1

REPORTABLE IN     THE      SUPREME      COURT      OF     INDIA

CIVIL      APPELLATE      JURISDICTION

CIVIL      APPEAL      NO.11887       Of     2018  (arising out of SLP (C) No. 8249 of 2018)

K. LAKSHMINARAYANAN           ...APPELLANT(S)  

VERSUS

UNION OF INDIA & ANR.    ...RESPONDENT(S)  

WITH

CIVIL      APPEAL      NO.11888        Of     2018  (arising out of SLP (C) No. 8224 of 2018)

S. DHANALAKSHMI    ...APPELLANT(S)   

VERSUS

UNION OF INDIA & ORS.    ...RESPONDENT(S)  

J     U     D     G     M     E     N     T

ASHOK      BHUSHAN,J.

Leave granted.  

These two appeals have been filed against the common

2

judgment of Madras High Court dated 22.03.2018 by which the

writ petitions filed by the appellants questioning the

nominations made by the Central Government in exercise of

power under Section 3(3) of the Government of Union

Territories Act, 1963 (hereinafter referred to as “Act,

1963”), to the Legislative Assembly of Union Territory of

Puducherry has been dismissed.  

2. The background facts leading to filing of the writ

petitions giving rise to these appeals are as follows:­

2.1 Part VIII of the Constitution of India dealing with

the Union Territories was amended by Constitution

(Fourteenth Amendment) Act, 1962 by inserting

Article 239A, which provides for “creation of local

Legislatures or Council of Ministers or both for

certain Union Territories.”   Article 239A provided

that Parliament, may by law, create for the Union

Territory of Pondicherry, a body, whether elected or

partly nominated and partly elected, to function as

a Legislature for the Union Territory, or a Council

of Ministers, or both with such constitution, powers

and functions, in each case, as may be specified in

the law.   After the above Constitutional amendment

3

inserting Article 239A, the Parliament enacted

Government of Union Territories Act, 1963 to provide

for Legislative Assembly and Council of Ministers

for certain Union Territories and for certain other

matters.  

2.2 At the time of commencement of Act, 1963, there were

large number of Union Territories, which were to be

governed by the Act, 1963.  Gradually, several Union

Territories were upgraded to the status of a State

and as on date, the definition of Union Territories

under Section 2(h) defines “Union Territory” as the

Union Territory of Puducherry.   Section 3 of the

Act, 1963 provides for Legislative Assemblies for

Union territories and their composition.   According

to Section 3(2), the total number of seats in the

Legislative Assembly of the Union territory to be

filled by persons chosen by direct election shall be

thirty and as per Section 3(3), the Central

Government may nominate not more than three persons,

not being persons in the service of Government, to

be members of the Legislative Assembly of the Union

territory.  

2.3 Election for filling thirty seats in the Legislative

4

Assembly of Puducherry  was held in the year 2016.

Indian National Congress, who bagged fifteen out of

thirty seats with support of DMK and one independent

candidate has formed the Government in Puducherry.

Writ Petition (C) No. 16275 of 2017 as K.

Lakshminarayanan Vs. Union of India & Anr. was filed

in the Madras High Court praying for a writ of

mandamus forbearing the respondents from in any

manner nominating or filing up the nominated seats

of Members for the Puducherry Legislative Assembly

except with the consultation and choice of the

elected Council of Ministers.  The writ petition was

filed on 27.06.2017.   The Government of India,

Ministry of Home Affairs had issued a notification

on 23.06.2017 nominating Shri V. Saminathan, Shri

K.G. Shankar and Shri S. Selvaganabathy as members

of the Legislative Assembly of the Union Territory

of Puducherry. An application for amendment was

filed in the writ petition praying for quashing the

notification dated 23.06.2017.   Another Writ

Petition (C) No. 18788 of 2017 – S. Dhanalakshmi Vs.

Union of India & Ors. Was filed in the Madras High

Court praying for following reliefs:­

5

“Writ of Certiorarified Mandamus calling for the records on the file of the third respondent relating to the impugned Notification bearing Ref. No. F.No.U­11012/1/2014­UTL dated 23­06­2017 and quash the same and consequently direct the respondents 1 to 3 to nominate the members to the Puducherry Legislative Assembly only with the consultation and choice of the elected Council of Ministers and pass such further or other orders and thus render justice”.

2.4 On 13.11.2017, the Secretary of Puducherry

Legislative Assembly communicated the decision of

the Speaker of the Legislative Assembly that the

nominated members could not be recognised as members

of the Assembly, having been appointed in

contravention of the Constitution and the Act, 1963.

The communication dated 13.11.2017 was challenged by

three nominated members by filing three separate

writ petitions being Writ Petition Nos. 29591, 29592

and 29593 of 2017.   All the writ petitions, i.e.

Writ Petition No. 16275 of 2017, Writ Petition No.

18788 of 2017 and Writ Petitions No. 29591, 29592

and 29593 of 2017 were heard and decided by Division

Bench of Madras High Court vide its judgment dated

22.03.2018.   The Writ Petition Nos. 16275 of 2017

and 18788 of 2017 challenging the notification dated

6

23.06.2017 has been dismissed, whereas the Writ

Petition Nos. 29591, 29592 and 29593 have been

allowed.  Two separate but concurring judgments have

been delivered by Division Bench of Madras High

Court.  Operative portion of the judgment delivered

by Justice M. Sundar, with which judgment, Chief

Justice expressed absolute agreement, was to the

following effect:­

“W.P. No. 16275 of 2017 filed by the Whip and W.P. No. 18788 of 2017 filed by PIL petitioner are dismissed.   Writ petitions, being W.P. Nos. 29591 to 29593 of 2017 filed by nominated MLAs are allowed.   Considering the nature of the matter and in the light of the trajectory this litigation has taken, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.”

2.5 Against the aforesaid Division Bench judgment of

Madras High Court dated 22.03.2018, only two appeals

have been filed, one by K. Lakshminarayanan and

other by S. Dhanalakshmi challenging the judgment of

Division Bench by which Writ Petition No. 16275 of

2017 has been dismissed and another appeal has been

filed against the judgment of Division Bench in Writ

Petition No. 18788 of 2017 by which writ petition

was dismissed.   In so far as judgment of Division

7

Bench in Writ Petitions Nos. 29591, 29592 and 29593

of 2017 filed by three nominated MLAs, by which

their writ petitions were allowed quashing the

decision of the Speaker dated 23.11.2017, no appeals

have been filed.

              3. We have heard Shri Kapil Sibal and Shri Salman Khurshid,

learned senior counsel appearing for the appellants.  We have

heard Shri K.K. Venugopal, learned Attorney General for the

Union of India.  Shri Ranjit Kumar, learned senior counsel has

been heard for the respondents.

4. Shri Kapil Sibal challenging the nominations made by the

Central Government has raised various submissions.  Shri Sibal

submits that the Government of Puducherry has vital interest

in the constitution of the Assembly, since it enjoys the

confidence of Legislative Assembly and accountable to the

people.  The Government of Puducherry cannot be a stranger in

the nominations made to the Assembly.   He submits that

nominations of the members of the Assembly must emanate from

the Government of Puducherry and should have concurrence of

the Government.   It was open for the Central Government to

adopt any fair procedure for nominating the members.   The

nominees could have been originated from Government of

8

Puducherry.  The President could have asked the names from the

Government of Puducherry.   He submits that let this Court

decide on a valid procedure, which is to be adopted while

making nominations by Central Government in the Legislative

Assembly of Puducherry.   He further submits that there has

been at least six occasions when elected Government of

Puducherry was consulted before nominating the members in the

Legislative Assembly by the Central Government.  In the year

2001, when Lieutenant Governor without consulting the

Government of Puducherry forwarded the names for nomination to

the Assembly, objection was raised by the Government of

Puducherry and the proposed list of nominated members was

referred back to the Lieutenant Governor for lack of

consultation with the elected Government.   He submits that

earlier incidents when the Government of Puducherry was

consulted before nomination has taken shape of a

constitutional convention, which is nothing but a

constitutional law to be followed by all concerned.   He

submits that while making nominations vide notification dated

23.06.2017, the above constitutional convention has not been

followed, which renders the nomination illegal and

unsustainable.   He further submits that in the counter

affidavit filed by the Union of India before the High Court,

9

it was stated that Lieutenant Governor has not sent any

nominations to the Central Government and Central Government

on its own has made nominations under Section 3(3) of the Act,

1963.  Shri Kapil Sibal submits that the expression “Central

Government” as occurring in Section 3(3) of the Act, 1963 has

not been correctly understood by the High Court.  He submits

that according to the definition given under Section 3(8) of

the General Clauses Act, 1897, the Central Government means

the President and include in relation to the administration of

a Union Territory, the administrator thereof.  It is submitted

that the President has framed Rules of Business of the

Government of Puducherry, 1963, Rule 4 of which Rules is

relevant for the present case.  It is submitted that as per

the Business Rules, it is the administrator, who was required

to make nominations that too after consultation of Council of

Ministers.  Shri Sibal refers to Rule 4(2) and Rule 48 of the

Business Rules to buttress his submission.   It is submitted

that the nomination to Legislative Assembly is fully covered

by expression “remaining business of the Government” as

occurring in Rule 4(2).   Therefore, Rule 4(2) read with

Chapter IV of the Rules of Business, cover the entire gamut of

executive power exercisable by the President under Article 239

of the Constitution.   Since Section 3(3) of the Act, 1963

10

refers to “Central Government”, thereby indicating exercise of

power in terms of Article 239 of the Constitution, Rule 4(2)

read with Chapter IV of the Rules of Business of the

Government of Puducherry would apply.  Therefore, the power to

nominate members under Section 3(3) of the Act, 1963 has to

necessarily involve the administrator acting in accordance

with Chapter IV.

5. Shri Sibal further submits that in event interpretation

is accepted that the Government of Puducherry has no role to

play in the nominations of members to Legislative Assembly, it

is de­establishing cooperative federalism.   It is submitted

that federalism has been recognised as a basic feature of the

Constitution  and  it is  Government,  which  is democratically

formed and reflect the will of the people and responsible to

the Legislature, who has to initiate and concur in the members

to be nominated in the Legislative Assembly.   In the

representative democracy, the Government is not a stranger to

the process of nomination. One more submission which has been

pressed by Shri Sibal is that even though nominated members

may have right to vote in the proceedings of Assembly there

are two exceptions to such right of vote, i.e., (i) voting on

budget, and (ii) voting on no­confidence motion against the

Government. He submits that nominated members shall have no

11

right to vote in above two subjects. Shri Kapil Sibal has

further very candidly in his submission, stated that he is not

pursuing the challenge to Section 3(3) of the Act, 1963 nor he

is carrying further the submission made before the High Court

on the ground of eligibility of members, who have been

nominated in the Legislative Assembly.  Shri Sibal has placed

reliance on various judgments of this Court, which shall be

referred to while considering the submissions in detail.   

6. Shri K. K. Venugopal, learned Attorney General replying

the submissions of Shri Sibal submits that the Union Territory

is a Territory of a Union in which Central Government can

nominate unless the Constitution or law provides for any

consultation of Government of Puducherry.   According to

Article 239, it is the President, who has to administer Union

Territory.   Lieutenant Governor, who is an administrator

appointed by the President to administer the Union Territory

of Puducherry, govern the Union Territory as per instructions

and directions of the President.  Neither Lieutenant Governor

nor Legislative Assembly can assert themselves in governing

the Union Territory.   The Act, 1963 is a law framed by

Parliament in exercise of power under Article 239A of the

constitution. The powers and functions of the Legislative

Assembly are such as specified in the Act, 1963.   The

12

provision empowering nominations in the Legislative Assembly

by the Central Government in no manner affect the principle of

federalism or cooperative federalism.   The Act, 1963 or any

Constitutional provision does not provide for any consultation

of Government of Puducherry for making nomination in the

Legislative Assembly by the Central Government.   There are

large number of Constitutional provisions, which provide for

consultation, whereas no Constitutional provision provide for

consultation of Government of Puducherry in making nomination

by Central Government nor any such right of consultation, is

decipherable from the Act, 1963.   Reading consultation in

nomination shall upset the Constitutional balance.  Appellants

want to read the word “consultation” in Section 3(3) of Act,

1963, which has been consciously withheld.   When the

provisions of Act, 1963 indicate a primacy of Central

Government, the submission that nomination should be made with

the concurrence of Government of Puducherry is wholly

unfounded.   The Union Territory of Puducherry is wholly

subservient to the President.

7. Shri K.K.  Venugopal further submits that Council of

Ministers of Government of Puducherry is a Agency devised by

President of India. Section 50 of Act, 1963 gives absolute

power to the President to issue any direction to the

13

Administrator and his Council of Ministers. It is submitted

that there is no kind of any limit in the extent of power as

envisaged under Section 50. Shri Venugopal referred to various

other statutes where provisions envisaged for issuing

directions by Central Government or other authorities. He

submits that in various statutory provisions, directions are

hedged by several conditions and in some of the statutes

consultation is also envisaged.

8. Shri Ranjit Kumar, learned senior counsel appearing for

nominated MLAs submits that the Constitution itself provides

that  Legislative  Assembly  of  Union  Territory  of Puducherry

shall be partly elected and partly nominated and Parliament

enacted Act, 1963, for both the elected and non­elected

members. He further submits that Section 14 of the Act, 1963

which deals with disqualification of members, does not

contemplate that if nomination is made without consultation of

Legislative Assembly, the members will be disqualified. Hence,

non­consultation with Council of Ministers of Legislative

Assembly cannot be treated to be as any disqualification.

9. Shri Ranjit Kumar further submits that Section 33

provides that the Legislative Assembly of the Union territory

may make rules for regulating and conducting its business.

14

Similarly, Section 46 provides that the President shall make

the rules for allocation of business to the Ministers and for

the more convenient transaction of business. He submits that

both the rules framed under Act, 1963 as well as Section 36,

there is   no rule providing consultation of the Council of

Ministers or Chief Minister before making any nomination  in

the Legislative Assembly by the Central Government.

10. He further submits that Legislative Assembly has no power

to make any law to regulate nomination to be made in the

Assembly. It is only the Parliament who is empowered to make

law under Article 239A regulating constitution of the

Legislative Assembly. When the legislative power is not there

with the Union Territory of Puducherry, no executive power can

be exercised by the Legislative Assembly of the Puducherry. He

further submits that power of nomination which shall flow from

law making power unless Article 239A and legislative power

will be co­extensive with the executive power.

11. Shri Kapil Sibal in his rejoinder submission replying the

submissions of learned Attorney General as well as Shri Ranjit

Kumar, submits that the appellants are questioning the

procedure  adopted  by  Central  Government for nomination. He

further reiterates that Central Government under Section 3(3)

15

of Act, 1963 is  to mean the President who in turn delegated

his power to its Administrator, thus, nomination has to

emanate from Administrator who is to Act on the advise of the

Council of Ministers. He submits that the Rules of Business

framed by the President are Rules of Business both under

Article 239 as well as under Section 44 and under Section 46

of the Act, 1963, hence, the Rules of Business relate to

entire executive functions of the Government of Puducherry.

12. Learned counsel for the parties in support of their

respective  submissions  have relied  on  various  judgments of

this Court which shall be referred to while considering the

submission in detail.

13. From the submissions raised by the learned for the

parties and the materials on record following are the main

issues which arise for consideration in these appeals:

(1) Whether the expression “Central Government” as

occurring in Section 3(3) of the 1963 Act means the

Administrator, hence, it is the Administrator who has to

exercise the power of nomination that too on the aid and

advise of the Council of Ministers of the Union Territory

of Puducherry?

(2) Whether the nomination in the Legislative Assembly of

the Puducherry is the business of the Government which has

16

to be transacted in accordance with Rule 4 sub­Rule (2)

read with Rule 48 of the Rules of Business of the

Government of Puducherry, 1963. As per which Rule the

Administrator was required to consult either Council of

Ministers or Chief Minister before discharging his

functions under Rule 4(2)?

(3) Whether nomination of Central Government in the

Legislative Assembly without concurrence of Government of

Union Territory of Puducherry violates principles of

Federalism and co­operative Federalism?

(4) Whether there is a constitutional convention to

consult the Government of Puducherry before making any

nomination by the Central Government on the strength of

the fact that on six earlier occasions when the

nominations were made, the Central Government has

consulted the Government of Puducherry before making

nominations?

(5) Whether the Central Government while exercising its

power of nomination under Section 3(3) of 1963 Act is

obliged to consult the Council of Ministers/Chief Minister

of Government of Union Territory of Puducherry and the

nomination by Central Government can only be made with the

concurrence of the Government of Puducherry?

17

(6) Whether recommendations made by the Madras High Court

in so far as recommendations made in paragraph 5(iv) of

the impugned judgment is concerned, are unsustainable and

not in accordance with law?

(7) Whether the nominated members in the Legislative

Assembly shall have no voting right in two matters, i.e.,

(i) budget and (ii) no­ confidence motion against the

Government?

Issue No.1

14. The submission made by Shri Sibal is that the expression

“Central Government” used under Section 3(3) of the Act, 1963

means the administrator.  In consequence, he contends that the

power of nomination in the Legislative Assembly of Puducherry

is to be exercised by the administrator on the aid and advise

of the Council of Ministers of Union Territory of Puducherry.

The Act, 1963 does not define the expression “Central

Government”.  The provision of General Clauses Act, 1897 had

to be looked into to find out the definition of the expression

“Central Government”.   Section 3(8) of the General Clauses

Act, 1897 defines the expression “Central Government”.   The

18

relevant portion of Section 3(8) is as follows:­

“3(8) “Central Government” shall,­­

(a) …………

(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include,­­

(i)  ……………

(ii) ……………

(iii) in relation to the administration of a Union territory, the administrator thereof acting within scope of the authority given to him under article 239 of the Constitution;

15. In Section 3(8)(b) Central Government has been defined as

to “mean the President”.   The next phrase used after the

semi­colon is “and shall include”. The definition of Central

Government given in Section 3(8) is a restrictive and

exhaustive definition.   When the definition uses the word

“mean the President”, the clear intention is that Central

Government is the President, the next phrase “and shall

include in relation to the administration of a Union

territory, the administrator thereof acting within the scope

of the authority given to him under article 239 of the

Constitution” has been added with a purpose and object.

Article 239 of the Constitution provide that save as otherwise

provided by Parliament by law, every Union territory shall be

19

administered by the President acting, to such extent as he

thinks fit, through and administrator to be appointed by him

with such designation as he may specify.  As per definition of

Section 3(8)(b)(iii) administrator shall include in the

definition of Central Government when in relation to the

administration of a Union territory, the administrator thereof

acting within the scope of the authority given to him under

article 239 of the Constitution.  Thus, the administrator will

be Central Government when he acts within the scope of the

authority given to him under article 239.  Under Article 239,

Rules of Business have been framed as noticed above, which has

been brought on record as Annexure P1 to Civil Appeal of K.

Lakshminarayanan.  Executive functions of the administrator as

contemplated by Rule 4(2) read with Rule 48 shall include a

variety of the executive functions, which he is authorised to

discharge.   The executive functions may include: (i) the

business of executive functions in relation to the subjects on

which Legislative Assembly of the Union Territory of

Puducherry is entitled to make law; (ii) the executive

functions entrusted to the Government of Puducherry, to be

exercised in the name of the administrator,

entrusted/delegated under any Parliamentary law; (iii)

functions to be discharged by administrator under any special

20

or general order issued by the President of India; (iv)

functions to be discharged by administrator under the

instructions issued by the Central Government from time to

time.   A perusal of the Rules of Business, which have been

framed under Article 239 as well as Section 46 of the Act,

1963 does not expressly indicate that in so far as power of

nomination to be exercised by the Central government under

Section 3(3), the administrator or Government of Puducherry

has been authorised or delegated any function in the above

regard.  No order of the President or Central Government has

been brought on the record on the basis of which it can be

concluded that with regard to right of a nomination to be

exercised by the Central Government under Section 3(3) of Act,

1963, any function has been delegated, authorised or

instructed to the administrator.   The definition of Central

Government given under Section 3(8)(b)(iii), which mean the

President cannot be given a go bye to rely on the next

expression “shall include” the administrator.  The context of

subject has to be looked into while finding out as to whether

in context of Section 3(3), the Central government shall mean

the President or the administrator.

16. This Court had occasion to interpret the definition

clause in  Jagir Singh and Others Vs. State of Bihar and

21

Others, (1976) 2 SCC 942.   In the above case, the Court was

considering the definition of expression  “owner” as defined

in Bihar Taxation on Passengers and Goods (Carried by Public

Service Motor Vehicles) Act, 1961.   In para 11 of the

judgment, the definition has been extracted, which is to the

following effect:­

“11.  The expression “owner” is defined in the Bihar Act in Section 2(d) thereof as follows:

“ ‘Owner’ means the owner of a public service motor vehicle in respect of which a permit has been granted by a Regional or State Transport Authority under the provisions of the Motor Vehicles Act, 1939 and includes the holder of a permit under the said Act in respect of a public service motor vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner.”

17. The definition of owner in the Bihar Act also used two

expression, first ‘Owner’ means the owner of a public service

motor vehicle and second and includes the holder of a permit

under the said Act in respect of a public service motor

vehicle or any person for the time being in charge of such

vehicle or responsible for the management of the place of

business of such owner.  The provisions of Maharashtra Tax on

Goods (Carried by Road) Act, 1962 and other Acts were also

under consideration.  In Maharashtra Act, the “operator” means

22

any person whose name is entered in the permit as the permit

holder or any person having the possession or control of such

vehicle.  It was contended before the Court that words “or any

person for the time being in charge of such vehicle” in the

definition of “owner” indicate that the transport or booking

agencies which would take the public service motor vehicle on

hire would be owners within the definition of the word without

being permit holders in respect of these public service motor

vehicles. The contention to read definition in particular

manner was rejected by this Court.  In paragraph Nos. 19 and

21, following has been held:­

“19.  The definition of “owner” repels the interpretation submitted by the petitioners that the definition means not only the owner who is the permit holder  but also  a  booking  agency  which  may be  in charge of the vehicle without being a permit holder. The entire accent in the definition of owner is on the holder of a permit in respect of the public service motor vehicle. It is the permit which entitles the holder to ply the vehicle. It is because the vehicle is being plied that the passengers and consignors of goods carried by that vehicle become liable to pay not only fare and freight to the owner but also tax thereon to the owner. The words “or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner” indicate that the permit holder will include any person who is in charge of such vehicle of the permit holder or any person who is responsible for the management of the place of business of such owner. The owner cannot escape the liability by stating that any person is for the time being in charge of such vehicles, and, therefore, such person is the owner and not the permit holder.

23

21. The definition of the term “owner” is exhaustive and intended to extend the meaning of the term by including within its sweep bailee of a public carrier vehicle or any manager acting on behalf of the owner. The intention of the legislature to extend the meaning of the term by the definition given by it will be frustrated if what is intended to be inclusive is interpreted to exclude the actual owner.”

18. It is further relevant to notice that definition clause

in Section 3 of the General Clauses Act, 1897 begins with the

expression “In this Act, and in all Central Acts and

Regulations made after the commencement of this Act, unless

there is anything repugnant in the subject or context”. Thus,

all definitions given under Section 3 are subject “unless

there is anything repugnant in the subject or context”.  Thus,

the subject or context has to be looked into to apply the

definition given in Section 3(8)(b).   This Court in  Jagir

Singh (supra)  has also held that while interpreting the

definition clause, the context, the collocation and the object

of words relating to such matter has to be kept in mind while

interpreting the meaning intended to be conveyed by the use of

the word under a circumstance.  In paragraph No. 20 following

has been laid down:­

“20. The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to

24

what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances. Sometimes definition clauses create qualification by expressions like “unless the context otherwise requires”; or “unless the contrary intention appears”; or “if not inconsistent with the context or subject­matter”. “Parliament would legislate to little purpose,” said Lord Macnaghten in Netherseal Co.  v.  Bourne (1889) 14 AC 228, “if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. People cannot escape from the obligation of a statute by putting a private interpretation on its language.” The courts will always examine the real nature of the transaction by which it is sought to evade the tax.”

19. Another judgment of this Court in Black Diamond Beverages

and Another Vs. Commercial Tax Officer, Central Section,

Assessment Wing, Calcutta and Others, (1998) 1 SCC 458 is also

relevant in the present context.   In the above case, this

Court had occasion to consider the definition of “Sale price”

as occurring in Section 2(d) of West Bengal Sales Tax Act,

1954.  The definition has been quoted in paragraph No.5 of the

judgment, which is to the following effect:­

“5.  The 1954 Act generally provides for levy of a single­point tax at the first stage on commodities notified under Section 25 of that Act. On the other hand, the 1941 Act is a general statute providing for multipoint levy of sales tax on commodities not covered by the 1954 Act. Sub­clause (d) of Section 2 of the 1954 Act reads as follows:

“2. (d)  ‘sale­price’  used in  relation to  a dealer  means  the amount of the  money consideration  for the sale of notified commodities manufactured, made or processed by

25

him in West Bengal, or brought by him into West Bengal from any place outside West Bengal, for the purpose of sale in West Bengal, less any sum allowed as cash discount according to trade practice, but includes any sum charged for containers or other materials for the packaging of notified commodities;”

20. The above definition also contain two expression means

and include.   The first part of the definition defines the

meaning of the word ‘sale­price’ as the amount of the  money

consideration  for the sale.   This Court held that

interpretation of the first part of the definition is in no

way control or affect the other part of the definition and

include other part.  In paragraph Nos. 7 and 8, following has

been laid down:­

 “7. It is clear that the definition of “sale price” in Section 2(d) uses the words “means” and “includes”. The first part of the definition defines the meaning of the word “sale price” and must, in our view, be given its ordinary, popular or natural meaning. The interpretation thereof is in no way controlled or affected by the second part which “includes” certain other things in the definition. This is a well­settled principle of construction. Craies on Statute Law (7th Edn., 1.214) says:

“An interpretation clause which extends the meaning of a word does not take away its ordinary meaning…. Lord Selborne said in Robinson v. Barton­Eccles Local Board AC at p. 801:

‘An interpretation clause of this kind is  not meant to prevent  the word

26

receiving its ordinary, popular, and natural sense whenever that would be properly applicable, but to enable the word as used in the Act … to be applied to something to which it would not ordinarily be applicable.’ ”

(emphasis supplied)

Therefore, the inclusive part of the definition cannot prevent the main provision from receiving its natural meaning.

8.  In view of the above principle of construction, the first part of the definition of sale price in Section 2(d) of the 1954 Act must be given its own meaning and the respondent’s counsel is therefore right in urging that the first part of Section 2(d) which is similar to the first part of Section 2(p) in the Rajasthan Sales Tax Act, 1954, must be given the same meaning given to similar words in  Hindustan Sugar Mills v. State of Rajasthan, (1978) 4 SCC 271. What the said meaning is we shall consider separately. If, therefore, by virtue of  Hindustan Sugar Mills case the first part is to be interpreted as bringing within its natural meaning the “freight charges” then the contention for the appellants that like “packaging charges” these “freight charges” must have also been specifically included in Section 2(d) cannot be accepted.”

21. Thus, it is clear that the definition of Central

Government, which means the President is not controlled by the

second expression “and shall include the administrator”.  The

ordinary or popular meaning of the word “the President”

occurring in Section 3(8)(b) has to be given and the second

part of the definition shall not in any way control or affect

the first part of the definition as observed above.  In the

27

definition of Central Government, an administrator shall be

read when he has been authorised or delegated a particular

function under the circumstances as indicated above. No

statutory rules or any delegation has been referred to or

brought on record under which the administrator is entitled or

authorised to make nomination in the Legislative Assembly of

the Union Territory of Puducherry.  Thus, in the present case,

the definition of Central Government, as occurring in Section

3(3) of the Act, 1963 has to be read as to mean the President

and not the administrator.  The issue is answered accordingly.

Issue No.2

22. Relying on Rule 4(2) of the Rules of Business of the

Government  of  Puducherry,  1963  (hereinafter referred  to as

“Rules of Business”) read with Rule 48 it is contended that

business of Government in the nominations in the Legislative

Assembly is covered by Rule 4(2), hence, Administrator is

required to consult Council of Ministers or the Chief Minister

before taking any decision. The Rules of Business have been

framed by the President in exercise of the powers conferred by

Article 239 and the proviso to Article 309 of the

Constitution, Section 46 of the Act, 1963 and all other powers

28

enabling the President in this regard. In the Rules of

Business,  Rule  2(f) means:  “the Government  of  Puducherry”.

Rule 3 provides that the business of the Government shall be

transacted in accordance with these Rules. Rule 4 on which

reliance has been placed by  Kapil Sibal is to the following

effect:

“4. (1) The business of the Government in relation to matters with respect to which the Council is required under section 44 of the Act to aid and advise the Administrator in the exercise of his functions shall be transacted and disposed in accordance with the provisions of Chapter III.

(2) The remaining business of the Government shall be transacted and disposed of in accordance with the provisions of Chapter IV.

(3) Notwithstanding anything contained in sub­rule (1) and sub­rule (2), prior reference in respect of the matters specified in chapter V shall be made to the Central Government in accordance with the provisions of that Chapter.”

23. Rule 4(1) refers to the business of the Government in

relation to matters with respect to which the Council is

required under Section 44 of the Act to aid and advise the

Administrator in exercise of his functions. Section 44(1) of

the Act, 1963 is as follows:

“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 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

29

under this Act to act in his discretion or by or under any law to exercise any judicial or quasi­judicial functions:

 Provided that, in case of difference of opinion between the Administrator and his Ministers on any matter, 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.

a[ x x x x] b[ x x x x]”

24. Section 44(1) relates to functions “in relation to

matters with respect to which the Legislative Assembly of the

Union Territory has power to make laws. There may be other

functions of the Government of Puducherry which do not pertain

to functions in relation to matters with respect to which

Legislative Assembly of Puducherry has power to make laws. For

example, under any Parliamentary law with respect to which

Legislative Assembly of Union Territory has no power to make

laws, any power delegated to the State Government is

authorised or delegated under the Parliamentary laws to

exercise any function.

25. Rule 4(2) obviously refers to “the remaining business of

the Government”, which is not covered by Rule 4(1). Rule 48 of

the Rules of Business refers to sub­(2) of Rule 4. Rule 48 is

as follows:

30

“48. In regard to any matter referred to in sub­rule (2) of rule 4 and in respect of which no specific provisions has been made in the foregoing rules in this Chapter, the Administrator may, if he deems fit either consult his Council or the Chief Minister, before exercising his powers or discharging his functions in respect of that matter.”

26. As per Rule 48 with regard to matters referred to in

sub­rule (2) of Rule 4, the Administrator may, if he deems

fit, either consult his Council or the Chief Minister, before

exercising of his powers or discharging his functions in

respect of that matter. But the question which needs to be

answered for the present case is as to whether the nomination

of a member in the Legislative Assembly of Puducherry is

covered by expression “remaining business of the Government”.

The Government has been defined in Rule 2(f) as “the

Government of Puducherry”. The Government occurring in Rule

4(2) cannot be stretched to be Central Government. When

Section 3(3) of Act, 1963 empowers the Central Government to

nominate not more than three persons to the Legislative

Assembly of the Union Territory, it is the business of the

Central Government to make nominations as per Parliamentary

law.

27. The business of the Government as occurring in Rule 4 has

to be business which under any law is to be performed by the

31

Government  of  Puducherry.  Article  239A  of  the  Constitution

provides that Parliament may by law create a body, whether

elected or partly nominated and partly elected, to function as

a Legislature for the Union Territory or Council of Ministers

or both with such Constitution, powers and functions, in each

case, as may be specified in the law.

28. The expression 'law' used in Article 239A(1) is a

Parliamentary law. When the Constitution expressly provides

that it is the Parliament which may provide by law,

constitution of Legislature for the Union Territory, it is the

Parliament alone which can provide for constitution of

Legislative Assembly for Union Territory under the Act, 1963.

Section 3 does provide for constitution of Legislative

Assembly for Union Territory with thirty members to be elected

members and three members to be nominated by the Central

Government. When the Parliamentary law   as envisaged by

Article 239A provides for the constitution of Legislative

Assembly of the Union Territory which also includes

nomination, the said constitution which also includes

nomination can not be the business of the Government of

Puducherry. The nominations of the members to the Legislative

Assembly of Puducherry thus can never be covered by expression

'remaining business of the Government' as occurring in Rule

32

4(2). When Rule 4(2) itself is not attracted in reference to

the nomination in the Legislative Assembly, there is no

occasion of applicability of Rule 48 that is consultation with

the Council of Ministers or the Chief Minister by the

Administrator. We, thus, do not find any substance in the

submission of Shri Kapil Sibal that nomination in the

Legislative Assembly in the Puducherry is the business of the

Government of Puducherry and is to be exercised in accordance

with Rule 4(2) read with Rule 48. The nomination in the

Legislative Assembly in the Puducherry is to be made by the

Central Government by virtue of Article 239A read with Section

3(3) of the Act, 1963.

29. Article 77 of the Constitution deals with “conduct of

business of the Government of India”. Article 77 sub­clause

(3) provides that “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”. In exercise of the power under Article 77(3) the

President has made Government of India (Allocation of

Business) Rules, 1961 and the Government of India (Transaction

of Business) Rules, 1961. Rule 2 and Rule 3 sub­rule (1) of

Allocation of Business Rules which are relevant for this case

are to the following effect:

33

"2. Allocation of Business – The business of the Government of India shall be transacted in the Ministries, Departments, Secretaries and Officers specified in the First Schedule to these rules (all of which are hereinafter referred to as “departments”).

3. Distribution of Subjects ­

(1)The distribution of subjects among the departments shall be as specified in the Second Schedule to these Rules  and shall include all attached  and  subordinate offices or other organisations including Public Sector Undertakings concerned with their  subjects and Sub­rules (2), (3) and (4) of this Rule.

xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx.”

30. The Second Schedule includes “Ministry of Home Affairs

(Grih Mantralaya), which has several departments from A to E.

B is “Department of States (Rajya Vibhag). Under heading (III)

Union Territories have been mentioned. Under Para 7 sub­clause

(b) Union of Territory of Pondicherry is mentioned. Relevant

extract of Second Schedule under the Ministry of Home Affairs,

Department of States is as follows:

"(III) Union Territories

7. Union of Territories with legislature:

(a) xxx xxx xxx xxx

(b) Union Territory of Pondicherry:

All matters falling within the purview of the

34

Central Government in terms of provisions contained in Part VIII of the Constitution in so far as these relate to the Union Territory of Pondicherry and the Government of Union Territories Act, 1963 except all such matters as have been under these rules specifically been assigned to any other Ministry or Department of the Government of India.”

31. Para 7(b) expressly provides that all matters falling

within the purview of the Central Government in terms of

provisions contained in Part VIII of the Constitution in so

far as these relate to the Union Territory of Puducherry and

the Government of Union Territories Act, 1963 are assigned to

the Department of States.   Thus, under the Act, 1963 all

matters falling within the purview of the Central Government

including power of nomination given to the Central Government

under Section 3(3) are assigned under the Allocation of

Business Rules by the President of India to Ministry of Home

Affairs, Department of States. Thus, power under Section 3(3)

of Act, 1963 has to be transacted in the Ministry of Home

Affairs, Department of States. For Transaction of Business,

the President has framed Government of India (Transaction of

Business) Rules, 1961. Rule 3 of (Transaction of Business)

Rules, 1961 which is relevant is as follows:

"3. Disposal of Business by Ministries. ­ Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India

35

(Allocation of Business) Rules, 1961, shall be disposed of by, or under the general or special directions of, the Minister­in­charge.”

32. Thus, as per Transaction of Business Rules, the matter of

nomination in the Legislative Assembly of Puducherry not being

a matter in regard to consultation with other departments and

submission of the cases to the Prime Minister, the Cabinet and

its Committees and the President, the above business is to be

disposed of by or under the general or special orders or the

directions of the Minister­in­charge that is Home Minister.

33. In view of the foregoing discussion, we are of the clear

opinion that nomination in the Legislative Assembly of

Puducherry is not the Business of the Government of

Puducherry. It is a business of Central Government as per

Section 3(3) of Act, 1963 which is to be carried out in

accordance with the Government of India (Allocation of

Business) Rules, 1961 and Government of India (Transaction of

Business) Rules, 1961. The issue is answered accordingly.

Issue No. 3

Whether Principles of Federalism or Cooperative Federalism has been violated in the present case?  

34. The Constitution of India is a written Constitution,

which came into being after long deliberations by the men of

eminence representing the aspirations and culture of our

36

ancient nation.   Before Constitution makers, various

Constitutions of the world were there to be looked into,

incorporated and relied on.   Our Constitution makers have

taken best part of the Constitution of different countries

including USA, Australia, Germany, Canada and Others.   When

the draft Constitution was being debated in the Constituent

Assembly, one of the relevant issue to be deliberated,

pondered upon and decided was the nature of Indian

Constitution.   Whether Constitution should be one, which is

being followed in Federal countries like USA or it should be a

Unitary Constitution, was deliberated and pondered.  Dr. B.R.

Ambedkar, Chairman of the Drafting Committee after noticing

the characteristics of Unitary Constitution and Federal

Constitution categorically stated that draft Constitution is a

Federal Constitution.  In the deliberation of 04.11.1948, Vol.

VII Page 33, following was said by Dr. B.R. Ambedkar;­ “Two principal forms of the Constitution are known to history ­ one is called Unitary and the other Federal. The two essential characteristics of a Unitary Constitution are:(1) the supremacy of the Central Polity and (2) the absence of subsidiary Sovereign polities. Contrariwise, a Federal Constitution is marked: (1) by the existence of a Central polity and subsidiary polities side by side, and (2) by each being sovereign in the field assigned to it. In other words. Federation means the establishment of a Dual Polity. The Draft Constitution is, Federal Constitution inasmuch as it establishes what may be called a Dual Polity. This Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at

37

the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution………..”

35. Dr. Ambedkar  further said that there are marked

differences with the American Federation. He said that all

federal systems including the American are placed in a tight

mould of federalism.  It cannot change its form and shape no

matter what are the circumstances.  Our draft Constitution can

be both Unitary as well as Federal according to time and

circumstances.  Dealing with the essential characteristics of

the Federal Constitution, Dr. Ambedkar Said:­ “…………………. A Federal Constitution cannot but be a written Constitution and a written Constitution must necessarily be a rigid Constitution. A Federal Constitution means division of Sovereignty by no less a sanction than that of the law of the Constitution between the Federal Government and the States, with two necessary consequences (1) that any invasion by the Federal Government in the field assigned to the States and vice versa is a breach of the Constitution and (2) such breach is a justiciable matter to be determined by the Judiciary only………………….”

36. It is also relevant to notice that before the Constituent

Assembly, complaint was raised by the members that there is

too much of centralisation in the Union.  Replying the above

complaint,  Dr. Ambedkar  clarified that legislative and

executive authority, is partitioned between the Centre and the

States.   

37. Dr. Ambedkar  in deliberations dated 25.11.1949, Vol. XI

38

Page 976 said:­  “There is only one point of constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the Legislative and Executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co­equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large field for the operation of its legislative and executive authority than is to be found in any other federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our constitution. There can be no mistake about it.

 38. The nature and character of the Constitution came for

consideration before this Court in several Constitution

Benches, where this Court noted the fundamental feature of the

Constitution of India.   A seven­Judge Constitution Bench of

this Court in Special Reference No.1 of 1964, AIR 1965 SC 745

held that essential characteristics of federalism is the

39

distribution of executive, legislative and judicial

authorities among bodies, which are independent of each other.

In paragraph 39, following has been laid down:­ “39.  Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.”

39.  In the landmark judgment of this Court in  Kesavananda

Bharati v. State of Kerala, (1973) 4 SCC 225 a new dimension

was given to the constitutional principles. This Court by

majority judgment declared that the basic feature of the

Constitution could not be amended by a constitutional

amendment. Sikri, C.J. while delivering the majority judgment

had held that federal character of the Constitution is one of

40

the basic structures of the Constitution.

40. Shelat and Grover, JJ. while delivering concurring

opinion had also stated that our Constitution has all

essential elements of federal structure. In para 486 following

was stated: (Kesavananda Bharati case, SCC pp. 408­09) “486. The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. All the legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it (Per Gajendragadkar, C.J. in Special Reference No. 1 of 196435). All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights (SCR at p. 446). It is a written and controlled Constitution.”

41. Again a seven­Judge Bench in State of Rajasthan v. Union

of India, (1977) 3 SCC 592  had an occasion to consider the

nature of the Indian Constitution. M.H. Beg, C.J., while

delivering majority decision, in para 57  states: (SCC p. 622) “57. The two conditions Dicey postulated for the existence of federalism were: firstly, ‘a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, by history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality’; and, secondly, absolutely essential to the founding of a federal system is the ‘existence of a very peculiar state of sentiment among the

41

inhabitants of the countries’. He pointed out that, without the desire to unite there could be no basis for federalism. But, if the desire to unite goes to the extent of forming an integrated whole in all substantial matters of Government, it produces a unitary rather than a federal Constitution. Hence, he said, a federal State “is a political contrivance intended to reconcile national unity with the maintenance of State rights”. The degree to which the State rights are separately preserved and safeguarded gives the extent to which expression is given to one of the two contradictory urges so that there is a union without a unity in matters of Government. In a sense, therefore, the Indian union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically coordinated, and socially, intellectually and spiritually uplifted. In such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government.”

42. Further in para 60 referring to Dr Ambedkar following was

stated: (State of Rajasthan case, SCC p. 623) “60. Although Dr Ambedkar thought that our Constitution is federal “inasmuch as it establishes what may be called a Dual Polity”, he also said, in the Constituent Assembly, that our Constitution­makers had avoided the “tight mould of federalism” in which the American Constitution was forged. Dr Ambedkar, one of the principal architects of our Constitution, considered our Constitution to be ‘both unitary as well as federal according to the requirements of time and circumstances’.”

43. A nine­Judge Bench had occasion to elaborately consider

the nature of the Constitution of India in  S.R. Bommai v.

Union of India,  (1994) 3 SCC 1, Ahmadi, J. referring to

42

federal character of the Constitution in para 14 following was

stated: (SCC pp. 68­69) “14. In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite  so  that  all  the  member  States  may  share  in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.”

Ahmadi, J. further stated that the Constitution of India

is differently described, more appropriately as

“quasi­federal” because it is a mixture of the federal and

unitary elements, leaning more towards the latter.

44. B.P. Jeevan Reddy, J. held that the Founding Fathers

wished to establish a strong Centre. In the light of the past

history of this Sub­Continent, this was probably a natural and

necessary decision. In paras 275 and 276 following was stated:

(S.R. Bommai case, SCC pp. 215­17) “275. A review of the provisions of the Constitution shows unmistakably that while creating a federation, the Founding Fathers wished to establish a strong Centre.  In the  light  of  the  past history  of  this sub­continent, this was probably a natural and necessary decision. In a land as varied as India is, a strong Centre is perhaps a necessity. This bias towards Centre is reflected in the distribution of legislative heads between the Centre and States. All

43

the more important heads of legislation are placed in List I. Even among the legislative heads mentioned in List II, several of them, e.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57 and 63 are either limited by or made subject to certain entries in List I to some or the other extent. Even in the Concurrent List (List III), the parliamentary enactment is given the primacy, irrespective of the fact whether such enactment is earlier or later in point of time to a State enactment on the same subject­matter. Residuary powers are with the Centre. By the 42nd Amendment, quite a few of the entries in List II were omitted and/or transferred to other lists. Above all, Article 3 empowers Parliament to form new States out of existing States either by merger or division as also to increase, diminish or alter the boundaries of the States. …

276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis­à­vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments — be it the result of advances in technological/scientific fields or otherwise, and that even in USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle — the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures “Union and State Relations under the Indian Constitution” (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its

44

historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible — nor is it necessary — for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis­à­vis the States [Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan3, SCR p. 540]. It is equally necessary to emphasise that courts should be careful not to upset the delicately­crafted constitutional scheme by a process of interpretation.”

45. A Constitution Bench in Kuldip Nayar v. Union of India,

(2006) 7 SCC 1, held that India is not a federal State in the

traditional sense of the term and it is not a true federation

formed by agreement between various States and it has been

described as quasi­federation and similar other concepts.

46. A nine­Judge Constitution Bench in  Jindal Stainless

Limited and Another Vs. State of Haryana and Others, (2017) 12

SCC 1 had occasion to consider the nature of federalism in the

Indian Constitution while considering the relations between

Union and States in reference to part XIII of the

Constitution.  Dr. T.S. Thakur, Chief Justice of India, as he

then was, speaking for the Court noticed the nature of

federalism  as  ingrained in  the  Constitution.   Constitution

Bench held that even though our Constitution may not be

strictly federal in its character but the significant features

of federal Constitution are found in the Indian Constitution.

45

In Paragraph 32, Constitution Bench laid down as follows:­ “32.  Whether or not the Constitution provides a federal structure for the governance of the country has been the subject­matter of a long line of decisions of this Court, reference to all of which may be unnecessary but the legal position appears to be fairly well settled that the Constitution provides for a quasi­federal character with a strong bias towards the Centre. The pronouncements recognised the proposition that even when the Constitution may not be strictly federal in its character as the United States of America, where sovereign States came together to constitute a federal Union, where each State enjoins a privilege of having a Constitution of its own, the significant features of a federal Constitution are found in the Indian Constitution which makes it a quasi­federal Constitution, if not truly federal in character and in stricto sensu federal. The two decisions which stand out in the long line of pronouncements of this Court on the subject may, at this stage, be briefly mentioned. The first of these cases is the celebrated decision of this Court in Kesavananda Bharati case15, wherein a thirteen­Judge Bench of this Court, Sikri, C.J. (as his Lordship then was), being one of them talks about whether the Constitution of India was federal in character and if so whether federal character of the Constitution formed the basic feature of the Constitution. Sikri, C.J. summed up the basic feature of the Constitution in the following words: (SCC p. 366, paras 292­94)

“292. … The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

46

(4) Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution.

293. The above structure is built on the basic foundation i.e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

294. The above foundation and the above basic features are easily discernible not only from the Preamble but the whole scheme of the Constitution, which I have already discussed.”

To the same effect are the views expressed by Shelat and Grover, JJ. who declared that the federal character of the Constitution is a part of its basic structure.”

47. In  Jindal Stainless Ltd. (supra), one of us (Ashok

Bhusha,J) has also expressed views on the form of the Indian

Constitution, which was the same as expressed by majority

opinion.  In Paragraph 944, following was held:­ “944. The law declared by this Court as noted above clearly indicates that the Indian Constitution is basically federal in form and has marked traditional characteristics of a federal system, namely, supremacy of the Constitution, division of power between the Union and the States and existence of an independent judiciary. Federalism is one of the basic features of the Indian Constitution. However, the history of Constitution including the debates in the Constituent Assembly indicate that the distribution of powers was given shape with creating a strong Centre with the object of unity and integrity of India. The States are sovereign in the allotted fields. The Indian Constitution cannot be put in traditional mould of federalism. The traditional concept of federalism has been adopted with necessary modification in the framework of the Constitution to suit the country’s necessity and requirement. The sum

47

total of above discussion is that federalism in the Constitution is limited and controlled by the Constitution and the exercise of powers of both the States and the Centre are controlled by express provisions of the Constitution.”

48. A recent Constitution Bench judgment, which needs to be

noticed is a judgment of this Court in State (NCT of Delhi)

Vs. Union of India & Another, (2018) 8 SCC 501.  Chief Justice

Dipak Misra, as he then was, speaking for the Constitution

Bench elaborately considered the concept of federal

Constitution and laid down following in Paragraph Nos. 95, 96

and 108:­ “95.  In common parlance, federalism is a type of governance in which the political power is divided into various units. These units are the Centre/Union, States and Municipalities. Traditional jurists like Prof. K.C. Wheare lay emphasis on the independent functioning of different governing units and, thus, define “federalism” as a method of dividing powers so that the general/Central and regional governments are each within a sphere coordinate and independent. As per Prof. Wheare:

“the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so, is that Government federal?”

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

108.  From the foregoing discussion, it is clear as day that both the concepts, namely, democracy i.e.

48

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

49. Constitution Bench also noticed the concept of

cooperative federalism and referring to an earlier judgment of

this Court in State of Rajasthan Vs. Union of India, (1977) 3

SCC 592 laid down following in paragraph No. 121 and 122:­ “121.  In State of Rajasthan v. Union of India, the Court took cognizance of the concept of cooperative federalism as perceived by G. Austin and A.H. Birch when it observed: (SCC p. 622, para 58)

“58. Mr Austin thought that our system, if it could be called federal, could be described as “cooperative federalism”. This term was used by another author, Mr A.H. Birch (see Federalism, Finance and Social Legislation in Canada, Australia and the United States, p. 305), to describe a system in which:

‘… the practice of administrative cooperation between general and regional Governments, the partial dependence of the regional Governments upon payments from the general Governments and the fact that the general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions.’”

49

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

50. The concept of Collaborative federalism was also noticed

in paragraph Nos. 110 and 111 in the following words:­ “110.  The Constituent Assembly, while devising the federal character of our Constitution, could have never envisaged that the Union Government and the State Governments would work in tangent. It could never have been the Constituent Assembly’s intention that under the garb of quasi­federal tone of our Constitution, the Union Government would affect the interest of the States. Similarly, the States under our constitutional scheme were not carved as separate islands each having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put a step to invite anarchism. Rather, the vision enshrined in the Preamble to our Constitution i.e. to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike. The ultimate aim is to have a holistic structure.

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

51. Another concept which was noticed and elaborated was the

concept of Pragmatic federalism.  Following was laid down in

Paragraph 123:­ “123.  In this context, we may also deal with an ancillary issue, namely, pragmatic federalism. To

50

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

52. It has been laid down by this Court in the above cases,

which is clear from above precedents that Indian Constitution

has adopted federal structure.   Although, it is not in the

strict mould of federalism as understood in theory.  That is

why, different Constitution Benches of this Court have termed

the Indian Constitution as a quasi­federal but the essential

51

characteristics of the federal system are ingrained in the

Constitution and reflect in different Constitutional

provisions which are (i) the distribution of legislative and

executive power between the Union and the States, (ii) the

distribution of such legislative and executive power is by the

Constitution  itself,  and  (iii)  an  independent  judiciary to

interpret the Constitutional provisions and lay down validly

in case of any dispute or doubt.         

53. The concepts of cooperative federalism, collaborative

federalism and pragmatic federalism as has been noticed by the

Constitution Bench in State (NCT Of Delhi) (supra) essentially

engraft the same concept, i.e. faithful discharge of the

functions, both Union and States have to follow Constitutional

principles and not to encroach in the field reserved to other

by the Constitution.    

54. The principle of federalism as adopted in the

constitution of India are well settled as noticed above.  The

submission, which needs to be answered in the present case is

as to whether the federal principles as ingrained in the

Constitution are in any manner sacrificed in the present case,

i.e., by nominations made by Central Government without

concurrence of the Government of Union Territory of

Puducherry.   Article 239A by which creation of local

52

Legislatures or Council of Ministers or both for certain Union

Territories was provided by the Constitution (Fourteenth

Amendment) Act, 1962 empowering the Parliament by law, to

create for the Union Territory of Puducherry, a body, whether

elected or partly nominated and partly elected, to function as

a Legislature for the Union Territory, or a Council of

Ministers, or both  with such constitution, powers and

functions, in each case, as may be specified in the law.  The

Constitution, thus, by Article 239A has empowered the

Parliament to create Legislature for the Union Territory by

law with such  constitution, powers and functions  as may be

specified in the law.   Thus, it is the Constitution itself,

which is empowering Parliament to provide by law for

Constitution of Union Territory.  Further, the Legislature as

a body contemplated by Article 239A is a body, whether elected

or partly nominated and partly elected.  Thus, the

Constitution provision itself contemplate creation of

Legislature whether elected or  partly  nominated and partly

elected.  When the Constitution itself empowers the Parliament

to frame law to create a body, which may be partly nominated

and partly elected and Section 3 of the Act, 1963, which

provide for thirty seats to be filled up by persons chosen by

direct election and three seats by nominations made by the

53

Central Government, we fail to see that how the law made by

Parliament or nominations made by Central Government breaches

the principles of federalism.  The Constitution of Legislative

body for Union Territory being entrusted to the Parliament by

Constitution and there being no indication in the

Constitutional provision or provisions of the Act, 1963 that

said nomination has to be made with concurrence of Government

of Union Territory of Puducherry, we fail to see any substance

in the argument of Shri Kapil Sibal that by nominations made

by Central Government, federal principles or principle of

cooperative federalism has been violated.   The concept of

federalism itself envisages distribution of power between

Union and States.   It is further to be noticed that Union

Territories are not States. These Union Territories,

ordinarily, belong to the Union (i.e. the Central Government)

and therefore they are called 'Union Territories'. That is why

they are governed under the administrative control of the

President of India.  That is the clear purport behind Article

239. However,   to a limited extent, the power of the Union is

diluted with respect to Puducherry vide Article 239A. At the

same time, this constitutional provision, i.e. Article 239A.

With regard to the Union Territory of Puducherry itself

envisages the constitution of Legislative Council partly by

54

nomination and partly by election. Further, specific authority

to nominate in the Legislative Council has been conferred by

law i.e. under Section 3 to the Central Government. Thus no

breach of federal principles are made out and the submission

on the basis of breach of federal principles in nomination by

the Central Government is unfounded.    

Issue No.4 and 5 55. Both the issues being interdependent are being taken

together.  The expression “Constitutional convention” has been

coined by Professor A.V. Dicey.  In 1885, in his introduction

to the study of the “Law of the Constitution”, in Chapter

dealing with nature of conventions of Constitution, Professor

Dicey States:­  “…………The conventions of the constitution are in short rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown, whether these powers are exercised by the King himself or by the Ministry…………………..”

56. Elaborating further Prof. Dicey States:­ “……………………The result follows, that the conventions of the constitution, looked at as a whole, are customs, or understandings, as to the mode in which the several members of the sovereign legislative body, which, as it will be remembered, is the "Queen in Parliament,” should each exercise their   discretionary authority, whether it be termed the prerogative of the Crown or the privileges of Parliament. Since, however, by far the most numerous and important of our constitutional understandings refer at bottom to the exercise of the prerogative, it will conduce to brevity and clearness if we treat the conventions of the constitution, as rules or customs determining the mode in which the discretionary power of the executive, or in technical

55

language the prerogative, ought (i.e. is expected by the nation) to be employed.”

57. Professor Dicey in his treatment of conventions of the

Constitution  has  held  that  conventions  of  the  Constitution

constitutes customs, practices, maxims, and precepts which are

not enforced or recognised by the Courts, make up a body not

of laws, but of constitutional or political ethics.   The

Dicey’s statement that Constitutional conventions are not a

body of laws but constitutional or political ethics was

subject to debate and discussion.   Sir Ivor Jennings  in his

treatise “The Law and the Constitution” noticed the

distinction between laws and conventions as made by Professor

Dicey, but opined that distinction appears to be plain and

unambiguous, it is by no means free from difficulty.   

58. Professor Dicey’s statement that the convention is not a

binding rule was departed with by  Sir Kenneth Wheare  in

“Modern Constitutions”, who wrote:­ “By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.”  

59. Sir Ivor Jennings in his treatise has elaborately dealt

the conventions of the Constitution while explaining the

purpose of the convention, he states:­ “The short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal

56

constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men…………………..”  

60. How the conventions are to be established was also

explained by Sir Ivor Jennings in following words:­ “It is clear, in the first place, that mere practice is insufficient.   The fact that an authority has always behaved in a certain way is no warrant for saying that it ought to behave in that way.  But if the authority itself and those connected with it believe that they ought to do so, then the convention does exist.   This is the ordinary rule applied to customary law.   Practice alone is not enough.   It must be normative………………….”   

61. Further, he states that:­ “………………………….For neither precedents nor dicta are conclusive.  Something more must be added.  As in the creation of law, the creation of a convention must be due to the reason of the thing because it accords with the prevailing political philosophy.   It helps to make the democratic system operate; it enables the machinery of State to run more smoothly; and if it were not there friction would result.   Thus, if a convention continues because it is desirable in the circumstances of the constitution, it must be created for the same reason…………………….”

62. The test to find out as to whether a practice or

precedent has become convention, Sir Ivor Jennings lays down

following tests:­ “……………..We have to ask ourselves three questions: first,   what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?  A single precedent with a good reason may be enough  to  establish  the  rule.  A  whole string  of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.  And then, as

57

we have seen, the convention may be broken with impunity.”

63. The above three tests laid down by Sir Ivor Jennings has

been approved by a Constitution Bench of this Court in Supreme

Court Advocates­On­Record Association and Others Vs. Union of

India, (1993) 4 SCC 441 (Para 346). The Constituent Assembly

while drafting the Constitution of India was well aware of the

British convention. Initially on 17.07.1947  Hon'ble Sardar

Vallabhbhai Patel  while moving Clause 14 stated that the

Governor shall be generally guided by the conventions of

responsible, Government as set out in Schedule. A Schedule was

contemplated tobe framed according to the traditions of

responsible Government. It is useful to notice what was said

by Hon'ble Sardar Vallabhbhai Patel:

"The Hon'ble Sardar Vallabhbhai Patel : Sir, I move that:

“In the appointment of his ministers; and his relations with them, the Governor shall be generally guided by the conventions of responsible, Government as set out in Schedule.....; but the validity of anything done by the Governor shall not be called in question on the ground that it was done otherwise than in accordance with these conventions.”

Now a Schedule according to the traditions of responsible Government will be framed and put in. This also is a non­controversial thing and I move the proposition for the acceptance of the House.”

64. Although Schedule IIIA was contemplated codifying

58

convention but at the later stage it was decided to drop

codifying the convenient. The reasons for not codifying the

convention was elaborated by Shri. T.T. Krishnamachari in

Constituent Assembly debate on 11.10.1949. Schedule IIIA which

was contemplated to be inserted by way of amendment was not

moved. Similarly, Schedule IV which was to describe relations

of the President and the Governor viz­a­viz the Ministers was

also moved to be deleted. On the questioning of deletion of

the Schedule, Dr. B.R. Ambedkar asked Shri Krishnamachari to

explain. Shri T.T. Krishnamachari while explaining stated

following:

"Shri T.T. Krishnamachari:  ....Therefore, we have decided to drop Schedule IIIB which we proposed as an amendment and also Schedule IV which finds a place in the Draft Constitution,  because it is felt to be entirely unnecessary and superfluous, to give such direction in the Constitution which really should arise out of conventions that grow up from time to time, and the President and the Governors in their respective spheres will be guided by those conventions....”

65. The above debates in the Constituent Assembly clearly

indicate that Constitutional conventions were very much in the

contemplation during the debates in the Constituent Assembly.

Conventions were expected to grow from time to time and the

President and Governors in their respective spheres were to be

guided by those conventions.

59

66. The American jurisprudence also recognises convention

including the constitutional conventions. John Alexander

Jameson in  'A Treatise on Constitutional Conventions'  while

explaining the constitutional convention states:

"as its name implies, constitutional; not simply as having for its object the framing or amending of Constitutions, but as being within, rather than without, the pale of the fundamental law; as ancillary and subservient and not hostile and paramount to it. The species of Convention sustains an official relation to the state, considered as a political organization. It is charged with a definite, and not a discretionary and indeterminate, function.”

67. Leonid Sirota in his Article 'Towards a Jurisprudence of

Constitutional Conventions' defines constitutional convention,

as:

“those primary constitutional rules, limiting the powers of the several organs of government in a polity and governing the relations among them, which are not found in constitutional or ordinary statutes or the common law, and which reflect the 'constitutional theory' or political values of the day.”

68. The constitutional conventions are born and recognised in

working of the Constitution. The purpose and object of

constitutional convention is to ensure that the legal

framework of the Constitution is operated in accordance with

constitutional values and constitutional morality. The

60

constitutional conventions always aims to achieve higher

values and objectives enshrined in the Constitution. The

conventions are not static but can change with the change in

constitutional values and constitutional interpretations. No

constitutional convention can be recognised or implemented

which runs contrary to the expressed constitutional provisions

or contrary to the underlined constitutional objectives and

aims which Constitution sought to achieve.    

69. There have been several pronouncements by this Court

where the Constitutional conventions were referred to and

relied. In U.N.R. Rao vs. Smt. Indira Gandhi, (1971) 2 SCC 63,

this Court while interpreting Article 75(3) held that while

interpreting the Constitution the conventions prevalent at the

time when Constitution was formed, have to be kept in mind. In

interpreting Article 75(3), this Court took support from the

conventions followed in United Kingdom and other countries. In

paragraphs 3 and 11 following was held:

“3………It seems to us that a very narrow point arises on the facts of the present case. The House of the People was dissolved by the President on December 27, 1970. The respondent was the Prime Minister before the dissolution. Is there anything in the Constitution, and in particular in Article 75(3), which renders her carrying on as Prime Minister contrary to the Constitution? It was said that we must interpret Article 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an Article are clear, notwithstanding any relevant

61

convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.”

“11.  We are grateful to the learned Attorney­General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one, and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.”

70. The most elaborate consideration of Constitutional

convention was undertaken by the Constitution Bench of this

Court in  Supreme Court Advocates­on­record Association and

others vs. Union of India, (1993) 4 SCC 441,  Justice Kuldip

Singh in his judgment has elaborately considered the

Constitutional convention. This Court held that conventions

are found in all established Constitutions and soon develop

even in the newest. In paragraphs 340 and 341 following was

laid down:

“340. The written Constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted

62

with the help of conventions which grow with the passage of time. Conventions are vital insofar as they fill up the gaps in the Constitution itself, help solve problems  of interpretation, and allow for  the  future development of the constitutional framework. Whatever the nature of the Constitution, a great deal may be left unsaid in legal rules allowing enormous discretion to the constitutional functionaries. Conventions regulate the exercise of that discretion. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, or canalised by the operation of the conventional rule. K.C. Wheare in his book Modern Constitutions (1967 Edn.) elaborates such a rule as under:

“What often happens is that powers granted in a Constitution are indeed exercised but that, while they are in law exercised by those to whom they are granted, they are in practice exercised by some other person or body of persons. Convention, in short, transfers powers granted in a Constitution from one person to another.”

341.  The primary role of conventions is to regulate the exercise of discretion — presumably to guard against the irresponsible abuse of powers. Colin R. Munro in his book  Studies in Constitutional Law  (1987 Edn.) has summed up the field of operation of the conventions in the following words:

“Some of the most important conventions, therefore, are, as Dicey said, concerned with ‘the discretionary powers of the Crown’ and how they should be exercised. But it is not only in connection with executive government and legislature­executive relations that we find such rules and practices in operation. They may be found in other spheres of constitutional activity too; for example, in relations between the Houses of Parliament and in the workings of each House, in the legislative process, in judicial administration and judicial behaviour, in the civil service, in local government, and in the relations with other members of the Commonwealth.””

63

71. This Court held that every act by a constitutional

authority is a 'precedent' in the sense of an example which

may or may not be followed in subsequent similar cases, but a

long series of precedents all pointing in the same direction

is very good evidence of a convention. On the requirements for

establishing the existence of a convention, this Court quoted

with approval the test laid down by Sir W. Ivor Jennings in

'The Law and the Constitution'. In paragraphs 345 and 346

following was laid down:

“345.  Every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention.

346.  The requirements for establishing the existence of a convention have been succinctly laid down by Sir W. Ivor Jennings in  The Law and the Constitution, Fifth Edn., (1959) as under:

“We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.””

72. This Court after referring to several treatises on the

64

constitutional law held that the constitutional functionaries

have to follow the same as a binding precedent. In paragraphs

351 and 353 following was held:

“351. It is not necessary for us to delve into this subject any more. We agree that a convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become law. When customary rules are recognised and enforced by courts as law, there is no reason why a convention cannot be crystallized into a law and become enforceable. “Conventions can become law also by judicial recognition” stated K.C. Wheare in Modern Constitution  (1966 Edn.). It is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent then there is no justification to deny such a convention the status of law.

353.  We are of the view that there is no distinction between the “constitutional law” and an established “constitutional convention” and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

73. This Court in the above case has clearly held that

existence of a particular convention is to be established by

historical and factual evidence and for establishing the

existence of convention the test laid down by Sir Ivor

65

Jennings was also approved and applied in the following words

in paragraph 357:

“357.  We now proceed to consider whether an established constitutional convention can be read in Articles 124(2) and 217(1) of the Constitution of India to the effect that in the matter of appointment of the Judges of the High Courts and Supreme Court, the opinion of the judiciary expressed through the Chief Justice of India is primal and binding. For that purpose we adopt the test for the existence of a convention, laid down by Sir Ivor Jennings, based on three questions: (a) What are the precedents? (b) Did the actors in the precedents believe that they were bound by a rule?, and (c) Is there a reason for the rule?”

74. We now proceed to apply the tests for establishing a

convention in the facts of the present case. The submission of

Shri Kapil Sibal, as noted above, is that on six prior

occasions members were nominated to the Puducherry Legislative

Assembly after consultation with elected Government of

Puducherry. He has referred to nominations made in the year

1985, 1990, 1996, 2006 and 2011. With regard to year 2001, it

has been submitted that when Lt. Governor unilaterally

forwarded the names   of the members, upon objection from the

then Chief Minister, the proceedings were dropped and proposed

list was referred back to the Administrator for lack of

consultation.

75. Learned counsel appearing for the Union of India has

66

replied the aforesaid submission. In the short note submitted

on behalf of the Union of India, details regarding nominations

made on the earlier occasions have been explained. Learned

counsel for the Union of India has also produced the original

files of the Central Government relating to the aforesaid

nominations as was orally directed on 20.11.2018. It relates

to the nominations made on earlier occasions, original records

duly flagged has been submitted by the Union of India. The

details submitted by the Union of India are in the following

tabular form:

DETAILS REGARDING NOMINATIONS MADE ON EARLIER OCCASIONS

Centre Union  Territory

Remarks

1985 Congress Congress File not traceable 1990 Congress DMK On the recommendations of  

LG FLAG 1 FLAG 1A

1995 Congress Congress CM directly recommended  names to the Home Minister out of which only one name was accepted.  The other  names were taken from  request made by President, Puducherry Pradesh  Congress Committee and  another recommendation/  order of PMO.  However,  the said notifications  were cancelled by a later  notification.

FLAG 2 FLAG 2A

1997 DMK Out of 3 MLA’s, two on the recommendation of LG and  one on the recommendation  of CM

FLAG 3 FLAG 3A FLAG 3B

2001 NDA Congress NO CM recommendation.   Persons recommended by LG  

FLAG 4 FLAG 4A

67

were holding office of  profit and hence  nominations not done.  

FLAG 4B FLAG 4C

2005 UPA Congress All 3 MLA’s nominated on  the recommendation of CM & LG

FLAG 5 FLAG 5A FLAG 5B FLAG 5C

2007 UPA Congress All 3 MLA’s nominated on  the recommendation of CM  and LG

FLAG 6 FLAG 6A FLAG 6B

2011 UPA NR  Congress

Recommendation sent by LG  & CM.  However,  nominations not done.

FLAG 7 FLAG 7A FLAG 7B

2014 UPA NR  Congress

All 3 MLA’s nominated on  the recommendation of CM  and LG

FLAG 8 FLAG 8A FLAG 8B

2017 NDA Congress No recommendations  received either from LG or CM

FLAG 8C

76. The above details indicate that in the year 1990, 1997,

2005, 2007 and 2014 nominations were made on the

recommendations of Chief Minister/LG. Original records fully

support the statement made in the above Chart. The position of

nomination is different in the year 1995, 2001 and 2011 which

needs to be specifically noted.  

77. In the year 1995, Chief Minister of the Pondicherry

suggested three names for nominations whereas President,

Puducherry Pradesh Congress Committee also suggested three

different names. The Prime Minister had approved three names

which consists one name suggested by Chief Minister, one name

suggested by  President, Puducherry Pradesh Congress Committee

68

and one name of its own. Notification was issued on

26.07.1995. A decision was subsequently taken to cancel the

notification by the Home Minister on 12.08.1995. No further

nominations were made in the said year.

78. Now we come to year 2001. In the year 2001, Lieutenant

Governor had forwarded names of 10 persons who had sought

nominations as members of the Legislative Assembly. The Chief

Minister,  Pondicherry  had  sent  representation  that  the  Lt.

Governor did not consult him in the matter of proposing

nominations. The issue surfaced in the said year as to whether

the consultation of Chief Minister is necessary before

nomination by the Central Government. The Home Minister by his

order dated 08.08.2001 directed for obtaining legal advise.

The Joint Secretary and Legal Adviser submitted a note dated

21.09.2001 in which in paragraph 9 he opined:

"9. In the light of the above, we are of the view that consultation with the Chief Minister of Pondicherry is not necessary before the Central Government nominates a person to be a member of its Legislative Assembly under sub­section (3) of section 3 of the Act.”

No final nominations could be made in the year 2001, 2002 and

2003.

69

79. In the year 2011, although recommendations were sent by

the Lt. Governor and Chief Minister but no nominations were

made. After the nominations made in the year 2014, the

nominations have been made in the year 2017. A note dated

16.08.2016 was put up by Deputy Secretary that last nomination

was made vide notification dated 02.09.2014 with the approval

of Home Minister. The tenure of the Assembly got over and new

Assembly has been constituted, hence, new persons are to be

appointed as Nominated Members. A perusal of the original

records indicates that following four issues were outlined to

be referred to the Attorney General for his advice:

"Issue No.1:Whether the Central Govt. has got absolute powers to appoint nominated Members to the Legislative Assembly of Puducherry?

Issue No.2: Whether recommendation of LG, Puducherry is mandatory for consideration of names for appointment of nominated Members to Puducherry Legislative Assembly by the Central Government ?

Issue No.3: If the reply to Issue 1 is in affirmative, is there any role of the Chief Minister/Council of Ministers to aid/advise the L.G. in the matter of making such recommendation, and if so, whether such aid and advice is binding upon the LG?

Issue No.4: Keeping in view that there is no laid down procedure for such nomination, whether any prescribed procedure is

70

required to be followed or any specific condition to he imposed for making nominations?”

80. The Attorney General on 15.11.2016 ordered the file “Be

put up before the S.G.”. In the records there is detailed

opinion given by the Solicitor General on 29.11.2016. The

Solicitor General with regard to Queries Nos.1,2,3 and 4  has

opined:

"5. In light of the aforementioned observations, the Queries raised are answered accordingly:

i. Re:Query (I): Section 3(3) of the Government of Union Territories Act, 1963 empowers Central Government to nominate members of the Legislative Assembly of Puducherry. Due to the operation of the word “may” in the said sub­section (3), the said power is to be exercised at the discretion of the Central Government. Hence, the Central Government may, or may not nominate three members to the Legislative Assembly of Puducherry. However, it is relevant to note the members nominated in the manner envisaged   in   sub­section (3) of Section 3, must comply with the criteria of qualification of members to the Legislative Assembly enumerated in Section 4 of the Government of Union Territories Act, 1963 and will be disqualified from being members of the Legislative Assembly if found within Section 14 of the Government of Union Territories Act, 1963.

ii. Re: Query (iii): The Central Government may in

71

its wisdom consult the Administrator of Puducherry for consideration of names for appointment of nominated members to the Puducherry Legislative Assembly especially when the Administrator is the nominee of the President.

iii.Re: Query (iii): As stated in response to Query (ii), the recommendation of Administrator is not mandatory for consideration of names for appointment of nominated members to the Puducherry Legislative Assembly but he/she may be consulted. Therefore, the role of Chief Minister/Council of Minister to aid/advice the L.G. in the matter of making such recommendation does not arise.

iv. Re: Query (iv):  There is no prescribed procedure for the Central Government to nominate three members to the Legislative Assembly. In the absence of such procedure, only the criteria for eligibility of a member laid down in Section 4  supra  and the criteria for disqualification in Section 14  supra  must be followed.

I have nothing further to add.”

81. The file processed thereafter and Home Minister approved

nominations of three persons to the Legislative Assembly,

Puducherry on 20.06.2017. Draft notification was put up for

approval on 23.06.2016.

82. After having noticed the details of earlier nominations

from 1985 till 2017, now the question has to be answered as to

72

whether from the sequence of the events as noticed above a

Constitutional convention can be found established that

nominations to the Legislative Assembly has to emanate from

Chief Minister and can be made only with the concurrence of

Chief Minister. We have noticed the test formulated by  Sir W.

Ivor Jennings, as approved by this Court in   Supreme Court

Advocates­on­record Association case  for establishing the

existence of a convention. The relevant test, as noticed

above, is again reproduced for ready reference:

“We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.”

83. We will take up the three questions which are to be posed

for deciding the question. First is “what are the precedents”.

From the facts noticed above, although it is indicated that on

several occasions on the recommendations of the Chief

Minister/LG nominations were made by the Central Government,

one relevant fact cannot be lost sight that recommendations

made by CM/LG were readily accepted by the Central Government

when the Government of Puducherry and the Central Government

73

were of the same political party or were of allies. But the

instance of year 1995  indicates that the recommendations made

by Chief Minister were not followed and the nominations were

made taking one name from Chief Minister's recommendation, one

name from Puducherry Pradesh Congress Committee  and one name

at the instance of the Central Government itself which

nominations, however, subsequently were cancelled. In the year

2001 recommendations made by Chief Minister and LG were not

accepted and no nominations were made. Similarly, in the year

2011 recommendations were made by Chief Minister and LG but no

nominations were made. The above facts does not indicate

uniform precedent in making nominations   by the Central

Government.

84. Now, we come to the second test that is “did the actors

in the precedents believed that they were bound by the rules”.

The said test is not satisfied in the present case since more

than one occasion There is material on records that the

Central Government concluded that it is not bound by any rule

that recommendations made by Chief Minister is to be accepted

by the Central Government or recommendations of Chief Minister

is a condition precedent for exercising power under

sub­section (3) of Section (3). No uniform procedure was

followed nor the Central Government was under the belief that

74

it is bound under the Rule to accept the recommendations made

by the Chief Minister. It is true that there is no inhibition

in the Central Government considering the recommendations sent

by Chief Minister or LG or ask for suitable names from Chief

Minister/LG or even suggests suitable names to the Chief

Minister/LG but the fact that the Central Government can

consider the recommendations or call for names is not akin to

saying that there was any precedent or rule that unless the

names are recommended by Chief Minister the   Central

Government  is  incapacitated in  exercising  its  powers  under

sub­section (3) of Section 3 of the Act, 1963. The instance

where the Central Government readily accepted recommendations

made by LG or Chief Minister which emanated from the

Government belonging to the same political party cannot be

said to be action of then Central Government by virtue of any

rule or convention rather the acts have to be treated as

convenient exercise of power. The Central Government   can

receive input from any quarter including the Chief Minister or

LG for nomination.

85. We may also refer to a judgment of this Court in Consumer

Education and Research Society vs. Union of India and others,

(2009) 9 SCC 648.  One of the questions which came for

75

consideration before this Court in the above case was

violation of constitutional convention. In paragraph 37(ii)

following question was noticed:

"37(ii) Whether of as many as fifty­five offices relating  to statutory  bodies/non­statutory  bodies, without referring the proposal to the Joint Committee would render the amendment a colourable legislation which violated any “constitutional convention” or Article 14 of the Constitution.”

86. One of the contentions raised in the above case for

assailing the Parliament (Prevention of Disqualification) Act,

1959 as amended by Act 31 of 2006 on the ground that for

exempting particular office from a list of the office of

profit, opinion of Joint Committee was not obtained on Act 31

of 2006. Repealing the contention following was held in

paragraph 79:

“79. This brings us to the last question. It is not in serious dispute that ever since Bhargava Committee submitted its report in November 1955, whenever an office of profit had to be exempted the matter used to be referred to a Joint Committee and its opinion whether the office should be exempted or not, was being taken and only when there was a recommendation that a particular office should be exempted, the Act was being amended to add that office to the list of exemptions. However, this was merely a parliamentary procedure and not a constitutional convention. Once Parliament is recognised as having the power to exempt from disqualification and to do so with retrospective effect, any alleged violation of any norm or traditional procedure cannot denude the power of Parliament to make a law. Nor can such law which is

76

otherwise valid be described as unconstitutional merely because a procedure which was followed on a few occasions was not followed for the particular amendment.”

87. The above judgment although was considering law made by

the Parliament where in the present case we are concerned with

the exercise of statutory power of the Central Government

under sub­section (3) of Section 3 of the Act, 1963. In

exercising the power under Section 3(3) no particular

statutory procedure having been prescribed except the exercise

of power as per Allocation of Business Rules and Transaction

of Business Rules, 1961 nominations made cannot be held to be

vitiated on the submission that a particular procedure which

was followed in some earlier cases was not followed.

88. We do not find any established practice or convention to

the fact that names for nominations to members of the

Legislative Assembly has to emanate from Chief Minister and

can be made by the Central Government only after concurrence

by Chief Minister. Both the issues are answered accordingly.

Issue No. 6      

89. Shri Kapil Sibal submits that High Court in Paragraph No.

5 has made certain recommendations.  He has taken exception to

77

the recommendation (iv), which is to the following effect:­

“(iv) If the nominated MLA belongs to a political party on the date of nomination, it should be made clear that he shall become part of the legislature party of that political party. If there is no legislature party in the house on the date of nomination, the nominated MLA/s shall constitute the legislature party of that political party. This is inter­alia owing to Explanation (b) to paragraph 2(1) (b) of Tenth Schedule to COI using the term 'political party' and not 'legislature party'.”

90. We have perused the recommendations made in Paragraph No. 5

of the judgment of Justice M. Sundar.   The recommendations

contained in paragraph No. 5 are nothing but recommendations to

the Parliament to frame legislation on various aspects as

enumerated in the recommendation.   We have, in the foregoing

discussions, concluded that it is the Central Government, which

is under Section 3(3) empowered to nominate members in the

Legislative Assembly of Union Territory.   The procedure and

manner of taking decision by Central Government has already been

regulated by Rules of Business framed by President in exercise

of power under Article 77 of the Constitution of India.   The

Rules framed by President of India under Article 77(3) are

applicable to all executive actions of the Central Government

including Constitutional and Statutory functions.   In a

Constitution Bench judgment of this Court in Samsher Singh Vs.

State of Punjab and Another, (1974) 2 SCC 831 following was laid

78

down in Paragraph No. 29:­

“29.  The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123 viz. ordinance making power and all powers and functions of the Governor except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under Article 53(1) in one case and are executive powers of the State vested in the Governor under Article 154(1) in the other case. Clause (2) or clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under clause (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression “Business of the Government of India” in clause (3) of Article 77, and the expression “Business of the Government of the State” in clause (3) of Article 166 includes all executive business.”

91. There being already Rules of Business for carrying out

the functions by the Central Government as per Article 77(3)

of the Constitution of India, we fail to see any justification

for making recommendation in paragraph No. 5 of the impugned

judgment.   Furthermore, the power is to be exercised by

Central Government and it is to be presumed that Central

Government, in exercise of its power, shall be guided by

objective and rational considerations. We, however, hasten to

add that there is no inhibition in Central government or the

79

Legislature to make Rules or a Statute for more convenient

transaction of business regarding nominations.

Recommendations to the Legislature and the high Constitution

authorities are not made in a routine manner and we are of the

view that High Court ought to have desisted for making any

recommendations as contained in paragraph No. 5.   The

qualifications  and  disqualifications  to become  a  member or

continue to be a member of a Legislative Assembly have already

been provided in the Act, 1963.   The qualifications and

disqualifications for members of Legislative Assembly are

provided in the Act, 1963 and other relevant Statutes, which

are always to be kept in mind, while exercising any Statutory

functions by the Central Government.   We, thus, are of the

view tat not only recommendation made in paragraph No. 5(iv)

but all the recommendations made in Paragraph No. 5 deserves

to be set aside.  In result, all recommendations as made in

Paragraph No. 5 of the impugned judgment are set aside.

Issue No.7

92. One of the submissions, which has been pressed by Shri

Kapil Sibal is that even if the nominated members have right

to vote in the proceeding of Assembly, they have no right to

vote in two circumstances, i.e. budget and no confidence

80

motion against the Government.   Article 239A which provides

for composition of Union Territory of Puducherry itself

contemplated that the Parliament, may by law, create a body,

(i) whether elected or; (ii) partly nominated and partly

elected, to function as a Legislature for the Union Territory

of Puducherry.  Under Article 239, the Parliament has enacted

the law, i.e., the Government of Union Territory Act, 1963,

Section 3 of which provides that there shall be a Legislative

Assembly for each Union territory.  The total number of seats

in the Legislative Assembly of the Union territory to be

filled by persons chosen by direct election shall be thirty

and the Central Government may nominate not more than three

persons, to be members of the Legislative Assembly of the

Union territory.   Thus, the composition of Legislative

Assembly itself consists of both persons chosen by direct

election and persons nominated by the Central Government.

Both elected and nominated persons are part of Legislative

Assembly.   The provisions of Act, 1963 refers to members of

the Legislative Assembly.   Section 11 provides that every

member of the Legislative Assembly of the Union territory

shall, before taking his seat, make and subscribe before the

Administrator, or some person appointed in that behalf by him,

an oath or affirmation according to the form set out for the

81

purpose in the First Schedule.  The expression “every member

of the Legislative Assembly of the Union territory” shall

include both elected and nominated members.   It is further

clarified by First Schedule of the Act, 1963, which contains

the forms of oaths and affirmations, which expressly refers

both elected and nominated members.

93. Section 12 deals with the voting in the Assembly, which

is as follows:­

12. Voting in Assembly, power of Assembly to act notwithstanding vacancies and quorum.

(1) Save as otherwise provided in this Act, all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such.

(2) The Speaker or person acting as such shall not vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes.

(3) The Legislative Assembly of the Union territory shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislative Assembly of the Union territory shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings.

(4) The quorum to constitute a meeting of the Legislative Assembly of the Union territory shall be

83

votes of the members present and voting, the speaker shall not

be a person, who shall vote.  When provision of sub­section(1)

clearly provides no voting   by Speaker,   if intention of

Legislature was to exclude the votes of nominated members, the

said expression was bound to find included in the

sub­section(1).   The conclusion is inescapable that all

members including the nominated members are entitled to vote

in the sitting of the Legislative Assembly and the submission

of Shri Sibal that nominated members cannot exercise vote in

budget and no confidence motion has to be rejected.   Other

provisions like sub­section (4) of Section 12, which provides

for quorum to constitute a meeting of the Legislative Assembly

used the word “one­third of the total number of members of the

Assembly”, members of the Assembly obviously will include both

elected and nominated members.   Thus, there is no basis for

submission raised by Shri Sibal that nominated members cannot

exercise their vote in budget and no confidence motion against

the Government.  The issue is answered accordingly.

95. In view of the foregoing discussions, we uphold the

impugned judgment of the Madras High Court for the above

reasons except directions in paragraph 5 which are hereby

deleted. In the result, the appeals are dismissed subject to

the deletion of recommendations made in paragraph 5 of the

84

judgment. Parties shall bear their own costs.

..........................J. ( A.K. SIKRI )

..........................J.     ( ASHOK BHUSHAN )

..........................J. ( S. ABDUL NAZEER )

NEW DELHI, December 06 , 2018.