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

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

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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

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 55 & ANOTHER

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

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 57 & ANOTHER

[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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A The Judgments of the Court were delivered by DIPAK MISRA, CJI (FOR HIMSELF, A. K. SIKRI AND A.M. KHANWILKAR, JJ.) CONTENTS B A. Prologue……………………………………………............ 3-22 B. Rivalised Submissions…………………………................... 22-23 B.1 Submissions on behalf of the appellant……………........... 23-34 B.2 Submissions on behalf of the respondents.......................... 34-45 C C. Ideals/principles of representative governance.................... 45-50 D. Constitutional morality……………………….................... 50-54 E. Constitutional objectivity……………………...................... 54-57 F. Constitutional governance and the conception of legitimate D constitutional trust………………………………………… 57-68 G. Collective responsibility………………………................... 68-73 H. Federal functionalism and democracy............................... 74-93 I. Collaborative federalism……………………….................. 93-100 E J. Pragmatic federalism……………………………............. 101-104 K. Concept of federal balance……………………............... 104-108 L. Interpretation of the Constitution…………...................... 108-120 M. Purposive interpretation………………………................ 120-127 F N. Constitutional culture and pragmatism…......................... 127-135 O. Interpretation of Articles 239 & 239A…......................... 135-140 P. Interpretation of Article 239AA of the Constitution……... 140-145 Q. Status of NCT of Delhi…………………………............. 146-160 G R. Executive power of the Council of Ministers of Delhi....... 160-164 S. Essence of Article 239AA of the Constitution................... 164-188 T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of H National Capital Territory of Delhi Rules, 1993 ..................... 188-213

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U. Constitutional renaissance…………………................... 213-217 A V. The conclusions in seriatim…………………................ 217-231 A. Prologue: The present reference to the Constitution Bench has its own complexity as the centripodal issue in its invitation of the interpretation of Article 239AA of the Constitution invokes a host of concepts, namely, constitutional objectivity navigating through the core structure with the sense and sensibility of having a real test of constitutional structure; the culture of purposive interpretation because the Court is concerned with the sustenance of glory of constitutional democracy in a Democratic Republic as envisioned in the Constitution; and understanding the idea of citizenry participation viewed with the lens of progressive perception inherent in the words of a great living document emphasizing on the democratic theme to achieve the requisite practical goal in the world of reality. We may call it as pragmatic interpretation of a constitutional provision, especially the one that has the effect potentiality to metamorphose a workable provision into an unnecessary and unwarranted piece of ambiguity. In such a situation, the necessity is to scan the anatomy of the provision and lift it to the pedestal of constitutional ethos with the aid of judicial creativity that breathes essentiality of life into the same. It is the hermeneutics of law that works. It is the requisite constitutional stimulus to sustain the fundamental conception of participative democracy so that the real pulse is felt and further the constitutional promise to the citizens is fulfilled. It gets rid of the unpleasant twitches and convulsions. To put it differently, the assurance by the insertion of Article 239AA by the Constitution (Sixty-ninth Amendment) Act, 1991 by exercise of the constituent power is not to be renounced with any kind of rigid understanding of the provision. It is because the exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status.

2. The principal question is whether the inhabitants or voters of G NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills “Prana” into the cells. Let it be made clear that any ingenious effort to scuttle the hope and aspiration that has ignited the idea of “march ahead” among the inhabitants by any kind of linguistic H

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A gymnastics will not commend acceptation. The appellant claims that the status of the voters of NCT Delhi after the Sixty-Ninth Amendment has moved from notional to real but the claim has been negatived by the Delhi High Court. Learned counsel for the appellant criticize the judgment and order of the High Court by contending, apart from other aspects, that the language employed in the entire Chapter containing Article B 239AA, unless appositely interpreted, shall denude the appellant, the National Capital Territory of Delhi, of its status.

3. The criticism is founded on the base that the Constitution of India, an organic and continuing document, has concretised their desire and enabled the people to have the right to participate as a collective in the decision making process that shall govern them and also pave the path of their welfare. The participation of the collective is the vital force for larger public interest and higher constitutional values spelt out in the Constitution and the silences therein and the same are to be protected. It is the assertion that the collective in a democracy speak through their elected representatives seeking mitigation of the grievances.

4. This Court, being the final arbiter of the Constitution, in such a situation, has to enter into the process of interpretation with the new tools such as constitutional pragmatism having due regard for sanctity of objectivity, realization of the purpose in the truest sense by constantly reminding one and all about the sacrosanctity of democratic structure as envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of decentralization of power and, we must say, the ideas knock at the door to be invited. The compulsive invitation is the warrant to sustain the values of democracy in the prescribed framework of law. The aim is to see that in the ultimate eventuate, the rule of law prevails and the interpretative process allows the said idea its deserved space, for when the rule of law is conferred its due status in the sphere of democracy, it assumes significant credibility.

5. We would like to call such a method of understanding “confluence of the idea and spirit of the Constitution”, for it celebrates the grand idea behind the constitutional structure founded on the cherished values of democracy.

6. As we have used the words “spirit of the Constitution”, it becomes our obligation to clarify the concept pertaining to the same. The canon of constitutional interpretation that glorifies the democratic concepts lays emphasis not only on the etymology of democracy but also embraces

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within its sweep a connotative expansion so that the intrinsic and innate facets are included.

7. A seven-Judge Bench of the Court in Keshavan Madhava Menon v. The State of Bombay1 observed:- “An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” [Emphasis is ours] 1 1951 SCR 228 H

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A The aforesaid decision has to be understood in the context of the phraseology ‘spirit of the Constitution’. As we understand, the Court has not negatived the concept as an alien one. It has laid emphasis on the support from the language used. It has not accepted the assumed spirit of the Constitution. Needless to say, there cannot be assumptions. Every proposition should have a base and the Constitution of India to be an organic and living one has to be perceived with progressive dynamism and not stuck with inflexibility. Flexibility has to be allowed room and that is what we find in later authorities.

8. In Madhav Rao Jivaji Rao Scindia and others v. Union of India and another2, Hegde, J, in his concurring opinion, emphasized on the spirit of the Constitution. The learned Judge, while not accepting the exercise of power for collateral reasons, stated:- “Exercise of power for collateral reasons has been considered by this Court in several decisions as a fraud on that power — see Balaji v. State of Mysore. Breach of any of the Constitutional D provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar Constitution. If the E Constitution or any of its provisions have ceased to serve the needs of the people, ways must be found to change them but it is impermissible to by-pass the Constitution or its provisions. Every contravention of the letter or the spirit of the Constitution is bound to have chain reaction. For that reason also the impugned orders must be held to be ultra vires Article 366(22).” F [underlining is ours]

9. In State of Kerala and another v. N. M. Thomas and others3, Krishna Iyer, J., in his concurring opinion, opined thus:- “106. Law, including constitutional law, can no longer “go it alone” G but must be illumined in the interpretative process by sociology and allied fields of knowledge. Indeed, the term “constitutional law” symbolises an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal 2 (1971) 1 SCC 85 3 H (1976) 2 SCC 310

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tradition, working in judicial institutions, following the procedures of law, thinking as lawyers think. So much so, a wider perspective is needed to resolve issues of constitutional law. Maybe, one cannot agree with the view of an eminent jurist and former Chief Justice of India: “The judiciary as a whole is not interested in the policy underlying a legislative measure.” Moreover, the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy. Its provisions can be comprehended only by a spacious, social-science approach, not by pedantic, traditional legalism. Here we are called upon to delimit the amplitude and decode the implications of Article 16(1) in the context of certain special concessions relating to employment, under the Kerala State (the appellant), given to scheduled castes and scheduled tribes (for short, hereinafter referred to as harijans) whose social lot and economic indigence are an Indian reality recognized by many articles of the Constitution. An overview of the decided cases suggests the need to reinterpret the dynamic import of the “equality clauses” and, to stress again, beyond reasonable doubt that the paramount law, which is organic and regulates our nation’s growing life, must take in its sweep “ethics, economics, politics and sociology”. Equally pertinent to the issue mooted before us is the lament of Friedmann: “It would be tragic if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society.” The main assumptions which Friedmann makes are: “First, the law is, in Holmes’ phrase, not a ‘brooding omnipotence in the sky’, but a flexible instrument of social order, dependent on the political values of the society which it purports to regulate . . . .”

107. Naturally surges the interrogation, what are the challenges of changing values to which the guarantee of equality must respond and how? To pose the problem with particular reference to our H

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A case, does the impugned rule violate the constitutional creed of equal opportunity in Article 16 by resort to a suspect classification or revivify it by making the less equal more equal by a legitimate differentiation? Chief Justice Marshall’s classic statement in McCulloch v. Maryland followed by Justice Brennan in Katzenbach v. Morgan remains a beacon light: B “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional”.” C [Emphasis is added]

10. In Supreme Court Advocates-on-Record Association and another v. Union of India4, this Court observed that a fortiori any construction of the constitutional provisions which conflicts with the constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, being an alien concept.

11. We have referred to the aforesaid precedents to state that the spirit of the Constitution has its own signification. In the context of the case at hand, the democratic nature of our Constitution and the paradigm of representative participation are undoubtedly comprised in the “spirit of the Constitution”. While interpreting the provisions of the Constitution, the safe and most sound approach is to read the words of the Constitution in the light of the avowed purpose and spirit of the Constitution so that it does not result in an illogical outcome which could have never been the intention of the Constituent Assembly or of the Parliament while exercising its constituent power. Therefore, a constitutional court, while adhering to the language employed in the provision, should not abandon the concept of the intention, spirit, the holistic approach and the constitutional legitimate expectation which combinedly project a magnificent facet of purposive interpretation. The Court should pose a question to itself whether a straight, literal and textual approach would annihilate the sense of the great living document which is required to be the laser beam to illumine. If the answer is in the affirmative, then the constitutional courts should protect the sense and spirit of the Constitution taking aid of purposive interpretation as that is the solemn duty of the constitutional 4 (1993) 4 SCC 441 H

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courts as the final arbiters of the Constitution. It is a constitutional summon A for performance of duty. The stress has to be on changing society, relevant political values, absence of any constitutional prohibition and legitimacy of the end to be achieved by appropriate means. We shall refer to the aspect of purposive interpretation regard being had to the context and other factors that gain primacy to be adverted to at a subsequent stage. B

12. Having prefaced thus, we shall now proceed to state the controversy in brief since in this batch of appeals which has been referred to the Constitution Bench, we are required to advert to the issue that essentially pertains to the powers conferred on the Legislative Assembly of the National Capital Territory of Delhi and the executive power exercised by the elected Government of NCT of Delhi. The facts involved and the controversy raised in each individual appeal need not be dwelled upon, for we only intend to answer the constitutional issue.

13. The primordial adjudication, as is presently the requisite, commands our focus on the interpretation of Article 239AA of the Constitution of India. The said interpretation, be it noted, is not to be done in an exclusive compartment but in the context in which it has been introduced and also keeping in view the conceptual structure of the other relevant articles of the Constitution. Before we delve into the various facets of Article 239AA and other provisions of the Constitution which have been pressed into service by the learned counsel appearing for the appellant and the learned Additional Solicitor General, we think it appropriate to narrate a brief history of Delhi.

14. On 12.12.1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separate from Punjab and annexed to Delhi headed by a Commissioner and it came to be known as the Chief F Commissioner’s province. In 1912, the Delhi Laws Act, 1912 came into force with effect from 01.10.1912 making certain laws prevalent in Punjab to be applicable to Delhi. The Delhi Laws Act, 1915 empowered the Chief Commissioner, Delhi to determine application of laws by issuing appropriate notification in the Gazette of India. The Government of India Act, 1919 and the Government of India Act, 1935 retained Delhi as G a centrally administered territory. On coming into force of the Constitution of India on 26.01.1950, Delhi became a Part C State. In the year 1951, the Government of Part C States Act, 1951 was enacted providing, inter alia, for a Legislative Assembly in Delhi. Section 21(1) of the 1951 Act H

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A empowered the Legislative Assembly to make laws on all matters of List II of the Seventh Schedule of the Constitution except (i) public order; (ii) police (including railway police); (iii) constitution and powers of municipal corporations and local authorities, etc.-public utility authorities; (iv) lands & buildings vested in/in possession of the Union situated in Delhi or New Delhi; (v) offences against laws about subjects B mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to the above matters and court fee thereon.

15. On 19.10.1956, the Constitution of India (Seventh Amendment) Act, 1956 was passed to implement the provisions of the States Re- organization Act, 1956 which did away with Part A, B, C and D States C and only two categories, namely, States and Union Territories remained and Delhi became a Union Territory to be administered by an administrator appointed by the President. The Legislative Assembly of Delhi and the Council stood abolished. In the year 1953, the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies D and Council of Ministers for various Union Territories but the provisions of the said Act were not made applicable to Delhi. The Delhi Administration Act, 1966 was enacted to provide for limited representative Government for Delhi through a Metropolitan Council comprising of 56 elected members and five nominated members. In the same year, on 20.08.1966, the Ministry of Home Affairs issued S.O. No. 2524 that provided, inter alia, that the Lieutenant Governor/Administrator/Chief Commissioner shall be subject to the control of the President of India and exercise such powers and discharge the functions of a State Government under the Commission of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The relevant portion of the Balakrishnan Committee report reads as follows:- “6.5.5 In paragraphs 6.5.2 and 6.5.3 we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced H

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that most of the arguments against making Delhi a State of the A Union are very substantial, sound and valid and deserve acceptance. This was also the view expressed before us by some of the eminent and knowledgeable persons whom we interviewed. As these arguments are self-evident we find it unnecessary to go into them in detail except those relating to constitutional and financial aspects covered by them. 6.5.6 The important argument from the Constitutional angle is based on the federal type of our Constitution under which there is a constitutional division of powers and functions between the Union and the State. If Delhi becomes a full- fledged State, there will be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to make any law except in the special and emergency situations provided for under the Constitution and to that extent the Union Executive cannot exercise executive powers or functions. The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the national capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the national capital and the need for keeping it under the control of the Union Government. Such control is vital in the national interest irrespective of whether the subject matter is in the State field or Union field. If the administration of the natural capital is divided into rigid compartments of State of field and Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments are run by different political parties. Such conflicts may, at times, prejudice the national interest…… x x x 6.5.9 We are also impressed with the argument that Delhi as the national capital belongs to the nation as a whole and any constituent State of the Union of which Delhi will become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day- H

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A to-day matters, however vital some of, them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities. x x x LT. GOVERNOR AND COUNCIL OF MINISTERS B 6.7.19 As anecessary corollary to the establishment of a responsible Government for Delhi the structure of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As C Delhi will continue to have the status of a Union territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lt. Governor may be continued and recognized in the Constitution itself. … D x x x 6.7.21 The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “to aid and advice” is a well understood term of art to denote the implications of the Cabinet system of Government E adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications F of this general rule will have to be adopted: (i) Firstly, the requirement of acting on the aid and advice of the council of Ministers cannot apply to the exercise by the Administrator of any judicial or quasi-judicial functions. The reason is obvious because in respect of such functions there is no question of acting on the advice of another person. G (ii) Secondly, the requirement is only in relation to matters in respect of which the Legislative Assembly has the powers to make laws. This power will be subject to the restrictions already dealt with earlier in the Report. Accordingly, the Council of Ministers will H

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not have jurisdiction to deal with matters excluded from the purview A of the Legislative Assembly. (iii) Thirdly, there is need for a special provision to resolve differences between the Administrator and his Council of Ministers on any matter concerning the administration of Delhi. Normally, the general principle applicable to the system of responsible B Government under the Constitution is that the Head of the Administration should act as a mere Constitutional figurehead and will have to accept the advice of the Council of Ministers except when the matter is left to his discretion. However, by virtue of Article 239 of the Constitution, the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator. Because of this the Administrator has to take a somewhat more active part in the administration than the Governor of a State. It is, therefore, necessary to reconcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need to enforce the collective responsibility of the Council of Ministers to the Legislature. The best way of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council of Ministers, he should refer the question to the President and the decision of the President thereon will be final. In cases of urgency, if immediate action is necessary, the Administrator may direct action to be taken pending such decision of the President. A provision of this kind was made for this very reason not only in the 1951 Act, but also in the 1963 Act relating to the Union territories as well as in the 1978 Bill.”

16. As the chronology would show, after due deliberation, the F Parliament, in exercise of its constituent power, amended the Constitution by the Constitution (Sixty-ninth Amendment) Act in the year 1991 and inserted Articles 239AA and 239AB in the Constitution to which we shall refer at an appropriate stage when we dwell upon the interpretative process. G B. Rivalised Submissions:

17. Now, we may note the rivalised submissions at the Bar. We have heard Mr. P. Chidambaram, Mr. Gopal Subramaniam, Dr. Rajiv Dhawan, Ms. Indira Jaising and Mr. Shekhar Naphade, learned senior H

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A counsel appearing on behalf of the Government of NCT of Delhi. Mr. Maninder Singh, learned Additional Solicitor General of India, has advanced arguments on behalf of the Union of India and the Lieutenant Governor of Delhi.

18. A common written submission has been filed on behalf of the B Government of NCT of Delhi and Mr. Maninder Singh, learned Additional Solicitor General of India, has filed written submissions on behalf of both the Union of India and the Lieutenant Governor of NCT of Delhi.

19. An application for intervention being I.A. No. 10556 of 2017 was filed by the applicant, Reliance Industries Ltd. We have heard Dr. C A.M. Singhvi, learned senior counsel on behalf of the said intervenor. Another application for intervention was filed by The Kapila and Nirmal Hingorani Foundation and we have heard Mr. Aman Hingorani, learned counsel on behalf of the said Foundation. B.1 Submissions on behalf of the appellant: D 20. It is submitted by learned senior counsel appearing on behalf of the appellant that the NCTD occupies a unique position in the constitutional scheme by virtue of the insertion of Articles 239AA and 239AB and the consequent enactment of the 1991 Act that has shaped the NCTD into a constitutional hybrid and has led Delhi to acquire certain E special characteristics solely attributed to full-fledged States under the Constitution. As per the appellant, the Government of NCT of Delhi enjoys far more power than the administrative set ups of other Union Territories especially after the constitutional amendment and coming into force of the 1991 Act.

F 21. After expansively referring to the constitutional history of the NCTD, it is urged on behalf of the appellant that the insertion of Article 239AA was intended to eradicate the hierarchical structure which functionally placed the Lieutenant Governor of Delhi in a superior position to that of the Council of Ministers, especially with respect to the executive powers and the Lieutenant Governor has to be treated as a titular head G alone in respect of matters that have been assigned to the Legislative Assembly and the Council of Ministers.

22. The appellant has alluded to the nine-Judge Bench decision in New Delhi Municipal Corporation v. State of Punjab5 to contend that 5 (1997) 7 SCC 339 H

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the Union Territory of Delhi is a class by itself different from all other A Union Territories which our Constitution envisages, and the larger Bench had no occasion to decide in what shape and form the NCTD is different from other Union Territories, for the said issue did not arise therein. Nevertheless, the majority opinion clearly rules as regards Delhi’s unique constitutional status unlike other Union Territories by virtue of the constitutionally created Legislative Assembly, Council of Ministers and Westminster style cabinet system of government that have been brought by the Sixty-ninth Amendment and the 1991 Act.

23. It is further submitted by the appellant that the Sixty-Ninth Amendment to the Constitution and the consequent 1991 Act were passed with the aim to give the citizens of NCT of Delhi a larger say in the governance of NCTD. Democracy being one of the facets of the basic structure of the Constitution, the Sixty-ninth amendment was aimed at furthering democracy in Delhi and hence, Article 239AA should be interpreted in the backdrop of the fact that Delhi has been conferred special status among various UTs and in such a way that democracy in its true sense is established in Delhi.

24. It is submitted that constitutional jurisprudence in the Indian context has undergone a sea change after the decisions in R.C. Cooper v. U.O.I6and Maneka Gandhi v. U.O.I7. Learned counsel for the appellant submit that this Court should adopt a more purposive and an organic method of interpretation as adopted by this Court in a catena of cases including the recent one in Justice K.S. Puttaswamy (Retd.) and another v. U.O.I. and others8 wherein the majority observed that the decisions of this Court prior to R.C. Cooper (supra) and Maneka Gandhi (supra) must be understood in their historical context. F

25. Article 239AA has deliberately excluded the words “assist and advice” as were used in the 1963 and 1966 Acts, rather the said Article employs the expression “aid and advice” and, therefore, it consciously obviates the requirement of the Lieutenant Governor’s concurrence on every matter. Thus, it is the proponement of the appellant that Article 239AA of the Constitution which has conferred a Westminster G style cabinet system of government for the NCT of Delhi makes the Lieutenant Governor bound by the ‘aid and advice’ of the Council of 6 AIR 1970 SC 564 7 AIR 1978 SC 597 8 (2017) 10 SCC 1 H

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A Ministers. To buttress its argument, the appellant has referred to the judgments in Rai Sahib Ram Jawaya Kapur and Ors. v. State of Punjab9 and Shamsher Singh v. State of Punjab10 which, as per the appellant, though arose in the context of the State of Punjab, decided that since our Constitution has conferred a Westminster style cabinet system for the Government of State of Punjab, an executive Government B established under the aegis of the Constitution should be able to exercise all executive powers necessary to fulfill the needs that the situation warrants and consequently, the Governor has to act in accordance with the aid and advice tendered by the Council of Ministers with the Chief Minister as its head. C 26. It is further argued that GNCTD has the sole power to take executive actions on all matters on which the Delhi Legislature is competent to pass laws irrespective of whether or not the Legislature has actually passed a law on the subject. Emphasis is laid on the principle of collective responsibility to a democratically elected legislative body D and, on that basis, it is proponed that the Lieutenant Governor of Delhi is bound by the aid and advice of the Council of Ministers of Delhi. It is put forth that such an interpretation can alone meet the purpose of constitutionally mandated governance in Delhi post insertion of Article 239AA in the Constitution. E 27. It is the stand of the appellant that the extent of executive powers of the Government of NCT of Delhi can be understood by appositely juxtaposed reading of Article 239AA(3) with Article 239AA(4) which stipulates that the Government of NCT of Delhi has exclusive executive powers in relation to matters which fall within the purview of Delhi Assembly’s legislative competence. Article 239AA(3) gives the F Delhi Legislative Assembly the legislative powers over all except three subjects in the State List and all subjects in the Concurrent List and as a natural corollary, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects in respect of which the Delhi Legislative Assembly has the legislative power to legislate. G 28. It is asserted by the counsel for the appellant that Article 239AA preserves the Parliament’s legislative powers over all subjects in the State and the Concurrent Lists, but no such executive power is reserved for the Union. The appellant contends that there is conscious 9 AIR 1955 SC 549 10 H AIR 1974 SC 2192

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difference between the language of Article 239AA(3) which gives A overriding legislative powers to the Parliament and that of Article 239AA(4) which refrains from doing the likewise in the context of executive powers. The Centre’s executive power stems from Article 73 and would normally be co-extensive with the Parliament’s legislative powers, but this is explicitly subject to other provisions of the Constitution B which has to include Article 239AA. Thus, Article 239AA has, in the case of Delhi, whittled down the executive power of the Centre to only the three reserved subjects falling outside the purview of the executive power of the Council of Ministers of Delhi.

29. The appellant has argued that though Article 73 of the Constitution lays down the principle that there may exist under the C Constitution concurrent legislative powers between the Parliament and the State Legislative Assemblies, yet there can never be concurrent executive powers between the Central and the State Governments as such a situation would result in chaos in the absence of any responsibility/ accountability for executive actions. This principle, as per the appellant, must apply equally in relation to matters contained in List II and List III of the Seventh Schedule and the effect of Article 239AA(3) is that all matters on which the Delhi Legislative Assembly has power to legislate are effectively equivalent to matters of the Concurrent List.

30. Article 239AB would become redundant if it is to be accepted that the Constitution allows the Union Government to override all executive actions/decisions of the GNCTD in the ordinary course of things, as in such a situation, it would never be necessary to invoke the special provision in the form of Article 239AB for the Union Government to take over the administration of Delhi. Further, Article 239AB stipulates that if the administration of Delhi is not carried out in accordance with F Article 239AA, the President may suspend the operation of any part or whole of Article 239AA. This, as per the appellant, clearly shows that when an elected government is in place, the administration of Delhi has to be carried out in accordance with Article 239AA.

31. After quoting Dr. Ambedkar on federalism in the Constituent G Assembly Debates dated 25.11.1949, the appellant has contended that Article 239AA is an example of the hallmark of federalism in our Constitution which reserves legislative primacy of the Parliament in certain limited areas but there is no such corresponding provision in the H

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A Constitution which reserves the executive powers of the Central Government vis-a-vis GNCTD.

32. It is contended on behalf of the appellant that there is necessity for uniform and consistent interpretation of the phrase ‘aid and advice’ used in different articles of the Constitution such as Article 74, Article B 163 and Article 239AA in the context of the functions of the President, the Governor and the Lieutenant Governor respectively. It is urged that the provisions of the Constitution being on a higher pedestal than ordinary statutory provisions require to be interpreted in a different manner and in view of the same, Article 239AA(4) deserves to be interpreted in a manner as other provisions of the Constitution and, hence, there is warrant C for interpreting the phrase ‘aid and advice’ in a broad sense so that such ‘aid and advice’ is binding on the nominee of the President, i.e., the Lieutenant Governor. It would be an anathema to the constitutional philosophy to surmise that just because the Constitution permits a difference of opinion between the Lieutenant Governor and the Council D of Ministers, the ‘aid and advice’ tendered by the Council of Ministers is not binding upon the Lieutenant Governor.

33. The appellant has further submitted that under Article 239AA(4), the Government of NCT of Delhi and the Council of Ministers of the NCT of Delhi have exclusive power over all matters in relation to E subjects under List II (excluding Entries 1, 2 and 18 thereof and Entries 34, 65 and 66 in so far as they apply to Entries 1, 2 and 18 thereof) and List III of the Seventh Schedule. According to the appellant, the substantive part of Article 239AA(4) itself lays down the exception to it, i.e., when the Lieutenant Governor is to act in his discretion under the law and not as per the advice of the Council of Ministers. The proviso to Article F 239AA(4), as per the appellant, comes into play where the ‘aid and advice’ of the Council of Ministers transgresses the areas constitutionally prescribed to it and the proviso does not allow the Lieutenant Governor to have a different view on the merits of the ‘aid and advice’ that has been tendered by the Council of Ministers. According to the appellant, G the proviso to Article 239AA(4) operates only in exceptional situations and is not a general norm. Any attempt to expand the scope of the proviso beyond exceptional matters is not tenable as it would have the effect of rendering the main part of Article 239AA(4) otiose. To rely upon the proviso to Article 239AA(4) to say that the ‘aid and advice’ of the Council of Ministers is not binding upon the Lieutenant Governor in H

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areas in which the Delhi Legislative Assembly has competence to legislate A would defeat the purpose for which institutions necessary to operationalize democracy in Delhi were created. It is submitted by the appellant that the 1991 Act as well as the Rules themselves cannot be used to interpret the constitutional provisions inasmuch as they only reflect the scheme of governance. B B.2 Submissions on behalf of the respondents:

34. The submissions put forth by Mr. Maninder Singh, learned Additional Solicitor General of India, appearing on behalf of the respondents, Union of India and Lieutenant Governor of Delhi, revolve around the argument that although the insertion of Article 239AA C envisages the constitution of a Legislative Assembly for the National Capital Territory of Delhi, yet the President shall remain its Executive head, acting through the Lieutenant Governor, and that the powers of the Parliament in respect of the Union Territories shall not be derogated in any manner by the insertion of the said Article 239AA. D

35. The respondents submit that the constitutional scheme envisaged for the Union Territories has been dealt with in New Delhi Municipal Corporation (supra) case and although the Court in this case had contemplated three categories of Union Territories, yet it had arrived at the conclusion that those surviving as Union Territories and not having acquired Statehood shall remain so and Delhi, now referred to as “National Capital Territory of Delhi”, is still a Union Territory. The respondents further submit that once it has been determined that Delhi continues to be a Union Territory, its governance shall be regulated by the provision of Article 239 which stipulates that all Union Territories shall be governed by the President of India and neither a plain textual reading nor a contextual reading of Article 239AA stipulates any vertically divided exclusive jurisdiction with the Legislative Assembly or the Council of Ministers.

36. The respondents, thereafter, in their submissions, after citing several authorities, have sought to impress upon this Court that Article G 239AA be given its literal and true interpretation as there exists no ambiguity attracting the requirement of purposive interpretation. The respondents have also submitted that since it was on the recommendations made by the Balakrishnan Committee, which had been accepted in toto, that the Sixty-ninth amendment and the 1991 Act came H

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A into force, the Court should consider the report of the Committee and the reasons provided therein in order to ascertain the true intention of the exercise of the constituent power of the Parliament for bringing about the said amendment as well as the GNCTD Act.

37. It is also asserted by the respondents that Article 239 is an B integral part of the Constitution and the foundation stone of Part VIII and that Article 239AA shall be read conjointly with Article 239 which provides that the ultimate administration with respect to Delhi shall remain with the President acting through its administrator.

38. The respondents also contend that although Article 239AA C confers on the Legislative Assembly of Delhi the power to legislate with respect to subject matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article when it employs the phrase “in so far as any such matter is applicable to Union Territories....” and also by specifically excluding from the legislative power of the Assembly certain entries as delineated in Article 239AA(3)(a). D This restriction, as per the respondents, limits the power of the Legislative Assembly to legislate and this restriction has to be understood in the context of conferment of special status.

39. To reiterate the position that the President remains the Executive head for all Union Territories, Mr. Singh has drawn the attention of the E Court to Articles 53 and 73 read with Article 246(4) of the Constitution. It is further urged that nowhere in the Constitution, including Articles 239A or 239AA, it has been stipulated that the executive power of a Union Territory shall vest in the Council of Ministers/Legislative Assembly. It has been argued that the contention of the appellant that on the creation F of Legislative Assembly, there was an automatic investiture of executive power on the said Assembly is flawed as the constitutional scheme does not envisage any conferment of automatic power on the Council of Ministers. Further, as the submission is structured, Article 239AA(4) employs the phrase “Lieutenant Governor and his Ministers” which implies that it is the “Lieutenant Governor” and not the “Council of G Ministers” who is responsible for the administration of the Union Territory. That apart, the provisions of Articles 298, 299 and 239AB of the Constitution and Section 52 of the 1991 Act also reiterate the position that the Constitution does not stipulate any automatic conferral of executive power and the same is echoed in the Balakrishnan Committee H Report.

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40. The respondents contend that the contention of the principle A laid down in the judgment of Ram Jawaya Kapur (supra), that wherever there is existence of legislative power there is co-extensive existence of executive power, is with respect to only the Union and the States and is not applicable to Union Territories as the same would be against the constitutional mandate as laid down in its various provisions. B

41. The respondents, to further advance their arguments, have pointed out the distinction between Articles 239AB and 356 of the Constitution and have submitted that Article 356 envisages that the President shall assume to himself the functions of the State Government and the powers vested in the Governor in case of failure of “constitutional machinery” but in the case of Union Territories, this clause would become inapplicable as the executive power of a Union Territory remains vested with the President. The respondents would further submit that Article 239AB does not stipulate any “assumption of powers” by the President but merely provides for suspension of operation of Article 239AA in the NCT of Delhi in case the President is satisfied that it is necessary to do so for the proper administration of NCT of Delhi.

42. The respondents, in their submissions, also point out that a close reading of Article 239 with Article 239AA along with Section 44 of the GNCTD Act, 1991 would reveal that the expression “Executive action of the Lt. Governor” and not the “Executive action of NCT of Delhi” E has been stipulated in the said provisions. The said intention can also be seen from the fact that the phrase Lieutenant Governor “with the Ministers” has been used in Section 44(1)(b) and further Article 239AA(4) also engages the phrase “his functions”. This leads to the implication that the extent of contribution/participation to be made by the Council of Ministers is only to render aid and advice to the Lieutenant Governor. F

43. It has been further submitted on behalf of the respondents that the aid and advice rendered by the Council of Ministers is not binding upon the Lieutenant Governor and he is empowered to form an opinion that differs from the opinion of the Council of Ministers. In such a situation, the proviso to Article 239AA(4) comes into play which provides G that in case of such difference of opinion, the decision of the President shall be final. Learned Additional Solicitor General has stressed that this is in recognition of the fact that the ultimate responsibility in relation to the administration of the Union Territories lies with the Union and there H

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A is clear demarcation of difference as regards the manner of governance between States and Union Territories whereby in case of the former, the Governor is bound by the advice tendered by the Council of Ministers.

44. The respondents further point out that a combined reading of Article 239AA(4) and Section 41(2) of the 1991 Act would suggest that B when the question arises if a matter is one where the Lieutenant Governor shall exercise his discretion, the decision of the Lieutenant Governor shall be final. Article 239AA(4) and the proviso thereto is not an exception and, hence, should not be given a restrictive meaning and the phrase “any matter” has been deliberately kept of the widest import. To bring home the point, reliance has been placed on the dictum laid down in Tej C Kiran Jain and others v. N. Sanjiva Reddy and others11 where the word “anything” has been said to mean “everything”. Therefore, the phrase “any matter” has to be interpreted to mean “every matter”. The said interpretation, as per the respondents, would be in accord with the objective of the Constitution that the Union shall retain the ultimate D authority to legislate on any matter with respect to the National Capital Territory of Delhi.

45. The respondents also submit that Article 239AA does not contemplate a new scheme and it is similar to that envisaged under Article 239A which pertains to the administration and governance of the E Union Territory of Puducherry. A comparison of the scheme provided under Article 239, Article 239A read with the 1963 Act for Puducherry on one hand and Article 239, Article 239AA read with the 1991 Act for Delhi on the other hand would reveal that both the schemes are similar to the extent that the intention is to retain the continuing control of the President and the Parliament for the executive and legislative functioning F of the Union Territories.

46. The respondents contend that Article 239AA, and in particular, clause 4 of the said provision, is not the first of its kind and a similar provision in the form of Section 44 existed in the Government of Union Territories Act, 1963 and that the issue of interpretation of this Section G had come up before this Court in several cases wherein it has been laid down that the “State Government” with respect to Union Territory would mean “Central Government” in terms of Section 3(60) of the General Clauses Act. Hence, when a similar provision such as Article 239AA(4) 11 (1970) 2 SCC 272 H

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has already been given a certain interpretation by this Court, then merely because of the fact that special provisions have been placed in the Constitution for the NCT of Delhi, which is not so in the case of other Union Territories, it shall not bar the Courts from adopting an interpretation of Article 239AA which is similar to Section 44 of the 1963 Act.

47. The respondents finally submit that as per the constitutional mandate, the ultimate responsibility with respect to all matters governing the NCT of Delhi fall within the domain of the Union Government. To bolster the said stand, the respondents have placed reliance upon relevant portions of the Balakrishnan Committee Report and also various other provisions of the Constitution of India and the 1991 Act. Further, the respondents argue that to devolve exclusive legislative or exclusive executive power on the Legislative Assembly or Council of Ministers of the NCT of Delhi would result in elevating a Union Territory to the status of a State, a demand which has been rejected by the Constitution makers on several instances. That apart, it would be impermissible under any interpretation of the constitutional text and also contrary to the constitutional mandate.

48. Before we dwell upon the submissions, we are of the considered view that we should state certain principles and analyse certain constitutional concepts. Frankly speaking, we feel the necessity as we are really concerned with the interpretation of a constitutional provision having regard to its operational perspective in a democracy. We have said so in the prelude. We do not think and we are not persuaded to think that the present controversy can rest on either of the extremes propagated before us. We are convinced that a holistic approach has to be adopted from a constitutional vision which is bound to encapsulate crystalline realism. F

C. Ideals/principles of representative governance:

49. Representative Governance in a Republican form of democracy is a kind of democratic setup wherein the people of a nation elect and choose their law making representatives. The representatives so elected G 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 H

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A their activities as lawmakers. Therefore, representative form of governance comes out as a device to bring to fore the popular will.

50. Bernard Manin in “The Principles of Representative Government”12 has deliberated on the postulate that the concept of representation has its origin around the Middle ages in the context of the B church and in the context of cities in their relation to the king or the emperor. The idea, as Manin says, was to send out delegates having power to connect to those who appointed them in the first place and there lies the kernel of the concept of representation. This technique then got transferred and used for other purposes. C 51. Thomas Jefferson, in the United States Declaration of Independence (1776), highlights on the stipulation that governments derive their just powers from the consent of the governed. This idea, simply put, reflects the concept of representative governance. The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of D governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others.

52. The Constitution of India has embraced the representative model of governance at all levels, i.e., local, State and the Union. E Acknowledging the representative form of governance adopted by our Constitution and the elected representatives being the instruments for conveying the popular will of the people, the Court in State of Bihar and another v. Bal Mukund Sah and others13 has observed:- “...Besides providing a quasi federal system in the country and envisaging the scheme for distribution of legislative powers between the State and the center, it emphasizes the establishment of the rule of law. The form of Government envisaged under a parliamentary system of democracy is a representative democracy in which the people of the country are entitled to exercise their sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the executive, namely, the Council of Ministers is responsible. The legislature has been 12 Bernard Manin, The Principles of Representative Government, Cambridge Univer- sity Press, 1997 13 H (2000) 4 SCC 640

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acknowledged to be a nerve center of the State activities. It is through parliament that elected representatives of the people ventilate people’s grievances. [Emphasis is ours]

53. Thus perceived, the people are the sovereign since they exercise the power of adult franchise that ultimately builds the structure of representative democracy. That apart, every constituent of the sovereign is entitled to air his/her grievances through their elected representatives. The twin idea establishes the cornerstone of the precept of accountability to the public because there rests the origin of power and responsibility.

54. A representative form of government should not become a C government by elites where the representatives so elected do nothing to give effect to the will of the sovereign. The elected representatives must not have an ulterior motive for representing their constituents and they should not misuse the popular mandate awarded to them by covertly transforming it into ‘own rule’. The inherent value of public accountability can never be brushed aside. D

55. Another ideal for representative governance is accessibility and approachability. Since responsiveness to the needs and demands of the people is the basic parameter for evaluating the effectiveness of representative governance, it is necessary that elected representatives develop a sense of belonging with their constituents. The sense of belonging has its limitation also. If the desire of the constituent is rational and draws strength from legal paradigms, it deserves to be given due acceptance but if the aspiration blows from some illogical or unacceptable proposition, the same should not be allowed any space. It is because in a representative form of government, aspirations and desires are canvassed and propounded on the bedrock of constitutional principles. Hence, we may say that inherent constitutional aspirations should draw inspiration from the Constitution. There can never be sacrifice of constitutional conscience.

56. Be it remembered, when elected representatives and constitutional functionaries enter their office, they take oath to bear allegiance to the Constitution and uphold the Constitution. Thus, it is expected of them not only to remain alive to the provisions of the Constitution but also to concepts like constitutionalism, constitutional

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A objectivity and constitutional trust, etc. The support expressed by the sovereign in the form of votes cannot become an excuse to perform actions which fall foul to the Constitution or are ultra vires. Though the elected representatives are expected to act as instruments of transforming popular will into policies and laws, yet they must do so within the contours of the Constitution. They must display constitutional objectivity as a B standard of representative governance, for that is ingrained in the conceptual democratic majority which neither tolerates ideological fragmentation nor encourages any kind of utopian fantasy. It lays stress on realizable constitutional ideologies. D. Constitutional morality: C

57. Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed. The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution.

F 58. In this context, the observations made by Dr. B.R. Ambedkar are of great significance:- “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which G is essentially undemocratic.”14

59. Constitutional morality is that fulcrum which acts as an essential check upon the high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the 14 H Constituent Assembly Debates 1989: VII, 38.

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very idea of democracy. The following passage from Manoj Narula v. A Union of India15 can aptly be quoted to throw some light on the idea:- “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in B this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.16” C

60. In the said case, it has been further observed:- “Regard being had to the aforesaid concept, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of constitutional values would include reverence for the constitutional structure. It is always D profitable to remember the famous line of Laurence H. Tribe that a Constitution is “written in blood, rather than ink”17.”

61. Constitutional morality acts as a check against lapses on the part of the governmental agencies and colourable activities aimed at affecting the democratic nature of polity. In Krishnamoorthy v. E Sivakumar and others18, it has been explained thus:- “Democracy, which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.” Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of 15 (2014) 9 SCC 1 16 Jamesh Madison as Publius, Federalist 51 17 Laurence H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008) 18 (2015) 3 SCC 467 H

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A 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. B E. Constitutional objectivity:

62. Our Constitution, in its grandness, resolutely embraces the theory of “checks and balances”. This concept of checks and balances, in turn, gives birth to the principle of “constitutional objectivity”. The Constitution expects the organs of the State adorned by high constitutional C functionaries that while discharging their duties, they remain alive to the allegiance they bear to the Constitution. Neutrality as envisaged under the constitutional scheme should guide them in the performance of their duties and functions under the Constitution. This is the trust which the Constitution reposes in them. D 63. The founding fathers of our Constitution had a vision for our Nation whose ultimate aim was to make right the upheaval that existed before setting up of the Constituent Assembly. The concept of constitutional objectivity is, by itself, inherent in this vision and it is incumbent upon the organs of the State to make comprehensive efforts towards realization of this vision. But, at the same time, they must remain E true to the Constitution by upholding the trust which the Constitution places in them and thereby exhibit constitutional objectivity in its truest sense. In Indra Sawhney v. Union of India and others19, the Court observed:- “...Therefore, the permissible judicial creativity in tune with the F Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.” G The aforesaid passage tells us in an illuminating manner how the Court is expected to proceed on the path of judicial creativity in consonance with constitutional objectivity having a keen sense of pragmatism.

19 AIR 1993 SC 477 H

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64. It can be said without inviting any controversy that the concept of constitutional objectivity has to be equally followed by the Executive and the Legislature as it is the Constitution from which they derive their power and, in turn, the Constitution expects them to be just and reasonable in the exercise of such power. The decisions taken by constitutional functionaries, in the discharge of their duties, must be based on normative acceptability. Such decisions, thus, have to be in accord with the principles of constitutional objectivity which, as a lighthouse, will guide the authorities to take a constitutionally right decision. This action, needless to say, would be in the spirit of the Constitution. It may be further noted here that it is not only the decision itself but also the process adopted in such decision making which should be in tune with constitutional objectivity. A decision by a constitutional functionary may, in the ultimate analysis, withstand scrutiny but unless the process adopted for arriving at such a decision is in tandem with the idea of constitutional objectivity, it invites criticism. Therefore, the decision making process should never by-pass the established norms and conventions which are time tested and should affirm to the idea of constitutionalism. F. Constitutional governance and the conception of legitimate constitutional trust:

65. The concept of constitutional governance in a body polity like ours, where the Constitution is the supreme fundamental law, is neither hypothetical nor an abstraction but is real, concrete and grounded. The word ‘governance’ encapsulates the idea of an administration, a governing body or organization whereas the word ‘constitutional’ means something sanctioned by or consistent with or operating under the fundamental organic law, i.e., the Constitution. Thus, the word ‘governance’ when qualified by the term ‘constitutional’ conveys a form of governance/government which adheres to the concept of constitutionalism. The said form of governance is sanctioned by the Constitution itself, its functions are consistent with the Constitution and it operates under the aegis of the Constitution.

66. According to Encyclopedia Britannica, “Constitutional G Government” means:- “...the existence of a constitution—which may be a legal instrument or merely a set of fixed norms or principles generally accepted as the fundamental law of the polity—that effectively H

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A controls the exercise of political power. The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state....” B 67. It is axiomatic that the Constitution of India is the suprema lex, i.e., the paramount law of the land. All the three wings of the State, i.e., the legislature, the judiciary and the executive derive their power and authority from the Constitution. It is the Constitution which endows the requisite amount of oxygen and other necessary supplies which, in turn, enable these organs to work for the betterment of the nation and C the body polity. In the context of the supremacy of the Constitution, the Court in Kalpana Mehta and others v. Union of India and others20 has laid down:- “The Constitution of India is the supreme fundamental law and all laws have to be in consonance or in accord with the Constitution. D The constitutional provisions postulate the conditions for the functioning of the legislature and the executive and prescribe that the Supreme Court is the final interpreter of the Constitution. All statutory laws are required to conform to the fundamental law, that is, the Constitution. The functionaries of the three wings, E namely, the legislature, the executive and the judiciary, as has been stated in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another21. derive their authority and jurisdiction from the Constitution. The Parliament has the exclusive authority to make laws and that is how the supremacy of the Parliament in the field of legislation is understood. F There is a distinction between parliamentary supremacy in the field of legislation and constitutional supremacy. The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various articles and sometimes are G decipherable from the constitutional silence. Its inherent dynamism makes it organic and, therefore, the concept of — constitutional sovereignty is sacrosanct. It is extremely sacred and, as stated earlier, the authorities get their powers from the Constitution. It is 20 (2018) 7 SCALE 106 21 AIR 1973 SC 1461 : (1973) 4 SCC 225 H

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—the source. Sometimes, the constitutional sovereignty is described as the supremacy of the Constitution. [Emphasis is ours]

68. Thus, the concept of constitutional governance is a natural consequent of the doctrine of constitutional sovereignty. The writings of Locke and Montesquieu also throw light on the concept of constitutional governance. Locke lays stress on the fiduciary nature of public power and argues that sovereignty lies with the people. Montesquieu, on the other hand, in his postulate of constitutional governance, has laid more stress on the system of “checks and balances” and “separation of powers” between the executive, legislature and the judiciary. According to the ideas of Montesquieu, it can be said that constitutional governance involves the denial of absolute power to any one organ of the State and a system of checks and balances is the basic foundation of constitutional governance. In constitutional form of Government, power is distributed amongst the three organs of the State in such a way that the constitutional goal as set out in the Preamble of our Constitution is realised. D

69. The postulates laid by Locke and Montesquieu are inherent in our constitutional scheme and have also been recognized by the Court. Therefore, it can safely be said that the nomenclature of constitutional governance has at its very base a Constitution which is the supreme law of the land and the conception, in its width, embraces two more ideas, E i.e., fiduciary nature of public power and the system of checks and balances.

70. We may hasten to add that the Court, while interpreting various provisions of the Constitution on different occasions, has always been alive to the concept of constitutional governance. In B.R. Kapur v. State F of T.N. and another22, the majority, while dealing with the issue of a writ of quo warranto, ruled that if a non-legislator could be sworn in as the Chief Minister under Article 164 of the Constitution, then he or she must satisfy the qualification of membership of a legislator as provided under Article 173. Recently, in Manoj Narula (supra), while interpreting G Article 75(1) of the Constitution, the Court observed:- “...In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms 22 (2001) 7 SCC 231 H

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A of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.” B [Emphasis is ours]

71. The provisions of the Constitution need not expressly stipulate the concepts of constitutionalism, constitutional governance or constitutional trust and morality, rather these norms and values are C inherent in various articles of the Constitution and sometimes are decipherable from the constitutional silences as has been held in Kalpana Mehta (supra).

72. Having discussed about the concept of constitutional governance, in the obtaining situation, we may allude to the conception of legitimate constitutional trust. In this regard, the speech of Dr. D Ambedkar reflects his concern:- “I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad E Constitution. What we will have to say is that Man was vile.”

73. In Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission23, the Court discussed the role of the members of Public Service Commissions and, treating them as constitutional trustees, observed that the credibility of the institution of Public Service Commission F is founded upon the faith of the common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the Members of the Commission act subjectively and not objectively. In Subhash Sharma and others and Firdauz Taleyarkhan v. Union of India and another24, in the context of G appointment of Judges, it has been stated that it “is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.”

23 (2000) 4 SCC 309 24 1990 (2) SCALE 836 H

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74. The framers of the Constitution also did recognize that the adoption of the Constitution would not ipso facto, like a magic wand, instill in the countrymen the values of constitutionalism. The founding fathers expected that constitutional functionaries who derive their authority from the Constitution shall always remain sincerely obeisant to the Constitution. The Court in Manoj Narula (supra), while highlighting the responsibility conferred on the Prime Minister under the Constitution, discussed the doctrine of constitutional trust and, in that context, reproduced what Edmund Burke had said centuries ago:- “All persons possessing any portion of power ought to be strongly and awfully impressed with the idea that they act in trust: and that they are to account for their conduct in that trust to the one great C Master, Author and Founder of Society.”

75. Thereafter, the Court went on to state:- “This Court, in re Art. 143, Constitution of India and Delhi Laws Act (1912)25, opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that accordingly, the Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. Though it was stated in the context of exercise of legislative power, yet the same has signification in the present context, for in a representative democracy, the doctrine of constitutional trust has to be envisaged in every high constitutional functionary.”

76. The Court further observed:- “... we shall proceed to deal with the doctrine of “constitutional trust”. The issue of constitutional trust arises in the context of the debate in the Constituent Assembly that had taken place pertaining to the recommendation for appointment of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr. G B.R. Ambedkar had replied: - “His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any H

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A Member of this House would like to differ from him on that proposition. But the whole question is this whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature and the public at large watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which may eminently be left to the good- sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.” And again:- “98. From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The use of the words “on the advice of the D Prime Minister” cannot be allowed to operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur case. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The Framers of the G Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.

H x x x x x

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100. Thus, while interpreting Article 75(1), definitely a A disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less.”

77. The Constitution of India, as stated earlier, 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. We shall elaborate the functional aspect of this principle when we scan the language employed under Article 239AA and other adjunct articles to decipher the true purpose of the said provision from the perspective of the workability of the Constitution in the sphere of governance. G. Collective responsibility:

78. In the Constituent Assembly Debates, Dr. B.R. Ambedkar G spoke thus on collective responsibility:- “I want to tell my friend Prof. K.T. Shah that his amendment would be absolutely fatal to the other principle which we want to

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A enact, namely collective responsibility. All Members of the House are very keen that the Cabinet should work on the basis of collective responsibility and all agree that is a very sound principle. But I do not know how many Members of the House realise what exactly is the machinery by which collective responsibility is enforced. Obviously, there cannot be a statutory remedy. Supposing a Minister B differed from other Members of the Cabinet and gave expression to his views which were opposed to the views of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility. Obviously, there cannot be a legal sanction C for collective responsibility. The only sanction through which collective responsibility can be enforced is through the Prime Minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One principle is that no person shall be nominated to the Cabinet except on the advice of the Prime Minister. Secondly, no person shall be retained as a Member D of the Cabinet if the Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or E any other way of giving effect to that principle. Supposing you have no Prime Minister; what would really happen? What would happen is this, that every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is no ad idem with a particular F Cabinet, to deal with each Minister separately singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King’s Friends both in the Cabinet as well as in G Parliament. That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet

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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 95 & ANOTHER [DIPAK MISRA, CJI]

and unless and until we create that office and endow that office A with statutory authority to nominate and dismiss Ministers there can be no collective responsibility.”

79. In State of Karnataka v. Union of India and another26, the Court, after reproducing a few passages from Sir Ivor Jennings and Mr. Joseph Chamberlain, observed:- B “...The following discussion on the subject in “Representative and Responsible Government” by A. H. Birch will be found useful in this connection:- “Ministerial accountability to Parliament has two aspects : the collective responsibility of Ministers for the policies of the C Government and their individual responsibility for the work of their departments. Both forms of responsibility are embodied in conventions which cannot be legally enforced. Both conventions were developed during the nineteenth century, and in both cases the practice was established before the doctrine was announced (page 131).”

80. In “Government and Law” by T. C. Hartley and J.A.G. Griffith27, the position in regard to the collective responsibility of Ministers to the Legislature is tersely stated as under:- “Ministers are said to be collectively responsible. This is often elevated by writers to the level of a ‘doctrine’ but is in truth little more than a political practice which is commonplace and inevitable. Ordinarily, Ministers form the governmental team, all being appointed by the Prime Minister from one political party. A Cabinet Minister deals with his own area of policy and does not normally have much to do with the area of other Ministers. Certainly no Cabinet Minister would be likely to make public statements which impinged on the work of another Minister’s department. On a few important issues, policy is determined by the Cabinet after discussion. Collective responsibility means that Cabinet decisions bind all Cabinet G Ministers, even if they argued in the opposite direction in Cabinet. But this is to say no more than a Cabinet Minister 26 (1978) 2 SCR 1 27 Hartley T.C. and Griffith J.A.G., Government and Law; an introduction to the working of the Constitution in Britain 2nd edition, 1981 London; Weidenfelf and Nicholson H

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A who finds himself in a minority must either accept the majority view or resign. The team must not be weakened by some of its members making clear in public that they disapprove of the Government’s policy. And obviously what is true for Cabinet Ministers is even more true for other Ministers. If they do not like what the team is doing, they must either keep quiet or leave.”

81. Speaking on collective responsibility, the Court in the case of R.K. Jain v. Union of India and others28 has opined that each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government. Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered. Despite persistence of disagreement, it is a decision, though some members like less than others. Both practical politics and good government require that those who like it less must still publicly support it. If such support is too great a strain on a Minister’s conscience or incompatible with his/ D her perceptions of commitment and he/she finds it difficult to support the decision, it would be open to him/her to resign. So, the price of acceptance of Cabinet office is the assumption of responsibility to support Cabinet decisions and, therefore, the burden of that responsibility is shared by all. E 82. In Common Cause, A Registered Society v. Union of India and others29, the Court, explaining the concept of collective responsibility, stated:- “30. The concept of “collective responsibility” is essentially a political concept. The country is governed by the party in power F on the basis of the policies adopted and laid down by it in the Cabinet Meeting. “Collecting Responsibility” has two meanings : The first meaning which can legitimately be ascribed to it is that all members of a Govt, are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a G different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.” 28