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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A (xx) The Transaction of Business Rules, 1993 stipulates the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the B Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AA. C (xxi) The scheme that has been conceptualized by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD Act, 1991 and the corresponding TBR, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the D Council of Ministers. The terminology “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof. (xxii) 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. (xxiii) Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the H

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Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.

278Copy pinpoint278. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench. D DR. D. Y. CHANDRACHUD, J. INDEX A) Introduction B) Constitutional Morality E C) Constitutional Interpretation D) Part VIII of The Constitution: The Union Territories E) Cabinet Form of Government - Collective Responsibility F

- Aid and Advice F) The Nature of Executive Power G) Constitutional History of the NCT G - The Government of Part C States Act, 1951 - The Government of Union Territories Act, 1963 - The Delhi Administration Act, 1966 - The Balakrishnan Committee H

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A H) NCT: A Special Class among Union Territories? I) The Government of National Capital Territory of Delhi Act, 1991 J) The Transaction of Business Rules, 1993 B K) Precedents - Literal Interpretation - Relationship between Centre and Union Territories - Decision in NDMC C - General Clauses Act - “Insofar as any such matter is applicable to Union territories” L) Construction of the proviso to Article 239AA(4) M) Conclusions D A Introduction

1. A batch of petitions in the Delhi High Court addressed unresolved issues between the Lieutenant Governor of the National Capital Territory and its Council of Ministers headed by the Chief Minister. The judgment of the Delhi High Court, delivered on 4 August 2016, travelled to this E Court. When the Civil Appeals were heard, a Bench consisting of Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in an order dated 15 February 2017 was of the opinion that the appeals should be heard by a Constitution Bench as substantial questions of law about the interpretation of Article 239AA of the Constitution are involved.

F 2. This batch of cases is about the status of Delhi, after the Sixty- ninth constitutional amendment1, but more is at stake. These cases involve vital questions about democratic governance and the role of institutions in fulfilling constitutional values. The Constitution guarantees to every individual the freedom to adopt a way of life in which liberty, dignity and autonomy form the core. The Constitution pursues a vision of fulfilling G these values through a democratic polity. The disputes which led to these cases tell us how crucial institutions are to the realization of democracy. It is through them that the aspirations of a democratic way of life, based on the rule of law, are fulfilled. Liberty, dignity and autonomy are 1 The Constitution (Sixty Ninth Amendment) Act, 1891 H

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constraining influences on the power of the state. Fundamental human A freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern. In a society such as ours, which is marked by B a plurality of cultures, a diversity of tradition, an intricate web of social identity and a clatter of ideologies, institutional governance to be robust must accommodate each one of them. Criticism and dissent form the heart of democratic functioning. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision making positions within them. Hence, these cases are as much about interpreting the Constitution as they are about the role of institutions in the structure of democratic governance and the frailties of those who must answer the concerns of citizens.

3. In the first of a series of articles in the New York Times of 14 December 2017, David Brooks laments events which occurred in various parts of the world, casting a shadow on democracy. Liberal democracy seemed to triumph with the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa. Many of those aspirations are continuously under challenge. The foundation for addressing the aspirations of a democratic spring are reflected in Brooks’article titled – ironically – “the Glory of Democracy”. Drawing from Thomas Mann’s “The Coming Victory of Democracy” (1938), he has this to say: F “Democracy, Mann continues, is the only system built on respect for the infinite dignity of each individual man and woman, on each person’s moral striving for freedom, justice and truth. It would be a great error to think of and teach democracy as a procedural or political system, or as the principle of majority rule. G It is a “spiritual and moral possession.” It is not just rules; it is a way of life. It encourages everybody to make the best of their capacities – holds that we have a moral responsibility to do so. It encourages the artist to seek beauty, the neighbour to seek H

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A community, the psychologist to seek perception, the scientist to seek truth. Monarchies produce great paintings, but democracy teaches citizens to put their art into action, to take their creative impulses and build a world around them. “Democracy is thought; but it is thought related to life and action.” Democratic citizens are not just dreaming; they are thinkers who sit on the town council. He quotes the philosopher Bergson’s dictum: “Act as men of thought, think as men of action.”2 While we have to interpret the Constitution in deciding this reference, it is well to remind ourselves that how citizens respond to their statesmen has a powerful role in giving meaning to the fine print of law. B Constitutional Morality

4. The Constitution was adopted in an atmosphere of expectation and idealism. The members of the Constituent Assembly had led the constitutional project with a commitment to the future of a nascent nation. “India’s founding fathers and mothers”, Granville Austin observes, “established in the Constitution both the nation’s ideals and the institutions and processes for achieving them”.3 These ideals were “national unity and integrity and a democratic and equitable society”4. The Constitution E was designed “to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice”5. All this was to be achieved through a democratic spirit using constitutional and democratic institutions.6

5. Democracy is not limited to electing governments. It generates F aspirations and inspires passions. Democracy is based on “the recognition that there is no natural source of authority that can exercise power over individuals”.7 When India attained independence, it faced a major 2 David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017), available at https://www.nytimes.com/2017/12/14/opinion/democracy-thomas- mann.html G 3 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford Univer- sity Press (1966), page xi 4 Ibid 5 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press (2008), at page 15 6 Granville Austin (Supra Note 3) 7 Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages H 35-36

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dilemma. Democracy as an ideal had developed in the course of the nationalist struggle against colonial rule. Democratic political institutions were still to develop, at any rate fully: “Democracy emerged in India out of a confrontation with a power imposed from outside rather than an engagement with the contradictions inherent in Indian society … In the West, the democratic and industrial revolutions emerged together, reinforcing each other and slowly and steadily transforming the whole of society. The economic and social preconditions for the success of democracy grew along with, and sometimes in advance of, the political institutions of democracy. In India, the political argument for democracy was adopted by the leaders of the nationalist movement from their colonial rulers and adapted to their immediate objective which was freedom from colonial rule. The building of new political institutions took second place, and the creation of the economic and social conditions for the successful operation of those institutions, such as education, health care, and other social services, lagged well behind.”8

6. The framers of the Constitution were aware of the challenges which the newly instituted democracy could face. In his address to the Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”.9 To E tackle these challenges, the Constitution envisaged the existence of a responsible and representative government. Provisions regarding administration of democracy were incorporated, in detail, into the Constitution by the members of the Constituent Assembly. Dr Ambedkar made an impassioned plea that the core values of Indian democracy, to be protected and sustained, ought to be guided by the presence of constitutional morality.

7. While moving the Draft Constitution in the Constituent Assembly on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote: “By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the 8 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012) 9 Constituent Assembly Debates, Vol. 7 (4th November 1948) 10 Ibid H

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A habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.” B Dr Ambedkar made it clear that constitutional morality was to be cultivated and learned. Constitutional morality was not a “natural sentiment” and its diffusion could not be presumed. While highlighting that the diffusion of constitutional morality is indispensable for “the peaceful working of the democratic constitution”, Dr Ambedkar C observed that the form of the Constitution had to be in harmony with the form of its administration: “One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, D without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.” (emphasis added)

8. If the moral values of our Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values. In order to truly understand what constitutional morality reflects, it is necessary to answer “what it is that the Constitution is trying to say” and to identify “the broadest possible range… to fix the meaning of the text”11. Bhargava’s work titled “Politics and Ethics of the Indian Constitution”12 focuses on the necessity to identify the moral values of the Constitution: “There is… a pressing need to excavate the moral values embedded in the Constitution, to bring out their connections, and to identify the coherent or not-so-coherent ethical worldviews within it. It is not implausible to believe that these values are simply out there, holding their breath and waiting to be discovered. The Constitution is a socially constructed object, and therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It 11 Rajiv Bhagava (Supra note 5), at page 6 12 Ibid H

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is high time we identified these interpretations and debated their A moral adequacy.”13

9. Constitutional morality does not mean only allegiance to the substantive provisions and principles of the Constitution. It signifies a constitutional culture which each individual in a democracy must imbibe. Pratap Bhanu Mehta identifies certain features of constitutional morality? B chief amongst them being liberal values? which governed the making of India’s Constitution and created expectations from the polity: “The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability C to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.”14 (Emphasis supplied) D One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise.”15 It envisages partnership and coordination between various institutions created by the Constitution. Mehta has underlined the importance of constitutional partnerships by referring to the working of the Constituent Assembly: “The ability to work with difference was augmented by another quality that is rarer still: the ability to acknowledge true value. This may be attributed to the sheer intellectualism of so many of the members. Their collective philosophical depth, historical knowledge, legal and forensic acumen and sheer command over language is enviable. It ensured that the grounds of discussion remained intellectual. Also remarkable was their ability to acknowledge greatness in others. It was this quality that allowed Nehru and Patel, despite deep differences in outlook and temperament, to acknowledge each other. Their statesmanship was to not let their differences produce a debilitating polarization, 13 Ibid, at page 9 14 Pratap Bhanu Mehta, “What is constitutional morality?”, Seminar (2010), available at http://www.india-seminar.com/2010/615 pratap bhanu mehta.htm. 15 Ibid H

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A one that could have wrecked India. They combined loyalty and frankness.”16

10. Constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices. Frohnen and Carey formulate the demands of the concept thus: B “Constitutional moralities… can be understood as anticipated norms of behavior or even duties primarily on the part of individuals within our constitutional institutions. We use the term morality and refer to constitutional morality with regard to these norms or duties principally because of the purpose they serve; they can be viewed as imposing an obligation on individuals and institutions to ensure that the constitutional system operates in a coherent way, consistent with its basic principles and objectives.”17

11. Another major feature of constitutional morality is that it provides in a Constitution the basic rules which prevent institutions from turning tyrannical. It warns against the fallibility of individuals in a democracy, checks state power and the tyranny of the majority. Constitutional morality balances popular morality and acts as a threshold against an upsurge in mob rule: “It is important not to forget that human beings are fallible, that they sometimes forget what is good for them in the long run, and that they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a framework of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They make some dimensions of the political process beyond the challenge of ordinary politics.”18

G 12. No explanation of constitutional morality will be complete without understanding the uniquely revolutionary character of the 16 Ibid 17 Bruce P. Frohnen and George W. Carey, “Constitutional Morality and the Rule of Law”, Journal of Law and Politics (2011), Vol. 26, at page 498 18 Rajiv Bhagava (Supra note 5), at pages 14-15 H

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Constitution itself. Granville Austin has referred to the Indian Constitution A as a “social revolutionary” document, the provisions of which are aimed at furthering the goals of social revolution.19 Austin described the main features of the Indian Constitution as follows: “It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. Democracy, representative government, personal liberty, equality before law, were revolutionary for the society. Social-economic equitableness as expressed in the Directive Principles of State Policy was equally revolutionary. So were the Constitution’s articles allowing abolishing untouchability and those allowing for compensatory discrimination in education and employment for disadvantaged citizens.”20 (Emphasis supplied) The core of the commitment to social revolution, Austin stated, lies in the Fundamental Rights and in the Directive Principles of State Policy, which are the “conscience of the Constitution” and connect India’s future, present, and past.21 Constitutional morality requires the existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain.

13. Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self-renewal”22. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly. Andre Beteille in “Democracy and its Institutions” (2012) speaks of the significance of constitutional morality: F “To be effective, constitutional laws have to rest on a substratum of constitutional morality… In the absence of constitutional morality, the operation of a Constitution, no matter how carefully written, tends to become arbitrary, erratic, and capricious. It is not possible in a democratic order to insulate completely the domain G of law from that of politics. A Constitution such as ours is expected 19 Granville Austing (Supra note 3), at pages 63 20 Ibid, at page xiii 21 Ibid, at page 63. 22 Pratap Bhanu Mehta (Supra note 14) H

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A to provide guidance on what should be regulated by the impersonal rule of law and what may be settled by the competition for power among parties, among factions, and among political leaders. It is here that the significance of constitutional morality lies. Without some infusion of constitutional morality among legislators, judges, lawyers, ministers, civil servants, writers, and public intellectuals, B the Constitution becomes a plaything of power brokers.”23

14. Constitutional morality underscores the ethics of politics in a country. It gives politics the identity to succeed. In his last address to the Constituent Assembly on November 25, 1949, Dr Ambedkar discussed the importance of the role of the people and political parties in a C constitutional democracy: “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. D The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their E politics.”24 He also invoked John Stuart Mill to caution the nascent Indian democracy of the perils of personifying institutions or laying down liberty “at the feet of even a great man, or to trust him with power which enables him to subvert their institutions”. In Dr Ambedkar’s words: F “[I]n India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and G to eventual dictatorship.”25 Institution building is thus a facet of constitutional morality. It envisages an institutional basis for political behaviour. It involves that the political 23 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012) 24 Constituent Assembly Debates, Vol. 11 (25th November, 1949) H 25 Ibid

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parties and the political process address issues affecting the public at large. Constitutional morality reduces the gap between representation and legitimacy.26 Justice Dipak Misra (as the learned Chief Justice then was) held in Manoj Narula v Union of India27 that: “The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints”. It is only when political conflicts are regulated through negotiations and accommodation that the enforcement of constitutional principles can be achieved.

15. Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past fromtearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes: “Of necessity, constitutions are unfinished. What is explicit in the text rests on implicit understandings; what is stated rests on what is unstated.”28

16. Constitutional morality provides a principled understanding for unfolding the work of governance. It is a compass to hold in troubled waters. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. F Our expectations may be well ahead of reality. But a sense of constitutional morality, drawn from the values of that document, enables us to hold to account our institutions and those who preside over their destinies. Constitutional interpretation, therefore, must flow from constitutional morality. 26 G Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), at page 12 27 (2014) 9 SCC 1 28 Martin Lughlin, “The Silences of Constitutions”, International Journal of Constitutional Law (2019, In Press), available at https://www.jura,uni-freiburg de/de/ institute/rphil/freiburger vortraege/silences-of-constitutions-m-loughlin- manuskript.pdf H

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A C Constitutional Interpretation

17. The primary task before the Court here, as in other constitutional cases, is to interpret the Constitution. This reflects a truism. For, while deciding what the Constitution means, we must understand what it says. First and foremost, in understanding the text of the B Constitution, it must be borne in mind that the Constitution is not merely a legal document. The Constitution embodies a political vision of a plural democratic polity. This political vision combines with the values which the founding fathers infused to provide a just social compact in which individual aspirations for dignity and liberty would be achieved. Hence, any interpretation of the Constitution must be unabashed in accepting C the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The values which the Constitution as a political document incorporates, provide the foundation for understanding its text. It is in that sense that successive generations of judges have reminded themselves that it is, after all, a D Constitution that we are expounding. The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. Constitutional history embodies events which predate the adoption of the Constitution. E Constitutional history also incorporates our experiences in the unfolding of the Constitution over the past sixty eight years while confronting complex social and political problems. Words in a constitutional text have linkages with the provisions in which they appear. It is well to remember that each provision is linked to other segments of the document. It is only when they are placed in the wide canvas of constitutional values that a true understanding of the text can emerge. The principle that the text has to be deduced from context reflects the limitations in understanding the Constitution only as a legal document. To perceive the Constitution as a purely legal document would be an injustice to the aspirations of those who adopted it and a disservice to the experience of our society in grappling with its intractable problems. Justice HR Khanna in Kesavananda Bharati v State of Kerala29 (“Kesavananda”) held thus: “A Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A 29 H AIR (1973) SC 1461

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Constitution cannot be regarded as a mere legal document... A A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful.”

18. The second value which must be borne in mind is that the Constitution recognises the aspirations of popular sovereignty. As its Preamble tells us, the document was adopted by “We the People of India”. The Preamble sets forth at the outset the creation of a “sovereign... democratic, republic”. It is through the expression of the sovereignty of the people and on the cornerstone of a democratic and republican form of government that the Constitution seeks to achieve justice, liberty, equality and fraternity. The width of our constitutional aspirations finds abundant reflection in the plurality and diversity of the elements which it comprehends within justice, liberty, equality and fraternity. Justice D incorporates its social, economic, and political manifestations. Liberty incorporates freedom of thought, expression, belief, faith and worship. Equality is defined in its substantive sense to include equality of status and opportunity. Fraternity seeks to assure dignity to the individual while, at the same time, ensuring the unity and integrity of the nation. E

19. There are four abiding principles which are essential to understanding the content of the Constitution. The first is that as a political document, the Constitution is an expression of the sovereignty of the people. The second is that the Constitution seeks to achieve its vision of a political and social ordering on the basis of democracy. A democratic form of government recognises that sovereignty resides within the people. F Popular sovereignty can exist when democracy is meaningful. The third principle is that the Constitution adopts a republican form of government in which the powers of sovereignty are vested in the people and are exercised directly or through their elected representatives. The fourth, which is not the least in importance, is the secular ideology of the G Constitution. For, it is on the foundation of a secular order that freedom, liberty, dignity and equality to every citizen is achieved.

20. These principles, it is well to remind ourselves, are not just political exhortations. They constitute the essence and substance of the H

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A Constitution and provide the foundation for the fine print of governance. It is through the expression of popular sovereignty that the Constitution has provided an assurance for the enforcement of equality and of equal protection of the law. The four founding principles constitute the means of achieving accountability and amenability to the rule of law. The democratic method of governing the country is a value which is intrinsic to the Constitution. Democracy as a way of life is also instrumental in achieving fundamental freedoms which the Constitution assures to each individual. Each of the four principles has an inseparable connect. They provide the basis on which the Constitution has distributed legislative and executive power between the Union and the states. They provide the foundation for ensuring basic human freedoms in the realisation of dignity, liberty and autonomy. They embody the architecture for the governance of the nation. In many respects, the complexity of our Constitution is a reflection of the intricate cultural and social structures within Indian society. The Constitution has attempted to bring about an equilibrium in which a diversity of tradition, plurality of opinion and variations of culture can co-exist in one nation. To ignore the infinite variety which underlies our constitutional culture is to risk its cohesion. The integrity of the nation is founded on accepting and valuing co- existence. Constitutional doctrine must be evolved keeping in mind these principles.

E 21. Unlike many other constitutional texts in the democratic world, the Indian Constitution has lived through a multitude of amendments. In Puttaswamy30, this Court had held: “The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future.” The exercise of the amendatory power cannot be construed as a reflection of the deficiency of its original text, as much as it is a reflection of the felt need to create new institutions of governance, recognize new rights 30 (2017) 10 SCC 1 H

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and to impose restraints upon the assertion of majoritarian power. Over A time, the Constitution was amended to provide constitutional status to local self-governing bodies, such as the Panchayats in Part IX, the municipalities in Part IXA and co-operative societies in Part IXB. These structures of governance have been constitutionally entrenched to enhance participatory and representative democracy. In other B amendments, new rights have been expressly recognized such as the right to free and compulsory education for children between the ages of six and fourteen in Article 21A. As the nation gained sobering experiences about the excess of political power during the Emergency, the constituent power responded by introducing limitations (through the Forty Fourth Amendment) on the exercise of the emergency powers under Article C 352 and by circumscribing the power to override elected governments in the states under Article 356.

22. The basic structure doctrine was evolved by judicial interpretation in Kesavananda to ensure that the fundamentals of constitutional governance are not effaced by the exercise of the constituent power to amend the Constitution. The postulate of the doctrine is that there are values which are so fundamental and intrinsic to the democratic way of life, a republican form of government and to the preservation of basic human freedoms, that these must lie outside the power of legislative majorities to override by the exercise of constituent powers. The doctrine was a warning to “a fledgling democracy of the perils of brute majoritarianism”31. The basic structure doctrine and the power of judicial review have ensured (in the course of the previous thirty four years) the preservation of basic constitutional safeguards and the continuance of constitutional institutions accountable to the sovereignty of the people. The basic structure doctrine imposes a restraint on the exercise of the constituent power. Equally, it is necessary to remember that the exercise of the constituent power may in certain cases be regarded as enhancing the basic structure. The constituent power enhances the basic structure when it recognizes new sets of human freedoms, sets up new structures of representative governance in the constitutional text or imposes restraints on the power of the state to override popularly elected institutions. Secularism, which is inherent in the entire constitutional framework and flows from fundamental rights 31 Raju Ramchandran, “The Quest and the Questions”, Outlook (25 August, 2014), available at https://www.outlookindia.com/magazine/story/the-quest-and-the-ques- tions/291655 H

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A guaranteed in Part III, is a part of the basic structure of the Constitution.32 Secularism is based on the foundations of constitutional morality and reflects the idea of our democracy. The insertion of the word “Secular” into the Preamble of the Constitution, by the 42nd amendment, did not redefine the Constitution’s identity. The amendment formally recognized the bedrock of the constitutional scheme. The amendment solidified the B basic structure of the Constitution.

23. Democracy has been held, by a Constitution Bench of this Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic structure of our Constitution. The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating C a democratic form of governance to a constitutional status for the National Capital Territory. In interpreting such exercises of the constituent power which fortify the basic structure, the meaning of the constitutional text must be guided by the intent underlying such exercises of the constituent power. A nine-judge Bench of this Court in I.R. Coelho v State of D Tamil Nadu34 had held thus: “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic E structure due regard be had to various decisions which led to expansion and development of the law. The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. F The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, G necessitating different independent centers of decision making.” (emphasis supplied) 32 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of India, (1994) 3 SCC 1 33 1992 SCC Supl. (2) 651 34 (2007) 2 SCC 1 H

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It is in this background that it would be necessary to turn to the provisions A of Part VIII of the Constitution. D Part VIII of The Constitution: The Union Territories

24. Part VIII of the Indian Constitution, prior to 1956, dealt with Part C of the First Schedule. Part VIII was amended by the Seventh Amendment to the Constitution in 1956. Simultaneously, the First Schedule B was amended by the Seventh Amendment (together with Article 1). In place of the Part A, B and C States, the Constitution now provides a division of the territory of the nation between the States and the Union Territories. While clause 1 of Article 1 stipulates that India is a Union of States, clause 2 incorporates the States and the Union Territories of the C First Schedule. The territory of India, as Clause 3 of Article 1 provides, comprises of : (i) The territories of the States; (ii) The Union territories; and D (iii) Territories which may be acquired.

25. Article 239 provides thus: “239. (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. (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.” Clause 1 of Article 239 has several elements, which are significant to understanding its content: (i) Clause 1, as its opening words indicate, is subject to Parliament providing “otherwise… by law”; G

(ii) Every Union territory is administered by the President; (iii) Administration of a Union territory by the President is to such extent as the President “thinks fit”; H

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A (iv) Administration by the President is through the office of an Administrator; and (v) The Administrator is appointed by the President with a designation as he will specify. Article 239A, which was inserted by the fourteenth amendment to the B Constitution in 1962, provides 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, D or both with such constitution, powers and functions, in each case, as may be specified in the law. (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 E provision which amends or has the effect of amending this Constitution.” Article 239A applies to the Union territory of Puducherry (Goa, Daman and Diu were excluded with effect from 1987 by the Goa, Daman and Diu Reorganisation Act, 1987). F

26. Article 239A is enabling. It enables Parliament to enact a law for the Union territory so as to create a legislature or a Council of Ministers or both. In creating a legislature, Parliament is left free to determine whether the legislative body should be entirely elected or should consist of a certain number of nominated legislators. Parliament, in its legislative G power, may decide either to create a legislature or a Council of Ministers. Whether to do so, in the first place, is left to its discretion. Whether one or both of such bodies should be created is also left to the legislative authority of Parliament. If it decides to enact a law, Parliament is empowered to specify the constitutional powers and functions of the H

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legislature and of the Council of Ministers. While the Constitution provides an enabling provision, the setting up of a legislature, the creation of a Council of Ministers and the ambit of their authority are to be governed by an ordinary law to be enacted by Parliament. Such a law, clause 2 clarifies, would not constitute an amendment of the Constitution under Article 368 even if it were to contain provisions which amend or have the effect of amending the Constitution. Creating democratic institutions for governing Union territories under Article 239A was left to the legislative will of Parliament.

27. In contrast to the provisions of Article 239A is the text which the Constitution has laid down to govern Delhi. The marginal note to Article 239AA provides that the Article makes “special provisions with respect to Delhi”. Article 239AA provides thus: “239AA. Special provisions with respect to Delhi.— (1) As from the date of commencement of the Constitution (Sixty- ninth Amendment) Act, 1991, the Union territory of Delhi D 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. (2) (a) There shall be a Legislative Assembly for the National E 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. (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. (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;

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A and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be 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 B of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 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. C (b) Nothing in sub-clause (a) shall derogate from the powers of 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 D law made by Parliament with respect to that matter, whether passed 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, E to the extent of the repugnancy, be void : 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 : Provided further that nothing in this sub-clause shall prevent F 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 than ten per cent. of the total number of members in the G 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 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 H

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the Lieutenant Governor and his Ministers on any matter, the A Lieutenant Governor shall refer it to the President for decision 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 B immediate action, to take such action or to give such direction in the matter as he deems necessary. (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. C

(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 D clauses and for all matters incidental or consequential thereto. (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 E Constitution. (8) The provisions of article 239B shall, so far as may be, apply in 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 F 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.” Article 239AA is a product of the exercise of the constituent power, tracing its origins to the sixty ninth amendment which was brought into G force on 1 February 1992. Under clause 1, with the commencement of the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory of Delhi is called the National Capital Territory of Delhi. Its Administrator, who is appointed under Article 239, is designated as the Lieutenant Governor. The administrator appointed by the President under Article H

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A 239(1) is designated as the Lieutenant Governor for the National Capital Territory. The source of the power to appoint the Lieutenant Governor is traceable to Article 239(1).

28. Clause 2 of Article 239AA contains a constitutional mandate that there shall be a legislative assembly for the NCT. This is unlike B Article 239A which left it to the discretion of Parliament to create a legislature by enacting a law for the Union territories governed by that provision. Article 239AA imprints the legislative assembly for the NCT with a constitutional status. Its representative character is reflected in the mandate that the members of the legislative assembly shall be “chosen by direct election from territorial constituencies” in the NCT. The C necessity of direct election underlines the rule of participatory democracy and of the members of the legislative assembly being representatives of the people residing in the territorial constituencies comprised in the NCT. Parliament has been assigned the role of regulating through a law, the number of seats in the legislative assembly, reservation for the scheduled D castes, defining the division of the NCT into territorial constituencies and of elucidating the functioning of the assembly in all matters. The importance which the Constitution ascribes to the status of the legislative assembly is evinced by the adoption of the provisions of Articles 324 to 327 and 329 in relation to the NCT as they apply in the case of the legislative assembly of a state. These articles (which are contained in E Part XV of the Constitution) ascribe constitutional status to the Election Commission of India and assign to it the task of superintending, directing and controlling the conduct of all elections. Article 325 is a guarantee against discrimination based on religion, race, caste or sex. Article 326 embodies the principle of adult suffrage. Article 327 empowers Parliament F to enact a law in regard to the elections to the legislatures. Article 329 imposes a restraint on interference by courts in electoral matters. The Constitution has considered the institutional existence of a legislative assembly for Delhi to be a matter of such importance as to be elevated to a constitutional requirement in clause 2 of Article 239AA and to warrant the guarantee of free and fair elections which is enforced through the G constitutionally entrenched position of the Election Commission of India.

29. Clause 3 of Article 239 AA defines the legislative powers of the legislative assembly for the NCT. Sub clause (a) empowers the legislative assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent lists to the Seventh Schedule H

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of the Constitution. The ability of the legislative assembly is circumscribed A “insofar as any such matter is applicable to Union territories”. The legislative assembly can hence enact legislation in regard to the entries in the State and Concurrent lists to the extent to which they apply to a Union territory. Of equal significance is the exception which has been carved out : Entries 1, 2 and 18 of the State List (and Entries 64, 65 and B 66 insofar as they relate to Entries 1,2 and 18) lie outside the legislative powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the State List are thus: “1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).

2. Police (including railway and village police) subject to the provisions of entry 2A of List I.

18. Land, this is to say, rights in o over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; and improvement and agricultural loans; colonization.” The subjects of public order, police and land do not lie within the domain of the legislative assembly. Entries 64, 65 and 66 provide thus : E “64. Offences against laws with respect to any of the matters in this List.

65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. F

66. Fees in respect of any of the matters in this List, but not including fees taken in any court.” The legislative assembly is disabled from enacting laws governing the above entries (which deal with offences against laws referable to the State List, jurisdiction of courts and fees) insofar as they relate to public order, the police and land. This is a constitutional indication of the fact G that the NCT has been considered to be of specific importance from the perspective of the nation to exclude three important areas which have a vital bearing on its status as a national Capital. Apart from the exclusions, the over-arching importance of the regulatory power of Parliament is H

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A underlined by the conferment upon Parliament of legislative power over State as well as Concurrent List subjects in the Seventh Schedule. Unlike state legislative assemblies which wield legislative power exclusively over the State List, under the provisions of Article 246(3), the legislative assembly for NCT does not possess exclusive legislative competence over State List subjects. By a constitutional fiction, as if it were, Parliament B has legislative power over Concurrent as well as State List subjects in the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the legislative assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by thelegislative assembly. Hence, the provisions of clause 2 and clause 3 of Article 239AA indicate that while conferring a constitutional status upon the legislative assembly of NCT, the Constitution has circumscribed the ambit of its legislativePowers firstly, by carving out certain subjects from its competence (vesting them in Parliament) and secondly, by enabling Parliament to enact law on matters falling both in the State and Concurrent lists. Moreover, in the subjectswhich have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament. E E Cabinet Form of Government

30. Before deliberating upon the nature and extent of the executive power of the NCT, it is necessary to discuss the essential features of the cabinet form of government, which are of paramount importance in the current context. F Collective Responsibility

31. Collective responsibility is a cornerstone of the Westminster model. Initially developed35 as a constitutional convention in Britain between 1780 and 1832, it began to appear36 in text-books in the 1860s and 1870s. In 1867, Walter Bagehot, in his classic work titled “The English G Constitution”, called the “House of Commons” as “a real choosing body”, which decides the path that the nationwould follow.37 The consequence 35 AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd (1964), at page 131 36 Ibid, at page 136 37 Walter Bagehot, The English Constitution, 2nd Edition (1873), at page 118, available at H https://socialsciences,mcmaster,ca/econ/ugcm/3113/bagehot/constitution.pdf

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of such a systemic expectation in the British Parliamentary system, A Bagehot declared, was that the public can, “through Parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes”38. The responsibility of Ministers was set as their liability “to have all their public acts discussed in Parliament”39. The Cabinet was defined as “a collective body bound together by a common responsibility”.40 Later, Lord Salisbury formulated this common responsibility thus: “[F]or all that passes in a Cabinet, each Member of it who does not resign is absolutely and irretrievably responsible, and that he has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by one of his Colleagues... It is only on the principle that absolute responsibility is undertaken by every Member of a Cabinet who, after a decision is arrived at, remains a Member of it, that the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential conditions of Parliamentary responsibility established.”41 (Emphasis supplied) Ministers were liable to lose their offices, if they failed to retain the confidence of the House of Commons or the Parliament. In the 1880s, Dicey, “Law of the Constitution”, propounded that: E “[It] is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of F every servant of the Crown, and therefore, in effect of the Crown itself, is brought under the supremacy of the land. Behind parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.”42 G 38 Ibid, at page 34 39 Edward A. Freeman, The Growth of the English Constitution (1872) 40 Ibid 41 HLDeb vol 239 cc 833-4, 8 April 1878 42 Ibid, at page 327 H