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

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A This fixed the responsibility of the Cabinet for the “general conduct of affairs”43 of the government.

32. In the twentieth century, Sir Ivor Jennings conceptualized collective responsibility of a Cabinet Government, thus: “A Government that cannot make up its mind on a fundamental issue ought not to be the Government and will be so regarded in the constituencies. Its fall may be regarded as imminent.”44 The conduct of the cabinet determines the fate of the government.

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34. A study conducted by the London School of Economics and A Political Science in 2007 examined the individual and collective performance of Ministers between 1945-1997. The findings of the study revealed that though the principle acted “as a form of protection for an individual Minister when policies pursued in his department are deemed to have failed”, it also induced a cost for being a member of the B government. All the Ministers of the government, as a consequence of the principle of solidarity, were perceived as jointly sharing the responsibility of policy failure.⁴⁸ The doctrine of collective responsibility has evolved as one of the indispensable features of the parliamentary system of government and reflects the political engagement between government and Parliament. C In a parliamentary democracy, the nuances of the doctrine are political.⁴⁹ To maintain the notion of “collegiality and coherence”, the ministers work as a team. In the Australian context, Wanna (2012) postulates that collective responsibility thereby acts as an under-flowing current necessary for the survival of a government: D “To survive as a government, ministries must show they can maintain the confidence of the house, put up a credible front to their political opponents and the media, and as a working ministry find ways to deal with the business of state, much of which will involve making collective decisions and imposing collegial executive E authority.”50

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A Parliamentary?Cabinet form of government from British constitutional theory and adopted it into our Constitution.⁵² Though the Constituent Assembly did not adopt British constitutional conventions in the written form, collective responsibility of the Cabinet was specifically incorporated into India’s constitutional framework.⁵³ B There is a direct relationship between the principle of collective responsibility and government accountability. This relationship is conceptualized in “The Oxford Companion to Politics in India”: “[A]ccountability can be defined in terms of outcomes rather than processes of government… It also includes the criterion of C responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be… In this broad sense, accountability amounts to evaluating the nature of governance itself, in outcome-oriented terms.”54 D The Oxford Handbook of the Indian Constitution⁵⁵ (2016) adverts to several facets of collective responsibility: “Collective responsibility has several facets. First, ministers act as a common unit; cabinet decisions are binding on all ministers. E Disagreements, if any, may be aired in private. Ministers, however, speak in one voice and stand by one another in Parliament and in public. Those that cannot reconcile themselves with particular government policies, or are unwilling to defend them in public, must resign. Conversely, decisions of particular ministers, unless overruled, are decisions of the government.” F The principle has also been considered as a political component which political parties in power invoke to maintain party discipline.⁵⁶

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Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments: “Governing is a complex affair; hundreds of officials in dozens of departments make many decisions on a daily basis… These officials are also part of the executive, and ministers are responsible for those that serve in their departments… Ordinarily, ministers busy themselves with policy issues; matters of implementation are usually left to officials over whom ministers command little or no oversight. Yet, when they act, subordinates notionally do so on behalf of ministers. Ministers, therefore, cannot seek refuge in ignorance. Nor can they absolve themselves by pointing to their officers. Both inside and outside Parliament, they are accountable for their departmental shortcomings.”57

36. Collective responsibility, as a principle and practice, has been given effect authoritatively in several judgments of this Court. The Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v D The State of Punjab58, examined the functions of the executive. The Court held that the President is “a formal or constitutional head of the executive” and that the “real executive powers” are vested in the Ministers or the Cabinet: “Our Constitution, though federal in its structure, is modelled on E the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State… F In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”. The Cabinet enjoying, as it does, a majority in the legislature G concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and 57 Ibid, at page 320 58 (1955) 2 SCR 225 H

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A act on the principle of collective responsibility, the most important questions of policy are all formulated by them.” (Emphasis supplied) The relationship between the responsibility of the Cabinet and individual Ministers was dealt with in a Constitution Bench decision in A Sanjeevi B Naidu v State of Madras59: “The cabinet is responsible, to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the C Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility.” D In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking for the majority) opined that Ministers must accept responsibility for every executive act: “In England, the sovereign never acts on his own responsibility. E The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre F and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.” A seven-judge Bench decision of this Court in State of Karnataka v Union of India61 explained the substance of a government’s collective G responsibility. All the Ministers are treated as one entity. A government could stay in office only so long as it commands the support and confidence of a majority of the Members of the Legislature. The government is 59 (1970) 1 SCC 443 60 (1974) 2 SCC 831 H 61 (1977) 4 SCC 608

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politically responsible for the decisions and policies of each of the A Ministers and of his department. The sanction against any government action was held to be embodied in the principle of collective responsibility, which is enforced by the “pressure of public opinion” and expressed specifically in terms of withdrawal of political support: “The object of collective responsibility is to make the whole body B of persons holding Ministerial office collectively, or, if one may so put it, “vicariously” responsible for such acts of the others is are referable to their collective volition so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.” C

The decision in Common Cause, A Registered Society v Union of India62 delivered by a three-judge Bench held that the concept of collective responsibility is essentially a “political concept” and that the country is governed by the party in power on the basis of the policies endorsed by its Cabinet. The Court held that the concept of collective D responsibility has two meanings: “The first meaning which can legitimately be ascribed to it is that all members of a Govt. are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a E different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.” The decision in Subramanian Swamy v Manmohan Singh63 theorises F that collective responsibility may be enforced only politically, thereby making its legal implications unclear. In this case, a Minister was charged with committing grave irregularities in the grant of telecom licenses. The appellant had provided documents to the Prime Minister’s Office (PMO) for the grant of sanction to prosecute under the Prevention of G Corruption Act, 1988. This Court held: “In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise Respondent No. 1 [Prime 62 (1999) 6 SCC 667 63 (2012) 3 SCC 64 H

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A Minister] about seriousness of allegations made by the Appellant… By the very nature of the office held by him, Respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to Respondent No. 1 and place full facts and B legal position before him failed to do so. We have no doubt that if Respondent No. 1 had been apprised of the true factual and legal position regarding the representation made by the Appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.” C The decision implied that “individual ministerial decisions… do not always generate collective legal responsibilities”64.

37. Collective responsibility represents a seminal principle for modern parliamentary democracies.65 Collective responsibility of the Council of Ministers ensures accountability to the legislature and to the electorate. Collective responsibility governs the democratic process, as it makes a government liable for every act it does. It envisages that a government works effectively to ensure and fulfil the interests of the public. It purports to ensure transparency in government decisions. Collective responsibility rests on the foundations of constitutional morality, which reflects constitutional ethics. Aid and Advice

38. Collective responsibility under our Constitution is based on a “slightly modified version”66 of the British cabinet system. There is a direct relationship between collective responsibility and the form of government envisaged by the Constitution. The President was designated as the titular head of government. The founding fathers and mothers of the Constitution adopted the convention which made the President generally bound by the advice of the Council of Ministers. This was explained by Dr B R Ambedkar, while introducing the Draft Constitution G on 4th November 1948.

64 The Oxford Handbook of the India Constitution (Supra note 52), at page 320 65 See also Amarinder Singh v Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113; Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1; State of Himachal Pradesh v. Satpal Saini, 20117(2) SCALE 292 66 H Granville Austin (Supra note 3), at page 145

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“Under the Draft Constitution the President occupies the same A position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known… The President B of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament… C A democratic executive must satisfy two conditions - (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree… In England, where the Parliamentary system prevails, the D assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses… The daily assessment of responsibility which is not available under the E American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.”67 (Emphasis supplied) F Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar: “…that the Council of Ministers shall be collectively responsible to the House of the People. If a President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of violation of the Constitution and he will be even G liable to impeachment. Therefore it is merely a euphemistic way of saying that the President shall be guided by the advice of his Ministers in the exercise of his functions. This Council of Ministers will be collectively responsible to the 67 Constituent Assembly Debates, Vol. 7 (4th November 1948) H

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A House of the People, and the House of the People must meet all situations in regard to the budget, in regard to legislation, in regard to every matter connected with the administration of the country. Therefore, if the Council of Ministers is to discharge their responsibility, it will be the duty of the President to see that the Constitution is B obeyed…”68 (Emphasis supplied) As the Chairman of the Constituent Assembly, Dr Rajendra Prasad expected the convention to be developed into a healthy practice in independent India: C “We have had to reconcile the position of an elected President with an elected Legislature and, in doing so, we have adopted more or less the position of the British Monarch for the President… [H]is position is that of a Constitutional President. Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice. Although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and, the President, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a Constitutional President in all matters.” 69 (Emphasis supplied) F The Constitution makers envisaged and adopted a limited role for the President as the nominal head of the Indian State and imposed sanctions on his or her constitutional authority by making them bound by the decisions of the Council of Ministers generally. A similar role was adopted for the Governor in the States.

G 39. After the Constitution had come into force, this Court gave judicial sanction to the convention. In U.N.R. Rao v Smt. Indira Gandhi70, the Constitution Bench held: 68 Ibid 69 Constituent Assembly Debates, Vol. 11 (26th November, 1949) 70 H (1971) 2 SCC 63

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“It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word “shall” should be read as “may”. Article 52 is mandatory. In other words there shall be a President of India.... The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers’ nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61… Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called D “Responsible Government”.” In Samsher Singh v State of Punjab71, while dealing with the question whether the Governor as the Constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service personally, Chief Justice AN Ray delivered the majority judgment, holding that: E

“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of 71 (1974) 2 SCC 831 H

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A any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.” B The Court summed up the position of law as follows: “[W]e hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head C in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally… Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers.” D Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a concurring opinion.

40. The convention that the President shall be bound by the aid and advice tendered by the Council of Ministers was explicitly made a E part of the Constitution by the forty-second constitutional amendment. By the amendment, Article 74(1) was amended to ensure that the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. Article 74(1) reads thus:

F “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.” The Forty-fourth Constitution Amendment added another proviso to Article 74 (1) so that the “President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President G shall act in accordance with the advice tendered after such reconsideration”. Therefore, the position which emerges is that where it has not been expressly provided, the executive head shall be bound by the advice tendered by the Council of Ministers. This constitutional scheme, after the forty-second and forty-fourth amendments, has been H

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judicially reaffirmed. Authoring the judgment of the Constitution Bench A in PU Myllai Hlychho v State of Mizoram72, Justice KG Balakrishnan (as he then was) held that the “satisfaction” of the Governor required by the Constitution for the exercise of any power or function is not the personal satisfaction of the Governor but a satisfaction in the constitutional sense under the Cabinet system of Government, i.e. on the aid and advice of the Council of Ministers. Justice Madan B Lokur, while delivering the concurring opinion in the five-judge Constitution Bench deciJsion in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly73, opined that the absence of the expression “his individual judgment” makes it apparent that the Governor would always be bound by the aid and advice of the Council of Ministers, except in matters where he/she is permitted under the Constitution to act “in his discretion”.

41. Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. By ensuring that government is responsible in its decision making to the legislature, the principle of collective responsibility fosters a responsive and accountable government. Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance. Discussion and dialogue are accepting of dissent. In a system of constitutional governance, collective decision making must allow room for differences. A synthesis can emerge in government, when political maturity and administrative wisdom combine in arriving at acceptable solutions to the problems of governance. Collective responsibility allows for and acknowledges differences in perception and ideology. Yet, what the doctrine does is to place a decision taken by a constituent part of the government as a decision of the government. All Ministers are bound by a decision taken by one of them or their departments. In terms of its accountability to the legislature, government is treated as one decision making unit so that the politics of 72 (2005) 2 SCC 92 73 (2016) 8 SCC 1 H

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A decision making and administrative divergences do not dilute from the responsibility which government owes as a political unit to the legislature. This is crucial to ensuring that government is responsive to the aspirations of the people in whom political sovereignty resides.

42. In Kihoto Hollohan v Zachillhu 74 , Chief Justice B Venkatachaliah speaking for this Court had held thus: “Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not often the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy.”

43. The doctrine of aid and advice enhances the commitment to the same democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance (decision making in the name of a titular head) is subservient to its substance, whichmandates that the real authority to take decisions must reside in the elected arm of the government. The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible. Collective responsibility and the aid and advice doctrine must not be construed as disjunctive but together constitute integral parts of the discourse in ensuring the strength of and commitment to democracy. F The Nature of Executive Power

44. While the legislative power in relation to the NCT is defined in clauses 2 and 3, its executive power forms the subject matter of clause 74 H 1992 SCC Supp. (2) 651

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4 of Article 239AA. Clause 4 institutionalises the position of the Council A of Ministers with a Chief Minister as its head. The constitutional role which is ascribed to the Council of Ministers is 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”. There are three salient features of the executive power which is vested in the Council of Ministers. Firstly, the executive power is co-extensive with the legislative power of the legislative assembly. The executive power extends to all subjects upon which the assembly can legislate. The executive power of the Council of Ministers does not extend to matters on which the legislative assembly cannot legislate. What is beyond the legislative competence of the Assembly is ultra vires the executive powers of the Council of Ministers. Secondly, the delineation of the executive power in clause 4 defines, at the same time, the relationship between the Council of Ministers (headed by the Chief Minister) and the Lieutenant Governor. The Council of Ministers aids and advises the Lieutenant Governor; the corollary being that the Lieutenant Governor D has to act on the basis of the aid and advise tendered by the Council. Thirdly, the exception to the aid and advice principle in the substantive part of clause 4 is in respect of those matters in which the Lieutenant Governor is required to act in its discretion “by or under any law”. In other words, save and except in regard to areas which are reserved for the exercise of his discretion, the Lieutenant Governor must act on the E aid and advice tendered to him by the Council of Ministers.

45. The proviso to clause 4 forms the bone of contention. The proviso envisages a situation where the Lieutenant Governor has a difference of opinion with the Council of Ministers “on any matter”. In such a case, the proviso entails the course of action which the Lieutenant F Governor must follow. The Lieutenant Governor is under a constitutional mandate to refer the difference of opinion to the President for decision. As a consequence, the Lieutenant Governor must necessarily act according to the decision “given thereon” by the President. Pending a decision by the President, the Lieutenant Governor is empowered to take action or to issue directions where the matter is of such an emergent G nature as to require immediate action. The heart of the matter turns upon interpreting the expression “difference of opinion” and the words “on any matter”. Clause 4 does not specify what kind of a difference of opinion would warrant a reference to the President. Nor for that matter, H

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A does it explain the nature of the matter on which a difference of opinion is contemplated. Before we interpret the ambit of the proviso to clause 4, one facet is clear. Where a difference of opinion has arisen, warranting a reference to the President, the proviso leaves the course of action to be followed by the Lieutenant Governor beyond doubt. In a situation where the conditions under the proviso exist, the Lieutenant Governor B has to refer the matter to the President and must abide by the decision of the President. Reading the substantive part of clause 4 and the proviso, it is thus evident that the Lieutenant Governor has two courses of action to follow. Primarily, under the substantive part of clause 4, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers (the only exception being where under a provision of law, he has to act according to his own discretion). However, the embargo upon the Lieutenant Governor acting otherwise than on the aid and advice of the Council of Ministers is lifted only to enable him to refer a difference of opinion on any matter for a decision by the President. In other words, the Lieutenant Governor must either abide by the aid and advice tendered by the Council of Ministers or, in the event of a difference of opinion, reserve it for a decision by the President and thereupon be bound to act in accordance with the decision which has been rendered by the President. Pending the decision by the President, the proviso enables the Lieutenant Governor to attend to a situation requiring immediate action.

46. Before elucidating the nature and ambit of the relationship between the (i) Council of Ministers and the Lieutenant Governor; and (ii) the Lieutenant Governor and the President, it would be necessary to advert to some of the other provisions of Article 239AA which have a F bearing on those relationships. The Lieutenant Governor, as we have noted earlier, is appointed by the President under Article 239(1) read with Article 239AA(1). The Chief Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Chief Minister. They hold office during the pleasure of the President (clause 5). The concept of collective responsibility of the Council of G Ministers to the legislative assembly is expressly embodied in clause 6. A comparative analysis of the provisions of the Constitution relating to the Council of Ministers in the Union and the States indicates that in the case of the NCT, Article 239AA has engrafted the fundamental precept of the collective responsibility of an elected government in a cabinet H

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form of government to the elected legislature. Creating an executive power in government which is co-extensive with the legislative power of the elected legislature and the collective responsibility of the Council of Ministers to the legislature are intrinsic to the cabinet form of government.

47. Parliament has, by clause 7 of Article 239AA, been empowered to make provisions to implement and to supplement the other provisions of that Article. Any law enacted by Parliament to do so would not amount to a constitutional amendment within the meaning of Article 368 even if it amends or has the effect of amending any provision of the Constitution.

48. Article 239AB enunciates the course of action which the C President is empowered to follow where there has been a failure of constitutional machinery in the NCT. Article 239AB provides as follows: “239AB. Provision in case of failure of constitutional machinery.— If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied— D (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital E Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.” Under Article 239AB, the President is empowered to suspend the operation of (i) any provision of Article 239AA; and of (ii) any provisions of law made in pursuance of that Article and to make provisions to administer the NCT, in accordance with Articles 239 and 239AA where, upon a report from the Lieutenant Governor, the President is satisfied that: (a) A situation has arisen where the administration of the NCT cannot be carried on in accordance with Article 239AA or a law made H

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A in pursuance of it; or (b) For the proper administration of the NCT. Article 239B as already noted confers power upon the administrator of Puducherry to promulgate ordinances during the recess of the legislature. This power is also conferred upon the Lieutenant Governor of the NCT by clause 8 of Article 239AA. Under Article 241, Parliament is empowered to constitute a High Court for a Union territory.

49. In understanding the nature of the executive power in relation to the NCT of Delhi and the relationship between the Council of Ministers and the Lieutenant Governor on one hand, and the Lieutenant Governor and the President on the other, it is necessary to draw a comparison with the provisions of the Constitution governing the Union and the States. Part V of the Constitution (consisting of Articles 52 to 151) deals with the Union; Part VI (comprising of Articles 152 to 237) deals with the States and Part VIII (comprising of Articles 239 to 241) deals with the Union territories. Parts V and VI contain similar elucidations with some important variations. Both Part V and Part VI deal with the executive, the legislative power of the President, and the judiciary. Part V covers the Union judiciary, while Part VI cover the High Courts and the subordinate courts in the States.

50. Article 52 provides for the President. Article 53 stipulates that the executive power of the Union shall be vested in the President and shall be exercised by him directly or through subordinate officers in accordance with the Constitution. Under Article 73, the executive power of the Union extends (a) to matters with respect to which Parliament has power to make laws; and (b) to the exercise of rights, authority and jurisdiction exercisable by the Union government under a treaty or agreement. Article 73 provides thus: “73. Extent of executive power of the Union.— (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend— (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: H

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Provided that the executive power referred to in sub-clause (a) A shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer B or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.” C The proviso to Article 73(1) stipulates that except as may be expressly provided by Constitution or in any law which has been enacted by Parliament, the executive power of the Union under sub clause (a) of clause 1 does not extend in a State to matters with respect to which the legislature of the State has also power to make laws. The effect of the proviso is that the executive power of the Union does not extend to D matters in the Concurrent List, since these are matters on which State legislatures also have the power to make laws. Article 74(1) provides for a Council of Ministers with the Prime Minister as the head. The function of the Council of Ministers is “to aid and advice the President”. The President is, in the exercise of his functions, under a mandate to E “act in accordance with such advice”. Article 74 provides as follows: “74. Council of Ministers to aid and advise President.— (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: F Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered G by Ministers to the President shall not be inquired into in any court.” Article 77 provides for the conduct of the business of the Union government: H

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A “77. Conduct of business of the Government of India.— (1) All executive action of the Government of India shall be expressed to be taken in the name of the President. (2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” By and under Article 77(1) the executive action of the Union government is expressed to be taken in the name of the President. Under clause 2, orders and instruments made and executed in the name of the President D are to be authenticated in such a manner as may be specified in the rules made by the President. Clause 3 enables the President to make rules for the transaction of the business of the government and for the allocation of governmental business among ministers. Article 78 embodies the basic duty of the head of the elected government in a Cabinet form of E government to communicate with and to furnish information to the President. Article 78 provides as follows : “78. Duties of Prime Minister as respects the furnishing of information to the President, etc.— It shall be the duty of the Prime Minister— F (a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President G may call for; and (c) if the President so requires, to submit for the 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.” H

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These provisions of the Constitution institutionalise the relationship between the President and the Union Cabinet and re-affirm the position of the President as the titular head of state. The President must act on the aid and advise tendered by the Union Cabinet. The executive power of the Union is co-extensive with the legislative power of Parliament. In a cabinet form of government, it is the Council of Ministers which owes collective responsibility to the House of the People. Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature. Though all executive action is expressed to be taken in the name of the President and orders and instruments made and executed in the name of the President are authenticated in the manner prescribed by rules, the constitutional position of the President is of a titular head. The use of the expression “in the exercise of his functions” in Article 74(1) is formalistic in nature since the substance of executive power is vested in and conferred upon the government constituted through the Council of Ministers which owes collective responsibility to Parliament. The proviso to Article 74(1) stipulates that while the President may require the Council of Ministers to reconsider his advice, once that has been done, the President is bound to act on the advice tendered after reconsideration.

51. The position of the President as a titular head of State is evidenced in the constitutional provisions which define the relationship between the President and Parliament. Under Article 111, a Bill is presented to the President for assent upon being passed by the Houses of Parliament. Under the proviso to Article 111, the President is empowered to return a Bill for reconsideration (if it is not a Money Bill). Upon being reconsidered, if the Bill is passed again by the Houses of Parliament (with or without amendment) the President shall, thereafter, not withhold assent.

52. In Part VI of the Constitution, the provisions which define the role of the Governor in relation to the states indicate that the Governor is also a titular head of government in each state. The executive power of the State is vested in the Governor under Article 154. The Governor is appointed by the President under Article 155 and holds office during the pleasure of the President under Article 156. The executive power of the state is co-extensive with the legislative power, by virtue of Article 162. However, in relation to matters on which both the legislature of a State and Parliament can enact law, the executive power of the state is subject H

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A to and limited by the conferment of executive power upon the Union by the Constitution or by a law enacted by Parliament. In the States, Article 163 postulates a Council of Ministers with the Chief Ministers as its head to aid and advice the Governor in the exercise of his functions, except where the Governor is under the Constitution required to exercise any of the functions in his own discretion. Where a question arises as to whether the Governor is required to act in his discretion, Article 163(2) makes the decision of the Governor final. While the Chief Minister is appointed by the Governor under Article 164, other ministers are appointed by the Governor on the advice of the Chief Minister and hold office during the pleasure of the Governor. Article 164(2) incorporates the principle of collective responsibility of the Council of Ministers to the legislative assembly of the State. Article 166 contains a provision dealing with the conduct of the business of the government of the State which is pari materia with Article 77. Similarly, Article 167 incorporates the duty of the Chief Minister to communicate with and to furnish information on the affairs of the state to the Governor, in terms similar to Article 78. D

53. While assessing the status of the National Capital Territory under Article 239AA, certain significant aspects need to be borne in mind: (i) Article 239AA is a result of the exercise of the constituent power under Article 368 of the Constitution. By and as a result of Article 239AA, special provisions have been made for the National Capital Territory of Delhi. These provisions are not an emanation of an act of ordinary legislation; (ii) For the NCT of Delhi, the exercise of the constituent power has resulted in a constitutionally entrenched status both for the legislature and for the Council of Ministers. The legislative assembly is elected by the process of direct election. The legislative assembly has the power to enact law in respect of matters in the State List of the Seventh Schedule (save for the excepted matters in Entries 1, 2 and 18 and Entries 64, 65 G and 66 insofar as they relate to entries 1, 2 and 18). Yet, while the legislative powers which have been conferred on the legislative assembly extend to the State List (save for the excepted entries) and the Concurrent List, Parliament has been empowered to legislate both on matters falling within H the State and the Concurrent lists. Parliament possesses

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overriding legislative powers over matters falling in both the A State and Concurrent lists for the NCT; and (iii) Article 239AA(4) provides constitutional status to the Council of Ministers and embodies the entrenched principle in a cabinet form of government that a titular head of state acts on the aid and advice tendered by his ministers, who owe collective responsibility to the legislature. In setting up a structure of governance in which there is a legislature elected through the process of direct election and an executive arm which is collectively responsible to the legislature and which, in the discharge of its functions, tenders aid and advise to Lieutenant Governor on matters which are co-extensive with legislative power, the Constitution has incorporated the basic principles of the cabinet form of government. The adoption of these special features of the cabinet form of government in relation to the NCT must weigh while interpreting Article 239AA.

54. At the same time, the constitutional scheme indicates several features in relation to the NCT which have resulted in the conferment of a constitutional status which falls short of the trappings of full statehood. They include the following : (a) The position of the National Capital Territory is subsumed under Part VIII which applies to Union territories. Delhi is and continues to be a Union territory governed by Part VIII; (b) Every Union territory is, under Article 239(1), administered by the President acting through an Administrator. The Administrator appointed under Article 239(1) is designated as the Lieutenant Governor for the NCT under Article F 239AA(1). Article 239 is the source of the constitutional power to appoint the Lieutenant Governor for the NCT; (c) The position that the application of Article 239 is not excluded in relation to the NCT is made evident by Article 239AB. In a situation in which the President is empowered to suspend G the provisions of Article 239AA, where the administration of the NCT cannot be carried on in accordance with Article 239AA, or of any law made in pursuance of that Article, the President is empowered to make consequential provisions for administering the territory in accordance with Article 239 as H

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A well as Article 239AA. Hence, the provisions of Article 239AA cannot be read disjunctive from Article 239(1); (d) The administration of a Union territory by the President acting through an Administrator is firstly subject to Parliamentary law and secondly, to such extent as he thinks fit. Hence the nature of the administration of a Union territory, including NCT is subject to these two provisions; (e) The position of the NCT as distinguished with the constitutional position of a State finds expression in the contrast between Article 239AB and Article 356 on the other. Upon the exercise of the power under Article 356, the President “can assume to himself” the functions of the government of the State and declare that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament. In contrast, Section 239AB empowers the President to suspend the operation of Article 239AA or of any provision of law made under it and to thereupon make consequential provisions for the administration of the NCT in accordance with Articles 239 and 239AA; and (f) While emphasising the binding character of the aid and advise tendered to the President, or as the case may be, the Governor, E the constitutional position in relation to the Lieutenant Governor contains a distinct variation. Article 74(1) embodies, in relation to the President of India, the binding character of the aid and advice tendered by the Council of Ministers by specifying that the President shall, in the exercise of his functions, act in accordance with such advice. Upon the President requiring the Council of Ministers to reconsider their advice, the President is bound to act upon the advice which is tendered after reconsideration. Similarly, in the case of Governors in the states, Article 163(1) provides for a Council of Ministers “to aid and advise the Governor in the exercise of his functions”, except where the Governor is required by the Constitution to exercise his functions in his discretion. Article 239AA(4) incorporates in its substantive segment the constitutional principle of aid and advice which the Council of Ministers tenders to the Lieutenant Governor in the exercise of his functions. But, in relation to the advice tendered by the

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Council of Ministers, the proviso to Article 239AA(4) has engrafted a special provision which does not have a corollary in Article 163. While under Article 163(1), the Governor is required to act upon the aid and advice tendered (save in matters which the Constitution entrusts to the discretion of the Governor), the proviso to Article 239AA(4) contemplates an area where the binding character of the aid and advice tendered to the Lieutenant Governor is lifted in the event of a “difference of opinion.. on any matter”.

55. In resolving the area within which the Lieutenant Governor can refer the difference of opinion with the Council of Ministers of the NCT to the President, it would be necessary to balance on the one hand the constitutional principles of the cabinet form of government adopted in Article 239AA, while on the other hand leaving open the latitude, which has been created by the proviso to clause 4 considering the special status of the NCT. The former consideration would need the court to pursue a line of interpretation which does not detract from the fundamental principles of representative government. An elected government reflects in a democracy, the aspirations of the people who vote to elect their representatives. The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of government, real power must subsist in the elected arms of the State. Ministers of government are elected representatives of the people. E They are accountable to the people through their collective responsibility to the legislature. As a collective entity, the Council of Ministers owes responsibility to the legislature. The relationship between the Council of Ministers and the titular head of State is governed by the over-arching consideration that real power and substantive accountability is vested in the elected representatives of the people. The principle of aid and advice is in a constitutional sense intended to strengthen the constitutional value of representative government and of governance which is accountable and responsive to the electorate. While bearing these fundamental constitutional principles of a democracy in mind, a balance has to be struck with the second of the above elements which recognises the special status of the NCT. The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and H

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A immediate impact upon the collective welfare of the nation. This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the NCT. These considerations would necessarily require a careful balance between the two principles. Each of the two principles must be given adequate weight in producing a result which promotes the basic B constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.

G Constitutional History of the NCT

C 56. Mr Gopal Subramanium, learned Senior Counsel, appearing on behalf of the NCT, has submitted that the NCT occupies a unique position in our constitutional jurisprudence. It has been contended by Mr Subramanium that the NCT, though it remains a Union Territory, has come to acquire various characteristics that were, prior to the 69th D constitutional amendment, considered under the Constitution to be characteristics solely of States. As a consequence, the learned Senior Counsel has further contended, NCT has become a constitutional hybrid with powers that were formerly only found in full-fledged States of the Union and therefore enjoys far more powers than the government of any other Union Territory. On the contrary, Mr Maninder Singh, the learned Additional Solicitor General has submitted that the NCT finds its place as a Union Territory in Part II of Schedule I of the Constitution. It has been contended on his behalf that the NCT has historically remained a centrally administered territory with the status of a Union Territory in the Constitution and that it continues to remain a Union Territory even after the 69th constitutional amendment.

57. In order to interpret the constitutional scheme envisaged for the NCT, this Court must analyze the constitutional history and the evolution of the structure of governance for the NCT as brought into existence, by various enactments, from time to time. G The Government of Part C States Act, 1951

58. The first Schedule to the Constitution originally contained Part A, Part B and Part C States. After the adoption of the Constitution, The

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Government of Part C States Act, 1951 was enacted. Section 2(c) defined A the expression Delhi thus: “Section 2(c) “Delhi”, except where it occurs in the expression “State of Delhi”, means such area in the State of Delhi as the Central Government may by notification in the Official Gazette specify.” B Section 3 provided for the constitution of a legislative assembly for each state governed by the law. It provided for the establishment of legislative assemblies for the states of Ajmer, Bhopal, Coorg, Delhi, Himachal Pradesh and Vindhya Pradesh. The Chief Commissioner was entrusted with the power, under Section 8(2), to prorogue and dissolve the assembly. C Section 12 conferred upon the Chief Commissioner the right to address and send messages to the assembly. Section 21 of the Act defined the extent of legislative power: “Section 21- Extent of legislative power “(1) Subject to the provisions of this Act, the Legislative Assembly D of a State may make laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List: Provided that the Legislative Assembly of the State of Delhi shall not have power to make laws with respect to any of the following matters, namely:- (a) Public order; (b) Police including railway police; (c) The constitution and powers of municipal corporations and other local authorities, of improvement trusts and of water supply, drainage, electricity, transport and other public utility authorities in Delhi or in New Delhi; (d) Lands and buildings vested in or in the possession of the Union which are situated in Delhi or in New Delhi including all rights in or over such lands and buildings, the collection of rents therefrom and the transfer and alienation thereof; (e) Offences against laws with respect to any of the matters mentioned in the foregoing clauses; H

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A (f) Jurisdiction and powers of all courts, with respect to any of the said matters; and (g) Fees in respect of any of the said matters other than fees taken in any court.” However, sub Section 2 of Section 21 provided that sub section 1 will B not derogate from the power conferred upon Parliament by the Constitution to make laws with respect to any matter for a state. The sanction of the Chief Commissioner was required under Section 23 for certain legislative proposals, these being: “(a) Constitution and organisation of the court of the Judicial C Commissioner; (b)Jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or in the Concurrent List;

D (c) State Public Service Commission.”

59. A Bill passed by the legislative assembly was, under Section 26, required to be presented to the Chief Commissioner. The Chief Commissioner in turn was obligated to reserve the Bill for consideration of the President. If the President directed the Chief Commissioner to submit the Bill to the Assembly for reconsideration, the Assembly was E required to consider the suggestions and, if the Bill was passed, it had to be presented again to the President for reconsideration.

60. Section 36 provided for a Council of Ministers: “Council of Ministers F (1) There shall be a Council of Ministers in each State with the Chief Minister at the head to aid and advise the Chief Commissioner in the exercise of his functions in relation to matters, with respect to which the Legislative Assembly of the State has power to make law except in so far as he is required by any law to exercise any judicial or quasi-judicial functions: Provided that, in case of difference of opinion between the Chief Commissioner and his Ministers on any matter, the Chief Commissioner shall refer it to the President for decision and act according to the decision given thereon by the President,

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and pending such decision it shall be competent for the Chief A Commissioner in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary: Provided further that in the State of Delhi every decision B taken by a Minister or by the Council in relation to any matter concerning New Delhi shall be subject to the concurrence of the Chief Commissioner, and nothing in this sub-section shall be construed as preventing the Chief Commissioner in case of any difference of opinion between him and his Ministers from taking such action in respect of the administration of C New Delhi as he in his discretion considers necessary. (2) The Chief Commissioner shall, when he is present, preside at meetings of the Council of Ministers, and, when the Chief Commissioner is not present, the Chief Minister or, if he is also not present, such other Minister as may be determined by the rules made under sub-section (1) of section 38 shall preside over meetings of the Council. (3) If any question arises as to whether any matter is or is not a matter as respects which the Chief Commissioner is required by any law to exercise-any judicial or quasi-judicial functions, the decision of the Chief Commissioner thereon shall be final. (4) If in the State of Delhi any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Chief Commissioner thereon shall be final: F Provided that in case of any difference of opinion between the Chief Commissioner and his Ministers on such question, it shall be referred for the decision of the President and his decision shall be final. (5) The question whether any, and if so what, advice was tendered G by Ministers to the Chief Commissioner shall not be inquired into in any court.” Section 36(1) incorporated the aid and advice principle. But where there was a difference of opinion between the Chief Commissioner and his ministers “on any matter”, the Chief Commissioner was required to refer H

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A it to the President and to act in accordance with the decision of the President. Insofar as the State of Delhi was concerned, under the second proviso every decision of a Minister or the Council of Ministers in relation to New Delhi was subject to the concurrence of the Chief Commissioner. In the event there was a difference of opinion, the Chief Commissioner had the authority to take such action for the administration of New Delhi B “as he in his discretion considers necessary”. The Chief Commissioner would also preside over the meetings of the Council of Ministers. If a question arose as to whether any matter concerned New Delhi, the decision of the Chief Commissioner was to be final and if there was a difference of opinion, it was to be referred to the President for his decision.

61. Section 36 assumes significance in the context of the present controversy, because its provisions must be distinguished from the position which was adopted when the sixty ninth amendment was introduced in Article 239AA into the Constitution. Four features of Section 36 stand out : first, the requirement of the concurrence of the Chief Commissioner to every decision concerning New Delhi; second, empowerment of the Chief Commissioner, in the event of a difference of opinion to act in his discretion for the administration of New Delhi; third, the mandate of the Chief Commissioner being required to preside over meetings of the Council of Ministers; and fourth, the requirement of referring any difference of opinion on whether a matter concerned New Delhi to the President whose decision would be final. Article 239AA has made a departure in critical matters from the position as it obtained under Section 36. First, (unlike the second proviso to Section 36(1)), Article 239AA(4) does not mandate that every decision of the Council of Ministers should be subject to the concurrence of the Lieutenant Governor; second, the provision (in the second proviso to Section 36(1)) empowering the Chief Commissioner to act in his discretion on the administration of New Delhi is absent in Article 239AA(4) except where the Lieutenant Governor on a reference of a difference of opinion to the President has to deal with an emergent situation; and third, neither in Article 239AA nor in the GNCTD Act G (and for that matter in the Transaction of Business Rules) has it been provided that the Lieutenant Governor would preside over meetings of the Council of Ministers. Section 36 of the erstwhile Act of 1951 created a hierarchical structure which placed the Chief Commissioner as an authority superior to the Council of Ministers in the exercise of its H

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executive power. Every decision of the Council of Ministers concerning A New Delhi was subject to the concurrence of the Chief Commissioner. The absence of such a provision in Article 239AA cannot be regarded as a matter of no constitutional significance. Historically the constituent body had before it a model which was created by the parliamentary enactment of 1951 but advisedly did not choose to engraft it into the B provisions of Article 239AA when the sixty ninth amendment was adopted.

62. The provisions of the Constitution relating to Part A, Part B and Part C States were abrogated with the adoption of the seventh amendment⁷⁵ in 1956. Section 130 of the States Reorganization Act 1956 repealed the 1951 Act. The result has been explained in the Statement C of Objects and Reasons for the 1956 Act. “… The main features of the reorganization proposed are the abolition of the existing constitutional distinction between Part A, Part B and Part C States, the establishment of two categories for the component units of the Union to be called the States and the D abolition of the institution of the Raj Pramukh consequent on the disappearance of the Part B States…”. Consequent upon the seventh amendment to the Constitution, the expression “the Union territories specified in the First Schedule” was inserted into the Constitution. Delhi came to be described as a Union E territory upon being included as an entry in the First Schedule. By virtue of Section 12 of the 1956 Act, as from the appointed day, in the First Schedule to the Constitution for Part A, Part B and Part C States, the parts which followed were substituted. Delhi was described in serial number 1 of Part C as “the territory which immediately before F commencement of the Constitution was comprised in the Chief Commissioner’s Province of Delhi”. Delhi became a Union Territory governed by the Union government through an Administrator who was appointed by the President.

63. Article 239A was introduced by the fourteenth amendment⁷⁶ G in 1962, as a result of which Parliament was authorized to create, for certain Union territories, local legislatures and/ or a Council of Ministers.

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A The Government of Union Territories Act, 1963

64. On 10 May 1963, the Government of Union Territories Act 1963 was enacted. The Act of 1963 defined the expression Administrator in Section 2(a) as : “(a) “Administrator” means the administrator of the Union territory appointed by the President under article 239;” Section 3 provided for a legislative assembly. Section 18 provided for the extent of legislative power in the following terms: “18. Extent of legislative power. (1) Subject to the provisions of this Act, the Legislative Assembly of the Union territory may make laws for the whole or any part of the Union territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to Union territories.

D (2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union territory or any part thereof.” Sub Section 1 of Section 18 was similar in language to Article 239AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub Section 2 was similar in language E to Article 239AA(3)(b). Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the legislative assembly, the law made by Parliament would prevail to the extent of repugnancy (this provision is similar in nature to Article 239AA(3)(c). Section 44 contained the following provision for the Council F of Ministers: “44. Council of Ministers. (1) There shall be a Council of Ministers in each Union territory with the Chief Minister at the head to aid and advise the Administrator in the exercise of his functions in relation to matters G with respect to which the Legislative Assembly of the Union territory has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions: Provided that, in case of difference of opinion between the H Administrator and his Ministers on any matter, the Administrator

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shall refer it to the President for decision and act according to the A decision given thereon by the President, and pending such decision it shall be competent for the Administrator in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary: B … (3) If and in so far as any special responsibility of the Administrator is involved under this Act, he shall, in the exercise of his functions, act in his discretion.” Section 44 (1) and Article 239AA are pari materia (with the difference C that clause 4 of Article 239AA pegs the strength of the Council of Ministers to not more than ten per cent of the total number of members of the legislative assembly). At the same time, it must also be noted that sub section 3 of Section 44 recognised the power of the Administrator, to act in his discretion where “any special responsibility” of the Administrator D was involved under the Act. This provision in sub section 3 of Section 44 was in addition to the reservation made in Section 44(1) in respect of those matters where the administrator was under the Act, required to act in his discretion or was to exercise judicial or quasi-judicial functions under any law. The “special responsibility” provision of sub-section 3 of Section 44 does not find a parallel in Article 239AA. E

The Delhi Administration Act, 1966

65. On 2 June 1966, Parliament enacted the Delhi Administration Act 1966, “to provide for the administration of the Union territory of Delhi”. The Act, in Section 3, constituted a Metropolitan Council, F consisting of 56 persons to be directly elected. However, the Central government was empowered to nominate five persons to the Metropolitan Council. The tenure of the Metropolitan Council, unless it was sooner dissolved, was to be five years. Under Section 22 the Metropolitan Council could make recommendations, on certain matters, insofar as they related to Delhi. Section 22 provided as follows: G “(1)Subject to the provisions of this Act, the Metropolitan Council shall have the right to discuss, and make recommendations with respect to, the following matters in so far as they relate to Delhi, namely: - H

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A (a) proposals for undertaking legislation with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to Union territories (hereafter referred to as the State List and the Concurrent List); B (b) proposals for extension to Delhi of any enactment in force in a State relatable to any matter enumerated in the State List or the Concurrent List; (c) proposals for legislation referred to it by the Administrator with respect to any of the matters enumerated in the State C List or the Concurrent List; (d) the estimated receipts and expenditure pertaining to Delhi to be credited to and to be made from, the Consolidated Fund of India; and notwithstanding anything contained in the Delhi Development Act, 1957, the estimated receipts and expenditure D of the Delhi Development Authority; (e) matters of administration involving general policy and schemes of development in so far as they relate to matters enumerated in the State List or the Concurrent List; (f) any other matter referred to it by the Administrator. E (2) The recommendations of the Metropolitan Council, after having been duly considered by the Executive Council, shall, wherever necessary, be forwarded by the Administrator to the Central Government with the views, if any, expressed thereon by the Executive Council.” F The recommendations of the Metropolitan Council after they were considered by the Executive Council were to be forwarded to the Central government. The function of the Executive Council was to “assist and advise” the Administrator in the exercise of his functions in relation to matters in the State List or Concurrent List. Conscious as Parliament G was of the use of the expression “aid and advise” in Articles 74 and 163 of the Constitution; and in Section 36(1) of the Government of Part C States Act 1951; Section 44 of the Government of Union Territories Act 1963, carefully adopted the expression “assist and advise” in Section 27. Section 27 was in the following terms: H

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“(1) There shall be an Executive Council, consisting of not more than four members one of whom shall be designated as the Chief Executive Councilor and others as the Executive Councilors, to assist and advise the Administrator in the exercise of his functions in relation to matters enumerated in the State List or the Concurrent List, except in so far as he is required by or under this Act to exercise his functions or any of them in his discretion or by or under any law to exercise any judicial or quasi-judicial functions: Provided that, in case of difference of opinion between the Administrator and the members of the Executive Council on any matter, other than a matter in respect of which he is required by or under this Act to act in his discretion, the Administrator 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 Administrator in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary: Provided further that every decision taken by a member of the Executive Council or by the Executive Council in relation to any matter concerning New Delhi shall be subject to the concurrence of the Administrator, and nothing in this sub- section shall be construed as preventing the Administrator in case of any difference of opinion between him and the members of the Executive Council from taking any action in respect of the administration of New Delhi as he, in his discretion, considers necessary. (2) The Administrator shall preside at every meeting of the Executive Council, but if he is obliged to absent himself from any meeting of the Council owing to illness or any other cause, the Chief Executive Councilor shall preside at the meeting of the Council. (3) The functions of the Administrator with respect to law and order in Delhi including the organization and discipline of police force, and with respect to such other matters as the President H

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A may it from time to time specify in this behalf, shall be exercised by him in his discretion. (4) If any question arises as to whether any matter is or is not a matter as respects which the Administrator is by or under this Act required to act in his discretion, the decision of the B Administrator thereon shall be final. (5) If any question arises as, to whether any matter is or is not a matter as respects which the Administrator is required by or under any law to exercise any judicial or quasi-judicial functions, the decision of the Administrator thereon shall be final. (6) If any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Administrator thereon shall be final. (7) The question whether any, and if so, what advice was tendered by any member of the Executive Council to the Administrator shall not be enquired into in any court.” Every decision of the Executive Council in relation to any matter concerning New Delhi was subject to the concurrence of the Administrator. A provision similar to the second proviso to Section 27(1) E does not find a reference in Article 239AA. Moreover, under sub section 2 of Section 27, the Administrator was to preside at every meeting of the Executive Council. The members of the Executive Council were, under Section 28, appointed by the President and held office during the pleasure of the President. A member of the Executive Council could not hold F office beyond a period of six months if he was not a member of Metropolitan Council.

66. The Act of 1966 continued to apply to the Union Territory of Delhi until the adoption of the sixty ninth amendment to the Constitution and the GNCTD Act 1991. G The Balakrishnan Committee

67. On 14 December 1989 the Committee constituted by the Ministry of Home Affairs for making recommendations on the reorganization of the structure for the governance of Delhi submitted its

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report. The report of the Committee, which was chaired by Mr S A Balakrishnan (Adviser, Ministry of Home Affairs) observed that there is a conflict of interest between the need to develop the national capital for the nation as a whole and the desires of the local population for a greater autonomy in the conduct of their own affairs. This conflict was described in the report thus: B “..The main difficulty lies in reconciling the two conflicting requirements, namely, the requirement of satisfying the democratic aspirations over the citizens of the capital to govern themselves in consonance with the spirit of their national Constitution and the requirement that the national Government should have sufficient control over the capital city and its administration for discharging its national and international responsibilities and commitments.” The Committee considered the following five options: “(1) The existing structure under the Delhi Administration Act, 1966 may be retained with such modifications as may be found necessary. (2) The administration of Delhi may be the direct responsibility of the Central Government except for municipal functions to be left with the Municipal Corporation or other municipal bodies; there is no need for any Legislative Assembly or Council of E Ministers. (3) Delhi may be made a full-fledged State of the Union. (4) Delhi may be made a Union territory with a Legislative Assembly and Council of Ministers. F (5) Delhi may be given a special status and dispensation under the Constitution itself.” The Committee indicated the reasons which had weighed with it in rejecting the claim for full statehood to Delhi. Firstly, the Committee noted that the conferment of full statehood would result in a constitutional division of legislative power between the Union and the State and to that G extent, the Union Executive would be denuded of executive powers in relation to matters governed by the State list. In the view of the Committee:

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A “..This constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the national capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the national capital and the need for keeping it under the control of the Union Government. Such B control is vital in the national interests irrespective of whether the subject matter is in the State field or Union field. If the administration of the national capital is divided into rigid compartments of State field and Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments C are run by different political parties. Such conflicts may, at times, prejudice the national interest. We have given careful thought to the matter and we are of the considered opinion that any arrangement for Delhi that involves constitutional division of powers, functions and responsibilities between the Union and the government of the national capital will be against the national interest and should not be made.” The Committee opined that “the national capital belongs to the nation as a whole” and hence a demand for full statehood could not be entertained. Consistent with its view, the Committee opined that Delhi should have a Legislative Assembly and a Council of Ministers, while continuing to be a Union territory for the purposes of the Constitution. The legislative powers conferred upon the Legislative Assembly were to exclude certain specific subjects, having due regard to the special responsibility of the Union in respect of Delhi. The Committee recommended that the subjects of public order and police should be excluded from the purview of the Legislative Assembly. The report of the Committee recommended that the Administrator for the Union Territory should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “aid and advice”, the Committee noted, is a term of art based on the ---cabinet form of government adopted by the Constitution. However, the principle of aid and advice would be subject to three modifications: (i) it would not apply in respect of those matters where the Administrator exercises judicial or quasi-judicial functions; (ii) the Administrator would act on aid and advice in respect of matters where the legislative Assembly has the power to make laws; and (iii) a special provision would be made to H

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resolve differences between the Administrator and his Council of A Ministers on any matter concerning the administration of Delhi. The Committee was of the following view: “..by virtue of article 239 of the Constitution, the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator. Because of this, the B Administrator has to take a somewhat more active part in the administration than the Governor of a State. It is, therefore, necessary to reconcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need for enforce the collective responsibility of the Council of Ministers to C the Legislature. The best way of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council of Ministers, he should refer the question to the President and the decision of the President thereon will be final..” D The Committee considered whether the administration of Delhi should be provided for under a law enacted by Parliament, as was the case earlier. The Committee recommended a constitutional amendment in preference to a statute governing the administration of the national capital as a measure of stability and permanence: E “..any arrangement providing for the structure of government for the national capital is of great importance and significance to the nation and, as such, it is desirable that any such arrangement should ensure a measure of stability and permanence: The fluid situation which existed at the time when the Constitution came into force and which was the ground relied upon at that time for making a F flexible arrangement no longer exists. We, therefore, consider that the time has come for making specific constitutional provisions for the structure of government for the national capital at least in regard to the core features thereof. If the provisions are incorporated in the Constitution an amendment can be made only G by a two-thirds majority in parliament which may not always be available. To that extent a scheme incorporated in the Constitution would be more permanent than one in a law of parliament. We have no doubt that this will go a long way in assuring the people of Delhi that the governmental structure will be stable and will not H

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A suffer by the play of political forces.” The Committee thus recommended a constitutional amendment, with the above core features, with parliamentary legislation supplementing them in details.

68. The Statement of Objects and Reasons for the sixty ninth amendment to the Constitution explains its rationale in the following terms : “After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories.” (Emphasis supplied) D The avowed object of the sixty ninth amendment was to ensure that while Delhi would continue to be a Union territory, it would have a legislative assembly and a Council of Ministers responsible to it. This was to vest “appropriate powers” to deal with the matters of concern to the common man. The object of the constitutional amendment was to E attribute “stability and permanence” to the arrangements to govern the Union territory and to confer “a special status among the Union territories” to the national Capital. In other words, while the status of the NCT would be of a Union territory, it nonetheless had a special status within the class of Union Territories.

F 69. Having regard to this history and background, it would be fundamentally inappropriate to assign to the NCT a status similar to other Union territories. Article 239AA(4) is a special provision which was adopted to establish a special constitutional arrangement for the governance of the NCT, albeit within the rubric of Union territories. In interpreting the provisions of Article 239AA, this Court cannot adopt a G blinkered view, which ignores legislative and constitutional history. While adopting some of the provisions of the Acts of 1963 and 1966, Parliament in its constituent capacity omitted some of the other provisions of the legislative enactments which preceded the sixty ninth amendment. The relationship between the Council of Ministers and the Administrator of the Union territory evolved as Delhi progressed from a Part C State H

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(before the Seventh Amendment) to a Union Territory governed by A legislation. As a Union territory, the position of Delhi has evolved from being administered by an Administrator under Article 239A following the fourteenth amendment and from governance under the earlier enactments of Parliament to its present-day status as a national capital territory governed by a specific constitutional provision: Article 239AA. B We have noticed how, when Delhi was within the purview of the Part C States Act, every decision of the Council of Ministers on any matter concerning New Delhi was subject to the concurrence of the Chief Commissioner and any difference of opinion was to be resolved by the Chief Commissioner himself acting in his discretion to administer New Delhi. Under the Act of 1963, besides matters which the Administrator C was required to act in his discretion or where he was to exercise judicial or quasi-judicial functions under law there were matters vested in the Administrator in his “special responsibility” where he could act in his discretion. Under the Act of 1966, the Executive Council was to “assistand advice” the Administrator and each one of its decisions in relation to any D matter concerning New Delhi was subject to the concurrence of the Administrator. The absence of similar provisions in Article 239AA cannot be ignored while defining the nature of the relationship between the Council of Ministers and the Lieutenant Governor and the authority of the Lieutenant Governor. H NCT : A Special Class among Union Territories? E

70. All Union territories are grouped together in Part VIII of the Constitution. While bringing them under the rubric of one constitutional pairing, there is an unmistakable distinction created between them by the Constitution. Such a distinction originates in Article 239(1) itself. While setting out the basic premise that “every Union territory shall be administered by the President”, Article 239(1) conditions it upon two important qualifications. The first is provided by the language with which Article 239(1) opens, which is: “save as otherwise provided by Parliament by law”. The second qualification is that the President may exercise the power of administering each Union territory “to such extent as he thinks fit” through an Administrator. The opening words essentially leave it to Parliament to determine the nature and extent to which the administration of a Union territory would be exercised through the President. The President may exercise that power through the office of an Administrator to such extent as he thinks fit. The expression “to such extent as he H

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A thinks fit” enunciates a constitutional discretion by which the limits of the exercise by the President of the power of administration through an Administrator are to be set. Both these qualifications have significant constitutional implications because they leave open the nature and extent of the administration of the Union territory by the President, through the auspices of an Administrator, to the determination by Parliamentary B legislation.

71. The provisions of Article 239 result in significant consequences for the position of Union territories. Article 239 does not elucidate the nature or extent of administrative or regulatory control over the Union territory. Article 239A (which presently applies to Puducherry), Article C 239AA (which has special provisions for Delhi) and Article 240 leave no manner of doubt that the relationship of the Union government with every Union and the extent of Presidential control over the administration is not intended to be uniform. These three Articles indicate that a distinction has been made between the status of Union territories at D least in terms of the exercise of legislative powers in relation to executive functions.

72. This distinction would emerge from a close reading of the provisions of Article 240 which governs : (i) The Andaman and Nicobar Islands; E (ii) Lakshadweep; (iii) Daman and Diu; (iv) Dadar and Nagar Haveli; and (v) Puducherry. F Clause 1 of Article 240 enables the President to make regulations for “the peace, progress and good government” of the Union territories mentioned above. Article 239A as we have noticed earlier, empowers Parliament to create a local legislature or a Council of Ministers (or both) for Puducherry. Once Parliament enacts legislation under clause 1 G of Article 239A, it would be incongruous to have a duality of governance with the President making regulations for peace, progress and good government as well. Hence, the proviso to Article 240(1) states that the President shall not make any such regulation after the legislature for the Union territory of Puducherry has first convened, when a Parliamentary H

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legislation under Article 239A creates a body to function as a legislature. A However, when the legislature is dissolved or its functioning is eclipsed pursuant to a Parliamentary legislation, the Presidential power to make regulations for peace, progress and good government is revived. Puducherry was therefore grouped together with the other Union territories under Article 240(1) but in contemplation of a law made by B Parliament under Article 239A, a specific constitutional mandate allows for the entrustment of legislative and executive functions to the extent that they are transferred under the law to the local legislature or, as the case may be, to the Council of Ministers. If Parliament were to enact no law at all, the President would continue to retain the power to frame regulations. Moreover, even upon the enactment of Parliamentary C legislation, the Presidential power to frame regulations for Puducherry is revived where the legislature stands dissolved or its functioning is suspended.

73. Delhi presents a special constitutional status under Article 239AA. This is fortified when those provisions are read in contrast with D Articles 239A and 240. Article 239AA does not incorporate the language or scheme of Article 240(1), which enables the President to frame regulations for peace, progress and good government of the Union territories referred to in Article 240(1). This proviso to Article 240(1) indicates that once a Parliamentary law has been framed, the President shall not frame regulations for Puducherry. In the case of Delhi, Article E 239AA does not leave the constitution of a legislature or the Council of Ministers to a law to be framed by Parliament in future. Article 239AA mandates that there shall be a legislative assembly for the NCT and there shall be a Council of Ministers, with the function of tendering aid and advice to the Lieutenant Governor. The “there shall be” formulation F is indicative of a constitutional mandate. Bringing into being a legislative assembly and a Council of Ministers for the NCT was not relegated by Parliament (in its constituent power) to its legislative wisdom at a future date upon the enactment of enabling legislation. Clause 7(a) of Article 239AA enables Parliament by law to make provisions to give effect to or to supplement the provisions contained in that Article. Parliament’s G power is to enforce, implement and fortify Article 239AA and its defining norms.

74. The above analysis would indicate that while Part VIII brings together a common grouping of all Union territories, the Constitution H

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