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

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A the House or to the country must become blatantly obligatory. We have no doubt that de Smith’s statement regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely B controversial would nevertheless- be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course — a highly improbable contingency — or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the C Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to. prudence would suggest the giving of assent.” [Emphasis supplied]

186Copy pinpoint186. That apart, A.N. Ray, C.J., in Shamsher Singh (supra), has stated thus:- “Article 163(1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of Was functions, except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that ought or ought not to have acted in his discretion. Extracting the words “in his discretion” in relation to exercise of functions, the appellants contend that the Council of Ministers may aid and advise the Governor in Executive functions but the Governor individually and personally in his discretion will exercise the constitutional functions of appointment and removal of officers in State Judicial Service and other State Services. It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article H

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163 that the aid and advice is except in so far as he is required to A exercise his functions or any of them in his discretion. It is necessary to find out as to why the words, in his discretion’ are used in relation to some powers of the Governor and not in the case of the President. Article 143 in the Draft Constitution became Article 163 in the Constitution. The draft constitution in Article B 144(6) said that the functions of the Governor under Article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the Article shall be exercised by him in his discretion. Draft Article 153(3) was totally omitted when it became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor “may in his discretion return the Bill together with a message requesting that the House will reconsider the Bill”. Those words that “the Governor may in his discretion” were omitted when it became Article 200. The Governor under Article 200 may return the Bill with a message requesting that the House will reconsider the Bill. Draft Article 188 dealt with provisions in case of grave emergencies, clauses (1) and (4) in Draft Article 188 used to words “in his discretion in relation to exercise of power by the Governor. Draft Article 188 E was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public Service Commission used the expression “in his discretion” in relation to exercise of power by the Governor in regard to appointment of the Chairman and Members and making of regulation. The words “in his discretion” F in relation to exercise of power by the Governor were omitted when it became Article 316. In Paragraph 15 (3) of the Sixth Schedule dealing with annulment or suspension of acts or suspension of acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the Paragraph shall be exercised by him in his discretion. Sub-paragraph 3 of G Paragraph 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution. It is, therefore, understood in the background of these illustrative draft articles as to why Article 143 in the Draft Constitution which H

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A became Article 163 in our Constitution used the expression “in his discretion” in regard to some powers of the Governor.” [Emphasis supplied]

187Copy pinpoint187. Thereafter, A.N. Ray, C.J. discussed the provisions of the Constitution as well as a couple of paragraphs of the Sixth Schedule B wherein the words “in his discretion” are used in relation to certain powers of the Governor to highlight the fact that a Governor can act in his discretion only when the provisions of the Constitution so permit.

188Copy pinpoint188. In this context, we may refer with profit to the authority in Devji Vallabhbhai Tandel and others v. Administrator of Goa, C Damanand Diu and another82.In the said case, the issue that arose for consideration was whether the role and functions of the Administrator stipulated under the Union Territories Act, 1963 is similar to those of a Governor of a State and as such, whether the Administrator has to act on the “aid and advice” of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say:- “It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would not according to the advice of the G Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union territory would be bound by the view taken H

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by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers. The second limb of the proviso to Section 44(1) enables the Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can refer the matter to the President but during the interregnum where the matter is in his opinion so urgent that it is necessary for him to take immediate action, he has the power to take such action or to give such directions in the matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor nor the President enjoys any such power. C This basic functional difference in the powers and position enjoyed by the Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision in Shamsher Singh’s case that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own.” [Emphasis supplied]

189Copy pinpoint189. Be it noted, Devji ValabhbhaiTandel (supra) depicts a pre Sixty-ninth amendment scenario. On that foundation, it is submitted by the learned counsel for the appellant to buttress the submission that after the amendment, the status of NCT of Delhi is that of State and the role of the Lieutenant Governor is equivalent to that of the Governor of State who is bound by the aid and advice of the Council of Ministers.

190Copy pinpoint190. Now, let us allude to the post Sixty-ninth amendment nine- Judge Bench decision in New Delhi Municipal Corporation (supra) F wherein B.P. Jeevan Reddy, J., speaking for the majority after taking note of the rivalised submissions pertaining to “Union Taxation”, referred to the decisions in Sea Customs Act, Re83 and came to hold thus:- “152. ... In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital G Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA) but even here the legislature so created was not a full- fledged legislature nor did it have the effect of — assuming that it could — lift the National Capital Territory of Delhi from Union Territory category to the category of States within the meaning of H

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A Chapter I of Part XI of the Constitution. All this necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament — or a legislative body created by it. Parliament can make any law in respect of the said territories — subject, of course, to constitutional limitations other than those specified in Chapter B I of Part XI of the Constitution.” And again:- “155. ... it is necessary to remember that all the Union Territories are not situated alike. There are certain Union territories (i.e., C Andaman and Nicobar Islands and Chandigarh) for which there can be no legislature at all-as on today. There is a second category of Union Territories covered by Article 239-A (which applied to Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry - now, of course, only Pondicherry survives in this category, the rest having acquired Statehood) which have D legislatures by courtesy of Parliament. The Parliament can, by law, provide for Constitution of legislatures for these States and confer upon these legislatures such powers, as it may think appropriate. The Parliament had created legislatures for these Union territories under the “The Government of India Territories E Act, 1963”, empowering them to make laws with respect to matters in List-II and List-Ill, but subject to its over-riding power. The third category is Delhi. It had no legislature with effect from November 1, 1956 until one has been created under and by virtue of the Constitution Sixty-Ninth (Amendment) Act, 1991 which introduced Article 239-AA. We have already dealt with the special features of Article 239-AA and need not repeat it. Indeed, a reference to Article 239-B read with Clause (8) of Article 239- AA shows how the Union Territory of Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part-VI of the Constitution. In sum, it is also a territory governed by Clause (4) of Article 246. ...” [Emphasis supplied]

191Copy pinpoint191. Thus, New Delhi Municipal Corporation (supra) makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as the NCT of Delhi is concerned, H

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it is not a State within the meaning of Article 246 or Part- VI of the A Constitution. Though the NCT of Delhi partakes a unique position after the Sixty- Ninth Amendment, yet in sum and substance, it remains a Union Territory which is governed by Article 246(4) of the Constitution and to which the Parliament, in the exercise of its constituent power, has given the appellation of the ‘National Capital Territory of Delhi’. B

192Copy pinpoint192. For ascertaining the binding nature of aid and advice upon the President and the Governor on one hand and upon the Lieutenant Governor of Delhi on the other, let us conduct a comparative analysis of the language employed in Articles 74 and 163 on one hand and Article 239AA on the other. For this purpose, we may reproduce Articles 74 and 163 which read thus:- C

“74. Council of Ministers to aid and advise President (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: D Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

163. Council of Ministers to aid and advise Governor’s (1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the G Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.” H

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193Copy pinpoint193. It is vivid from Article 74 that the President is always bound by the aid and advice of the Union Council of Ministers except a few well known situations which are guided by constitutional conventions. The Constitution, however, does not lay down any express provision which allows the President to act as per his discretion.

194Copy pinpoint194. The Governor of a State, as per Article 163, is bound by the aid and advice of his Council of Ministers in the exercise of his functions except where he is, by or under the Constitution, required to exercise his functions or any of them in his discretion. Thus, the Governor may act in his discretion only if he is so permitted by an express provision of the Constitution. C

195Copy pinpoint195. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in Clause (4) of Article 239AA which gives the power to the Lieutenant D Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4).

196Copy pinpoint196. In the light of the aforesaid analysis and the ruling of the nine-Judge Bench in New Delhi Municipal Corporation (supra), it is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor. R. Executive power of the Council of Ministers of Delhi:

197Copy pinpoint197. We may note here that there is a serious contest with regard to the appreciation and interpretation of Article 239AA and Chapter VIII where it occurs. The learned counsel for the appellant would submit that the Government of NCT of Delhi has been conferred the executive power that co-exists with its legislative power and the role of the Lieutenant Governor is controlled by the phrase ‘aid and advice’ of the Council of Ministers. The learned counsel for the respondents would H

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submit with equal force that the Lieutenant Governor functions as the administrator of NCT of Delhi and the constitutional amendment has not diminished his administrative authority.

198Copy pinpoint198. Analysing the provision, it is submitted by Dr. Dhawan and other senior counsel that the Government of Delhi is empowered under the Constitution to aid and advise the Lieutenant Governor in the exercise of its functions in relation to matters in respect of which the Delhi Legislative Assembly has the legislative power to make laws and the said aid and advice is binding on the Lieutenant Governor. Commenting on the proviso, it is earnestly canvassed that the words ‘difference on any matter’ has to be restricted to the field of any legislation or, at best, the difference in relation to the three excepted matters. For the said argument, inspiration has been drawn from Articles 73 and 163 of the Constitution. Elaborating the argument, it is contended that the reference of the matter to the President is made where there is doubt as to whether the aid and advice touches the realm of the excepted entries as stipulated under Article 239AA(3)(a) and nothing beyond. To buttress the point, heavy reliance has been laid on Ram Jawaya Kapur (supra) wherein the Court, while interpreting the provisions of Article 162 of the Constitution and delineating on the issue of the extent of the executive powers of the State, observed:- “7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down : “Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws : Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, H

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A the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.” Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh B Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution...” [Underlining is ours]

199Copy pinpoint199. Drawing an analogy while interpreting the provisions of Article 239AA(3)(a) and Article 239AA(4) would reveal that the executive power of the Government of NCT of Delhi is conterminous with the H

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legislative power of the Delhi Legislative Assembly which is envisaged A in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. B

200Copy pinpoint200. The legislative power conferred upon the Delhi Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words ‘Part C States’ were substituted by the C words ‘Union Territories’, the word ‘State’ in the proviso to Article 73 cannot be read to mean Union Territory as such an interpretation would render the scheme and purpose of Part VIII (Union Territories) of the Constitution infructuous. S. Essence of Article 239AA of the Constitution: D

201Copy pinpoint201. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239AA. Both the Statement of Objects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as E an enacting history and corpus of public knowledge relative to the introduction of Articles 239AA and 239AB and would be handy external aids for construing Article 239AA and unearthing the real intention of the Parliament while exercising its constituent power.

202Copy pinpoint202. At the outset, we must declare that the insertion of Articles F 239AA and 239AB which specifically pertain to NCT of Delhi is reflective of the intention of the Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239A is singularly applicable as on date. The same has been authoritatively held by the majority judgment in the G New Delhi Municipal Corporation case to the effect that the NCT of Delhi is a class by itself.

203Copy pinpoint203. The Legislative Assembly, Council of Ministers and the Westminster style cabinet system of government brought by the Sixty- ninth amendment highlight the uniqueness attributed to Delhi with the H

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A aim that the residents of Delhi have a larger say in how Delhi is to be governed. The real purpose behind the Constitution (Sixty-ninth Amendment) Act, 1991, as we perceive, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution. For B paving the way to realize this real purpose, it is necessary that we give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense.

204Copy pinpoint204. The exercise of establishing a democratic and representative C form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi.

205Copy pinpoint205. Further, the Statement of Objects and Reasons for the Constitution (Seventy-fourth Amendment) Bill, 1991 which was enacted as the Constitution (Sixty-ninth Amendment) Act, 1991 also lends support to our view as it clearly stipulates that in order to confer a special status upon the National Capital, arrangements should be incorporated in the E Constitution itself.

206Copy pinpoint206. We may presently carefully peruse each clause of Article 239AA for construing the meaning. A cursory reading of clause (1) of Article 239AA shows that on 1st February, 1992, the Union Territory of Delhi was renamed as the National Capital Territory of Delhi and it was to be administered by a Lieutenant Governor from the date of coming into force of the Sixty-ninth Amendment Act.

207Copy pinpoint207. Sub-clause (a) of clause (2) specifies that the National Capital Territory of Delhi shall have a Legislative Assembly, the seats of which shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory of Delhi. Sub--clause (b) of clause (2) stipulates that the total number of seats in the Legislative Assembly of the National Capital Territory of Delhi so established under sub-clause (a), the number of seats reserved for Scheduled Castes in the said Legislative Assembly, the division of the National Capital Territory

H

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of Delhi into territorial constituencies (including the basis for such division) A and all other matters relating to the functioning of the said Legislative Assembly shall be regulated by law made by Parliament. Thereafter, sub-clause (c) of clause (2) simply provides that the provisions of Articles 324 to 327 and 329 which pertain to elections and fall under Part XV of the Constitution shall also apply to the National Capital Territory of Delhi, B its Legislative Assembly and the members thereof in the same manner as the said provisions apply to the States. Further, sub--clause (c) provides that the phrase “appropriate legislature” in Articles 326 and 329 shall, in the context of the National Capital Territory of Delhi, mean the Parliament.

208Copy pinpoint208. We must note here the stark difference in the language of Article 239A clause (1) and that of Article 239AA clause (2). Article C 239A clause (1) uses the word ‘may’ which makes it a mere directory provision with no obligatory force. Article 239A gives discretion to the Parliament to create by law for the Union Territory of Puducherry a Council of Ministers and/or a body which may either be wholly elected or partly elected and partly nominated to perform the functions of a D Legislature for the Union Territory of Puducherry.

209Copy pinpoint209. On the other hand, Article 239AA clause (2), by using the word ‘shall’, makes it mandatory for the Parliament to create by law a Legislative Assembly for the National Capital Territory of Delhi. Further, sub-clause (a) of clause (2) declares very categorically that the members of the Legislative Assembly of the National Capital Territory of Delhi shall be chosen by direct election from the territorial constituencies in the National Capital Territory of Delhi. Unlike Article 239A clause (1) wherein the body created by the Parliament by law to perform the functions of a Legislature for the Union Territory of Puducherry may either be wholly elected or partly elected and partly nominated, there is no such provision in the context of the Legislative Assembly of the NCT of Delhi as per which members can be nominated to the Legislative Assembly. This was a deliberate design by the Parliament.

210Copy pinpoint210. We have highlighted this difference to underscore and emphasize the intention of the Parliament, while inserting Article 239AA G in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of the NCT of Delhi and to treat the government of the NCT of Delhi as a representative form of government. H

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211Copy pinpoint211. The Legislative Assembly is wholly comprised of elected representatives who are chosen by direct elections and are sent to Delhi’s Legislative Assembly by the voters of Delhi. None of the members of Delhi’s Legislative Assembly are nominated. The elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions B effectively and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man.

212Copy pinpoint212. Sub-clause (a) of clause (3) of Article 239AA establishes the power of the Delhi Legislative Assembly to enact laws for the NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent list except in so far as matters with respect to and which relate to entries 1, 2 and 18 of the State List.

213Copy pinpoint213. Sub-clause (b) of clause (3) lays down that the Parliament has the powers to make laws with respect to any matter for a Union Territory including the NCT of Delhi or any part thereof and sub-clause (a) shall not derogate such powers of the Parliament. Sub-clause (c) of clause (3) gives the Parliament the overriding power to the effect that E where any provision of any law made by the Legislative Assembly of Delhi is repugnant to any provision of law made by the Parliament, then the law made by the Parliament shall prevail and the law made by the Delhi Legislative Assembly shall be void to the extent of repugnancy.

214Copy pinpoint214. Thus, it is evident from clause (3) of Article 239AA that the F Parliament has the power to make laws for the NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239AA(3)(a). G

215Copy pinpoint215. Now, it is essential to analyse clause (4) of Article 239AA, the most important provision for determination of the controversy at hand. Clause (4) stipulates a Westminster style cabinet system of government for the NCT of Delhi where there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the H

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Lieutenant Governor in the exercise of his functions in relation to maters A with respect to which the Delhi Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is required to act in his discretion.

216Copy pinpoint216. The proviso to clause (4) stipulates that in case of a difference of opinion on any matter between the Lieutenant Governor and his B Ministers, the Lieutenant Governor shall refer it to the President for a binding decision. Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor, is so urgent that it is necessary for him to take immediate action, the proviso makes him competent to take such action and issue such directions as he deems necessary. C

217Copy pinpoint217. A conjoint reading of Article 239AA (3) (a) and Article 239AA(4) reveals that the executive power of the Government of NCT of Delhi is co-extensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the D Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power.

218Copy pinpoint218. Article 239AA(3)(a) reserves the Parliament’s legislative power on all matters in the State list and Concurrent list, but clause (4) E nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the F legislation has to be given effect to by the executive for which the Government of Delhi has to have co-extensive executive powers. Such a view is in consonance with the observation in the case of Ram Jawaya Kapur (supra) which has been discussed elaborately in the earlier part of the judgment. G

219Copy pinpoint219. Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is co-extensive with the Parliament’s legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has H

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A overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239 AA (3) (a). Such an interpretation would thwart any B attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution.

220Copy pinpoint220. Another important aspect is the interpretation of the phrase C ‘aid and advise’ in Article 239AA(4). While so interpreting, the authorities in Shamsher Singh (supra) and Devji Ballabhbhai Tandel (supra) have to be kept in mind. Krishna Iyer, J., in Shamsher Singh (supra), has categorically held that the President and the Governor, being custodians of all executive powers, shall act only upon and in accordance with the aid and advice of their Ministers save in a few well known exceptional situations. Devji Ballabhbhai Tandel (supra), on the other hand, has observed that there is a functional difference in the powers and the position enjoyed by the President and Governor on one hand and the Administrator on the other hand. It has also been observed that it is not possible to hold to the view laid down in Shamsher Singh (supra) in the context of Governor and President to mean that the Administrator is also purely a constitutional functionary who is bound to act on the ‘aid and advice’ of the Council of Ministers and cannot act on his own.

221Copy pinpoint221. It is necessary to note with immediacy that Devji Ballabhbhai Tandel (supra) represents a pre¯Sixty-ninth Amendment view and that too in the context of a Union Territory which does not have a unique position as the NCT of Delhi does. Presently, the scheme of Article 239AA(4) is different. It requires the Lieutenant Governor to act as per the ‘aid and advice’ of the Council of Ministers with respect to all matters for which the Legislative Assembly of Delhi has the power to enact laws except what has been stated in the proviso which requires a thoughtful interpretation.

222Copy pinpoint222. The language employed in the proviso has to be understood keeping in view the concepts which we have elaborately adumbrated hereinbefore. As noted earlier, the submission of the learned counsel for H

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the appellant is that the Lieutenant Governor can only exercise the power or take refuge to the proviso to Article 239AA(4) where the said ‘aid and advice’ of the Council of Ministers transgresses the area constitutionally prescribed to them by virtue of Article 239AA(3)(a).

223Copy pinpoint223. We may note here that a narrow or restricted meaning in respect of the words, namely, “on any matter” as is suggested by the appellant, takes away the basic concept of interpretative process, for the said expression does not remotely convey that it is confined to the excepted legislative fields. Similarly, a broad or unrestricted interpretation of the term to include every difference would obstruct the idealistic smooth stream of governance. Therefore, the Court has the duty to place such a meaning or interpretation on the phrase that is workable and the need is to establish the norm of fine constitutional balance.

224Copy pinpoint224. The counsel for the respondents has sought to impress upon this Court that the term “any” occurring in the proviso to clause (4) of Article 239AA should be given widest import in order to include everything within its ambit and for the said purpose, reliance has been placed upon D Tej Kiran (supra). It has been highlighted in the earlier part of this judgment that while interpreting a constitutional provision and construing the meaning of specific word(s) occurring in a constitutional provision, the Court must read the same in the context in which the word(s) occurs by referring to the annexing words of the said provision and also bearing in mind the concepts that we have adverted to. As regards the importance E of context while deciphering the true meaning and importation of a term, Austin has made the following observations:- “When I see the word “any” in a statute, I immediately know it’s unlikely to mean “anything” in the universe. Any” will have a limitation on it, depending on the context. When my wife says, F “there isn’t any butter.” I understand that she’s talking about what is in our refrigerator, not worldwide. We look at context over and over, in life and in law.”84

225Copy pinpoint225. In this context, the observations made in the case of Small v. United States85 are relevant to be noted:- G “The question before us is whether the statutory reference “convicted in any court” includes a conviction entered in a foreign 84 J.L Austin, How to do things with words, The William James Lectures delivered at Harvard University 1955 85 544 U.S. 385 (2005) H

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A court. The word “any” considered alone cannot answer this question. In ordinary life, a speaker who says, “I’ll see any film,” may or may not mean to include films shown in another city. In law a legislature that uses the statutory phrase “‘any person’” may or may not mean to include “‘persons’” outside “the jurisdiction of the state.” B

226Copy pinpoint226. Further, words of wide import must be construed by placing reliance upon the intention with which the said words have been used. Elucidating the importance of intention, Marshall, C.J. of the Supreme Court of U.S. in the case of United States v. Palmer86 observed:- C “The words “any person or persons” are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power who in a foreign ship may commit murder or robbery D on the high seas? The 8th section also commences with the words “any person or persons.” But these words must be limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law”.” E

227Copy pinpoint227. At home, it has also been acknowledged that the word ‘any’ can have different meanings depending on the context in which it has been used and the Courts must not mechanically interpret it to mean ‘everything’. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others87, this Court has observed:- F “The word “any” has the following meaning:- Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity.” Word “any” has a diversity of meaning and may be employed to G indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.” 86 16 U.S. 3 Wheat .610610(1818) 87 (1987) 2 SCC 707 H

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It is often synonymous with “either”, “every” or “all”. Its generality A may be restricted by context; (Black’s Law Dictionary; Fifth Edition).”

228Copy pinpoint228. In Kihoto Hollohan v. Zachillhu and others88, the Court has stated:- “...the words “any direction” would cost it its constitutionality’ B does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited C meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.”

229Copy pinpoint229. In A.V.S. Narasimha Rao and Ors. v. The State of Andhra D Pradesh and another89, while interpreting the expressions “any law” and “any requirement”, the Court has refused to give a wide import to the said phrases. The observations in that regard read thus:- “The words ‘any requirement’ cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words ‘any law’ and any requirement’. These words are obviously controlled by the words ‘residence within the State or Union territory’ which words mean what they say, neither more nor less. It follows, therefore,

88 AIR 1993 SC 412 89 (1969) 1 SCC 839 H

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A that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.”

230Copy pinpoint230. To lend support to this view, we can refer to the observations made by Lindley LJ in Warburton v. Huddersfield Industrial Society90 wherein he has stated:- “I cannot myself avoid coming to the conclusion that ‘any lawful purpose’ in sub-s (7) means any lawful purpose which is consistent with the rules. It cannot mean anything inconsistent with the rules...can it mean ‘any lawful purpose’ under the sun’, or is it ‘any lawful purpose of the society? If you look at the context, that which precedes and that which follows, I do not think ‘anybody, certainly (I do not think any lawyer would construe any lawful purpose, in the wide way in which Mr Cohen invites us to construe it.”

231Copy pinpoint231. That apart, the Court in Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate91 held:- “A little careful consideration will show, however, that the expression “any person” occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. E First of all. the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer- employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act.”

232Copy pinpoint232. From the foregoing discussion, it is clear that the words ‘any matter’ occurring in the proviso to Article 239AA(4) does not necessarily need to be construed to mean ‘every matter’. As highlighted in the authorities referred to hereinabove, the word ‘any’ occurring in a statute or constitutional provision is not to be mechanically read to mean ‘every’ and the context in which the word has been used must be given due 90 (1892) 1 QB 817, PP 821-22 H 91 AIR 1958 SC 353

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weightage so as to deduce the real intention and purpose in which the word has been used.

233Copy pinpoint233. It has to be clearly understood that though ‘any’ may not mean ‘every’, yet how it should be understood is extremely significant. Let us elaborate. The power given to the Lieutenant Governor under the proviso to Article 239AA(4) contains the rule of exception and should not be treated as a general norm. The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. C He has to be guided by the concept of constitutional morality. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism. As per the 1991 Act and Rules of Business, he has to be apprised of every decision D taken by the Council of Ministers. He cannot change the decision. That apart, there is no provision for concurrence. He has the authority to differ. But it cannot be difference for the sake of difference. It cannot be mechanical or in a routine matter. The power has been conferred to guide, discuss and see that the administration runs for the welfare of the people and also NCT of Delhi that has been given a special status. E Therefore, the word ‘any’ has to be understood treating as a guidance meant for the constitutional authority. He must bear in mind the constitutional objectivity, the needed advice and the realities.

234Copy pinpoint234. The proviso to Article 239AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words F employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional. We feel, it is necessary in the context to read the words of the provision in the spirit of citizenry participation in the governance of a G democratic polity that is republican in character. We may hasten to add that when we say so, it should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents

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A pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And we call it constitutional pragmatism.

235Copy pinpoint235. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.

236Copy pinpoint236. Interpretation cannot ignore the conscience of the Constitution. That apart, when we take a broader view, we are also alive to the consequence of such an interpretation. If the expressions “in case of difference” and “on any matter” are construed to mean that the Lieutenant D Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set up, although different from States as understood under the Constitution, will lose its purpose in simple semantics. The essence and purpose should not be lost in grammar like the philosophy of geometry cannot be allowed to lose its universal metaphysics in the methods of drawing. And that is why, we deliberated upon many a concept. Thus, the Administrator, as per the Rules of Business, has to be apprised of each decision taken by a Minister or Council of Ministers, but that does not mean that the Lieutenant Governor should raise an issue in every matter. The difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The difference of opinion should never be based on the perception of “right to differ” and similarly the term “on any matter” should not be put on such a platform as to conceive that as one can differ, it should be a norm on each occasion. The difference must meet the concept of constitutional trust reposed in the authority and there has to be objective assessment of the decision that is sent for communication and further the rationale of difference of opinion should be demonstrable and it should contain sound reason. There

H

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should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and a visionary. The constitutional amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State. T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993

237Copy pinpoint237. Our attention, in the course of the proceedings, has also been drawn to the Government of National Capital Territory of Delhi Act, 1991 (for brevity, “the 1991 Act’) which came into force with effect from 2nd January, 1992. The 1991 Act was enacted by the Parliament by virtue of the power conferred upon it by clause (7)(a) of Article 239AA. We think it appropriate to refer to the Statement of Objects and Reasons of the said enactment. It is as follows:- D

“STATEMENT OF OBJECTS AND REASONS Under the new article 239-AA proposed to be inserted by the Constitution (Seventy-fourth Amendment) Bill, 1991, a Legislative Assembly and Council of Ministers will be established for the E National Territory. Clause (7) (a) of the said article provides that Parliament may by law make provisions for giving effect to or supplementing the provisions contained in that article and for all that matters incidental or consequential thereto.

2. In pursuance of the said clause, this bill seeks necessary provisions in respect of the legislative Assembly and its functioning including the provisions relating to the Speaker, Deputy Speaker, qualifications or disqualifications for membership, duration, summoning, prorogation or dissolution of the House privileges, legislative procedures, procedure in financial matters, adders by the Lieutenant Governor to the Legislative Assembly, constitution of Consolidated Fund for the National Capital Territory, Contingency Fund. etc. These are on the; lines of the provisions made in respect of a legislative Assembly of a State with suitable modifications. H

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A 3. Under the bill the delimitation of constituencies will be made by the Election Commission in accordance with the Procedure set out therein. Having regard to the special conditions prevailing in Delhi, it has been provided that in respect of the frost constitution of the Assembly, such delimitation will be on the basis of provisional figures of population in relation to 1991 census, if final figures of B population in relation to 1991 census, if final figures have not been published by them.

4. The Bill seeks to give effect to the above proposals.”

238Copy pinpoint238. From the aforesaid, it is clear as crystal that the 1991 Act C was conceived to be brought into existence for supplementing the constitutional provision and also to take care of incidental matters that are germane to Article 239AA.

239Copy pinpoint239. Upon scanning the anatomy of the 1991 Act, we find that the Act contains fifty six Sections and is divided into five Parts, each D dealing with different fields. Now, we may refer to some of the provisions contained in Part IV of the 1991 Act titled ‘Certain Provisions relating to Lieutenant Governor and Ministers’ which are relevant to the case at hand. Section 41 deals with matters in which the Lieutenant Governor may act in his discretion and reads thus:-

E “Section 41- Matters in which Lieutenant Governor to act in his discretion.-(l) The Lieutenant Governor shall act in his discretion in a matter- (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or F functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions. (2) If any question arises as to whether any matter is or is not a G matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by H

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any law to exercise any judicial or quasi- judicial functions, the decision of the Lieutenant Governor thereon shall be final.”

240Copy pinpoint240. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions and, therefore, it is clear that the Lieutenant Governor cannot exercise his discretion in each and every matter and by and large, his discretionary powers are limited to the three matters over which the legislative power of the Delhi Legislative Assembly stand excluded by clause (3)(a) of C Article 239AA.

241Copy pinpoint241. Section 42 deals with the aid and advice tendered by the Council of Ministers to the Lieutenant Governor and reads as under:- “Section 42 Advice by Ministers:-The question whether any. D and if so what, advice was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court.”

242Copy pinpoint242. The wordings and phraseology of Section 42 of the 1991 Act is identical to that of clause (2) of Article 74 of the Constitution which also is an indication that the expression ‘aid and advice’ should receive a E uniform interpretation subject to other constitutional provisions in the form of the proviso to clause (4) of Article 239AA of the Constitution of India. In other words, the ‘aid and advice’ given by the Council of Ministers is binding on the Lieutenant Governor so long as the Lieutenant Governor does not exercise the power conferred upon him by the proviso to clause (4) of Article 239AA and refer the matter to the President in exercise of that power for his ultimate binding decision.

243Copy pinpoint243. Section 44 that deals with the conduct of business in the NCT of Delhi reads thus:- “Section 44 Conduct of business.—(1) the President shall make rules - (a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and H

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A (b) for the more convenient transaction of business with the Ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. (2) Save as otherwise provided in this Act, all executive action of B the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor. (3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor C and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.”

244Copy pinpoint244. Section 44 of the 1991 Act has made it mandatory for the President to frame rules for the allocation of business to the Ministers D and also the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers.

245Copy pinpoint245. In exercise of the powers conferred under the aforesaid provision, the President has framed the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (for brevity, E ‘TBR, 1993’). The 1991 Act and the TBR, 1993, when read together, reflect the scheme of governance for the NCT of Delhi. We will scrutinize and analyze the relevant rules from the TBR, 1993 after analyzing the other relevant provisions of the 1991 Act.

246Copy pinpoint246. Now, Section 45 deals with the duties of the Chief Minister F of Delhi regarding furnishing of information to the Lieutenant Governor and reads as below:- “Section 45. Duties of Chief Minister as respect the furnishing of information to the Lieutenant Governor, etc. - It shall be the duty of the Chief Minister - G (a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation; (b) To furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as H Lieutenant Governor may call for; and

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(c) If the Lieutenant Governor so requires, to submit for the A consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

247Copy pinpoint247. Again, Section 45 of the 1991 Act is identical and analogous to Article 167 of the Constitution which makes it obligatory for the Chief B Minister of the NCT of Delhi to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation. Having said that, the real purpose of such communication is not to obtain concurrence of the Lieutenant Governor on all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of C Delhi and on proposals for legislation, but in actuality, the objective is to have the Lieutenant Governor in synergy, to keep him in the loop and to make him aware of all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation so as to enable the Lieutenant Governor to exercise the power D conferred upon him by the proviso to clause (4) of Article 239AA.

248Copy pinpoint248. Another important provision is Section 49 of the 1991 Act which falls under Part V of the Act titled ‘Miscellaneous and Transitional Provisions” and stipulates the relation of the Lieutenant Governor and his Ministers to the President. Section 49 reads thus:- E “Section 49. Relation of Lieutenant Governor and his Ministers to President: Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time-to-time be given by the President.” F

249Copy pinpoint249. Section 49 of the 1991 Act discloses that the set up in the NCT of Delhi is one where the Council of Ministers headed by the Chief Minister on one hand and the Lieutenant Governor on the other are a team, a pair on a bicycle built for two with the President as its rider who retains the general control. Needless to say, the President, while G exercising this general control, acts as per the aid and advice of the Union Council of Ministers.

250Copy pinpoint250. Let us, in the obtaining situation, refer to the various rules in TBR, 1993 which are necessary for dealing with the present case and for discerning the real intention of the Parliament for inserting Articles H

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A 239AA and 239AB. Rule 4 of the TBR, 1993 very categorically underscores the collective responsibility of the Council of Ministers:- “Rule 4(1) The Council shall be collectively responsible for all the execution orders issued by any Department in the name of the Lieutenant Governor and contracts made in the name of the B President in connection with the administration of the Capital whether such orders or contracts are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council.”

251Copy pinpoint251. Chapter III of the TBR, 1993 deals with ‘Disposal of Business C allocated among Ministers’. Rule 9 falling under Chapter III provides for circulation of proposals amongst the Council of Ministers and reads as under:- “Rule 9(1) The Chief Minister may direct that any proposal submitted to him under rule 8 may. instead of being placed for discussion in a meeting of the Council, be circulated to the Ministers for opinion, and if all the Ministers are unanimous and the Chief Minister is of the opinion that discussions in a meeting of the Council is not required, the proposal shall be treated as finally approved by the Council. In case. Ministers are not unanimous or if the Chief Minister is of the opinion that discussions in a meeting is required, the proposal shall be discussed in a meeting of the Council. (2) If it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to the Secretary to the Council who shall arrange to circulate the same among the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.” [Emphasis supplied] Rule 9(2) stipulates that if it is decided that a proposal is to be circulated, the department to which it belongs shall prepare a memo setting out in brief its facts, points for decision and recommendations of the Minister-in-charge. The said memo has to be forwarded to the Secretary to the Council who shall circulate the same amongst the Ministers and at the same time send its copy to the Lieutenant Governor. H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 167 & ANOTHER [DIPAK MISRA, CJI]

252Copy pinpoint252. Rule 10, which is relevant, is reproduced below:- A “Rule 10. (1) While directing that a proposal shall be circulated, the Chief Minister may also direct, if the matter be of urgent nature, that the Ministers shall communicate their opinion to the Secretary to the Council by a particular date, which shall be specified in the memorandum referred to in rule 9. B (2) If any Minister fails to communicate his opinion to the Secretary to the Council by the date so specified in the memorandum, it shall be assumed that he has accepted the recommendations contained therein. (3) If the Minister has accepted the recommendations contained in the memorandum or the date by which he was required to communicate his opinion has expired, the Secretary to the Council shall submit the proposal to the Chief Minister. (4) If the Chief Minister accepts the recommendations and if he has no observation to make, he shall return the proposal with his orders thereon to the Secretary to the Council. (5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the E Central Government is required in pursuance of the provisions of Chapter V. [Underlining is ours] Rule 10(5) stipulates that when a decision has been taken by the F Council of Ministers on a proposal as per the preceding sub-rules of Rule 10, then the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned for taking necessary steps to issue the orders unless the Lieutenant Governor decides to refer the decision to the Central Government in pursuance of the provisions of Chapter V of the TBR, G 1993.

253Copy pinpoint253. Rule 11 of the TBR, 1993 states thus:- “Rule 11. When it has been decided to place a proposal before the Council, the Department to which it belongs, shall, unless the H

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A Chief Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal and the points for decision. Copies of the memorandum and such other documents, as are necessary to enable the proposal to be disposed of shall be forwarded to the Secretary to the Council who shall arrange to circulate the memorandum to the Ministers and simultaneously B send a copy thereof to the Lieutenant Governor.” [Emphasis added] Basically, Rule 11 of the TBR, 1993 deals with the procedure to be adopted for placing a proposal before the Council of Ministers. The C said rule stipulates that the proposal shall be forwarded to the Secretary to the Council who shall arrange to circulate a memorandum indicating the salient facts of the proposal and the points for decision to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.

254Copy pinpoint254. The procedure is further detailed in Rule 13 which stipulates as under:- “Rule 13 (1) The council shall meet at such place and time as the Chief Minister may direct. (2) Except with the permission of the Chief Minister, no case shall be placed on the agenda of a meeting unless papers relating thereto have been circulated as required under rule 11. (3) After an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chief Minister, copies thereof, together with copies of such memoranda as have not been circulated under rule 11, shall be sent by the Secretary to the Council, to the Lieutenant Governor, the Chief Minister and other Ministers, so as to reach them at least two days before the date of such meeting. The Chief Minister may, in case of urgency, curtail the said period of two days. (4) If any Minister is on tour, the agenda shall be forwarded to the G Secretary in the Department concerned who, if he considers that the discussion on any proposal should await the return of the Minister may request the Secretary to the Council to take the orders of the Chief Minister for a postponement of the discussion on the proposal until the return of the said Minister. H

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(5) The Chief Minister or in his absence any other Minister A nominated by the Chief Minister shall preside at the meeting of the Council. (6) If the Chief Minister so directs, the Secretary of the Department concerned may be required to attend the meeting of the Council. (7) The Secretary to the Council shall attend all the meetings of B the Council and shall prepare a record of the decisions. He shall forward a copy of such record to Ministers and the Lieutenant Governor.” [Emphasis supplied] C Rule 13, thus, deals with the meeting of Council of Ministers and sub-rule (3) of Rule 13 stipulates that the agenda of the proposals to be discussed in the meeting of the Council shall be sent by the Secretary to the Lieutenant Governor amongst others.

255Copy pinpoint255. Again, Rule 14 states as below:- D “Rule 14 (1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding, shall be placed with the records of the proposal. After approval by the Chief Minister or the Minister presiding, the decision of the Council as approved, shall be forwarded by the Secretary to the Council to the Lieutenant Governor. (2) Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister concerned shall take necessary action to give affect to the decision.” [Underlining is ours] Rule 14 deals with the decision of the Council on different proposals. Sub-rule (1) of Rule 14 provides that once a decision of the Council has been approved by the Chief Minister or the Minister presiding, the said approved decision shall be forwarded by the Secretary to the Council to the Lieutenant Governor.

256Copy pinpoint256. Rule 23, elaborating on the classes of proposals or matters, enumerates as under:- H

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A “Rule (23) The following classes of proposals or matters shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, namely: (i) matters which affect or are likely to affect the peace and B tranquility of the capital; (ii) matters which affect or are likely to affect the interest of any minority community. Scheduled Castes and backward classes; (iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the C High Court of Delhi; (iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V; (v) matters pertaining to the Lieutenant Governor’s Secretariat and personnel establishment and other matters relating to his D office; (vi) matters on which Lieutenant Governor is required to make order under any law or instrument in force; (vii) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence; E (viii) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those: and F (ix) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.” Rule 23 lays down a list of proposals or matters which are essential to be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders. G

257Copy pinpoint257. Rule 25 of the TBR, 1993 states thus:- “Rule 25. The Chief Minister shall: (a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and H

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proposals for legislation as the Lieutenant Governor may call for: A and (b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council. B Sub-rule (a) of Rule 25 requires the Chief Minister to furnish to the Lieutenant Governor information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for.

258Copy pinpoint258. Further, Rule 42 prescribes the procedure after a Bill is passed C by the Legislative Assembly. It reads as under:- “Rule 42. (1) When a Bill has been passed by the Legislative Assembly it shall be examined in the Department concerned and the Law Department and shall be presented to the Lieutenant Governor with:- D (a) A report of the Secretary of the Department concerned as to the reason, if any, why the Lieutenant Governor’s assent should not be given: and (b) A report of the Law Secretary as to the reasons, if any, why the Lieutenant Governor’s assent should not be given or the Bill should not be reserved for consideration of the President.” Rule 42 basically stipulates that when a bill has been passed by the Legislative Assembly of Delhi, the same shall be presented to the Lieutenant Governor along with a report of the Secretary of the department concerned and a report of the Law Secretary.

259Copy pinpoint259. It is also pertinent to refer to Rules 49 and 50 falling under Chapter V titled ‘Referring to Central Government’ which read as follows:- “CHAPTER-V G Referring to the Central Government Rule 48 (Omitted) Rule 49 In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant H

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A Governor shall endeavour bv discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council. Rule 50 In case of difference of opinion between the Lieutenant B Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.”

260Copy pinpoint260. Rule 49 stipulates the procedure to be adopted in case of C difference of opinion between the Lieutenant Governor and a Minister in regard to any matter. In such a scenario, as per Rule 49, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. If such an approach and attempt to settle a point of difference by discussion turns out to be futile and the difference of opinion persists, then the Lieutenant Governor D may direct the matter to be referred to the Council. Rule 49 shows that settlement can be achieved by way of discussion. It further highlights how, by discussion and dialogue, a conflict can be avoided by adopting an ideology of harmonious co-existence which would again be in tune with the concepts of collaborative federalism, pragmatic federalism, E federal balance and constitutional objectivity.

261Copy pinpoint261. Rule 50, on the other hand, provides the procedure to the effect that in case of difference of opinion between the Council and the Lieutenant Governor with regard to any matter, the Lieutenant Governor is required to refer it to the Central Government for the decision of the F President and shall act according to the decision of the President.

262Copy pinpoint262. The approach of dialogue, settlement by discussion and suppressing conflicts by harmonious co-existence as delineated by Rule 49 should also be adopted in case of difference of opinion between the Lieutenant Governor on one hand and the Council on the other. Such an G approach would not only result in acceptance of the role of the Lieutenant Governor but also help the NCT of Delhi to cherish the fruits of a responsive government as intended by the Sixty-ninth Constitutional Amendment.

263Copy pinpoint263. We have referred to the relevant rules of TBR, 1993 which require that the Lieutenant Governor has to be apprised and kept in the H

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loop of the various proposals, agendas and decisions taken by the Council A of Ministers. However, a careful perusal of these rules nowhere suggests that the communication to the Lieutenant Governor is to obtain his concurrence or permission. The TBR, 1993 simply reflect the scheme envisaged for the governance of NCT of Delhi wherein just as an administrator in other UTs has to be apprised, likewise the Lieutenant B Governor in Delhi is also to be informed and notified about the business being conducted.

264Copy pinpoint264. The idea behind the aforesaid rules is just to keep the Lieutenant Governor notified of the proposals, agendas and decisions so that he is acquainted with the business carried out by the Council of Ministers. The said view is evident from the various rules which employ the words ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor and ‘cause to be furnished to the Lieutenant Governor’.

265Copy pinpoint265. Thus, the irresistible conclusion is that the Council is only required to communicate and inform its various proposals, agendas and decisions to the Lieutenant Governor so as to keep him apprised and to enable him to scrutinize the said proposals, agendas and decisions in order to exercise his powers as bestowed upon him under clause (4) of Article 239AA of the 1991 Act read with Rule 50 of the TBR, 1993.

266Copy pinpoint266. It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of the Parliament to treat Delhi Government as a representative form of government. F

267Copy pinpoint267. The said interpretation is also in tune with our constitutional spirit which ensures that the voice of the citizens does not go unrecognized while making laws and this is only possible if the agency enacting and enforcing the laws comprises of the elected representatives chosen by the free will of the citizens. It is a well recognized principle of a true G democracy that the power shall not remain vested in a single person and it is absolutely essential that the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.

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268Copy pinpoint268. A conjoint reading of the 1991 Act and the TBR, 1993 formulated in pursuance of Section 44 of the 1991 Act divulges that the Lieutenant Governor of Delhi is not a titular head, rather he enjoys the power of that of an administrator appointed by the President under Article 239AA. At the cost of repetition, we may reiterate that the constitutional scheme adopted for the NCT of Delhi conceives of the Council of B Ministers as the representatives of the people on the one hand and the Lieutenant Governor as the nominee and appointee of the President on the other, who are required to function in harmony within the constitutional parameters. In the said scheme of things, the Lieutenant Governor should not emerge as an adversary having a hostile attitude towards the Council C of Ministers of Delhi, rather he should act as a facilitator.

269Copy pinpoint269. We had earlier stated that Mr. Maninder Singh, learned Additional Solicitor General, had urged that the report of the Balakrishnan Committee should be taken aid of to interpret the constitutional provision and for the said purpose, he had placed reliance on Maumsell v. Olins92, D Eastman Photographic Materials Company v. Comptroller-General of Patents, Designs and Trademarks93, Tikri Banda Dullewe v. Padma Rukmani Dullewe94, Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg95, R.S. Nayak v. A.R. Antulay96, Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi97 and TMA Pai Foundation v. State of Karnataka98. He had laid emphasis on paragraph 34 of the judgment in A.R. Antulay (supra). The relevant part of the said paragraph reads as follows:- “34. …the basic purpose underlying all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament in enacting the legislation. Legislation is enacted to achieve a certain object. The object may be to remedy a mischief or to create some rights, obligations or impose duties. Before undertaking the exercise of enacting a statute, Parliament can be taken to be aware of the constitutional principle of judicial review 92 [1975] AC 373 G 93 (1989) AC 571 94 (1969) 2 AC 313 95 (1975) AC 591 96 (1984) 2 SCC 183 97 (2002) 3 SCC 676 98 (2002) 8 SCC 481 H

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meaning thereby the legislation would be dissected and subjected to microscopic examination. More often an expert committee or a joint parliamentary committee examines the provisions of the proposed legislation. But language being an inadequate vehicle of thought comprising intention, the eyes scanning the statute would be presented with varied meanings. If the basic purpose underlying construction of a legislation is to ascertain the real intention of the Parliament, why should the aids which Parliament availed of such as report of a special committee preceding the enactment, existing state of law, the environment necessitating enactment of legislation, and the object sought to be achieved, be denied to court whose function is primarily to give effect to the real intention of the C Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction. Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of joint parliamentary committee, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction.”

270Copy pinpoint270. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute. However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee. U. Constitutional renaissance:

271Copy pinpoint271. Before we proceed to record our conclusions, we think it apposite to reflect on a concept that illumines the basic tenet of constitutional governance having requisite veneration for constitutional philosophy and its applicability in the present context.

272Copy pinpoint272. Though ordinarily the term ‘renaissance’ is used in the context of renewed activity especially pertaining to art and literature, yet the said word is not alien to the fundamental meaning of life in a solid civilized society that is well cultivated in culture. And, life, as history witnesses, gets entrenched in elevated civilization when there is fair, appropriate, just and societal interest oriented governance. In such a situation, no citizen feels like a subject and instead has the satisfaction that he is a H

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A constituent of the sovereign. When the citizens feel that there is participatory governance in accordance with the constitutionally envisaged one, there is prevalence of constitutional governance.

273Copy pinpoint273. This prevalence is the recognition and acceptance of constitutional expectation from the functionaries created by it. It is to B remain in a constant awakening as regards the text, context, perspective, purpose and the rule of law. Adherence to rationality, reverence for expected pragmatic approach on the bedrock of the constitutional text, context and vision and constant reflection on the valid exercise of the power vested tantamounts to resurgent constitutionalism. It may be understood in a different manner. Our Constitution is a constructive one. C There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its spirit and silence with a sense of reawakening to the vision of the great living document is, in fact, constitutional renaissance.

274Copy pinpoint274. Let us come to the present context and elaborate the concept. The said concept garners strength when there is rational difference by the Lieutenant Governor on a constitutional prism, any statutory warrant, executive disharmony between the Centre and NCT of Delhi on real justifiable grounds, when an executive decision runs counter to the legislative competence and the decision of the Council of Ministers defeats the national interest. These are only a few illustrations. The Constitution does not state the nature of the difference. It leaves it to the wisdom of the Council of Ministers who have the collective responsibility and the Lieutenant Governor. That is the constitutional trust which expects the functionaries under the Constitution to be guided by constitutional morality, objective pragmatism and the balance that is required to sustain proper administration. The idea of obstinance is not a principle of welfare administration. The constitutional principles do not countenance a nomadic perception. They actually expect governance for the betterment of society, healthy relationship and mutual respect having an open mind for acceptance.

275Copy pinpoint275. The goal is to avoid any disharmony and anarchy. Sustenance H of constitutionally conferred trust, recognition and acceptance of the

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principle of constitutional governance, adherence to the principles and norms which we have discussed earlier and the constitutional conduct having regard to the elevated guiding precepts stated in the Preamble will tantamount to realization of the feeling of constitutional renaissance. When we say renaissance, we do not mean revival of any classical note with a sense of nostalgia but true blossoming of the constitutional ideals, realization and acceptance of constitutional responsibility within the boundaries of expression and silences and sincerely accepting the summon to be obeisant to the constitutional conscience with a sense of reawakening to the constitutional vision.

276Copy pinpoint276. That is why, the 1991 Act and the TBR, 1993 conceive of discussion, deliberation and dialogue. The exercise of entitlement to differ has to be based on principle and supported by cogent reasons. But, the primary effort has to be to arrive at a solution. That is the constitutional conduct of a constitutional functionary. V. The conclusions in seriatim: D

277Copy pinpoint277. In view of our aforesaid analysis, we record our conclusions in seriatim:- (i) While interpreting the provisions of the Constitution, the safe and most sound approach for the Constitutional Courts to adopt is to read the words of the Constitution in the light of the spirit of the E Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The Courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution. F (ii) In a democratic republic, the collective who are the sovereign elect their law making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity G as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies. (iii) Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms H

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A and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. In order to realize our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. B (iv) All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution. (v) The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties. (vi) Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a F well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated. (vii) Our Constitution contemplates a meaningful orchestration of G federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full-fledged effect to both these concepts.

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(viii) The constitutional vision beckons both the Central and the A State Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co- existence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation. (ix) The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain. (x) There is no dearth of authorities with regard to the method and approach to be embraced by Constitutional Courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some emphasize that a mixed balance resulting in a unique methodology shall serve as the best tool. In spite of diverse views on the said concept, what must be kept primarily in mind is that the Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the framers of the Constitution or the Parliament. F

(xi) In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the Constitutional Courts, with the vision to realize the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away G from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit H

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A and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics. (xii) In the light of the ruling of the nine-Judge Bench in New B Delhi Municipal Corporation (supra), it is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme. The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, C working with the designation of Lieutenant Governor. (xiii) With the insertion of Article 239AA by virtue of the Sixty- ninth Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly D which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. E (xiv) The interpretative dissection of Article 239AA(3)(a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws F over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List. (xv) A conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative G Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament. H

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(xvi) As a natural corollary, the Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. (xvii) The meaning of ‘aid and advise’ employed in Article C 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not D been entrusted with any independent decision-making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. (xviii) The words “any matter” employed in the proviso to clause E (4) of Article 239AA cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, F the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. G (xix) The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. H

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