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

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Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts ‘not to read the provisions of the Constitution like a last will and testament lest it become one’.”

143. The Supreme Court of Canadaalso reiterated this view when it held that the meaning of ‘unreasonable’ cannot be determined by recourse to a dictionary or, for that matter, by reference to the rules of statutory construction. The Court pointed out that the task of expounding a Constitution is crucially different from that of construing a statute, for a statute defines present rights and obligations and is easily enacted and as easily repealed whereas a Constitution is drafted with an eye to the future and its function is to provide a continuing framework for the legitimate exercise of governmental power. Further, the Court observed that once enacted, constitutional provisions cannot easily be repealed or amended and hence, it must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers and the judiciary, being the guardian of the E Constitution, must bear these considerations in mind while interpreting it. The Court further stated that the judges must take heed to the warning of Professor Paul Freund when he said that the role of the judges is “not to read the provisions of the Constitution like a last will and testament, lest it becomes one”. F

144. This idea had pervaded the legal system way back in 1930 when the Privy Council through Lord Sankey LC in Edwards v Attorney General for Canada64 had observed that the Constitution must be approached as “a living tree capable of growth and expansion within its natural limits”. G 65

145. Professor Pierre-André Côté in his book has highlighted the action based approach by stating that it must be kept in mind that the 64 [1930] AC 124, 136 65 Pierre-André Côté, The Interpretation of Legislation in Canada 2nd Ed (Cowansville. Quebec:Les Editions Yvon Blais. Inc. 1992) H

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A end goal of the process of legal interpretation is resolution of conflicts and issues. It would be apt to reproduce his words:- “Legal interpretation goes beyond the mere quest for historical truth. The judge, in particular, does not interpret a statute solely for the intellectual pleasure of reviving the thoughts that prevailed B at the time the enactment was drafted. He interprets it with an eye to action: the application of the statute. Legal interpretation is thus often an “interpretive operation’’, that is, one linked to the resolution of concrete issues.” M. Purposive interpretation:

146. Having stated the principles relating to constitutional interpretation we, as presently advised, think it apt to devote some space to purposive interpretation in the context, for we shall refer to the said facet for understanding the core controversy. It needs no special emphasis that the reference to some precedents has to be in juxtaposition with other concepts and principles. As it can be gathered from the discussion as well as the authorities cited above, the literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention. The Judicial Committee in Attorney General of Trinidad and Tobago v. Whiteman66 has observed:- “The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit…”

147. In S.R. Chaudhuri v. State of Punjab and others67, a three- Judge Bench has opined that constitutional provisions are required to be understood and interpreted with an object-oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The G Court, while holding that the Constituent Assembly debates can be taken aid of, observed the following:- “The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true 66 [1991] 2 AC 240, 247 H 67 (2001) 7 SCC 126

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context in which the same are used and the purpose which they seek to achieve.” (Emphasis is ours)

148. The Court further highlighted that the Constitution is not just a document in solemn form but a living framework for the government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit.

149. We have duly noted in the earlier part of the judgment that the judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation. That is the obligation cast on the judges. In Ashok Kumar Gupta and another v. State of U.P. and others68, the Court observed that while interpreting the Constitution, it must be borne in mind that words of width are both a framework of concepts and means to the goals in the Preamble and concepts may keep changing to expand and elongate the rights. The Court further held that constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth and, therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. Finally, the Court pointed out:- E “To construe law one must enter into its spirit, its setting and history.”

150. In Indian Medical Association v. Union of India and others69, referring to the pronouncement in M. Nagaraj v. Union of India70, the Court said:- F “In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court, recognized that one of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the constitution endures for ages to come. Eloquently, it was stated that the “Constitution is not an ephemeral legal document G embodying a set of rules for the passing hour”.” (Emphasis is ours) 68 (1997) 5 SCC 201 69 (2011) 7 SCC 179 70 (2006) 8 SCC 202 H

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151. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in Regina (Quintavalle) v. Secretary of State for Health71 ruled:- B “The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the C purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL). In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context. ...” D [Emphasis is supplied]

152. Emphasizing on the importance of determining the purpose and object of a provision, Learned Hand, J. in Cabell v. Markham72 enunciated:- “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

153. The components of purposive interpretation have been elucidated by Former President of the Supreme Court of Israel, Aharon Barak, who states:- G “Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once 71 (2003) UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL) 72 148 F 2d 737 (2d Cir 1945) H

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the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.”73

154. As per the observations made by Aharon Barak, judges interpret a Constitution according to its purpose which comprises of the objectives, values and principles that the constitutional text is designed to actualize. Categorizing this purpose into objective and subjective purpose, he states74:- “Subjective component is the goals, values, and principles that the constituent assembly sought to achieve through it, at the time it enacted the constitution. It is the original intent of the founding fathers. Purposive interpretation translates such intent into a presumption about the subjective purpose, that is, that the ultimate purpose of the text is to achieve the (abstract) intent of its authors. There is also, however, the objective purpose of the text - the goals, values, and principles that the constitutional text is designed to achieve in a modern democracy at the time of interpretation. Purposive interpretation translates this purpose into the presumption that the ultimate purpose of the constitution is its objective purpose.” E [Emphasis supplied]

155. It is also apt to reproduce the observations made by him in the context of the ever changing nature of the Constitution:- “A constitution is at the top of a normative pyramid. It is designed to guide human behavior for a long period of time. It is not easily amendable. It uses many open ended expressions. It is designed to shape the character of the state for the long term. It lays the foundation for the state’s social values and aspirations. In giving expression to this constitutional uniqueness, a judge interpreting a constitution must accord significant weight to its objective purpose and derivative presumptions. Constitutional provisions should be interpreted according to society’s basic normative positions at the time of interpretation.” 73 Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 - Law 74 ibid H

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156. He has further pointed out that both the subjective as well as the objective purposes have their own significance in the interpretation of constitutional provisions:- “The intent of the constitutional founders (abstract subjective intent” remains important. We need the past to understand the present. Subjective purpose confers historical depth, honoring the past and its importance. In purposive interpretation, it takes the form of presumption of purpose that applies immediately, throughout the process of interpreting a constitution. It is not, however, decisive. Its weight is substantial immediately following the founding, but as time elapses, its influence diminishes. It cannot freeze the future development of the constitutional provision. Although the roots of the constitutional provision are in the past, its purpose is determined by the needs of the present, in order to solve problems in the future. In a clash between subjective and objective purposes, the objective purpose of a constitution prevails. D It prevails even when it is possible to prove subjective purpose through reliable, certain, and clear evidence. Subjective purpose remains relevant, however, in resolving contradictions between conflicting objective purposes.”75 N. Constitutional culture and pragmatism:

157. “Constitutional culture” is inherent in the concepts where words are transformed into concrete consequences. It is an interlocking system of practices, institutional arrangements, norms and habits of thought that determine what questions we ask, what arguments we credit, how we process disputes and how we resolve those disputes. 76

158. The aforestated definition of the term ‘constitutional culture’ F is to be perceived as set of norms and practices that breathe life into the words of the great document. It is the conceptual normative spirit that transforms the Constitution into a dynamic document. It is the constitutional culture that constantly enables the words to keep in stride with the rapid and swift changes occurring in the society.

159. The responsibility of fostering a constitutional culture falls on the shoulders of the State and the populace. The allegiance to promoting a constitutional culture stems from the crying need of the sovereign to 75 ibid 76 Andrew M. Siegel, Constitutional Theory, Constitutional Culture, 18 U.PA.J. Const. H L. 1067 (2016)

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ensure that the democratic nature of our society remains undaunted and the fundamental tenets of the Constitution rest on strong platform.

160. The following observations made by the Court in R.C. Poudyal (supra) throw light on this duty cast upon the functionaries and the citizens:- “Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals.”

161. The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution.

162. History reveals that in order to promote and nurture this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of “constitutional pragmatism”.

163. In this context, we may have some perspective from the American approach. The perception is that language is a social and contextual enterprise; those who live in a different society and use language differently cannot reconstruct the original meaning. Justice E Brennan observed:- “We current Justices read the Constitution in the only way that we can: as Twentieth-Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.”77 77 William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratifi- cation, in interpreting The Constitution: The Debate Over Oreiginal Intent at 23, 27 (Jack N. Rakove ed., 1990) H

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164. In Supreme Court Advocates-on-Record-Association and others v. Union of India78, the Court, while emphasizing on the aspect of constitutional culture that governs the functioning of any constitutional body, has observed:- “The functioning of any constitutional body is only disciplined by B appropriate legislation. Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one.”

165. Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches:- “The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. xxx xxx xxx It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.”

166. In The State of Karnataka and another v. Shri Ranganatha Reddy and another79, the Court had laid stress on the obligation and the responsibility of the judiciary not to limit itself to the confines of rigid principles or textualism and rather adopt an interpretative process which takes into consideration the constitutional goals and constitutional culture:- 78 (2016) 5 SCC 1 79 AIR 1978 SC 215 H

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“When cryptic phrases expressive of constitutional culture and A aspirational future, fundamental to the governance of the nation, call for interpretative insight, do we merely rest content to consult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty? Is the meaning of meanings an artless art?” B And again, “There is a touch of swadeshi about a country’s jurisprudence and so our legal notions must bear the stamp of Indian Developmental amplitude linked to constitutional goals.”

167. Laying emphasis on the need for constitutional pragmatism, the Court in Indra Sawhney (supra) noted the observations made by Lord Rockill in his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject “Law Lords, Reactionaries or Reformers?” which read as follows:- “Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves “this case requires a policy decision - what is the right policy decision?”The answer is, and I E hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.”” [Emphasis is ours]

168. The Court also observed:- “Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to H

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A the issues under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely B delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner. C Since this is a constitutional issue it cannot be resolved by clinches founded on fictional mythological stories or misdirected philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires D careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary.” [Emphasis is supplied]

169. Earlier, in Union of India v. Sankalchand Himatlal Sheth E and another80, the Court had observed that:- “…in a dynamic democracy, with goals of transformation set up by the Constitution, the Judge, committee to uphold the founding faiths and fighting creeds of the nation so set forth, has to act heedless of executive hubris, socio-economic pressures and die- F hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution. Perfection baffles even the framers of a Constitution, but while on statutory construction of an organic document regulating and coordinating the relations among G instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic, holistic recipe for the behavioral needs and norms of life in the raw-of individuals, instrumentalities and the play of power and freedom”

(1978) 1 SCR 423

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170. The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while engaging oneself with the process of interpretation of a constitutional provision. O. Interpretation of Articles 239 and 239A:

171. To settle the controversy at hand, it is imperative that we dig deep and perform a meticulous analysis of Articles 239, 239A, 239AA and 239AB all of which fall in Part VIII of the Constitution bearing the heading, ‘The Union Territories’. For this purpose, let us reproduce the aforesaid Articles one by one and carry out the indispensable and crucial task of interpreting them.

172. Article 239 provides for the administration of Union Territories. It reads as follows:- D “239. Administration of Union Territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. E (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.” (Emphasis is ours) F

173. The said Article was brought into existence by the Constitution (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing the words ‘shall’, makes it abundantly clear that every Union territory is mandatorily to be administered by the President through an administrator unless otherwise provided by Parliament in the form of a law. Further, G clause (1) of Article 239 also stipulates that the said administrator shall be appointed by the President with such designation as he may specify.

174. Clause (2) thereafter, being a non-obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an administrator H

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A of a Union Territory which is adjacent and/or contiguous to the State of which he is the Governor. The Governor of a State who is so appointed as an administrator of an adjoining UT shall exercise his functions as an administrator of the said UT independently and autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor. B

175. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:- “The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in C Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers.”

176. Again, the Court, while interpreting Article 239 in Union of D India and others v. Surinder S81, observed:- “The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring E State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of Clause (2) of Article 239 (amended), the F President can appoint the Governor of a State as an Administrator of an adjoining Union territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it G clear that prior to 1.11.1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President through an Administrator appointed by him with such designation as he may specify. In terms of Clause 81 (2013) 1 SCC 403 H

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2 of Article 239 (amended), the President is empowered to appoint A the Governor of State as the Administrator to an adjoining Union Territory and once appointed, the Governor, in his capacity as Administrator, has to act independently of the Council of Ministers of the State of which he is the Governor.”

177. Now, let us proceed to scan Article 239A of the Constitution B which deals with the creation of local legislatures or Council of Ministers or both for certain Union Territories. It reads as follows:- “239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.—(1) Parliament may by law create for the Union territory of C Puducherry— (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. D (2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.” E

178. The aforesaid Article was brought into force by the Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971, under Article 239A, the Parliament had the power to create by law legislatures and/or Council of Ministers for the then Union territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter, on 25th January, 1971, Himachal Pradesh acquired statehood and F consequently, Himachal Pradesh was omitted from Article 239A. Subsequently, on 21st January 1972, Tripura and Manipur were granted statehood as a consequence of which both Manipur and Tripura were omitted from Article 239A.

179. Likewise, with the enactment of the Goa, Daman and Diu G Reorganisation Act, 1987 on 30th May 1987, both Goa and Daman and Diu were omitted from Article 239A. The Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30th May, 1987, the applicability of Article 239A stands limited to UT of Puducherry. H

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180. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239A. B P. Interpretation of Article 239AA of the Constitution

181. We shall now advert to the interpretation of Articles 239AA and 239AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation C and a thorough analysis to unearth and discover the true intention of the Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said articles read as follows:- “239AA. Special provisions with respect to Delhi.—(1) As D from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor. E (2) (a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.

F (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament. G (c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles H

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326 and 329 to “appropriate Legislature” shall be deemed to be a A reference to Parliament. (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in B so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of C Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed D before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: E

Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: F Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more G than ten per cent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has

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A power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision B and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. C (5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. D (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. (7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. E (b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution. (8) The provisions of article 239B shall, so far as may be, apply in F relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be. G 239AB. Provision in case of failure of constitutional machinery.—If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—

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(a) that a situation has arisen in which the administration of the A National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.” [Emphasis supplied]

182. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus:- D “The question of re-organisation of the Administrative set-up in the Union territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter E alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national Capitals of other countries with a federal set-up and also the debates in the Constituent F Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers G to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories. H

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A 2. The Bill seeks to give effect to the above proposals.” The aforesaid, as we perceive, really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239AA and other articles that are pertinent to understand the said B provision. Q. Status of NCT of Delhi:

183. The first proposition that has been built centering around the conferment of special status on NCT of Delhi is that it is a State for all purposes except the bar created pertaining to certain legislative matters. C The bedrock has been structured by placing heavy reliance on the purpose of the constitutional amendment, the constitutional assurance to the inhabitants of Delhi and the language employed in sub-article 3(a) of Article 239AA of the Constitution. We have already referred to the historical background and also the report submitted by the Balakrishnan D Committee.

184. Mr. Maninder Singh, learned Additional Solicitor General, would contend that the aid and assistance of the Committee Report can be taken into consideration to interpret the constitutional provisions and also the statutory provisions of the 1991 Act. He has referred to certain E authorities for the said purpose. We shall refer to the said authorities at a later stage. First, we think it seemly to advert to the issue whether the NCT of Delhi can be called a State in the sense in which the Constitution expects one to understand. The said maze has to be cleared first.

185. We may now focus on the decision in Shamsher Singh F (supra). The issue centered around the role and the constitutional status of the President. In that context, it has been held that the President and the Governor act on the aid and advice of the Council of Ministers and the Constitution does not stipulate that the President or the Governor shall act personally without or against the aid and advice of the Council of Ministers. Further, the Court held that the Governor can act on his G own accord in matters where he is required to act in his own discretion as specified in the Constitution and even while exercising the said discretion, the Governor is required to act in harmony with the Council of Ministers. We may hasten to add that the President of India, as has been held in the said case, has a distinguished role on certain occasions. H

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We may, in this context, reproduce below certain passages from the opinion of Krishna Iyer, J.:- “The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture — lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the head of State. A Parliamentary-style Republic like ours could not have conceptualised its self-liquidation by this process. On the contrary, democratic capital-formation to strengthen the people’s rights can be achieved only through invigoration of the mechanism of Cabinet-House-Elections. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well- known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to H

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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]

186. 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]

187. 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.

188. 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]

189. 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.

190. 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]

191. 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

192. 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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193. 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.

194. 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

195. 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).

196. 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:

197. 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.

198. 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]

199. 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

200. 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

201. 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.

202. 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.

203. 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.

204. 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.

205. 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.

206. 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.

207. 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

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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.

208. 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.

209. 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.

210. 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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211. 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.

212. 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.

213. 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.

214. 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

215. 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.

216. 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

217. 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.

218. 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

219. 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.

220. 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.

221. 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.

222. 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).

223. 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.

224. 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

225. 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

226. 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

227. 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).”

228. 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.”

229. 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.”

230. 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.”

231. 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.”

232. 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.

233. 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.

234. 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.

235. 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.

236. 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

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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

237. 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.”

238. 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.

239. 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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