part VIII;
(b)  Every Union territory is, under Article 239(1), administered
by the
President acting through an Administrator. The
Administrator appointed under Article 239(1) is designated
as the Lieutenant Governor for the NCT under Article
239AA(1). Article 239 is the source of the constitutional power
to appoint the Lieutenant Governor for the NCT;
(c)  The position that the application of Article 239 is not excluded
in relation to the NCT is made evident by Article 239AB. In
a situation in which the President is empowered to suspend
the provisions of Article 239AA, where the administration of
the NCT cannot be carried on in accordance with Article
239AA, or of any law made in pursuance of that Article, the
President is empowered to make consequential provisions for
administering the territory in accordance with Article 239 as
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well as Article 239AA. Hence, the provisions of Article
239AA cannot be read disjunctive from Article 239(1);
(d)  The administration of a Union territory by the President acting
through an Administrator is firstly subject to Parliamentary
law and secondly, to such extent as he thinks fit. Hence the
nature of the administration of a Union territory, including
NCT is subject to these two provisions;
(e)   The position of the NCT as distinguished with the constitutional
position of a State finds expression in the contrast between
Article 239AB and Article 356 on the other. Upon the exercise
of the power under Article 356, the President “can assume to
himself” the functions of the government of the State and
declare that the powers of the legislature of the State shall be
exercisable by or under the authority of Parliament. In
contrast, Section 239AB empowers the President to suspend
the operation of Article 239AA or of any provision of law
made under it and to thereupon make consequential provisions
for the administration of the NCT in accordance with Articles
239 and 239AA; and
(f)   While emphasising the binding character of the aid and advise
tendered to the President, or as the case may be, the Governor,
the constitutional position in relation to the Lieutenant
Governor contains a distinct variation.  Article 74(1) embodies,
in relation to the President of India, the binding character of
the aid and advice tendered
by the Council of Ministers by
specifying that the President shall, in the exercise of his
functions, act in accordance with such advice. Upon the
President requiring the Council of Ministers to reconsider their
advice, the President is bound to act upon the advice which is
tendered after reconsideration. Similarly, in the case of
Governors in the states, Article 163(1) provides for a Council
of Ministers “to aid and advise the Governor in the exercise
of his functions”, except where the Governor is required by
the Constitution to exercise his functions in his discretion.
Article 239AA(4) incorporates in its substantive segment the
constitutional principle of aid and advice which the Council
of Ministers tenders to the Lieutenant Governor in the exercise
of his functions. But, in relation to the advice tendered by the
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Council of Ministers, the proviso to Article 239AA(4) has
engrafted a special provision which does not have a corollary
in Article 163. While under Article 163(1), the Governor is
required to act upon the aid and advice tendered (save in
matters which the Constitution entrusts to the discretion of
the Governor), the proviso to Article 239AA(4) contemplates
an area where the binding character of the aid and advice
tendered to the Lieutenant Governor is lifted in the event of a
“difference of opinion.. on any matter”.
55. In resolving the area within which the Lieutenant Governor
can refer the difference of opinion with the Council of Ministers of the
NCT to the President, it would be necessary to balance on the one hand
the constitutional principles of the cabinet form of government adopted
in Article 239AA, while on the other hand leaving open the latitude,
which has been created by the proviso to clause 4 considering the special
status of the NCT. The former consideration would need the court to
pursue a line of interpretation which does not detract from the fundamental
principles of representative government. An elected government reflects
in a democracy, the aspirations of the people who vote to elect their
representatives. The elected representatives carry the responsibility of
giving expression to the political will of the electorate. In a democratic
form of government, real power must subsist in the elected arms of the
State. Ministers of government
are elected representatives of the people.
They are accountable to the people through their collective responsibility
to the legislature. As a collective entity, the Council of Ministers owes
responsibility to the legislature. The relationship between the Council of
Ministers and the titular head of State is governed by the over-arching
consideration that real power and substantive accountability is vested in
the elected representatives of the people. The principle of aid and advice
is in a constitutional sense intended to strengthen the constitutional value
of representative government and of governance which is accountable
and responsive to the electorate. While bearing these fundamental
constitutional principles of a democracy in mind, a balance has to be
struck with the second of the above elements which recognises the special
status of the NCT. The NCT represents the aspirations of the residents
of its territory. But it embodies, in its character as a capital city the
political symbolism underlying national governance.   The    circumstances
pertaining   to  the governance of the NCT may have a direct and
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immediate impact upon the collective welfare of the nation. This is the
rationale for the exclusion of the subjects of public order, police and land
from the legislative power and necessarily from the executive power of
the NCT. These considerations would necessarily require a careful
balance between the two principles. Each of the two principles must be
given adequate weight in producing a result which promotes the basic
constitutional values of participatory democracy, while at the same time
preserving fundamental concerns in the secure governance of the nation.
G Constitutional History of the NCT
56. Mr Gopal Subramanium, learned Senior Counsel, appearing
on behalf of the NCT, has submitted that the NCT occupies a unique
position in our constitutional jurisprudence. It has been contended by Mr
Subramanium that the NCT, though it remains a Union Territory, has
come to acquire various characteristics that were, prior to the 69th
constitutional amendment, considered under the Constitution to be
characteristics solely of States. As a consequence, the learned Senior
Counsel has further contended, NCT has become a constitutional hybrid
with powers that were formerly only found in full-fledged States of the
Union and therefore enjoys far more powers than the government of
any other Union Territory. On the contrary, Mr Maninder Singh, the
learned Additional Solicitor General has submitted that the NCT finds its
place as a
Union Territory in Part II of Schedule I of the Constitution. It
has been contended on his behalf that the NCT has historically remained
a centrally administered territory with the status of a Union Territory in
the Constitution and that it continues to remain a Union Territory even
after the 69th constitutional amendment.
57. In order to interpret the constitutional scheme envisaged for
the NCT, this Court must analyze the constitutional history and the
evolution of the structure of governance for the NCT as brought into
existence, by various enactments, from time to time.
The Government of Part C States Act, 1951
58. The first Schedule to the Constitution originally contained Part
A, Part B and Part C States. After the adoption of the Constitution, The
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Government of Part C States Act, 1951 was enacted. Section 2(c) defined
the expression Delhi thus:
“Section 2(c) “Delhi”, except where it occurs in the expression
“State of Delhi”, means such area in the State of Delhi as the
Central Government may by notification in the Official Gazette
specify.”
Section 3 provided for the constitution of a legislative assembly for each
state governed by the law. It provided for the establishment of legislative
assemblies for the states of Ajmer, Bhopal, Coorg, Delhi, Himachal
Pradesh and Vindhya Pradesh. The Chief Commissioner was entrusted
with the power, under Section 8(2), to prorogue and dissolve the assembly.
Section 12 conferred upon the Chief Commissioner the right to address
and send messages to the assembly. Section 21 of the Act defined the
extent of legislative power:
“Section 21- Extent of legislative power
 “(1) Subject to the provisions of this Act, the Legislative Assembly
of a State may make laws for the whole or any part of the State
with respect to any of the matters enumerated in the State List or
in the Concurrent List:
Provided that the Legislative Assembly of the State of Delhi shall
not have power to make laws with respect to any of the following
matters, namely:-
(a) Public order;
(b) Police including railway police;
(c) The constitution and powers of municipal corporations and
other local authorities, of improvement trusts and of water supply,
drainage, electricity, transport and other public
utility authorities in
Delhi or in New Delhi;
(d) Lands and buildings vested in or in the possession of the Union
which are situated in Delhi or in New Delhi including all rights in
or over such lands and buildings, the collection of rents therefrom
and the transfer and alienation thereof;
(e) Offences against laws with respect to any of the matters
mentioned in the foregoing clauses;
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(f) Jurisdiction and powers of all courts, with respect to any of the
said matters; and
(g) Fees in respect of any of the said matters other than fees
taken in any court.”
However, sub Section 2 of Section 21 provided that sub section 1 will
not derogate from the power conferred upon Parliament by the
Constitution to make laws with respect to any matter for a state. The
sanction of the Chief Commissioner was required under Section 23 for
certain legislative proposals, these being:
“(a) Constitution and organisation of the court of the Judicial
Commissioner;
(b)Jurisdiction and powers of the court of the Judicial
Commissioner with respect to any of the matters in the State List
or in the Concurrent List;
(c) State Public Service Commission.”
59. A Bill passed by the legislative assembly was, under Section
26, required to be presented to the Chief Commissioner. The Chief
Commissioner in turn was obligated to reserve the Bill for consideration
of the President. If the President directed the Chief Commissioner to
submit the Bill to the Assembly for reconsideration, the Assembly was
required to consider the suggestions and, if the Bill was passed, it had to
be presented again to the President for reconsideration.
60. Section 36 provided for a Council of Ministers:
“Council of Ministers
(1)  There shall be a Council of Ministers in each State with the
Chief Minister at the head to aid and advise the Chief
Commissioner in
the exercise of his functions in relation to
matters, with respect to which the Legislative Assembly of
the State has power to make law except in so far as he is
required by any law to exercise any judicial or quasi-judicial
functions:
      Provided that, in case of difference of opinion between the
Chief Commissioner and his Ministers on any matter, the Chief
Commissioner shall refer it to the President for decision and
act according to the decision given thereon by the President,
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and pending such decision it shall be competent for the Chief
Commissioner in any case where the matter is in his opinion
so urgent that it is necessary for him to take immediate action,
to take such action or to give such direction in the matter as
he deems necessary:
     Provided further that in the State of Delhi every decision
taken by a Minister or by the Council in relation to any matter
concerning New Delhi shall be subject to the concurrence of
the Chief Commissioner, and nothing in this sub-section shall
be construed as preventing the Chief Commissioner in case
of any difference of opinion between him and his Ministers
from taking such action in respect of the administration of
New Delhi as he in his discretion considers necessary.
(2) The Chief Commissioner shall, when he is present, preside at
meetings of the Council of Ministers, and, when the Chief
Commissioner is not present, the Chief Minister or, if he is
also not present, such other Minister as may be determined
by the rules made under sub-section (1) of section 38 shall
preside over meetings of the Council.
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Chief Commissioner is required
by any law to exercise-any judicial or quasi-judicial functions,
the decision of the Chief Commissioner thereon shall be final.
(4) If in the State of Delhi any question arises as to whether any
matter is or is not a matter concerning New Delhi, the decision
of the Chief Commissioner thereon shall be final:
      Provided that in case of any difference of opinion between
the Chief Commissioner and his Ministers on such question,
it shall be referred for the decision of the President and his
decision shall be final.
(5)  The question whether any, and if so what, advice was tendered
by Ministers to the Chief Commissioner shall not be inquired
into in any court.”
Section 36(1) incorporated the aid and advice principle. But where there
was a difference of opinion between the Chief Commissioner and his
ministers “on any matter”, the Chief Commissioner was required to refer
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it to the President and to act in accordance with the decision of the
President. Insofar as the State of Delhi was concerned, under the second
proviso every decision of a Minister or the Council of Ministers in relation
to New Delhi was subject to the concurrence of the Chief Commissioner.
In the event there was a difference of opinion, the Chief Commissioner
had the authority to take such action for the administration of New Delhi
“as he in his discretion considers necessary”.  The Chief Commissioner
would also preside over the meetings of the Council of Ministers. If a
question arose as to whether any matter concerned New Delhi, the
decision of the Chief Commissioner was to be final and if there was a
difference of opinion, it was to be referred to the President for his
decision.
61. Section 36 assumes significance in the context of the present
controversy, because its provisions must be distinguished from the position
which was adopted when the sixty ninth amendment was introduced in
Article 239AA into the Constitution. Four features of Section 36 stand
out : first, the requirement of the concurrence of the Chief Commissioner
to every decision concerning New Delhi; second, empowerment of the
Chief Commissioner, in the event of a difference of opinion to act in his
discretion for the administration of New Delhi; third, the mandate of the
Chief Commissioner being required to preside over meetings of the Council
of
Ministers; and fourth, the requirement of referring any difference of
opinion  on whether a matter concerned New Delhi to the President
whose decision would be final. Article 239AA has made a departure in
critical matters from the position as it obtained under Section 36. First,
(unlike the second proviso to Section 36(1)), Article 239AA(4) does not
mandate that every decision of the Council of Ministers should be subject
to the concurrence of the Lieutenant Governor; second, the provision (in
the second proviso to Section 36(1)) empowering the Chief Commissioner
to act in his discretion on the administration of New Delhi is absent in
Article 239AA(4) except where the Lieutenant Governor on a reference
of a difference of opinion to the President has to deal with an emergent
situation; and third, neither in Article 239AA nor in the GNCTD Act
(and for that matter in the Transaction of Business Rules) has it been
provided that the Lieutenant Governor would preside over meetings of
the Council of Ministers. Section 36 of the erstwhile Act of 1951 created
a hierarchical structure which placed the Chief Commissioner as an
authority superior to the Council of Ministers in the exercise of its
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executive power. Every decision of the Council of Ministers concerning
New Delhi was subject to the concurrence of the Chief Commissioner.
The absence of such a provision in Article 239AA cannot be regarded
as a matter of no constitutional significance. Historically the constituent
body had before it a model which was created by the parliamentary
enactment of 1951 but advisedly did not choose to engraft it into the
provisions of Article 239AA when the sixty ninth amendment was
adopted.
62. The provisions of the Constitution relating to Part A, Part B
and Part C States were abrogated with the adoption of the seventh
amendment75 in 1956. Section 130 of the States Reorganization Act 1956
repealed the 1951 Act. The result has been explained in the Statement
of Objects and Reasons for the 1956 Act.
“… The main features of the reorganization proposed are the
abolition of the existing constitutional distinction between Part A,
Part B and Part C States, the establishment of two categories for
the component units of the Union to be called the States and the
abolition of the institution of the Raj Pramukh consequent on the
disappearance of the Part B States…”.
Consequent upon the seventh amendment to the Constitution, the
expression “the Union territories specified in the First Schedule” was
inserted into the Constitution. Delhi came to be described as a Union
territory upon being included as an entry in the First Schedule. By virtue
of Section 12 of the 1956 Act,
as from the appointed day, in the First
Schedule to the Constitution for Part A, Part B and Part C States, the
parts which followed were substituted. Delhi was described in serial
number 1 of Part C as “the territory which immediately before
commencement of the Constitution was comprised in the Chief
Commissioner’s Province of Delhi”. Delhi became a Union Territory
governed by the Union government through an Administrator who was
appointed by the President.
63. Article 239A was introduced by the fourteenth amendment76
in 1962, as a result of which Parliament was authorized to create, for
certain Union territories, local legislatures and/ or a Council of Ministers.
75 The Constitution (Seventh Amendment) Act 1956
76 The Constitution (Fourteenth Amendment) Act 1962
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The Government of Union Territories Act, 1963
64. On 10 May 1963, the Government of Union Territories Act
1963 was enacted. The Act of 1963 defined the expression Administrator
in Section 2(a) as :
“(a) “Administrator” means the administrator of the Union territory
appointed by the President under article 239;”
Section 3 provided for a legislative assembly. Section 18 provided for
the extent of legislative power in the following terms:
“18. Extent of legislative power. (1) Subject to the provisions of
this Act, the Legislative Assembly of the Union territory may make
laws for the whole or any part of the Union territory with respect
to any of the matters enumerated in the State List or the Concurrent
List in the Seventh Schedule to the Constitution in so far as any
such matter is applicable in relation to Union territories.
 (2) Nothing in sub-section (1) shall derogate from the powers
conferred on Parliament by the Constitution to make laws with
respect to any matter for the Union territory or any part thereof.”
Sub Section 1 of Section 18 was similar in language to Article
239AA(3)(a), without the exclusion of matters relating to Entries 1, 2
and 18 and Entries 64, 65 and 66. Sub Section 2 was similar in language
to Article 239AA(3)(b). Section 21 provided that if there was any
inconsistency between a law made by Parliament and a law made by
the legislative assembly, the law made by Parliament would prevail to
the
extent of repugnancy (this provision is similar in nature to Article
239AA(3)(c).  Section 44 contained the following provision for the Council
of Ministers:
“44. Council of Ministers.
(1) 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 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
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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 is in his opinion so urgent that it is necessary for him to
take immediate action, to take such action or to give such direction
in the matter as he deems necessary:
…
 (3) If and in so far as any special responsibility of the Administrator
is involved under this Act, he shall, in the exercise of his functions,
act in his discretion.”
Section 44 (1) and Article 239AA are pari materia (with the difference
that clause 4 of Article 239AA pegs the strength of the Council of Ministers
to not more than ten per cent of the total number of members of the
legislative assembly). At the same time, it must also be noted that sub
section 3 of Section 44 recognised the power of the Administrator, to act
in his discretion where “any special responsibility” of the Administrator
was involved under the Act. This provision in sub section 3 of Section 44
was in addition to the reservation made in Section 44(1) in respect of
those matters where the administrator was under the Act, required to
act in his discretion or was to exercise judicial or quasi-judicial functions
under any law. The “special responsibility” provision of sub-section 3 of
Section 44 does not find a parallel in Article 239AA.
The Delhi Administration Act, 1966
65. On 2 June 1966, Parliament enacted
the Delhi Administration
Act 1966, “to provide for the administration of the Union territory of
Delhi”. The Act, in Section 3, constituted a Metropolitan Council,
consisting of 56 persons to be directly elected. However, the Central
government was empowered to nominate five persons to the Metropolitan
Council. The tenure of the Metropolitan Council, unless it was sooner
dissolved, was to be five years. Under Section 22 the Metropolitan Council
could make recommendations, on certain matters, insofar as they related
to Delhi. Section 22 provided as follows:
“(1)Subject to the provisions of this Act, the Metropolitan Council
shall have the right to discuss, and make recommendations
with respect to, the following matters in so far as they relate
to Delhi, namely: -
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(a) proposals for undertaking legislation with respect to any of the
matters enumerated in the State List or the Concurrent List in
the Seventh Schedule to the Constitution in so far as any such
matter is applicable in relation to Union territories (hereafter
referred to as the State List and the Concurrent List);
 (b) proposals for extension to Delhi of any enactment in force in
a State relatable to any matter enumerated in the State List or
the Concurrent List;
(c) proposals for legislation referred to it by the Administrator
with respect to any of the matters enumerated in the State
List or the Concurrent List;
(d) the estimated receipts and expenditure pertaining to Delhi to
be credited to and to be made from, the Consolidated Fund of
India; and notwithstanding anything contained in the Delhi
Development Act, 1957, the estimated receipts and expenditure
of the Delhi Development Authority;
(e)  matters of administration involving general policy and schemes
of development in so far as they relate to matters enumerated
in the State List or the Concurrent List;
(f) any other matter referred to it by the Administrator.
(2) The recommendations of the Metropolitan Council, after having
been duly considered by the Executive Council, shall, wherever
necessary, be forwarded by the Administrator to the Central
Government with the views, if any, expressed thereon by the
Executive Council.”
The recommendations of the
Metropolitan Council after they were
considered by the Executive Council were to be forwarded to the Central
government. The function of the Executive Council was to “assist and
advise” the Administrator in the exercise of his functions in relation to
matters in the State List or Concurrent List. Conscious as Parliament
was of the use of the expression “aid and advise” in Articles 74 and 163
of the Constitution; and in Section 36(1) of the Government of Part C
States Act 1951; Section 44 of the Government of Union Territories Act
1963, carefully adopted the expression “assist and advise” in Section 27.
Section 27 was in the following terms:
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“(1) There shall be an Executive Council, consisting of not more
than four members one of whom shall be designated as the
Chief Executive Councilor and others as the Executive
Councilors, to assist and advise the Administrator in the
exercise of his functions in relation to matters enumerated in
the State List or the Concurrent List, except in so far as he is
required by or under this Act to exercise his functions or any
of them 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 the members of the Executive Council on
any matter, other than a matter in respect of which he is
required by or under this Act to act in his discretion, 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 is in his opinion
so urgent that it is necessary for him to take immediate action,
to take such action or to give such direction in the matter as
he deems necessary:
     Provided further that every decision taken by a member of
the Executive Council or by the Executive Council in relation
to any matter concerning New Delhi shall be subject to the
concurrence of the Administrator, and nothing in this sub-
section shall be construed as preventing the Administrator in
case of any
difference of opinion between him and the
members of the Executive Council from taking any action in
respect of the administration of New Delhi as he, in his
discretion, considers necessary.
(2) The Administrator shall preside at every meeting of the
Executive Council, but if he is obliged to absent himself from
any meeting of the Council owing to illness or any other cause,
the Chief Executive Councilor shall preside at the meeting of
the Council.
(3) The functions of the Administrator with respect to law and
order in Delhi including the organization and discipline of police
force, and with respect to such other matters as the President
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may it from time to time specify in this behalf, shall be
exercised by him  in his discretion.
(4)  If any question arises as to whether any matter is or is not a
matter as respects which the Administrator is by or under
this Act required to act in his discretion, the decision of the
Administrator thereon shall be final.
 (5) If any question arises as, to whether any matter is or is not a
matter as respects which the Administrator is required by or
under any law to exercise any judicial or quasi-judicial
functions, the decision of the Administrator thereon shall be
final.
(6)  If any question arises as to whether any matter is or is not a
matter concerning New Delhi, the decision of the
Administrator thereon shall be final.
(7) The question whether any, and if so, what advice was tendered
by any member of the Executive Council to the Administrator
shall not be enquired into in any court.”
Every decision of the Executive Council in relation to any matter
concerning New Delhi was subject to the concurrence of the
Administrator. A provision similar to the second proviso to Section 27(1)
does not find a reference in Article 239AA. Moreover, under sub section
2 of Section 27, the Administrator was to preside at every meeting of the
Executive Council. The members of the Executive Council were, under
Section 28, appointed by the President and held office during the pleasure
of the President. A member of the Executive Council
could not hold
office beyond a period of six months if he was not a member of
Metropolitan Council.
66. The Act of 1966 continued to apply to the Union Territory of
Delhi until the adoption of the sixty ninth amendment to the Constitution
and the GNCTD Act 1991.
The Balakrishnan Committee
67. On 14 December 1989 the Committee constituted by the
Ministry of Home Affairs for making recommendations on the
reorganization of the structure for the governance of Delhi submitted its
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report.  The report of the Committee, which was chaired by Mr S
Balakrishnan (Adviser, Ministry of Home Affairs) observed that there is
a conflict of interest between the need to develop the national capital for
the nation as a whole and the desires of the local population for a greater
autonomy in the conduct of their own affairs.  This conflict was described
in the report thus:
“..The main difficulty lies in reconciling the two conflicting
requirements, namely, the requirement of satisfying the democratic
aspirations over the citizens of the capital to govern themselves in
consonance with the spirit of their national Constitution and the
requirement that the national Government should have sufficient
control over the capital city and its administration for discharging
its national and international responsibilities and commitments.”
The Committee considered the following five options:
“(1) The existing structure under the Delhi Administration Act,
1966 may be retained with such modifications as may be found
necessary.
(2)  The administration of Delhi may be the direct responsibility of
the Central Government except for municipal functions to be
left with the Municipal Corporation or other municipal bodies;
there is no need for any Legislative Assembly or Council of
Ministers.
(3)  Delhi may be made a full-fledged State of the Union.
(4) Delhi may be made a Union territory with a Legislative
Assembly and Council of Ministers.
(5) Delhi may be given a
special status and dispensation under
the Constitution itself.”
The Committee indicated the reasons which had weighed with it in
rejecting the claim for full statehood to Delhi. Firstly, the Committee
noted that the conferment of full statehood would result in a constitutional
division of legislative power between the Union and the State and to that
extent, the Union Executive would be denuded of executive powers in
relation to matters governed by the State list.  In the view of the
Committee:
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“..This 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 interests irrespective of whether the
subject matter is in the State field or Union field.  If the
administration of the national capital is divided into rigid
compartments of State 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. We have given careful thought to
the matter and we are of the considered opinion that any
arrangement for Delhi that involves constitutional division of
powers, functions and responsibilities between the Union and the
government of the national capital will be against the national
interest and should not be made.”
The Committee opined that “the national capital belongs to the nation
as a whole” and hence a demand for full statehood could not be
entertained.  Consistent with its view, the Committee opined that Delhi
should have a Legislative Assembly and a Council of Ministers, while
continuing to
be a Union territory for the purposes of the Constitution.
The legislative powers conferred upon the Legislative Assembly were
to exclude certain specific subjects, having due regard to the special
responsibility of the Union in respect of Delhi.  The Committee
recommended that the subjects of public order and police should be
excluded from the purview of the Legislative Assembly.  The report of
the Committee recommended that the Administrator for the Union
Territory should be expressly required to perform his functions on the
aid and advice of the Council of Ministers.  The expression “aid and
advice”, the Committee noted, is a term of art based on the ---cabinet
form of government adopted by the Constitution.  However, the principle
of aid and advice would be subject to three modifications: (i) it would not
apply in respect of those matters where the Administrator exercises
judicial or quasi-judicial functions; (ii) the Administrator would act on aid
and advice in respect of matters where the legislative Assembly has the
power to make laws; and (iii) a special provision would be made to
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resolve differences between the Administrator and his Council of
Ministers on any matter concerning the administration of Delhi.
The Committee was of the following view:
“..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 for
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..”
The Committee considered whether the administration of Delhi should
be provided for under a law enacted by Parliament, as was the case
earlier.  The Committee recommended a constitutional amendment in
preference to a statute governing the administration of the national capital
as a measure of stability and permanence:
“..any arrangement providing for the structure of government for
the national capital is of great importance and significance to the
nation and, as such, it is desirable that any such
arrangement should
ensure a measure of stability and permanence: The fluid situation
which existed at the time when the Constitution came into force
and which was the ground relied upon at that time for making a
flexible arrangement no longer exists. We, therefore, consider that
the time has come for making specific constitutional provisions
for the structure of government for the national capital at least in
regard to the core features thereof.  If the provisions are
incorporated in the Constitution an amendment can be made only
by a two-thirds majority in parliament which may not always be
available.  To that extent a scheme incorporated in the Constitution
would be more permanent than one in a law of parliament.  We
have no doubt that this will go a long way in assuring the people of
Delhi that the governmental structure will be stable and will not
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suffer by the play of political forces.”
The Committee thus recommended a constitutional amendment, with
the above core features, with parliamentary legislation supplementing
them in details.
68. The Statement of Objects and Reasons for the sixty ninth
amendment to the Constitution explains its rationale in the following terms :
“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.” (Emphasis supplied)
The avowed object of the sixty ninth amendment was to ensure that
while Delhi would continue to be a Union territory, it would have a
legislative assembly and a Council of Ministers responsible to it. This
was to vest “appropriate powers” to deal with the matters of concern to
the common man. The object of the constitutional amendment was to
attribute “stability and permanence” to the arrangements to govern the
Union territory and to confer “a special status among the Union
territories” to the national Capital. In other words, while the status of the
NCT would be of a Union
territory, it nonetheless had a special status
within the class of Union Territories.
69. Having regard to this history and background, it would be
fundamentally inappropriate to assign to the NCT a status similar to
other Union territories. Article 239AA(4) is a special provision which
was adopted to establish a special constitutional arrangement for the
governance of the NCT, albeit within the rubric of Union territories. In
interpreting the provisions of Article 239AA, this Court cannot adopt a
blinkered view, which ignores legislative and constitutional history. While
adopting some of the provisions of the Acts of 1963 and 1966, Parliament
in its constituent capacity omitted some of the other provisions of the
legislative enactments which preceded the sixty ninth amendment. The
relationship between the Council of Ministers and the Administrator of
the Union territory evolved as Delhi progressed from a Part C State
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(before the Seventh Amendment) to a Union Territory governed by
legislation. As a Union territory, the position of Delhi has evolved from
being administered by an  Administrator under Article 239A following
the fourteenth amendment and from governance under the earlier
enactments of Parliament to its present-day status as a national capital
territory governed by a specific constitutional provision:  Article 239AA.
We have noticed how, when Delhi was within the purview of the Part C
States Act, every decision of the Council of Ministers on any matter
concerning New Delhi was subject to the concurrence of the Chief
Commissioner and any difference of opinion was to be resolved by the
Chief Commissioner himself acting in his discretion to administer New
Delhi. Under the Act of 1963, besides matters which the Administrator
was required to act in his discretion or where he was to exercise judicial
or quasi-judicial functions under law there were matters vested in the
Administrator in his “special responsibility” where he could act in his
discretion. Under the Act of 1966, the Executive Council was to “assistand
advice” the Administrator and each one of its decisions in relation to any
matter concerning New Delhi was subject to the concurrence of the
Administrator. The absence of similar provisions in Article 239AA cannot
be ignored while defining the nature of the relationship between the
Council of Ministers and the Lieutenant Governor and the authority of
the
Lieutenant Governor.
H NCT : A Special Class among Union Territories?
70. All Union territories are grouped together in Part VIII of the
Constitution. While bringing them under the rubric of one constitutional
pairing, there is an unmistakable distinction created between them by
the Constitution. Such a distinction originates in Article 239(1) itself.
While setting out the basic premise that “every Union territory shall be
administered by the President”, Article 239(1) conditions it upon two
important qualifications. The first is provided by the language with which
Article 239(1) opens, which is: “save as otherwise provided by Parliament
by law”. The second qualification is that the President may exercise the
power of administering each Union territory “to such extent as he thinks
fit” through an Administrator. The opening words essentially leave it to
Parliament to determine the nature and extent to which the administration
of a Union territory would be exercised through the President. The
President may exercise that power through the office of an Administrator
to such extent as he thinks fit. The expression “to such extent as he
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thinks fit” enunciates a constitutional discretion by which the limits of
the exercise by the President of the power of administration through an
Administrator are to be set. Both these qualifications have significant
constitutional implications because they leave open the nature and extent
of the administration of the Union territory by the President, through the
auspices of an Administrator, to the determination by Parliamentary
legislation.
71. The provisions of Article 239 result in significant consequences
for the position of Union territories. Article 239 does not elucidate the
nature or extent of administrative or regulatory control over the Union
territory. Article 239A (which presently applies to Puducherry), Article
239AA (which has special provisions for Delhi) and Article 240 leave no
manner of doubt that the relationship of the Union government with
every Union and the extent of Presidential control over the administration
is not intended to be uniform. These three Articles indicate that a
distinction has been made between the status of Union territories at
least in terms of the exercise of legislative powers in relation to executive
functions.
72. This distinction would emerge from a close reading of the
provisions of Article 240 which governs :
(i) The Andaman and Nicobar Islands;
(ii) Lakshadweep;
(iii) Daman and Diu;
(iv) Dadar and Nagar Haveli; and
(v) Puducherry.
Clause 1 of Article 240 enables the
President to make regulations for
“the peace, progress and good government” of the Union territories
mentioned above. Article 239A as we have noticed earlier, empowers
Parliament to create a local legislature or a Council of Ministers (or
both) for Puducherry. Once Parliament enacts legislation under clause 1
of Article 239A, it would be incongruous to have a duality of governance
with the President making regulations for peace, progress and good
government as well. Hence, the proviso to Article 240(1) states that the
President shall not make any such regulation after the legislature for the
Union territory of Puducherry has first convened, when a Parliamentary
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legislation under Article 239A creates a body to function as a legislature.
However, when the legislature is dissolved or its functioning is eclipsed
pursuant to a Parliamentary legislation, the Presidential power to make
regulations for peace, progress and good government is revived.
Puducherry was therefore grouped together with the other Union
territories under Article 240(1) but in contemplation of a law made by
Parliament under Article 239A, a specific constitutional mandate allows
for the entrustment of legislative and executive functions to the extent
that they are transferred under the law to the local legislature or, as the
case may be, to the Council of Ministers. If Parliament were to enact no
law at all, the President would continue to retain the power to frame
regulations. Moreover, even upon the enactment of Parliamentary
legislation, the Presidential power to frame regulations for Puducherry
is revived where the legislature stands dissolved or its functioning is
suspended.
73. Delhi presents a special constitutional status under Article
239AA. This is fortified when those provisions are read in contrast with
Articles 239A and 240. Article 239AA does not incorporate the language
or scheme of Article 240(1), which enables the President to frame
regulations for peace, progress and good government of the Union
territories referred to in Article 240(1). This proviso to Article 240(1)
indicates that once a Parliamentary law has been framed, the
President
shall not frame regulations for Puducherry. In the case of Delhi, Article
239AA does not leave the constitution of a legislature or the Council of
Ministers to a law to be framed by Parliament in future. Article 239AA
mandates that there shall be a legislative assembly for the NCT and
there shall be a Council of Ministers, with the function of tendering aid
and advice to the Lieutenant Governor. The “there shall be” formulation
is indicative of a constitutional mandate. Bringing into being a legislative
assembly and a Council of Ministers for the NCT was not relegated by
Parliament (in its constituent power) to its legislative wisdom at a future
date upon the enactment of enabling legislation. Clause 7(a) of Article
239AA enables Parliament by law to make provisions to give effect to
or to supplement the provisions contained in that Article. Parliament’s
power is to enforce, implement and fortify Article 239AA and its defining
norms.
74. The above analysis would indicate that while Part VIII brings
together a common grouping of all Union territories, the Constitution
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evidently did not intend to use the same brush to paint the details of their
position, the institutions of governance (legislative or executive), the nature
of democratic participation or the extent of accountability of those
entrusted with governance to their elected representatives. Hence, 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. Representative government is a hallmark of a Constitution
which is wedded to democracy for it is through a democratic form of
governance that the aspirations of those who elect their representatives
are met. Undoubtedly, governance of the NCT involves national
imperatives. They must also weigh in the balance. The proviso to clause
4 of Article 239AA 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 the legislative assembly and their entrustment to
Parliament. Again, it is the sense of a national imperative which led to
the constituent
power being so modulated in relation to the NCT as to
allow Parliamentary legislative authority over all entries in the State list,
in addition to the Concurrent list. Parliament does not exercise legislative
authority in relation to State list entries as regards the states in India
unless a matter falls within the ambit of Articles 252 or 253. Parliamentary
legislative control over Union territories has been broadened precisely
as a manifestation of national imperatives or concerns. The executive
power of the Council of Ministers being co-extensive with legislative
power, this aspect has to be borne in mind. The true challenge is to
maintain that delicate balance in a federating Union, such as ours, which
ensures that national concerns are preserved in the interest of the unity
and integrity of the nation, while at the same time local aspirations
exercised through the democratic functioning of elected governments
find expression in our polity.
75. 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
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(expressed through the mandate of a Council of Ministers which owes
collective responsibility to a directly elected legislature). There is no
gainsaying 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. This
Court has to step in only because skirmishes between the two have
raised constitutional issues of the proper distribution of executive control
over the National Capital Territory.
I  The  Government  of  National  Capital  Territory of Delhi
Act, 1991
76. Parliament enacted the Government of National Capital
Territory of Delhi Act 199177 “to supplement the provisions of the
Constitution relating to the legislative assembly and a Council of Ministers
for the National Capital Territory of Delhi”.  The legislation has been
enacted in pursuance of the provisions of clause 7(a) of Article 239AA.
77. Some of the salient features of the law merit reference. The
law mandates direct election from territorial constituencies to the
legislative assembly78. The duration of the assembly is fixed at five
years79. The Lieutenant Governor has the right to address and to
communicate messages to the assembly80.
The law provides special
provisions for financial bills81. A recommendation of the Lieutenant
Governor, prior to the introduction of a Bill or amendment in the legislative
assembly is mandatory, where it incorporates a provision for any of the
following :
“(a) the imposition, abolition, remission, alteration or regulation of
any tax ;
(b)  the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government
of the Capital;
77 Act 1 of 1992 (Referred hereinafter as the “GNCTD Act”
78 Section 3, GNCTD Act
79 Section 5, GNCTD Act
80 Section 9, GNCTD Act
81 Section 22, GNCTD Act
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(c)  the appropriation of moneys out of the Consolidated Fund of
the Capital;
(d)  the declaring of any expenditure to be expenditure charged
on the Consolidated fund of the Capital or the increasing of
the amount of any such expenditure;”82
Similarly, if a Bill, when enacted into law, would involve an expenditure
from the consolidated fund of the Capital, it requires the prior
recommendation of the Lieutenant Governor before being passed by the
legislative assembly. Assent of the Lieutenant Governor to Bills passed
by the legislative assembly is mandated in the following terms:
“Section 24. Assent to Bills : - When a Bill has been passed by the
Legislative Assembly, it shall be presented to the Lieutenant
Governor and the Lieutenant Governor shall declare either that
he assents to the Bill or that he withholds assent therefrom or that
he reserves the Bill for the consideration of the President :
Provided that the Lieutenant Governor may, as soon as possible
after the presentation of the Bill to him for assent, return the Bill
if it is not a Money Bill together with a message requesting that
the Assembly will consider the Bill or any specified provisions
thereof, and, in particular, will consider the desirability of introducing
any such amendments as he may recommend in his message and,
when a Bill is so returned, the Assembly will reconsider the Bill
accordingly,  and if the Bill is passed again with or without
amendment and presented to the Lieutenant Governor for assent,
the Lieutenant Governor shall declare either that he assents to
the Bill or that he reserves the Bill for the consideration of the
President:
Provided further that the Lieutenant Governor shall not assent to,
but shall reserve for the consideration of the President, any Bill
which, -
(a) in the opinion of the Lieutenant Governor would, if it became
law, so derogate from the powers of the High Court as to endanger
the position which that court is, by the Constitution, designed to
fill; or
82 Section 22(1), GNCTD Act
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(b) the President may, by order, direct to be reserved for his
consideration; or
(c) relates to matters referred to in sub-section (5) of section 7 or
section 19 or section 34 or sub-section (3) of section 43.
Explanation :- For the purposes of this section and section 25, a
Bill shall be deemed to be a Money Bill if it contains only provisions
dealing with all or any of the matters specified in sub-section (1)
of section 22 or any matter incidental to any of those matters and,
in either case, there is endorsed thereon the certificate of the
Speaker of the Legislative Assembly signed by him that it is a
Money Bill.” 
As the above provisions indicate, the Lieutenant Governor can assent to
a Bill, withhold assent or reserve the Bill for consideration of the President.
Where the Bill is not a Money Bill, the Lieutenant Governor is permitted
to return it for reconsideration to the Assembly. Thereafter, if the Bill is
passed again by the Assembly, the Lieutenant Governor can either assent
to the Bill or reserve it for consideration of the President. The second
proviso sets out three categories of Bills which the Lieutenant Governor
must reserve for the consideration of the President. Where the Bill has
been reserved for the consideration of the President, Section 25 stipulates
that the President may either assent or withhold assent to the Bill. The
President may, if it is not a Money Bill, direct the Lieutenant Governor to
return the Bill to the assembly for
reconsideration and if it is again passed,
the Bill has to be presented again to the President for consideration.
78. The power of the Lieutenant Governor is wider than the power
of the Governor of a State under Article 200 of the Constitution. Article
200 provides as follows:
“Article 200. When a Bill has been passed by the Legislative
Assembly of a State or, in the case of a State having a Legislative
Council, has been passed by both Houses of the Legislature of
the State, it shall be presented to the Governor and the Governor
shall declare either that he assents to the Bill or that he withholds
assent therefrom or that he reserves the Bill for the consideration
of the President:
Provided that the Governor may, as soon as possible after the
presentation to him of the Bill for assent, return the Bill if it is not
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a Money Bill together with a message requesting that the House
or Houses will reconsider the Bill or any specified provisions
thereof and, in particular, will consider the desirability of introducing
any such amendments as he may recommend in his message and,
Assent to Bills. When a Bill is so returned, the House or Houses
shall reconsider the Bill accordingly, and if the Bill is passed again
by the House or Houses with or without amendment and presented
to the Governor for assent, the Governor shall not withhold assent
therefrom: Provided further that the Governor shall not assent to,
but shall reserve for the consideration of the President, any Bill
which in the opinion of the Governor would, if it became law, so
derogate from the powers of the High Court as to endanger the
position which that Court is by this Constitution designed to fill.”
Under Article 200, where the Governor has returned a Bill (not being a
Money Bill) to the legislative assembly of the State for reconsideration
and the Bill is passed by the legislature, the Governor is precluded from
withholding assent. In contrast, Section 24 confers authority upon the
Lieutenant Governor, even if a Bill has been reconsidered and passed by
the legislative assembly of the NCT, to either assent to it or reserve it for
consideration of the President. Moreover, the second proviso to Section
24 widens the categories of Bills which the Lieutenant Governor must
necessarily reserve for the consideration of the President. Clause (a) of
the second proviso corresponds to the second proviso to Article 200. In
addition, clause (b) of the second proviso to Section 24 empowers the
President to direct the Lieutenant Governor to reserve a Bill for his
consideration. Similarly, under clause (c), Bills relating to salaries payable
to the Speaker, Deputy Speaker and the members of the legislative
assembly of NCT, the official language of the Capital and of the legislative
assembly and the salaries and the allowances of the Ministers, are matters
upon which the Lieutenant Governor has to reserve a Bill for the
consideration of the President. These provisions indicate a greater degree
of interface between the President and the Lieutenant Governor.
79. Section 27 provides for the laying of an annual financial
statement by the Lieutenant Governor before the legislative assembly
with the previous sanction of the President, containing the estimated
receipts and expenditure of the Capital for that year. Section 29 makes
a provision for appropriation Bills. Section 30 provides for supplementary,
additional or excess grants. Here again, a provision has been made for
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the previous sanction of the President. Section 33 empowers the legislative
assembly to make rules for regulating, subject to the Act, its procedure
and conduct of business. The Lieutenant Governor upon consulting the
Speaker of legislative assembly and with the approval of the President
may make rules for the timely completion of financial business; for
regulating the procedure of and the conduct of business in the legislative
assembly in relation to financial matters of Bills; for the appropriation of
moneys within the consolidated fund of the Capital; and for prohibiting
any discussion on matters where the Lieutenant Governor is to act in his
discretion. Under Section 34, the President has been empowered to direct
that the official language of the Union shall be adopted for such of the
official purposes of the Capital as may be specified, and that any other
language shall also be adopted.
80. Part IV of the GNCTD Act has inter alia made provisions
for matters which lie in the discretion of the Lieutenant Governor, the
conduct of business, and the duty of the Chief Minister to communicate
with and share information with the Lieutenant Governor. Section 41
provides thus:
“Section 41. Matters in which Lieutenant Governor to act in his
discretion:-
(1)  The Lieutenant Governor shall act in his discretion in a matter  –
(i)   which falls outside the purview of the powers conferred on
the Legislative Assembly but in respect of which powers or
functions are
entrusted or delegated to him by the President
; or
 (ii)  in which he is required by or under any law to act in his
discretion or to exercise any judicial functions.
 (2) If any question arises as to whether any matter is or is not a
matter as respects with the Lieutenant Governor is by or under
any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final.
 (3) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is by or
under any law required by any law to exercise any judicial or
quasi-judicial functions, the decision of the Lieutenant
Governor thereon shall be final.”
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SUPREME COURT REPORTS
[2018] 7 S.C.R.
81. The Lieutenant Governor acts in his discretion in two classes
of matters. The first consists of those which are outside the powers
conferred upon the legislative assembly but in respect of which the
President has delegated powers and functions to the Lieutenant Governor.
The second category consists of those matters where the Lieutenant
Governor is required to act in his discretion by or under any law or under
which he exercises judicial or quasi-judicial functions. Matters falling
within the ambit of Section 41 lie outside the realm of the aid and advice
mandate. Where a subject or matter lies outside the purview of the
legislative assembly, it necessarily lies outside the executive powers of
the government of the NCT. Such matters stand excepted from the
ambit of the aid and advice which is tendered by the Council of Ministers
to the Lieutenant Governor.
82. Section 44 stipulates that the President may make rules for
the conduct of business:
“Section 44. Conduct of business:
(1)  The President shall make rules -
(a)  for the allocation of business to the Ministers in so far as it is
business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of
Ministers; and
(b)  for the more convenient transaction of business with the
Ministers, including the procedure to be adopted in the case
of a difference of opinion between the Lieutenant Governor
and the Council of
Ministers or a Minister.
 (2)  Save as otherwise provided in this Act, all executive action
of the Lieutenant Governor whether taken on the advice of
his Ministers or otherwise shall be expressed to be taken in
the name of the Lieutenant Governor.
 (3) Orders and other instruments made and executed in the name
of the Lieutenant Governor shall be authenticated in such
manner as may be specified in rules to be made by the
Lieutenant Governor and the validity of an order or instrument
which is so authenticated shall not be called in question on
the ground that it is not an order or instrument made or executed
by the Lieutenant Governor.”