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

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.

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.

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.

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....”

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

table as extracted; see Source PDF

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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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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.

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

(1993) 3 SCR 802

29 H (1999) 6 SCC 667

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83. The principle of collective responsibility is of immense significance in the context of ‘aid and advice’ of the Council of Ministers. The submission of the learned counsel of the appellant is that when after due deliberation between the Chief Minister and the Council of Ministers a decision is taken, but the same is not given effect to because of interdiction of the Lieutenant Governor, the value of collective responsibility that eventually gets transformed into a Cabinet decision stands absolutely denuded. It is emphatically submitted that if the collective responsibility of the Council of Ministers is not given the expected weightage, there will be corrosion of the essential feature of representative government. H. Federal functionalism and democracy: C

84. Democracy is a form of government where the people rule. Aristotle viewed democracy as a form of government in which the supreme powers are in the hands of freemen and where people form a majority in an elected sovereign government to exercise some role in decision making. Thomas Jefferson defined democracy as a “government by its citizens in mass, acting directly and personally, according to rules established by the majority”. Abraham Lincoln defined democracy as “a government of the people, by the people, and for the people”. The Black’s Law Dictionary defines democracy as:- “That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people.”30 F

85. The Preamble to our Constitution, at the outset, proclaims that India is a sovereign democratic republic. The citizens of India are the sovereign and participate in the process of governance by exercising their virtuous right to vote under the system of universal adult suffrage. The citizens elect their representatives and send them to the Parliament G and State Legislatures for enacting laws and shaping policies at the Union and State level respectively which are reflective of the popular will of the collective.

30 Black’s Law Dictionary 6th Edition Pg.432 H

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86. The parliamentary form of democracy as envisaged by the Constitution has at its very base the power bestowed upon people to vote and make the legislature accountable for their functioning to the people. If the legislature fails to transform the popular will of the people into policies and laws, the people in a democracy like ours have the power to elect new representatives by exercise of their vote. The political equality makes people aware of their right in unison and there is a consistent endeavour to achieve the same.

87. In this context, we may turn to a passage from Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others31 wherein Krishna Iyer, J. quoted with approval the statement of Sir Winston Churchill which is to the following effect:- “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

88. Thus, democratic set up has its limbs firmly entrenched in the ability of the people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, yet it is a right that lies at the heart of democratic form of government. The right to vote is the most cherished value of democracy as it inculcates in the people a sense of belonging. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra32, the learned Judges, after referring to Mohinder Singh Gill’s case, stated that nothing can diminish the overwhelming importance of the cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen in choosing his representatives for governing the country.

89. The aforesaid situation warrants for reciprocative functionalism by thought, action and conduct. It requires the elected representatives to uphold the faith which the collective have reposed in them. Any undue interference amounts to betrayal of the faith of the collective in fulfilment of their aspirations of democratic self-governance. In Kesavananda 31 AIR 1978 SC 851 32 H AIR 1980 SC 1362

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Bharati (supra), it has been observed that the two basic postulates of democracy are faith in human reason and faith in human nature and that there is no higher faith than faith in democratic process. The Court further stated that democracy on adult suffrage is a great experiment with its roots in the faith in the common man. P. Jaganmohan Reddy, J., in his opinion, stated that the republican and democratic form of government is a part of the basic structure of the Constitution and the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India and the democratic character of our polity. Further, he stated that the framers of the Constitution adopted a sovereign democratic republic to secure for the citizens of India the objectives of justice, liberty and equality as set out in the Preamble to our Constitution.

90. Dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain33 ruled that ‘democracy’ as an essential feature of the Constitution is unassailable. The said principle has been reiterated in T.N. Seshan, CEC of India v. Union of India and others.34 D and Kuldip Nayar v. Union of India others.35. When it is conceived that democracy is a part of the basic structure of the Constitution, the essential value of democracy has to be condignly understood and that is why we have referred to certain precedents. The correctness or fallacy of the interpretation of Articles 239 to 239AB would depend upon our appreciation of democratic form of government in a mature body polity. E

91. The Court in Manoj Narula (supra), while delineating the concept of democracy, stated that democracy has been best defined as the Government of the People, by the People and for the People, which 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. Further, it is stated that democracy in India is a product of rule of law which aspires to establish an egalitarian social order and that it is not only a political philosophy but also an embodiment of constitutional philosophy. Democracy being a cherished constitutional value needs to be protected, preserved and sustained and for that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous. In the said

33 AIR 1975 SC 2299 34 (1995) 4 SCC 611 35 AIR 2006 SC 3127 H

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A case, the Court, while emphasizing that good governance is a sine qua non for a healthy democracy, stated thus:- “In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as primary one and any other interest secondary. The maxim Salus Populi B Suprema Lex, has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for Fundamental Rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability C to the collective at large. It also conveys that the decisions are taken by the decision making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not an Utopian conception or an abstraction. D It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependant upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation.” E [Emphasis supplied]

92. Now, we shall proceed to discuss the concept of federalism in the context of the Constitution of India. Encyclopedia Britannica defines federalism as:- “Federalism, mode of political organization that unites separate states or other polities within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity. Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties.”

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93. In common parlance, federalism is a type of governance in A which the political power is divided into various units. These units are the Centre/Union, States and Municipalities. Traditional jurists like Prof. K.C. Wheare lay emphasis on the independent functioning of different governing units and, thus, define federalism as a method of dividing powers so that the general/central and regional governments are each within a B sphere co-ordinate and independent. As per Prof. Wheare “the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is that Government federal?”36

94. However, modern jurists lay emphasis on the idea of C interdependence and define federalism as a form of government in which there is division of powers between one general/central and several regional authorities, each within its sphere interdependent and co-ordinate with each other.

95. The framers of our Constitution, during debates in the D Constituent Assembly on the draft Constitution, held elaborate discussions on whether to adopt a unitary system of government or federal system of government. During the Constituent Assembly debates, Shri T.T. Krishnamachari said:- “...Are we framing a unitary Constitution? Is this Constitution E centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back.” “I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political 36 Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33 H

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A order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are ‘must not be completely circumscribed’, which envisages some powers of the B State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere.”

96. In this context, Dr. B.R. Ambedkar, speaking on the floor of the Constituent Assembly, said:- “There is only one point of Constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution.” H

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97. The Court in In re: Under Article 143, Constitution of India, A (Special Reference No. 1 of 1964)37 observed that the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other. Further, the Court stated that the supremacy of the Constitution is fundamental to the existence of a federal B State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution, the Court stated, is protected by the authority of an independent judicial body to act as the interpreter of a C scheme of distribution of powers and, thus, the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours.

98. Gajendragadkar, C.J., in the said case, observed that our Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. In State of Karnataka v. Union of India (supra), Untwalia, J. (speaking for Justice Singhal, Justice Jaswant Singh and for himself) observed that the Constitution is not of a federal character where separate, independent and sovereign States could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of this reason that sometimes it has been characterized as quasi-federal in nature.

99. In Shamsher Singh (supra), this Court held that our founding fathers accepted the parliamentary system of quasi-federalism while rejecting the substance of Presidential style of Executive. Dr. Ambedkar stated on the floor of the Constituent Assembly that the Constitution is “both unitary as well as federal according to the requirement of time and circumstances”. He further stated that the Centre would work for the common good and for the general interest of the country as a whole while the States would work for the local interest. He also refuted the plea for exclusive autonomy of the States.

37 AIR 1965 SC 745 H

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100. In S.R. Bommai v. Union of India38, the Court considered the nature of federalism under the Constitution of India. A.M. Ahmadi, J. (as the learned Judge then was) observed:- “In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.”

101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh, J.) opined that the States are constitutionally recognised units and not mere convenient administrative divisions as both the Union and the States have sprung from the provisions of the Constitution. After quoting extensively from H.M. Seervai’s commentary - Constitutional Law of E India, he expressed thus:- “99. The above discussion thus shows that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule.

100. For our purpose, further it is really not necessary to determine whether, in spite of the provisions of the Constitution referred to above, our Constitution is federal, quasi-federal or unitary in nature. 38 (1994) 3 SCC 1 H

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It is not the theoretical label given to the Constitution but the practical implications of the provisions of the Constitution which are of importance to decide the question that arises in the present context, viz., whether the powers under Article 356(1) can be exercised by the President arbitrarily and unmindful of its consequences to the governance in the State concerned. So long as the States are not mere administrative units but in their own right constitutional potentates with the same paraphernalia as the Union, and with independent Legislature and the Executive constituted by the same process as the Union, whatever the bias in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labeled unitary or quasi-federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1).”

102. K. Ramaswami, J., in paragraphs 247 and 248 of his separate judgment, observed:- D “247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a E permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.

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A 248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.”

103. B.P. Jeevan Reddy, J., writing a separate opinion (for himself and on behalf of S.C. Agrawal, J.), concluded in paragraph 276 thus:- “276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even In USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures “Union and State relations under the Indian Constitution” (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible nor is it necessary for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis-a-vis the States...”

104. In ITC Ltd. v. Agricultural Produce Market Committee39, the Court observed that the Constitution of India deserves to be 39 (2002) 9 SCC 23 H

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interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves federalism while also upholding the central supremacy as contemplated by some of its articles.

105. In Kuldip Nayar (supra), the Court, while dealing with the question of state domicile for elections to the Rajya Sabha, opined that it is true that the federal principle is dominant in our Constitution and the said principle is one of its basic features but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. Some of the provisions that can be referred to in this context include the power of the Union to deal with extraordinary situations such as during emergency and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority; the power of the Parliament to provide for the creation and regulation of All India Services common to the Union and the States in case there is a resolution of the Council of States supported by not less than two-thirds majority; the existence of only one citizenship, namely, the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States.

106. From the foregoing discussion, it is clear as day that both the concepts, namely, democracy, i.e., rule by the people and federalism are firmly imbibed in our constitutional ethos. Whatever be the nature of federalism present in the Indian Constitution, whether absolutely federal or quasi-federal, the fact of the matter is that federalism is a part of the basic structure of our Constitution as every State is a constituent unit which has an exclusive Legislature and Executive elected and constituted by the same process as in the case of the Union Government. The resultant effect is that one can perceive the distinct aim to preserve and protect the unity and the territorial integrity of India. This is a special feature of our constitutional federalism.

107. It is self-evident that there is a meaningful orchestration between the concepts of federalism and nature of democracy present in H

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A our Constitution. It would not be a fallacious metaphor if we say that just as in a fusion reaction two or more atomic nuclei come together to form a bigger and heavier nucleus, the founding fathers of our Constitution envisaged a fusion of federalism and democracy in the quest for achieving an egalitarian social order, a classical unity in a contemporaneous diversity. The vision of diversity in unity and the perception of plurality in B eventual cohesiveness is embedded in the final outcome of the desire to achieve the accomplished goal through constitutional process. The meeting of the diversity in unity without losing identity is a remarkable synthesis that the Constitution conceives without even permitting the slightest contrivance or adroitness. C I. Collaborative federalism:

108. The Constituent Assembly, while devising the federal character of our Constitution, could have never envisaged that the Union Government and the State Governments would work in tangent. It could never have been the Constituent Assembly’s intention that under the garb of quasi-federal tone of our Constitution, the Union Government would affect the interest of the States. Similarly, the States under our constitutional scheme were not carved as separate islands each having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put a step to invite anarchism. Rather, the vision enshrined in the Preamble to our Constitution, i.e., to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike. The ultimate aim is to have a holistic structure.

109. The aforesaid idea, in turn, calls for coordination amongst the Union and the State Governments. The Union and the States need to embrace a collaborative/cooperative federal architecture for achieving this coordination.

110. Corwin, an eminent thinker, in the context of the United States, coined the term ‘Collaborative Federalism’ and defined it as:- G “...the National Government and the States are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government.”40 40 Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950) H

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111. The U.S. Supreme Court in Carmichael v. S. Coal & Coke A Co.41 propounded that a State Unemployment Statute had not been coerced by the adoption of the Social Security Act and the United States and the State of Alabama are not alien governments but they coexist within the same territory. Unemployment within it is their common concern. The U.S. Supreme Court further observed that the two statutes embody a cooperative legislative effort by the State and National governments for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other and the Constitution does not prohibit such cooperation.

112. Geoffrey Sawer proposes that cooperative federalism is evidenced by the following characteristics: ‘each of the parties to the arrangement has a reasonable degree of autonomy, can bargain about the terms of cooperation, and at least if driven too hard, decline to cooperate’42.

113. Later, Cameron and Simeon described “collaborative federalism,” as:- D

“[T]he process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the governments and the territories acting collectively.”43 E

Although the said statement of law may not be strictly applicable, yet the need for co-operation to sustain the federal structure has its own importance as an idea.

114. Thus, the Union and the State Governments should always work in harmony avoiding constitutional discord. In such a collaboration, the national vision as set out in the Preamble to our Constitution gets realized. The methods and approach for the governments of the Union and the States may sometimes be different but the ultimate goal and objective always remain the same and the governments at different levels should not lose sight of the ultimate objective. This constitutional objective as enshrined in the Constitution should be the guiding star to them to 41 301 U.S. 495, 525 - 26 (1937) 42 Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1. 43 Cameron, D. and Simeon, R. 2002. Intergovernmental relations in Canada: The emergence of Collaborative federalism. Publius, 32(2):49-72 H

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A move on the path of harmonious co-existence and interdependence. They are the basic tenets of collaborative federalism to sustain the strength of constitutional functionalism in a Welfare State.

115. In a Welfare State, there is a great necessity of collaborative federalism. Martin Painter, a leading Australian proponent of collaborative federalism, lays more stress on negotiations for achieving common goals amongst different levels of governments and, thus, says:- “The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.” 44

116. In the Australian context, Prof. Nicholas Aroney in his book45 has said:- “Rather than displaying a strictly defined distribution of responsibility between two or more “co-ordinate” levels of government, federal systems tend in practice to resemble something more like a “marble cake”, in which governmental functions are shared between various governmental actors within the context of an ever-shifting set of parameters shaped by processes of negotiation, compromise and, at times, cooperation.”

117. Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their 44 Martin Painter, Collaborative federalism: Economic reform in Australia in the 1990s. 45 Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution, 2009 H

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spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. We may hasten to add that this idea of collaborative federalism would be more clear when we understand the very essence of the special status of NCT of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution.

118. The idea of cooperative/collaborative federalism is also not new to India. M.P. Jain in his book46, in a different manner, sets forth the perception thus:- “Though the Constitution provides adequate powers to the Centre to fulfil its role, yet, in actual practice, the Centre can maintain its dynamism and initiative not through a show of its powers — which should be exercised only as a last resort in a demonstrable necessity — but on the cooperation of the States secured through the process of discussion, persuasion and compromises. All governments have to appreciate the essential point that they are not independent but interdependent, that they should act not at cross- purposes but in union for the maximisation of the common good.”

119. In State of Rajasthan and others v. Union of India47, the Court took cognizance of the concept of cooperative federalism as perceived by G. Austin and A.H Birch when it observed:- “Mr. Austin thought that our system, if it could be called federal, could be described as “cooperative federalism.” This term was used by another author, Mr. A.H. Birch (see: Federalism, Finance and Social Legislation in Canada, Australia and the United States p. 305), to describe a system in which: “...the practice of administrative cooperation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments and the fact that the general governments, by the use of 46 M.P. Jain, Some aspects of Indian federalism, 1968 47 (1978) 1 SCR 1 H

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A conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions”...”

120. We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities B referred to hereinabove pertain to Union of India and State Governments in the constitutional sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in Article 239AA and other articles. J. Pragmatic federalism:

121. In this context, we may also deal with an ancillary issue, namely, pragmatic federalism. To appreciate the said concept, we are required to analyse the nature of federalism that is conceived under the Constitution. Be it noted, the essential characteristics of federalism like duality of governments, distribution of powers between the Union and the State Governments, supremacy of the Constitution, existence of a written Constitution and most importantly, authority of the Courts as final interpreters of the Constitution are all present under our constitutional scheme. But at the same time, the Constitution has certain features which can very well be perceived as deviations from the federal character. We may, in brief, indicate some of these features to underscore the fact that though our Constitution broadly has a federal character, yet it still has certain striking unitary features too. Under Article 3 of the Constitution, the Parliament can alter or change the areas, boundaries or names of the States. During emergency, the Union Parliament is empowered to make laws in relation to matters under the State List, F give directions to the States and empower Union officers to execute matters in the State List. That apart, in case of inconsistency between the Union and the State laws, the Union Law shall prevail. Additionally, a Governor of a State is empowered to reserve the bill passed by the State Legislature for consideration of the President and the President is not bound to give his assent to such a bill. Further, a State Legislature G can be dissolved and President’s rule can be imposed in a State either on the report of the Governor or otherwise when there is failure of the constitutional machinery in the State.

122. We have referred to the above aspects to lay stress on the ‘quasi-federal’ nature of our Constitution which has been so held by the H

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Court in many a decision. We may state that these theoretical concepts are to be viewed from the practical perspective. In S.R. Bommai’s case, while interpreting Article 356, the Court observed:- “That is why the Constitution of India is differently described, more appropriately as ‘quasi-federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.” C

123. Thus, the need is to understand the thrust and implication of a provision. To put it differently, the acceptance of ‘pragmatic federalism’ is the need of the day. One aspect needs to be clarified. The acceptance of the said principle should not be viewed as a simplistic phenomenon entrenched in innocence. On the contrary, it would require disciplined wisdom on the part of those who are required to make it meaningful. D And, the meaning, in essentiality, shall rest on pragmatic orientation.

124. The expression ‘pragmatic federalism’ in the Indian context has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein he observes:- E “It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of Governmental powers of State and Central Governments, is overlaid by strongly ‘unitary’ features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government F the executive power of appointing certain Constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Government in emergency situations, vide Articles 352 to 360 of the Constitution.” G

125. The concept of pragmatic federalism is self explanatory. It is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability. H

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126. It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve with the changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind. B K. Concept of federal balance:

127. Another complementary concept in this context, we think, is “federal balance”. Federalism in contradistinction to centralism is a concept which envisions a form of Government where there is a C distribution of powers between the States and the Centre. It has been advocated by the patrons of the federal theory that the States must enjoy freedom and independence as much as possible and at the very least be on an equal footing with the Centre. The Indian Constitution prescribes a federal structure which provides for division of powers between the States and the Centre, but with a slight tilt towards the D Centre. This unique quasi-federal structure is inherent in the various provisions of the Constitution as it was felt by the framers of our Constitution keeping in mind the needs of independent India and that is why, the residuary powers in most, if not all, matters have remained with the Centre. This, however, is not unconditional as the Constitution has E provided for a federal balance between the powers of the Centre and the States so that there is no unwarranted or uncalled for interference by the Centre which would entail encroachment by the Centre into the powers of the States. The need is for federal balance which requires mutual respect and deference to actualize the workability of a constitutional provision. F

128. Sawer’s ‘federal principles’ reiterate this concept of federal balance when he states:- “power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions G are intended to be as free as possible to pursue their own local interest.”

129. The interest of the States inherent in a federal form of government gains more importance in a democratic form of government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular State/region to the H

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governance of the Union, that too, with respect to matters which can be A best legislated at the State level goes against the very basic tenet of a democracy. The principle of federal balance which is entrenched in our Constitution has been reiterated on several instances holding that the Centre and the States must act within their own spheres. In In re: Under Article 143, Constitution of India, (Special Reference No. 1 B of 1964) (supra), the Constitution Bench observed:- “...the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other’. The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers.” [Underlining is ours]

130. In UCO Bank v. Dipak Debbarma48, the Court has made several observations on the federal character of our Constitution and the need to maintain the federal balance which has been envisaged in our Constitution to prevent any usurpation of power either by the Centre or the States. We reproduce the same with profit:- “The federal structure under the constitutional scheme can also work to nullify an incidental encroachment made by the F Parliamentary legislation on a subject of a State legislation where the dominant legislation is the State legislation. An attempt to keep the aforesaid constitutional balance intact and give a limited operation to the doctrine of federal supremacy can be discerned in the concurring judgment ofRuma Pal, J. inITC Ltd. vs. Agricultural Produce Market Committee and Ors., wherein G after quoting the observations of this Court in the case of S.R. Bomai v. Union of India (para 276), the learned Judge has gone to observe as follows (para 94 of the report):

48 (2017) 2 SCC 585 H

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A “276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which B has the effect of or tends to have the effect of whittling down the powers reserved to the States.””

131. Thus, the role of the Court in ensuring the federal balance, as mandated by the Constitution, assumes great importance. It is so as the Court is the final arbiter and defender of the Constitution. C L. Interpretation of the Constitution:

132. We have already said that both the parties have projected their view in extremes. The issue deserves to be adjudged regard being had to the language employed in the various articles in Chapter VIII, the context and various constitutional concepts. If the construction sought to be placed by the appellant is accepted, such an acceptation would confer a status on NCT of Delhi which the Parliament in exercise of its constituent power has not conceived. The respondents, per contra, highlight that by the constitutional amendment, introduction of the 1991 Act and the Rules of Business, the Lieutenant Governor functions as the administrator in the truest sense as the contemporaneous documents leading to the amendment would show. They would submit that though Delhi has been conferred a special status, yet that does not bring any new incarnation. The submission, as we perceive, destroys the fundamental marrows of the conception, namely, special status. It, in fact, adorns the Lieutenant Governor with certain attributes and seeks to convey that NCT of Delhi remains where it was. The approach in extremes is to be adjudged and the adjudication, as it seems to us, would depend upon the concepts we have already adumbrated and further we have to carefully analyse the principles of the interpretation of the Constitution. G

133. The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the H

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citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document.

134. In this regard, we think it appropriate to have a bird’s eye view as to how the American jurists and academicians have contextually perceived the science of constitutional interpretation. The most important aspect of modern constitutional theory is its interpretation. Constitutional C law is a fundamental law of governance of a politically organised society and it provides for an independent judicial system which has the onerous responsibility of decisional process in the sphere of application of the constitutional norms. The resultant consequences do have a vital impact on the well-being of the people. The principles of constitutional interpretation, thus, occupy a prime place in the method of adjudication. In bringing about constitutional order through interpretation, the judiciary is often confronted with two propositions - whether the provisions of the Constitution should be interpreted as it was understood at the time of framing of the Constitution unmindful of the circumstances at the time when it was subsequently interpreted or whether the constitutional provisions should be interpreted in the light of contemporaneous needs, experiences and knowledge. In other words, should it be historical interpretation or contemporaneous interpretation.49 The theory of historical perspective found its votary in Chief Justice Taney who categorically stated in Dred Scott v Sanford50 that as long as the F Constitution continues to exist in the present form, it speaks not only in the same words but also with the same meaning and intent with which it spoke when it came from the hands of the framers. Similar observations have been made by Justice Sutherland51. Propagating a different angle,

49 G Bodenheimer, Edgar, Jurispurudence, (Universal Law Publishing Co. Pvt. Ltd, 50 60 U.S. (19 How.) 393 (1857) 51 Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) see West Coast Hotel Co., v Parrish, 300 US 379 (1937) where he observed, the meaning of the Constitution does not change with the ebb and flow of economic events that (if) the words of the Constitution mean today what they did not mean when written is to rob that instrument of the essential element... H

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A Chief Justice Marshall in McCulloch v Maryland52 has observed that the American Constitution is intended to serve for ages to come and it should be adopted to various crises of human affairs. Justice Hughes in State v. Superior Court53 observed that the constitutional provisions should be interpreted to meet and cover the changing conditions of social life and economic life. Justice Holmes observed that the meaning of the B constitutional terms is to be gleaned from their origin and the line of their growth.54 Cardozo once stated:- “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”55 C It would be interesting to note that Justice Brandeis tried to draw a distinction between interpretation and application of constitutional provisions56. The Constitution makers in their wisdom must have reasonably envisaged the future needs and attempted at durable framework of the Constitution. They must not have made the Constitution so rigid as to affect the future. There is a difference between modification D and subversion of the provisions of the Constitution through interpretation. The view is that there is sufficient elasticity but fundamental changes are not envisaged by interpretation. Thus, there is a possibility of reading into the provisions certain regulations or amplifications which are not directly dealt with. There is yet another angle that the libertarian’s E absolutism principle never allows for restrictions to be read into the liberties which are not already mentioned in the Constitution.57

135. Our Constitution, to repeat at the cost of repetition, is an organic and living document. It contains words that potentially do have many a concept. It is evident from the following passage from R.C. F Poudyal v. Union of India and others58:- “In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts 52 17 US (4Wheat) 316 (1819) G 53 State v. Superior Court (1944) at 547 54 Gompers v. US 233 (1914) 55 Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921 56 Burnett v Coronado Oil and Gas Co., 285 US (1932) 57 The activist Libertarians like Justice Black and Douglas never allowed reading such restrictions. See American Communication Association v Douds 339 US (1950) and dissenting in Poulos v New Hamshire, 345 US(1953) H 58 AIR 1993 SC 1804

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themselves is vital and the constitutional issues are not solved by A a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details””.”

136. Professor Richard H. Fallon has, in his celebrated work59, B identified five different strands of interpretative considerations which shall be taken into account by judges while interpreting the Constitution. They read thus:- “Arguments from the plain, necessary, or meaning of the constitutional text; arguments about the intent of the framers; arguments of constitutional theory that reason from the hypothesized purposes that best explain either particular constitutional provisions or the constitutional text as a whole; arguments based on judicial precedent; and value arguments that assert claims about justice and social policy.”60

137. Comparing the task of interpretation of statute to that of interpretation of musical notes, Judge Hand in the case of Helvering v. Gregory61 stated:- “The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.” E

138. Jerome N. Frank62, highlighting the corresponding duty of the public in allowing discretion to the Judges, has observed:- “a “wise composer” expects a performer to transcend literal meaning in interpreting his score; a wise public should allow a judge to do the same.” F

139. The room for discretion while interpreting constitutional provisions allows freedom to the Judges to come up with a formula which is in consonance with the constitutional precepts while simultaneously resolving the conflict in issue. The following observations made in S.R. Bommai’s case,throw light on the aforesaid perception:- G 59 Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional Interpreta- tion”, Harvard Law Review Association, 1987 60 100 HARV. L. REV. 1189, 1189-90 (1987).10 61 69 F. 2d 809, 810-II (1934) 62 Jerome N. Frank, “Words and Music: Some remarks on Statutory Interpretation,” Columbia Law Review 47 (1947): 1259-1367 H

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A “Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.”

140. It is imperative that judges must remain alive to the idea that the Constitution was never intended to be a rigid and inflexible document and the concepts contained therein are to evolve over time as per the needs and demands of the situation. Although the rules of statutory interpretation can serve as a guide, yet the constitutional courts should not, for the sake of strict compliance to these principles, forget that when the controversy in question arises out of a constitutional provision, their primary responsibility is to work out a solution.

141. In Supreme Court Advocates-on-Record Association D (supra), this Court, acknowledging the sui generis nature of the Constitution, observed thus:- “The constitutional provisions cannot be cut down by technical construction rather it has to be given liberal and meaningful interpretation. The ordinary rules and presumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the provisions of the Constitution. In Minister of Home Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian Constitution, Lord Wilberforce reiterated that a Constitution is a document “sui generis, calling for principles of interpretation of its own, suitable to its character””

142. Dickson, J., in Hunter v. Southam Inc63, rendering the judgment of the Supreme Court of Canada, expounded the principle pertaining to constitutional interpretation thus:- “The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a H 63

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