GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER

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(Civil Appeal No. 2357 of 2017)

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A to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. [Para 277-xii, xiii, xvii] 1.2 The interpretative dissection of Article 239AA(3)(a) reveals that the Parliament has the power to make laws for the B National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List, public order, police and land. [Para 277-xiv] [180-B-D; C 181-C-D] 1.3 As a natural corollary, the Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. [Para 277-xvi] [181-A-C] New Delhi Municipal Corporation v. State of Punjab [1996] 10 Suppl. SCR 472: (1997) 7 SCC 339 – followed. F Ideals/principles of representative governance: 2.1 Representative Governance in a republican form of democracy is a kind of democratic setup wherein the people of a nation elect and choose their law making representatives. The representatives so elected are entrusted by the citizens with the task of framing policies which are reflective of the will of the electorate. The main purpose of a representative government is to represent the public will, perception and the popular sentiment into policies. The representatives, thus, act on behalf of the people at large and remain accountable to the people for their activities as lawmakers. Therefore, representative form of governance

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 7 & ANOTHER comes out as a device to bring to fore the popular will. The A Constitution of India has embraced the representative model of governance at all levels, i.e., local, State and the Union. Thus perceived, the people are the sovereign since they exercise the power of adult franchise that ultimately builds the structure of representative democracy. That apart, every constituent of the B sovereign is entitled to air his/her grievances through their elected representatives. The twin idea establishes the cornerstone of the precept of accountability to the public because there rests the origin of power and responsibility. [Paras 49, 52, 53] [81-G-H; 82-E; 83-B] State of Bihar and another v. Bal Mukund Sah and others C [2000] 2 SCR 299 : 2000 (4) SCC 640 – referred to. The Principles of Representative Government by Bernard Manin, Cambridge University Press, 1997 – referred to. D 2.2 In a democratic republic, the collective who are the sovereign elect their law making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies. [Para 277 (ii)] [177-F-G] 2.3 When elected representatives and constitutional functionaries enter their office, they take oath to bear allegiance to the Constitution and uphold the Constitution. Thus, it is expected of them not only to remain alive to the provisions of the Constitution but also to concepts like constitutionalism, constitutional objectivity and constitutional trust, etc. The support expressed by the sovereign in the form of votes cannot become an excuse to perform actions which fall foul to the Constitution or are ultra vires. Though the elected representatives are expected to act as instruments of transforming popular will into policies and laws, yet they must do so within the contours of the H

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A Constitution. They must display constitutional objectivity as a standard of representative governance, for that is ingrained in the conceptual democratic majority which neither tolerates ideological fragmentation nor encourages any kind of utopian fantasy. It lays stress on realizable constitutional ideologies. [Para 56] [83-G-H; 84-A-B] B Constitutional morality: 3.1 Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. C When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed. The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution. [Para 57] [84-C-E] 3.2 Constitutional morality is that fulcrum which acts as an essential check upon the high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy. Constitutional morality acts as a check against lapses on the part of the governmental agencies and colourable activities aimed at affecting the democratic nature of polity. [Paras 59, 61] [84-G-H; 85-A, E] 3.3 Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 9 & ANOTHER the constitutional impulse. In order to realize the constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity. [Para 61] [85-F-G; 86-A-B] C Manoj Narula v. Union of India [2014] 9 SCR 965 : (2014) 9 SCC 1; Krishnamoorthy v. Sivakumar and others [2015] 4 SCR 987 : (2015) 3 SCC 467 – referred to. Constitutional objectivity: D

4.1 The Constitution, in its grandness, resolutely embraces the theory of “checks and balances”. This theory in turn, gives birth to the principle of “constitutional objectivity”. The Constitution expects the organs of the State adorned by high constitutional functionaries that while discharging their duties, E they remain alive to the allegiance they bear to the Constitution. Neutrality as envisaged under the constitutional scheme should guide them in the performance of their duties and functions under the Constitution. This is the trust which the Constitution reposes in them. [Para 62] [86-B-D] F 4.2 The concept of constitutional objectivity is, by itself, inherent in the vision of the founding father and it is incumbent upon the organs of the State to make comprehensive efforts towards realization of this vision. But, at the same time, they must remain true to the Constitution by upholding the trust which G the Constitution places in them and thereby exhibit constitutional objectivity in its truest sense. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with H

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A the principles of constitutional objectivity and symphonious with the spirit of the Constitution. It is not only the decision itself but also the process adopted in such decision making which should be in tune with constitutional objectivity. A decision by a constitutional functionary may, in the ultimate analysis, withstand scrutiny but unless the process adopted for arriving at such a B decision is in tandem with the idea of constitutional objectivity, it invites criticism. Therefore, the decision making process should never by-pass the established norms and conventions which are time tested and should affirm to the idea of constitutionalism. [Paras 63, 64] [86-D-E, 87-B-D] C Indra Sawhney v Union of India and Others 1993 AIR 477 : [1992] 2 Suppl SCR 454 – referred to. Constitutional governance and the conception of legitimate constitutional trust: D 5.1 The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties. [Para 277(v)] [178-D] 5.2 The concept of constitutional governance in a body polity like ours, is neither hypothetical nor an abstraction but is real, concrete and grounded. The word ‘governance’ encapsulates the idea of an administration, a governing body or organization whereas the word ‘constitutional’ means something sanctioned by or consistent with or operating under the fundamental organic law, i.e., the Constitution. Thus, the word ‘governance’ when qualified by the term ‘constitutional’ conveys a form of governance/ government which adheres to the concept of constitutionalism. G The said form of governance is sanctioned by the Constitution itself, its functions are consistent with the Constitution and it operates under the aegis of the Constitution. The concept of constitutional governance is a natural consequent of the doctrine of constitutional sovereignty. [Paras 65, 68] [87-E-F; 89-B]

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Kalpana Mehta and others v. Union of India and others A (2018) 7 SCALE 106; B.R. Kapur v. State of T.N. and another [2001] 3 Suppl. SCR 191 : 2001 (7) SCC 231; Manoj Narula v. Union of India [2014] 9 SCR 965 : (2014) 9 SCC 1; Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [2000] 2 SCR 688 : B 2000 (4) SCC 309; Subhash Sharma and others and Firdauz Taleyarkhan v. Union of India and another 1990 (2) SCALE 836 – referred to.

5.3 The Constitution of India, is an organic document that requires all its functionaries to observe, apply and protect the constitutional values spelt out by it. These values constitute the constitutional morality. This makes the Constitution of India a political document that organizes the governance of Indian society through specific functionaries for requisite ends in an appropriate manner. The constitutional culture stands on the fulcrum of these values. The element of trust is an imperative between constitutional functionaries so that Governments can work in accordance with constitutional norms. It may be stated with definiteness that when such functionaries exercise their power under the Constitution, the sustenance of the values that usher in the foundation of constitutional governance should remain as the principal motto. There has to be implicit institutional trust between such functionaries. [Para 77] [93-D-F]

Collective responsibility:

6. Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a well deliberated legitimate decision of the G Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated.[Para 277(vi)] [178-E-F] H

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A State of Karnataka v. Union of India and another [1978] 2 SCR 1; R.K. Jain v. Union of India and others (1993) 3 SCR 802; Common Cause, A Registered Society v. Union of India and others [1999] 3 SCR 1279 : 1999 (6) SCC 667 – referred to. B “Government and Law”: An introduction to the working of the Constitution in Britain by T. C. Hartley and J.A.G. Griffith 2ndedn. 1981 London; Weidenfeld and Nicholson – referred to. Federal functionalism and democracy: C 7.1 The parliamentary form of democracy as envisaged by the Constitution has at its very base the power bestowed upon people to vote and make the legislature accountable for their functioning to the people. If the legislature fails to transform the popular will of the people into policies and laws, the people in a D democracy like ours have the power to elect new representatives by exercise of their vote. The political equality makes people aware of their right in unison and there is a consistent endeavour to achieve the same. Thus, democratic set up has its limbs firmly entrenched in the ability of the people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, yet it is a right that lies at the heart of democratic form of government. The right to vote is the most cherished value of democracy as it inculcates in the people a sense of belonging. The said situation warrants for reciprocative functionalism by thought, action and conduct. It requires the elected representatives to uphold the faith which the collective have reposed in them. Any undue interference amounts to betrayal of the faith of the collective in fulfilment of their aspirations of democratic self-governance. [Paras 86, 88, 89] [98- A-B, D-E, G G 7.2 Democracy and federalism are firmly imbibed in our constitutional ethos. Whatever be the nature of federalism present in the Indian Constitution, whether absolutely federal or quasi- federal, the fact of the matter is that federalism is a part of the basic structure of our Constitution as every State is a constituent H unit which has an exclusive Legislature and Executive elected

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 13 & ANOTHER and constituted by the same process as in the case of the Union A Government. The resultant effect is that one can perceive the distinct aim to preserve and protect the unity and the territorial integrity of India. This is a special feature of the constitutional federalism. [Para 106] [107-F-G] 7.3 Our Constitution contemplates a meaningful B orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full- fledged effect to both these concepts. The meeting of the diversity in unity without losing identity is a remarkable synthesis that the C Constitution conceives without even permitting the slightest contrivance or adroitness. [Para 277(vii), 106] [178-G-H; 108-B-C] Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others [1978] 2 SCR D 272 : (1978) 1 SCC 405; Raghbir Singh Gill v. S. Gurcharan Singh Tohra 1980 AIR 1362 : [1980} SCR 1302; Kesavananda Bharati v State of Kerala AIR (1973) SC 1461 : [1973] Suppl. SCR 1; Indira Nehru Gandhi v. Raj Narain [1976] SCR 347 : 1975 Suppl. E SCC 1; T.N. Seshan, CEC of India v. Union of India and others. [1995] 2 Suppl. SCR 106 : (1995) 4 SCC 611; KuldipNayar v. Union of India others. [2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1; In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964) 1965 AIR 745 : [1965] SCR 413; State of F Karnataka v. Union of India and another [1978] 2 SCR 1; Shamsher Singh v. State of Punjab 1974 AIR 2192 : [1975] 1 SCR 814; S.R. Bommai v. Union of India [1994] 2 SCR 644 : (1994) 3 SCC 1; ITC Ltd. v. Agricultural Produce Market G Committee [2002] 1 SCR 441 : (2002) 9 SCC 232 – referred to. Federal Government by Prof. K.C. Wheare, 1963 Edn. p.33; Black’s Law Dictionary 6th Edn.p. 432 – referred to. H

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A Collaborative federalism: 8.1 The vision enshrined in the Preamble, i.e., to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike. The constitutional vision beckons both the Central and the State B Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co- existence and interdependence so as to avoid any possible constitutional discord. [Paras 108, 277(viii)] [108-E; 179-A-B] C 8.2 The Union and the State Governments should always work in harmony avoiding constitutional discord. In such a collaboration, the national vision as set out in the Preamble to our Constitution gets realized. The methods and approach for the governments of the Union and the States may sometimes be different but the ultimate goal and objective always remain the same and the governments at different levels should not lose sight of the ultimate objective. This constitutional objective as enshrined in the Constitution should be the guiding star to them to move on the path of harmonious co-existence and interdependence. They are the basic tenets of collaborative federalism to sustain the strength of constitutional functionalism in a Welfare State. [Para 114] [109-F-G; 110-A] 8.3 The idea behind the concept of collaborative federalism is negotiation and coordination so as to work out the differences which may arise between the Union and the State Governments F in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the G common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. Both the Centre and the States must work H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 15 & ANOTHER within their spheres and not think of any encroachment. But in A the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. [Para 117] [110- B E-G; 111-A-B] 8.4 Though the authorities referred to pertain to Union of India and State Governments in the constitutional sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in Article 239AA and other articles. [Para 120] [112-B] C

State of Rajasthan and others v. Union of India (1978) 1 SCR 1 - referred to. Some aspects of Indian federalism by M.P. Jain – referred to. D Carmichael v. S. Coal & Coke Co. 301 U.S. 495, 525- 26 (1937) – referred to. The Passing of Dual Federalism by Edward S. Corwin 36 VA.L.REV. 1,4 (1950); Modern Federalism by Geoffrey Sawer (Pitman Australia, 1976) 1; Inter E governmental relations in Canada: The emergence of collaborative federalism by Cameron, D. and Simeon R. Publius, 32(2) : 49-72; Collaborative federalism : Economic reform in Australia in the 1990s by Martin Painter, Cambridge University Press, 2009; The F Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution, 2009 by Prof. Nicholas Aroney – referred to. Pragmatic federalism: 9.1 The essential characteristics of federalism like duality G of governments, distribution of powers between the Union and the State Governments, supremacy of the Constitution, existence of a written Constitution and most importantly, authority of the Courts as final interpreters of the Constitution are all present under our constitutional scheme. But at the same time, the H

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A Constitution has certain features which can very well be perceived as deviations from the federal character. Though Constitution broadly has a federal character, yet it still has certain striking unitary features too. The need is to understand the thrust and implication of a provision. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation. [Para 121, 277(viii)] [112-D-E; 113-C-D; 119-B] 9.2 The concept of pragmatic federalism is self explanatory. It is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability. It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve with the changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind. [Paras 125-126] [113-G-H; 114-A-B] Concept of federal balance: E 10.1 Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain. The need is for federal balance which required mutual respect and deference to actualize the workability of a constitutional provision. [Para 277 (ix), 127] [179-C; 114-E-F] 10.2 The interest of the States inherent in a federal form of government gains more importance in a democratic form of government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular State/region to the governance of the Union, that too, with respect to matters which can be best legislated at the State level goes against the very basic tenet of a democracy. The H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 17 & ANOTHER principle of federal balance which is entrenched in the Constitution A is that the Centre and the States must act within their own spheres. Thus, the role of the Court in ensuring the federal balance, as mandated by the Constitution, assumes great importance. It is so as the Court is the final arbiter and defender of the Constitution. [Paras 129, 131] [114-G-H; 115-A-B; 116-B-C] B In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964); UCO Bank v. Dipak Debbarma [2016] 11 SCR 723 : (2017) 2 SCC 585 – referred to. Interpretation of the Constitution: C 11.1 While interpreting the provisions of the Constitution, the safe and most sound approach for the Constitutional Courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of the Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The Courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution. Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the framers of the Constitution or the Parliament. [Para 277(i), (x)] [177-E; 179-E-F] 11.2 The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may H

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A not eventually subserve the purpose of a living document. [Para 133] [116-G-H; 117-A-B] R.C. Poudyal v. Union of India and others [1993] 1 SCR 891 : (1994) 1 Suppl. SCC 324; Supreme Court Advocates-on-Record Association and another v. Union B of India [1993] 2 Suppl. SCR 659 : (1993) 4 SCC 441– referred to. Dred Scott v Sanford 60 U.S. (19 How.) 393 (1857); Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) West Coast Hotel Co. v Parrish 300 C US 379 (1937); McCulloch v. Maryland 17 US (4Wheat) 316 (1819); State v Superior Court (1944) at 547; Gompers v US 233 (1914); Burnett v Coronado Oil and Gas Co., 285 US (1932); American Communication Association v Douds 339 US (1950) Poulos v New Hamshire, 345 US (1953); *—-Helvering D v. Gregory 69 F. 2d 809, 810-II (1934); Hunter v. SouthamInc [1984] 2 SCR 145; Edwards v Attorney General for Canada [1930] AC 124, 136; – referred to. Jurisprudence by Bodenheimer, Edgar (Universal Law E Publishing Co.Pvt. Ltd, Fourth Indian Reprint, 2004) p 405; “A Constructivist Coherence Theory of Constitutional Interpretation”, by Richard H. Fallon, Harvard Law Review Association, 1987; “Words and Music: Some remarks on Statutory Interpretation,” by F Jerome N. Frank Columbia Law Review 47 (1947): 1259-1367; The Interpretation of Legislation in Canada by Pierre-André Côté, 2nd Ed (Cowansville. Quebec:Les Editions Yvon Blais. Inc. 1992) – referred to. Purposive interpretation:

G 12. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the Constitutional Courts, with the vision to realize the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 19 & ANOTHER not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. The literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics. [Paras 146, D 151, 277(xi)] [179-G; 122-D-E; 124-A-B] S.R. Chaudhuri v. State of Punjab and others [2001] 1 Suppl. SCR 621 : (2001) 7 SCC 126; Ashok Kumar Gupta and another v. State of U.P. and others [1997] 3 SCR 269 : (1997) 5 SCC 201; Indian Medical Association v. Union of India and others [2011] E 6 SCR 599 : (2011) 7 SCC 179; M. Nagaraj v. Union of India (2006) 8 SCC 202 – referred to. Attorney General of Trinidad and Tobago v. Whiteman [1991] 2 AC 240; Regina (Quintavalle) v. Secretary of State for Health (2003) UKHL 13 : (2003) 2 AC 687 : F (2003) 2 WLR 692 (HL); Cabell v. Markham 148 F 2d 737 (2d Cir 1945)– referred to. Purposive Interpretation in Law by Sharon Barak Princelon University Press, 2005– referred to. G Constitutional culture and pragmatism:

13. The definition of the term ‘constitutional culture’ is to be perceived as set of norms and practices that breathe life into the words of the great document. It is the conceptual normative H

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A spirit that transforms the Constitution into a dynamic document. The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution. In order to promote and nurture B this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of “constitutional pragmatism”. Exposition of judicial sensibility to the functionalism of the Constitution is called constitutional pragmatism. [Paras 158, 161, 162, 277(xi)] [126-F-G; 127-C-D] C Supreme Court Advocates-on-Record-Association and others v. Union of India (2016) 5 SCC 1; R.C. Poudyal v. Union of India and others [1993] 1 SCR 891 : (1994) (1) Suppl. SCC 324; The State of Karnataka and another v. Shri Ranganatha Reddy and another [1978] D 1 SCR 641: (1977) 4 SCC 471; Union of India v. Sankalchand Himatlal Sheth and another [1978] 1 SCR 423 – referred to. Willaim J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification in interpreting The E Constitution: The Debate Over Original Intent at 23, 27 (Jack N. Rakove ed., 1990); Constitutional Theory, Constitutional Culture, by Andrew M. Siegel, 18 U.PA.J. Const. L. 1067 (2016) – referred to. Interpretation of Articles 239 and 239A: F 14.1 Article 239 was brought into existence by the Constitution (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing the words ‘shall’, makes it abundantly clear that every Union territory is mandatorily to be administered by the President through an administrator unless otherwise G provided by Parliament in the form of a law. Further, clause (1) of Article 239 also stipulates that the said administrator shall be appointed by the President with such designation as he may specify. Clause (2) thereafter, being a non-obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State H to act as an administrator of a Union Territory which is adjacent

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 21 & ANOTHER and/or contiguous to the State of which he is the Governor. The A Governor of a State who is so appointed as an administrator of an adjoining UT shall exercise his functions as an administrator of the said UT independently and autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor. [Paras 173-174] [131-G-H; 132-A-B] B Shamsher Singh v. State of Punjab 1974 AIR 2192 : [1975] 1 SCR 814; Union of India and others v. Surinder S [2012] 12 SCR 1077 : (2013) 1 SCC 403 – referred to. 14.2 Article 239 A was brought into force by the Constitution C (Fourteenth Amendment) Act, 1962. The Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30th May, 1987, the applicability of Article 239A stands limited to UT of Puducherry. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of D Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and Chandigarh. However, Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239A. [Paras 178-180] [133-E, G-H; 134-A-B] E Interpretation of Article 239AA

15. The Articles 239AA and 239AB require an elaborate interpretation and a thorough analysis to unearth and discover the true intention of the Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution F (Sixty-ninth Amendment) Act, 1991. The amendment really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when the interpretative dissection of Article 239AA and other articles that are pertinent to understand the said provision are looked into. [Paras 181, 182] G [134-C; 138-A-B] Status of NCT of Delhi:

16. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative H

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A Assembly has legislative powers. However, this is subject to the proviso contained in Clause (4) of Article 239AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has retained the powers for the Union even over matters falling within B the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4). [Para 195] [146-C-E] Shamsher Singh v. State of Punjab 1974 AIR 2192 : [1975] 1 SCR 814; Devji Vallabhbhai Tandel C and others v. Administrator of Goa, Daman and Diu and another [1982] 3 SCR 553 : (1982) 2 SCC 222; Sea Customs Act, Re, AIR 1963 SC 1760 : [1964] 3 SCR 787; New Delhi Municipal Corporation v. State of Punjab [1996] 10 Suppl. SCR 472 : (1997) 7 SCC D 339 – referred to. Executive power of the Council of Ministers of Delhi: 17.1 Drawing an analogy while interpreting the provisions of Article 239AA(3)(a) and Article 239AA(4) would reveal that the executive power of the Government of NCT of Delhi is conterminous with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. [Para 199] [148-G-H; 149-A-B] 17.2 The legislative power conferred upon the Delhi Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words ‘Part C States’ were substituted by the words ‘Union Territories’, the word ‘State’ in the proviso to Article 73 cannot be read to mean Union Territory as such an interpretation would render the H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 23 & ANOTHER scheme and purpose of Part VIII (Union Territories) of the A Constitution infructuous. [Para 200] [149-B-D] Essence of Article 239AA of the Constitution: 18.1 The constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239AA. The insertion of Articles 239AA and B 239AB which specifically pertain to NCT of Delhi is reflective of the intention of the Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239A is singularly applicable as on date. [Paras 201-202] [149-B-D, F-G] C 18.2 The Sixty-ninth amendment highlight the uniqueness attributed to Delhi with the aim that the residents of Delhi have a larger say in how Delhi is to be governed. The real purpose behind the Constitution (Sixty-ninth Amendment) Act, 1991, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution. For paving the way to realize this real purpose, it is necessary to give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of the Constitution are reinforced in NCT of Delhi in their truest sense. The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi. [Paras 203, 204] [149-H; 150-A-B] 18.3 The stark difference in the language of Article 239A clause (1) and that of Article 239AA clause (2) is noticed. Article G 239A clause (1) uses the word ‘may’ which makes it a mere directory provision with no obligatory force. Article 239A gives discretion to the Parliament to create by law for the Union Territory of Puducherry a Council of Ministers and/or a body which may either be wholly elected or partly elected and partly nominated H

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A to perform the functions of a Legislature for the Union Territory of Puducherry. Article 239AA clause (2), by using the word ‘shall’, makes it mandatory for the Parliament to create by law a Legislative Assembly for the National Capital Territory of Delhi. Further, sub-clause (a) of clause (2) declares very categorically that the members of the Legislative Assembly of the National B Capital Territory of Delhi shall be chosen by direct election from the territorial constituencies in the National Capital Territory of Delhi. Unlike Article 239A clause (1) wherein the body created by the Parliament by law to perform the functions of a Legislature for the Union Territory of Puducherry may either be wholly elected or partly elected and partly nominated, there is no such provision in the context of the Legislative Assembly of the NCT of Delhi as per which members can be nominated to the Legislative Assembly. This was a deliberate design by the Parliament. This difference is highlighted to underscore and emphasize the intention of the Parliament, while inserting Article 239AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of the NCT of Delhi and to treat the government of the NCT of Delhi as a representative form of government. [Paras 208-210] [151-C-H] E 18.4 It is evident from clause (3) of Article 239AA that the Parliament has the power to make laws for the NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239AA(3)(a). [Para 214] [152-F-G] 18.5 Clause (4) of Article 239AA stipulates a Westminster style cabinet system of government for the NCT of Delhi where there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Delhi Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is required to act in his discretion. The proviso to clause (4) stipulates that in case of a difference of opinion on any matter between the

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 25 & ANOTHER

Lieutenant Governor and his Ministers, the Lieutenant Governor A shall refer it to the President for a binding decision. Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor, is so urgent that it is necessary for him to take immediate action, the proviso makes him competent to take such action and issue such B directions as he deems necessary. [Paras 215-216] [152-G-H; 153-A-C] 18.6 A conjoint reading of Article 239AA(3)(a) and Article 239AA(4) reveals that the executive power of the Government of NCT of Delhi is co-extensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article C 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. [Para 217, 277(xv)] [153-D; 180-G-H] D 18.7 Article 239AA(3)(a) reserves the Parliament’s legislative power on all matters in the State list and Concurrent list, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers E in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have co-extensive executive powers. [Para 218] [153-E-F] F

18.8 Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is co-extensive with the Parliament’s legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if it G is said that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of H

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A the Delhi Legislative Assembly has been excluded under Article 239 AA (3) (a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution. [Para 219] [153-G-H; 154-A-B] 18.9 The Court has the duty to place such a meaning or interpretation on the phrase that is workable and the need is to establish the norm of fine constitutional balance. The words ‘any matter’ occurring in the proviso to Article 239AA(4) does not necessarily need to be construed to mean ‘every matter’. The word ‘any’ occurring in a statute or constitutional provision is not to be mechanically read to mean ‘every’ and the context in which the word has been used must be given due weightage so as to deduce the real intention and purpose in which the word has been used. [Paras 223, 232, 277(xviii)] 18.10 The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism. As per the 1991 Act and Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apart, there is no provision for concurrence. He has the authority to differ. But it cannot be difference for the sake of difference. It cannot be mechanical or in a routine matter. The power has been conferred to guide, discuss and see that the administration runs for the welfare of the people and also NCT of Delhi that has been given a special H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 27 & ANOTHER status. Therefore, the word ‘any’ has to be understood treating A as a guidance meant for the constitutional authority. He must bear in mind the constitutional objectivity, the needed advice and the realities. [Para 233, 277(xviii)] [159-B-E; 181-E-F] How to do things with words by J.L. Austin, The William James Lectures delivered at Harvard University, 1955 B – referred to. 18.11 The proviso to Article 239AA(4), cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. It is necessary in the context to read the words of the provision in the spirit of citizenry participation in the governance of a democratic polity that is republican in character. It should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And this is called constitutional pragmatism. [Para 234] [159-F-H; 160-A] E 18.12 The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine F nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts. [Para 235, 277(xxii)] [160-B-C; 182-C-E] 18.13 Interpretation cannot ignore the conscience of the G Constitution. That apart, when a broader view is taken, this Court is alive to the consequence of such an interpretation. If the expressions “in case of difference” and “on any matter” are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy H

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A in a democratic set up, although different from States as understood under the Constitution, will lose its purpose in simple semantics. The Administrator, as per the Rules of Business, has to be apprised of each decision taken by a Minister or Council of Ministers, but that does not mean that the Lieutenant Governor should raise an issue in every matter. The difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The difference of opinion should never be based on the perception of “right to differ” and similarly the term “on any matter” should not be put on such a platform as to conceive that as one can differ, it should be a norm on each occasion. The difference must meet the concept of constitutional trust reposed in the authority and there has to be objective assessment of the decision that is sent for communication and further the rationale of difference of opinion should be demonstrable and it should contain sound reason. There should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and a visionary. The constitutional amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State. [Para 236, 277(xix)] [160-D-G; 161-A-B; 181-G-H] F Shri Balaganesan Metals v. M. N. Shanmugham Chetty and others [1987] 2 SCR 1173 : (1987) 2 SCC 707; Kihoto Hollohan v. Zachillhu and others 1993 AIR 412 : [1992] (1) SCR 686; A.V.S. Narasimha Rao and Ors. v. The State of Andhra Pradesh and another [1970] 1 SCR 115 : (1969) 1 SCC 839; Workmen of Dimakuchi Tea G Estate v. The Management of Dimakuchi Tea Estate 1958 AIR 353 : [1958] SCR 1156 – referred to. Small v. United States 544 U.S. 385 (2005); United States v. Palmer 16 U.S. 3 Wheat .610610 (1818); Warburton v. Huddersfield Industrial Society [1892] 1 QB 817, H pp. 821-22 – referred to.

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 29 & ANOTHER

The Government of National Capital Territory of Delhi Act, 1991 A and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 19.1 It is clear as crystal that the 1991 Act was conceived to be brought into existence for supplementing the constitutional provision and also to take care of incidental matters that are germane to Article 239AA. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions and, therefore, it is clear that the Lieutenant Governor cannot exercise his discretion in each and every matter and by and large, his discretionary powers are limited to the three matters over which the legislative power of the Delhi Legislative Assembly stand excluded by clause (3)(a) of Article 239AA. [Paras 238, 240] [162- C, B-C] 19.2 Section 42 deals with the aid and advice tendered by the Council of Ministers to the Lieutenant Governor. The wordings and phraseology of Section 42 of the 1991 Act is identical to that of clause (2) of Article 74 which also is an indication that the expression ‘aid and advice’ should receive a uniform interpretation subject to other constitutional provisions in the form of the proviso to clause (4) of Article 239AA. In other words, the ‘aid and advice’ given by the Council of Ministers is binding on the Lieutenant Governor so long as the Lieutenant Governor F does not exercise the power conferred upon him by the proviso to clause (4) of Article 239AA and refer the matter to the President in exercise of that power for his ultimate binding decision. [Paras 241, 242] [163-C-F] 19.3 Section 44 of the 1991 Act has made it mandatory for G the President to frame rules for the allocation of business to the Ministers and also the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers. In exercise of the powers conferred under the provision, the President has framed the Transaction of H

30 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Business of the Government of National Capital Territory of Delhi Rules, 1993. The 1991 Act and the TBR, 1993, when read together, reflect the scheme of governance for the NCT of Delhi. [Para 244-245] [164-D-E] 19.4 Section 45 of the 1991 Act is identical and analogous B to Article 167 of the Constitution which makes it obligatory for the Chief Minister of the NCT of Delhi to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation. The real purpose of such communication is not to obtain concurrence of the Lieutenant C Governor on all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and on proposals for legislation, but in actuality, the objective is to have the Lieutenant Governor in synergy, to keep him in the loop and to make him aware of all decisions of the Council of Ministers D relating to the administration of the affairs of the NCT of Delhi and proposals for legislation so as to enable the Lieutenant Governor to exercise the power conferred upon him by the proviso to clause (4) of Article 239AA. [Para 247] [165-B-D] 19.5 The Transaction of Business Rules, 1993 stipulates E the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the Lieutenant Governor must work harmoniously with his F Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AAA. [Para 277(xx)] [182-A-C] G 19.6 The scheme that has been conceptualized by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD Act, 1991 and the corresponding TBR, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions H taken by the Council of Ministers. The terminology “send a copy

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 31 & ANOTHER thereof to the Lieutenant Governor”, “forwarded to the A Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the B concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof. [Para 277(xxi)] [182-C-E] 19.7 A conjoint reading of the 1991 Act and the TBR, 1993 C formulated in pursuance of Section 44 of the 1991 Act divulges that the Lieutenant Governor of Delhi is not a titular head, rather he enjoys the power of that of an administrator appointed by the President under Article 239AA. The constitutional scheme adopted for the NCT of Delhi conceives of the Council of D Ministers as the representatives of the people on the one hand and the Lieutenant Governor as the nominee and appointee of the President on the other, who are required to function in harmony within the constitutional parameters. In the said scheme of things, the Lieutenant Governor should not emerge as an adversary having a hostile attitude towards the Council of E Ministers of Delhi, rather he should act as a facilitator. [Para 268] [174-A-C] R. S. Nayak v. A.R. Antulay [1984] 2 SCR 495 : (1984) 2 SCC 183; Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi [2002] 1 SCR 393 : (2002) 3 F SCC 676; TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481: [ 2002] 3 Suppl. SCR 587 – referred to. Maumsell v. Olins [1975] AC 373; Eastman Photographic Materials Company v. Comptroller- G General of Patents, Designs and Trademarks (1989) AC 571; Tikri Banda Dullewe v. Padma Rukmani Dullewe (1969) 2 AC 313; Black Clawson International Ltd. v. PapierwerkeWaldhof-Aschaffenburg (1975) AC 591 – referred to. H

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A Constitutional renaissance: 20.1 Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its spirit and silence with a sense of reawakening to the vision of the great living document is, in fact, constitutional renaissance. The Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The D Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism. [Para 272, 273, 277(xxiii)] [182-G; 183-A; 176-C-D; 183-B-D] 20.2 The said concept garners strength when there is rational difference by the Lieutenant Governor on a constitutional prism, any statutory warrant, executive disharmony between the Centre and NCT of Delhi on real justifiable grounds, when an executive decision runs counter to the legislative competence and the decision of the Council of Ministers defeats the national interest. These are only a few illustrations. The Constitution does not state the nature of the difference. It leaves it to the wisdom of the Council of Ministers who have the collective responsibility and the Lieutenant Governor. That is the constitutional trust which expects the functionaries under the Constitution to be guided by constitutional morality, objective pragmatism and the balance that is required to sustain proper administration. The idea of obstinance is not a principle of welfare administration. The constitutional principles do not countenance a nomadic perception. They actually expect governance for the betterment of society, healthy relationship and mutual respect having an open mind for acceptance. [Para 274] [176-E-G]

H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 33 & ANOTHER

20.3 The goal is to avoid any disharmony and anarchy. A Sustenance of constitutionally conferred trust, recognition and acceptance of the principle of constitutional governance, adherence to the principles and norms and the constitutional conduct having regard to the elevated guiding precepts stated in the Preamble will tantamount to realization of the feeling of B constitutional renaissance. [Para 275] [176-G; 177-A-B] Keshavan Madhava Menon v. The State of Bombay 1951 SCR 228; Madhav Rao Jivaji Rao Scindia and others v. Union of India and anr [1971] 3 SCR 9 : (1971) 1 SCC 85; State of Kerala and anr v. N. M. Thomas and others [1976] 1 SCR 906 : (1976) 2 SCC 310; R.C. C Cooper v. U.O.I. [1970] 3 SCR 530 : (1970) 1 SCC 248; Maneka Gandhi v. U.O.I. [1978] 2 SCR 621 : (1978) 1 SCC 248; Justice K.S. Puttaswamy (Retd.) v. U.O.I. (2017) 10 SCC 1; Rai Sahib Ram Jawaya Kapur v. State of Punjab 1955 AIR 549 : [1955] SCR 225; D Tej Kiran Jain v. N. Sanjiva Reddy [1971] 1 SCR 612 : (1970) 2 SCC 272 – referred to. Per Dr D Y Chandrachud, J. (Concurring):

1. The introduction of Article 239AA into the Constitution was the result of the exercise of the constituent power. The 69th E amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory, albeit under the rubric of a Union territory governed by Part VIII of the Constitution. The content of such a constitutional amendment cannot be confined or constrained by the content of legislations F which governed Delhi in the past. The constitutional amendments sought to bring stability and permanence to the democratic governance of the NCT. An amendment which enhances the basic features of the Constitution must bear an interpretation which will fulfil its true character. [Para 143] [304-G-H; 305-A-C] G

2. The Administrator appointed by the President under Article 239(1) is designated, with reference to the NCT as its Lieutenant Governor. The substantive source of power to appoint the Lieutenant Governor arises from Article 239 of the Constitution. While Article 239(1) indicates that the administration of a Union territory is by the President, the opening words of the H

34 SUPREME COURT REPORTS [2018] 7 S.C.R.

A provision (“Save as otherwise provided by Parliament by law”) indicate that the nature and extent of the administration by the President is as indicated in the law framed by Parliament. Moreover, the subsequent words of the provision (“to such extent as he thinks fit”) support the same position [Para 143] [305-C-E] B

3. By adopting Article 239AA, Parliament as a constituent body, provided Delhi with a special status by creating constitutionally entrenched institutions of governance. Article 239AA mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital. C [Para 143] [305-E-F]

4. The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government. These features emerge from the provisions of Article D 239AA which require direct election to the legislative assembly from territorial constituencies; engage the constitutional functions of the Election Commission of India under Articles 324, 327 and 329; confer law making authority on the legislative assembly in respect of matters governed by the State List (save for excepted E matters) and the Concurrent List; mandate the collective responsibility of the Council of Ministers to the legislative assembly; and provide (in the substantive part of Article 239AA(4)) that the Lieutenant Governor shall act on the aid and advise of the Council of Ministers headed by the Chief Minister. In adopting these provisions through an amendment, the F Constitution has recognized the importance of the cabinet form of government to govern the affairs of Delhi. [Para 143] [305-F- H; 306-A-C]

5. The distribution of legislative power in Article 239AA is indicative of the predominant role assigned to Parliament as a G legislative body. This emerges from the position that Parliament is empowered to legislate on subjects falling in the State List as well as the Concurrent List; and the carving out of the three subjects of public order, police and land (Entries 1, 2 and 18 of the State List) and of offences, jurisdiction of Courts and fees H (Entries 64, 65 and 66 in so far as they relate to the previous

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 35 & ANOTHER entries), all of which are within the exclusive legislative domain A of Parliament. Principles of repugnancy govern any inconsistency between laws enacted by the legislative assembly and those by Parliament and the laws of Parliament are to prevail unless a Presidential assent has been received. [Para 143] [306-C-F]

6. The executive power of the government of NCT is co- B 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 C the principle of aid and advice. Similarly, the Lieutenant Governor is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law. [Para 143] [306-F-H; 307-A]

7. The GNCTD Act, 1991 has been enacted by Parliament D in pursuance of the legislative authority conferred upon it by clause 7(a) of Article 239AA. The President has made the Transaction of Business Rules for the NCT as contemplated in the GNCTD Act, 1991. Section 41 of the GNCTD Act indicates that in matters which lie outside the legislative powers entrusted to the legislative assembly and where there has been an entrustment or delegation of functions by the President to the Lieutenant Governor under Article 239; and on matters where the Lieutenant Governor exercises his own discretion by or under any law, he is not subject to the aid and advice of the Council of Ministers; Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i). [Para 143] [307-A-D]

8. Under the Rules, the Lieutenant Governor must be kept duly apprised on all matters pertaining to the administration of the affairs of the NCT. The Rules indicate the duty of the Council G 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 H

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A Act, 1991 and the Transaction of Business Rules. [Para 143] [307-E-F]

9. While the provisions contained in the Transaction of Business Rules require a scrupulous observance of the duty imposed on the Council of Ministers to inform the Lieutenant B Governor on all matters relating to the administration of the NCT, neither the provisions of Article 239AA nor the provisions of the Act and Rules require the concurrence of the Lieutenant Governor to a decision which has been taken by the Council of Ministers. Rule 14 of the Rules in fact indicates that the duty is to inform and not seek the prior concurrence of the Lieutenant C Governor. However, in specified areas which fall under Rule 23; it has been mandated that the Lieutenant Governor has to be apprised even before a decision is implemented. [Para 143] [307- F-H; 308-A-B]

10. The feature which stands out from the Transaction of D Business Rules is that an obligation and duty has been cast upon the elected government and its officers to duly keep the Lieutenant Governor informed of proposals relating to governmental business. The duty to keep the Lieutenant Governor informed is a necessary element of the process and essential for the exercise of the constitutional authority which has been vested in the Lieutenant Governor. It is only when the Lieutenant Governor is kept duly apprised of matters relating to the administration of the National Capital Territory that a decision can be taken on whether a reference should be made to the Union government under Chapter V. A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the government of NCT, decision making is by the government comprised of the Council of Ministers with the Chief Minister at its head.. [Para 103, 104] [271-D-F; G-H]

11. As a result of the provisions of Article 367, the General G 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

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 37 & ANOTHER repugnant in the subject or context of a particular provision of the Constitution. [Para 143] [308-B-C]

12. Since the decision of this Court in Kanniyan case and right through to the nine-judge Bench decision in NDMC case, it is a settled principle that the expression ‘State’ in Article 246(4) will not include a Union territory and that the definition contained in the General Clauses Act will not apply having regard to the subject and context of the provision. Decisions of this Court have applied the subject and context test to determine whether the expression ‘State’ in other provisions of the Constitution and in statutory provisions would include a Union territory. [Para 143] [308-D-E] C

13. The use of the expression “State” in a particular provision is not dispositive of whether or not its application would stand excluded in relation to a Union territory. The outcome is essentially based on the subject and context in which the word has been used. [Para 143] [308-E-F] D

14. While giving meaning and content to the proviso to Article 239AA (4), it is necessary to harmonise two significant precepts: that the Constitution has adopted a cabinet form of government for the Union territory of Delhi by creating institutions for the exercise of legislative power and an executive arm E represented by the Council of Ministers; and the vital national interests are implicated in the governance of the National Capital Territory. The doctrines of aid and advice and of collective responsibility give effect to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a F difference of opinion to the President is a reflection of (ii) above. [Para 143] [308-F-H; 309-A-B]

15. While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised G that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi. [Para 143] [309-B-C] H

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A 16. Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Rules define the modalities which the Lieutenant Governor must follow in the event of a difference of opinion with the Council of Ministers. The Lieutenant B Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President. [Para 143] [309-C-E]

17. In a cabinet form of government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advise of the Council of Ministers, this recognises that real decision-making authority in a democratic form of government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by the decision which is arrived at by the President. The Lieutenant Governor has, however, been authorised to take immediate action in the meantime where emergent circumstances so require. The provisions of Article 239AA(4) indicate that the Lieutenant Governor must either act on the basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi- judicial authority under any law or has been entrusted with powers by the President under Article 239 on matters which lie outside the competence of the Government of NCT). [Para 143] [309-E- H; 310-A-B]

18. The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 39 & ANOTHER

Territory. Every trivial difference does not fall under the proviso. A The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances warranting recourse to the proviso. [Para 143] [310-C-E]

19. Constitutional morality underscores the ethics of politics in a country. It gives politics the identity to succeed. Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past from tearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes. [Paras 14-15] [192-B; 193-D]

20. Any interpretation of the Constitution must be unabashed in accepting the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. [Para 17] [194-C-D]

21. Collective responsibility of the Council of Ministers F ensures accountability to the legislature and to the electorate. Collective responsibility governs the democratic process, as it makes a government liable for every act it does. It envisages that a government works effectively to ensure and fulfil the interests of the public. It purports to ensure transparency in government decisions. Collective responsibility rests on the G foundations of constitutional morality, which reflects constitutional ethics. [Para 37] [214-C-E]

22. Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of H

40 SUPREME COURT REPORTS [2018] 7 S.C.R.

A government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. The principle of collective responsibility and aid and advice fosters a responsive and accountable government. The doctrine of aid and advice enhances the commitment to the democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance is subservient to its substance, which mandates that the real authority to take decisions must reside in the elected arm of the government. [Para 41, 43] [219-D-E; 220-E-F] U.N.R. Rao v Smt. Indira Gandhi (1971) 2 SCC 63 : [1971] 0 Suppl. SCR 46; Samsher Singh v State of Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; PU Myllai Hlychho v State of Mizoram (2005) 2 SCC 92 : D [2005] 1 SCR 279; Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly; (2016) 8 SCC 1 : [2016] 6 SCR 1; Kihoto Hollohan v Zachillhu (1992) SCC Supl. (2) 651 : [1992] 1 SCR 686 – referred to. E The Indian Constitution: Cornerstone of a Nation by Granville Austin, Oxford University Press (1966) p. xi – referred to.

23. In defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Governance of the NCT involves national imperatives. They must also weigh in the balance. The proviso Article 239AA(4) is constitutional indicator of the national concerns which were borne in mind when the constituent power was exercised to establish the NCT as a political arm of governance by a special constitutional provision. Those national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 41 & ANOTHER the legislative assembly and their entrustment to Parliament. [Para A 74] [250-B-D]

24. The constitutional principle which emerges is that while Delhi presents a special case, quite unlike the other Union territories, the constitutional provisions governing it are an amalgam between national concerns (reflected in control by the B Union) and representative democracy (expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature). There is no gain saying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers which in turn owes collective responsibility to C Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience. [Para 75] [250-G-H; 251-A-B]

25. The survey of the provisions of the GNCTD Act 1991 D indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the legislative assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi judicial functions. Rules for the conduct of business are framed by the President in relation to National Capital Territory. [Para 87] [259-A-B, D-E] Keshavan Madhava Menon v State of Bombay [1951] 2 SCR 228; Tej Kiran Jain v N Sanjiva Reddy (1970) 2 G SCC 272 : [1971] 1 SCR 612; G Narayanaswami v G Pannerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172; Kuldip Nayar v Union of India (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Manoj Narula v Union of India (2014) H

42 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 9 SCC 1 : [2014] 9 SCR 965; Satya Dev Bushahri v Padam Dev [1955] 1 SCR 549; Devji Vallabhbhai Tandel v Administrator of Goa, Daman & Diu [1982] 2 SCC 222 : [1982] 3 SCR 553; Goa Sampling Employees’ Association v General Superintendence Co. of India Pvt. Ltd. (1985) 1 SCC 206 : [1985] 2 SCR 373; The B State of Madhya Pradesh v Shri Moula Bux (1962) 2 SCR 794; State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; New Delhi Municipal Council v State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472; TM Kanniyan v Income Tax C Officer, Pondicherry [1968] 2 SCR 103; Management of Advance Insurance Co. Ltd. v Shri Gurudasmal (1970) 1 SCC 633; Union of India v Prem Kumar Jain (1976) 3 SCC 743 : [1976] 0 Suppl. SCR 166; Manoj Narula v Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kesavananda Bharati v State of Kerala AIR D (1973) SC 1461 : [1973] 0 Suppl. SCR 1; Puttaswamy (2017) 10 SCC 1; I.R. Coelho v State of Tamil Nadu (2007) 2 SCC 1 : [2007] 1 SCR 706; Rai Sahib Ram Jawaya Kapur v The State of Punjab [1955] 2 SCR 225; A Sanjeevi Naidu v State of Madras (1970) 1 SCC E 443 : [1970] 3 SCR 505; Samsher Singh v State of Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; State of Karnataka v Union of India (1977) 4 SCC 608 : [1978] 2 SCR 1; Common Cause, A Registered Society v Union of India (1999) 6 SCC 667 : [1999] 3 SCR 1279; Subramanian Swamy v Manmohan Singh F (2012) 3 SCC 64 : [ 2012] 3 SCR 52 – referred to. Politics and Ethics of the Indian Constitution by Rajiv Bhagava (ed.), Oxford University Press (2008), p. 9; The Indian Constitution: Cornerstone of a Nation by Granville Austin, Oxford University Press (1966) G p. xi; Politics and Ethics of the Indian Constitution by Rajiv Bhagava, Oxford University Press (2008)p.15; The Burden of Democracy, Penguin Books (2003) by Pratap Bhanu Mehta pp. 35-36; What is constitutional morality?” by Pratap Bhanu Mehta Seminar (2010); H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 43 & ANOTHER

Constituent Assembly Debates, Vol. 11 (25th November, A 1949); The Oxford Handbook of the Indian Constitution by Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta Oxford University Press (2016) p.12; “The Quest and the Questions” by Raju Ramchandran;Outlook (25 August, 2014); London B School of Economics & Political Science by Niraja Gopal Jayal and Pratap Bhanu Mehta (eds.) (February 2007); “Government Accountability” by Dilip Mookherjee ; The Oxford Companion to Politics in India, Oxford University Press (2010), p. 477; “Executive” by Shubhankar Dam; in Sujit Choudhry, C Madhav Khosla and Pratap Bhanu Mehta (eds.); The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), p. 319; Politics and Ethics of the Indian Constitution by Rajiv Bhagava Oxford University Press (2008) (ed.) p. 9 - referred to. D “The Glory of Democracy” by David Brooks The New York Times December 14, 2017; Democracy and its Institutions, by Andre Beteille Oxford University Press (2012); “Constitutional Morality and the Rule of Law”, Journal of Law and Politics by Bruce P. Frohnen and George W. Carey (2011),Vol. 26, p.498; “The Silences E of Constitutions”, International Journal of Constitutional Law by Martin Loughlin (2019, In Press); Representative and Responsible Government, by George Allen & Unwin Ltd (1964), p.131; The English Constitution by Walter Bagehot, 2nd Edition (1873), F p. 118; The Growth of the English Constitution by Edward A. Freeman (1872); Cabinet Government by Ivor Jennings, Cambridge University Press (1959), 3 rd Edition, p. 279; Ministerial responsibility by G Marshall, Oxford University Press (1989), p. 2-4; “Individual and Collective Performance and the Tenure G of British Ministers by Samuel Berlinski, Torun Dewan and Keith Dowding1945-1997”; “The Silences of Constitutions” by Martin Loughlin, International

H

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A Journal of Constitutional Law (2019, In Press) – referred to. Per Ashok Bhushan, J. (Concurring): Principles of Constitutional Interpretation B 1.1 The general rule for interpreting a Constitution are the same as those for interpreting a general Statute. There cannot be denial to the fact that the Court has to respect the language used in the Constitution wherever possible, the language be such interpreted as may best serve the purpose of the Constitution. A Constitutional document should be construed with less rigidity C and more generosity than other acts. A Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. [Para D 41-42][332--D; 333-F, G] 1.2 As regards applying the doctrine of silence and doctrine of implications in interpreting a Constitutional provision, express provision cannot be given a go-bye. The purpose and intent of Constitutional provisions especially the express language used E which reflect a particular scheme has to give full effect to and express Constitutional scheme cannot be disregarded on such principles.[Para 56] [343-B-C] 1.3 It is apparent that Constitutional interpretation has to be purposive taking into consideration the need of time and F Constitutional principles. The intent of Constitution framers and object and purpose of Constitutional amendment always throw light on the Constitutional provisions but for interpreting a particular Constitutional provision, the Constitutional Scheme and the express language employed cannot be given a go-bye. The purpose and intent of the Constitutional provisions have to G be found from the very Constitutional provisions which are up for interpretation. Thus, while interpreting Article 239AA the purpose and object for which Sixty Ninth Constitution (Amendment) Act, 1991 was brought into force has to be kept in mind.[Para 57, 119-I] [343-D-E; 376-F] H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 45 & ANOTHER

Keshavan Madhava Menon v. State of Bombay AIR A 1951 SC 128 : [1951] SCR 228; S. R. Chaudhuri v. State of Punjab & Ors. (2001) 7 SCC 126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam and Others (1972) 3 SCC 717 : [1973] 1 SCR 172; B.R. Kapur v. State of T. N. and Another (2001) 7 SCC B 231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and Others v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248 : AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v. C Union of India and Another (1978)1 SCC 248 : AIR 1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar and Another v. State of Karnataka 1985 Supp. SCC 714 : [1985] Suppl. SCR 352; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referred D to. “A critical commentary” on Constitutional Law of India by Shri H.M. Seervai; “Principles of Statutory Interpretation by Justice G.P. Singh 14th Edn; Forward: A Judge on judging the role of a Supreme Court in a Democracy by Aharon Barak; Nature and Significance E of Constitutional Legislation by David Feldman 2013 (129) LQR 343-358 – referred to. Constitutional Scheme of Article 239AA

2. Article 239A which was inserted by Constitutional F Fourteenth Amendment Act, 1962 had already contemplated that Parliament may by law provide for Legislative Assembly for a Union territory. The report also highlighted the necessity of certain subjects being kept out of jurisdiction of legislative assembly of Delhi which were to be dealt with by the Union. The Parliamentary Committee Report can be looked into to find out G the intent and purpose of legislation-Sixty Ninth Constitutional Amendment. The statement of object and reasons of Sixty Ninth Amendment Act has also referred to the Balakrishnan’s report. The recommendation of the Committee that Delhi should continue H

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A to be Union territory providing with a Legislative Assembly and Council of Ministers responsible to such Assembly was thus, accepted and to give effect the same Article 239AA was inserted in the Constitution. There is no denying that one of the purposes for insertion of Article 239AA is to permit a democratic and republican form of Government. The principle of cabinet B responsibility was the Constitutional intent which has to be kept in mind while interpreting the Constitutional provisions. [Para 60, 61, 65-67] [344-C-H; 346-F-G; 347-C-D] Kalpana Mehta and others v. Union of India and others 2018 (7) SCALE 106 – referred to. C Legislative Power of Parliament and that of GNCTD 3.1 Clause (3) of the 239AA deals with power to make laws for the whole or any part of the National Territory of Delhi by the Legislative Assembly as well as by Parliament. Article 239 Clause (3) makes it clear that Legislative Assembly shall have power to D make laws in respect of any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 (public order, police and land) of the State List and Entries 64, 65 and 66 of the List. Power to make laws in E State List or in Concurrent List is hedged by phrase “in so far as any such matter is applicable to Union territories”. [Para 69-71] [348-B-D; 349-C] 3.2 A perusal of the List II and III indicates that although in various entries there is specific mention of words ‘State’ but F there is no express reference of ‘Union Territory in any of the entries. The phrase ‘in so far as any such matter is applicable to ‘Union Territory’ is inconsequential. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as G Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent H List except where an entry indicates that its applicability to the

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 47 & ANOTHER

Union Territory is excluded by implication or any express A Constitutional provision. Thus, there is no difficulty in comprehending the Legislative power of the NCTD as expressly spelled out in Article 239AA. The Union Territories are part of the India which are not included in any State. Thus, Parliament will have power to make laws for any matter with regard to Union B territories. In clause (4) of Article 246 by Seventh Constitutional Amendment, in place of words “in Part A or Part B of the First Schedule” the words “in State” have been substituted. Thus, overriding power of the Parliament was provided with regard to Part C and D States on enforcement of the Constitution which Constitutional Scheme is continued after amendment made by C Seventh Constitutional Amendment. [Para 72-76] [349-D-G, H; 350-H; 351-A] 3.3 The Parliament has power to make laws for NCTD with respect to any of the matter enumerated in State List or Concurrent List. The Legislative Assembly of NCT has legislative D power with respect to any of the matters enumerated in the State List or in the Concurrent List excluding the excepted entries of State List. [Paras 80, 119-II] [354-F; 376-G] NDMC v. State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472 – referred to. E Executive Powers of the Union(President /LG) And That of the GNCTD 4.1 Although there is no express provision in the Constitutional Scheme conferring executive power to LG of the Union territory of Delhi, as has been conferred on the Union under Article 73 and conferred on the State under Article 154. Under F the Constitutional Scheme executive power is co-extensive with the Legislative power. The Executive power is given to give effect to Legislative enactments. Policy of legislation can be given effect to only by executive machinery. The executive power has to be conceded to fulfill the constitutionally conferred democratic G mandate. Article 239(4) AA deals with the exercise of executive power by the Council of Ministers with the Chief Minister as the head to aid and advice the LG in exercise of the above functions. Union and States can exercise Executive power on the subjects on which they have power to legislate. [Para 81,82, 119-III] [354- H; 355-A-B-C; 376-H] H

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A Rai Sahib Ram JawayaKapur and Others v. State of Punjab AIR 1955 SC 549 : [1955] SCR 225 – referred to. 4.2 The proviso to Article 73(1) provides that the executive power referred to in sub clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Obviously, the proviso refers to the Concurrent List where both Parliament and State has power to make laws. Executive power in reference to Concurrent List has been deliberately excluded to avoid any duplicacy in exercise of power by two authorities. The Article 73 as it stood prior to Constitution Seventh Amendment Act, 1956 contained the expression after the word State “specified in Part A or Part B of the First Schedule”. Thus, the executive power was excluded of the Union only with regard to Part A and Part B D States alone. Thus, when the Constitution was enforced, executive power of Union in reference to Part C States was not excluded with regard to Concurrent List also.Part C States having been substituted as now by Union Territories by Constitution Seventh Amendment Act. The word “State” in Proviso to Article 73 cannot be read to include Union Territory. Reading the word Union E Territory within the word “State” in proviso to Article 73(1) shall not be in accordance with Scheme of Part VIII (Union Territories) of the Constitution. Union Territories are administered by the President. Exercise of executive power of the Union through President is an accepted principle with regard to Union F Territories. The above interpretation is also reinforced due to another reason. Under Article 239AA(4) proviso, the Lieutenant Governor, in case of difference of opinion, can make a reference to the President for decision and has to act according to the decision given thereon. The President, thus, with regard to a particular executive action, which has been referred, has exclusive G jurisdiction to take a decision, which both Council of Ministers as well as Lieutenant Governor has to follow. The provision does not indicate that power of the President is confined only to executive actions which are mentioned in List II. When the President as provided by the Constitutional Scheme, is entitled H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 49 & ANOTHER to take executive decision on any matter irrespective of the fact A whether such executive decision taken by the Council of Ministers or Ministers related to matters covered by List II and List III, the executive power to Union through President cannot be confined to List II. Overriding power to the Union even on the executive matters has to be conceded to be there as per B Constitutional scheme. It is another matter that for exercise of executive powers by the Union through President and by Council of Ministers, headed by Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering sub-clause(4) of Article 239AA. Legislative power of the Union is co-extensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239AA by the Constitution 69th Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by the Parliament in exercise of power under Article 239AA(7)(a) of the Constitution. [Para 85, 119-IV] [359-B-G; 360-A-C; 377-A-B] 4.3 Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged Council of Ministers and the Lieutenant Governor shall be under the general control of, and comply with such particular directions issued by the President from time to time. The power of the President to issue direction is not limited in any manner so as to put any restriction on the executive power of the Union. The President further is empowered under Section 44 of Act, 1991 to make rules for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. As per Article 239AA sub-clause (4) read with business rules, the manner and procedure of conduct of business including executive functions of GNCTD has to be administered. Although the Union ordinarily does not interfere with or meddle with the day to day functions of the GNCTD which is in tune with the constitutional scheme as H

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A delineated by Article 239AA and to give meaning and purpose to the Cabinet form of Government brought in place in the National Capital of Territory. But as the overriding legislative power of the Parliament is conceded in the constitutional scheme, overriding executive power has also to be conceded even though such power is not exercised by the Union in the day to day functioning of the GNCTD. Thus, the executive power of the Union is co-extensive on all subjects referable to List I and List II on which Council of Ministers and the NCTD has also executive powers. [Para 86-87] [360-E-H; 361-A-B] 4.4 The provision of the Article 239AB is a special provision where President may suspend the provision of Article 239AA or any of the provision of any law made in pursuance of that article. The above provision is akin to Article 356.The power under Article 356/239AA is conferred on Union in larger interest of State. It cannot be said that executive power can be exercised by the Union through President only when power under Article 239AB is exercised. The provision of Article 239AB is for entirely different purpose, and is not a provision regarding exercise of general executive power by the Union. [Para 89] [361-H; 362-A-B] E Article 239AA(4) proviso 5.1 The Governor is to act on aid and advice of the Council of Ministers and as contemplated under Article 163, according to the Constitutional scheme, Governor is not free to disregard the aid and advice of the Council of Ministers except when he is required to exercise his function in his discretion. The aid and advice as given by Council of Ministers as referred to in sub- clause(4) of Article 239AA has to be followed by the Lieutenant Governor unless he decides to exercise his power given in proviso of sub-clause(4) of Article 239AA.The proviso is an exception to the power as given in sub-clause(4). A case when falls within the proviso, the “aid and advice” of the Council of Ministers as contemplated under sub-clause (4) is not to be adhered to and a reference can be made by Lieutenant Governor. This is an express Constitution scheme, which is delineated by sub- clause(4) of Article 239AA proviso. The scheme which is reflected H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 51 & ANOTHER by sub-clause(4) of Article 239AA proviso is the same scheme which is contained under Section 44 of the Government of Union Territories Act, 1963. [Para 92, 119-VI] [365-B, E-G] Shamsher Singh v. State of Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR 814 – referred to. 5.2 With regard to Union Territories, the exception as carved out in proviso was very much there since before. Thus, the scheme as contained in proviso was well known scheme applicable in the Union Territories. When there is an express exception when the aid and advice given by the Council of Ministers is not binding on the Lieutenant Governor and he can refer it to the President and pending such decision in case of urgency take his own decision, it cannot be accepted that aid and advice is binding on the Governor under Article 163. The Legislative Assembly of the NCTD being representing the views of elected members their opinion and decision has to be respected and in all cases, except where Lieutenant Governor decides to make a reference. [Para 92-93, 119-VII] [366-D-E; 377-D] 5.3 The proviso uses the phrase “any matter” in the first sentence, i.e., “provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter...”The word “any matter” are words of wide import and the language of Article 239AA(4) does not admit any kind of restriction in operation of proviso. There is nothing in the provision of sub-clause (4) to read any restriction or limitation on the phrase “any matter” occurring in proviso. The word “any matter” has also been used in Article 239AA(3) while providing for power to make laws as also in sub-clause(b). The use of word “any matter” in above two clauses clearly indicate that it is not used in any limited or restricted manner rather use of word “any matter” is used referring to the entire extent of legislation. When the same phrase has been used in proviso to sub-clause(4), similar interpretation has to be given to the same word used in earlier part of the same Article. [Para 95] [367-D, G] Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 – referred to. H

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A 5.4 It is clear that aid and advice of the Council of Ministers is binding on the Lieutenant Governor except when he decides to exercise his power given in proviso of sub-clause(4) of Article 239AA. In the matters, where power under proviso has not been exercised, aid and advice of the Council of Ministers is binding on the Lieutenant Governor. Proviso to sub-clause(4) of Article B 239AA cannot be given any other interpretation relying on any principle of Parliamentary democracy or any system of Government or any principle of Constitutional silence or implications.[Para 97] [368-D-F] 5.5 Proviso to sub-clause(4) of Article 239AA envisages an extreme and unusual situation and is not meant to be a norm. The exercise of power under proviso cannot be a routine affair and it is only in cases where Lieutenant Governor on due consideration of a particular decision of the Council of Ministers/ Ministers, decides to make a reference so that the decision be not implemented. The overall exercise of administration of Union Territory is conferred on President, which is clear from the provisions contained in Part VIII of the Constitution. The submission that Article 239 is not applicable with regard to NCTD after Article 239AA has been inserted in the Constitution, cannot be accepted on account of the express provisions which are mentioned under Article 239AA and Article 239AB itself. Article 239AA sub-clause(1) itself contemplates that administrator appointed under Article 239 shall be designated as the Lieutenant Governor. Thus, the administrator appointed under Article 239 is designated as LG. Article 239AB is also applicable to NCTD. F The provisions contained in Part VIII have to be looked into in its entirety. Thus, all the provisions of Part VIII has to be cumulatively read while finding out the intention of the Constitution makers, which makes it clear that Article 239 is also applicable to the NCTD. [Para 98] [368-F-H; 369-A-C] G Whether concurrence of Lieutenant Governor is required on executive decision of GNCTD. 6.1 The constitutional provision of Article 239AA does not indicate that the executive decisions of GNCTD have to be taken with the concurrence of LG. The constitutional provisions inserted H by 69th Constitution Amendment are with the object to ensure

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 53 & ANOTHER stability and permanence by providing Legislative Assembly and A Council of Ministers by the constitutional provisions itself. With regard to executive decision taken by the Council of Ministers/ Ministers of GNCTD proviso gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between executive decisions B of the GNCTD and the LG, but the scheme does not suggest that the decisions by Council of Ministers/Ministers have to be taken with the concurrence of the LG. The above conclusion is re- enforced by looking into the 1991 Act as well as Rules framed by the President under Section 44 of 1991 Act, namely, the Transaction of Business of the Government of National Capital C Territory of Delhi Rules, 1993. The provisions of 1991 Act although provide for communication of proposal, agenda and decisions of the Council of Ministers/Ministers to LG but there is no indication in any of the provisions that the concurrence of LG is required with regard to the aforesaid decisions. [Para 99] D [369-C-G] 6.2 Earlier enactments governing the Delhi administration did provide the word concurrence of LG for implementing decisions taken by GNCTD but the said scheme having been given a go-bye in the 1991 Act, there is no requirement of any concurrence of LG to the executive decisions taken by the E GNCTD. [Para 100] [369-G-H] Communication to the LG, its purpose and object 7.1 The scheme as delineated by 1991 Act and Rules 1993 clearly indicates that LG has to be kept informed of all proposals, agendas of meeting and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through the proposals and decisions so as to enable him to exercise powers as conceded to him under 1991 Act and Rules 1993. Further, the power given under proviso to 239AA(4) can be exercised only when LG is informed and communicated of all decisions taken by GNCTD. The communication of all decisions is necessary to enable the LG to perform duties and obligations to oversee the administration of GNCTD and where he is of different opinion he can make a H

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A reference to the President. The purpose of communication is not to obtain his concurrence of the decision but purpose is to post him with the administration so as to enable him to exercise his powers conceded to him under proviso to Article 239AA sub- clause (4). The powers given in proviso to sub-clause (4) is not to be exercised in a routine manner rather it is to be exercised B by the LG on appropriate reasons to safeguard the interest of the Union Territory.[Para 101, 113, 119-VIII, X] [377-G-H; 378-A; 374-F-H; 377-E] 7.2 The 1991 Act and 1993 Rules cover the entire gamut, manner and procedure of executive decisions taken by the Council C of Ministers/Minister their communication, and implementation and the entire administration is to be run accordingly. The duty of observance of 1993 Rules and other statutory provisions lay both on Council of Ministers, Chief Minister and LG. All have to act in a manner so that the administration may run smoothly without there being any bottleneck. The object and purpose of all constitutional provisions, Parliamentary enactments and the Rules framed by the President is to carry the administration in accordance with the provisions in the interest of public in general so that rights guaranteed by the Constitution to each and every person are realised. When the duty is entrusted on persons holding high office, it is expected that they shall conduct themselves, in faithful, discharge of their duties to ensure smooth running of administration and protection of rights of all concerned. [Para 114, 116] [375-E-F; 376-A-C] S.R. Chaudhuri v. State of Punjab &Ors. (2001) 7 SCC F 126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam and Others (1972) 3 SCC 717 : [1973] 1 SCR 172; B.R. Kapur v. State of T. N. and Another (2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and Others v. Union of India and Others (2006) G 7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee Cooper v. Union of India (1970)1 SCC 248 : AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v. Union of India and Another (1978)1 SCC 248: AIR

H

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1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar A and Another v. State of Karnataka (1985) Supp. SCC 714 : [1985] Suppl. SCR 352; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kalpana Mehta and others v. Union of India and others 2018 (7) SCALE 106; NDMC v. State of Punjab (1997) 7 B SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab AIR 1955 SC 549 : [1955] SCR 225; Shamsher Singh v. State of Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR 814; Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 – C referred to. “A critical commentary” on Constitutional Law of India by Shri H.M. Seervai; “Principles of Statutory Interpretation by Justice G.P. Singh, 14 th Edn – referred to. D Case Law Reference In the Judgment of Justice Dipak Misra, CJI [1951] SCR 228 referred to Para 7 [1971] 3 SCR 9 referred to Para 8 E [1976] 1 SCR 906 referred to Para 9 [1993] 2 Suppl. SCR 659 referred to Para 10 [1970] 3 SCR 530 referred to Para 24 [1978] 2 SCR 621 referred to Para 24 F

[2017] 10 SCC 1 referred to Para 24 [1955] SCR 225 referred to Para 25 [1975] 1 SCR 814 referred to Para 25 G [1971] 1 SCR 612 referred to Para 44 [2000] 2 SCR 299 referred to Para 52 [2014] 9 SCR 965 referred to Para 59 [2015] 4 SCR 987 referred to Para 61 H

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A [1992] 2 Suppl. SCR 454 referred to Para 63 2018 (7) SCALE 106 referred to Para 67 [2001] 3 Suppl. SCR 191 referred to Para 70 [2000] 2 SCR 688 referred to Para 73 B 1990 (2) SCALE 836 referred to Para 73 [1978] 2 SCR 1 referred to Para 79 [1993] 3 SCR 802 referred to Para 81 [1999] 3 SCR 1279 referred to Para 82 C [1978] 2 SCR 272 referred to Para 87 [1980] SCR 1302 referred to Para 88 [1976] SCR 347 referred to Para 90 [1995] 2 Suppl. SCR 106 referred to Para 90 D [2006] 5 Suppl. SCR 1 referred to Para 90 [1965] SCR 413 referred to Para 97 [1994] 2 SCR 644 referred to Para 100 [2002] 1 SCR 441 referred to Para 104 E [1978] 1 SCR 1 referred to Para 119 [2016] 11 SCR 723 referred to Para 130 [1993] 1 SCR 891 referred to Para 135

F [1984] 2 SCR 145 referred to Para 141 [2001] 1 Suppl. SCR 621 referred to Para 147 [1997] 3 SCR 269 referred to Para 149 [2011] 6 SCR 599 referred to Para 150 G (2006) 8 SCC 202 referred to Para 150 (2016) 5 SCC 1 referred to Para 164 [1978] 1 SCR 641 referred to Para 166 [1978] 1 SCR 423 referred to Para 169 H

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[2012] 12 SCR 1077 referred to Para 176 A [1982] 3 SCR 553 referred to Para 188 [1964] 3 SCR 787 referred to Para 189 [1987] 2 SCR 1173 referred to Para 227 [1992] 1 SCR 686 referred to Para 228 B [1970] 1 SCR 115 referred to Para 229 [1958] SCR 1156 referred to Para 231 [1984] 2 SCR 495 referred to Para 269 C [2002] 1 SCR 393 referred to Para 269 [2002] 3 Suppl. SCR 587 referred to Para 269 [1996] 10 Suppl. SCR 472 followed Para 277(xii) In the Judgment of Justice D Y Chandrachud D [2014] 9 SCR 965 referred to Para 14 [1973] Suppl. SCR 1 referred to Para 17 (2017) 10 SCC 1 referred to Para 21 [1992] 1 SCR 686 referred to Para 23 E [2007] 1 SCR 706 referred to Para 23 [1955] 2 SCR 225 referred to Para 36 [1970] 3 SCR 505 referred to Para 36 [1975] 1 SCR 814 referred to Para 36 F [1978] 2 SCR 1 referred to Para 36 [1999] 3 SCR 1279 referred to Para 36 [2012] 3 SCR 52 referred to Para 36 [1971] Suppl. SCR 46 referred to Para 39 G [1975] 1 SCR 814 referred to Para 39 [2005] 1 SCR 279 referred to Para 40 [2016] 6 SCR 1 referred to Para 40 H

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A [1951] 2 SCR 228 referred to Para 107 [1971] 1 SCR 612 referred to Para 108 [1973] 1 SCR 172 referred to Para 109 [2006] 5 Suppl. SCR 1 referred to Para 110 B [2014] 9 SCR 965 referred to Para 110 [1955] 1 SCR 549 referred to Para 114 [1982] 3 SCR 553 referred to Para 115 C [1985] 2 SCR 373 referred to Para 117 [1962] 2 SCR 794 referred to Para 117 [2005] 2 Suppl. SCR 79 referred to Para 118

D [1996] 10 Suppl. SCR 472 referred to Para 119 [1968] 2 SCR 103 referred to Para 123 (1970) 1 SCC 633 referred to Para 124 [1976] Suppl. SCR 166 referred to Para 125 E In the Judgment of Justice Ashok Bhushan [1971]1 SCR 612 referred to Para 27 [1951] SCR 228 referred to Para 41 F [2001] 1 Suppl. SCR 621 referred to Para 42 [1973] 1 SCR 172 referred to Para 43 [2001] 3 Suppl. SCR 191 referred to Para 44

G [2006] 5 Suppl. SCR 1 referred to Para 45 [2007] 1 SCR 706 referred to Para 46 [1970] 3 SCR 530 referred to Para 47 [1978] 2 SCR 621 referred to Para 47 H

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[1985] Suppl. SCR 352 referred to Para 47 A [2014] 9 SCR 965 referred to Para 53 2018 (7) SCALE 106 referred to Para 62 [1996] 10 Suppl. SCR 472 referred to Para 77 B [1955] SCR 225 referred to Para 81 [1975] 1 SCR 814 referred to Para 91 [1971] 1 SCR 612 referred to Para 96 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357 C of 2017. From the Judgment and Order dated 04.08.2016 of the High Court of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015 WITH D Contempt Petition (C) No. 175 of 2016 in W.P. (Crl.) No. 539 of 1986 C. A. No. 2360, 2359, 2363, 2362, 2358, 2361 and 2364 of 2017 Crl. A. No. 277 of 2017. Maninder Singh, ASG, P. Chidambaram, Dr. Rajeev Dhawan, E Shekhar Naphade, Ms. Indira Jaising, Gopal Subramaniam, Mrs. V. Mohana, Sidharth Luthra, Sr. Advs., Shadan Farasat, Ms. Nitya Ramakrishnan, Rahul Mehra, Ahmed Said, Ms. Rudrakshi Deo, Shashi Pratap Singh, Suhail Rashid Bhat, Ms. Neha Sangwan, Chirag M. Shroff, Naveen R. Nath, Abhimanyu Verma, Nehmat Kaur, Gautam Bhatia, F Prateek Chadha, Ankur Kashyap, Kushagra Pandey, B. Krishna Prasad, Sija N. Pal, Satya Mitra, Prabhas Bajaj, R. Bala Subramanian, Ms. Binu Tamta, Prateek Jalan, Ritin Rai, P. K. Mullick, Ritesh Kumar, Ms. Meenakshi Grover, Kirtiman Singh, Jayant Malik, Aabhas Kshetarpal, Ms. Kritika, Abhipsit Mishra, Ms. Madhavi Divan, Rahul Kriplani, Ankit Yadav, Mrs. Soma Mullick, Sebat Kumar Devria, Ayush Puri, G B. V. Balram Das, K. R. Sasiprabhu, Gautam Khazandvi, Mrs. Gargi Khanna, Nikhil Nayyar, Dr. Monika Gusain, Manpreet Kaur Bhalla, Siddharth Aggarwal, Ms. Stuti Gujral, Zeeshan Diwan, Senthil Jagadeesan, Aman Hingorani, Ms. Priya Hingorani, Dr. Shweta Hingorani, Advs. for the appearing parties. H

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