Govt. of Nct of Delhi Vs Union of India

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2357 OF 2017

GOVT. OF NCT OF DELHI .....APPELLANT(S)

VERSUS

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

WITH

CONT. PETITION (CIVIL) NO. 175 OF 2016 IN

WRIT PETITION (CRIMINAL) NO. 539 OF 1986

CIVIL APPEAL NO. 2360 OF 2017

CIVIL APPEAL NO. 2359 OF 2017

CIVIL APPEAL NO. 2363 OF 2017

CIVIL APPEAL NO. 2362 OF 2017

CIVIL APPEAL NO. 2358 OF 2017

CIVIL APPEAL NO. 2361 OF 2017

CRIMINAL APPEAL NO. 277 OF 2017

AND

CIVIL APPEAL NO. 2364 OF 2017

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J U D G M E N T A.K. SIKRI, J.

Prologue

All these appeals arise out of the judgment dated August 04, 2016

rendered by the High Court of Delhi in writ petitions filed before it under

Article 226 of the Constitution of India. We would refer to the subject

matter of those writ petitions and the manner in which the High Court

dealt with and decided the same at the appropriate stage. However, it

would be pertinent to point out that in the said impugned judgment, main

issue related to the status of National Capital Territory of Delhi (NCTD)

and in, particular, about administration of NCTD, powers exercisable by

and functions of the elected Government of NCTD (GNCTD) vis-a-vis

the Central Government (or to put it more precisely, in juxtaposition to

the Lieutenant Governor (LG) of GNCTD, as nominee of the President of

India). This issue centered around the interpretation that needed to be

given to Article 239AA of the Constitution of India.

2) Undoubtedly, NCTD was and remains Union Territory and continues to

be governed by Part VIII of the Constitution which pertains to ‘the Union

Territories’. Article 239, which substituted the original Article by the

Constitution (Seventh Amendment) Act, 1956, w.e.f., 01 November, 1956

deals with administration of Union Territories. As the nomenclature itself

suggests, such territories are that of ‘Union”, i.e., Union of India. That is

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why Article 239 stipulates that every Union Territory is to be

administered by the President acting, to such extent as he thinks fit,

through an Administrator to be appointed by him with such designation

as he may specify. The opening words of Article 239, however, are

‘save as otherwise provided by Parliament by law’, which meas that

Parliament by law can provide different schemes of administration for

such Union Territories, i.e., different than what is stated in Article 239. In

the year 1962, Article 239A was inserted, providing a little departure

from the Scheme of administration contained in Article 239, insofar as

Union Territory of Puducherry is concerned. Likewise by the Constitution

(Sixty Ninth Amendment) Act, 1991 special provision with respect to

Delhi stood incorporated. This Article, inter alia, provides for a

Legislative Assembly for NCTD, Legislative Assembly which comprises

of Members who are elected representatives. It means that voters of

NCTD elect their representatives to the Legislative Assembly.

3) The seminal issue which arose for consideration before the High Court

in the writ petitions concerned the powers exercisable by such elected

Government and the manner in which NCTD is to be administered. As

noted above, as per Article 239, it is the President of India which

administers a Union Territory and he can do so through an Administrator

to be appointed by him with appropriate designation. Such a

designation generally is that of Administrator or Lieutenant Governor. In

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respect of Delhi, designation bestowed is that of Lieutenant Governor.

With the aforesaid special provision inculcated by the insertion of Article

239AA and by providing for Legislative Assembly, the moot question

arose as to what are the powers of the elected government of Delhi

vis-a-vis the Lieutenant Governor of Delhi.

4) To state in a nutshell and in precise manner, the High Court of Delhi held

that since NCTD remains a Union Territory, it is the President who

continues to administer NCTD as well as Territory of the Union, i.e., the

Central Government and his nominee, namely, the Lieutenant Governor

enjoys the overlapping powers. When these appeals came up before the

Division Bench of this Court, the Division Bench found that issues raised

are of seminal constitutional importance and needed to be referred to a

Constitution Bench in terms of the provisions contained in Clause 5(5) of

Article 143 of the Constitution. The matters were, accordingly, referred

to the Constitution Bench to answer the aforesaid question, namely,

ambit and scope of the powers of the GNCTD in juxtaposition to that of

the Lieutenant Governor. The Constitution Bench has given the

answers to the various nuances of the otherwise thorny and ticklish

issues, vide its judgment dated July 04, 2018. There are three opinions.

The majority opinion is penned by Justice Dipak Misra, Chief Justice of

India (as his Lordship then was) to which Justice Khanwilkar and one of

us (Justice A.K. Sikri) concurred. Two other separate opinions are

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rendered by Justice Dr. D.Y. Chandrachud and one of us (Justice Ashok

Bhushan). After giving answers to the moot questions that arise, all

these appeals were directed to be listed before the Regular Bench for

deciding the individual issues and disputes that arise in these appeals.

This is how the matters were heard, on its own merits, depending upon

subject matter of each of these appeals, by this Bench. We propose to

decide these disputes by means of the present judgment.

Issues:

5) At this juncture, we would like to state in brief the precise subject matter

of these appeals:

6) As pointed out above, Civil Appeal No. 2357 of 2017 arises out of the

common judgment dated August 04, 2016 passed by the High Court in a

batch of writ petitions. In these writ petitions, number of notifications

passed by the Government of India, or by the GNCTD were questioned

by the writ petitioners. Some writ petitions were filed by GNCTD; one by

Union of India and few others by some individuals. The orders and/or

actions, validity whereof was questioned by the petitioners before the

High Court is stated by the High Court in the impugned judgment itself in

a tabulated form. It would be convenient to reproduce the same as that

captures the essence of subject matter of dispute in each of the writ

petition.

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S.No. Case No. Parties Impugned order/action 1. W.P.(C)

No.5888/2015 GNCTD vs. UOI

Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with 'Services' and directing the ACB Police Station not to take cognizance of offences against officials of Central Government.

2. W.P.(C) No.7887/2015

Rajender Prashad vs. GNCTD & Ors.

Notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence.

3. W.P.(C) No.7934/2015

Naresh Kumar vs. GNCTD & Ors.

Notification dated 04.08.2015 issued by the Revenue Department, GNCTD revising minimum rates of agricultural land (circle rates) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Undervaluation of Instrument) Rules without placing before the Lieutenant Governor for his views/concurrence.

4. W.P.(C) No.8190/2015

Sandeep Tiwari vs. GNCTD & Ors.

Order passed by the Department of Power, GNCTD under Delhi Electricity Reforms Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 appointing the Nominee Directors on Board of Electricity Distribution Companies without placing before the Lieutenant Governor for his views/concurrence.

5. W.P.(C) M.A. Notification dated 11.08.2015

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No.8382/2015 Usmani vs. UOI & Anr.

issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence.

6. W.P.(C) No.8867/2015

UOI vs. GNCTD & Anr.

Notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence.

7. W.P.(C) No.9164/2015

Sandeep Tiwari vs. GNCTD & Ors

Policy Directions dated 12.06.2015 issued by the Department of Power, GNCTD under Section 108 of Electricity Act, 2003 without placing before the Lieutenant Governor for his views/concurrence.

8. W.P.(C) No.348/2016

Ramakant Kumar vs. GNCTD

Notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under Commission of Inquiry Act, 1952 constituting the Commission of Inquiry without placing before the Lieutenant Governor for his views/concurrence.

9. W.P.(Crl.) No.2099/2015

GNCTD vs. Nitin Manawat

Order passed by the Lt.Governor, NCT of Delhi under Section 24 of Cr.P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court under PC Act

7) From the above, it can be discerned that following issues arise for

consideration:

(i) The powers of GNCTD vis-a-vis Lieutenant Governor in respect of

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matters connected with ‘services’. It may be mentioned, at this juncture

itself that in Delhi there is no Public Service Commission. Since it is the

Union Territory, the manpower/public servants which are assigned to

Delhi are either those who belong to All India Services like Indian

Administrative Service, Indian Police Service etc. or those who are

recruited for Union Territories, commonly known as NCT of Delhi,

Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra &

Nagar Haveli Civil Service (DHANICS). Admittedly these officers/public

servants do not belong to Union Territory of Delhi exclusively or, for that

matter, at all. They are placed at the disposal of NCTD by the Central

Government. To this extent there is no dispute. However, bone of

contention is about their mobility, i.e. their posting within Delhi itself from

one place/department to other. To put it otherwise, the issue is as to

whether such posting orders are to be passed by the President of India

(or for that matter the Lieutenant Governor) or it is the Government of

NCTD which is competent to exercise such a power once the manpower

is assigned to it.

(ii) Other issue relates to the setting up of Anti-Corruption Bureau

Police Station (ACB Police Station). Vide Notifications dated May 21,

2015 and July 23, 2014 the Government of India, Ministry of Home

Affairs empowered the Lieutenant Governor to exercise such a power

and directed ACB Police Station not to take cognizance of offences

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against officials of Central Government. These Notifications were

challenged by the GNCTD on the ground that ACB Police Stations are

empowered to take cognizance of offences against officials of the

Central Government as well, so long as they are posted in Delhi.

(iii) Another dispute between the GNCTD and the Central Government

arises out of Commission of Inquiry Act, 1952 (COI Act). It is : Whether

GNCTD is empowered to set up Commission of Inquiry under the said

Act of its own and without placing the matter before the Lieutenant

Governor for his views/concurrence.

(iv) Delhi Electricity Reforms Act, 2011 is enacted which is State

Legislative. Delhi Electricity Reforms (Transfer Schemes) Rules, 2001

have also been framed under this Act. The GNCTD issued orders under

the said Act and Rules appointing the nominee Directors on the Board of

Electricity Distribution Companies without placing the matter before the

Lieutenant Governor for his views/concurrence. The competence of the

GNCTD to pass such executive order is another subject matter of

dispute.

(v) Another area of conflict is about the appointment of Public

Prosecutors under Section 24 of the Code of Criminal Procedure. Issue

is as to whether this power lies with the Lieutenant Governor to the

exclusion of GNCTD or it is the GNCTD which is competent to appoint

Public Prosecutors, including Special Public Prosecutors in individual

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cases.

Judgment of the Constitution Bench

8) Before we come to the grip of these issues it would be essential to

discuss in brief the provisions of Article 239AA of the Constitution, as

interpreted by the Constitution Bench judgment dated July 04, 2018

(hereinafter referred to as CB Judgment).

9) Relevant Articles of the Constitution, which need to be noted amongst

others in this behalf, are Articles 239 and 239AA, which read as under :

"239. Administration of Union territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 239-AA. Special provisions with respect to Delhi.—(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.

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(c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in Articles 326 and 329 to ‘appropriate Legislature’ shall be deemed to be a reference to Parliament. (3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and

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pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. (5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. {(7)(a)} Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. {(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.} (8) The provisions of Article 239-B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of {Puducherry}, the administrator and its Legislature, respectively; and any reference in that article to ‘clause (1) of Article 239-A’ shall be deemed to be a reference to this article or Article 239-AB, as the case may be.”

10) As pointed above, the Court in aforesaid Constitution Bench

judgment took note of the fact that with insertion of Article 239AA, which

gave special status to the Union Territory of Delhi known as National

Capital Territory of Delhi (NCTD), the NCTD has its own Legislative

Assembly which is elected body through the election process by the

voters of NCTD. The principal question, therefore, was as to whether

this amended constitutional provision had transformed the status of

Delhi and what is the extent and power which are to be accorded to the

Legislative Assembly as well as the Executive as a result of these

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elections, i.e., Government of NCT of Delhi. In the majority opinion, it

was emphasised at the beginning itself that while entering into the

process of interpretation of Article 239AA of the Constitution, the Court is

supposed to take aid of new tools such as constitutional pragmatism

having due regard for sanctity of objectivity, realisation of the purpose in

truest sense by constantly reminding one and all about the

sacrosanctity of democratic structure envisaged by our Constitution,

elevation of the precepts of constitutional trust and morality, and the

solemn idea of de-centralisation of power. This method of understanding

is described in the judgment as ‘confluence of the idea and spirit of the

Constitution’. The court also emphasised that interpretation of Article

239AA of the Constitution is not to be done in an exclusive compartment

but in the context in which it has been introduced and also keeping in

view the conceptual structure of the other relevant Articles of the

Constitution.

11) In this process, the Court recapitulated brief history of Delhi from

its inception as Capital of India in the year 1911 upto the stage of

insertion of Article 239AA in the Constitution, which was the result of a

detailed report submitted by Balakrishnan Committee. This narration in

the judgment is as follows:

"15. On 12-12-1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separated from Punjab and annexed to Delhi headed by a Commissioner and it came to be known as the Chief Commissioner's province. In 1912, the Delhi

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Laws Act, 1912 came into force with effect from 1-10-1912 making certain laws prevalent in Punjab to be applicable to Delhi. The Delhi Laws Act, 1915 empowered the Chief Commissioner, Delhi to determine application of laws by issuing appropriate notification in the Gazette of India. The Government of India Act, 1919 and the Government of India Act, 1935 retained Delhi as a Centrally administered territory. On coming into force of the Constitution of India on 26-1-1950, Delhi became a Part C State. In the year 1951, the Government of Part C States Act, 1951 was enacted providing, inter alia, for a Legislative Assembly in Delhi. Section 21(1) of the 1951 Act empowered the Legislative Assembly to make laws on all matters of List II of the Seventh Schedule of the Constitution except (i) public order; (ii) police (including railway police); (iii) constitution and powers of municipal corporations and local authorities, etc. — public utility authorities; (iv) lands & buildings vested in/in possession of the Union situated in Delhi or New Delhi; (v) offences against laws about subjects mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to the above matters and court fee thereon.

16. On 19-10-1956, the Constitution of India (Seventh Amendment) Act, 1956 was passed to implement the provisions of the States Reorganisation Act, 1956 which did away with Part A, B, C and D States and only two categories, namely, States and Union Territories remained and Delhi became a Union Territory to be administered by an Administrator appointed by the President. The Legislative Assembly of Delhi and the Council stood abolished. In the year 1953, the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies and Council of Ministers for various Union Territories but the provisions of the said Act were not made applicable to Delhi. The Delhi Administration Act, 1966 was enacted to provide for limited representative Government for Delhi through a Metropolitan Council comprising of 56 elected Members and five nominated Members. In the same year, on 20-8-1966, the Ministry of Home Affairs issued S.O. No. 2524 that provided, inter alia, that the Lieutenant Governor/Administrator/Chief Commissioner shall be subject to the control of the President of India and exercise such powers and discharge the functions of a State Government under the Commissions of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the

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National Capital a special status. The relevant portion of the Balakrishnan Committee Report reads as follows:

“6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced that most of the arguments against making Delhi a State of the Union are very substantial, sound and valid and deserve acceptance. This was also the view expressed before us by some of the eminent and knowledgeable persons whom we interviewed. As these arguments are self-evident we find it unnecessary to go into them in detail except those relating to constitutional and financial aspects covered by them.

6.5.6. The important argument from the constitutional angle is based on the federal type of our Constitution under which there is a constitutional division of powers and functions between the Union and the State. If Delhi becomes a full-fledged State, there will be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to make any law except in the special and emergency situations provided for under the Constitution and to that extent the Union Executive cannot exercise executive powers or functions. The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the National Capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the National Capital and the need for keeping it under the control of the Union Government. Such control is vital in the national interest irrespective of whether the subject-matter is in the State field or Union field. If the administration of the National Capital is divided into rigid compartments of State field and Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments are run by different political parties. Such conflicts may, at times, prejudice the national interest….

xx xx xx

6.5.9. We are also impressed with the argument that Delhi as the National Capital belongs to the nation as a whole and any constituent State of the Union of which Delhi will

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become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day-to-day matters, however vital some of them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities.

xx xx xx

LIEUTENANT GOVERNOR AND COUNCIL OF MINISTERS

6.7.19. As a necessary corollary to the establishment of a responsible Government for Delhi the structure of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union Territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lieutenant Governor may be continued and recognised in the Constitution itself. …

xx xx xx

6.7.21. The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “to aid and advice” is a well-understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications of this general rule will have to be adopted:

(i) Firstly, the requirement of acting on the aid and advice of the Council of Ministers cannot apply to the exercise by the Administrator of any judicial or quasi-judicial functions. The reason is obvious because in respect of such functions there is no question of acting on the advice of another person.

(ii) Secondly, the requirement is only in relation to matters in respect of which the Legislative Assembly has the powers to make laws. This power will be subject to the restrictions already dealt with earlier in the Report. Accordingly, the Council of Ministers will not have jurisdiction to deal with

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matters excluded from the purview of the Legislative Assembly.

(iii) Thirdly, there is need for a special provision to resolve differences between the Administrator and his Council of Ministers on any matter concerning the administration of Delhi. Normally, the general principle applicable to the system of responsible Government under the Constitution is that the Head of the Administration should act as a mere constitutional figurehead and will have to accept the advice of the Council of Ministers except when the matter is left to his discretion. However, by virtue of Article 239 of the Constitution, the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator. Because of this the Administrator has to take a somewhat more active part in the administration than the Governor of a State. It is, therefore, necessary to reconcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need to enforce the collective responsibility of the Council of Ministers to the Legislature. The best way of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council of Ministers, he should refer the question to the President and the decision of the President thereon will be final. In cases of urgency, if immediate action is necessary, the Administrator may direct action to be taken pending such decision of the President. A provision of this kind was made for this very reason not only in the 1951 Act, but also in the 1963 Act relating to the Union Territories as well as in the 1978 Bill.”

12) The majority opinion thereafter took note of the arguments of both

sides. Discussion that followed thereafter was on the following aspects:

• Ideals/principles of representative governance

• Constitutional morality

• Constitutional objectivity

• Constitutional governance and the conception of legitimate

constitutional trust

• Collective responsibility

• Federal functionalism and democracy

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• Collaborative federalism

• Pragmatic federalism

• Concept of federal balance

• Interpretation of the Constitution

• Purposive interpretation

• Constitutional culture and pragmatism

13) After discussing in detail the aforesaid tools necessarily required

for proper and just interpretation of the concerned provisions, the Court

undertook the exercise of interpreting Articles 239, 239A and 239AA of

the Constitution.

14) Since, this interpretation is material and significant for deciding

specific issues which have been raised in these appeals, we would like

to incorporate the portions of the majority judgment which have

interpreted these Articles:

"Interpretation of Articles 239 and 239-A:

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

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

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176. Article 239 provides for the administration of Union Territories. It reads as follows:

“239. Administration of Union Territories.—(1) Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.

(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the Administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such Administrator independently of his Council of Ministers.”

(emphasis supplied)

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

178. Clause (2) thereafter, being a non obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an Administrator of a Union Territory which is adjacent and/or contiguous to the State of which he is the Governor. The Governor of a State who is so appointed as an Administrator of an adjoining UT shall exercise his functions as an Administrator of the said UT independently and Autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor.

179. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:-

“54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such Administrator independently of his Council of Ministers.”

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180. Again, the Court, while interpreting Article 239 in Union of India and others v. Surinder S. observed:-

“The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of clause (2) of Article 239 (amended), the President can appoint the Governor of a State as an Administrator of an adjoining Union Territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it clear that prior to 1-11-1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President through an Administrator appointed by him with such designation as he may specify. In terms of clause (2) of Article 239 (amended), the President is empowered to appoint the Governor of State as the Administrator to an adjoining Union Territory and once appointed, the Governor, in his capacity as Administrator, has to act independently of the Council of Ministers of the State of which he is the Governor.”

"181. Now, let us proceed to scan Article 239-A of the Constitution which deals with the creation of local legislatures or Council of Ministers or both for certain Union Territories. It reads as follows:

“239-A. Creation of local legislatures or Council of Ministers or both for certain Union Territories.—(1) Parliament may by law create for the Union Territory of Puducherry—

(a) a body, whether elected or partly nominated and partly elected, to function as a legislature for the Union Territory, or

(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.

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(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.”

182. The aforesaid Article was brought into force by the Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971, under Article 239-A, Parliament had the power to create by law legislatures and/or Council of Ministers for the then Union Territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter, on 25-1-1971, Himachal Pradesh acquired Statehood and consequently, Himachal Pradesh was omitted from Article 239-A. Subsequently, on 21-1-1972, Tripura and Manipur were granted Statehood as a consequence of which both Manipur and Tripura were omitted from Article 239-A.

183. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30-5-1987, both Goa and Daman and Diu were omitted from Article 239-A. Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30-5-1987, the applicability of Article 239-A stands limited to UT of Puducherry.

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

P. Interpretation of Article 239-AA of the Constitution

185. We shall now advert to the interpretation of Articles 239-AA and 239-AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation and a thorough analysis to unearth and discover the true intention of Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said Articles read as follows:

“239-AA. Special provisions with respect to Delhi.—(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital

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Territory) and the Administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by Members chosen by direct election from territorial constituencies in the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.

(c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the Members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the Members thereof respectively; and any reference in Articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament.

(3)(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:

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Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.

(4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of Members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion:

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.

(7)(a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.

(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.

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(8) The provisions of Article 239-B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union Territory of Puducherry, the Administrator and its legislature, respectively; and any reference in that Article to “clause (1) of Article 239-A” shall be deemed to be a reference to this Article or Article 239-AB, as the case may be.

239-AB. Provision in case of failure of constitutional machinery.—If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239-AA or of any law made in pursuance of that Article; or

(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239-AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of Article 239 and Article 239-AA.”

(emphasis supplied)

"186. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus:

“1. The question of reorganisation of the administrative set-up in the Union Territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a

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Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories.

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

The aforesaid, as we perceive, really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239-AA and other articles that are pertinent to understand the said provision.

187. The aforesaid, as we perceive, really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239-AA and other articles that are pertinent to understand the said provision.”

15) After interpreting the provisions in the manner aforesaid, the Court

concentrated on the status of NCTD, in particular. In the process, it

referred to earlier judgment in the case of Samsher Singh vs. State of

Punjab1, from which it culled out the powers of the Governor in a State

where the Governor was empowered to act ‘in his discretion’. It

observed:

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

193. In this context, we may refer with profit to the authority in Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu [Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 : 1982 SCC (Cri) 403] . In the said case, the

1 (1974) 2 SCC 831

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issue that arose for consideration was whether the role and functions of the Administrator stipulated under the Union Territories Act, 1963 is similar to those of a Governor of a State and as such, whether the Administrator has to act on the “aid and advice” of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say: (SCC pp. 229-30, paras 14-15)

“14. … It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would act according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union Territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union Territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers.

15. The second limb of the proviso to Section 44(1) enables the Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can refer the matter to the President but during the interregnum where the matter is in his opinion so urgent that it is necessary for him to take immediate action, he has the power to take such action or to give such directions in the matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor nor the President enjoys any such power. This basic functional difference in the powers and position enjoyed by the

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Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision in Samsher Singh case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own.”

(emphasis supplied)

16) Thereafter, various other judgments were taken note of including

Nine Judge Bench in NDMC v. State of Punjab2 case which specifically

deal with the status of NCTD. Following paragraphs on this aspect need

a reproduction:

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

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

17) The Court, thereafter, specifically focused on the executive power

of the Council of Ministers of Delhi and made following remarks on this

particular aspect:

2 (1997) 7 SCC 339

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"204. Drawing an analogy while interpreting the provisions of Article 239-AA(3)(a) and Article 239-AA(4) would reveal that the executive power of the Government of NCT of Delhi is conterminous with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power.

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

18) Next facet of discussion was on the essence of Article 239AA of

the Constitution. It would be of use to take note of the following

discussion on this aspect:

"207. At the outset, we must declare that the insertion of Articles 239-AA and 239-AB, which specifically pertain to NCT of Delhi, is reflective of the intention of Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239-A is singularly applicable as on date. The same has been authoritatively held by the majority judgment in NDMC case [NDMC v. State of Punjab, (1997) 7 SCC 339] to the effect that the NCT of Delhi is a class by itself.

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215. We have highlighted this difference to underscore and emphasise the intention of Parliament, while inserting Article 239-AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of NCT of Delhi and to treat the Government of NCT of Delhi as a representative form of Government.

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

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

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

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

220. Now, it is essential to analyse clause (4) of Article 239-AA, the most important provision for determination of the controversy at hand. Clause (4) stipulates a Westminster style Cabinet system of Government for NCT of Delhi where there shall be a

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Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Delhi Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is required to act in his discretion.

221. The proviso to clause (4) of Article 239-AA stipulates that in case of a difference of opinion on any matter between the Lieutenant Governor and his Ministers, the Lieutenant Governor shall refer it to the President for a binding decision. Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor, is so urgent that it is necessary for him to take immediate action, the proviso makes him competent to take such action and issue such directions as he deems necessary.

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

223. Article 239-AA(3)(a) reserves Parliament's legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers. Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment.

224. Article 239-AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with Parliament's legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we

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

xx xx xx

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

19) The majority opinion also concentrated on the GNCTD Act, 1991

as well as Transaction of Business of the GNCTD Rules, 1993. Its

analysis of various provisions of the said Act and Rules led to, inter alia,

the following discussion:

"244. Upon scanning the anatomy of the 1991 Act, we find that the Act contains fifty-six sections and is divided into five Parts, each dealing with different fields. Now, we may refer to

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some of the provisions contained in Part IV of the 1991 Act titled “Certain Provisions relating to Lieutenant Governor and Ministers” which are relevant to the case at hand. Section 41 deals with matters in which the Lieutenant Governor may act in his discretion and reads thus:

“41. Matters in which Lieutenant Governor to act in his discretion.—(1) The Lieutenant Governor shall act in his discretion in a matter—

(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or

(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions.

(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.

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

253. Another important provision is Section 49 of the 1991 Act which falls under Part V of the Act titled “Miscellaneous and Transitional Provisions” and stipulates the relation of the

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Lieutenant Governor and his Ministers to the President. Section 49 reads thus:

“49. Relation of Lieutenant Governor and his Ministers to President.—Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time-to-time be given by the President.”

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

20) We would now like to reproduce, in entirety, the conclusions which

the majority judgment arrived at. These are as under:

"The conclusions in seriatim

284. In view of our aforesaid analysis, we record our conclusions in seriatim:

284.1. While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution.

284.2. In a democratic republic, the collective who are the sovereign elect their law-making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies.

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284.3. Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. In order to realise our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few.

284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution.

284.5. The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties.

284.6. Ours is a parliamentary form of Government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of “aid and advice”. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated. 284.7. Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full-fledged effect to both these concepts. 284.8. The constitutional vision beckons both the Central and the State Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious coexistence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and

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achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation. 284.9. The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain. 284.10. There is no dearth of authorities with regard to the method and approach to be embraced by constitutional courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some emphasise that a mixed balance resulting in a unique methodology shall serve as the best tool. In spite of diverse views on the said concept, what must be kept primarily in mind is that the Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the Framers of the Constitution or Parliament. 284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set-up cannot be allowed to lose its purpose in simple semantics. 284.12. In the light of the ruling of the nine-Judge Bench in NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it is clear as noonday that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme. The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.

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284.13. With the insertion of Article 239-AA by virtue of the Sixty-ninth Amendment, Parliament envisaged a representative form of Government for NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. 284.14. The interpretative dissection of Article 239-AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List. 284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239-AA divulges that the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament. 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. 284.17. The meaning of “aid and advise” employed in Article 239-AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the “aid and

37

advice” of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words “any matter” employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. 284.19. The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. 284.20. The Transaction of Business Rules, 1993 stipulate the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the 1993 TBR suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. The need for harmonious resolution by discussion is recognised especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239-AA. 284.21. The scheme that has been conceptualised by the insertion of Articles 239-AA and 239-AB read with the provisions of the GNCTD Act, 1991 and the corresponding the 1993 TBR indicates that the Lieutenant Governor, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to

38

exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof. 284.22. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism. 285. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench.”

21) The lucid and equally well considered opinions have been

rendered by Justice Dhananjay Y. Chandrachud and one of us (Justice

Ashok Bhushan) which are substantially on the same lines as the

majority opinion. There is, however, a slight difference in approach and

to some extent discordant note is expressed in the opinion of Justice

Ashok Bhushan. We would advert to these opinions and as well as the

area of difference at the appropriate stage.

39

Ratio of the Judgment:

22) There is some dispute as to the exact ratio laid down in the

judgment of the Constitution Bench as well as the precise principles set

out therein. As per the the appellants, the Constitution Bench has

accepted that in a democratic setup where a Government is formed on

the basis of elections by the people, it is that Government, through

Council of Ministers, which has the right to govern. Accepting this

fundamental principle as enshrined in the Constitution, the Constitution

Bench has recognised that Legislative Assembly for NCTD has the

power to make laws for the whole or any part of the NCTD, with respect

to any of the matters enumerated in the State List or in the Concurrent

List. The only exclusion where the Legislative Assembly of NCTD is

debarred from making laws, are the subject matters of Entries 1, 2 and

18 of the State List and Entries 64, 65, 66 of the State List insofar as

these Entries related to the said Entries 1, 2 and 18. The CB judgment

specifically addressed the issue of the executive power of the GNCTD,

viz., whether it is co-extensive with the legislative power. To that extent,

the principle of such co-extensive executive power, which is recognised

for the Union/Central Government as well as State Governments, has

been accepted in the case of GNCTD as well. Thus, in this hue, the

Constitution Bench has also accepted that the Lieutenant Governor is to

act on the aid and advice of the Council of Ministers in all his acts,

40

except those functions where the Lieutenant Governor is permitted to

exercise his own discretion.

23) Since this executive power is co-extensive with legislate power, the

appellants emphasised before us that the Constitution Bench has

categorically held that this power extends over all the subjects except

three subjects in the State List, i.e., Entries 1, 2 and 18. The executive

power also extends to all subjects in the Concurrent List. The appellants

also submitted that this executive power is to the exclusion of the

executive power of the Union with respect to such matters, meaning

thereby such power exclusively vests with the GNCTD.

24) The aforesaid manner of reading the Constitution Bench judgment

is disputed by the respondents. Insofar as legislative domain of the

Legislative Assembly of Delhi is concerned, though the respondents

accept that the Legislative Assembly has the power to make laws in

respect of all the Entries in List II except matters with respect to Entries

1,2 and 18 and Entries 64, 65 and 66 of List II insofar as they relate to

said Entries 1, 2 and 18 and also power to legislate in respect of subject

matters contained in the Concurrent List (List III). However, their

submission is that this power is not exclusive to the Legislative

Assembly of Delhi. On the contrary, the power of the Union, i.e.,

Parliament to legislate on any entries of List II as well as List III remains

41

intact. Further, wherever Union has exercised the power by making laws

in respect of any such subject matter, it is the Union’s law which shall

prevail in case of any repugnancy in the light of Article 246 of the

Constitution.

25) Insofar as executive power of the GNCTD is concerned, the

submission of the respondents is that though the Constitution Bench has

held that such executive power is co-extensive with the legislative

power, but it has nowhere held that such a power is exclusively

conferred upon the GNCTD, i.e., to the exclusion of the Union. Here

also, according to the respondents, power of the Union remains intact,

which is clear from the plain language of Article 239AA of the

Constitution itself.

26) The detailed submissions which were made by M/s. C.A.

Sundaram, Rakesh Dwivedi and Maninder Singh, learned Senior

Counsel who appeared for Union of India in different appeals are of the

following nature:

27) It is submitted that two primary contentions had been raised on

behalf of the Government of NCT of Delhi before the Delhi High Court as

well as before this Court. It had been contended that:-

(i) Article 239 has no applicability whatsoever in the case of NCT of

Delhi; and

42

(ii) NCT Delhi deserves to be treated as a State and not as a Union

Territory because it has an elected Council of Ministers like any other

State.

28) It is argued that the above-mentioned contentions had been raised

on behalf of the Government of NCT of Delhi only with a view to claim

exclusive Executive jurisdiction in relation to Entries in List II and List III

of the 7th Schedule of the constitution of India (except matters with

respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66

of that List insofar as they relate to the said Entries a, 2 and 18). This

claim was founded on its basic contention that since there is an elected

Council of Ministers in NCT Delhi, it should be treated as equivalent to a

State. It was in support of this contention raised by GNCTD that the

prayer for non-applicability of Article 239 in the case of NCT Delhi had

also been made.

29) On the other hand, on behalf of the Union of India, it had been

contended before this Court that the Scheme in the Constitution of India

envisages at the threshold – vestige of executive power in the President

of India under Article 53 of the Constitution of India to be exercised by

the President on the aid and advice of the Union Council of Ministers. It

is only after the vestige of the executive power takes place under Article

53 of the Constitution of India that the subsequent provisions of Article

43

73 and Article 246 define the extent of Executive and Legislative powers

of the Union by dividing the Entries in the 3 Lists of the 7 th Schedule,

between the Union on the one hand and the States on the other. In the

same manner, the provision of Article 152 applies the same rule of

vesting of the executive power in relation to all items mentioned in List II

of the 7th Schedule, in the Governor of any State to be exercised by the

Council of Ministers of the said State Government. In other words, it

had been submission of both Government of NCT of Delhi and Union of

India before the constitution Bench of this court that unless and until this

Court accepts the claim of the Government of NCT of Delhi that NCT

Delhi would deserve to be treated as a State, the claim that Exclusive

Executive Jurisdiction in relation to all items in List II (except matters

with respect of Entries 1, 2 and 18 of the State List and Entries 64, 65

and 66 of that List insofar as they relate to the said Entries 1, 2 and 18

would vest in NCT Delhi – could not be accepted and would deserve to

be rejected. It is argued that the claim of GNCTD that a ‘State’ is

specifically rejected by the Constitution Bench.

30) Further, having regard to the critical fact of the NCT Delhi being the

National Capital and all eventual responsibilities rest on the shoulders of

the Union Government, the President of India shall continue to exercise

Exclusive Executive Jurisdiction with regard to Item Nos. 1, 2 and 18 of

the State List and Entries 64, 65 and 66 of that List insofar as they relate

44

to the said Entries e,w and 18 and shall continue to possess the

non-exclusive executive jurisdiction in relation to all other entries in List

II as well as List III of the Seventh Schedule.

31) The respondents further argued that there are three prominent

features of the judgment of this Court in the case of Rai Sahib Ram

Jawaya Kapur & Ors. v. State of Punjab3. Those prominent three

features are:-

(i) There has to be a vestige of executive power in any Government

before it makes any claim to exercise the said executive power before

framing of any legislation. It paragraphs 12 and 14 of the said judgment

in Ram Jawaya Kapur’s case, this Court has referred to the vestige of

executive power in the President of India under Article 53 and in the

Governor of each State under Article 152 of the Constitution of India.

(ii) Having considered the above-mentioned aspect of vestige of

executive power in the Government, this Court held that with reference

to all the Entries in List I, the Union Government shall have the

Exclusive Executive Jurisdiction co-extensive with the legislative power

and would be able to exercise the said executive power without framing

any legislation. Similarly, the State shall have executive power in

relation to subjects in List II and List III of the Constitution of India.

(iii) However, once the Parliament and/or any State Legislature frames

3 AIR 1995 SC 549

45

any legislation, the executive power of the respective governments shall

be strictly in accordance with the provisions of any said legislation. [Para

12 of the judgment in Ram Jawaya Kapur]

32) The above-mentioned third proposition as has been held by this

Court in Ram Jawaya Kapur’s judgment, has been reiterated in various

subsequent judgments of this Court including in the judgment of the

Constitution Bench of this court in the present case on July 04, 2018

where the following dictum had been incorporated:-

"……..277 ….(xv)…..However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament…….”

33) The respondents point out that in all the three opinions constituting

the judgment dated July 04, 2018, this Court has specifically and

categorically rejected both the above-mentioned contentions raised on

behalf of the NCT Delhi and has categorically held that Article 239

continues to apply to NCT Delhi and further that NCT Delhi is not a State

but continues to remain a Union Territory. Reference in this regard may

be made to the following paras:

"196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part VI of the Constitution. Though NCT of Delhi partakes a unique position after the Sixty-ninth Amendment, yet in sum and substance, it remains a Union Territory which is

46

governed by Article 246(4) of the Constitution and to which Parliament, in the exercise of its constituent power, has given the appellation of the “National Capital Territory of Delhi”.

xx xx xx

201. In the light of the aforesaid analysis and the ruling of the nine-Judge Bench in NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it is clear as noonday that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.

Authored by Dr. Justice D.Y. Chandrachud: The Government of Union Territories Act, 1963 373. On 10-5-1963, the Government of Union Territories Act, 1963 was enacted. The 1963 Act defined the expression “Administrator” in Section 2(1)(a) as:

“2. (1)(a) “Administrator” means the administrator of a Union Territory appointed by the President under Article 239;”

"Section 3 provided for a Legislative Assembly. Section 18 provided for the extent of legislative power in the following terms:

“18. Extent of legislative power.—(1) Subject to the provisions of this Act, the Legislative Assembly of the Union Territory may make laws for the whole or any part of the Union Territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution insofar as any such matter is applicable in relation to Union Territories.

(2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union Territory or any part thereof.”

Sub-section (1) of Section 18 was similar in language to Article 239-AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub-section (2) was similar in language to Article 239-AA(3)(b). Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the Legislative Assembly, the law made by

47

Parliament would prevail to the extent of repugnancy [this provision is similar in nature to Article 239-AA(3)(c)].

453. The judgment of the majority also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has “special features” under Article 239-AA. Though the Union Territory of Delhi “is in a class by itself”, it “is certainly not a State within the meaning of Article 246 or Part VI of the Constitution”. Various Union Territories — the Court observed — are in different stages of evolution. However, the position remains that these Union Territories, including the NCT are yet Union Territories and not a State.

Authored by Justice Ashok Bhushan: 559. After examining the constitutional scheme delineated by Article 239-AA, another constitutional principle had been laid down by the Constitution Bench that Union Territories are governed by Article 246(4) notwithstanding their differences in respective set-ups and Delhi, now called the “National Capital Territory of Delhi” is yet a Union Territory. The Constitution Bench had also recognised that the Union Territory of Delhi is in a class by itself, certainly not a State. Legislative power of Parliament was held to cover Union Territories including Delhi.

583. The submission of the appellants that proviso to clause (4) of Article 239-AA envisages an extreme and unusual situation and is not meant to be a norm, is substantially correct. The exercise of power under the proviso cannot be a routine affair and it is only in cases where the Lieutenant Governor on due consideration of a particular decision of the Council of Ministers/Ministers, decides to make a reference so that the decision be not implemented. The overall exercise of administration of the Union Territory is conferred on the President, which is clear from the provisions contained in Part VIII of the Constitution. Although, it was contended by the appellant that Article 239 is not applicable with regard to NCTD after Article 239-AA has been inserted in the Constitution. The above submission cannot be accepted on account of the express provisions which are mentioned under Article 239-AA and Article 239-AB itself. Article 239-AA clause (1) itself contemplates that Administrator appointed under Article 239 shall be designated as the Lieutenant Governor. Thus the Administrator appointed under Article 239 is designated as the Lieutenant Governor. Article 239-AB is also applicable to NCTD. Article 239-AB in turn refers to any apply Article 239. The

48

provisions contained in Part VIII of the Constitution have to be looked into in its entirety. Thus, all the provisions of Part VIII have to be cumulatively read while finding out the intention of the Constitution-makers, which makes it clear that Article 239 is also applicable to NCTD.”

34) From the above, contention raised is that the necessary and

inevitable position which emerges is that when in paragraph 217, 218

and 219, the majority judgment, acknowledged the exclusive Executive

jurisdiction of the Union Government in relation to Entries 1, 2 and 18 of

List II (and Entries 64, 65 and 66 of that List insofar as they relate to the

said Entries 1,2 and 18) of the Seventh Schedule, this Court did not and

could not have held that “exclusive” executive jurisdiction vests with the

Government of NCT of Delhi in relation to all other entries in List II of the

Seventh Schedule.

35) On the contrary, argued the appellants, this Court has held the

existence and vestige of non-exclusive Executive Jurisdiction in relation

to the remaining entries of List II that of List III for NCTD, since this

court has categorically held that NCTD is a Union Territory and not a

State, Article 239 continues to apply in relation to NCTD and further the

same principle of Ram Jawaya Kapur of co-extensive executive power

with the legislative power of any Government also applies to the Union

government in relation to the Union Territory of NCTD.

36) After highlighting the above aspect, submission on behalf of Union

49

of India/Lieutenant Governor is that the true and correct scope and

interpretation of Article 239AA in relation to NCTD in the entire

constitutional scheme (and as laid down in the judgment dated July 04,

2018 passed by the Constitution Bench of this Court including in paras

217, 218 and 219 of the majority judgment), brings into existence the

position as tabulated below:

Union GNCTD Exclusive Executive Power of the Union

Non-Exclusive Executive Power of the Union

Exclusive Executive Power of GNCTD

Non-Exclusive Executive Power of GNCTD

All the entries in List I and Entries 1,2 ad 18 of the List II and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18.

All the entries in the List II and List III excluded by the phrase ‘insofar as any such matter is applicable to Union Territories.”

All entires in List II and List III of the 7th Schedule, other than Entries 1,2 and 18 of List II and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18. -to be exercise through the route of Proviso to Article 239AA(4)

NIL

[Exclusive Executive Power under the constitution is available only to a State and not to any Union Territory. It is held in the judgment dated 04.07.2018 that NCT Delhi is a Union Territory and not a State.]

Entries in List II and List III of the 7th Schedule, other than Entries 1,2 and 18 of List II and Entries 64,65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18, and also other than those excluded by the phrase “insofar as any such matter is applicable to Union Territories.”

37) It is also submitted that it is neither compatible nor can the

argument co-exist that even when the Constitution Bench categorically

rejected the contentions of Government of NCTD, including the

50

contention that it is a State and Article 239 would not apply in the case of

NCT Delhi, it can still be said that Government of NCTD would possess

the exclusive Executive jurisdiction in relation to all Entries in List II

(except matters with respect to Entries 1,2 and 18 of the State List and

Entries 64,65 and 66 of that List insofar as they relate to the said Entries

1,2 and 18) of the Seventh Schedule. Such a contention would lead to

an anomalous reading of the judgment dated July 04, 2018 passed by

the Constitution Bench of this court and would deserve rejection by this

Court.

38) It is further submitted that the intention of Parliament to confer

overriding executive powers to the Central Government is evident from

the provisions of Section 49 of the 1991 Act which empowers the

President to exercise general control and to issue directions to the

Lieutenant Governor and his Council of Ministers. Section 52 stipulates

that all contracts relating to the administration of the Capital are made in

exercise of the executive power of the Union and suits and proceedings

in connection with the administration can be instituted by or against the

Union Government. Reliance is placed on paras 86 ad 87 of the opinion

authored by Justice D.Y., Chandrachud, which are as under:

"86. Section 49 establishes the principle of the “general control” of the President over the Lieutenant Governor and the Council of Ministers:

“49. Relation of Lieutenant Governor and his Ministers to Presi-dent.—Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be

51

under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

"As an incident of control, the Lieutenant Governor and Council of Ministers must comply with the particular directions issued by the President. Such directions are obviously issued on the aid and advice of the Union Council of Ministers.

Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union Government.

87. This survey of the provisions of the GNCTD Act, 1991 indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. As we have seen, the Lieutenant Governor has been subjected to a wider obligation to reserve Bills for the consideration of the President and in regard to withholding of his assent to a Bill which has been passed by the Legislative Assembly in comparison with the duties of a Governor of a State. Matters such as the presentation of the annual financial statement or supplementary, additional or excess grants require previous sanction of the President. The President has been conferred with the power to issue directions in regard to the official language of the National Capital Territory. The Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the Legislative Assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi-judicial functions. Rules for the Conduct of Business are framed by the President in relation to the National Capital Territory, including for the allocation of business. They would include the procedure to be followed where there is a difference of opinion between the Lieutenant Governor and the Council of Ministers. Section 49, which has a non obstante provision, subjects the Lieutenant Governor and the Council of Ministers to the general control of the President and to such directions as may be issued from time to time.”

52

39) Reference is also made to Articles 239AB and 356 of the

Constitution of India.

"239AB. Provision in case of failure of constitutional machinery.

If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied-

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or

(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.

356. Provisions in case of failure of constitutional machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of this Constitution, the President may be Proclamation

(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this constitution relating to any body or authority in the State

53

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts…..”

40) On the strength of these provisions it is argued that it is abundantly

clear that in the case of States, the Constitution envisages that in a case

of failure of constitutional machinery, the President (i.e., the Union

Executive) shall ‘assume to himself” the functions of the State

Government and the powers vested in the Governor. However, in the

case of Union Territory of Delhi, since the executive power remains

vested in the President and there is no independent exclusive vestage of

executive power in the Council of Ministers of NCTD – there was neither

any occasion nor any requirement for the Constitution makers to provide

for in the provisions of Article 239AB – any “assumption of functions” by

the Union Executive since the executive power vests in the Union

Executive itself. Since there is never any exclusive vestage in the

Council of Ministers of NCT Delhi, there is no need to assume/take it

back by the President. Further, Article 239AB provides that in the case

of NCT of Delhi the President can suspend the operation of Article

239AA even in a case where the President [i.e. the Union Executive] is

satisfied that it is necessary to do so for proper administration of NCTD.

41) In nutshell, submission on behalf of the Union of India is that when

the judgment dated July 04, 2018 passed by the Constitution Bench

54

comprising three separate opinions is read as a whole in the manner

projected above and there is a harmonization of the three opinions to

discern the law which has been laid down by this Court – the legal

position projected by the respondents gets strengthened. As per the

appellant, such a reading of the judgment dated July 04, 2018 would

also be in consonance with the observation made in para 144 of the

opinion authored by Justice D.Y. Chandrachud, wherein it has been

observed that there is a broad coalescence (“coming together to form

one mass or whole; process of merger of two or more droplets of

particles to become one single droplet”) between the view expressed in

the three opinions in the said judgment dated 04.07.2018.

42) We may record at this stage that Dr. Abhishek Manu Singhvi,

learned Senior Advocate who appeared for the intervenor, Reliance

Industries Limited supported the aforesaid stand taken by the Union of

India. He also submitted that no exclusive executive power has been

conferred upon the GNCTD, i.e, to the exclusion of the Central

Government. He argued that the Scheme behind Article 239AA of the

Constitution was ‘hybrid’ in nature relatable to Lists II and III. Detailed

submission of Dr. Singhvi in this behalf would be taken note of while

dealing with the issue pertaining to ACB.

43) We may point out at this stage that learned senior counsel

55

appearing for the Union of India have also argued, in the alternative, that

if the interpretation suggested by them to the aforesaid judgment of the

Constitution Bench is not acceptable, the matter needs to be referred to

the Constitution Bench again. To put it differently, the submission is that

if this Bench interprets that the Constitution Bench has held that the

executive power conferred upon the GNCTD under Article 239AA of the

Constitution is to the exclusion of the power of the Union, then such an

interpretation given by the Constitution Bench is contrary to the scheme

of Article 239AA. Efforts were made to show as to how such a view (if it

is the view of the Constitution Bench) would be contrary to not only the

constitutional scheme, but contrary to specific provisions of the GNCTD

Act, 1991, particularly Sections 44 as well as Rule 23 of the Transaction

of Business Rules. However, we are of the opinion that no such

reference to the larger Bench is required and, therefore, we have not

reproduced submissions of the learned senior counsel of Union of India

on this aspect.

44) M/s. Kapil Sibal, P.C. Chidambaram, Shekhar Naphade and Ms.

Indira Jaising argued the matter on behalf of NCTD, appearing in

different appeals. Insofar as the aforesaid interpretation suggested by

learned counsel appearing for the Union of India is concerned, a strong

refutation on behalf of the NCTD is that the judgment, in no uncertain

terms, holds that the executive power of NCTD is co-extensive with its

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legislative power. According to them, the Constitution Bench has

specifically held that this executive power pertains to all the Entries in

List II, (except Entries 1, 2 and 18, which are specifically excluded), as

well as all the Entries in the Concurrent List, i.e. List III. Such a power is

‘exclusive’ which belongs to GNCTD to the exclusion of the Central

government. Specific reference was made to the discussion contained

in paragraphs 217 to 219 as well as Conclusions (xv), (xvi) and (xvii) of

the majority opinion. Attention was also drawn to the discussions

contained in paragraphs 174 to 176, 187 and 239 of the said judgment,

which have already been reproduced above.

45) Expanding the proposition that the Constitution Bench has already

held that apart from the three explicitly excluded Entries (i.e. Entries 1, 2

and 18 in List II), the Delhi Assembly and GNCTD have legislative and

executive powers over all other Entries in List II and III, it was argued

that specific contention of the Union of India to the contrary was clearly

repelled by the Constitution Bench. Submission in this behalf was that

the majority judgment clearly records the submission of the Central

Government in para 38 which reads as under:

"38. The respondents also contend that although Article 239AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article when it employs the phrase “in sofaras any such matter is applicable to Union Territories...” and also by specifically excluding from the legislative power of the Assembly certain entries as delineated in Article 239AA(3)(a). This restriction, as

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per the respondents, limits the power of the Legislative Assembly to legislate and this restriction has to be understood in the context of conferment of special status.”

46) The above contention is answered specifically in para 214 of the

majority judgment of the Constitution Bench, where it is held that the

Delhi Assembly has Legislative Power with respect to all matters in the

State and Concurrent List except “matters with respect to entries which

have been explicitly excluded from Article 239AA(3)(a)”. Thus, the

contention of the Union of India was that matters in List II and List III can

be excluded in two different ways, explicitly and implicitly, on account of

use of the phrase “insofar as any such matter is applicable to Union

Territories” and the Constitution Bench has negated that argument and

held that power of the Delhi Assembly and Government spans over all

subjects except what has been excluded explicitly.

47) The learned counsel also submitted that at least at seven other

places, the majority judgment has made it clear that Delhi

Assembly/Government has Legislative/Executive Competence over all

subjects except three subjects and as a corollary, the executive power of

the Union Government in Delhi is limited to three excluded subjects in

List II. These paragraphs are:

(a) In Para 199, it is observed that executive power of Delhi

Government is co-terminus with executive power on “all but three

subjects in the State List and all subjects in the Concurrent List”.

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(b) In Para 212, it is held that “sub-clause (a) of clause (3) of Article

239AA establishes the power of Delhi Legislative Assembly to enact

laws for the NCT of Delhi with respect to matters enumerated in the

State List and/or Concurrent List except insofar as matters with

respect to and which relate to entries 1, 2 and 18 of the State List.”

(c) Again, in Para 217, the Court held that on a conjoint reading of

clause 3(a) and clause 4 of Article 239AA, it becomes clear that the

Delhi Government has executive power which extends over “all but

three subjects in the State List and all subjects in the Concurrent List”.

(d) To the similar effect are the observation in Para 219 where the

Court observed that “Executive Power of the Union in respect of NCT of

Delhi is confined to the three matters in the State List for which the

Legislative Power of the Delhi Legislative Assembly has been excluded

under Article 239AA(3)(a)”.

(e) This is again reiterated in the conclusions contained in Para 277

(xiv), (xv) and (xvi) as under:

"(xiv) The Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the concurrent list and all but three excluded subjects, in the State List”

(xv) The executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State list”.

(xvi) The Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded.”

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48) This submission was sought to be supported from the concurring

judgment of Justice Chandrachud (by referring to paras 127 to 130)

which holds that the term “insofar as any such matter is applicable to a

Union Territory” in not a terms of exclusion. Similarly, in paras 71 and 72

of the judgment of Justice Bhushan, it has been held that the said

phrase “is not exclusionary phrase but has been used to facilitate

conferment of power on the Delhi Assembly even in respect of entry that

begin with the term State”.

49) It was further submitted that reliance placed by the learned

counsel appearing for the Union of India on Balakrishnan Committee

report for interpreting the provisions of Article 239AA was totally

misconceived inasmuch as that aspect has already been considered in

the judgment of the Constitution Bench. It was argued that the

Constitution Bench has interpreted the provisions of Articles 239, 239AA

and 239AB as they apply to NCT of Delhi based on first principles of

constitutionally mandated representative democracy, which is based on

popular will. The Constitution Bench has not been constrained by

textual limitations in giving the interpretation. This is best stated in Para

11 of the Constitution Bench judgment, the relevant portion of which

reads as under:

"11. ...In the context of the case at hand, the democratic nature of our Constitution and the paradigm of representative participation are undoubtedly comprised in the “spirit of the Constitution”. While interpreting the provisions of the Constitution, the safe and

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most sound approach is to read the words of the Constitution in light of the avowed purpose and spirit of the Constitution so that it does not result in an illogical outcome which would have never been the intention of the Constituent Assembly or the Parliament while exercising its constituent power. Therefore, a Constitutional Court, while adhering to the language employed in the provision, should not abandon the concept of the intention, spirit, the holistic approach and the constitutional legitimate expectation which combinedly project a magnificent facet of purposive interpretation. The Court should pose a question to itself whether a straight, literal and textual approach would annihilate the sense of the great living document which is required to be the laser beam to illumine. If the answer is in the affirmative, then the constitutional courts should protect the sense and spirit of the Constitution taking aid of purposive interpretation as that is the solemn duty of the constitutional courts as final arbiters of the Constitution...”

(Emphasis Supplied)

50) Thereafter, in para 15, some portions of the Balakrishnan

Committee are extracted. Then, in para 36, the Court notes the

argument of the Union of India seeking literal/textual interpretation and

reliance on Balakrishnan Report. Similar reliance on Balakrishnan

Report by the Union of India is noted in para 47. Thereafter, the

Constitution Bench from Page 45 to Page 135 has discussed the

principles of constitutional interpretation that will be used to interpret

Article 239AA.

51) In the light of those principles, the Court thereafter has interpreted

Article 239AA and its various provisions. Insofar as Balakrishnan

Committee Report is concerned, it is not accepted as interpretative tool,

as is clear from the following discussion:

"270. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute.

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However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee.”

(Emphasis Supplied)

52) In this context, another submission of the learned counsel for the

appellants was that, in fact, respondents were trying to re-argue the

entire matter and attempt was to impress this Bench to depart from the

view taken by the Constitution Bench, which was impermissible having

regard to the provisions contained in Article 145(3) of the Constitution

and in particular the proviso thereof, which reads as under:

"Article 145(3): The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion”

53) The argument advanced is that after settling the legal position with

respect to Article 239AA of the Constitution, the Constitution Bench has

referred the matter back to this Bench for deciding individual cases.

This Bench was, therefore, to decide these individual issues in

‘conformity’ with the opinion of the Constitution Bench and, therefore, it

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was not open to the Union of India to re-argue the case.

54) We have considered the aforesaid submissions with deep sense of

sincerity, objectivity and also keeping in mind various specific issues that

arise for determination in these appeals.

55) Indubitably, NCTD was, and still remains, a Union Territory. This

was held by a nine Judge Bench judgment in the NDMC case, which

legal position is reiterated by the Constitution Bench in the instant case

as well. However, in spite of NCTD being a Union Territory, it has been

given special constitution status under Article 239AA. Clause (1) of the

said Article creates and recognises such a status. This status is to

accord Legislative Assembly in NCTD with certain powers that are also

rcognised in the same provision. The nature of Legislative Assembly is

enumerated in clause (2)(a) of Article 239AA as per which seats in the

Assembly are to be filled by the Members chosen by direction election.

In this manner, even when NCTD remains a Union Territory, it is given a

different status than other Union Territories in respect of which

provisions of Article 239 apply. It is also different from the status given

to Puducherry, another Union Territory which is governed by Article 239A

of the Constitution. Even for the Union Territory of Puducherry, provision

is made for creation of Legislative Assembly. Such a power is given to

the Parliament to enact this kind of law. In exercise of that power, the

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Parliament has enacted an Act which creates a Legislative Assembly

which is partly elected and partly nominated. In contrast, conferment of

status upon NCTD is by the Constitution itself and is not left to the

Parliament. At the same time, NCTD remains a Union Territory and is

not elevated to the status of a ‘State’ governed by Part VI of the

Constitution (Articles 152 to 237). Thus, with the creation of Legislative

Assembly as well as elected Government and conferment of all

legislative and executive powers, concept of federalism has been

incorporated in Article 239AA. Article 239AA has been interpreted by the

Constitution Bench keeping in view this principle of federalism. All these

aspects have been kept in view by the Constitution Bench while deciding

the status of the NCTD as well as conferment of legislative and

executive powers to the Legislative Assembly and GNCTD respectively.

The CB judgment, therefore, has to be read keeping in view all these

parameters as well as the constitutional principles adopted in

interpreting Article 239AA.

56) Insofar as legislative power of the NCTD is concerned, there is no

dispute that it extends to all the subject matters contained in various

Entries of List II with the specific exclusion of Entries 1, 2 and 18.

Likewise, it extends to all the Entries in the Concurrent List, i.e. List III.

At the same time, it is also an undisputed fact that power of the

Parliament to legislate on any subject matter contained in List II is not

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excluded. In fact, in respect of Union Territories, it is the Union, i.e. the

Parliament, which has the power to legislate on all subjects contained in

List II and List III. However, there is a conferment of such legislative

power upon the Legislative Assembly of NCTD as well. This power is

specifically conferred upon the Legislative Assembly under sub-clause

(a) of Article 239AA(3). Sub-clause (b) thereof, in no uncertain terms,

provides that conferment of powers upon Delhi Legislative Assembly

under sub-clause (a) shall not derogate the powers of Parliament under

the Constitution to make laws in with respect to any matter for a Union

Territory or any part thereof. This sub-clause, therefore, retains the

supremacy of Parliament to make laws. What follows is that Parliament

has not only concurrent power in respect of List III, but in respect of List

II as well. Insofar as Entries 1, 2 and 18 of List II are concerned, the

Parliament retains its exclusive domain on those subject matters. To

this extent, there is a departure from the principle of fedaralism

inasmuch as Parliament has no power to make any laws in respect of

the States for the matters enumerated in List II. Sub-clause (c) of clause

(3) of Article 239AA takes care of the situation of repugnancy if it arises

between the law made by the Parliament and the Legislative Assembly

of NCTD. In that event, the law made by Parliament shall prevail and

the law made by Delhi Legislative Assembly, shall, to the extent of

repugnancy, be void. First proviso to sub-clause (c), however, saves law

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made by the Legislative Assembly of Delhi if law made by it has been

reserved for the consideration of President and has received his assent.

In that event, such law made by the Legislative Assembly of Delhi shall

prevail in NCTD. Notwithstanding, second proviso thereto recognises

the supremacy of the Parliament by giving it power to enact law with

respect to same subject matter as the law made by the Delhi Legislative

Assembly and it includes power to make law adding to, amending,

varying or even repealing the law made by the Legislative Assembly.

57) As mentioned earlier, insofar as this power of Parliament to make

laws in respect of NCTD is concerned, there is no quarrel. In this

conspectus, we have to find as to whether the CB Judgment held that

insofar as the executive power of GNCTD is concerned, it is to the

exclusion of the Centre, or, as contended by the learned senior counsel

appearing for the Union of India, such executive power given to Delhi

Government is co-extensive with that of Central Government.

58) It is in the aforesaid backdrop that the observations of the

Constitution Bench, particularly the majority view, have to be discerned

and given an appropriate meaning. Undoubtedly, the majority judgment

in the Constitution Bench decides that the executive power of GNCTD is

co-extensive with legislative power and it extends over all the subjects of

the lis to accept subjects mentioned in Entries 1, 2 and 18 and it also

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extends to all subjects in List III. This is the clear mandate of the

Constitution Bench. The controversy, however, is on the issue as to

whether such executive power of GNCTD is to the exclusion of the

power of the Union Government. In this behalf, it may be noted that the

majority judgment has held that such executive power of the Delhi

Government is to the exclusion of the executive power of the Union. On

the other hand, in a separate judgment rendered by one of us (Ashok

Bhushan, J.), it has been clearly held that the executive power of the

Union Government is co-extensive with that of the Delhi Government.

Discussion on this aspect, in the opinion of Ashok Bhushan, J., goes as

under:

"84. The appellant relying on Article 73 of the Constitution had submitted that Article 73 lays down the principle that while there may exist under the Constitution concurrent legislative powers on two different federal units, there can never be any concurrent executive powers. It was further submitted that the above principle equally applies to matters listed in List II and List III of the Constitution of India for NCTD. Referring to Article 239-AA(3)(b), it is contended that the said provision confers power on Parliament to enact legislations in matters in both State List and Concurrent Lists Such power is also available under Article 246. However, it does not follow from the above that the said provision also confers executive powers in relation to matters in the State List and Concurrent List. It is further submitted that Parliament may by law confer executive powers in relation to matters in the Concurrent List on the Union Government for States, it may also do so in relation to NCTD. But, if such thing is not done, the Union Government will, as a general rule, have no executive powers in respect of matters under List II (except the excluded entries) and it is the GNCTD, which shall enjoy exclusive executive powers. We are of the view that the above interpretation as put up by the appellant on constitutional provisions cannot be accepted. The principle is well established that executive powers coexist with the legislative powers. Reference to Article 73 has been made in this context, which need to be noted.Article 73 provides as follows:

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“73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.”

85. The proviso to Article 73(1) provides that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws. Obviously, the proviso refers to the Concurrent List where both Parliament and State have power to make laws. Executive power in reference to Concurrent List has been deliberately excluded to avoid any duplicacy in exercise of power by two authorities. Article 73 as it stood prior to the Constitution (Seventh Amendment) Act, 1956 contained the expression after the word State “specified in Part A or Part B of the First Schedule”. Thus, the executive power was excluded of the Union only with regard to Part A and Part B States alone. Thus, when the Constitution was enforced, executive power of Union in reference to Part C States was not excluded with regard to Concurrent List also. Part C States having been substituted as now by the Union Territories by the Constitution (Seventh Amendment) Act. The word “State” in proviso to Article 73 cannot be read to include Union Territory. Reading the words “Union Territory” within the word “State” in proviso to Article 73(1) shall not be in accordance with Scheme of Part VIII (Union Territories) of the Constitution. Union Territories are administered by the

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President. Exercise of executive power of the Union through President is an accepted principle with regard to Union Territories. The above interpretation is also reinforced due to another reason. Under Article 239-AA(4) proviso, the Lieutenant Governor, in case of difference of opinion, can make a reference to the President for decision and has to act according to the decision given thereon. The President, thus, with regard to a particular executive action, which has been referred, has exclusive jurisdiction to take a decision, which both Council of Ministers as well as Lieutenant Governor has to follow. The provision does not indicate that power of the President is confined only to executive actions which are mentioned in List II. When the President, as provided by the constitutional scheme, is entitled to take executive decision on any matter irrespective of the fact whether such executive decision taken by the Council of Ministers or Ministers related to matters covered by List II and List III, the executive power to Union through President cannot be confined to List II. Overriding power to the Union even on the executive matters has to be conceded to be there as per constitutional scheme. It is another matter that for exercise of executive powers by the Union through the President and by the Council of Ministers, headed by the Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering clause (4) of Article 239-AA. Legislative power of the Union is coextensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239-AA by the Constitution Sixty-ninth Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by Parliament in exercise of power under Article 239-AA(7)(a) of the Constitution. Section 49 of the Act, 1991 provides as follows:

“49. Relation of Lieutenant Governor and his Ministers to President.—Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

86. Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged the Council of Ministers and the Lieutenant Governor shall be under the general control of, and comply with such particular directions issued by the President from time to time. The power of the President to issue direction is

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not limited in any manner so as to put any restriction on the executive power of the Union.

87. The President further is empowered under Section 44 of the 1991 Act to make rules for the allocation of business to the Ministers insofar as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. As per Article 239-AA sub-clause (4) read with business rules, the manner and procedure of conduct of business including executive functions of GNCTD has to be administered. Although the Union ordinarily does not interfere with or meddle with the day-to-day functions of the GNCTD which is in tune with the constitutional scheme as delineated by Article 239-AA and to give meaning and purpose to the Cabinet form of Government brought in place in the National Capital of Territory. But as the overriding legislative power of Parliament is conceded in the constitutional scheme, overriding executive power has also to be conceded even though such power is not exercised by the Union in the day-to-day functioning of the GNCTD. We thus conclude that executive power of the Union is coextensive on all subjects referable to List I and List II on which Council of Ministers and NCTD has also executive powers.”

59) Insofar as opinion of Chandrachud, J. is concerned, there is no

categorical discussion on this aspect, though insofar as legislative power

of the Legislative Assembly of Delhi is concerned, that has been

recognised, which is in conformity with the other two opinions, the

aspect of executive power of the Delhi Government has not been

elaborated. Instead, there is a detailed discussion on the construction of

the proviso to Article 239AA(4). As we have seen, clause (4) deals with

the executive power of the Council of Ministers of GNCTD. Proviso

thereto deals with the situation where there would be a difference of

opinion between the Lieutenant Governor and his Ministers on any

matter. It provides that in such an eventuality the Lieutenant Governor is

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supposed to refer the matter to the President for decision and act

according to the decision given thereon by the President. It gives

supremacy to the President in the matter of executive decisions.

Chandrachud, J. has noted that NCTD continues to be a Union Territory

and the Union Government has a special interest in the administration of

its affairs, which stands exemplified by the provisions of Article 239 and

Section 49 of the GNCTD Act. Therefore, the provision to Article

239AA(4) must be given an interpretation which is marked with a sense

of fine constitutional balance. The balance which is drawn must

preserve the vital interest of the Union Government in the governance of

the National Capital while supporting the legitimacy and constitutional

status of the Council of Minister, which owes collective responsibility to

the Legislative Assembly and which, in its capacity of the executive arm

of the Government, tenders aid and advise to the Lieutenant Governor

under a cabinet form of governance. According to the learned Judge,

three lines of reasoning emerge in this behalf which are mentioned in

the opinion. The first line of interpretation would have the Court interpret

the expression ‘difference of opinion between the Lieutenant Governor

and his Council of Ministers on any of the matter’ without reservation or

qualification, which would be a purely literal or textual construction. In

this sense ‘any matter’ would mean any matter without restriction.

Second interpretation would be to read the aforesaid expression to be

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read and confined to specific categories. Third interpretation has two

facets. As per the first facet, a reference can be made to the President

only after the Lieutenant Governor has made an effort to resolve a

difference with a Minister or with Council of Ministers by seeking a

resolution through dialogue and discussion. This is to be done after

following the procedure contained in the Transaction of Business Rules.

Second facet relates to the substantive meaning of the expression ‘any

matter’, which would not mean ‘every matter’ or ‘every trifling matter’ but

only those rare and exceptional matters where the difference is so

fundamental to the governance of the Union Territory that it deserves to

be escalated to the President.

60) After suggesting the aforesaid three lines of interpretations, the

judgment suggests that there is a kernel of substance in each of them,

but pitfalls have to be avoided. It emphasises that the functioning of the

institutions must establish a constitutional balance which facilitates

cooperative governance. Read in this way, the proviso has to be

operated and applied in a manner which facilitates and does not obstruct

the governance of NCTD. This judgment, thereafter, again emphasises

that though Delhi has a special status, it continues to be a Union

Territory. In that context, the nine Judge Bench decision in NDMC as

well as the scheme contained in Article 239 and 239AA as well as the

principle of repugnancy mentioned in Article 254 of the Constitution are

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discussed. Discussion thereafter would be of some relevance and is,

therefore, reproduced below, verbatim:

"138...The principle of repugnancy which Article 254 recognises between the Union and State legislation on matters in the Concurrent List is extended by Article 239-AA [(3)(b) and (3)(c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the Legislative Assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being coextensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a Cabinet form of Government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive powers, consistent with its status as a Union Territory.

139. The exercise of the constituent power to introduce Article 239-AA was cognizant of the necessity to protect national interests inherent in the governance of a National Capital. A sense of permanence and stability was sought to be attributed to the arrangements made for governing Delhi by bringing in a constitutional amendment. Both in terms of the reach of the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that the governance of Delhi implicates a sense of national interest. When matters of national interest arise, they would predicate a predominant role for institutions of national governance.

140. Consistent with the need to preserve national interest, it would not be appropriate to restrict the ambit of the proviso to Article 239-AA(4) to situations where the action of the Government is ultra vires the limits of its executive powers. This becomes evident on a construction of the provisions of Section 41(1)(i) and Section 44(1)(a) of the GNCTD Act. Clause (i) of Section 41(1) enables the Lieutenant Governor to act in his discretion on a matter which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President. Under Section 44(1)(a), Rules of Business are made on matters on which the Lieutenant Governor is required to act on the aid and advice of the Council of Ministers. Section 44(1)(a) covers business which is not a part of Section 41(1)(i).

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This is because matters which fall within Section 44(1)(i) are not governed by the principle of aid and advice.

141. There is much to be said for not laying down an exhaustive catalogue of situations to which the proviso applies. Governance involves complexities. In the very nature of things, it would not be possible for a court delivering judgment in the context of the problems of the day to anticipate situations which may arise in future. It would be unsafe to confine a constitutional provision to stated categories which may affect the resilience of the Constitution to deal with unforeseen situations. Some of the illustrations which may warrant the exercise of the power under the proviso may shed light on the purpose of the proviso and the object which it seeks to achieve.

142. There are two constitutional perspectives: first, the operation of the proviso should preserve the national concerns underlying the conferment of such a power, and second, the exercise of the power under the proviso must not destroy the essential democratic values recognised in Article 239-AA. Thus, it is necessary to lay down the steps which need to be adopted before recourse is taken to the proviso. The Transaction of Business Rules indicate in sufficiently elaborate terms that when there is a difference of opinion between the Lieutenant Governor and a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239-AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, to give clarity to the operating procedure for invoking the proviso. Moreover, once a reference is made to the President, the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted by emergent circumstances until the President has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Minister or, as the case may be, the Council of Ministers to resolve a matter of difference. The nature of the differences which may warrant a reference to the President cannot be exhaustively catalogued. But it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The

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Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the Government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union Government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national Capital. Financial concerns of the Union Government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved. A situation of the nature indicated in Rule 23 of the Transaction of Business Rules may well justify recourse to the proviso. The touchstone for recourse to the proviso is that the difference of opinion is not a contrived difference. The matter on which a difference has arisen must be substantial and not trifling. In deciding whether to make a reference, the Lieutenant Governor must always bear in mind the latitude which a representative Government possesses to take decisions in areas falling within its executive authority. The Lieutenant Governor must bear in mind that it is not he, but the Council of Ministers which takes substantive decisions and even when he invokes the proviso, the Lieutenant Governor has to abide by the decision of the President. The Lieutenant Governor must also be conscious of the fact that unrestrained recourse to the proviso would virtually transfer the administration of the affairs of the NCT from its Government to the Centre. If the expression “any matter” were to be read so broadly as to comprehend “every matter”, the operation of the proviso would transfer decision-making away from the Government of the NCT to the Centre. If the proviso were to be so read, it would result in a situation where the President would deal with a reference on every matter, leaving nothing but the husk to the administration of the Union Territory. Article 239-AB makes a provision where there is a failure of the constitutional machinery in the Union Territory. The proviso to Article 239-AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the Legislative Assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi as a national Capital are not bypassed. If these fundamental precepts are borne in mind, the operation of the proviso should pose no difficulty and the intervention of the President could be invoked in

75

appropriate cases where a matter fundamental to the governance to the Union Territory is involved.”

61) Insofar as executive power of the GNCTD is concerned, we find

that the majority judgment authored by Dipak Misra, CJI (as he then

was) clearly holds that it is to the exclusion of the executive power of the

Central Government. That is the effect of the combined reading of

paragraphs 214 to 218 of the Constitution judgment. The argument of

the respondents to the contrary is an attempt to reargue the case.

However, judicial discipline prevents us from embarking upon such a

journey. In fact, it is for this reason the learned counsel appearing for

the Union of India have also argued that the majority opinion is not

correct and matter needs to be referred to the larger Bench for

reconsideration. This course of action would also not be advisable

having regard to the provisions of Article 145(3) of the Constitution. We,

thus, have to proceed on the premise that the executive power of the

Delhi Government extends to all Entries of List II (except Entries 1, 2

and 18) and Entries 64, 65 and 66 of that List insofar as they relate to

said Entries 1, 2 and 18 as well as all the Entries in List III. This power

of GNCTD is also to be exclusive, i.e. to the exclusion of the executive

power of the Central Government. At the same time, we may also clarify

that while dealing with the specific issues which arise in these appeals,

this Court would keep in mind the provisions of GNCTD Act as well as

76

the Transaction of Business Rules inasmuch as for deciding these

issues this Court cannot be oblivious of the specific provisions contained

in the Act and the Rules.

62) Of course, while construing those provisions and applying

these and other provisions in the context of specific issues, the

letter and spirit behind the Constitution Bench judgment on various

aspects, to which all the three opinions concur, would be kept in mind. It

is for this reason we have discussed other two opinions as well, in detail.

The Appeals

63) To recapitulate, there are a total of nine appeals which have to be

decided by this Court in the present batch of appeals. Seven out of

these nine appeals have been filed by the GNCTD and remaining two

have been filed by the Union of India. Eight out of these nine appeals

are Civil Appeals and one appeal filed by the Union of India is a Criminal

Appeal. All the appeals are against the impugned order of the High

Court of Delhi dated August 04, 2016. The issues which are raised in

different appeals are summed up below:

64) The first issue is whether the exclusion of “Services” relatable to

Entry 41 of List II of the Seventh Schedule from the legislative and

executive domain of the NCT of Delhi, vide Notification of the

Government of India dated May 21, 2015, is unconstitutional and

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illegal?

65) The second issue is whether the exclusion of the jurisdiction of the

Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences

committed under the Prevention of Corruption Act, 1987 by the officials

of Central Government and limiting the jurisdiction of the ACB to the

employees of GNCTD alone is legal? (These two issues arise in Civil

Appeal No. 2357 of 2017).

66) The third issue is raised in Civil Appeal Nos. 2358, 2359 and 2360

of 2017. In all these three appeals, the common issue is whether the

GNCTD is an “Appropriate Government” under the Commission of

Enquiry Act, 1952?

67) The fourth issue, which is raised in Civil Appeal 2363 of 2017, is:

whether under Section 108 of the Electricity Act, 2003 and under Section

12 of the Delhi Electricity Reforms Act, 2000, the power to issue

directions with the State Commission is with the Government of NCT of

Delhi?

Similar issue is the subject matter of Civil Appeal 2361 of 2017,

viz. whether the orders of the GNCTD nominating Directors to

Distribution Companies in Delhi under the Delhi Electricity Reforms Act,

2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules,

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2001, without obtaining the concurrence of the Lieutenant Governor are

valid?

68) The fifth issue is common to Civil Appeal No. 2362 of 2017 filed by

the GNCTD and Civil Appeal No. 2364 of 2017 filed by Union of India,

wherein the issue is whether the Revenue Department of the GNCTD

has the power to revise the minimum rates of Agricultural Land (Circle

Rates) under the provisions of Indian Stamp Act, 1899?

69) The sixth issue, which is the subject matter of Criminal Appeal No.

277 of 2018, pertains to the appointment of Special Public Prosecutors,

viz., whether it is the Lieutenant Governor or the GNCTD which has the

power to appoint the Special Public Prosecutor under Section 24 of the

Cr.PC.?

Discussion and Conclusions on the Issues Raised

70) We now proceed to decide these issues.

Issue No.1: Whether the exclusion of ‘Services’ relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCTD, vide Notification dated May 21, 2015, is unconstitutional and illegal?

71) Entry 41 of List II of the Seventh Schedule reads as under:

"41. State public services; State Public Service Commission.”

72) Mr. Chidambaram, learned senior counsel who argued the case on

behalf of the GNCTD on this issue, submitted that the majority judgment

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of the Constitution Bench specifically holds that exclusion of

legislative/executive power in List II for Assembly/ GNCTD is limited to

only three subjects, i.e. Entry 1 (Public order), Entry 2 (Police) and Entry

18 (Land). Therefore, the issue of exclusion of any other additional

Entry either in List II or in List III would not arise. As a consequence, not

only legislative power of the Assembly, even the co-extensive executive

power in respect of Entry 41 rests with GNCTD. Mr. Chidambaram

argued that Entry 41 has two components, namely, State public service

and State Public Service Commission. Since there is no State Public

Service Commission in Delhi, insofar as service personnel in Delhi are

concerned, that would come within the expression ‘State public services’

and it is the GNCTD which would exercise its administrative power over

such employees.

73) Learned counsel drew attention of this Court to the earlier

Notification dated September 24, 1998 and submitted that the said

Notification was perfectly in order. We reproduce the same hereunder:

" MINISTRY OF HOME AFFAIRS

NOTIFICATION New Delhi, the 24th September, 1998

S.O. 853 (E). – In pursuance of the powers conferred under clause (1) of article 239 of the Constitution, the President hereby directs that subject to his control and until further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’ and ‘Services’ exercise the powers and discharge the functions of the Central Government, to the extent delegated from time to time

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to him by the President, in consultation with the Chief Minister of the National Capital Territory of Delhi except in those cases where, for reasons be recorded in writing, he does not consider it expedient to do so.

[F.No. U-11030/2/98-UTL(288)] P.K. JALALI, Jt. Secy.”

However, this was superseded vide impugned Notification dated

May 21, 2015 which gives power to the Lieutenant Governor in respect

of ‘Services’ as well, in addition to ‘Public Order’, ‘Police’ and ‘Land’,

which is contrary to the scheme contained in Article 239AA of the

Constitution, as interpreted by this Court. This Notification reads as

under:

" MINISTRY OF HOME AFFAIRS

NOTIFICATION New Delhi, the 21st May, 2015

S.O. 1368(E).—Whereas article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify;

And whereas article 239AA inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’ provides that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor;

And whereas sub-clause (a) of clause (3) of article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1

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relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18 relates to ‘Land’.

And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi.

Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category.

And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power.

And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi.

Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that -

“(i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’,

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‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.

Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.

2. In the Notification number F. 1/21/92-Home (P) Estt. 1750 dated 8th November, 1993, as amended vide notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for paragraph 2 the following paragraph shall be substituted, namely: —

“2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the article 239AA of the Constitution.”

after paragraph 2 the following paragraph shall be inserted, namely:—

“3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government”.

3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession.

[F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy.”

74) Pertinently, this Notification in respect of ‘Services’, mentions about

Union Territories cadre consisting of Indian Administrative Service and

Indian Police Service personnel. There is no dispute that this cadre is

common to all the Union Territories and Delhi is only one of them. It is

also not in dispute that this cadre is administered by the Central

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Government through the Ministry of Home Affairs. The Notification also

refers to DANICS and DANIPS, which are again common services

catering to the requirement of various Union Territories, including NCTD.

These services are also administered by the Central Government

through the Ministry of Home Affairs. As is clear from the aforesaid

Notification, the aforesaid reasons are given therein thereby making

these services subject to the control and further orders of the Lieutenant

Governor of NCTD.

75) Submission of Mr. Chidambaram, however, is that being common

cadres, which apply to all Union Territories, undoubtedly, the Central

Government has the power to allocate the personnel to NCTD as well.

Likewise, it is also within the powers of the Central Government to

transfer such personnel from one Union Territory to other, which would

mean even from NCTD to any other Union Territory. According to him,

that was the only function of the Joint Cadre Authority under the All India

Services (Joint Cadre) Rules, 1972 inasmuch as Rule 5(1) therein

stipulates to: “determine the names of the members of All India Services

who may be required to serve from time to time in connection with

affairs of each of the constituent States and the period or purpose for

which their services shall be available to that Government”. However,

submits the counsel, once particular officers are allocated to NCTD,

during their tenure in NCTD, it is within the powers of the GNCTD to

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assign them to particular departments. In support of this submission, he

referred to the following Rules:

"The All-India Services (Joint Cadre) Rules, 1972

2. Definitions – In these rules, unless the context other requires, – (a). “Joint Cadre Authority” means the Committee of Representatives referred to in rule 4.

xx xx xx

4. Committee of representatives -

(1) There shall be a Committee consisting of a representative of each of the Governments of the Constituent States, to be called the Joint Cadre Authority.

(2) The representatives of the Governments of the Constituent States may either be members of an All-India Service or Ministers in the Council of Ministers of the Constituent States, as may be specified by the Governments of the Constituent States.”

The Indian Administrative Service (Cadre) Rules, 1954

2. Definitions:- In these rules, unless the context otherwise requires -

xx xx xx

(c) ‘State’ means a State specified in the First Schedule to the constitution and includes a Union Territory.

(d) ‘State Government concerned’, in relation to a Joint cadre, means the Joint Cadre Authority.

xx xx xx

7. Postings – All appointments to cadre posts shall be made:-

(a) in the case of a State cadre, by the State Govt.; and

(b) in the case of a Joint Cadre, by the State Government concerned.

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(c)(i) The Central Government, in consultation with the State Government or State Governments concerned, may determine the tenure of all or any of the cadre posts specified for the State concerned in item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulation, 1955.

(c)(ii) A cadre officer, appointed to any post for which the tenure has been so determined, shall hold the minimum tenure as prescribed except in the event of promotion, retirement, deputation outside the State or training exceeding two months.

(c)(iii) An officer may be transferred before the minimum prescribed tenure only on the recommendation of a Committee on Minimum Tenure as specified in the Schedule annexed to these rules.”

xx xx xx

11A. Authority to exercise certain powers in respect of members of the Service serving in connection with the affairs of the States constituting a Joint Cadre:- the powers of the State Government under the second proviso to sub-rule (2) of rule 4, under clause (I) of sub-rule (2) of rule 6 and under Rules 7, 10 and 11, in relation to the members of the Service serving in connection with the affairs of any of the Constituent States shall be exercised by the Government of that State.”

Submission was that as per the aforesaid Rules, posting is done

by the State Government once the Central Government allocates

particular employees to a particular State and since this principle of

federalism is accepted and given imprimatur by the Constitution Bench

in case of NCTD as well, the aforesaid principle shall equally apply.

76) As per him, the complete scheme which becomes clear from the

above is that while it is the Joint Cadre Authority where Delhi has its own

separate representative which allocates officers of the AGMUT Cadre to

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NCT of Delhi, the post to which such officer is posted/deputed is

determined by the GNCTD. Consequently, if within the GNCTD, the said

officer has to be posted from one post to the another, it is the GNCTD

alone which has the powers under the Service Rules. This is in

consonance with the position that prevails in the states of Arunachal

Pradesh, Mizoram and Goa which are also members of the Joint Cadre

in the AGMUT Cadre and who like the NCTD and unlike other Union

Territories have a representative in the Joint Cadre Authority.

77) Likewise, insofar as DANICS is concerned, the submission is that

under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman &

Diu and Dadra & Nagar Haveli Civil Services Rules, 2003, same

consequence follows. Following Rules were referred to:

“11. Appointment to the Service - All appointment to the Service shall be made by the Appointing Authority to the Junior Administrative Grade-I or Junior Administrative Grade-II or Selection Grade or Entry Grade of the Service and not against any specific post included in the Service.

12. Posting - Every member of the Service allocated to an Administration shall, unless he is appointed to an ex-cadre post, or is otherwise not available for holding a duty post owing to the exigencies of the public service, be posted against a duty post under the Administration by the Administrator concerned.

13. Allocation of members of the Service - The Government shall, from time to time, allocate a member of the Service to any Administration for posting in terms of rule 12.”

78) It is argued that under the DANICS Rules, as per Rule 2(a)

‘Administration’ means the GNCTD, as per Rule 2(b) ‘Administrator’

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means the Administrator of NCTD and as per Rule 2(k) ‘Government’

means the Government of India. Thus, while it is the Government of

India that makes an officer available to GNCTD under Rule 13, the

posting of that DANICS officer within the NCTD is to be made by the

Administrator on the aid and advice of the Council of Ministers.

79) Mr. C.A. Sundaram, learned senior counsel who argued on behalf

of the Union of India on this particular issue, submitted that Entry 41 in

List II cannot be applied to the NCTD as the said Entry is confined to

‘State public services’ and ‘State Public Service Commission’.

Indubitably, there was no Public Service Commission in NCTD. The

other part refers to State Public Services whereas the services in

respect of which the impugned Notification dated May 21, 2015 is

issued, pertains to other All India Services or combined/joint cadre of

Union Territories which are not State public services. He also argued

that certain matters fall within the discretionary powers of the Lieutenant

Governor where he does not have to act on the aid and advise of the

Council of Ministers of GNCTD. This was such a discretionary matter

and, therefore, fell outside NCTD. In the alternative, he submitted that

even if the Lieutenant Governor has no discretion, since the subject

matter is not covered by Entry 41 of List II, the Lieutenant Governor is

not supposed to act on the aid and advise of the Central Government

and not that of GNCTD. Focusing on the aspect of discretionary power

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of the Lieutenant Governor, Mr. Sundaram referred to Section 41 of the

GNCTD Act which stipulates the matters wherein the Lieutenant

Governor can act in his own discretion. This provision reads as under:

"41. Matters in which Lieutenant Governor to act in his discretion:

(1) The Lieutenant Governor shall act in his discretion in a matter:-

(i) which falls outside the purview of the powers conferred on the legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or

(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions.

(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.

(3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.”

80) According to Mr. Sundaram, discretion was conferred upon the

Lieutenant Governor in respect of this subject matter by virtue of clause

(i) of sub-section (1) of Section 41 as the matter falls outside the purview

of the powers conferred on the Legislative Assembly. Therefore, the

President was competent to issue Notification dated May 21, 2015

thereby entrusting the powers and functions in respect of ‘Services’ to

the Lieutenant Governor. According to him, this was supported by Rule

46 of the Transaction of Business Rules which reads as under:

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"46. (1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution.

(2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause (3) of article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public Service Commission unless authorised to do so by the Central Government.

(3) All correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.”

81) Insofar as Notification dated September 24, 1998 is concerned, Mr.

Sundaram pointed out that this Notification was issued under Article 239

of the Constitution. In any case, this was also issued by the President

and was almost to the same effect as Notification dated May 21, 2015,

inasmuch as here also the President had delegated the powers to the

Lieutenant Governor in respect of ‘Public order’, ‘Police’ as well as

‘Services’. Therefore, all these subjects were put at par. The only other

requirement specified in the said Notification was that the Lieutenant

Governor was to exercise the powers and discharge the functions of the

Central Government ‘in consultation with the Chief Minister of the

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NCTD’. It was only a ‘consultation’ which would not mean ‘concurrence’.

The Notification dated May 21, 2015 brought about change only in

respect of such consultative process, i.e. ‘consultation’ with the Chief

Minister, as being done away with. This became necessitated,

according to him, because of the problems which the Lieutenant

Governor was facing even in undertaking consultations with the Chief

Minister. Therefore, now it is entirely within the discretion of the

Lieutenant Governor to have the views of the Chief Minister or not. To

that extent this Notification is only clarification of the earlier Notification

dated September 24, 1998 and in substance the legal implications of

this Notification were exactly the same as Notification dated September

24, 1998. Learned counsel also argued that the Constitution provides

for services of the States and services of the Union. All Union Territories

services are services of the Union, as held in a recent judgment of this

Court in Bir Singh v. Delhi Jal Board and Others4. For example, in

Delhi, IAS, DANICS & DASS cadre, as also teachers and doctors, are

services of the Union and the recruitment rules have been framed with

the approval of the President or of Lieutenant Governor as a nominee of

the President. The learned counsel also pointed out that Rule 46 of the

Transaction of Business Rules, along with the delegation made by the

President under Article 239AA of the Constitution from time to time, has

always been governing the process of transfer/posting of officers

4 (2018) 10 SCC 312

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working with the GNCTD.

82) Fervent plea of Mr. Sundaram was that a just and fair mechanism

could be similar to the one which prevailed in earlier years prior to 2015,

viz. that the transfers and postings of Secretaries, HoDs and other

officers in the scale of Joint Secretary to the Government of India and

above can be done by the Lieutenant Governor and the file submitted to

him directly. For other levels, including DANICS officers, the files can be

routed through the Chief Minister to Lieutenant Governor. In case of

difference of opinion between the Lieutenant Governor and the Chief

Minister, the view of the Lieutenant Governor should prevail and the

Ministry of Home Affairs can issue a suitable notification in this regard.

However, for Grade IV, III, II and I DASS officials, there is an existing

delegation of powers where for Grades IV and III, all transfers and

postings are done by the Secretary (Services); for Grades II and I, the

transfers and postings are done by the Chief Secretary. For greater

transparency, a Civil Services Board can be formed which can be

headed by the Secretary (Services) for Grades IV and III officials; by the

Chief Secretary for Grades II and I level officers. The Board can decide

on the transfer and postings of these DASS cadre officers. He also

pointed out that for IAS officers, a Civil Services Board headed by the

Chief Secretary already exists and the recommendations of the same

are being sent to the Lieutenant Governor. Similar Board can also be

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formed for DANICS officers. His suggestion was that similar mechanism

of Services Boards can be made for other departments such as

Education and Health. Likewise, the services of the Union Territories

being under the Ministry of Home Affairs, an advisory can be given to

that Ministry to make these guidelines under the Transaction of Business

Rules and to provide consultation by the Lieutenant Governor with the

Chief Minister up to certain level of officers.

83) In rejoinder, Mr. Chidambaram submitted that the aforesaid

argument of the Union ignores the judgment of this Court in Union of

India v. Prem Kumar Jain and Others5 wherein a four Judge Bench of

this Court held that the ‘State’ includes a Union Territory for the purposes

of Article 312 of the Constitution in the following manner:

"8. It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which, as has been shown, substituted a new clause (58) in Section 3 of the General clauses Act providing, inter alia, that the expression “State” shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean “a State specified in the First Schedule to the Constitution and shall include a Union Territory”. It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By virtue of Article 372A(1) of the Constitution, it was that definition of the expression “State” which had effect from the first day of November, 1956, and the Constitution expressly provided that it could “not be questioned in any court of law”. The High Court therefore went wrong in taking a contrary view and in holding

5 (1976) 3 SCC 743

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that “Union territories are not ‘States’ for purposes of Article 312(1) of the Constitution and the preamble to the Act of 1951”. That was why the High Court erred in holding that the definition of “State” in the Cadre Rules was ultra vires the All India Services Act, 1951 and the Constitution, and that the Union territories cadre of the service was “not common to the Union and the States” within the meaning of Article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the Union territories.

(emphasis supplied)”

The above decision has also been noted, with approval, in

paragraph 125 in the opinion of Chandrachud J. in the Constitution

Bench judgment.

84) From the respective arguments of the parties reproduced above, it

becomes clear that following aspects are undisputed:

(a) The matter pertains to the ‘Services’ which consists of Indian

Administrative Service, Indian Police Service. Likewise, DANICS and

DANIPS are common services catering to the requirement of various

Union Territories including NCTD.

(b) These are All India Services and the cadre in question is Union

Territory Cadre which is common of all Union Territory and Delhi is one

of them. Therefore the Cadre does not pertain to GNCTD itself. This

cadre is administered by the Central Government through Ministry of

Home Affairs.

(c) There is no dispute that insofar as allocation of personnel

belonging to the aforesaid services is concerned, it is the Central

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Government thorough Ministry of Home Affairs which has to pass the

necessary orders. Similarly, Central Government is empowered to

transfer such personnel from one Union Territory to other.

85) The fulcrum of dispute pertains to the control of GNCTD over

these personnel after they are allocated to the NCTD. As per GNCTD, it

has the power to post such work force at different places and the LG is

to act on the aid and advice of the Council of Ministers. For this

purpose, the executive power is sought to be drawn by virtue of Entry 41

of List II in the Seventh Schedule of the Constitution. The submission on

behalf of the Union of India is that it comes within the discretionary powers of

the LG as the subject matter is not covered by Entry 41 of List II and,

therefore, by virtue of Section 41 of GNCTD Act, the LG is empowered to

act in his discretion in such a matter.

86) In the aforesaid backdrop, the first and foremost question is

whether ‘services’ fall outside the purview of legislative assembly of

NCTD? To put it otherwise, whether Entry 41 of List II does not cover the

subject matter? Entry 41 of List II deals with ‘State Public Services’ and

‘State Public Service Commission’. It is undisputed that State Public

Service Commission does not exist in NCTD. When we are dealing with

All India Services and DHANICS Services etc., it is also doubtful to

mention it as State Public Service.

87) The further issue, however, is to see as to whether it is within the

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powers of GNCTD to assign such officers to particular departments,

once they are allocated to the NCTD by the joint cadre authority. As per

Rule 2(c) of Indian Administrative Services (Cardre) Rules, 1954, State

includes a Union Territory. Rule 7 deals with posting and, inter alia,

stipulates that in the case of joint cadre, posting shall be by the State

Government concerned. In the context of Article 312 of the

Constitution, this Court has held in Prem Kumar Jain that Union

Territories are States for the purpose of the said Article.

88) Similar is the position in respect of DANICS. Rule 11 of DANICS

Rules, 2003 empowers Administrator of the administration concerned

i.e. Union Territory, to make these postings. On the other hand, in the

context of NCTD, the Administrator, namely, LG is supposed to function

in this behalf on the aid and advice of the Council of Ministers. That is

the dicta of Constitution Bench judgment. Therefore, it becomes equally

doubtful as to whether it falls within the discretionary powers of the L.G.

89) The aforesaid discussion leads to a very peculiar situation. The

appellant has endeavoured to assume the executive power in respect of

‘services’ by relying upon Entry 41 of List II, which may be doubtful.

That situation may give discretionary powers to the L.G. On the other

hand, it also cannot be said that once the manpower is allocated to

Union Territory of Delhi, the GNCTD should not have any power to deal

with such employees, in view of C.B. Judgment. In such a scenario, and

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to avoid any conflict of exercise of powers between the LG on the one

hand (as representative of the Central Government) and the Council of

Ministers with Chief Minister as Head on the other hand, we are of the

opinion that for the smooth functioning of the system, it is necessary to

carve out a just and fair mechanism. Therefore, we are inclined to

accept the suggestion of Mr. Sundaram in this behalf as recorded above.

In this behalf, we reiterate the position as under:

90) The transfers and postings of Secretaries, HODs and other officers

in the scale of Joint Secretary to the Government of India and above can

be done by the Lieutenant Governor and the file submitted to him

directly. For other levels, including DANICS officers, the files can be