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
A
B
C
D
E
F
G
H
257
Under Section 44, the allocation of business amongst ministers in the
government on matters where the Lieutenant Governor is to act on the
aid and advice of the Council of Ministers has to be prescribed by the
rules framed by the President. Similarly, rules for the convenient
transaction of business with Ministers and for the modalities to be followed
where there is a difference between the Lieutenant Governor and the
Council of Ministers or a Minister are framed by the President. All
executive action is under sub-section 2 expressed in the name of the
Lieutenant Governor. Sub-Section 3 provides for the authentication of
orders and instruments made and executed in the name of the Lieutenant
Governor.
83. Section 44 may be distinguished from the provisions of the
Constitution in relation to the conduct of business of the Union government
(under Article 77) and the conduct of business of the States (under Article
166). Article 77 inter alia stipulates that all executive action of the Union
government shall be expressed in the name of the President and that
orders or instruments in the name of the President shall be authenticated
in accordance with the rules framed by the President. The President is
empowered to make rules for the convenient transaction of business
and for allocation of that business among ministers. Article 166 is pari
materia (with the substitution of the Governor, for the President in relation
to a State). Unlike in the case of a State,
where rules of business are
prescribed by the Governor, Section 44 requires that the rules in relation
to the conduct of business in the NCT be framed by the President.
Moreover, there is no provision analogous to the proviso to Article
239AA(4) in relation to the affairs of a State under the Constitution.
Article 167 does not contain a provision for the procedure to be adopted
where there is a difference of opinion between the Governor and the
Council of Ministers.
84. Section 45 provides for the duty of the Chief Minister to
communicate with and share information with the Lieutenant Governor:
      “Section 45. Duties of Chief Minister as respects the furnishing
of information to the Lieutenant Governor, etc,- It shall be
the duty of the Chief Minister –
(a)  to communicate to the Lieutenant Governor all decisions of
the Council of Ministers relating to the administration of the
affairs of the Capital and proposals for legislation;
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
258
SUPREME COURT REPORTS
[2018] 7 S.C.R.
(b)  to furnish such information relating to the administration of
the affairs of the Capital and proposals for legislation as
Lieutenant Governor may call for; and
(c)  If the Lieutenant Governor so requires, to submit for the
consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not
been considered by the Council.”
Section 45 is similar in terms to Article 78 (in relation to the Prime Minister)
and Article 167 (in relation to a Chief Minister of a State). Articles 78
and 167 embody the fundamental duty of the elected head of government
in a cabinet form of government to communicate with the titular head of
state and to furnish information in regard to the affairs of the state. The
duty to keep the head of State informed in relation to the affairs of State
arises because real decision making vests in the elected executive. Since
decisions are taken by the executive, the head of State is kept apprised
in reference to his constitutional position as titular head.
85. Section 46 provides for the Consolidated Fund of the Capital.
Section 47 provides for contingency funds. Section 47(A) provides that
the executive power of the Union extends to borrowing upon the security
of the Consolidated Fund of the Capital within the limits determined by
Parliamentary legislation.
86. Section 49 establishes the principle of the “general control” of
the President over the
Lieutenant Governor and the Council of Ministers.
“Section 49. Relation of Lieutenant Governor and his Ministers to
President – Notwithstanding anything in this Act, the Lieutenant
Governor and his Council of Ministers shall be under the general
control of, and comply with such particular directions, if any, as
may from time to time be given by the President.”
As an incident of control, the Lieutenant Governor and Council of
Ministers must comply with the particular directions issued by the
President. Such directions are obviously issued on the aid and advise of
the Union Council of Ministers.
Section 52 stipulates that all contracts relating to the administration of
the Capital are made in exercise of the executive power of the Union
and suits and proceedings in connection with the administration can be
instituted by or against the Union government.
A
B
C
D
E
F
G
H
259
87. This survey of the provisions of the GNCTD Act 1991 indicates
that there is a significant interface between the President and the
Lieutenant Governor in matters relating to the administration of the
Capital. The Lieutenant Governor has been conferred with certain specific
powers by the provisions of the Act including, among them, requirements
of seeking the prior recommendation of the President to the introduction
of financial Bills. As we have seen, the Lieutenant Governor has been
subjected to a wider obligation to reserve Bills for the consideration of
the President and in regard to withholding of his assent to a Bill which
has been passed by the legislative assembly in comparison with the duties
of a Governor of a State.  Matters such as the presentation of the annual
financial   statement   or   supplementary,   additional   or   excess   grants
require previous sanction of the President. The President has been
conferred with the power to issue directions in regard to the official
language of the National Capital Territory. The Lieutenant Governor
has been vested with the power to act in his own discretion in matters
which fall outside the ambit and power of the legislative assembly and
which have been delegated to him by the President as well as in regard
to those matters where he is required under law to exercise his own
discretion or to act in exercise of judicial or quasi judicial functions.
Rules for the conduct of business are framed by the
President in relation
to the National Capital Territory, including for the allocation of business.
They would include the procedure to be followed where there is a
difference of opinion between the Lieutenant Governor and the Council
of Ministers. Section 49, which has a non-obstante provision, subjects
the Lieutenant Governor and the Council of Ministers to the general
control of the President and to such directions as may be issued from
time to time.
J The Transaction of Business Rules, 1993
88. The Transaction of Business of the Government of National
Capital Territory of Delhi Rules, 1993 (“Transaction of Business Rules”)
have been formulated by the President in exercise of powers conferred
by Section 44 of the GNCTD Act 1991. Rule 4(1) embodies the principle
of collective responsibility. According to the Rule 4(1):
“4. (1) The Council shall be collectively responsible for all the
execution orders issued by any Department in the name of the
Lieutenant Governor and contracts made in the name of the
President in connection with the administration of the Capital
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
260
SUPREME COURT REPORTS
[2018] 7 S.C.R.
whether such orders or contracts are authorised by an individual
Minister in respect of a matter pertaining to the Department under
his charge or as a result or discussions at a meeting of the Council.”
89. Rule 7 stipulates that all proposals which are referred to in the
Schedule must be placed before the Council of Ministers in accordance
with the provisions contained in Chapter 3. All such proposals after
consideration by the Minister-in-charge have to be submitted to the Chief
Minister. Rule 8 envisages orders of the Chief Minister either for
circulation of a proposal under Rule 9 or for placing it for consideration
of the Ministers. Rule 9 empowers the Chief Minister to circulate
proposals to the Ministers for opinion instead of placing them before the
Council of Ministers. A proposal can be passed by circulation only if
there is unanimity of opinion among the Ministers.
90. The Transaction of Business Rules contain elaborate provisions
for the Lieutenant Governor to be kept informed right from the stage of
a proposal. Rule 9(2), stipulates that where a proposal is circulated, a
memorandum explaining the proposal has to be prepared for circulation
among the Ministers and simultaneously a copy has to be forwarded to
the Lieutenant Governor. According to the Rule 9(2):
“If it is decided to circulate any proposal, the Department to which
it belongs, shall prepare a memorandum setting out in brief the
facts of the
proposal, the points for decision and the
recommendations of the Minister in charge and forward copies
thereof to the Secretary to the Council who shall arrange to
circulate the same among the Ministers and simultaneously send
a copy thereof to the Lieutenant Governor.”
Under Rule 10(4), if the Chief Minister accepts the recommendations,
he is to return the proposal with his orders to the Secretary to the Council
of Ministers. Thereupon, Rule 10(5) stipulates that :
“On receipt of the proposal, the Secretary to the Council shall
communicate the decision to the Lieutenant Governor and pass
on the proposal to the Secretary concerned who shall thereafter
take necessary steps to issue the orders unless a reference to the
Central Government is required in pursuance of the provisions of
Chapter V.”
Rule 10(5) requires that on receipt of a proposal, the Secretary to the
Council is to communicate the decision to the Lieutenant Governor and
A
B
C
D
E
F
G
H
261
to share the proposal with the Secretary of the concerned department.
The Secretary of the department concerned would proceed to issue
orders, unless a reference to the Central government is required under
Chapter V. Chapter V, as we shall note hereafter, deals with a situation
where there has been a difference of opinion between the Lieutenant
Governor and the Council of Ministers.
91. Proposals which are required to be placed before the Council
of Ministers are dealt with in Rule 11, which provides thus :
“When it has been decided to place a proposal before the Council,
the Department to which it belongs, shall, unless the Chief Minister
otherwise directs, prepare a memorandum indicating precisely the
salient facts of the proposal and the points for decision. Copies of
the memorandum and such other documents, as are necessary to
enable the proposal to be disposed of shall be forwarded to the
Secretary to the Council who shall arrange to circulate the
memorandum to the Ministers and simultaneously send a copy
thereof to the Lieutenant Governor.”
A memorandum explaining the proposal is placed by the department to
which the proposal belongs before the Secretary to the Council. The
latter circulates the memorandum to the Ministers and simultaneously
sends a copy to the Lieutenant Governor. Rule 13(3) requires that the
agenda, upon being approved by the Chief Minister, must be forwarded
by the Secretary to the Council to the Lieutenant Governor, the Chief
Minister and other Ministers. A record of the decisions taken in the
meetings of the Council is prepared and, under Rule 13(7), the Secretary
to the Council is required to forward a copy to the Ministers and to the
Lieutenant Governor. Rule 14 provides thus:
“(1) The decision of the Council relating to each proposal shall be
separately recorded and after approval by the Chief Minister, or
the Minister presiding , shall be placed with the records of the
proposal. After approval by the Chief Minister or the Minister
presiding , the decision of the Council as approved, shall be
forwarded by the Secretary to the Council to the Lieutenant
Governor.
(2) Where a proposal has been approved by the Council and the
approved record of the decision has been communicated to the
Lieutenant Governor, the Minister concerned shall take necessary
action to give effect to the decision.”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
262
SUPREME COURT REPORTS
[2018] 7 S.C.R.
After a decision has been taken by the Council on a proposal and upon
the approval by the Chief Minister, the decision is forwarded to the
Lieutenant Governor.  After the decision has been communicated to the
Lieutenant Governor, the Minister concerned is empowered to give effect
to the decision.
92. Rule 15 empowers the Minister in charge of a department to
dispose of proposals or matters in the department in accordance with
the Standing Orders. Copies of the Standing Orders have to be forwarded
to the Lieutenant Governor and to the Chief Minister. Under Rule 16,
the Minister can provide, by means of Standing Orders, for matters to
be brought to his personal notice. Copies of the Standing Orders have to
be forwarded to the Lieutenant Governor and the Chief Minister. Rule
17 requires a weekly submission of statements containing particulars of
important proposals or matters disposed of in the department both to the
Lieutenant Governor and the Chief Minister.
93. Rule 19(5) confers authority upon the Lieutenant Governor to
call for papers of a proposal or matter from any department. Rule 19(5)
is in the following terms:
“The Lieutenant Governor may call for papers relating to any
proposal or matter in any Department and such requisition shall
be complied with by the Secretary to the Department concerned,
he shall simultaneously inform the Minister-in-charge of the
department of the action taken by him.”
Rule 22 provides
for a class of matters which shall be brought to the
attention of the Lieutenant Governor and the Chief Minister:
“Any matter which is likely to bring the Government of the Capital
into controversy with the Central Government or with any State
Government, shall, as soon as possible, be brought to the notice of
the Lieutenant Governor and the Chief Minister.”
Rule 23 provides for classes of proposals or matters which must be
submitted to the Lieutenant Governor before orders are issued. Rule 23
is in the following terms:
“The following classes of proposals or matters shall essentially be
submitted to the Lieutenant Governor through the Chief Secretary
and the Chief Minister before issuing any orders thereon, namely:
A
B
C
D
E
F
G
H
263
(i)  matters which affect or are likely to affect the peace and
tranquillity of the capital;
(ii)   matters which affect or are likely to affect the interest of any
minority community, Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with
any State Government , the Supreme Court of India or the
High Court of Delhi;
(iv) proposals or matters required to be referred to the Central
Government under the Act or under Chapter V;
(v)  matters pertaining to the Lieutenant Governor’s Secretariat
and personnel establishment and other matters relating to his
office;
(vi)  matters on which Lieutenant Governor is required to make
order under any law or instrument in force;
(vii) petitions for mercy from persons under sentence for death
and other important cases in which it is proposed to
recommend any revision of a judicial sentence;
(viii)matters relating to summoning, prorogation and dissolution of
the Legislative Assembly, removal of disqualification of voters
at elections to the Legislative Assembly, Local Self
Government Institutions and other matters connected with
those; and
(ix) any other proposals or matters of administrative importance
which the Chief Minister may consider necessary.”
Rule 24 provides thus:
“Where the Lieutenant Governor is of the opinion that any further
action should be taken or that action should be taken otherwise
than in accordance with the orders passed by the Minister in-
charge, he may
require the proposal or matter to be placed before
the Council for consideration: Provided that the notes, minutes or
comments of the Lieutenant Governor in any such case shall not
be brought on the Secretariat record unless the Lieutenant
Governor so directs.”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
264
SUPREME COURT REPORTS
[2018] 7 S.C.R.
Rule 25 casts a duty on the Chief Minister to furnish to the Lieutenant
Governor information on certain matters pertaining to the administration
of the Capital. According to Rule 25:
“The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such
information relating to the administration of the Capital and
proposals for legislation as the Lieutenant Governor may call
for; and
(b) if the Lieutenant Governor so requires, submit for the
consideration of the Council any matter on which a decision
has been taken by a Minister but which has not been
considered by the Council.”
Rule 45 of the Transaction of Business Rules deals with the disposal of
business relating to the executive functions of the Lieutenant Governor.
Under Rule 45:
“The Lieutenant Governor, may by standing orders in writing,
regulate the transaction and disposal of the business relating to
his executive functions:
Provided that the standing orders shall be consistent with the
provisions of this Chapter, Chapter V and the instructions issued
by the Central Government for time to time.
Provided further that the Lieutenant Governor shall in respect of
matters connected with ‘public order’, ‘police’ and ‘land’ exercise
his executive functions to the extent delegated to him by the
President in consultation with the Chief Minister, if it is so provided
under any order issued by the President under article 239 of the
Constitution. Provided
further that ‘standing orders’ shall not be
inconsistent with the rules concerning transaction of business.”
The second proviso deals with the class of subjects (public order, police
and law) which stand carved out of the legislative powers of the Assembly
and hence lie outside the executive powers of the NCT government. On
such matters, to the extent to which functions are delegated to the
Lieutenant Governor by the President, the Lieutenant Governor will
consult the Chief Minister if the President has so provided in an order
under Article 239.
A
B
C
D
E
F
G
H
265
Rule 46 makes provisions in regard to persons serving in connection
with the administration of the National Capital Territory:
“(1)With respect to persons serving in connection with the
administration of the National Capital Territory, the Lieutenant
Governor shall, exercise such powers and perform such
functions as may be entrusted to him under the provisions of
the rules and orders regulating the conditions of service of
such persons or by any other order of the President in
consultation with the Chief Minister, if it is so provided under
any order issued by the President under article 239 of the
Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
Commission on all matters on which the Commission is
required to be consulted under clause(3) of article 320 of the
Constitution; and in every such case he shall not make any
order otherwise than in accordance with the advice of the
Union Public Services Commission unless authorised to do
so by the Central Government.
(3)  All correspondence with Union Public Service Commission
and the Central Government regarding recruitment and
conditions of service of persons serving in connection with
the administration of National Capital Territory shall be
conducted by the Chief Secretary or Secretary of the
Department concerned under the direction of the Lieutenant
Governor.”
Under Rule 47, the Lieutenant Governor has to consult the Union
government before exercising his powers or discharging his functions in
respect of any matter for which no specific provision is contained in the
Rules.
94. Chapter V of the Transaction of Business Rules sets out the
procedure to be followed by the Lieutenant Governor in making a
reference to the Central government in the event of a difference of
opinion with the Council of Ministers. Rules 49, 50 and 51 provide as
follows:
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
266
SUPREME COURT REPORTS
[2018] 7 S.C.R.
“49.In case of difference of opinion between the Lieutenant
Governor and a Minister in regard to any matter, the Lieutenant
Governor shall endeavour by discussion on the matter to settle
any point on which such difference of opinion has arisen.
Should the difference of opinion persist, the Lieutenant
Governor may direct that the matter be referred to the
Council.”
“50.In case of difference of opinion between the Lieutenant
Governor and the Council with regard to any matter, the
Lieutenant Governor shall refer it to the Central Government
for the decision of the President and shall act according to
the decision of the President.”
“51.Where a case is referred to the Central Government in
pursuance of rule 50, it shall be competent for the Lieutenant
Governor to direct that action shall be suspended pending the
decision of the President on such case or in any case where
the matter, in his opinion, is such that it is necessary that
immediate action should be taken to give such direction or
take such action in the matter as he deems necessary.”
Where a direction has been issued by the Lieutenant Governor under
Rule 51, the Minister concerned must take action to give effect to the
direction.
95. Under Rule 53, an annual plan for each financial year is to be
prepared under the directions of the Lieutenant Governor which has to
be referred to the Central government for approval. The form of the
annual financial statement and
the procedure for obtaining the approval
of the President have to be prescribed by the Central government under
Rule 54.
96. Rule 55(1) provides for certain categories of legislative
proposals which must be referred to the Central government by the
Lieutenant Governor. Rule 55(2) enunciates those matters upon which
the Lieutenant Governor shall make a prior reference to the Union
government in the Ministry of Home Affairs or through the appropriate
ministry. According to Rule 55:
“(1) The Lieutenant Governor shall refer to the Central Government
every legislative proposal, which
A
B
C
D
E
F
G
H
267
(a)  if introduced in a Bill form and enacted by the Legislative
Assembly, is required to be reserved for the consideration of
the President under the proviso to subclause (c) of clause (3)
of article 239 AA or, as the case may be, under the second
proviso to section 24 of the Act;
 (b) attracts provisions of articles 286, 287, 288 and 304 of the
Constitution as applicable to the Capital;
(c)  relates to any matter which may ultimately necessitate
additional financial assistance from the Central Government
through substantive expenditure from the Consolidated Fund
of the Capital or abandonment of revenue or lowering of rate
of any tax.
(2)  Subject to any instructions which may from time to time be
issued by the Central Government, the Lieutenant Governor
shall make a prior reference to the Central Government in
the Ministry of Home Affairs or to the appropriate Ministry
with a copy to the Ministry of Home Affairs in respect of the
following matters:-
(a)  proposals affecting the relations of the Central Government
with any State Government, the Supreme Court of India or
any other High Court;
 (b) proposals for the appointment of Chief Secretary and
Commissioner of Police, Secretary (Home) and Secretary
(Lands);
(c)   important cases which affect or are likely to affect the peace
and tranquillity of the National Capital Territory; and
 (d) cases which affect or are likely to affect the interests of any
minority community, Scheduled Castes or the backward
classes.”
Rule 56 stipulates that where a matter has been referred by the Lieutenant
Governor to the Central government under the Rules, further action shall
not be taken except in accordance with the decision of the Central
government.
97. Analysing the Transaction of Business Rules, it becomes
evident that the Lieutenant Governor is required to be kept informed of
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
268
SUPREME COURT REPORTS
[2018] 7 S.C.R.
governmental business. The duty of the Council of Ministers, with the
Chief Minister at its head, to do so begins at the stage of a proposal.
When a proposal is circulated under the directions of the Chief Minister
to the Council of Ministers, a copy of the explanatory memorandum has
to be forwarded to the Lieutenant Governor. After the proposal has
been approved, the decision is communicated to the Lieutenant Governor.
The decision is forwarded to the Secretary of the department concerned
for issuing orders unless a reference to the Central government is
warranted under Chapter V. Where a proposal is placed before the
Council of Ministers, an explanatory memorandum has to be forwarded
to the Lieutenant Governor. Copies of the agenda, upon approval of the
Chief Minister, are required to be submitted to the Lieutenant Governor.
A record of the decisions of the Council of Ministers is forwarded to the
Lieutenant Governor. After the decisions of the Council have been
approved by the Chief Minister, they are forwarded by the Secretary to
the Council to the Lieutenant Governor. Rule 14(2) stipulates that after
a proposal has been approved by the Council of Ministers and the approved
record of the decision has been communicated to the Lieutenant
Governor, the minister concerned “shall take necessary action to give
effect to the decision”.  Communication of the approved record of the
decision to the Lieutenant Governor is
mandatory and it is only thereafter
that the decision can be implemented. The Lieutenant Governor is
empowered to call for papers relating to any proposal or matter in any
department under Rule 19(5). The power conferred upon the Lieutenant
Governor to do so is independent of and does not detract from the duty
of the Council of Ministers to keep him informed at every stage. Matters
which are likely to bring the government of the NCT into controversy
with the Central government or with any state government must be bought
to the notice of the Lieutenant Governor. As distinguished from Rule 14,
Rule 23 sets out those classes of proposals or matters which have to be
submitted to the Lieutenant Governor before orders are issued thereon.
Rule 14(2), as noted earlier, stipulates that upon being approved by the
Council, the record of the decision is communicated to the Lieutenant
Governor upon which the minister will take necessary action to give
effect to the decision. However, Rule 23 elucidates specified situations
where proposals or matters must be essentially submitted to the Lieutenant
Governor before issuing orders thereon. These matters are considered
to be important enough to warrant a mandatory prior submission to the
Chief Minister as well as to the Lieutenant Governor before orders are
A
B
C
D
E
F
G
H
269
issued. These provisions in the Transaction of Business Rules ensure
that the Lieutenant Governor is kept informed of the affairs and
administration of the National Capital Territory at every stage. The rules
leave no element of discretion in the Council of Ministers to not comply
with the obligation. The obligation to keep the Lieutenant Governor
informed at every stage brooks no exceptions.
98. The Transaction of Business Rules set out a careful defined
procedure to enable the Lieutenant Governor to counsel the Ministers.
This is to facilitate a further reflection or reconsideration in certain
situations. Rule 24 deals with one such situation where the Lieutenant
Governor is of the opinion “that any further action should be taken or
that action should be taken otherwise than in accordance with the orders
passed by the minister in charge”. The Lieutenant Governor may in
either case require that the proposal or matter be placed before the
Council of Ministers for consideration. The duty of keeping the Lieutenant
Governor abreast of the administration of the affairs of the National
Capital Territory is amplified by Rule 25. Under the Rule, a duty has
been cast on the Chief Minister to furnish to the Lieutenant Governor
information on the administration of the Capital and proposals for
legislation as the latter may summon. The Lieutenant Governor may
also require the submission to the Council of a matter on which the
Minister has taken a decision but it has
not been placed before the Council.
99. Chapter IV enables the Lieutenant Governor to formulate
standing orders regulating the transaction and disposal of business relating
to his executive functions. The second proviso to Rule 45 specifically
deals with matters connected with public order, police and land. These
are subjects which lie outside the ambit of legislative powers of the
legislative assembly, since they fall under Entries 1, 2 and 18 of the State
List. Since there is an absence of legislative power in relation to these
subjects, they lie outside the realm of matters covered by the aid and
advice of the Council of Ministers. On these excepted subjects, the
Lieutenant Governor has to exercise his executive function to the extent
to which there is a delegation by the President. The Lieutenant Governor
has to consult the Chief Minister if it is so provided in an order of the
President under Article 239. Clearly, therefore, in regard to the excepted
matters, the exercise of the executive functions by the Lieutenant
Governor must be in accord with the delegation, if any, by the President.
The Lieutenant Governor can exercise only such executive functions, to
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
270
SUPREME COURT REPORTS
[2018] 7 S.C.R.
the extent to which a delegation has been made. The requirement of
consulting the Chief Minister would be subject to the contents of an
order issued by the President under Article 239.
100. As regards persons who are in the service connected to the
administration of the NCT, the Lieutenant Governor has been assigned
under Rule 46 such powers and functions as are entrusted to him by the
Rules and orders regulating the conditions of service of such persons or
an order of the President made under Article 239. The Lieutenant
Governor is mandated to consult the Union Public Service Commission
on matters on which it is required to be consulted under Article 320(3).
The Lieutenant Governor has to act in accordance with the advice of
the Commission unless authorized by the Central government.
101. The Transaction of Business Rules elaborately define the
modalities which the Lieutenant Governor must follow in the event of a
difference of opinion with the Council of Ministers. The proviso to Article
239AA(4), Section 44(1)(b) of the GNCTD Act and Chapter V of the
Transaction of Business Rules provide a composite and holistic
perspective. They elucidate the modalities which must be followed when
there is a difference of opinion. Chapter V supplements and gives effect
to the proviso to Article 239AA(4). If a difference of opinion arises
between the Lieutenant Governor and a Minister on any matter, the first
and primary endeavour
must be to resolve it by discussion. Before the
matter escalates to the next stage all efforts have to be devoted to a
mutual resolution with the Minister. If the difference of opinion continues
to persist, the Lieutenant Governor is empowered to direct that the matter
in difference be referred to the Council of Ministers. It is when a
difference persists between the Lieutenant Governor and the Council of
Ministers that a reference is contemplated by Rule 50 to the Central
government for a decision of the President. These provisions provide a
road map for the exercise of constitutional statesmanship. The differences
between the Lieutenant Governor and a Minister or the Council of
Ministers must in good faith be attempted to be resolved. Differences
constitute the heart of democracy. Reason and dialogue are the essence
of a democratic government. The affairs of government do admit of
variations in perspective and opinion. The problems of governance are
complex. The institutional process of decision making must be mature
and tolerant. The theatrics which accompany the rough and tumble of
politics ought not to disrupt the necessity for institutional governance
which is marked by constitutional sobriety and administrative wisdom.
A
B
C
D
E
F
G
H
271
102. Settlement of a difference between a Minister and the
Lieutenant Governor by discussion obviates a reference to the President
and provides a flexible and expeditious solution where there is a difference
of opinion. The first stage at which a resolution is attempted is between
the Lieutenant Governor and the Minister in question. If that does not
result in a satisfactory solution, the second stage involves the Council of
Ministers as a collective entity. It is when the dispute has failed to meet
a satisfactory resolution with the Council of Ministers that the Lieutenant
Governor is empowered to make a reference to the Central government.
The power of the Lieutenant Governor under Rule 55(2) stands
independent of the area of difference of opinion covered by Rules 49, 50
and 51. Rule 55(2) brings into focus certain specified areas where certain
matters have to be referred to the Union government either in the Union
Ministry of the Home Affairs or in the appropriate ministry. The matters
covered by Rule 55(2) are considered to be important enough to warrant
a prior reference to the Central government.
103. The feature which stands out from the Transaction of
Business Rules is that an obligation and duty has been cast upon the
elected government and its officers to duly keep the Lieutenant Governor
informed of proposals relating to governmental business. The duty to
keep the Lieutenant Governor informed is a necessary element of the
process and essential
for the exercise of the constitutional authority which
has been vested in the Lieutenant Governor. It is only when the Lieutenant
Governor is kept duly apprised of matters relating to the administration
of the National Capital Territory that a decision can be taken on whether
a reference should be made to the Union government under Chapter V.
If the Lieutenant Governor were to be kept in the dark, it would not be
possible for him as a constitutional authority to determine as to whether
the matter is of such a nature as would warrant a reference to the
Central government. Sharing of information and the process of
communication ensures a dialogue which promotes harmony in
administration. The Rules are founded upon the need to maintain
constitutional comity rather than strife.
104. A significant aspect of the Rules is that on matters which fall
within the ambit of the executive functions of the government of NCT,
decision making is by the government comprised of the Council of
Ministers with the Chief Minister at its head. The role of the Lieutenant
Governor is evinced by the duty which is cast upon the government to
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
272
SUPREME COURT REPORTS
[2018] 7 S.C.R.
keep him duly apprised on matters relating to the administration of the
Union territory. On matters of executive business which lie within the
constitutional functions assigned to the executive government of the NCT,
such a role is elaborated in the functions assigned to the Lieutenant
Governor under Rule 24. Rule 24 deals with an eventuality when the
Lieutenant Governor may be of the opinion that any further action should
be taken or that action should be taken otherwise than in accordance
with an order which has been passed by a Minister. In such a case, the
Lieutenant Governor does not take his own decision. He has to refer the
proposal or matter to the Council of Minister for consideration. Under
Rule 25, Lieutenant Governor may require the Council to consider a
matter on which a decision has been taken by a Minister but which has
not been considered by the Council. Rule 23 enunciates matters which
have to be submitted to the Lieutenant Governor before issuing any
orders thereon. If the Lieutenant Governor disagrees with a decision or
proposal, recourse has to be taken to the procedure which has been
enunciated in Rules 49, 50 and 51. If there is a difference of opinion, the
Lieutenant Governor must refer it to the Union government after following
the procedure which has been laid down. After the decision of the President
has been communicated, the Lieutenant Governor must follow that
decision and implement it. In
other words, the Lieutenant Governor has
not been conferred with the authority to take a decision independent of
and at variance with the aid and advice which is tendered to him by the
Council of Ministers. If he differs with the aid and advice, the Lieutenant
Governor must refer the matter to the Union government (after attempts
at resolution with the Minister or Council of Ministers have not yielded a
solution). After a decision of the President on a matter in difference is
communicated, the Lieutenant Governor must abide by that decision.
This principle governs those areas which properly lie within the ambit
and purview of the executive functions assigned to the government of
the National Capital Territory. Matters under Section 41 which fall under
the discretion of the Lieutenant Governor stand at a different footing.
The Lieutenant Governor may be required to act in his discretion where
a matter falls outside the powers conferred on the legislative assembly
but in respect of which powers or functions have been delegated to him
by the President. The Lieutenant Governor may also be required to act
in his discretion under a specific provision of law or where he exercises
judicial or quasi judicial functions. Matters pertaining to public order,
A
B
C
D
E
F
G
H
273
police and land lie outside the ambit of the legislative powers of the
Assembly and hence are outside the executive functions of the
government of NCT. These are matters where the Lieutenant Governor
would act in the exercise of his functions at his discretion if and to the
extent to which there has been a delegation or entrustment by the
President to him under Article 239 of the Constitution. Hence, a distinction
exists between matters which lie within the domain of  the  legislative
powers  of   the Assembly and of the executive powers of the NCT
government, and those which lie outside. On the former, the Lieutenant
Governor must abide by the aid and advice tendered by the Council of
Ministers and, in the event of a difference of opinion, refer the matter to
the President for decision. In matters which lie outside the legislative
powers of the legislative assembly, the Lieutenant Governor has to act
in accordance with the entrustment or delegation that has been made to
him by the President under Article 239.
105. Section 49 of the GNCTD Act confers an overriding power
of control upon the President and the power to issue directions. Upon
the exercise of Presidential powers under Section 49, the Lieutenant
Governor would have to abide by the directions of the President.
K. Precedents
Literal Interpretation
106. The Learned Additional Solicitor General has relied on certain
decisions of this Court to support his submission that while interpreting
the
Constitution, the Court must read its words in a strictly textual manner.
It is his contention that the provisions of Article 239AA, the GNCTD
Act and Transaction of Business Rules must be given plain and literal
interpretation.
107. The first case relied by the Learned ASG is the decision in
Keshavan Madhava Menon v State of Bombay83 (“Keshavan
Madhava Menon”). A Full Bench of the Bombay High Court had held
that assuming that the provisions of the Indian Press (Emergency Powers)
Act, 1931 were inconsistent with Article 19(1)(a) of the Constitution,
proceedings which had been commenced and were pending at the date
of the commencement of the Constitution were not affected even if the
Act was inconsistent with the fundamental rights and had become void
under Article 13(1). The appeal against the judgment of the High Court
83 (1951) 2 SCR 228
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
274
SUPREME COURT REPORTS
[2018] 7 S.C.R.
was adjudicated by a seven-Judge Constitution Bench of this Court.
Justice S R Das, speaking for a majority of this Court held that:
“An argument founded on what is claimed to be the spirit of the
Constitution is always attractive, for it has a powerful appeal to
sentiment and emotion; but a court of law has to gather the spirit
of the Constitution from the language of the Constitution.  What
one may believe or think to be spirit of the Constitution cannot
prevail if the language of the Constitution does not support that
view.  Article 372(2) gives power to the President to adapt and
modify existing laws by way of repeal or amendment.  There is
nothing to prevent the President, in exercise of the powers
conferred on him by that article, from repealing, say the whole or
any part of the Indian Press (Emergency Powers) Act, 1931.  If
the President does so, then such repeal will at once attract Section
6 of the General Clauses Act.  In such a situation all prosecutions
under the Indian Press (Emergency Powers) Act, 1931, which
were pending at the date of its repeal by the President would be
saved and must be proceeded with notwithstanding the repeal of
that Act unless an express provision was otherwise made in the
repealing Act. It is therefore clear that the idea of the preservation
of past inchoate rights or liabilities and pending proceedings to
enforce the same is not foreign or abhorrent to the Constitution of
India.
We are, therefore, unable to accept the contention about
the spirit of the Constitution as invoked by the learned counsel in
aid of his plea that pending proceedings under a law which has
become void cannot be proceeded with. Further, if it is against the
spirit of the Constitution to continue the pending prosecutions under
such a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such repressive
law before the Constitution of India came into force should continue
to rot in jail.  It is, therefore, quite clear that the court should
construe the language of Article 13(1) according to the established
rules of interpretation and arrive at its true meaning uninfluenced
by any assumed spirit of the Constitution.”
Applying the standard, the majority held that Article 13 of the Constitution
“is entirely prospective in operation and rendered inconsistent existing
laws ineffectual on and after the date of the commencement of the
Constitution”. The view of the majority was that there is no fundamental
A
B
C
D
E
F
G
H
275
right that a person shall not be prosecuted and punished for an offence
committed before the Constitution came into force. Justice Fazal Ali in
his dissenting judgment, however, held that:
“..Evidently, the framers of the Constitution did not approve of
the laws which are in conflict with the fundamental rights, and, in
my judgment, it would not be giving full effect to their intention to
hold that even after the Constitution has come into force, the laws
which are inconsistent with the fundamental rights will continue
to be treated as good and effectual laws in regard to certain matters,
as if the Constitution had never been passed.  How such a meaning
can be read into the words used in Article 13(1), it is difficult for
me to understand.  There can be no doubt that Article 13(1) will
have no retrospective operation, and transactions which are past
and closed, and rights which have already vested, will remain
untouched.  But with regard to inchoate matters which were still
not determined when the Constitution came into force, and as
regards proceedings whether not yet begun, or pending at the
time of enforcement of the Constitution and not yet prosecuted to
a final judgment, the very serious question arises as to whether a
law which has been declared by the Constitution to be completely
ineffectual can yet be applied. On principle and on good authority,
the answer to this question would appear to me to be that the law
having ceased to be effectual can no
longer be applied.”
108. The next judgment on which reliance has been placed by the
ASG is in Tej Kiran Jain v N Sanjiva Reddy84. A Bench of six judges
of this Court was considering an appeal from the judgment of a Full
Bench of the Delhi High Court rejecting a plaint claiming a decree for
damages for statements made on the floor of the Lok Sabha during a
Calling Attention Motion. Such an action was clearly barred under Article
105(2) of the Constitution. This Court rejected the contention that the
immunity granted by Article 105(2) in respect of anything said or any
vote given in Parliament would apply only to words relevant to the business
of Parliament and not to something which was irrelevant.  In that context,
the Court held that:
“In our judgment it is not possible to read the provisions of the
article in the way suggested.  The article means what it says in
language which could not be plainer.  The article confers immunity
84 (1970) 2 SCC 272
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
276
SUPREME COURT REPORTS
[2018] 7 S.C.R.
inter alia in respect of “anything said …. In Parliament”.  The
word ‘anything’ is of the widest import and is equivalent to
‘everything’.  The only limitation arises from the words ‘in
Parliament’ which means during the sitting of Parliament and in
the course of the business of Parliament.  We are concerned only
with speeches in Lok Sabha.  Once it was proved that Parliament
was sitting and its business was transacted, anything said during
the course of that business was immune from proceedings in any
Court. This immunity is not only complete but is as it should be…”
109. The third decision is of a Constitution Bench in G
Narayanaswami v G Pannerselvam85 (“Narayanaswami”). In that
case, Article 171 of the Constitution came up for interpretation and the
submission which was urged was that in order to be qualified to stand
for election to a graduate constituency of the Legislative Council of a
State, a person must also possess the qualification of being a graduate.
Repelling the contention, this Court held that it was not open to the Court
to add to the qualifications prescribed by the Constitution:
“..The concept of such representation does not carry with it, as a
necessary consequence, the further notion that the representative
must also possess the very qualifications of those he represents…
the view contained in the Judgment under appeal, necessarily results
in writing some words into or adding them to the relevant
statutory
provisions to the effect that the candidates from graduates’
constituencies of Legislative Councils must also possess the
qualification of having graduated.  This contravenes the rule of
“plain meaning” or “literal” construction which must ordinarily
prevail.”
110. In support of the above contention, reliance has also been
placed on two other Constitution Bench decisions of this Court in Kuldip
Nayar v Union of India86 (“Kuldip Nayar”) and Manoj Narula v
Union of India87 (“Manoj Narula”). In Kuldip Nayar, an amendment
made in the Representation of People Act, 1951 was challenged. By the
said amendment, the requirement of “domicile” in the State concerned
for getting elected to the Council of States was deleted. It was contended
by the petitioner that removing the said requirement violated the principle
85 (1972) 3 SCC 717
86 (2006) 7 SCC 1
87 (2014) 9 SCC 1
A
B
C
D
E
F
G
H
277
of federalism, a basic feature of the Constitution. The Court rejected the
contention of the petitioner. While endorsing and reiterating the view
taken in the judgment in Narayanaswami, the Court held:
“It may be desirable to give a broad and generous construction to
the Constitutional provisions, but while doing so the rule of “plain
meaning” or “literal” interpretation, which remains “the primary
rule”, has also to be kept in mind. In fact the rule of “literal
construction” is the safe rule unless the language used is
contradictory, ambiguous, or leads really to absurd results… The
“representative” of the State is the person chosen by the electors
who can be any person who, in the opinion of the electors, is fit to
represent them. There is absolutely no basis for the contention
that a person who is an elector in the State concerned is more
“representative” in character than one who is not. We do not find
any contradiction, ambiguity, or absurdity in the provisions of the
law as a result of the impugned amendment. Even while construing
the provisions of the Constitution and the RP Acts in the broadest
or most generous manner, the rule of “plain meaning” or “literal”
interpretation compels us not to accept the contentions of the
petitioners.”
In Manoj Narula, a writ petition under Article 32 of the Constitution
assailed the appointment of some of the original Respondents as Ministers
to the Council of Ministers of Union of India despite their involvement
in
serious and heinous crimes. The question before the Court was whether
a categorical prohibition can be read to the words contained in Article
75(1) of the Constitution so that the Prime Minister is constitutionally
prohibited to give advice to the President in respect of a person for
becoming a Minister who is facing a criminal trial for a heinous and
serious offence and charges have been framed against him by the trial
Judge. The Constitution Bench held that it cannot re-write a constitutional
provision:
“Reading such an implied limitation as a prohibition would
tantamount to adding a disqualification at a particular stage of the
trial in relation of a person. This is neither expressly stated nor is
impliedly discernible from the provision.”
111. These judgments do not advance the proposition which is
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
278
SUPREME COURT REPORTS
[2018] 7 S.C.R.
sought to be urged on behalf of the Union of India that anything but the
literal meaning of the words used is irrelevant to the interpretation of the
Constitution. The judgment in Keshavan Madhava Menon held that
the Court has to gather the spirit of the Constitution from its language
and that the language of Article 13 had to be interpreted in accordance
with the established rules of interpretation “uninfluenced by any assumed
spirit of the Constitution”.  These observations of the seven-judge Bench
are not intended to adopt a principle of interpretation which requires the
Court to ignore the basic values which the Constitution seeks to enhance,
while interpreting the words used in the text. The words contained in the
text of the Constitution have to be attributed a purposive interpretation
which advances fundamental constitutional values. In Keshavan
Madhava Menon, the Court found the ‘spirit of the Constitution’ to be
perhaps too vague or amorphous (though it was not articulated specifically
thus). After the evolution of the basic structure doctrine post
Kesavananda, the interpretation of the Constitution must be guided by
those fundamental tenets which constitute the foundation and basic
features of the document. Where a provision of the Constitution is intended
to facilitate participatory governance, the interpretation which the Court
places must enhance the values of democracy and of republican form of
government which are part of the basic features.
112. The judgment in Tej Kiran Jain rejects the attempt to dilute
the immunity conferred by Article 105 in respect of statements made on
the floor of the House. The judgment in Narayanaswami rejected the
attempt to read a qualification for being elected to the Legislative Council
which was not found in the text of Article 171. The Court in Manoj
Narula refused to read a disqualification into the words of Article 75 for
being appointed as a Minister of the Union Cabinet. The Constitution of
India is an embodiment of multiple values. The Constitution preserves
national unity. Yet it also nurtures regional autonomy and decentralization.
As discussed in the beginning of this judgment, the approach of a
constitutional court must be to interpret the Constitution so as “to arbitrate
between contesting interpretations of the many core values on which
our polity is believed to be based.”88 Each provision of the Constitution
must therefore be studied “as an expression of values” and has to be
interpreted “against the background of an overarching constitutional
88 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University
   Press (2008), at page 9
A
B
C
D
E
F
G
H
279
order”.89 Representative democracy underlines the essence of our
Constitution. Collective responsibility of the Council of Ministers is the
most essential component of the Cabinet form of government as
envisaged under the Constitution. The trust reposed in the Council of
Ministers of the NCT is based on its constitutional status. These moral
values of the Constitution must therefore be upheld.
113. In Kuldip Nayar’s case, the Court had held that in order to
interpret the intention behind the enactment of a provision, “one needs to
look into the historical legislative developments”. Placing the structure
of governance in the NCT to a constitutional pedestal (while making
divergences from previous statutory schemes, as discussed earlier in
this judgment) provided a special status to the NCT, which this Court
cannot ignore.
This Court must interpret the Constitution on the basis of the principles
elucidated in the beginning of this judgment.
Relationship between Centre and Union Territories
114. The relationship between the Union government and a Union
territory has in varying contexts been the subject matter of decided cases.
In Satya Dev Bushahri v Padam Dev90 (“Satya Dev Bushahri”),
the election of the first respondent was questioned, among other grounds,
for the reason that he was interested in contracts with the government
and was disqualified for being chosen to the legislative assembly of
Himachal Pradesh. The Election Tribunal rejected the contention
holding
that Representation of the People Act, 1951 was not applicable to elections
in Part C States. The appellant contended that the contracts in which
the elected candidate had interest were in fact contracts with the Central
government, which disqualified him from becoming a member of the
legislative assembly. It was urged that since the executive action of the
Central government is vested in the President, the President was also
the executive head of Part C States and a contract entered into with the
then state of Himachal Pradesh was in law a contract with the Central
government. Dealing with the submission, Justice T L Venkatarama Ayyar
speaking for a Bench of three judges of this Court held thus :
89 Martin Loughlin, “The Silences of Constitutions”, International Journal of
Constitutional Law (2019, In Press) https://www.iura.uni-treiburg.de/de/institute/rphii/
freiburger vortraege/silences-of-constitutions-m-loughlin-manuskript.pdf
90 (1955) 1 SCR 549
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
280
SUPREME COURT REPORTS
[2018] 7 S.C.R.
“9…The fallacy of this reasoning is obvious. The President who
is the executive head of the Part C States is not functioning as the
executive head of the Central Government, but as the head of the
State under powers specifically vested in him under Article 239.
The authority conferred under Article 239 to administer Part C
States has not the effect of converting those States into the Central
Government. Under Article 239, the President occupies in regard
to Part C States, a position analogous to that of a Governor in
Part A States and of a Rajpramukh in Part B States. Though the
Part C States are centrally administered under the provisions of
Article 239, they do not cease to be States and become merged
with the Central Government.”
The Court consequently rejected the contention that a contract with a
Part C State should be construed as a contract with the Central
government. This decision was subject to a review. In the application
for review, reliance was sought to be placed on the provisions of Section
3(8)(b)(2) of the General Clauses Act which define the expression
“Central Government” as follows :
“3…Central Government’ shall in relation to anything done or to
be done after the commencement of the Constitution, mean the
President; and shall include in relation to the administration of a
Part C State, the Chief Commissioner or Lieutenant-Governor or
Government of a neighbouring State or other authority acting
within
the scope of the authority given to him or it under Article 239 or
Article 243 of the Constitution, as the case may be.”
On this basis, it was urged that a contract with the Chief Commissioner
of Himachal Pradesh must be treated as a contract with the Central
government and in consequence the elected candidate was disqualified
under the relevant legislation. On the other hand, the elected candidate
relied upon the provisions of Section 3(60)(b) which read as follows:
“State Government” as respects anything done or to be done after
the commencement of the Constitution, shall mean, in a Part A
State, the Governor, in a Part B State the Rajpramukh, and in a
Part C State the Central Government.”
This Court, in the course of the judgment in review, held that in view of
the provisions of Section 3(8), a contract with the Chief Commissioner
A
B
C
D
E
F
G
H
281
in a Part C State is a contract with the Central government, which would
be a disqualification for election to the legislative assembly under Section
17 of Government of Part C States Act 1951 read with Section 7(d) of
Representation of the People Act, 1951. In the view of the Court:
“4…We are unable to agree that Section 3(8) has the effect of
putting an end to the status of Part C States as independent units,
distinct from the Union Government under the Constitution. It
merely recognises that those States are centrally administered
through the President under Article 239, and enacts that the
expression “Central Government “should include the Chief
Commissioner administering a Part C State under the authority
given to him under Article 239. Section 3(8) does not affect the
status of Part C States as distinct entities having their own
Legislature and judiciary, as provided in Articles 239 and 240. Its
true scope will be clear if, adapting it, we substitute for the words
“Central Government” in Section 9 of Act 43 of 1951 the words
“the Chief Commissioner acting within the scope of the authority
given to him under Article 239”. A contract with the Chief
Commissioner would, therefore, under Section 9 read with Section
3(8) of the General Clauses Act, be a contract with the Central
Government, and would operate as a disqualification for election
to either House of Parliament under Sections 7(d) and 9 of Act
43 of 1951, and it would be a disqualification
under Section 17 of
Act 49 of 1951, for election to the Legislative Assembly of the
State.”
115. The subsequent decision in Devji Vallabhbhai Tandel v
Administrator of Goa, Daman & Diu91 (“Tandel”) involved an order
of detention issued under the COFEPOSA92 by the Administrator of
Goa, Daman and Diu. One of the grounds of challenge before the Bench
of three Judges of this Court was that an order of detention could be
made only by the Chief Minister in the name of the Administrator, and
not by the Administrator. Section 2(f) defined the expression “state
government”, in relation to a Union territory, to mean the Administrator.
An order of detention could be issued under Section 3(1) by the Central
government or the state government or officers of a certain rank who
91  (1982) 2 SCC 222
92  The  Conservation  of  Foreign  Exchange  and  Prevention  of  Smuggling  Activities  Act
     1974
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
282
SUPREME COURT REPORTS
[2018] 7 S.C.R.
were duly empowered. Justice Baharul Islam speaking for this Court
noted that comparing the provisions of Articles 74 and 163, on the one
hand and Section 44 of the Government of Union Territories Act 1963,
there was a manifest difference between the position of the President
or Governor and the Administrator of a Union territory. In the view of
the Court:
“14…The Administrator even in matters where he is not required
to act in his discretion under the Act or where he is not exercising
any judicial or quasi-judicial function, is not bound to act according
to the advice of the Council of Ministers. This becomes manifest
from the proviso to Section 44(1). It transpires from the proviso
that in the event of a difference of opinion between the
Administrator and his Ministers on any matter, the Administrator
shall refer the matter to the President for decision and act
according to the decision given thereon by the President. If the
President in a given situation agrees with what the Administrator
opines contrary to the advice of the Council of Ministers, the
Administrator would be able to override the advice of the Council
of Ministers and on a reference to the President under the proviso,
obviously the President would act according to the advice of the
Council of Ministers given under Article 74. Virtually, therefore,
in the event of a difference of opinion between the Council of
Ministers of the Union Territory and the
Administrator, the right
to decide would vest in the Union Government and the Council of
Ministers of the Union Territory would be bound by the view taken
by the Union Government. Further, the Administrator enjoys still
some more power to act in derogation of the advice of the Council
of Ministers.”
The Court adverted to the fact that when the Administrator makes a
reference to the President on a difference of opinion arising with the
Council of Ministers, he may “during the interregnum...completely
override the advice of the Council of Ministers and act according to his
light”. This Court observed that neither the Governor nor the President
enjoys such a power:
“15…This basic functional difference in the powers and position
enjoyed by the Governor and the President on the one hand and
the Administrator on the other is so glaring that it is not possible to
A
B
C
D
E
F
G
H
283
hold on the analogy of the decision in Samsher Singh case is that
the Administrator is purely a constitutional functionary bound to
act on the advice of the Council of Ministers and cannot act on
his own. Therefore, for this additional reason also the submission...
must be rejected.”
116. The learned Additional Solicitor General has placed reliance
on the above observations to submit that since the proviso to Section 44
was “bodily lifted” (as he describes it) and placed in Article 239AA(4),
the construction placed by the Bench of three Judges in Tandel on the
ambit of the powers of the Administrator will govern the construction of
the proviso to Article 239AA. On the other hand, Mr Gopal Subramanium
urged that the above interpretation of the proviso to Section 44(1) of the
1963 Act will not apply proprio vigore to Article 239AA. In his
submission, the constitutional amendment resulting in the introduction of
Article 239AA is a significant expression of people’s sovereignty and
the intention underlying it must receive a purposive interpretation. While
not detracting from the importance of the NCT, Mr Subramanium
submitted that the area of control with the Administrator which is “an
exceptional residual power” must not set at naught a democratically
elected Cabinet form of government in the Union territory. We will return
to the proper construction to be placed upon the proviso. However, at
this stage we find it difficult to subscribe to the view that the
content of
the constitutional provision engrafted in Article 239AA must be read on
the same pedestal as the content of the statutory provision in Section 44
of the 1963 Act. The fact that the proviso to Article 239AA(4) is similar
in terms to the proviso to Section 44(1) of the 1963 Act may be one
aspect of relevance to the construction of the former. Yet, to our mind, in
construing a constitutional provision, the considerations which weigh with
the Court would not be constricted by the principles underlying the
interpretation of the provisions of a statute. Ordinarily while construing
a statute, the Court would be guided by the plain and grammatical meaning
of the words used. The literal or golden rule of interpretation gives way
where its consequence would lead to an absurdity or perpetuate an evil
which the legislature had intended to avoid. The Court, even while
interpreting a statute, may adopt a purposive interpretation. An
interpretation is purposive because it facilitates the object which the
legislature intended to achieve by enacting the law. Even a purposive
interpretation seeks to fulfil the aim and object of the legislature which
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
284
SUPREME COURT REPORTS
[2018] 7 S.C.R.
enacted the law. While construing the provisions of the Constitution, the
Court cannot be oblivious either to the nature of the document which it
construes or to its task as an institution created by the Constitution to
interpret its provisions. Ordinary law is susceptible to alteration by
legislative majorities. Legislative amendments to statutory provisions are
often a response to the predicaments of the moment. The object of
elevating rights, duties and modes of governance into the protective terrain
of a constitutional document is to precisely elevate them to a status of
stability and permanence which we attribute to a constitutional provision.
Constitutional provisions are also subject to the amendatory process under
Article 368 so long as the basic features of the Constitution are not
abridged. The restraints on the constituent power in the form of the
special majorities required for the passage of an amendment, the
requirement in certain cases of ratification by the state legislatures and
the substantive limits imposed by the basic structure doctrine make the
distinction between ordinary legislation and a constitutional amendment
evident. Interpretation of a constitutional text is therefore governed by
the precept that the Court is embarking upon the task of construing an
organic document which defines the basic compact for society. It is in
that sense that the Court will bear in mind that it is the
Constitution
which the Court is expounding. These considerations must apply with
significant force when an amendment to the Constitution has (as in the
present case) strengthened the basic structure by entrenching the principle
of democratic governance. Consequently, the line of thought which
requires us to read the proviso to Article 239AA(4) in terms of the proviso
to Section 44(1), and to follow the line of interpretation of the latter in
Tandel’s case is to place words above the heart and soul of the
Constitution. Tandel’s case did not have to go into the issues which
arise before us in relation to the exercise of constitutional powers. Tandel
does not explain what is the nature of the difference of opinion which
will warrant a reference to the President. The COFEPOSA, as we have
noticed, defined the expression “state government” in relation to a Union
territory to mean ‘the Administrator thereof’. The Court did not have to
consider the effect of the proviso, in any event not in the context of a
constitutional provision. There are more fundamental issues which the
Court must resolve while interpreting the text of the Constitution which
lie beyond the mere question of whether the Administrator of Goa (as in
that case) was authorised to issue an order of detention. While construing
A
B
C
D
E
F
G
H
285
the text of Article 239AA, the endeavour of the Court must be to facilitate
the strengthening of democratic institutions. Constitutional liberties survive
and democracies remain vibrant when the institutions of governance
created by the Constitution are capable of withstanding the challenges
of the times. As an expounder of constitutional principle, it is the foremost
duty of the Court to adopt an interpretation which gives expression to
democratic values. Truth, justice and freedom are cardinal values in the
democratic quest of achieving the dignity of citizens. The ability of citizens
to participate in the formation of governments and to expect accountable
and responsive government constitutes the backbone of a free society.
In interpreting constitutional text, history should remind us how fragile
liberty and democracy can be, unless citizens fiercely protect their
foundations. We can ignore them only at our peril.
117. Another decision of this Court which must be adverted to is
in Goa Sampling Employees’ Association v General
Superintendence Co. of India Pvt. Ltd.93 (“Goa Sampling”). A
reference was made by the Central government of an industrial dispute
for adjudication under the Industrial Disputes Act 1947. It was sought to
be urged that in relation to a Union Territory, the Central government is
the appropriate government. The Tribunal held that the workmen were
dock workers governed by an Act of Parliament and since they were
working in a major
port, it was the Central government which was the
appropriate government. The Tribunal also held that even if the state
government is the appropriate government, since Goa was then a Union
territory and its administration was carried on by an Administrator
appointed by the President under Article 239, the Central government
was the appropriate government. The High Court held that the industrial
dispute in which the workmen were involved did not concern a major
port and hence the Central government was not the appropriate
government. Moreover, the High Court also held that the Central
government is not the state government for the Union territory of Goa
under the Act but it was the Administrator appointed under Article 239
who is the state government. The Administrator being the appropriate
government, the High Court held that the Central government had no
jurisdiction to make the reference. It was the second limb of the finding
of the High Court which was considered by this Court in the course of
its judgment. In order to appreciate the controversy, it is necessary to
93 (1985) 1 SCC 206
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
286
SUPREME COURT REPORTS
[2018] 7 S.C.R.
consider the expressions “Central government” as defined in Section
3(8) of the General Clauses Act, 1897 which reads as follows:
“(8) ‘Central Government’ shall—
(a) * * *
(b) in relation to anything done or to be done after the
commencement of the Constitution, mean the President; and shall
include,
(i)-(ii) * * *
(iii) in relation to the administration of a Union Territory, the
Administrator thereof acting within the scope of the authority given
to him under Article 239 of the Constitution.”
The expression “state government” is defined in Section 3(60), insofar
as is material thus:
“ ‘State Government’,—
(a)-(b) * * *
(c) as respects anything done or to be done after the
commencement of the Constitution (Seventh Amendment) Act,
1956, shall mean, in a State, the Governor, and in a Union Territory,
the Central Government;”
“Union territory” is defined in Section 3(62) to mean the Union territories
specified in the First Schedule to the Constitution and to include any
other territory comprised within the territory of India but not specified in
that Schedule.
Dealing with the provisions of Section 44(1) of the 1963 Act, this Court
observed thus:
“12…According to the proviso in the event of a difference of
opinion between the Administrator and the Ministers on any matter,
the Administrator shall refer it to the President for decision given
therein by the President etc. Thus the executive power of the
Administrator
extends to all subjects covered by the legislative
power. But in the event of a difference of opinion the President
decides the point. When President decides the point, it is the Central
Government that decides the point.”
A
B
C
D
E
F
G
H
287
The Court noticed that the provisions of Part VI of the Constitution
which deal with the States clearly indicate that a Union territory
administration is not a state government. The Court observed that the
Constitution makes a distinction between a State and its government
(called the state government) on one hand and the Union territory and
its administration on the other hand. This distinction, the Court observed,
was carried in the definition contained in the General Clauses Act:
“14…Now if we recall the definition of three expressions “Central
Government” [Section 3(8),] “State Government” [Section 3(60)]
and “Union Territory” [Section 3(62-A)] in the General Clauses
Act, it would unmistakably show that the framers of the Constitution
as also the Parliament in enacting these definitions have clearly
retained the distinction between State Government and
Administration of Union Territory as provided by the Constitution.
It is especially made clear in the definition of expression “Central
Government” that in relation to the Administration of a Union
Territory, the Administrator thereof acting within the scope of the
authority given to him under Article 239 of the Constitution, would
be comprehended in the expression “Central Government”. When
this inclusionary part is put in juxtaposition with exclusionary part
in the definition of the expression “State Government” which
provides that as respects anything done or to be done after the
commencement of the
Constitution (Seventh Amendment) Act,
1956, it shall mean, in a State, the Governor, and in a Union Territory,
the Central Government, the difference conceptually speaking
between the expression “State Government” and the
“Administration of a Union Territory” clearly emerges. Therefore,
there is no room for doubt that the expression “Administration of
a Union Territory”, Administrator howsoever having been
described, would not be comprehended in the expression “State
Government” as used in any enactment.”
The view of the High Court that the Administrator is the state government
insofar as the Union territory is concerned under Section 3(60) was held
to be in error. The decisions in Satya Dev Bushahari and in The State
of Madhya Pradesh v Shri Moula Bux94 were distinguished since
they were rendered prior to the amendment of Part VIII of the
94 (1962) 2 SCR 794
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
288
SUPREME COURT REPORTS
[2018] 7 S.C.R.
Constitution in 1956 and before the insertion of Articles 239A and 239B.
The position in law was set out as follows:
“17…On a conspectus of the relevant provisions of the Constitution
and the 1963 Act, it clearly transpires that the concept of State
Government is foreign to the administration of Union Territory
and Article 239 provides that every Union Territory is to be
administered by the President. The President may act through an
Administrator appointed by him. Administrator is thus the delegate
of the President. His position is wholly different from that of a
Governor of a State. Administrator can differ with his Minister
and he must then obtain the orders of the President meaning
thereby of the Central Government. Therefore, at any rate the
Administrator of Union Territory does not qualify for the
description of a State Government. Therefore, the Central
Government is the “appropriate Government”.”
The decision of the two judge Bench in Goa Sampling explains that
under the General Clauses Act 1897, the expression “Central
government” will include the Administrator of a Union territory acting
within the scope of his authority under Article 239, in relation to the
administration of the Union territory. Similarly, the expression “state
government” means in relation to the Union territory, the Central
government. The Central government was held to be the appropriate
government to make a reference under the
Industrial Disputes Act, 1947.
The judgment in Goa Sampling dealt with the limited scope as to which
is the appropriate Government under the Industrial Disputes Act.
118. The issue as to whether the Lieutenant Governor of the NCT
is competent to accord sanction for prosecution under the Prevention of
Terrorism Act and the Code of Criminal Procedure was considered by a
two judge Bench of this Court in State (NCT of Delhi) v Navjot
Sandhu95 (“Navjot Sandhu”). In that case, sanctions under both the
statutes were accorded “by order and in the name of the Lieutenant
Governor”.  The sanction under Section 50 of the POTA was urged to
be a nullity on the ground that in relation to the Union Territory only the
Central government was competent to accord it. Section 2(1)(h) of
POTA defined the expression “State” in relation to a Union territory, to
mean the Administrator thereof.  Rejecting the challenge, this Court
held that under Article 239AA, the Administrator appointed under Article
95 (2005) 11 SCC 600
A
B
C
D
E
F
G
H
289
239 does not lose his status as such and it is only his designation which is
merged into the new designation of Lieutenant Governor “in keeping
with the upgraded status of this particular Union territory”. The Lieutenant
Governor, who continues to be an Administrator, was held to derive
authority to grant sanction under Section 50 by reason of the legislative
fiction under Section 2(1)(h), the Administrator being deemed to be the
state government for the purpose of Section 50.  Hence :
“..by virtue of specific statutory delegation in favour of the
Administrator who is constitutionally designated as the Lieutenant
Governor as well, the sanction accorded by the said authority is a
valid sanction under Section 50 of POTA..”
The decision in Navjot Sandhu turned upon a specific statutory delegation
in favour of the Administrator to grant sanction. It is hence of no
assistance to the present constitutional context.
Decision in NDMC
119. A nine-judge Bench of this Court in New Delhi Municipal
Council v State of Punjab96 (“NDMC”) dealt with the issue as to
whether properties owned and occupied by various states in the NCT
are exempt from the levy of local taxes under Article 289(1) of the
Constitution. Allied to this was the question as to whether the states are
entitled to exemption from the levy of taxes imposed by Parliamentary
legislation under Article 246(4) upon their properties situated within the
Union territories. Article 246(4) provides thus:
“Parliament has power to make laws with respect to any matter
for any part of the territory of India not included [in a State]
notwithstanding that such matter is a matter enumerated in the
State List.”
Justice B P Jeevan Reddy spoke for the majority of five judges. The
minority view of four judges was rendered by Chief Justice Ahmadi.
120. The judgment of the majority notes that the States, put together,
do not exhaust the territory of India. Parliament has the power to make
laws with respect to any matter for any part of territory of India not
included in a State. Since the Union territories are not included in the
territory of any State, Parliament was the only law making body.  Dealing
with the provisions of Article 239 AA, the Court held :
96 (1997) 7 SCC 339
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
290
SUPREME COURT REPORTS
[2018] 7 S.C.R.
“..In the year 1991, the Constitution did provide for a legislature
for the Union Territory of Delhi [National Capital Territory of
Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA)
but even here the legislature so created was not a full-fledged
legislature nor did it have the effect of – assuming that it could –
lift the National Capital Territory of Delhi from Union Territory
category to the category of States within the meaning of Chapter
I of Part XI of the Constitution.  All this necessarily means that so
far as the Union Territories are concerned, there is no such thing
as List I, List II or List III.  The only legislative body is Parliament
– or a legislative body created by it.  Parliament can make any
law in respect of the said territories – subject, of course, to
constitutional limitations other than those specified in Chapter I
of Part XI of the Constitution. Above all, the Union Territories are
not “States” as contemplated by Chapter I of Part XI; they are
the territories of the Union falling outside the territories of the
States. Once the Union Territory is a part of the Union and not
part of any State, it follows that any tax levied by its legislative
body is Union taxation.  Admittedly, it cannot be called “State
taxation” – and under the constitutional scheme, there is no third
kind of taxation.  Either it is Union taxation or State taxation..”
121. The judgment of the majority also holds that
all Union territories
are not situated alike.  The first category consists of Union territories
which have no legislature at all.  The second category has legislatures
created by a law enacted by Parliament under the Government of Union
Territories Act, 1963.  The third category is Delhi which has “special
features” under Article 239 AA.  Though the Union territory of Delhi “is
in a class by itself”, it “is certainly not a State within the meaning
of Article 246 or part VI of the Constitution”. Various Union
territories- the Court observed - are in different stages of evolution.
However, the position remains that these Union territories, including the
NCT are yet Union territories and not a State.
General Clauses Act
122. Article 367 (1) of the Constitution provides that:
“367(1) Unless the context otherwise requires, the General Clauses
Act, 1897, shall, subject to any adaptations and modifications that
A
B
C
D
E
F
G
H
291
may be made therein under article 372, apply for interpretation of
this Constitution as it applies for the interpretation of an Act of the
Legislature of the Dominion of India.”
123. As we have noticed, the inclusive definition of the expression
‘State’ in Section 3(58) of the General Clauses Act, 1897 provides that
as respects any period after the commencement of the Constitution
(Seventh Amendment) Act, 1956, the expression State shall mean the
States specified in the First Schedule to the Constitution and shall include
a Union territory.  If this inclusive definition was made applicable for the
purpose of construing Article 246(4), an anomaly would arise because
Parliament would have no power to legislate in respect of the Union
territories with respect to matters governed by the State list.  Until a
legislature which is empowered to legislate on matters in the State list is
created under Article 239A for the Union territories, there would be no
legislature with competence to legislate on those matters.  The
consequences which would result from reading the provisions of Section
3(58) of the General Clauses Act while interpreting Article 246(4) were
noticed in a judgment of a Constitution Bench in TM Kanniyan v
Income Tax Officer, Pondicherry97 (“Kanniyan”). The Constitution
Bench held that such a construction would be repugnant to the context
of Article 246 and hence, Parliament would have under Article 246(4)
plenary powers to make laws for all Union
Territories in respect of all
matters. The decision in Kanniyan was followed in the judgment of the
majority in the nine-judge bench decision in NDMC.  Even the judgment
of the minority noted that while certain Union territories have legislative
assemblies of their own, “they are very much under the supervision of
the Union Government and cannot be said to have an independent status”.
Notably, the minority view also accepted the principle that the definition
of the expression “State” in Section 3(58) of the General Clauses Act is
inapplicable to Article 246(4).
124. A Constitution Bench of this Court in Management of
Advance Insurance Co. Ltd. v Shri Gurudasmal98 (“Advance
Insurance”) while construing Entry 80 of the Union list held that the
definitions contained in the General Clauses Act may not always apply
in relation to the expression “State” in the Constitution and much would
depend upon the context. Entry 80 of the Union list provides as follows:
97 (1968) 2 SCR 103
98 (1970) 1 SCC 633
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
292
SUPREME COURT REPORTS
[2018] 7 S.C.R.
“80. Extension of the powers and jurisdiction of members of a
police force belonging to any State to any area outside that State,
but not so as to enable the police of one State to exercise powers
and jurisdiction in any area outside that State without the consent
of the Government of the State in which such area is situated;
extension of the powers and jurisdiction of members of a police
force belonging to any State to railway areas outside that State”
In that case, on a complaint by an Income Tax Officer of the commission
of offences by the appellant under Sections 409, 477A and 120B of the
Penal Code, a case was registered by the Superintendent of Police in
the Special Police Establishment, New Delhi. The appellant filed a writ
petition challenging the right of the Special Police Establishment to
investigate the case in the State of Maharashtra but it was dismissed by
the High Court. In appeal before this Court, it was urged that the Delhi
Special Police Establishment constituted under the Act XV of 1946 was
not constitutional and had no jurisdiction to investigate cases in other
states. The submission was that Entry 80 speaks of a police force
belonging to any state and not of a police force belonging to a Union
territory. Chief Justice Hidayatullah speaking for a Constitution Bench
held that Section 3(58) of the General Clauses Act (which defines State
in respect of any period after the commencement of the
seventh
constitution amendment to include a Union territory) “furnishes a complete
answer to the difficulty which is raised since Entry 80 must be read so
as to include Union territory”. Hence, the members of a police force
belonging to a Union territory could have their powers and jurisdiction
extended to another state with the consent of that State. The Constitution
Bench held that the definitions in the General Clauses Act “cannot always
be read” in interpreting the constitutional text and “the definitions apply
unless there is anything repugnant in the subject or context”.
The Constitution Bench held that:
“After the Seventh Amendment India is a Union of States (Article
1) and the territories thereof are specified in the First Schedule.
Then there are Union Territories which are mentioned separately.
There is thus a distinction between “States” and “Union Territories”
which cannot be lost sight of. When the definition cannot be made
applicable owing to the context or the subject, the word “State”
refers to States in the First Schedule only. Such an occasion arose
A
B
C
D
E
F
G
H
293
in I.M Kanniyan v Income-Tax Officer, Pondicherry and Another,
and Bachawat, J., explained Article 246 by holding that the
definition of “State” in two parts in the adapted Section 3(58) of
the General Clauses Act was repugnant to the subject and context
of Article 246. There is nothing in the subject or context of Entry
80 of the Union List which can be said to exclude the application
of the definition in Section 3(58). Indeed the Part C States were
expressly mentioned in Entry No. 39 of the Federal List of the
Government of India Act, 1935 (after its amendment in 1947) and
thus before the Seventh Amendment the definition of State (subject
to the subject or context) included Part C States. Therefore, the
definition of “State” in Section 3(58) in the General Clauses Act
after the adaptation in 1956 applies and includes Union Territories
in Entry 80 of the Union List”
The Constitution Bench in Advance Insurance did not find anything
repugnant in the subject or context of Entry 80 of the Union list. Hence,
Entry 80 was held to include Union territories.
125. In Union of India v Prem Kumar Jain99, a Bench of four
judges of this Court dealt with an appeal from a decision of the Delhi
High Court which had quashed a notification of the Union government
and a scheme for the formation of a joint cadre of the Indian
Administrative Service. The High Court had held the formation of a
Delhi – Himachal Cadre of service to be ultra vires. The creation of a
joint cadre
for all Union territories on 1 January 1968 under Rule 3(1) of
the IAS (Cadre) Rules 1954 was challenged as being contrary to Article
312 and the All India Services Act 1951, as it was not common to the
Union and a State, a Union territory not being a State. The High Court
held that Union territories not being States, the action was ultra vires.
In appeal, this Court observed that it was not necessary for Parliament
to make a law providing for the creation of a service common to the
Union and the States under Article 312(1), in view of clause 2, which
provided as follows :
“312 (2) The services known at the commencement of this
Constitution as the Indian Administrative Service and the Indian
Police Service shall be deemed to be services created by Parliament
under this article”.
99 (1976) 3 SCC 743
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
294
SUPREME COURT REPORTS
[2018] 7 S.C.R.
Section 3(1) of the All India Services Act had a provision for making
rules for the regulation of recruitment and conditions of service of persons
appointed to an All India Service “after consultation with the governments
of the States concerned”. The issue was whether Union territories could
be States for the purpose of such consultation. This Court held that the
expression “State” having been defined in Section 3(58), from the
commencement of the seventh amendment to the Constitution in 1956,
and the President having substituted a new clause 58 in Section 3, there
was nothing repugnant to the subject or context to make that definition
inapplicable. The High Court was held to have been in error in holding
that Union territories were not States for that purpose.
126. Whether the expression “State” in the Constitution would
cover a Union territory is a matter to be deduced from the context. The
Constitution in the First Schedule makes a clear distinction between States
and Union territories. Hence, the inclusive definition of the expression
“State” in Section 3(58) of the General Clauses Act cannot apply to the
First Schedule. Similarly, in Article 246(4), which enables Parliament to
make laws with respect to any matter for any part of the territory of
India not included in a State, the definition in Section 3(58) would have
no application, having due regard to the context. This was explained in
the decision in
Kanniyan. When there is something repugnant in the
subject or context, the definition in Section 3(58) would have no
application.
“Insofar as any such matter is applicable to Union territories”
127. In the State list and the Concurrent list of the Seventh
Schedule, there are numerous entries which use the expression “State”.
These entries are illustratively catalogued below:
“List II
12. Libraries, museums and other similar institutions controlled or
financed by the State.
26. Trade and commerce within the State subject to the provisions
of entry 33 of List III.
37. Elections to the Legislature of the State subject to the provisions
of any law made by Parliament.
38. Salaries and allowances of members of the Legislature of the
A
B
C
D
E
F
G
H
295
State, of the Speaker and Deputy Speaker of the Legislative
Assembly and, if there is a Legislative Council, of the Chairman
and Deputy Chairman thereof.
39. Powers, privileges and immunities of the Legislative Assembly
and of the members and the committees thereof, and, if there is a
Legislative Council, of that Council and of the members and the
committees thereof; enforcement of attendance of persons for
giving evidence or producing documents before committees of
the Legislature of the State.
40. Salaries and allowances of Ministers for the State.
41. State public services; State Public Service Commission.
42. State pensions, that is to say, pensions payable by the State or
out of the Consolidated Fund of the State.
43. Public debt of the State.
LIST III
3. Preventive detention for reasons connected with the security
of a State
4. Removal from one State to another State of prisoners, accused
persons and persons subjected to preventive detention for reasons
specified in entry 3 of this List.
43. Recovery in a State of claims in respect of taxes and other
public demands, including arrears of land-revenue and sums
recoverable as such arrears, arising outside that State.”
(Emphasis supplied)
128. Article 239AA(3)(a) permits the legislative assembly of the
NCT to legislate on matters in the State list, except for Entries 1, 2 and
18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries)
and on the Concurrent list, “insofar as any such
matter is applicable
to Union territories”. In forming an understanding of these words of
Article 239AA(3)(a), it has to be noticed that since the decision in
Kanniyan right through to the nine-judge Bench decision in NDMC, it
has been held that the expression “State” in Article 246 does not include
a Union territory. The expression “insofar as any such matter is applicable
to Union territories” cannot be construed to mean that the legislative
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
296
SUPREME COURT REPORTS
[2018] 7 S.C.R.
assembly of NCT would have no power to legislate on any subject in the
State or Concurrent lists, merely by the use of the expression “State” in
that particular entry. This is not a correct reading of the above words of
Article 239AA(3)(a). As we see below, that is not how Parliament has
construed them as well.
129. Section 7(5) of the GNCTD Act provides that salaries of the
Speaker and Deputy Speaker of the legislative assembly may be fixed
by the legislative assembly by law. Section 19 provides that the members
of the legislative assembly shall receive salaries and allowances as
determined by the legislative assembly by law. Section 43(3) similarly
provides that the salaries and allowances of ministers shall be determined
by the legislative assembly. However, Section 24 provides that a Bill for
the purpose has to be reserved for the consideration of the President.
Parliament would not have enacted the above provisions unless legislative
competence resided in the States on the above subject. The subjects
pertaining to the salaries and allowances of members of the legislature
of the state (including the Speaker and Deputy Speaker) and of the
Ministers for the state are governed by Entry 38 and Entry 40 of the
State list. The GNCTD Act recognises the legislative competence of
the legislative assembly of NCT to enact legislation on these subjects.
The use of the expression ‘State’ in these entries does not divest the
jurisdiction  of  thelegislative assembly. Nor are the words of Article
239AA(3)(a) exclusionary or disabling in nature.
130. The purpose of the above narration is to indicate that the
expression ‘State’ is by itself not conclusive of whether a particular
provision of the Constitution would apply to Union territories. Similarly, it
can also be stated that the definition of the expression state in Section
3(58) of the General Clauses Act (which includes a Union territory) will
not necessarily govern all referencesto ‘State’ in the Constitution. If
there is something which is repugnant in the subject or context, the
inclusive definition in Section 3(58) will not apply. This is made clear in
the precedent emanating from this Court. In certain contexts, it has been
held that the expression ‘State’ will not include Union territories while in
other contexts the definition in Section 3(58) has been applied. Hence,
the expression “insofar as any such matter is applicable to Union
territories” is not one of exclusion nor can it be considered to be so
irrespective of subject or context.
A
B
C
D
E
F
G
H
297
L Construction of the proviso to Article 239AA(4)
131. The vexed issue of interpretation relates to the proviso to
Article 239AA(4). Undoubtedly, the National Capital Territory continues
to be a Union territory. The Union government has a special interest in
the administration of its affairs. This is exemplified by the provisions of
Article 239 and Section 49 of the GNCTD Act. The proviso to Article
239AA(4) must be given an interpretationwhich is marked with a sense
of fine constitutional balance. The balance which is drawn must preserve
the vital interest of the Union government in the governance of the national
capital while supporting the legitimacy, and constitutional status of the
Council of Ministers which owes collective responsibility to the legislative
assembly and which, in its capacity of the executive arm of government
tenders aid and advice to the Lieutenant Governor under a cabinet form
of governance.
132. Broadly speaking, three lines of reasoning emerge before
the Court. The Court need not be constrained by having to choose one
among them. It would be possible to draw from each, in arriving at a
conclusion. The first line of interpretation would have the Court interpret
the expression “difference of opinion between the Lieutenant Governor
and his Council of Ministers on any of the matter” without reservation
or qualification.  This line of interpretation follows a purely literal or
textual construction. Any difference of opinion would
fulfil the proviso
to clause 4. ‘Any matter’ would mean any matter without restriction.
The Lieutenant Governor would be free to refer to the President just
about any difference of opinion of any matter, where it has arisen with
the Council of Ministers. This approach cautions the court against
confining the proviso to specified categories or confining the areas where
differences can arise.
133. The second line of interpretation is that the expression should
be read and confined to specified categories. To test the validity of this
approach, four categories may be delineated. The Lieutenant Governor
may invoke the power under the proviso where:
(i)   Executive decisions or acts of the Government of NCT will
impede or prejudice the exercise of the executive power of
the Union government;
(ii) The requirement of complying with laws enacted by
Parliament or of the provisions of the Constitution arises;
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
298
SUPREME COURT REPORTS
[2018] 7 S.C.R.
(iii) The executive authority of the government of NCT is sought
to be exercised in an area where it has no legislative
competence (the ultra vires doctrine); and
(iv) A matter is located within Rule 23 of the Transaction of
Business Rules.
134. There is a third line of interpretation, which has two facets.
The first facet postulates at what stage, a reference to the President
may be made in terms of the proviso. According to it, a reference can be
made to the President only after the Lieutenant Governor has made an
effort to resolve a difference with a Minister or with the Council of
Ministers by seeking a resolution through dialogue and discussion. The
Lieutenant Governor has to follow the provisions contained in the
Transaction of Business Rules, which mandate that an attempt should
be made to resolve differences within the institutional level of the NCT
government before escalating matters to the President. The second facet
relates to the substantive meaning of the expression ‘any matter’.  ‘Any
matter’ in this line of interpretation would not mean ‘every matter’ or
every trifling matter but only those rare and exceptional matters where
the difference is so fundamental to the governance of the Union territory
that it deserves to be escalated to the President.  The third approach to
interpretation proposes that both a procedural and substantive nuance
must be adopted while interpreting the proviso, failing which
the salutary
constitutional purpose underlying Article 239AA will be defeated.
135. A close analysis of the three lines of interpretation would
indicate that there is a kernel of substance in each of them, but there are
pitfalls which must be guarded against. The functioning of institutions
must establish a constitutional balance which facilitates cooperative
governance. Governance in cooperation is both a hallmark and a
necessity of our constitutional structure. Our Constitution distributes
legislative and executive powers between political entities. Distribution
of power between institutions which are the creation of the Constitution
is a significant effort to ensure that the values of participation and
representation which constitute the foundation of democracy permeate
to all levels of governance.  The federal structure for governance which
is a part of the basic structure recognizes the importance of fulfilling
regional aspirations as a means of strengthening unity. The Constitution
has adopted some but may be not all elements of a federal polity and the
A
B
C
D
E
F
G
H
299
Union government has an important role in the affairs of the nation. For
the purpose of the present discourse, it is necessary to emphasise the
value which the Constitution places on cooperative governance, within
the federal structure.100 An illustration is to be found in Chapter II of
Part XI which deals with the administrative relations between the Union
and the States. Under Article 256, an obligation has been cast upon
every state to ensure that its executive power is exercised to secure
compliance with laws enacted by Parliament.  The executive power of
the Union extends to issuing directions to a State as are necessary, for
that purpose. Article 257 contains a mandate that in exercising its
executive power, a State shall not impede or prejudice the exercise of
the executive power of the Union.  The constitutional vision of cooperative
governance is enhanced by the provision made in Article 258 under which
the President may, with the consent of a State, entrust to it or to its
officers, functions in relation to any matter to which the power of the
Union extends. Similarly, even on matters on which a State legislature
has no power to make laws, Parliament may confer powers and impose
duties on the officers of the State.  Article 261 provides that full faith
and credit must be given throughout the territory of India to public acts,
records and judicial proceedings of the Union and of every State.  Without
determining (it being unnecessary for the
present discussion) the extent
to which these provisions apply to a Union territory, the purpose of
emphasising the principles which emerge from the chapter on
administrative relations is to highlight the necessity for cooperative
governance between different levels of government, in a Constitution,
such as ours, which contains an elaborate distribution of power between
political entities and institutions.  The construction which the Court places
on the proviso to Article 239AA(4) must facilitate mutual cooperation so
that the affairs of state are carried out without  dislocations occasioned
by differences of perception. Differences between political arms of the
state are natural to a democratic way of life.  The strength inherent in
differences is that the Constitution provides a platform for the robust
expression of views, accommodates differences of ideology and
acknowledges that the resilience, and not the weakness of the nation
lies in the plurality of her cultures and the diversity of her opinions. The
working of a democratic Constitution depends as much on the wisdom
and statesmanship of those in charge of governing the affairs of the
100 Granville Austin (Supra note 3), at page 232
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
300
SUPREME COURT REPORTS
[2018] 7 S.C.R.
nation as much as it relies on the language of the Constitution defining
their powers and duties.
136. The proviso to Article 239AA(4) must be operated and applied
in a manner which facilitates and does not obstruct the governance of
the NCT.  If the expression ‘any matter’ were to be construed as ‘every
matter’ or every trifling matter that would result in bringing to a standstill
the administration of the affairs of the NCT. Every conceivable difference
would be referred to the President. The elected representatives would
be reduced to a cipher. The Union government would govern the day to
day affairs. The forms of the Constitution would remain but the substance
would be lost. Article 239AA has been introduced as a result of the
exercise of the constituent power.  The purpose of the exercise is to
confer a special status on the National Capital Territory.  The
arrangements for administering the affairs of Delhi are constitutionally
entrenched as a result of the Sixty-Ninth amendment.  Whether there
should be a Council of Ministers or a Legislature (or both) was not left
to determination in an Act of Parliament. The Constitution mandates
that both must exist in the NCT. The Constitution mandates direct
elections to the Legislature. It obligates the existence of a Council of
Ministers which owes collective responsibility to the Legislature. It
demarcates the area of legislative and executive power.  The Lieutenant
Governor, as the substantive part of Article 239AA(4) stipulates, is to
act on the aid and advice of the Council of Ministers. In adopting these
provisions, the Constitution incorporates the essentials of the cabinet
form of government. Was this to have no meaning? A constitutional
court must be averse to accepting an interpretation which will reduce
these aspirations of governance to a mere form, without the
accompanying substance. The Court must take into consideration
constitutional morality, which is a guiding spirit for all stakeholders in a
democracy.
137. In discharging his constitutional role, the Lieutenant Governor
has to be conscious of the fact that the Council of Ministers which tenders
aid and advice is elected to serve the people and represents both the
aspirations and responsibilities of democracy.  Neither the Constitution
nor the enabling legislation, which we have noticed earlier, contemplate
that every decision of the executive government must receive the prior
concurrence of the Lieutenant Governor before it can be implemented.
A
B
C
D
E
F
G
H
301
138. The interpretation of the proviso must be cognizant of the
constitutional position that though Delhi has a special status, it continues
to be a Union territory governed by Part VIII. There are take-aways
from the first line of interpretation which have significance. Within the
rubric of Union territories, as the nine-judge Bench decision in NDMC
noticed, different Union territories are in varying stages of evolution.
Some of the erstwhile Union territories such as Goa attained full statehood
and ceased to be Union territories. Some may not have a legislature.
Some may have a Legislature under an enactment of Parliament. Delhi
has a special position in that both its Legislature as well as Council of
Ministers have a constitutionally recognized status. The conferment of
this status by a constitutional amendment enhances the position of its
arms of governance within Union territories without conferring statehood.
Delhi is administered by the President under Article 239 acting through
an Administrator who is designated as a Lieutenant Governor under
Article 239AA(1). The language of the opening words of Article 239(1)
must be read in harmony with Article 239AA. In terms of the reach of
its legislative powers, the legislative assembly for the NCT does not
exercise exclusive jurisdiction over State List subjects.  Parliament has
legislative authority (in addition to the Union List), both in regard to the
State and Concurrent Lists for NCT. Hence
legislation by the legislative
assembly, even on matters which fall within its legislative domain is subject
to the overriding power of Parliament.  The principle of repugnancy
which Article 254 recognises between Union and State legislation on
matters in the Concurrent List is extended by Article 239AA [3(b) and 3
(c)], both with reference to State and Concurrent List subjects for NCT.
Moreover, certain subjects have been expressly carved out from the
ambit of the legislative authority of the legislative assembly and vested
exclusively in Parliament.  Executive powers of the Government of NCT
being co-extensive with legislative powers, the aid and advice which is
tendered to the Lieutenant Governor by the Council of Ministers is
confined to those areas which do not lie outside the purview of legislative
powers.  These provisions demonstrate that while adopting the institutions
of a cabinet form of government, the Constitution has, for NCT, curtailed
the ambit of the legislative and executive power, consistent with its status
as a Union territory.
139. The exercise of the constituent power to introduce Article
239AA was cognizant of the necessity to protect national interests
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
302
SUPREME COURT REPORTS
[2018] 7 S.C.R.
inherent in the governance of a national capital. A sense of permanence
and stability was sought to be attributed to the arrangements made for
governing Delhi by bringing in a constitutional amendment.  Both in terms
of the reach of the legislative power, as well as in relation to the exercise
of executive power, the special constitutional arrangements for Delhi
recognise that the governance of Delhi implicates a sense of national
interest. When matters of national interest arise, they would predicate a
predominant role for institutions of national governance.
140. Consistent with the need to preserve national interest, it would
not be appropriate to restrict the ambit of the proviso to Article 239AA(4)
to situations where the action of the government is ultra vires the limits
of its executive powers. This becomes evident on a construction of the
provisions of Section 41(1)(i) and Section 44(1)(a) of the GNCTD Act.
Sub-clause(i) of Section 41(1) enables the Lieutenant Governor to act in
his discretion on a matter 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.  Under
Section 44(1)(a), Rules of Business are made on matters on which the
Lieutenant Governor is required to act on the aid and advice of the
Council of Ministers.  Section 44(1)(a) covers business which is not a
part of Section
41(1)(i). This is because matters which fall within Section
44(1)(i) are not governed by the principle of aid and advice.
141. There is much to be said for not laying down an exhaustive
catalogue of situations to which the proviso applies. Governance involves
complexities. In the very nature of things, it would not be possible for a
Court delivering judgment in the context of the problems of the day to
anticipate situations which may arise in future.  It would be unsafe to
confine a constitutional provision to stated categories which may affect
the resilience of the Constitution to deal with unforeseen situations. Some
of the illustrations which may warrant the exercise of the power under
the proviso may shed light on the purpose of the proviso and the object
which it seeks to achieve.
142. There are two constitutional perspectives: first, the operation
of the proviso should preserve the national concerns underlying the
conferment of such a power, and second, the exercise of the power
under the proviso must not destroy the essential democratic values
recognised in Article 239AA. Thus, it is necessary to lay down the steps
A
B
C
D
E
F
G
H
303
which need to be adopted before recourse is taken to the proviso.  The
Transaction of Business Rules indicate in sufficiently elaborate terms
that when there is a difference of opinion between the Lieutenant
Governor and a Minister, primarily, an effort should be made to resolve
it by mutual discussion. If this process does not yield a satisfactory result,
the matter can be referred to the Council of Ministers with whom an
attempt is made to seek a satisfactory solution. It is when these two
stages are crossed and a difference still persists that the proviso can be
taken recourse to by referring the matter to the President. These stages
which are enunciated in the Transaction of Business Rules must be read
in conjunction with the authority conferred by Section 44 of the GNCTD
Act which was enacted in pursuance of Article 239AA(7). Hence the
proviso must be read in conjunction with the law enacted by Parliament
and the Transaction of Business Rules made by the President, to give
clarity to the operating procedure for invoking the proviso. Moreover,
once a reference is made to the President, the Lieutenant Governor is
bound by the decision of the President. The Lieutenant Governor has
the authority to take action which is warranted by emergent circumstances
until the President has taken a decision. But before recourse is taken to
the proviso, the Lieutenant Governor must make every effort with the
Minister or, as the case may be, the Council of Ministers to
resolve a
matter of difference. The nature of the differences which may warrant
a reference to the President cannot be exhaustively catalogued. But it
would be appropriate to construe the proviso as a protector of national
concerns in regard to governance of the NCT. The Lieutenant Governor
is a watchdog to protect them. The Lieutenant Governor may, for instance,
be justified in seeking recourse to the proviso where the executive act of
the government of the NCT is likely to impede or prejudice the exercise
of the executive power of the Union government. The Lieutenant
Governor may similarly consider it necessary to invoke the proviso to
ensure compliance with the provisions of the Constitution or a law
enacted by Parliament.  There may well be significant issues of policy
which have a bearing on the position of the National Capital Territory as
a national capital. Financial concerns of the Union government may be
implicated in such a manner that it becomes necessary for the Lieutenant
Governor to invoke the proviso where a difference of opinion remains
unresolved.  A situation of the nature indicated in Rule 23 of the
Transaction of Business Rules may well justify recourse to the proviso.
The touchstone for recourse to the proviso is that the difference of opinion
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
304
SUPREME COURT REPORTS
[2018] 7 S.C.R.
is not a contrived difference.  The matter on which a difference has
arisen must be substantial and not trifling. In deciding whether to make
a reference, the Lieutenant Governor must always bear in mind the
latitude which a representative government possesses to take decisions
in areas falling within its executive authority.  The Lieutenant Governor
must bear in mind that it is not he, but the Council of Ministers which
takes substantive decisions and even when he invokes the proviso, the
Lieutenant Governor has to abide by the decision of the President. The
Lieutenant Governor must also be conscious of the fact that unrestrained
recourse to the proviso would virtually transfer the administration of the
affairs of the NCT from its government to the Centre. If the expression
‘any matter’ were to be read so broadly as to comprehend ‘every matter’,
the operation of the proviso would transfer decision making away from
the government of the NCT to the Centre. If the proviso were to be so
read,  it would result in a situation where the President would deal with
a reference on every matter, leaving nothing but the husk to the
administration of the Union territory. Article 239AB makes a provision
where there is a failure of the constitutional machinery in the Union
territory. The proviso to Article 239AA(4) does not deal with that
situation. Hence, in the application of the proviso it would be necessary
to bear in mind that
the Council of Ministers for the NCT has a
constitutionally recognised function, as does the legislative assembly to
whom the Council is collectively responsible.  The role of the Lieutenant
Governor is not to supplant this constitutional structure but to make it
workable in order to ensure that concerns of a national character which
have an innate bearing on the status of Delhi as a national capital are not
bypassed. If these fundamental precepts are borne in mind, the operation
of the proviso should pose no difficulty and the intervention of the President
could be invoked in appropriate cases where a matter fundamental to
the governance to the Union territory is involved.
M Conclusions
143. After analysing the constitutional and statutory provisions
and the precedents on this point, this Court reaches the following
conclusions:
(1)The introduction of Article 239AA into the Constitution was
the result of the exercise of the constituent power.  The 69th
amendment to the Constitution has important consequences
A
B
C
D
E
F
G
H
305
for the special status of Delhi as the National Capital Territory,
albeit under the rubric of a Union territory governed by Part
VIII of the Constitution;
(2)The content of such a constitutional amendment cannot be
confined or constrained by the content of legislations which
governed Delhi in the past.  The constitutional amendments
sought to bring stability and permanence to the democratic
governance of the NCT.  An amendment which enhances the
basic features of the Constitution must bear an interpretation
which will fulfil its true character;
(3)The Administrator appointed by the President under Article
239(1) is designated, with reference to the NCT as its
Lieutenant Governor.  The substantive source of power to
appoint the Lieutenant Governor arises from Article 239 of the
Constitution;
(4)While Article 239(1) indicates that the administration of a Union
territory is by the President, the opening words of the provision
(“Save as otherwise provided by Parliament by law”) indicate
that the nature and extent of the administration by the President
is as indicated in the law framed by Parliament. Moreover, the
subsequent words of the provision (“to such extent as he thinks
fit”) support the same position;
(5) By adopting Article 239AA, Parliament as a constituent body,
provided Delhi with a special status by creating constitutionally
entrenched institutions of governance. Article 239AA mandates
the existence of a legislative assembly and Council of
Ministers
to govern the affairs of the National Capital;
(6) The provisions of Article 239AA represent a clear mandate of
the Constitution to provide institutional governance founded on
participatory, representative and responsive government. These
features emerge from the provisions of Article 239AA which:
(i)  require direct election to the legislative assembly from
territorial constituencies;
(ii) engage the constitutional functions of the Election
Commission of India under Articles 324, 327 and 329;
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
306
SUPREME COURT REPORTS
[2018] 7 S.C.R.
(iii) confer law making authority on the legislative assembly in
respect of matters governed by the State List (save for
excepted matters) and the Concurrent List;
(iv) mandate the collective responsibility of the Council of
Ministers to the legislative assembly; and
(v)  provide (in the substantive part of Article 239AA(4)) that
the Lieutenant Governor shall act on the aid and advise of
the Council of Ministers headed by the Chief Minister.
In adopting these provisions through an amendment, the Constitution
has recognized the importance of the cabinet form of government to
govern the affairs of Delhi;
(7)The distribution of legislative power in Article 239AA is
indicative of the predominant role assigned to Parliament as a
legislative body. This emerges from:
(i)   the position that Parliament is empowered to legislate on
subjects falling in the State List as well as the Concurrent
List; and
(ii)   the carving out of the three subjects of public order, police
and land (Entries 1, 2 and 18 of the State List) and of
offences, jurisdiction of Courts and fees (Entries 64, 65
and 66 in so far as they relate to the previous entries), all
of which are within the exclusive legislative domain of
Parliament. Principles of repugnancy govern any
inconsistency between laws enacted by the legislative
assembly and those by Parliament and the laws of
Parliament are to prevail unless a Presidential assent has
been received.
(8)The
executive power of the government of NCT is co-extensive
with the legislative power.  The principle of aid and advice
under clause 4 of Article 239AA extends to areas where the
Lieutenant Governor exercises functions in relation to matters
where the legislative assembly has the power to make laws.
In consequence, those matters on which the legislative
assembly does not have the power to enact legislation are not
governed by the principle of aid and advice. Similarly, the
Lieutenant Governor is not subject to aid and advice on matters
A
B
C
D
E
F
G
H
307
where he is required to exercise his own discretion by or under
any law;
(9)The GNCTD Act, 1991 has been enacted by Parliament in
pursuance of the legislative authority conferred upon it by clause
7(a) of Article 239AA. The President has made the Transaction
of Business Rules for the NCT as contemplated in the GNCTD
Act, 1991;
(10)Section 41 of the GNCTD Act indicates that:
(i)      in matters which lie outside the legislative powers entrusted
to the legislative assembly and where there has been an
entrustment or delegation of functions by the President
to the Lieutenant Governor under Article 239; and
(ii)   on matters where the Lieutenant Governor exercises his
own discretion by or under any law, he is not subject to
the aid and advice of the Council of Ministers;
(11)Section 44 of the GNCTD Act indicates that aid and advice
governs areas other than those specified in Section 44(1)(i);
(12) Under the Transaction of Business Rules, the Lieutenant
Governor must be kept duly apprised on all matters pertaining
to the administration of the affairs of the NCT. The Rules
indicate the duty of the Council of Ministers to inform the
Lieutenant Governor right from the stage of a proposal before
it. The duty to keep the Lieutenant Governor duly informed
and apprised of the affairs of the NCT facilitates the discharge
of the constitutional responsibilities entrusted to him and the
fulfilment of his duties under the GNCTD Act, 1991 and the
Transaction of Business
Rules;
(13) While the provisions contained in the Transaction of Business
Rules require a scrupulous observance of the duty imposed on
the Council of Ministers to inform the Lieutenant Governor on
all matters relating to the administration of the NCT, neither
the provisions of Article 239AA nor the provisions of the Act
and Rules require the concurrence of the Lieutenant Governor
to a decision which has been taken by the Council of Ministers.
Rule 14 of the Transaction of Business Rules in fact indicates
that the duty is to inform and not seek the prior concurrence of
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
308
SUPREME COURT REPORTS
[2018] 7 S.C.R.
the Lieutenant Governor.  However, in specified areas which
fall under Rule 23; it has been mandated that the Lieutenant
Governor has to be apprised even before a decision is
implemented;
(14) As a result of the provisions of Article 367, the General
Clauses Act, 1897 applies, subject to adaptations and
modifications made under Article 372, to the interpretation of
the Constitution.  The definitions of the expressions ‘state’
(Section 3(58)) and ‘state government’ (Section 3(60)) and
‘union territory’ (Section 3(62A)) apply to the interpretation of
the provisions of the Constitution unless there is something
repugnant in the subject or context of a particular provision of
the Constitution;
(15) Since the decision of this Court in Kanniyan (supra) and
right through to the nine-judge Bench decision in NDMC
(supra), it is a settled principle that the expression ‘state’ in
Article 246(4) will not include a Union territory and that the
definition contained in the General Clauses Act will not apply
having regard to the subject and context of the provision.
Decisions of this Court have applied the subject and context
test to determine whether the expression ‘state’ in other
provisions of the Constitution and in statutory provisions would
include a Union territory;
(16) The use of the expression “State” in a particular provision is
not dispositive of whether or not its application would stand
excluded in relation to a Union
territory. The outcome is
essentially based on the subject and context in which the word
has been used;
(17) While giving meaning and content to the proviso to Article
239AA (4), it is necessary to harmonise two significant precepts:
(i)    The Constitution has adopted a cabinet form of government
for the Union territory of Delhi by creating institutions for
the exercise of legislative power and an executive arm
represented by the Council of Ministers; and
(ii)   Vital national interests are implicated in the governance of
the National Capital Territory.
A
B
C
D
E
F
G
H
309
The doctrines of aid and advice and of collective responsibility give effect
to (i) above while the empowerment of the Lieutenant Governor to refer
any matter on which there is a difference of opinion to the President is a
reflection of (ii) above.
(18) While it may not be possible to make an exhaustive catalogue
of those differences which may be referred to the President
by the Lieutenant Governor, it must be emphasised that a
difference within the meaning of the proviso cannot be a
contrived difference.  If the expression ‘any matter’ were to
be read as ‘every matter’, it would lead to the President
assuming administration of every aspect of the affairs of the
Union territory, thereby resulting in the negation of the
constitutional structure adopted for the governance of Delhi;
(19) Before the Lieutenant Governor decides to make a reference
to the President under the proviso to Article 239AA(4), the
course of action mandated in the Transaction of Business
Rules must be followed. The Lieutenant Governor must, by a
process of dialogue and discussion, seek to resolve any
difference of opinion with a Minister and if it is not possible
to have it so resolved to attempt it through the Council of
Ministers. A reference to the President is contemplated by
the Rules only when the above modalities fail to yield a solution,
when the matter may be escalated to the President;
(20) In a cabinet form of government, the substantive power of
decision making vests in the
Council of Ministers with the
Chief Minister as its head.  The aid and advice provision
contained in the substantive part of Article 239AA(4)
recognises this principle. When the Lieutenant Governor acts
on the basis of the aid and advise of the Council of Ministers,
this recognises that real decision-making authority in a
democratic form of government vests in the executive. Even
when the Lieutenant Governor makes a reference to the
President under the terms of the proviso, he has to abide by
the decision which is arrived at by the President. The
Lieutenant Governor has, however, been authorised to take
immediate action in the meantime where emergent
circumstances so require.  The provisions of Article 239AA(4)
indicate that the Lieutenant Governor must either act on the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
310
SUPREME COURT REPORTS
[2018] 7 S.C.R.
basis of aid and advice or, where he has reason to refer the
matter to the President,  abide by the decision communicated
by the President. There is no independent authority vested in
Lieutenant Governor to take decisions (save and except on
matters where he exercises his discretion as a judicial or quasi-
judicial authority under any law or has been entrusted with
powers by the President under Article 239 on matters which
lie outside the competence of the Government of NCT); and
(21) The proviso to Article 239AA is in the nature of a protector
to safeguard the interests of the Union on matters of national
interest in relation to the affairs of the National Capital
Territory. Every trivial difference does not fall under the
proviso. The proviso will, among other things, encompass
substantial issues of finance and policy which impact upon
the status of the national capital or implicate vital interests of
the Union. Given the complexities of administration, and the
unforeseen situations which may occur in future, it would not
be possible for the court in the exercise of judicial review to
exhaustively indicate the circumstances warranting recourse
to the proviso.  In deciding as to whether the proviso should
be invoked the Lieutenant Governor shall abide by the
principles which have been indicated in the body of this
judgment.
144. After the circulation of my judgment to my learned colleagues,
I have had the benefit of
receiving the judgments of the learned Chief
Justice and brother Justice Ashok Bhushan. I believe that there is a
broad coalescence of our views.
145. The reference shall stand answered in the above terms and
the proceedings shall now be placed before the learned Chief Justice of
India for appropriate directions in regard to the constitution of the Bench
to decide the matters.
ASHOK BHUSHAN, J. 1. These appeals have been filed
questioning the Division Bench judgment of Delhi High Court dated
04.08.2016 deciding nine writ petitions by a common judgment, out of
nine writ petitions, two writ petitions were filed by the Government of
National Capital Territory of Delhi (hereinafter referred to as “GNCTD”)
being Writ Petition (C) No.5888 of 2015 (GNCTD vs. UOI) impugning:
A
B
C
D
E
F
G
H
311
“Notifications dated 21.05.2015 and 23.07.2014 issued by
the Govt. of India, Ministry of Home Affairs empowering the
Lt. Governor to exercise the powers in respect of matters
connected with “Services” and directing the ACB Police
Station not to take cognizance of offences against officials
of Central Government.”
and Writ Petition (Crl.) No.2099 of 2015 (GNCTD vs. Nitin Manawat)
impugning:
“Order passed by the Lt. Governor, NCT of Delhi under
Section 24 of Cr. P.C. appointing a Special Public Prosecutor
to conduct the trial in FIR No.21/2012 in the Special Court
under PC Act.”
One writ petition filed by Union of India being Writ Petition (C) No.8867
of 2015 (UOI vs. GNCTD & Anr.) impugning:
“Notification dated 11.08.2015 issued by the Directorate of
Vigilance, GNCTD under the Commissions of Inquiry Act,
1952 without placing before the Lieutenant Governor for his
views/concurrence.”
2. Other six writ petitions were filed by individuals challenging
various notifications issued by GNCTD.  The petitioners in Writ Petition
(C) No.7887 of 2015 and Writ Petition (C) No.8382 of 2015 had
challenged the notification dated 11.08.2015 issued by the Directorate
of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952. In
Writ Petition (C) No.7934 of 2015 (Naresh Kumar vs. GNCTD & Ors.)
impugned action was:
“Notification dated 04.08.2015 issued by the Revenue
Department, GNCTD revising minimum rates of agricultural
land (circle rules) under the provisions of
Indian Stamp Act,
1899 and Delhi Stamp (Prevention of Undervaluation of
Instrument)Rules without placing before the Lieutenant
Governor for his views/concurrence.”
Writ Petition(C) No.8190 of 2015 (Sandeep Tiwari vs. GNCTD & Ors.)
was filed questioning:
“Order passed by the Department of Power, GNCTD under
Delhi Electricity Reforms Act, 2000 read with Delhi Electricity
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
312
SUPREME COURT REPORTS
[2018] 7 S.C.R.
Reforms (Transfer Scheme) Rules, 2001 appointing the
Nominee Directors on Board of Electricity Distribution
Companies without placing before the Lieutenant Governor
for his views/concurrence.”
3. The petitioner in Writ Petition (C)No.348 of 2016 (Ramakant
Kumar vs. GNCTD) had also challenged notification dated 22.12.2015
issued by the Directorate of Vigilance, GNCTD under the Commissions
of Inquiry Act, 1952 constituting the Commission of Inquiry.
4. The Division Bench of the High Court after considering the
arguments of the parties recorded its conclusion in paragraph 304 of the
judgment and its outcome in paragraph 305. Paragraphs 304 and 305
are extracted below:
“304. The conclusions in this batch of petitions may be summarized
as under:-
(i) On a reading of Article 239 and Article 239AA of the
Constitution together with the provisions of the
Government of National Capital Territory of Delhi Act,
1991 and the Transaction of Business of the Government
of NCT of Delhi Rules, 1993, it becomes manifest that
Delhi continues to be a Union Territory even after the
Constitution (69th Amendment) Act, 1991 inserting Article
239AA making special provisions with respect to Delhi.
(ii)  Article 239 of the Constitution continues to be applicable
to NCT of Delhi and insertion of Article 239AA has not
diluted the application of Article 239 in any manner.
(iii) The  contention  of  the  Government  of  NCT  of  Delhi
that  the
Lt. Governor of NCT of Delhi is bound to act
only on the aid and advice of the Council of Ministers in
relation to the matters in respect of which the power to
make laws has been conferred on the Legislative Assembly
of NCT of Delhi under  clause  (3)(a)  of  Article 239AA
of the Constitution is without substance and cannot be
accepted.
(iv)It is mandatory under the constitutional scheme to
communicate the decision of the Council of Ministers to
the Lt. Governor even in relation to the matters in respect
A
B
C
D
E
F
G
H
313
of which power to make laws has been conferred on the
Legislative Assembly of NCT of Delhi under clause (3)(a)
of Article 239AA of the Constitution and an order thereon
can be issued only where the Lt. Governor does not take
a different view and no reference to the Central
Government is required in terms of the proviso to clause
(4) of Article 239AA of the Constitution read with Chapter
V of the Transaction of Business of  the Government of
NCT of Delhi Rules, 1993.
(v)The matters connected with ‘Services’ fall outside the
purview of the Legislative Assembly of NCT of Delhi.
Therefore, the direction in  the impugned Notification
S.O.1368(E) dated  21.05.2015  that  the Lt. Governor of
the NCT of Delhi shall in respect of matters connected
with ‘Services’ exercise the powers and discharge the
functions of the Central Government to the extent
delegated to him from time to time by the President is
neither illegal nor unconstitutional.
(vi) The direction in the impugned Notification S.O.1896(E)
dated 23.07.2014 as reiterated in the Notification
S.O.1368(E) dated 21.05.2015 that the Anti-Corruption
Branch Police Station shall not take any cognizance of
offences against officers, employees and functionaries
of the Central Government is in accordance with the
constitutional scheme and warrants no interference since
the power is traceable to Entry 2 (Police) of List II of the
Seventh Schedule to the Constitution in respect of which
the Legislative Assembly of
NCTD has no power to make
laws.
(vii) Notification No.F.5/DUV/Tpt./4/7/ 2015/ 9386-9393 dated
11.08.2015 issued by the Directorate of Vigilance,
Government of NCT of Delhi under Section 3 of the
Commission of Inquiry Act, 1952 appointing the
Commission of Inquiry for inquiring into all aspects of
the award of work related to grant of CNG Fitness
Certificates in the Transport Department, Government of
NCT of Delhi is illegal since the same was issued without
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
314
SUPREME COURT REPORTS
[2018] 7 S.C.R.
seeking the views/concurrence of the Lt. Governor as
provided under Rule 10 and Rule 23 read with Chapter V
of Transaction of Business Rules, 1993.
(viii)For the same reasons, the Notification No. F.01/66/2015/
DOV/15274- 15281 dated 22.12.2015 issued by the
Directorate of Vigilance, Government of NCT of Delhi
under Section 3 of the Commission of Inquiry Act, 1952
appointing the Commission of Inquiry to inquire into the
allegations regarding irregularities in the functioning of
Delhi and District Cricket Association is also declared
as illegal.
(ix) The appointment of Nominee Directors of Government of
NCT of Delhi on Board of BSES Rajdhani Power Limited,
BSES Yamuna Power Limited and Tata Power Delhi
Distribution Limited by the Delhi Power Company Limited
on the basis of the recommendations of the Chief Minister
of Delhi without communicating the decision of the Chief
Minister to the Lt. Governor of NCT of Delhi for his views
is illegal.
(x) The proceedings of the Government of NCT of Delhi,
Department of Power No.F.11(58) /2010/Power/1856
dated 12.06.2015 issuing policy directions to the Delhi
Electricity Regulatory Commission regarding disruption
in electricity supply to consumers and compensation
payable in respect thereof are illegal and unconstitutional
since such policy directions cannot be issued  without
communicating  to  the  Lt. Governor of NCT of Delhi for
his views.
(xi)The Notification
No.F.1(1953)/Regn.Br./ Div.Com/HQ/
2014/191 dated 04.08.2015 issued by the Government
of NCT of Delhi, Revenue Department in exercise of the
powers conferred by sub-section(3) of Section 27 the
Indian Stamp Act, 1899 (2 of 1899) and Rule 4 of the
Delhi Stamp (Prevention of Under - Valuation of
Instruments) Rules, 2007 revising the minimum rates for
the purpose of chargeability of stamp duty on the
A
B
C
D
E
F
G
H
315
instruments related to sale/transfer of agriculture land is
illegal since the said notification was issued without
seeking the views/concurrence of the Lt. Governor of NCT
of Delhi as required under the constitutional scheme.
(xii)  Though the Lt. Governor of NCT of Delhi is competent
to appoint the Special Public Prosecutor under Section
24(8) of Cr.P.C., such power has to be exercised on the
aid and advice of the Council of Ministers in terms of
Clause (4) of Article 239AA of the Constitution.
305. In result, W.P.(C) No.5888/2015 is dismissed, W.P.(C) Nos.7887/
2015, 7934/2015, 8190/2015, 8382/2015, 8867/2015, 9164/2015
and 348/2016 are allowed and W.P.(Crl.) No.2099/2015 is disposed
of with directions.”
5. The Government of NCTD aggrieved by the judgment has filed
appeals. The GNCTD in its appeals has prayed for setting aside the
judgment of the High Court.
6. Union of India has filed two appeals, namely, C.A.No.2364 of
2017 questioning the judgment of Division Bench in Writ Petition(C)
No.7934 of 2015 and Criminal Appeal No.277 of 2017 questioning the
judgment in Writ Petition(Crl.) No.2099 of 2015.
7. These appeals raise important questions of law in respect of
the powers exercisable by democratically elected Government of NCT
in juxtaposition to the power of Lt. Governor of NCTD (hereinafter
referred to as “LG”).
8. During the hearing of the appeals, a two Judge Bench of this
Court opined that the appeals involve  substantial questions of law as to
the interpretation of Article 239AA of the Constitution of India. The
Division Bench passed the following order for placing the matter before
Chief Justice for constituting a Constitution Bench:
     “During the hearing of these appeals our attention is
drawn to the provisions of Article 145(3) of the Constitution
of India. Having gone through the matters and the aforesaid
provisions, we are of the opinion that these appeals need to
be heard by a Constitution Bench as these matters involve
substantial questions of law as to the interpretation of Article
239AA of the Constitution.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
316
SUPREME COURT REPORTS
[2018] 7 S.C.R.
    The Registry shall accordingly place the papers before
Hon’ble the Chief Justice of India for constituting an
appropriate Constitution Bench.”
9. These appeals, thus, have been placed before this Constitution
Bench. At the outset, it was agreed between the learned counsel for the
parties that this Constitution Bench may only answer the   constitutional
questions and the individual appeals thereafter will be decided by
appropriate regular Benches.
10. We have been benefited by erudite submissions made by
learned senior counsel, Shri P. Chidambaram, Shri Gopal Subramanium,
Dr. Rajiv Dhawan, Smt. Indira Jaising and Shri Shekhar Naphade. On
behalf of Union of India, submissions have been advanced by Shri
Maninder Singh, learned Additional Solicitor General for India. We have
also heard other learned counsel appearing for the parties as well as
learned counsel appearing for intervenor for whom Dr. A.M. Singhvi
and Shri Arvind Datar, learned senior counsel have appeared. Shri
Siddharth Luthra, learned senior counsel has appeared for respondent in
C.A. NO.2360 of 2017.
11. A common written submission has been filed on behalf of
Government of National Capital Territory of Delhi. Shri Maninder Singh,
learned Additional Solicitor General has also filed the written submission
on behalf of Union of India and Lt. Governor of NCTD.
The submissions
12. Learned senior counsel appearing for GNCTD has emphasised
and highlighted
various aspects of the different constitutional issues which
have arisen for consideration in these appeals. Their submissions are
referred hereafter as common submissions on behalf of GNCTD. It is
submitted that NCTD occupies a unique position in constitutional
jurisprudence by virtue of insertion of Articles 239AA and 239AB vide
the Constitution (Sixty Ninth Amendment) Act, 1991. Though still a Union
Territory, the NCTD has come to acquire various characteristics that
were, prior to the 69th Amendment and the Government of the National
Capital Territory Act, 1991 (hereinafter referred to as “1991 Act”),
considered under the Constitution to be characteristics solely of States.
As a consequence, the GNCTD also enjoys far more powers than the
Government of any other Union Territory.  The History of constitutional
provisions and Parliamentary enactments with respect to the NCTD
A
B
C
D
E
F
G
H
317
clearly establishes that 69th Amendment and 1991 Act were passed aiming
for giving the residents of the NCTD proper participation an ever larger
say in the governance of NCTD, truer and  deeper form of democracy.
Article 239AA intended to completely eradicate any hierarchical structure
which functionally placed Lieutenant Governor of Delhi (hereinafter
referred to as “LG”) in a position superior to that of the Council of
Ministers, especially with respect to the exercise of executive power.
Pursuant to Article 239AA, a cabinet system of Government on the
Westminster style was introduced in Delhi and the LG was made a
titular head alone in respect of matters that were assigned to Legislative
Assembly and the Council of Ministers. By way of the express and
deliberate exclusion of language similar to that of the 1963 Act and 1966
Act from the words of Article 239AA, and the replacement of “assist
and advise” with the term of art “aid and advice”, the 69th Constitutional
Amendment consciously obviated a requirement for the LG’s
concurrence and allowed the Council of Ministers created thereunder to
govern the NCTD. The provisions of Article 239AA must be interpreted
as furthering the basic structure of the Constitution, a purposive
interpretation has always been adopted by this Court. Learned counsel
have also relied on “doctrine of constitutional silence and convention”.
13. It is contended that federalism being the basic structure of the
Constitution. The
interpretation of the constitutional provisions has to be
done in a manner which may strengthen the federal structure as
contemplated by the Constitution. The arguments of respondent that
provisions of Article 239AA should be read in a strictly textual manner is
not correct. Our constitutional jurisprudence has moved away by several
decisions of this Court from a textual to more purposive and organic
method of constitutional interpretation.
14. The 69th Constitutional Amendment installed a Westminster
style of Government for NCTD. The constitutional head would be bound
by the “aid and advice” of their Council of Ministers, this is irrespective
of who is the constitutional head, whether President, State Governor or
by logical end the LG. In the case of NCTD, the principle of collective
responsibility to a democratic legislative body requires that the “aid and
advice” of the Council of Ministers be binding on the LG in order to give
due respect to the stated intention of the 69th Constitutional Amendment,
i.e., the introduction of constitutionally mandated democratic governance
in Delhi.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
318
SUPREME COURT REPORTS
[2018] 7 S.C.R.
15. It is the petitioner’s case that the extent of the executive powers
of the GNCTD can be understood by way of a combined reading of the
provisions of Article 239AA(3) read with Article 239AA(4). The GNCTD
possesses exclusive executive powers in relation to matters that fall
within the purview of the Assembly’s Legislative competence. Neither
the President nor the Central Government has any executive powers in
Delhi with respect to these matters and the LG as the President’s delegate
has no role or power in this regard. Article 239AA(3) gives the Delhi
Legislative Assembly legislative powers over all but Entries 1, 2, 18 and
Entries 64, 65 and 66 in so far as they relate to Entry 1, 2 and 18 of the
State List, and all the subjects in the Concurrent List. The Council of
Ministers’ executive domain under Article 239AA(4) is the same.
Moreover, Article 239AA reserves primacy of the Union Parliament
and the Central Government only in limited area. This is clear from the
provisions of Article 239AA(3)(b). The primacy of the legislative powers
of Parliament is reserved by this provision but there is no corresponding
provision in the Constitution which preserves the executive power of the
Central Government vis-a-vis the Delhi Government in respect of the
NCT. Thus, Article 239AA(3)(b) consciously preserves Parliament’s
Legislative powers for Delhi, as they obtained for all Union Territories
under Article 246. Also it
consciously omits from giving the Centre
coterminous executive powers, and Article 73 will only operate to give
the Centre executive power in relation to the three reserved subjects of
State List.
16. Dwelling on the interpretation of proviso to Article 239AA(4),
it is submitted that proviso is not meant for the LG to have a different
view on the merits of the aid and advice that has been tendered by the
Council of Ministers and is only meant to deal with situations where the
aid and advice of the Council of Ministers is transgressing beyond the
areas constitutionally prescribed to them. It is submitted that the said
proviso operates in the following areas, where the decision of the Council
of Ministers of the NCTD:-
a.   is outside the bounds of executive power under Article
239AA(4);
b.   impedes or prejudices the lawful exercise of the executive
power of the Union;
c.    is contrary to the laws of the Parliament.
A
B
C
D
E
F
G
H
319
d.  falls within Rule 23 of the Transaction of Business of
Government of National Capital Territory of Delhi Rules, 1993
matters such as-
i.     matters which affect the peace and tranquillity of the Capital;
ii.   Interests of any minority community;
iii.   Relationship with the higher judiciary;
iv.    any  other  matters  of  administrative  importance  which  the
Chief Minister may consider necessary.
17. A holistic reading of Article 239AA(4) and the proviso reveals
that the proviso exists because the norm is for the LG to be bound by the
aid and advice of the Council of Ministers of the NCTD. This norm can
only be departed from in the circumstances laid out above for the
applicability of the proviso.
18. It is submitted that 1991 Act as well as the Rules themselves
cannot be used to interpret the constitutional provisions rather they are
reflecting the scheme of governance. The “services” lies within the
Legislative and Executive domains of the Delhi Assembly and the GNCTD
respectively.
19. Shri Maninder Singh, learned Additional Solicitor General for
India replying to the submissions of learned counsel for the appellant
contends that while interpreting the Constitution the Courts should give
effect to plain and literal meaning of the constitutional provisions. There
is neither any ambiguity nor any absurdity arising from the plain/literal
interpretation of the provisions of 239AA. The constitutional provisions
concerning the GNCTD have been
inserted keeping in view the carefully
envisaged scheme of governance for NCTD under the Constitution of
India. The Constitution makers have deliberately used the widest possible
words “any matter” in order to retain the powers of the Union in both
the legislative and executive spheres in relation to all matters, keeping in
view the unique features as well as special responsibilities of the Union,
in each subject in relation to the National Capital. Any contention seeking
a restrictive interpretation of the said provisions are impermissible in
view of the law laid down by this Court. Any such contention would not
only be contrary to the constitutional scheme envisaged for Delhi but
would also be contrary to the intention of the Constitution makers in
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
320
SUPREME COURT REPORTS
[2018] 7 S.C.R.
using the widest possible language for emphasising the responsibility
and supremacy of the Union in the administration of the National Capital.
20. The contention on the basis of principles of constitutional silence
or constitutional implication which run contrary to the constitutional
scheme envisaged by express provisions has to be rejected. The
Balakrishnan Committee Report which was foundation for 69th
Constitutional Amendment throws light on the intention of the Constitution
makers.
21. Article 239 is an integral/inseparable part of the constitutional
scheme envisaged for all Union Territories as provided for under Part
VIII of the Constitution, and is to be read with Article 239AA for NCT
of Delhi. Article 239 applies to all Union Territories including NCT of
Delhi when read with Article 239AA, the way it applies to Pondicherry
when read with the provision of Article 239A.
22. Shri Maninder Singh during his submission has referred to
various paragraphs of Balakrishnan Committee Report to bring home
his point of view.
23. It is submitted that even when Article 239AA(3)(a) stipulates
that Legislative Assembly of Delhi shall have the power to legislate in
respect of subject matters provided in List II and List III of the VIIth
Schedule of Constitution of India, it specifically restricts the legislative
powers of Legislative Assembly of Delhi to those subject matters which
are “applicable to Union Territories”. The
Constitution envisages that
List II and List III of the VIIth Schedule of the Constitution of India
contain certain subject matters which are not applicable to Union
Territories. The intention of the Constitution makers is that even when
the subject matters contained in List II and List III of the VIIth Schedule
become available to the Legislative Assembly of NCT of Delhi, the subject
matters in the said Lists which are not applicable to Union Territories
would not become available to the Legislative Assembly of NCT of
Delhi and would be beyond its legislative powers.
24. Article 246(4) provides that in relation to all Union Territories
including Delhi and any other territory which is not a State, Parliament
has power to make laws on any matter i.e. all subject matters contained
in all three Lists of the VIIth Schedule. This independent separate
provision once again recognises the ultimate/eventual responsibility of
the Union in relation to the Union Territories on all subject matters.
A
B
C
D
E
F
G
H
321
25. Since the executive power of the Union under Article 73(1)(a),
and which is vested in the President of India under Article 53 extends to
all subject matters on which Parliament has power to make laws – in a
Union Territory, the executive power of the Union extends to any matter
i.e. all subject matters contained in all three Lists of the VIIth Schedule
and remains vested in the President under Article 239 of the Constitution
for administering Union Territories, including Union Territory of NCT
Delhi.
26. It is submitted that the proviso to Article 239AA(4) re-enforces
and recognises the ultimate/eventual responsibility and continuing control
of the Union in relation to the administration of the Union Territory of
Delhi. The Constitution makers have envisaged that owing to its
responsibilities in relation to every subject, it may become necessary for
the Union Government to take any decision with regard to any matter in
relation to the administration of the National Capital Territory of Delhi.
Such a need may also be arising in relation to day-to-day functioning of
the National Capital.
27. It is further submitted that the Constitution makers have
deliberately used the widest possible phrase of “any matter” in the
proviso to Article 239AA(4). The Constitution Bench of this Court in the
case of Tej Kiran Jain and Others Vs. N. Sanjiva Reddy and Others,
(1970) 2 SCC 272  has clearly held that the word “any” used in relation
to “anything” in the
Constitution – would necessarily mean “everything”.
The said principle would make it abundantly clear that the phrase “any
matter” used in Article 239AA would necessarily and unexceptionally
mean “every matter”. Further, only such an interpretation would ensure
the intended objective and the necessity that if the need arises, the Union
is not prevented from discharging its responsibilities in relation to the
National Capital in relation to any matter.
28. It is further respectfully submitted that the proviso to Article
239AA(4) would not deserve to be interpreted as an “exception”. It is
not an exception but the reiteration of a constitutional mandate. The
constitutional mandate is that the Union would have overarching control
in relation to all matters for the National Capital. There is no vestige of
any exclusive Executive Power in the Council of Ministers of NCT of
Delhi. The vestige of the Executive Power continues to remain in the
President. The proviso is controlling the provision of Article 239AA(4),
reiterating the overarching control of the Union, and is not an exception.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
322
SUPREME COURT REPORTS
[2018] 7 S.C.R.
The proviso indicates the constitutional mandate of supremacy of the
Union. In the humble submission of the respondents, no restrictive
interpretation of the proviso ought to be permitted and the clear
Constitutional mandate contained in the proviso to Article 239AA(4)
would deserve to be followed, especially in the case of the National
Capital.
29. It is most respectfully reiterated that the unitary scheme of
governance for Union Territories, especially for National Capital of Delhi,
has been envisaged keeping in view the fact that the administration of
Union Territories specially National Capital of Delhi is the responsibility
of the President/Union. The Union Government is the responsible
Government, accountable to the Parliament for the administration of the
Union Territories. The National Capital belongs to people of the entire
nation.  Learned Additional Solicitor General has also referred to and
relied on various provisions of 1991 Act and Transaction of Business
Rules, 1993 with regard to administration of GNCTD.
30. Learned Additional Solicitor General in its submission also
contended that there are very few instances in which LG has made
reference to President and in actual working LG neither withhold the
files nor there is any other hindrance in decisions taken by GNCTD. He
submits that on various occasions without even communicating the
decisions taken by the Council of Ministers/Ministers to the LG, the
GNCTD starts implementing the decision which is not in accordance
with the scheme of governance as delineated by Article 239AA. 1991
Act and Transaction of Business Rules, 1993.
31. Learned counsel for the parties in support of their respective
submissions have placed reliance on a large number of judgments of this
Court and Foreign Courts.  Relevant decisions of this Court and other
Courts shall  be referred to while considering the respective submissions.
Importance of a National Capital
32. The word “Capital” is derived from Latin word “caput”
meaning head and denotes a certain primacy status associated with the
very idea of a Capital. Delhi is the National Capital of the country. For
the purposes of this case it is not necessary to notice the early history of
Delhi. During the British period Calcutta was a seat of both the Provincial
Government of Bengal as well as the Central Government. The conflicts
A
B
C
D
E
F
G
H
323
of authorities and jurisdiction between the Governor of Bengal and
Governor- General was brought into the notice of the Secretary of the
State in London. Lord Hardinge in his dispatch of 25.08.1911 emphasised
“that the Capital of a great Central Government should be separate and
independent, and effect has been given to this principle in the United
States of America, Canada and Australia”. A decision was taken to
transfer Capital from Calcutta to Delhi which was announced on
12.12.1911. A Government Notification No.911 dated 17.09.1912 was
issued under which the Governor-General-in-Council took under his
authority the Territories comprising the Tehsil of Delhi and the Police
Station of Mehrauli which were formerly included in the  province of
Punjab. The Notification provided for the administration of areas as a
separate province under a Chief Commissioner. The Delhi Laws Act,
1911 and the Delhi Laws Act, 1915 made provisions for the continuance
of the Laws in force in the Territories comprising the Chief
Commissioner’s province of Delhi and for the extension of other
enactments in force in any part of British India to Delhi by Governor-
General-in-Council. In 1915, trans-Yamuna areas comprising 65 villages
were separated from United Provinces of Agra and Oudh and added to
the Chief Commissioner’s  of Delhi.
Administration    of    Delhi    after    Enforcement    of    the
Constitution of India.
33. The Government of India Act, 1935 did not affect any
material
changes in the administrative set-up for Delhi and it continued as before
to be a Chief Commissioner’s  Province directly administered by the
Governor-General “acting to such extent as he thinks fit through a Chief
Commissioner”. On 31.07.1947, a Committee under the Chairmanship
of Dr. B.Pattabhi Sitaramayya was established to study and report on
the constitutional changes required in the administrative structure obtaining
in the Chief Commissioner’s Provinces, including Delhi. The Committee
recommended that Delhi, Ajmer, Bhopal, Bilaspur, Coorg, Himachal
Pradesh including Kutch, Manipur, Tripura and such other provinces
may be so designated as shall be the Lt. Governor’s Province.
The report was debated in Constituent Assembly when draft Articles
212 and 213 (which was adopted as 239-240) was debated. When the
Constitution was enforced from 26th January, 1950 the scheme of the
Constitution of India including Articles 1 to 4, Territory of India was
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
324
SUPREME COURT REPORTS
[2018] 7 S.C.R.
divided into four categories Part ‘A’, Part ‘B’, Part ‘C’ and Part ‘D’
States. With regard to Part ‘A’ and Part ‘B’ States, the Constitution
envisaged a vertical division of power between the Union and States
wherein Part ‘C’ and ‘D’ States, Constitution had provided structure
under which Union Government retained the power in both the executive
and legislative sphere. Part ‘C’ States had also been termed as centrally
administered areas which included Delhi. Parliament enacted the
Government of Part C States Act, 1951, under which provision was
made to aid and advice to Chief Commissioner. The States Re-
organisation Commission was set up on 29.12.1953 which also took up
subject of functioning of Part ‘C’ States. The State Re-organisation
Commission made the following Report with regard to Delhi:
“584. It is hardly necessary to discuss in any detail the reasons
why Delhi, if it is to continue as the Union Capital, cannot be
made part of a full-fledged constituent unit of the Indian
Union. Even under a unitary system of government, the normal
practice is to place national capitals under a special
dispensation. In France, for example, there is a greater degree
of central control over Paris than over other municipalities.
In England, the police administration of the metropolitan area
is directly under the control of the Home Secretary, who does
not exercise similar powers in respect of other municipal areas.
Apart from
reasons which are peculiar to each country or
city, there are some general considerations necessitating
special arrangements in respect of national capitals. Capital
cities possess, or come to possess, some degree of political
and social predominance. They are seats of national
governments, with considerable property belonging to these
governments. Foreign diplomatic missions and international
agencies are located in these capitals. They also become
centres of national culture and art. So far as federal capitals
are concerned, there is also an additional consideration. Any
constitutional division of powers, if it is applicable to units
functioning in the seats of national governments, is bound to
give rise to embarrassing situations. Practice in other
countries, administrative necessity and the desirability of
avoiding conflicting jurisdictions, all point to the need for
effective control by national governments over federal
capitals.”
A
B
C
D
E
F
G
H
325
34. On the basis of the recommendation of the State Re-
organisation Commission, 7th Amendment Act, 1956 was passed, under
the Amendment Part ‘C’ States were renamed as Union Territory. Delhi
a Part ‘C’ State became Union Territory and the Legislative Assembly
and Council of Ministers ceased to act w.e.f. 01.11.1956. Subsequent to
7th Amendment, different schemes were enforced for administration of
Delhi, Delhi Municipal Corporation Act, 1957 was passed by the
Parliament providing for direct  election of Councillors from all the
constituencies to be elected by residents of Delhi.  By Constitution 14th
Amendment Act, 1962, Article 239A was inserted which was enabling
provision for the Parliament to make law to create a Legislature or Council
of Ministers or both for the Union Territories specified therein. The Union
Territory of Delhi was not included in the list of Union Territories  in
Article 239A. The Parliament enacted the Government of Union
Territories Act, 1963. The Delhi Administration Act, 1966 was passed
by the Parliament to provide for an elected body of Delhi Metropolitan
Council. A Committee was appointed by the Government of India to go
into the various issues connected with the administration of Union Territory
of Delhi. The Committee, after, studying for two years about all aspects
of the matters had submitted its Report on 14.12.1989 to the Home
Minister. The Report of the Committee is commonly known as
Balakrishnan Committee Report.
While submitting the Report
S.Balakrishnan, in nutshell, in his letter dated 14.12.1989 addressed to
Home Minister has outlined task given to the Committee in  following
words:
    “The task of designing a proper structure of Government
for the national capital particularly for a country with a
federal set up like ours, has always proved difficult because
of two conflicting requirements. On the one hand, effective
administration of the national capital is of vital importance
to the national Government not only for ensuring a high
degree of security and a high level of administrative efficiency
but also for enabling the Central Government to discharge
its national and international responsibilities; to ensure this,
it must necessarily have a complete and comprehensive control
over the affairs of the capital. On the other hand, the legitimate
demand of the large population of the capital city for the
democratic right of participation in the government at the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
326
SUPREME COURT REPORTS
[2018] 7 S.C.R.
city level is too important to be ignored. We have endeavoured
to design a governmental structure for Delhi which we hope,
would reconcile these two requirements.”
35. Balakrishnan Committee Report studied different aspects
connected with the administration of Delhi, the Capital of this country.
While studying “National Capital Administration in some countries”, in
Chapter V, the Committee examined various models including United
States of America, Canada, Japan and United Kingdom. After noticing
the different aspects in paragraph 5.7.3 following has been observed:
“5.7.3
It will be clear from the above that it has been
recognised in many countries of the world that the national
government should have the ultimate control and authority
over the affairs of the national capital. At the same time, there
is a noticeable trend in those countries to accept the principle
of associating the people in the capital with sectors of
administration affecting them, by means of a representative
body. Because of the difficulty in securing a balance between
these two considerations, the problem of evolving an
appropriate governmental structure for the national capital
has proved difficult in many countries particularly those with
a federal type of government.“
36. Before the Committee, the arguments for giving Statehood to
Delhi as well as arguments against the Statehood was noticed. The
Committee after considering the rival arguments
concluded following in
paragraph 6.5.9 and 6.5.10:
       “6.5.9 We are also impressed with the argument that Delhi
as the national capital belongs to the nation as a whole and
any constituent ‘State of the Union of which Delhi will become
a part would sooner or later acquire a predominant position
in relation to other States.  Sufficient constitutional authority
for Union intervention in day-to-day matters, however, vital
some of them may be, will not be available to the Union,
thereby prejudicing the discharge of its national duties and
responsibilities.
6.5.10
In the light of the foregoing discussion our
conclusion is that it will not be in the national interests and in
A
B
C
D
E
F
G
H
327
the interests of Delhi itself, to restructure the set-up in Delhi
as a full-fledged constituent State of the Union, this will have
to be ruled out. We recommend accordingly.”
37. While discussing “salient features of proposed structure”
following was stated in paragraphs 6.7.1 and 6.7.2:
      “6.7.1 As a consequence of our recommendation in the
preceding paragraph that Delhi should be provided with a
Legislative Assembly and a Council of Ministers the further
issues to be considered are:
(g)  the extent of the powers and responsibilities to be conferred
on or entrusted to these bodies, the special safeguards to
ensure that the Union is not hampered in discharging its
duties and responsibilities and the other salient features
of the structure; and
(h)   the manner in which the proposed changes in the structure
should be brought about, that is, whether they should be
by amendments to the Constitution, or by a Parliamentary
law or by a combination of both.
We will now take up the issue in item (i) above in the succeeding
paragraphs. Item (ii) will be discussed in Chapter VII.
      6.7.2 As we have already stated, any governmental set-
up for Delhi should ensure that the Union is not fettered or
hampered in any way in the discharge of its own special
responsibilities in relation to the administration of the national
capital, by a constitutional division of powers, functions and
responsibilities between the Union and the Delhi
Administration. The only way of
ensuring this arrangement is
to keep Delhi as a Union Territory for the purposes of the
Constitution. Thereby, the provision in Article 246(4) of the
Constitution will automatically ensure that Parliament has
concurrent and overriding powers to make laws for Delhi on
all matters, including those relateable to the State List.
Correspondingly, the Union, Executive can exercise executive
powers in respect of all such matters subject to the provisions
of any Central law governing the matter. We, therefore,
recommend that even after the creation of a Legislative
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
328
SUPREME COURT REPORTS
[2018] 7 S.C.R.
Assembly and Council of Ministers for Delhi it should continue
to be a Union Territory for the purposes of the Constitution.”
38. Various other recommendations were made by Balakrishnan
Committee which led to Constitution 69th Amendment. Statement and
Objects of Constitution 69th Amendment notices the object and purpose
of constitutional amendment which are to the following effect:
“STATEMENT OF OBJECTS AND REASONS
The question of re-organisation of the Administrative set-up
in the Union territory of Delhi has been under the
consideration of the Government for some time. The
Government of India appointed on 24-12-1987 a Committee
to go into the various issues connected with the administration
of Delhi and to recommend measures inter alia for the
streamlining of the administrative set-up. The Committee went
into the matter in great detail and considered the issues after
holding discussions with various individuals, associations,
political parties and other experts and taking into account
the arrangements in the national Capitals of other countries
with a federal set-up and also the debates in the Constituent
Assembly as also the reports by earlier Committees and
Commissions. After such detailed inquiry and examination, it
recommended that Delhi should continue to be a Union
territory and provided with a Legislative Assembly and a
Council of Ministers responsible to such Assembly with
appropriate powers to deal with
matters of concern to the
common man. The Committee also recommended that with a
view to ensure stability and permanence the arrangements
should be incorporated in the Constitution to give the National
Capital a special status among the Union territories.
2. The Bill seeks to give effect to the above proposals.”
39. By 69th Amendment Act, Article 239AA and Article 239AB
were added in Part VIII of the Constitution. Article 239AA and 239AB
which Articles are taken up for consideration in these appeals are as
follows:
“Article 239AA {Special provisions with respect to Delhi}
1. As from the date of commencement of the Constitution (Sixty
A
B
C
D
E
F
G
H
329
ninth Amendment) Act, 1991, the Union territory of Delhi shall
be called the National Capital Territory of Delhi (hereafter
in this Part referred to as the National Capital Territory) and
the administrator thereof appointed under article 239 shall
be designated as the Lieutenant Governor.
2(a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled
by members chosen by direct election from territorial
constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division
of the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters
relating to the functioning of the Legislative Assembly shall
be regulated by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall apply
in relation to the National Capital Territory, the Legislative
Assembly of the National Capital Territory and the members
thereof as they apply, in relation to a State, the Legislative
Assembly of a State and the members thereof respectively;
and any reference in articles 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
330
SUPREME COURT REPORTS
[2018] 7 S.C.R.
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 form 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 the Lieutenant Governor and his Ministers on any
matter, the Lieutenant Governor shall refer it to 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 the 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 supplement the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
A
B
C
D
E
F
G
H
331
(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 Pondicherry, the
administrator and its Legislature, respectively; and any
reference in that article to “clause (1) or article 239A” shall
be deemed to be a reference to this article or article 239AB,
as the case may be.
Article 239AB {Provision in case of failure of constitutional
monarchy}
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.”
The Principles of Constitutional Interpretation
40. Before we proceed to examine the scheme delineated by
Article 239AA, it is necessary to have an overview on the principles
which have been accepted for interpretation of a Constitution. Before
we notice the accepted principles for constitutional interpretation,  we
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
332
SUPREME COURT REPORTS
[2018] 7 S.C.R.
want to notice prophetic words of Dr. B.R. Ambedkar where Dr.
Ambedkar in closing debate on 25.11.1949 in the Constituent Assembly
on the draft Constitution made following  statement:
“...Because 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.”
41. After noticing the universal truth stated by Dr. B.R. Ambedkar
as above, we now proceed to notice the principles of Constitutional
interpretation.  The general rule for interpreting a Constitution are the
same as those for interpreting a general Statute.  Article 367 of the
Constitution provides that Unless the context otherwise requires, the
General Clauses Act, 1897, shall, subject to any adaptations and
modifications that may be made therein under Article 372, apply for the
interpretation of this Constitution as it applies for the interpretation of an
Act of the Legislature
of the Dominion of India.  This Court in Keshavan
Madhava Menon Vs. State of Bombay, AIR 1951 SC 128 : (1951)
SCR 228 held that court of law has to gather the spirit of the Constitution
from the language of the Constitution. True meaning of the Constitution
has to be arrived at uninfluenced by any assumed interpretation of the
Constitution.  In Para 13 of the judgment, following was held :-
“13. An argument founded on what is claimed to be the spirit
of the Constitution is always attractive, for it has a powerful
appeal to sentiment and emotion; but a court of law has to
gather the spirit of the Constitution from the language of the
Constitution. What one may believe or think to be the spirit of
the Constitution cannot prevail if the language of the
Constitution does not support that view. Article 372(2) gives
power to the President to adapt and modify existing laws by
way of repeal or amendment. There is nothing to prevent the
President, in exercise of the powers conferred on him by that
A
B
C
D
E
F
G
H
333
article, from repealing, say the whole or any part of the Indian
Press (Emergency Powers) Act, 1931. If the President does
so, then such repeal will at once attract Section 6 of the General
Clauses Act. In such a situation all prosecutions under the
Indian Press (Emergency Powers) Act, 1931, which were
pending at the date of its repeal by the President would be
saved and must be proceeded with notwithstanding the repeal
of that Act unless an express provision was otherwise made
in the repealing Act. It is therefore clear that the idea of the
preservation of past inchoate rights or liabilities and pending
proceedings to enforce the same is not foreign or abhorrent
to the Constitution of India. We are, therefore, unable to accept
the contention about the spirit of the Constitution as invoked
by the learned counsel in aid of his plea that pending
proceedings under a law which has become void cannot be
proceeded with. Further, if it is against the spirit of the
Constitution to continue the pending prosecutions under such
a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such
repressive law before the Constitution of India came into force
should continue to rot in jail. It is, therefore, quite clear that
the court should construe the language of Article 13(1)
according to the established rules of interpretation and arrive
at its true meaning uninfluenced by any assumed spirit of the
Constitution.”
42. This Court in subsequent judgments have also propounded the
doctrine of literal interpretation and doctrine of purposive interpretation.
There cannot be  denial to the fact that the Court has to respect the
language used in the Constitution wherever possible, the language be
such interpreted as may best serve the purpose of the Constitution.  A
Constitutional document should be construed with less rigidity and more
generosity than other acts. This Court in S.R. Chaudhuri Vs. State of
Punjab & Ors., (2001) 7 SCC 126 held that we must remember that a
Constitution is not just a document in solemn form, but a living framework
for the Government of the people exhibiting a sufficient degree of cohesion
and its successful working depends upon the Democratic spirit underlying
it being respected in letter and in spirit.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
334
SUPREME COURT REPORTS
[2018] 7 S.C.R.
43.
Before a Constitution Bench of this Court in G. Narayanaswami
Vs. G. Paneerselvam and Others, (1972) 3 SCC 717, provisions of
Article 171 came up for interpretation, in the above case, in Paragraph 4
of the judgment, following principle was reiterated:-
“4. Authorities are certainly not wanting which indicate that
courts should interpret in a broad and generous spirit the
document which contains the fundamental law of the land or
the basic principles of its Government. Nevertheless, the rule
of “plain meaning” or “literal” interpretation, described in
Maxwell’s Interpretation of Statutes as “the primary rule”,
could not be altogether abandoned today in interpreting any
document. Indeed, we find Lord Evershed, M.R., saying: “The
length and detail of modern legislation, has undoubtedly
reinforced the claim of literal construction as the only safe
rule”. (See: Maxwell on Interpretation of Statutes, 12th Edn.,
p. 28.) It may be that the great mass of modern legislation, a
large part of which consists of statutory rules, makes some
departure from the literal rule of interpretation more easily
justifiable today than it was in the past. But, the object of
interpretation and of “construction” (which may be broader
than “interpretation”) is to discover the intention of the law-
makers in every case (See: Crawford on Statutory
Construction, 1940 Edn., para 157, pp. 240-42). This object
can, obviously, be best achieved by
first looking at the
language used in the relevant provisions. Other methods of
extracting the meaning can be resorted to only if the language
used is contradictory, ambiguous, or leads really to absurd
results. This is an elementary and basic rule of interpretation
as well as of construction processes which, from the point of
view of principles applied, coalesce and converge towards
the common purpose of both which is to get at the real sense
and meaning, so far as it may be reasonably possible to do
this, of what is found laid down. The provisions whose meaning
is under consideration have, therefore to be examined before
applying any method of construction at all………………….”
44. In B.R. Kapur Vs. State of T.N. and Another, (2001) 7
SCC 231 Justice Pattanaik, delivering a concurring judgment, laid down
following in Paragraph 72:-
A
B
C
D
E
F
G
H
335
“72. …………………………………A documentary constitution
reflects the beliefs and political aspirations of those who had
framed it. One of the principles of constitutionalism is what it
had developed in the democratic traditions. A primary function
that is assigned to the written constitution is that of controlling
the organs of the Government. Constitutional law presupposes
the existence of a State and includes those laws which regulate
the structure and function of the principal organs of the
government and their relationship to each other and to the
citizens. Where there is a written constitution, emphasis is
placed on the rules which it contains and on the way in which
they have been interpreted by the highest court with
constitutional jurisdiction. Where there is a written constitution
the legal structure of the Government may assume a wide
variety of forms. Within a federal constitution, the tasks of
the Government are divided into two classes, those entrusted
to the federal organs of the Government, and those entrusted
to the various States, regions or provinces which make up the
federation. But the constitutional limits bind both the federal
and State organs of the Government, which limits are
enforceable as a matter of law………………….”
45. Another Constitution Bench in Kuldip Nayar and Others
Vs. Union of India and Others, (2006) 7 SCC 1 after the above quoted
passage of G. Narayanaswami (supra) stated following in Para 201:-
“201.
Xxxxxxxxxxxxxxxxx
     We endorse and reiterate the view taken in the abovequoted
paragraph of the judgment. It may be desirable to give a broad
and generous construction to the constitutional provisions,
but while doing so the rule of “plain meaning” or “literal”
interpretation, which remains “the primary rule”, has also to
be kept in mind. In fact the rule of “literal construction” is
the safe rule unless the language used is contradictory,
ambiguous, or leads really to absurd results.”
46. We may also notice the Constitution Bench Judgment in I.R.
Coelho Vs. State of T.N., (2007) 2 SCC 1, it laid down the principles of
construction in Paragraph 42, which is to the following effect:-
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
336
SUPREME COURT REPORTS
[2018] 7 S.C.R.
“42. The controversy with regard to the distinction between
ordinary law and constitutional amendments is really
irrelevant. The distinction is valid and the decisions from
Indira Gandhi case (1975 Supp. SCC 1) up to Kuldip Nayar
v. Union of India [(2006) 7 SCC 1] case  represents the correct
law. It has no application in testing the constitutional
amendment placing the Acts in the Ninth Schedule. There is
no manner of doubt that:
A) In Kesavananda Bharati [(1973) 4 SCC 225] case Sikri,
C.J. [para 475(h)], Shelat & Grover, JJ. [paras 607,
608(7)], Hegde & Mukherjea, JJ. [paras 742, 744(8)] and
Jaganmohan Reddy, J. [paras 1211, 1212(4)] all clearly
held that the Acts placed in the Ninth Schedule and the
provisions thereof have to be subjected to the basic
structure test.
(B) Chandrachud, C.J. in Waman Rao case [(1980) 3 SCC
587], followed the path laid down by 6 Judges in
Kesavananda Bharati without quoting from their
conclusions and without attempting to reconcile their views
with the subsequent development in the law regarding the
distinction between ordinary legislations and constitutional
amendments.”
47. Learned counsel for the appellant submits that Federalism
being one of the basic structure of the Constitution, this Court may put
such interpretation on Article 239AA, which strengthens the federal
structure.  It is further contended that Parliamentary democracy having
been adopted by our Constitution, this Court
may interpret Article 239AA
so that Constitutional design and Constitutional objectives be fulfilled.  It
is submitted that judgments of this Court in Rustom Cavasjee Cooper
Vs. Union of India, (1970)1 SCC 248: AIR 1970 SC 564 and judgment
of this Court in Maneka Gandhi Vs. Union of India and Another,
(1978)1 SCC 248: AIR 1978 SC 597 reflect that principles of less
textual and more purposive method of Constitutional interpretation which
has been adopted in these cases.  Judgment of this Court in K.C. Vasanth
Kumar and Another Vs. State of Karnataka, 1985 Supp. SCC 714
has been relied, wherein this Court laid down following:-
A
B
C
D
E
F
G
H
337
“……………………….It is not enough to exhibit a Marshallian
awareness that we are expounding a Constitution; we must
also remember that we are expounding a Constitution born in
the mid-twentieth century, but of an anti-imperialist struggle,
influenced by constitutional instruments, events and
revolutions elsewhere, in search of a better world, and wedded
to the idea of justice, economic, social and political to all.
Such a Constitution must be given a generous interpretation
so as to give all its citizens the full measure of justice promised
by it. The expositors of the Constitution are to concern
themselves less with mere words and arrangement of words
than with the philosophy and the pervading “spirit and sense”
of the Constitution, so elaborately exposed for our guidance
in the Directive Principles of State Policy and other provisions
of the Constitution…………………………….”
48. Shri H.M. Seervai, in his “A Critical Commentary” on
Constitutional Law of India, on interpretation of the Constitution, states
following in Paragraph 2.1 and 2.2:-
“2.1 A Court of Law must gather the spirit of the Constitution
from the language used, and what one may believe to be the
spirit of the Constitution cannot prevail if not supported by
the language, which therefore must be construed according
to well-established rules of interpretation uninfluenced by an
assumed spirit of the Constitution. Where the Constitution has
not limited, either in terms or by necessary implication, the
general powers conferred upon the Legislature, the Court
cannot limit them upon any notion of the spirit of the
Constitution.
2.2 Well established rules of interpretation require that the
meaning and intention of the framers of a Constitution – be it
a Parliament or a Constituent Assembly – must be ascertained
from the language of that Constitution itself; with the motives
of those who framed it, the Court has no concern.  But, as
Higgins J. observed – “in words that have not withered or
grown sterile with years”-:
“although we are to interpret the words of the constitution
on the same principles of interpretation as we apply to
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
338
SUPREME COURT REPORTS
[2018] 7 S.C.R.
any ordinary law, these very principles of interpretation
compel us to take into account the nature and scope of the
Act we are interpreting, to remember that it is a Constitution,
a mechanism under which laws are to be made, and not a
mere Act which declares what the law is to be.”
49. Justice G.P. Singh in “Principles of Statutory Interpretation”,
14th Edition, while discussing interpretation of Constitution stated
following:-
“The Constitution is a living organic thing and must be
applied to meet the current needs and requirements, and is
not bound to be interpreted by reference to the original
understanding of the constitutional economics as debated in
Parliament.  Accordingly, the Supreme Court held that the
content and meaning of Article 149, which provides the duties
and powers of the CAG, will vary from age to age and, given
that spectrum is an important natural resource, CAG has the
power to examine the accounts of telecom service providers
under Article 149.
It cannot, however, be said that the rule of literal construction
or the golden rule of construction has no application to
interpretation of the Constitution.  So when the language is
plain and specific and the literal construction produces no
difficulty to the constitutional scheme, the same has to be
resorted to. Similarly, where the Constitution has prescribed
a method for doing a thing and has left no ‘abeyance’ or
gap, if the court by a strained
construction prescribes another
method for doing that thing, the decision will become open to
serious objection and criticism.”
50. Aharon Barak (Former President, Supreme Court of Israel)
while dealing with Purposive Constitutional Interpretation expounded the
modern concept in following words:-
“The purpose of the constitutional text is to provide a solid
foundation for national existence. It is to embody the basic
aspirations of the people. It is to guide future generations by
its basic choices. It is to control majorities and protect
individual dignity and liberty. All these purposes cannot be
fulfilled if the only guide to interpretation is the subjective
A
B
C
D
E
F
G
H
339
purposes of the framers of the constitutional text. The
constitution will not achieve its purposes if its vision is
restricted to the horizons of its founding fathers. Even if we
assume the broadest generalizations of subjective purpose,
this may not suffice. It may not provide a solid foundation for
modern national existence. It may be foreign to the basic
aspirations of modern people. It may not be consistent with
the dignity and liberty of the modern human being. A
constitution must be wiser than its creators”.
51. Almost same views have been expressed by Aharon Barak in
“Foreword: A Judge on Judging The Role of a Supreme Court in a
Democracy”, which are as under:-
“The original intent of the framers at the time of drafting is
important.  One cannot understand the present without
understanding the past.  The framers’ intent lends historical
depth to understanding the text in a way that honors the past.
The intent of the constitutional authors, however, exists
alongside the fundamental views and values of modern society
at the time of interpretation.  The constitution is intended to
solve the problems of the contemporary person, to protect his
or her freedom.  It must contend with his or her needs.
Therefore, in determining the constitution’s purpose through
interpretation, one must also take into account the values and
principles that prevail at the time of interpretation, seeking
synthesis and harmony between past intention and present
principle.”
52.
In this context, we may also profitably notice views of David
Feldman expressed in “The Nature and Significance of Constitutional
Legislation” published in 2013(129) L.Q.R. 343-358.  Few principles to
guide the interpretation of Constitution instruments were noted, which
are as follows:-
“Despite differences between constitutions, and between types
of provision within each constitution, diverse jurisdictions
have shown considerable consistency in their selection of
principles to guide the interpretation of constitutional
instruments. First, constitutions are to be interpreted with the
aid of their preambles, which are usually treated as forming
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA
& ANOTHER [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
340
SUPREME COURT REPORTS
[2018] 7 S.C.R.
an integral part of them.63 Secondly, a democratic
constitution must be interpreted to “foster, develop and
enrich”, rather than undermine, democratic institutions.64
In particular, interpreters should give scope for a self-
governing entity to make its own decisions, including decisions
about the terms on which democratic institutions operate,
subject to limits imposed by the constitution.65 Thirdly,
constitutions are not to be interpreted with mechanical
literalness. Interpreters must take account of the context,
ultimate object, and textual setting of a provision, 66 bearing
in mind that “the question is not what may be supposed to
have been intended [by the framers], but what has been said”.
67 Fourthly, according to at least some judges, constitutions
are not to be interpreted as permitting institutions, including
legislatures, to act in a way which “offends what I may call
the social conscience of a sovereign democratic republic”,
because law must be regarded by ordinary people as
“reasonable, just and fair”
Nevertheless, these principles must be qualified by the
recognition of differences between constitutions.”
53. Learned counsel for the appellant has also relied on the
principles of Constitutional silence and Constitutional implications.  It is
submitted that Constitutional silence and Constitutional implications have
also to be given due effect while interpreting Constitutional provisions.
Reliance has been