Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2357 OF 2017

Government of NCT of Delhi     … Appellant

Versus

Union of India & Another     … Respondents

WITH

CONTEMPT PETITION (CIVIL) NO. 175 OF 2016 IN

WRIT PETITION (CRIMINAL) NO. 539 OF 1986 CIVIL APPEAL NO. 2358 OF 2017 CIVIL APPEAL NO.  2359 OF 2017 CIVIL APPEAL NO. 2360 OF 2017 CIVIL APPEAL NO. 2361 OF 2017 CIVIL APPEAL NO. 2362 OF 2017 CIVIL APPEAL NO. 2363 OF 2017  CIVIL APPEAL NO. 2364 OF 2017

AND CRIMINAL APPEAL NO. 277 OF 2017

J U D G M E N T

Dipak Misra, CJI (for himself, A.K. Sikri and                              A.M. Khanwilkar, JJ.)  

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CONTENTS

A. Prologue…………………………………………… 3­22

B. Rivalised Submissions………………………… 22­23

B.1 Submissions on behalf of the appellant…………………………………… 23­34

B.2 Submissions on behalf of the respondents………………………………. 34­45

C. Ideals/principles of representative governance………………………………………… 45­50

D. Constitutional morality……………………… 50­54

E. Constitutional objectivity…………………… 54­57

F. Constitutional governance and the conception of legitimate constitutional trust…………………………………………………. 57­68

G. Collective responsibility………………………. 68­73

H. Federal functionalism and democracy……. 74­93

I. Collaborative federalism………………………. 93­100

J. Pragmatic federalism…………………………… 101­104

K. Concept of federal balance…………………… 104­108

L. Interpretation of the Constitution………… 108­120

M. Purposive interpretation……………………… 120­127

N. Constitutional culture and pragmatism…. 127­135

O. Interpretation of Articles 239 &  239A…. 135­140

P. Interpretation of Article 239AA of the

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Constitution………………………………………. 140­145

Q. Status of NCT of Delhi…………………………. 146­160

R. Executive power of the Council of Ministers of Delhi……………………………….. 160­164

S. Essence of Article 239AA of the Constitution………………………………………

164­188

T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993…………………………. 188­213

U. Constitutional renaissance………………….. 213­217

V. The conclusions in seriatim…………………. 217­231

A. Prologue:

The present reference to the Constitution Bench has its

own complexity as the centripodal issue in its invitation of the

interpretation of Article 239AA of the Constitution invokes a

host of concepts, namely, constitutional objectivity navigating

through the core structure with the sense and sensibility of

having a real  test of  constitutional structure;  the culture of

purposive interpretation because the Court is concerned with

the sustenance of glory of constitutional democracy in a

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Democratic Republic as envisioned in the Constitution;   and

understanding the idea of citizenry participation viewed with

the lens of progressive perception inherent in the words of a

great living document emphasizing on the democratic theme to

achieve the requisite practical goal in the world of reality. We

may call it as pragmatic interpretation of a constitutional

provision, especially the one that has the effect potentiality to

metamorphose a workable provision into an unnecessary and

unwarranted piece of ambiguity. In such a situation, the

necessity is to scan the anatomy of the provision and lift it to

the  pedestal  of  constitutional  ethos  with the  aid  of judicial

creativity that breathes essentiality of life into the same. It is

the hermeneutics of law that works. It is the requisite

constitutional stimulus to sustain the fundamental conception

of  participative democracy so that the real pulse  is  felt  and

further the constitutional promise to the citizens is fulfilled. It

gets rid of the unpleasant twitches and convulsions. To put it

differently, the assurance by the insertion of Article 239AA by

the Constitution (Sixty­ninth Amendment) Act, 1991 by

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exercise of the constituent power is not to be renounced with

any kind of rigid understanding of the provision. It is because

the exercise of constituent power is meant to confer

democratic, societal and political powers on the citizens who

reside within the National Capital Territory of Delhi that has

been granted a special status.  

2. The principal question is whether the inhabitants or

voters of NCT of Delhi remain where they were prior to the

special status conferred on the Union Territory or the

amended constitutional provision that has transformed Delhi

instills “Prana” into the cells. Let it  be made clear that any

ingenious effort to scuttle  the hope and aspiration that has

ignited the idea of “march ahead” among the inhabitants by

any kind of linguistic gymnastics will not commend

acceptation. The appellant claims that the status of the voters

of  NCT  Delhi after the  Sixty­Ninth  Amendment  has  moved

from notional to real but the claim has been negatived by the

Delhi High Court. Learned counsel for the appellant criticize

the judgment and order of the  High  Court by contending,

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apart from other aspects, that the language employed in the

entire Chapter containing Article 239AA, unless appositely

interpreted,   shall denude the appellant, the National Capital

Territory of Delhi, of its status.

3. The criticism is founded on the base that the

Constitution of India,  an organic and continuing document,

has concretised their desire and enabled the people to have

the right to participate as a collective in the decision making

process that shall govern them and also pave the path of their

welfare. The participation of the collective is the vital force for

larger  public interest  and higher  constitutional  values  spelt

out in the Constitution and the silences therein and the same

are to be protected. It is the assertion that the collective in a

democracy speak through their elected representatives seeking

mitigation of the grievances.  

4. This Court, being the final arbiter of the Constitution, in

such a situation, has to enter into the process of interpretation

with the new tools such as constitutional pragmatism having

due regard for sanctity of objectivity, realization of the purpose

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in the truest sense by constantly reminding one and all about

the sacrosanctity of democratic structure as envisaged by our

Constitution, elevation of the precepts of constitutional trust

and morality, and the solemn idea of decentralization of power

and, we must say, the ideas knock at the door to be invited.

The compulsive invitation is the warrant to sustain the values

of democracy in the prescribed framework of law. The aim is to

see that in the ultimate eventuate, the rule of law prevails and

the interpretative  process allows the said idea its  deserved

space, for when the rule of law is conferred its due status in

the sphere of democracy, it assumes significant credibility.  

5. We would like to call such a method of understanding

“confluence of the idea and spirit of the Constitution”, for it

celebrates the grand idea behind the constitutional structure

founded on the cherished values of democracy.  

6. As we have used the words “spirit of the Constitution”, it

becomes our obligation to clarify the concept pertaining to the

same.  The canon of constitutional interpretation that glorifies

the democratic concepts lays emphasis not only on the

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etymology of democracy but also embraces within its sweep a

connotative expansion so that the intrinsic and innate facets

are included.

7. A seven­Judge Bench of the Court in Keshvan Madhava

Menon v. The State of Bombay1 observed:­

“An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has  a  powerful  appeal to  sentiment  and emotion; but a court of law has to gather the spirit  of  the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the  language of the Constitution does not support that view. Article 372(2)  gives  power to the  President to  adapt  and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise  of the  powers  conferred  on him by that article, from repealing, say the whole or any  part of the Indian  Press (Emergency  Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision  was otherwise  made in the repealing Act. It  is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention

11951 SCR 228

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about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings  under a law  which  has  become void cannot be proceeded with.  Further,  if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it  should be equally repugnant  to that  spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.”

[Emphasis is ours]

The aforesaid decision has to be understood in the

context of the phraseology ‘spirit of the Constitution’. As we

understand, the Court has not negatived the concept as an

alien one. It has laid emphasis on the support from the

language used. It has not accepted the assumed spirit of the

Constitution.   Needless to say, there cannot be assumptions.

Every proposition should have a base and the Constitution of

India to be an organic and living one has to be perceived with

progressive dynamism and not stuck with inflexibility.

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Flexibility has to be allowed room and that is what we find in

later authorities.  

8. In  Madhav Rao Jivaji Rao Scindia and others v.

Union of India and another2,  Hegde,  J, in his concurring

opinion,  emphasized on the spirit  of the Constitution.  The

learned Judge, while not accepting the exercise of power for

collateral reasons, stated:­

“Exercise of power for collateral reasons has been considered by this Court in several decisions as a fraud on that power — see Balaji v. State of Mysore. Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the Constitution is bound to be broadened from precedent to precedent  and before long the  entire  Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar Constitution. If the Constitution or any of its provisions  have  ceased to serve the  needs  of the people, ways must be found to change them but it is impermissible to by­pass the Constitution or its provisions.  Every contravention of the letter or the spirit  of the  Constitution  is  bound  to  have  chain reaction. For that reason also the impugned orders must be held to be ultra vires Article 366(22).”

[underlining is ours]

2(1971) 1 SCC 85

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9. In State of Kerala and another v. N.M. Thomas and

others3,  Krishna  Iyer,  J., in  his  concurring opinion,  opined

thus:­

“106. Law, including constitutional law, can no longer  “go  it  alone”  but must be  illumined  in the interpretative process by sociology and allied fields of knowledge. Indeed, the term “constitutional law” symbolises an intersection of law and politics, wherein  issues of  political  power are  acted on by persons trained in the legal tradition,  working in judicial institutions, following the procedures of law, thinking as lawyers think. So  much so, a  wider perspective is needed to resolve issues of constitutional law.  Maybe, one cannot  agree  with the view of an eminent jurist and former Chief Justice of India:

“The judiciary as a whole is not interested in the policy underlying a legislative measure.”

Moreover, the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern,  egalitarian democracy. Its  provisions can be comprehended only by a spacious, social­science approach, not by pedantic, traditional legalism. Here we are called upon to delimit the amplitude and decode the implications of Article 16(1) in the context of certain special concessions relating to employment, under the Kerala State (the appellant), given to scheduled castes and scheduled tribes (for short, hereinafter referred to as harijans) whose social lot and economic indigence are an Indian reality recognized by many articles of the

3(1976) 2 SCC 310

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Constitution. An overview of the decided cases suggests the need to reinterpret the dynamic import of the “equality clauses” and, to stress again, beyond reasonable doubt that the paramount law, which is organic and regulates our nation’s growing life, must take in its sweep “ethics, economics, politics and sociology”. Equally pertinent to the issue mooted before us is the lament of Friedmann:

“It would be tragic if the law  were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society.”

The main assumptions which Friedmann makes are:

“First, the law is, in Holmes’ phrase, not a ‘brooding omnipotence in the sky’, but a flexible instrument of social order, dependent on the political values of the society which it purports to regulate . . . .”

107.  Naturally surges the interrogation,  what  are the challenges of changing values to which the guarantee  of  equality  must respond and how? To pose the problem with particular  reference  to our case, does the impugned rule violate the constitutional creed of equal opportunity in Article 16 by resort to a suspect classification or revivify it by making the less equal more equal by a legitimate differentiation?  Chief Justice Marshall’s classic statement in     McCulloch     v.     Maryland     followed by Justice Brennan in    Katzenbach    v.    Morgan    remains a beacon light:

“Let the end be legitimate, let it be within the scope of the Constitution, and all  means which are appropriate, which are plainly adapted to that end, which are not prohibited,

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but consist  with the letter  and  spirit of the Constitution, are constitutional”.”

[Emphasis is added]

10. In  Supreme Court Advocates­on­Record Association

and another v. Union of India4,  this Court observed that a

fortiori any construction of the constitutional provisions which

conflicts with the constitutional purpose or   negates the

avowed object has to be eschewed, being opposed to the true

meaning and spirit of the Constitution and, therefore, being an

alien concept.

11. We have referred to the aforesaid precedents to state that

the spirit of the Constitution has its own signification.  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 most sound approach is to read the words of the

Constitution in the light of the avowed purpose and spirit of

the Constitution so that it does not result in an illogical

outcome which  could  have  never  been the intention  of the

4(1993) 4 SCC 441

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Constituent Assembly or of 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 the final arbiters of the Constitution. It is a

constitutional summon  for  performance  of  duty.  The  stress

has to be on changing society, relevant political values,

absence of any constitutional prohibition and legitimacy of the

end to be achieved by appropriate means. We shall refer to the

aspect of purposive interpretation regard  being  had to the

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context and other factors that gain primacy to be adverted to

at a subsequent stage.  

12. Having prefaced thus, we shall now proceed to state the

controversy in brief since in this batch of appeals which has

been referred to the Constitution Bench, we are required to

advert to the issue that essentially  pertains to the  powers

conferred on the Legislative Assembly of the National Capital

Territory of  Delhi  and the executive power exercised by the

elected Government of NCT of Delhi. The facts involved and

the controversy raised in each individual appeal need not be

dwelled upon, for we only intend to answer the constitutional

issue.

13. The primordial adjudication, as is presently the requisite,

commands our focus on the interpretation of Article 239AA of

the Constitution of India.  The said interpretation, be it noted,

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.   Before we delve into the various facets of

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Article 239AA and other provisions of the Constitution which

have been pressed into service by the learned counsel

appearing for the appellant and the learned Additional

Solicitor  General,  we  think  it  appropriate to  narrate  a  brief

history of Delhi.

14. On 12.12.1911, Delhi became the capital of India.  Delhi

Tehsil  and Mehrauli  Thana were  separate 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 Laws Act, 1912 came into force with effect from

01.10.1912  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

26.01.1950, Delhi became a Part C State.   In the year 1951,

the Government of Part C States Act, 1951 was enacted

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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.  

15. On 19.10.1956, the Constitution of India (Seventh

Amendment) Act, 1956 was passed to implement the

provisions of the States Re­organization 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

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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 20.08.1966, 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 Commission 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

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the said  Assembly  with  appropriate  powers; and to ensure

stability, appropriate constitutional measures should be taken

to confer the National Capital a special status.   The relevant

portion of the Balakrishnan Committee report reads as

follows:­

“6.5.5 In paragraphs 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 self­evident 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

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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 natural capital is divided into rigid compartments of State of 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……

x x x

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 become  a part  would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day­to­day 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.

x x x

LT. GOVERNOR AND COUNCIL OF MINISTERS

6.7.19 As a necessary corollary to the establishment of a responsible Government for Delhi the structure

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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 Lt. Governor may be continued and recognized in the Constitution itself. …

x x   x

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 quasi­judicial 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

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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 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

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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.”

16. As the chronology would show, after due deliberation, the

Parliament, in exercise of its constituent power, amended the

Constitution by the Constitution (Sixty­ninth Amendment) Act

in the year 1991 and inserted Articles 239AA and 239AB in

the  Constitution to  which  we shall refer at an  appropriate

stage when we dwell upon the interpretative process.   

B. Rivalised Submissions:

17. Now, we may note the rivalised submissions at the Bar.

We have heard Mr. P. Chidambaram, Mr. Gopal

Subramaniam, Dr. Rajiv Dhawan, Ms. Indira Jaising and

Mr. Shekhar Naphade, learned senior counsel  appearing on

behalf of the Government of NCT of Delhi.  Mr.  Maninder

Singh, learned Additional Solicitor General of India, has

advanced arguments on behalf of the Union of India and the

Lieutenant Governor of Delhi.

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18. A common written submission has been filed on behalf of

the  Government  of  NCT  of  Delhi and  Mr.  Maninder  Singh,

learned Additional Solicitor General of India, has filed written

submissions  on  behalf  of  both the  Union  of India  and the

Lieutenant Governor of NCT of Delhi.

19. An application for  intervention being I.A.  No.  10556 of

2017 was filed by the applicant, Reliance Industries Ltd. We

have heard Dr. A.M. Singhvi, learned senior counsel on behalf

of the said intervenor. Another application for intervention was

filed by The Kapila and Nirmal Hingorani Foundation and we

have heard Mr. Aman Hingorani, learned counsel on behalf of

the said Foundation.

B.1   Submissions on behalf of the appellant:

20. It is submitted by learned senior counsel appearing on

behalf of the appellant that the  NCTD occupies a unique

position in the constitutional scheme by virtue of the insertion

of Articles 239AA and 239AB and the consequent enactment

of the 1991 Act that has shaped the NCTD into a

constitutional hybrid and  has led  Delhi to acquire certain

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special characteristics solely attributed to full­fledged States

under the Constitution. As per the appellant, the Government

of NCT of Delhi enjoys far more power than the administrative

set ups of other Union Territories especially after the

constitutional amendment and coming into force of the 1991

Act.

21. After expansively referring to the constitutional history of

the  NCTD, it is  urged  on  behalf of the appellant that the

insertion of Article 239AA was intended to eradicate the

hierarchical structure which functionally placed the

Lieutenant Governor of Delhi in a superior position to that of

the Council of Ministers, especially with respect to the

executive powers and the Lieutenant Governor has to be

treated as a titular head alone in respect of matters that have

been assigned to the Legislative Assembly and the Council of

Ministers.

22. The appellant has alluded to the nine­Judge Bench

decision in  New Delhi Municipal Corporation v. State of

26

Punjab5 to contend that the Union Territory of Delhi is a class

by itself different from all other Union Territories which our

Constitution envisages, and the larger Bench had no occasion

to decide in what shape and form the NCTD is different from

other Union Territories, for the said issue did not arise

therein.  Nevertheless, the  majority opinion  clearly rules  as

regards Delhi’s unique constitutional status unlike other

Union Territories by virtue of the constitutionally created

Legislative  Assembly,  Council  of  Ministers  and Westminster

style cabinet system of government that have been brought by

the Sixty­ninth Amendment and the 1991 Act.

23. It is further submitted by the appellant that the Sixty­

Ninth  Amendment to the  Constitution and the consequent

1991 Act were passed with the aim to give the citizens of NCT

of Delhi a larger say in the governance of NCTD. Democracy

being one of the facets of the basic structure of the

Constitution, the Sixty­ninth amendment was aimed at

furthering democracy in Delhi and hence, Article 239AA

5(1997) 7 SCC 339

27

should be interpreted in the backdrop of the fact that Delhi

has been conferred special status among various UTs and in

such a way that democracy in its true sense is established in

Delhi.

24. It  is submitted that constitutional jurisprudence in the

Indian context has undergone a sea change after the decisions

in  R.C. Cooper v. U.O.I6  and  Maneka  Gandhi v. U.O.I7.

Learned counsel for the appellant submit that this Court

should  adopt a  more  purposive  and  an  organic  method  of

interpretation as adopted by this Court in a catena of cases

including the recent one in Justice K.S. Puttaswamy (Retd.)

and another v. U.O.I. and others8  wherein the  majority

observed that the decisions of this Court prior to R.C. Cooper

(supra)  and  Maneka Gandhi  (supra) must be understood in

their historical context.

25. Article 239AA has deliberately excluded the words "assist

and advice" as were used in the 1963 and 1966 Acts, rather

6AIR 1970 SC 564 7AIR 1978 SC 597 8(2017) 10 SCC 1

28

the said Article employs the expression "aid and advice" and,

therefore, it consciously obviates the requirement of the

Lieutenant Governor’s concurrence on every matter. Thus, it

is the proponement of the appellant that Article 239AA of the

Constitution which has conferred a Westminster style cabinet

system of government for the NCT of Delhi makes the

Lieutenant  Governor bound  by the 'aid and advice' of the

Council of Ministers. To buttress its argument, the appellant

has referred to the  judgments  in  Rai Sahib Ram Jawaya

Kapur and Ors. v. State of Punjab9 and Shamsher Singh

v.  State  of  Punjab10  which, as per the  appellant, though

arose in the context of the State of Punjab, decided that since

our Constitution has conferred a Westminster  style  cabinet

system for the Government of State of Punjab, an executive

Government established under the aegis of the Constitution

should be able to exercise all executive powers necessary to

fulfill the needs that the situation warrants and consequently,

the Governor has to act in accordance with the aid and advice

9AIR 1955 SC 549 10AIR 1974 SC 2192

29

tendered by the Council of Ministers with the Chief Minister

as its head.

26. It is further argued that GNCTD has the sole power to

take executive actions on all  matters on which the  Delhi

Legislature is competent to pass laws irrespective of whether

or not the Legislature has actually passed a law on the

subject. Emphasis is laid on the principle of collective

responsibility to a democratically elected legislative body and,

on that basis, it is proponed that the Lieutenant Governor of

Delhi is bound by the aid and advice of the Council of

Ministers of Delhi. It is put forth that such an interpretation

can alone  meet the purpose of constitutionally mandated

governance in  Delhi  post insertion  of  Article  239AA  in the

Constitution.

27. It is the stand of the appellant that the extent of

executive powers of the Government of NCT of Delhi can be

understood by appositely juxtaposed reading of Article

239AA(3) with Article 239AA(4) which stipulates that the

Government of NCT of Delhi has exclusive executive powers in

30

relation to  matters  which fall  within the purview of  Delhi

Assembly's legislative competence. Article 239AA(3) gives the

Delhi Legislative Assembly the legislative powers over all

except three subjects in the State List and all subjects in the

Concurrent List and as a natural corollary, Article 239AA(4)

confers executive power on the Council of Ministers over all

those subjects in respect of which the Delhi Legislative

Assembly has the legislative power to legislate.

28. It is asserted by the counsel for the appellant that Article

239AA preserves the Parliament's legislative powers over all

subjects in the State and the Concurrent Lists, but no such

executive power is reserved for the Union. The appellant

contends that there is conscious difference between the

language of Article 239AA(3) which gives overriding legislative

powers to the Parliament and that of Article 239AA(4) which

refrains from doing  the  likewise  in the context  of  executive

powers. The Centre's executive power stems from Article 73

and  would normally be co­extensive with the Parliament's

legislative powers, but this is explicitly subject to other

31

provisions  of the  Constitution  which  has to include  Article

239AA. Thus, Article 239AA has, in the case of Delhi, whittled

down the executive  power of the  Centre to only the three

reserved subjects falling outside the purview of the executive

power of the Council of Ministers of Delhi.

29. The appellant has argued that though Article 73 of the

Constitution lays down the principle that there  may exist

under the Constitution concurrent legislative powers between

the Parliament and the State Legislative Assemblies, yet there

can never be concurrent executive powers between the Central

and the State Governments as such a situation would result

in chaos in the absence of any responsibility/accountability

for executive actions. This principle, as per the appellant,

must apply equally in relation to matters contained in List II

and List III of the Seventh Schedule and the effect of Article

239AA(3) is that  all  matters  on which  the  Delhi  Legislative

Assembly has power to legislate are effectively equivalent to

matters of the Concurrent List.

32

30. Article 239AB  would become redundant if it is to be

accepted that the Constitution allows the Union Government

to override all executive actions/decisions of the GNCTD in the

ordinary  course  of things,  as in  such a situation, it  would

never be necessary to invoke the special provision in the form

of Article 239AB for the Union Government to take over the

administration of Delhi. Further, Article 239AB stipulates that

if the administration of Delhi is not carried out in accordance

with Article 239AA, the President may suspend the operation

of any part or whole of Article 239AA. This, as per the

appellant, clearly shows that when an elected government is in

place, the  administration of  Delhi  has to  be  carried  out in

accordance with Article 239AA.

31. After quoting Dr. Ambedkar on federalism in the

Constituent Assembly Debates dated 25.11.1949, the

appellant has contended that Article 239AA is an example of

the hallmark of federalism in our Constitution which reserves

legislative primacy of the Parliament in certain limited areas

but there is no such corresponding provision in the

33

Constitution which reserves the executive powers of the

Central Government vis­a­vis GNCTD.

32. It is contended on behalf of the appellant that there is

necessity for uniform and consistent interpretation of the

phrase 'aid and advice' used in different articles of the

Constitution such as Article 74, Article 163 and Article 239AA

in the context of the functions of the President, the Governor

and the Lieutenant Governor respectively. It is urged that the

provisions of the Constitution being on a higher pedestal than

ordinary  statutory  provisions  require to  be interpreted  in  a

different  manner and  in view of the same,  Article  239AA(4)

deserves to be interpreted in a manner as other provisions of

the Constitution and, hence, there is warrant for interpreting

the phrase 'aid and advice' in a broad sense so that such 'aid

and advice' is binding on the nominee of the President, i.e.,

the Lieutenant  Governor. It  would be an anathema to the

constitutional philosophy to surmise that just because the

Constitution permits a difference of opinion between the

Lieutenant Governor and the Council of Ministers, the 'aid and

34

advice' tendered by the  Council  of  Ministers is  not  binding

upon the Lieutenant Governor.

33. The appellant has further submitted that under Article

239AA(4), the Government of NCT of Delhi and the Council of

Ministers of the NCT of Delhi have exclusive power over all

matters in relation to subjects under List II (excluding Entries

1, 2 and 18 thereof and Entries 34, 65 and 66 in so far as they

apply to Entries 1, 2 and 18 thereof) and List III of the Seventh

Schedule. According to the appellant, the substantive part of

Article 239AA(4) itself lays down the exception to it, i.e., when

the Lieutenant Governor is to act in his discretion under the

law and not as per the advice of the Council of Ministers. The

proviso to Article 239AA(4), as per the appellant, comes into

play where the 'aid and advice'  of the  Council  of  Ministers

transgresses the areas constitutionally prescribed to it and the

proviso does not allow the Lieutenant  Governor to have a

different view on the merits of the 'aid and advice' that has

been tendered by the Council of Ministers. According to the

appellant, the proviso to Article 239AA(4) operates only in

35

exceptional situations and is not a general norm. Any attempt

to expand the scope of the proviso beyond exceptional matters

is not tenable as it would have the effect of rendering the main

part  of  Article  239AA(4)  otiose.  To rely  upon the proviso  to

Article 239AA(4) to say that the 'aid and advice' of the Council

of Ministers is not binding upon the Lieutenant Governor in

areas in which the Delhi Legislative Assembly has competence

to legislate  would defeat the  purpose for  which  institutions

necessary to operationalize democracy in Delhi were created. It

is submitted by the appellant that the 1991 Act as well as the

Rules themselves cannot be used to interpret the

constitutional provisions inasmuch  as they only reflect the

scheme of governance.

B.2 Submissions on behalf of the respondents:

34. The submissions put forth by Mr. Maninder Singh,

learned  Additional Solicitor  General of India, appearing on

behalf of the respondents,  Union of India and Lieutenant

Governor of Delhi, revolve around the argument that although

the insertion of Article 239AA envisages the constitution of a

36

Legislative Assembly for the National Capital Territory of

Delhi, yet the President shall remain its Executive head,

acting through the Lieutenant Governor, and that the powers

of the Parliament in respect of the Union Territories shall not

be derogated in any  manner by the insertion of the said

Article 239AA.

35. The respondents submit that the constitutional scheme

envisaged for the  Union  Territories  has  been  dealt  with in

New Delhi Municipal Corporation  (supra)  case and

although the Court in this case had contemplated three

categories of Union Territories, yet it had arrived at the

conclusion that those surviving as Union Territories and not

having acquired Statehood shall remain so and Delhi,  now

referred to as "National Capital Territory of Delhi", is still  a

Union Territory. The respondents further submit that once it

has been determined that  Delhi continues to be a Union

Territory, its governance shall be regulated by the provision of

Article 239 which stipulates that all Union Territories shall be

37

governed by the President of India and neither a plain textual

reading nor a contextual reading of Article 239AA stipulates

any vertically divided exclusive jurisdiction with the

Legislative Assembly or the Council of Ministers.

36. The respondents, thereafter, in their submissions, after

citing several authorities, have sought to impress upon this

Court that Article 239AA be given its literal and true

interpretation as there exists no ambiguity attracting the

requirement  of  purposive interpretation.    The respondents

have also submitted that since it was on the

recommendations made by the Balakrishnan Committee,

which had been accepted in toto, that the Sixty­ninth

amendment and the 1991  Act came into force, the  Court

should consider the report of the Committee and the reasons

provided therein in order to ascertain the true intention of the

exercise of the constituent power of the Parliament for

bringing about the said amendment as well  as  the GNCTD

Act.

38

37. It is also asserted by the respondents that Article 239 is

an integral part of the Constitution and the foundation stone

of  Part VIII  and that Article  239AA shall  be read conjointly

with Article 239 which provides that the ultimate

administration  with respect to  Delhi shall remain  with the

President acting through its administrator.

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 so far as 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 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.  

39

39. To reiterate the position that the President remains the

Executive head for all Union Territories, Mr. Singh has drawn

the  attention of the  Court to  Articles  53 and 73 read with

Article 246(4) of the  Constitution. It is further urged that

nowhere in the Constitution, including Articles 239A or

239AA, it has been stipulated that the executive power of a

Union Territory shall vest in the Council of

Ministers/Legislative  Assembly. It  has been argued that the

contention of the appellant that on the creation of Legislative

Assembly, there was an automatic investiture of executive

power on  the said Assembly  is flawed as  the  constitutional

scheme does not envisage any conferment of automatic power

on  the  Council of  Ministers.  Further, as the submission is

structured, Article 239AA(4) employs the phrase "Lieutenant

Governor and his Ministers" which implies that it is the

"Lieutenant Governor" and not the "Council of Ministers" who

is responsible  for the administration of the Union Territory.

That apart, the provisions of Articles 298, 299 and 239AB of

the Constitution and Section 52 of the 1991 Act also reiterate

40

the position that the Constitution does not stipulate any

automatic conferral of executive power and the same is echoed

in the Balakrishnan Committee Report.

40. The respondents contend that the contention of the

principle laid down in the judgment of Ram Jawaya Kapur

(supra),  that wherever there is existence of legislative power

there is co­extensive existence of executive power, is  with

respect to only the Union and the States and is not applicable

to Union Territories as the same would be against the

constitutional mandate as laid down in its various provisions.

41. The respondents, to further advance their arguments,

have pointed out the distinction between Articles 239AB and

356 of the Constitution and have submitted that Article 356

envisages that the President shall assume to himself the

functions of the State Government and the powers vested in

the Governor in case of failure of "constitutional machinery”

but in the case of Union Territories, this clause would become

inapplicable as the executive power of a Union Territory

remains vested  with the  President.  The respondents  would

41

further submit that Article 239AB does not stipulate any

"assumption of powers" by the President but merely provides

for suspension of  operation of  Article  239AA  in  the NCT of

Delhi in case the President is satisfied that it is necessary to

do so for the proper administration of NCT of Delhi.

42. The respondents, in their submissions,  also  point out

that a close reading of Article 239 with Article 239AA along

with Section 44 of the GNCTD Act, 1991 would reveal that the

expression "Executive action of the Lt. Governor" and not the

"Executive action of NCT of Delhi" has been stipulated in the

said provisions. The said intention can also be seen from the

fact that the phrase Lieutenant Governor "with the Ministers"

has been used in Section 44(1)(b) and further Article 239AA(4)

also engages the  phrase "his functions". This leads to the

implication that the extent of contribution/participation to be

made by the Council of  Ministers is only to render aid and

advice to the Lieutenant Governor.

43. It has been further submitted on behalf of the

respondents that the aid and advice rendered by the Council

42

of Ministers is not binding upon the Lieutenant Governor and

he is empowered to form an  opinion that  differs from  the

opinion of the Council of Ministers. In such a situation, the

proviso to  Article  239AA(4)  comes  into  play  which provides

that in case of such difference of opinion, the decision of the

President shall be final. Learned Additional Solicitor General

has stressed that this  is in recognition of the  fact  that  the

ultimate responsibility in relation to the administration of the

Union Territories lies with the Union and there is clear

demarcation of difference as regards the manner of

governance between States and Union Territories whereby in

case of the former, the  Governor is bound by the advice

tendered by the Council of Ministers.

44. The respondents further point out that a combined

reading of Article 239AA(4) and Section 41(2) of the 1991 Act

would suggest that when the question arises if a matter is one

where the Lieutenant Governor shall  exercise his discretion,

the decision of the Lieutenant Governor shall be final. Article

239AA(4) and the  proviso thereto is  not  an  exception  and,

43

hence, should not be given a restrictive  meaning and the

phrase "any matter" has been deliberately kept of the widest

import. To bring home the point, reliance has been placed on

the dictum laid down in  Tej Kiran Jain and others v. N.

Sanjiva Reddy and others11 where the word “anything” has

been said to  mean  "everything".  Therefore, the  phrase "any

matter" has to be interpreted to mean "every matter". The said

interpretation,  as  per the respondents,  would  be in  accord

with the  objective  of the  Constitution that the  Union  shall

retain the ultimate authority to legislate on any matter with

respect to the National Capital Territory of Delhi.

45. The respondents also submit that Article 239AA does not

contemplate a new scheme and it is similar to that envisaged

under Article 239A which pertains to the administration and

governance of the Union Territory of Puducherry. A

comparison of the scheme provided under Article 239, Article

239A read with the 1963 Act for Puducherry on one hand and

Article 239, Article 239AA read with the 1991 Act for Delhi on

11(1970) 2 SCC 272

44

the other hand would reveal that both the schemes are similar

to the  extent that the intention  is to retain  the continuing

control of the President and the Parliament for the executive

and legislative functioning of the Union Territories.

46. The respondents contend that Article 239AA, and in

particular, clause 4 of the said provision, is not the first of its

kind and a similar provision in the form of Section 44 existed

in the Government of Union Territories Act, 1963 and that the

issue of interpretation of this Section had come up before this

Court in several cases wherein it has been laid down that the

"State  Government"  with respect to  Union Territory  would

mean "Central Government" in terms of Section 3(60) of the

General Clauses Act. Hence, when a similar provision such as

Article 239AA(4) has already been given a certain

interpretation by this Court, then merely because of the fact

that special provisions have been placed in the Constitution

for the NCT of  Delhi,  which  is  not  so  in the case of  other

Union Territories, it shall not bar the Courts from adopting an

45

interpretation of Article 239AA which is similar to Section 44

of the 1963 Act.

47. The respondents finally submit that as per the

constitutional mandate, the ultimate responsibility with

respect to all matters governing the NCT of Delhi fall within

the  domain  of the  Union  Government. To  bolster the said

stand, the respondents  have  placed reliance  upon  relevant

portions of the Balakrishnan Committee Report and also

various other provisions of the Constitution of India and the

1991  Act. Further, the respondents argue that to devolve

exclusive legislative or exclusive executive power on the

Legislative  Assembly  or  Council of  Ministers  of the  NCT of

Delhi would result in elevating a Union Territory to the status

of a State, a demand which has been rejected by the

Constitution makers on several instances. That apart, it

would be impermissible under any interpretation of the

constitutional text and also contrary to the constitutional

mandate.

46

48. Before  we  dwell  upon  the submissions,  we  are  of the

considered view that we should state certain principles and

analyse certain constitutional concepts.  Frankly speaking, we

feel the necessity as we are really concerned with the

interpretation of a constitutional provision having regard to its

operational perspective in a democracy. We have said so in

the prelude. We do not think and we are not persuaded to

think that the present controversy can rest on either of the

extremes   propagated before  us.  We are  convinced  that  a

holistic approach  has to be adopted from a constitutional

vision which is bound to encapsulate crystalline realism.

C. Ideals/principles of representative governance:

49. Representative Governance in a Republican form of

democracy is a kind of democratic setup wherein the people of

a nation elect and choose their law making representatives.

The representatives so elected are entrusted by  the citizens

with the task of framing policies which are reflective of the will

of the electorate. The main purpose of a Representative

Government is to represent the public will, perception and the

47

popular sentiment into policies. The representatives, thus, act

on behalf of the people at large and remain accountable to the

people for their activities as lawmakers. Therefore,

representative  form of  governance comes out as a device to

bring to fore the popular will.

50. Bernard Manin in “The Principles of Representative

Government”12  has deliberated on the postulate that the

concept of representation  has its origin  around the  Middle

ages in the context of the church and in the context of cities in

their relation to the king or the emperor. The idea, as Manin

says, was to send out delegates having power to connect to

those who appointed them in the first place and there lies the

kernel of the concept of representation. This technique then

got transferred and used for other purposes.   

51. Thomas  Jefferson, in the  United  States  Declaration  of

Independence (1776), highlights on the stipulation that

governments derive their just powers from the consent of the

governed. This idea, simply put, reflects the concept of

12        Bernard Manin, The Principles of Representative Government, Cambridge University Press,          1997

48

representative governance. The cogent factors for constituting

the representative form of government are that all citizens are

regarded as equal  and the vote of  all  citizens,  which  is  the

source of governing power, is assigned equal weight. In this

sense, the views of all citizens carry the same strength and no

one can impose his/her views on others.

52. The Constitution of India has embraced the

representative  model of governance  at all levels, i.e., local,

State and the Union. Acknowledging the representative form of

governance adopted by our Constitution and the elected

representatives being the instruments for conveying the

popular will of the people, the Court in State of Bihar and

another v. Bal Mukund Sah and others13 has observed:­

"...Besides providing a quasi federal system in the country and envisaging the scheme for distribution of legislative powers between the State and the center, it emphasizes the establishment of the rule of law.  The form of Government envisaged under a parliamentary system of democracy is a representative democracy in which the people of the country are entitled to exercise their sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the executive,  namely, the  Council  of  Ministers

13(2000) 4 SCC 640

49

is         responsible. The legislature has been acknowledged to be a nerve center of the State activities. It is through parliament that elected representatives of the people ventilate people's grievances.

[Emphasis is ours]

53. Thus perceived, the people are the sovereign since they

exercise the power of adult franchise that ultimately builds the

structure of representative democracy. That apart, every

constituent of the sovereign is entitled to air his/her

grievances through their elected representatives. The twin idea

establishes the cornerstone of the precept of accountability to

the public because there rests the origin of power and

responsibility.

54. A representative form of government should not become a

government by elites where the representatives so elected do

nothing to give effect to the will of the sovereign. The elected

representatives must not have an ulterior motive for

representing  their  constituents and they should not  misuse

the popular mandate awarded to them by covertly

transforming it into ‘own rule’.   The inherent value of public

accountability can never be brushed aside.

50

55. Another ideal for representative governance is

accessibility and approachability. Since responsiveness to the

needs and demands of the people is the basic parameter for

evaluating the effectiveness of representative governance, it is

necessary that elected representatives develop a sense of

belonging with their constituents.   The sense of belonging has

its limitation also. If the desire of the constituent is rational

and draws strength  from legal  paradigms, it  deserves  to be

given due acceptance but if  the aspiration blows from some

illogical or unacceptable proposition, the same should not be

allowed any space. It  is because in a representative form of

government, aspirations and desires are canvassed and

propounded on the bedrock of constitutional principles.

Hence,  we  may  say that inherent  constitutional  aspirations

should draw inspiration from the Constitution. There can

never be sacrifice of constitutional conscience.  

56. Be it remembered, when elected representatives and

constitutional functionaries enter their office, they take oath

to  bear allegiance to the Constitution and uphold  the

51

Constitution. Thus, it is expected of them not only to remain

alive to the provisions of the Constitution but also to concepts

like constitutionalism, constitutional objectivity and

constitutional trust, etc. The support expressed by the

sovereign in the form of votes cannot become an excuse to

perform actions which fall foul to the Constitution or are ultra

vires. Though the elected representatives are expected to act

as instruments of transforming popular will into policies and

laws, yet they must do so within the contours of the

Constitution. They must display constitutional objectivity as a

standard of representative governance, for that is ingrained in

the conceptual democratic  majority  which  neither tolerates

ideological fragmentation nor encourages any kind of utopian

fantasy. It lays stress on  realizable constitutional ideologies.  

D. Constitutional morality:

57. Constitutional morality in its strictest sense of the term

implies strict and  complete  adherence to the constitutional

principles as enshrined in various segments of the document.

When a country is endowed with a Constitution, there is an

52

accompanying promise which stipulates that every member of

the country right from its citizens to the high constitutional

functionaries  must idolize the constitutional fundamentals.

This  duty  imposed by  the  Constitution stems  from the fact

that the Constitution is the indispensable foundational base

that functions as the guiding force to protect and ensure that

the democratic setup promised to the citizenry remains

unperturbed.  The constitutional functionaries  owe a  greater

degree of responsibility towards this eloquent instrument for it

is from this document that they derive their power and

authority and, as a natural corollary, they must ensure that

they cultivate and develop a spirit of constitutionalism where

every  action  taken by them  is  governed by  and  is in  strict

conformity with the basic tenets of the Constitution.  

58. In this context, the observations made by Dr. B.R.

Ambedkar are of great significance:­

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in

53

India is only a top­dressing on an Indian soil, which is essentially undemocratic.”14

59. Constitutional morality is that fulcrum which acts as an

essential check upon the high functionaries and citizens alike,

as experience has shown that  unbridled power without any

checks and balances would result in a despotic and tyrannical

situation which is antithetical to the very idea of democracy.

The following passage from Manoj Narula v. Union of India15

can aptly be quoted to throw some light on the idea:­

“If  men  were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the  government to  control the  governed;  and  in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has  taught mankind the necessity of auxiliary precautions.16”

60. In the said case, it has been further observed:­

“Regard being had to the aforesaid concept, it would not be out of place to state that

14Constituent Assembly Debates 1989: VII, 38. 15  (2014) 9 SCC 1 16James Madison as Publius, Federalist 51

54

institutional respectability and adoption of precautions for the  sustenance of  constitutional values would include reverence for the constitutional structure. It is always profitable to remember the  famous  line of  Laurence H. Tribe that a  Constitution is “written in blood, rather than ink”17.”

61. Constitutional morality acts as a check against lapses on

the part of the governmental agencies and colourable activities

aimed at affecting the democratic nature of polity. In

Krishnamoorthy  v.  Sivakumar and others18, it  has  been

explained thus:­

“Democracy,  which  has  been  best  defined  as the government of the people, by the people and for the people, expects  prevalence  of  genuine  orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.”

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

17Laurence H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008) 18(2015) 3 SCC 467

55

harmony  with the constitutional impulse.  We  may give an

example. When one is expressing an idea of generosity, he may

not be meeting the standard of  justness.   There may be an

element of  condescension.  But when one shows  justness  in

action, there is no feeling of any grant or generosity.  That will

come within the normative value. That is the test of

constitutional justness which falls within the sweep of

constitutional morality. It advocates the principle of

constitutional justness without subjective exposition of

generosity.   

E. Constitutional objectivity:

62. Our Constitution, in its grandness, resolutely embraces

the theory of "checks and balances". This concept of checks

and balances, in turn, gives birth to the principle of

"constitutional objectivity". The Constitution expects the

organs of the State adorned by high constitutional

functionaries that while discharging their duties, they remain

alive to the allegiance they bear to the Constitution. Neutrality

as  envisaged under the constitutional  scheme should guide

56

them in the performance of their duties and functions under

the Constitution. This is the trust which the  Constitution

reposes in them.  

63. The founding fathers of our Constitution had a vision for

our Nation whose ultimate aim was to make right the

upheaval that existed before setting  up of the  Constituent

Assembly. The concept of constitutional objectivity is, by itself,

inherent in this vision and it is incumbent upon the organs of

the State to make comprehensive efforts towards realization of

this vision. But, at the same time, they must remain true to

the Constitution by upholding the trust which the

Constitution places in them and thereby exhibit constitutional

objectivity in its truest sense. In Indra Sawhney v. Union of

India and others19, the Court observed:­

"...Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner."

19AIR 1993 SC 477

57

The aforesaid passage tells us in an illuminating manner

how the Court is expected to proceed on the path of judicial

creativity in consonance with constitutional objectivity having

a keen sense of pragmatism.  

64. It can be said without inviting any controversy that the

concept of constitutional objectivity has to be equally followed

by the Executive and the Legislature as it is the Constitution

from which they derive their power and, in turn, the

Constitution expects them to be  just and reasonable in the

exercise of such power. The decisions taken by constitutional

functionaries, in the discharge of their duties, must be based

on normative acceptability. Such decisions, thus, have to be in

accord with the principles of constitutional objectivity which,

as a lighthouse, will guide the authorities to take a

constitutionally right  decision.  This  action,  needless to  say,

would be in the spirit of the Constitution. It may be further

noted here that it is not only the decision itself but also the

process adopted in such decision making which should be in

tune with constitutional objectivity. A decision by a

58

constitutional functionary may, in the ultimate analysis,

withstand scrutiny but unless the process adopted for arriving

at such a decision is in tandem with the idea of constitutional

objectivity, it invites criticism. Therefore, the decision making

process should never by­pass the established norms and

conventions which are time tested and should affirm to the

idea of constitutionalism.

F. Constitutional governance and the conception of legitimate constitutional trust:

65. The concept of constitutional governance in a body polity

like ours, where the Constitution is the supreme fundamental

law, is  neither  hypothetical  nor  an  abstraction  but is real,

concrete and grounded. The word  'governance'  encapsulates

the idea of an administration, a governing body or

organization whereas the word 'constitutional' means

something sanctioned by or consistent with or operating under

the fundamental organic law, i.e., the Constitution. Thus, the

word 'governance' when qualified by the term 'constitutional'

conveys a form of governance/government which adheres to

the concept of constitutionalism. The said form of governance

59

is sanctioned by the Constitution itself, its functions are

consistent  with the  Constitution  and  it operates  under the

aegis of the Constitution.

66. According to Encyclopedia Britannica, “Constitutional

Government” means:­

"...the existence of a constitution—which may be a legal instrument or merely a set of fixed norms or principles generally accepted as the fundamental law of the polity—that effectively controls the exercise of political power. The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state...."

67. It is axiomatic that the Constitution of India is the

suprema lex, i.e., the paramount law of the land. All the three

wings of the State, i.e., the legislature, the judiciary and the

executive derive their power and authority from the

Constitution. It is the Constitution which endows the requisite

amount of oxygen and other necessary supplies  which, in

turn, enable these organs to work for the betterment of the

nation and the body polity.  In the context of the supremacy of

60

the Constitution, the Court in Kalpana Mehta and others v.

Union of India and others20 has laid down:­

"The Constitution of India is the supreme fundamental law and all laws have to be in consonance or in accord with the Constitution. The constitutional provisions postulate the conditions for the functioning of the legislature and the executive and prescribe that the Supreme Court is the final interpreter of the Constitution. All statutory laws are required to conform to the fundamental law, that is, the Constitution. The functionaries of the three wings, namely, the legislature, the executive and the judiciary, as has been stated  in     His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another   21   . derive their authority and jurisdiction from the Constitution.  The Parliament has the exclusive authority to make laws and that is how the supremacy of the Parliament in the field of legislation is understood. There is a distinction between parliamentary supremacy in the field of legislation and constitutional supremacy.  The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values  which are inhered in various articles and sometimes are decipherable from the constitutional silence.  Its inherent dynamism  makes it organic and, therefore, the concept of —constitutional sovereignty is sacrosanct.  It is extremely sacred and, as stated earlier, the authorities get their powers from  the  Constitution. It is  —the source.

20(2018) 7 SCALE 106 21AIR 1973 SC 1461 : (1973) 4 SCC 225

61

Sometimes, the constitutional sovereignty is described as the supremacy of the Constitution.

[Emphasis is ours]

68. Thus, the concept of constitutional governance is a

natural consequent of the doctrine of constitutional

sovereignty.   The  writings of Locke and  Montesquieu also

throw light on the concept of constitutional governance. Locke

lays stress on the fiduciary nature of public power and argues

that sovereignty lies  with the people.  Montesquieu, on the

other hand, in his postulate of constitutional governance, has

laid more stress on the system of "checks and balances" and

"separation of powers" between the executive, legislature and

the judiciary. According to the ideas of Montesquieu, it can be

said that constitutional governance involves the denial of

absolute power to any one organ of the State and a system of

checks and balances is the basic foundation of constitutional

governance. In constitutional form of  Government,  power  is

distributed amongst the three organs of the State in such a

way that the constitutional goal as set out in the Preamble of

our Constitution is realised.

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69. The postulates laid by Locke and Montesquieu are

inherent in our constitutional scheme and  have also been

recognized by the Court. Therefore, it can safely be said that

the nomenclature of constitutional governance has at its very

base a Constitution which is the supreme law of the land and

the conception, in  its  width,  embraces two more  ideas, i.e.,

fiduciary nature of public power and the system of checks and

balances.

70. We may hasten to add that the Court, while interpreting

various provisions of the Constitution on different occasions,

has always been alive to the concept of constitutional

governance. In B.R. Kapur v. State of T.N. and another22,

the  majority,  while  dealing  with the issue  of  a  writ of  quo

warranto, ruled that if a non­legislator could be sworn in as

the Chief Minister under Article 164 of the Constitution, then

he or she must satisfy the qualification of membership of a

legislator as provided under Article 173. Recently,  in  Manoj

22(2001) 7 SCC 231

63

Narula  (supra), while interpreting Article 75(1) of the

Constitution, the Court observed:­

"...In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance."

[Emphasis is ours]

71. The provisions of the  Constitution  need  not expressly

stipulate the concepts of constitutionalism, constitutional

governance or constitutional trust and morality, rather these

norms and values are inherent in various articles of the

Constitution and sometimes are decipherable from the

constitutional silences as has been held in  Kalpana Mehta

(supra).

72. Having discussed about the concept of constitutional

governance, in the obtaining situation, we may allude to the

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conception of legitimate constitutional trust. In  this regard,

the speech of Dr. Ambedkar reflects his concern:­

"I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile."

73. In  Re: Dr. Ram Ashray Yadav, Chairman, Bihar

Public Service Commission23, the Court discussed the role of

the  members of Public Service Commissions and, treating

them as constitutional trustees, observed that the credibility of

the institution of Public Service Commission is founded upon

the faith of the common man on its proper functioning. The

faith would be eroded and confidence destroyed if it appears

that the  Chairman or the  Members  of the  Commission  act

subjectively and not objectively.  In  Subhash Sharma and

others and Firdauz Taleyarkhan v.  Union of India and

another24,  in the  context  of  appointment  of  Judges, it  has

23(2000) 4 SCC 309 241990 (2) SCALE 836

65

been stated that it "is essentially a discharge of a

constitutional trust of which certain constitutional

functionaries are collectively repositories."

74. The framers of the Constitution also did recognize that

the adoption of the Constitution would not  ipso facto, like a

magic wand, instill in the countrymen the values of

constitutionalism. The founding fathers expected that

constitutional functionaries  who  derive their  authority from

the Constitution shall always remain sincerely obeisant to the

Constitution. The Court in  Manoj Narula  (supra),  while

highlighting the responsibility conferred on the Prime Minister

under the Constitution, discussed the doctrine of

constitutional trust and, in that context, reproduced  what

Edmund Burke had said centuries ago:­

"All persons possessing any portion of power ought to be strongly and awfully impressed with the idea that they act in trust: and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society."

75. Thereafter, the Court went on to state:­

66

"This  Court, in re  Art.  143,  Constitution of India and Delhi Laws Act (1912)25, opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that accordingly, the Legislature cannot be permitted to abdicate its  primary duty, viz. to determine  what the law shall be. Though it  was stated in the context of exercise of legislative power, yet the same has signification in the present context, for in a representative democracy, the doctrine of constitutional trust has to be envisaged in every high constitutional functionary."

76. The Court further observed:­

"...  we shall  proceed to  deal  with the  doctrine  of "constitutional trust". The issue of constitutional trust arises in the context of the debate in the Constituent Assembly that had taken place pertaining to the recommendation for appointment of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested by Prof.  K.T. Shah  with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr. B.R. Ambedkar had replied: ­

"His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it

25AIR 1951 SC 332

67

not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature  and  the  public  at large  watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which  may eminently be left to the good­ sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary."

And again:­

“98. From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The  use of the words “on the advice of the Prime Minister” cannot be allowed to operate in a vacuum  to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur case. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly

68

fructified. The Framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.

x x x x x

100. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against  whom  charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council  of  Ministers.  This  is  what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the  wisdom of the Prime Minister. We say nothing more, nothing less.”

77.  The Constitution of India, as stated earlier, is an organic

document that requires all its functionaries to observe, apply

and protect the  constitutional  values  spelt  out  by  it.  These

values constitute the constitutional morality. This makes the

Constitution of India a political document that organizes the

governance of Indian society through specific functionaries for

requisite ends in an appropriate manner. The constitutional

69

culture stands on the fulcrum of these values.  The element of

trust is an imperative between constitutional functionaries so

that Governments can work in accordance with constitutional

norms. It  may  be stated  with  definiteness that  when such

functionaries exercise their power under the Constitution, the

sustenance of the values that usher in the foundation of

constitutional governance should remain as the principal

motto. There  has to be implicit institutional trust between

such functionaries. We shall elaborate the functional aspect of

this principle  when  we scan the language employed  under

Article 239AA and other adjunct articles to decipher the true

purpose of the said provision from the perspective of the

workability of the Constitution in the sphere of governance.

G. Collective responsibility:

78. In the Constituent Assembly Debates, Dr. B.R. Ambedkar

spoke thus on collective responsibility:­

"I  want to tell  my friend Prof.  K.T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility.  All  Members of the House are very keen that the Cabinet should work on the basis of collective responsibility and all agree that is a very

70

sound principle. But I do not know how  many Members of the House realise what exactly  is the machinery by which collective responsibility is enforced.  Obviously, there cannot be a statutory remedy.  Supposing  a  Minister  differed  from other Members of the Cabinet and gave expression to his views which were opposed to the views of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility.  Obviously, there cannot  be a legal sanction for collective responsibility. The only sanction through which collective responsibility can be enforced  is  through the Prime Minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One principle is that no person shall be nominated to the Cabinet except on the advice of the Prime Minister. Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way of giving effect to that principle.

Supposing you have no Prime Minister; what would really happen?  What  would happen is this, that every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is no ad idem with a particular Cabinet, to deal with each Minister separately singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the British

71

Parliament you remember how the English King used to disrupt the British Cabinet. He had what was  called  a  Party  of  King's  Friends  both in the Cabinet as well as in Parliament. That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility."

79. In  State of Karnataka v. Union of India and

another26,   the Court, after reproducing a few passages from

Sir Ivor Jennings and Mr. Joseph Chamberlain, observed:­

"...The following discussion on the subject in "Representative and Responsible Government" by A. H. Birch will be found useful in this connection:­

"Ministerial accountability to  Parliament  has two aspects : the collective responsibility of Ministers for the  policies  of the  Government and their individual responsibility for the work of their departments. Both forms of responsibility are embodied in conventions which cannot be legally enforced. Both conventions were developed during the nineteenth century, and in both cases the practice  was established  before the doctrine was announced (page 131)."”

26(1978) 2 SCR 1

72

80. In  "Government and Law" by T.  C.  Hartley and J.A.G.

Griffith27, the position in regard to the collective responsibility

of Ministers to the Legislature is tersely stated as under:­

"Ministers are said to be collectively responsible. This is  often elevated by  writers to the level  of  a 'doctrine' but is in truth little more than a political practice which is commonplace and inevitable. Ordinarily,  Ministers form the governmental  team, all being appointed by the Prime Minister from one political party.  A  Cabinet  Minister  deals  with  his own area of policy and does not normally have much to do with the area of other Ministers. Certainly no  Cabinet  Minister  would be likely to make public statements which impinged on the work  of another  Minister's  department.  On a few important issues, policy is determined by the Cabinet after discussion. Collective responsibility means that Cabinet decisions bind all Cabinet Ministers, even if they argued in the opposite direction in Cabinet. But this is to say no more than a Cabinet Minister who finds himself in a minority must either accept the majority view or resign. The team must not be weakened by some of its members making clear in public that they disapprove of the Government's policy. And obviously what is true for Cabinet Ministers is even more true for other Ministers. If they do not like what the team is doing, they must either keep quiet or leave."

81.  Speaking   on   collective   responsibility, the  Court   in

the   case   of  R.K.  Jain v. Union of India and

27        Hartley  T.C.  and  Griffith  J.A.G.,  Government  and  Law;  an introduction to the working of the          Constitution in Britain 2nd edition, 1981 London; Weidenfeld and Nicholson

73

others28  has  opined  that  each member  of the  Cabinet  has

personal responsibility to his conscience and also

responsibility to the Government. Discussion and persuasion

may diminish disagreement, reach unanimity, or leave it

unaltered. Despite persistence of disagreement, it is a

decision,  though some members  like  less than others. Both

practical politics and good government require that those who

like it less must still publicly support it. If such support is too

great a strain on a Minister's conscience or incompatible with

his/her perceptions of commitment and he/she finds it

difficult to support the decision, it would be open to him/her

to resign. So, the price of acceptance of Cabinet office is the

assumption of responsibility to support Cabinet decisions and,

therefore, the burden of that responsibility is shared by all.

82. In  Common Cause, A Registered Society v. Union of

India  and others29,  the Court, explaining the concept of

collective responsibility, stated:­

"30. The concept of "collective responsibility" is essentially a political concept. The country is

28(1993) 3 SCR 802 29(1999) 6 SCC 667

74

governed by the party in power on the basis of the policies adopted and laid down by it in the Cabinet Meeting. "Collecting Responsibility" has two meanings : The first meaning which can legitimately be ascribed to it is that all members of a Govt, are unanimous in support of its policies and  would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the  meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.”

83. The principle of collective responsibility is of immense

significance in the context of ‘aid and advice’ of the Council of

Ministers. The submission of the learned counsel of the

appellant is that  when after due deliberation between the

Chief  Minister and the Council of  Ministers a decision is

taken, but the same is not given effect to because of

interdiction of the Lieutenant Governor, the value of collective

responsibility that eventually gets transformed into a Cabinet

decision stands absolutely denuded. It is emphatically

submitted that if the collective responsibility of the Council of

Ministers  is  not given the expected weightage, there will  be

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corrosion of the essential feature of representative

government.

H. Federal functionalism and democracy:

84. Democracy is a form of government  where the  people

rule. Aristotle viewed democracy as a form of government in

which the supreme powers are in the hands of freemen and

where people form a majority in an elected sovereign

government to exercise some role in decision making. Thomas

Jefferson defined democracy as a "government by its citizens

in  mass, acting directly and  personally, according to rules

established by the majority". Abraham Lincoln defined

democracy as “a government of the people, by the people, and

for the people”. The Black's Law Dictionary defines democracy

as:­

"That form of  government in  which the  sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people."30

30Black's Law Dictionary 6th Edition Pg. 432

76

85. The Preamble to our Constitution, at the outset,

proclaims that India is a sovereign democratic republic. The

citizens of India are the sovereign and participate in the

process of governance by exercising their virtuous right to vote

under the system of universal adult suffrage. The citizens elect

their representatives  and send  them to the  Parliament  and

State Legislatures  for  enacting  laws and shaping policies at

the Union and State level respectively which are reflective of

the popular will of the collective.

86. The parliamentary form of democracy as envisaged by the

Constitution has at its  very base  the power bestowed upon

people to vote and make the legislature accountable for their

functioning to the people. If the legislature fails to transform

the popular will of the people into policies and laws, the people

in a democracy like ours have the power to elect new

representatives by exercise of their vote. The political equality

makes people aware of their right  in unison and there  is  a

consistent endeavour to achieve the same.

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87. In this context, we may turn to a passage from Mohinder

Singh Gill and another v. Chief Election Commissioner,

New Delhi and others31 wherein Krishna Iyer, J. quoted with

approval the statement of Sir Winston Churchill  which is to

the following effect:­  

"At the bottom of all tributes paid to democracy is the little  man,  walking into  a little  booth,  with  a little pencil,  making a little cross on a little bit of paper ­ no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."

88. Thus, democratic set up has its limbs firmly entrenched

in the ability of the people to elect their representatives and

the faith that the representatives so elected will best represent

their interest. Though this right to vote is not a fundamental

right, yet it is a right that lies at the heart of democratic form

of government. The right to vote is the most cherished value of

democracy as it inculcates in the people a sense of belonging.

In Raghbir Singh Gill v.  S. Gurcharan Singh Tohra32, the

learned Judges, after referring to Mohinder Singh Gill's case,

31AIR 1978 SC 851 32AIR 1980 SC 1362

78

stated that nothing can diminish the overwhelming

importance of the cross or preference indicated by the dumb

sealed lip voter. That is his right and the trust reposed by the

Constitution in him is that he will act as a responsible citizen

in choosing his representatives for governing the country.

89. The aforesaid situation warrants for reciprocative

functionalism by thought, action and conduct.  It requires the

elected representatives to uphold the faith which the collective

have reposed in them.  Any  undue interference  amounts to

betrayal of the faith of the collective in fulfilment of their

aspirations  of  democratic self­governance. In  Kesavananda

Bharati  (supra),  it has been observed that the two basic

postulates of democracy are faith in human reason and faith

in human nature and that there is no higher faith than faith in

democratic process. The Court further stated that democracy

on adult suffrage is a great experiment with its roots in the

faith in the common man.   P. Jaganmohan Reddy, J., in his

opinion,  stated that the  republican and democratic form of

government is a part of the basic structure of the Constitution

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and the Parliament has no power to abrogate or emasculate

the basic elements or fundamental features of the Constitution

such as the sovereignty of India and the democratic character

of our polity. Further, he stated that the framers of the

Constitution adopted a sovereign democratic republic to

secure for the citizens of India the objectives of justice, liberty

and equality as set out in the Preamble to our Constitution.

90. Dealing with the concept of democracy, the majority in

Indira Nehru Gandhi v. Raj Narain33 ruled that 'democracy'

as an essential feature of the Constitution is unassailable. The

said  principle  has  been reiterated  in  T.N.  Seshan,  CEC of

India v. Union of India and others.34 and Kuldip Nayar v.

Union of India others.35.  When it is conceived that

democracy is a part of the basic structure of the Constitution,

the essential value of democracy has to be condignly

understood and that is why we have referred to certain

precedents.  The correctness or fallacy of the interpretation of

33AIR 1975 SC 2299 34(1995) 4 SCC 611 35AIR 2006 SC 3127

80

Articles 239 to 239AB would depend upon our appreciation of

democratic form of government in a mature body polity.   

91. The Court in  Manoj Narula    (supra), while delineating

the  concept  of  democracy, stated that  democracy  has  been

best defined as the Government of the People, by the People

and for the People, which expects prevalence of genuine

orderliness, positive propriety, dedicated discipline and

sanguine sanctity by constant affirmance of constitutional

morality which is the pillar stone of good governance. Further,

it is stated that democracy in India is a product of rule of law

which aspires to establish an egalitarian social order and that

it is not only a political philosophy but also an embodiment of

constitutional philosophy. Democracy being a cherished

constitutional value needs to be protected, preserved and

sustained and for that purpose, instilment of certain norms in

the marrows of the collective is absolutely necessitous. In the

said case, the Court, while emphasizing that good governance

is a sine qua non for a healthy democracy, stated thus:­

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"In a democracy, the citizens legitimately expect that the  Government of the day  would treat the public interest as primary one and any other interest secondary. The maxim  Salus Populi Suprema Lex,  has not only to be kept in view but also has  to be revered.  The  faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for Fundamental Rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation  of accountability to the collective at large. It also conveys that the decisions are taken  by the  decision  making  authority  with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not an Utopian conception or an abstraction. It  has been the demand of the polity wherever democracy is nourished.  The growth of democracy is dependant upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation."

[Emphasis supplied]

92. Now, we shall proceed to discuss the concept of

federalism in the context of the Constitution of India.

Encyclopedia Britannica defines federalism as:­

"Federalism, mode of political organization that unites separate states  or  other  polities  within  an overarching  political system  in such  a  way  as to allow each to maintain its own fundamental political integrity. Federal systems do this by requiring that

82

basic  policies  be  made  and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties."

93. In common parlance, federalism is a type of governance

in  which the political power is divided into various units.

These units are the Centre/Union, States and Municipalities.

Traditional jurists like Prof. K.C. Wheare lay emphasis on the

independent functioning of different governing units and,

thus, define federalism as a method of dividing powers so that

the general/central and regional governments are each within

a sphere co­ordinate and  independent.  As per  Prof.  Wheare

"the systems of Government embody predominantly on

division of powers between Centre and regional authority each

of  which in its own sphere is coordinating  with the other

independent as of them, and if so is that Government

federal?"36

36Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33

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94. However,  modern jurists lay emphasis on the idea of

interdependence and define federalism as a form of

government in which there is division of powers between one

general/central and several regional authorities, each within

its sphere interdependent and co­ordinate with each other.

95. The framers of our Constitution, during debates in the

Constituent Assembly on the draft Constitution, held elaborate

discussions on whether to adopt a unitary system of

government or federal system of government. During the

Constituent Assembly debates, Shri T.T. Krishnamachari

said:­

“...Are  we framing  a  unitary  Constitution? Is this Constitution centralizing  power in  Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to  matters of their local administration?  I think it is  a  very  big  charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back.”

“I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple

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question I have got from the German school of political philosophy is that the first criterion is that the  State  must exercise compulsive  power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are 'must not be completely circumscribed', which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in  which  we have given power to the  Units which are  both substantial  and significant in the legislative sphere and in the executive sphere.”

96. In this context, Dr. B.R. Ambedkar, speaking on the floor

of the Constituent Assembly, said:­

"There is only one point of Constitutional import to which   I  propose to  make  a reference.  A serious complaint is  made on the ground that there is too much of centralization and that the States have been reduced to  Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution,  are in no way dependent

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upon the  Centre for their legislative or executive authority. The Centre and the States are co­equal in this matter. It is difficult to see how such a Constitution can  be called centralism. It  may  be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution."

97. The Court in In re: Under Article 143, Constitution of

India, (Special Reference No. 1 of 1964)37 observed that the

essential characteristic of federalism is the distribution of

limited executive, legislative and judicial authority among

bodies  which  are coordinate  with  and independent  of each

other.  Further, the  Court  stated  that the  supremacy of the

Constitution is fundamental to the existence of a federal State

in order to prevent either the legislature of the federal unit or

those of the member States from destroying or impairing that

delicate balance of power which satisfies the particular

requirements of States which are desirous of union, but not

37AIR 1965 SC 745

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prepared to merge their individuality in a unity. This

supremacy of the Constitution, the Court stated, is protected

by the authority of an independent judicial body to act as the

interpreter of a scheme of distribution of powers and, thus, the

dominant characteristic of the British Constitution cannot be

claimed by a Federal Constitution like ours.

98. Gajendragadkar, C.J., in the said case, observed that our

Constitution has all the essential elements of a federal

structure  as  was the case in the  Government  of India  Act

1935, the essence of federalism being the distribution of

powers between the federation or the Union and the States or

the provinces.  In  State of  Karnataka v.  Union  of India

(supra),  Untwalia, J. (speaking for Justice  Singhal, Justice

Jaswant Singh and for himself) observed that the Constitution

is not of a federal character where separate, independent and

sovereign States could be said to have joined to form a nation

as in the United States of America or as may be the position in

some other countries of the world. It is because of this reason

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that sometimes it has been characterized as quasi­federal in

nature.

99. In  Shamsher Singh  (supra),  this  Court  held that  our

founding fathers accepted the parliamentary system of quasi­

federalism while rejecting the substance of Presidential style of

Executive. Dr. Ambedkar stated on the floor of the Constituent

Assembly that the  Constitution is "both  unitary  as  well as

federal according to the requirement of time and

circumstances". He further stated that the Centre would work

for the common good and for the general interest of the

country as a whole while the States would work for the local

interest. He also refuted the plea for exclusive autonomy of the

States.

100. In  S.R. Bommai v. Union of India38,  the  Court

considered the nature of federalism under the Constitution of

India. A.M. Ahmadi, J. (as the learned Judge then was)

observed:­

"In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls  it  a political  contrivance

38(1994) 3 SCC 1

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for  a  body  of  States  which  desire  Union  but  not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member­States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution  of powers  between them.  Federalism, therefore, essentially implies demarcation of powers in a federal compact."

101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh,

J.) opined that the States are constitutionally recognised units

and not mere convenient administrative divisions as both the

Union and the States have sprung from the provisions of the

Constitution. After quoting extensively from  H.M. Seervai's

commentary ­ Constitutional Law of India, he expressed thus:­

"99. The above discussion thus shows that the States have an independent constitutional existence and they have as  important a role to play  in  the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution.  They  are exceptions and have to  be

89

resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule. 100. For our purpose, further it is really not necessary to determine whether, in spite of the provisions of the Constitution referred to above, our Constitution is  federal,  quasi­federal or unitary  in nature. It is not the theoretical label given to the Constitution  but the  practical implications of the provisions of the Constitution which are of importance to decide the question that arises in the present context, viz., whether the powers under Article 356(1) can be exercised by the President arbitrarily and unmindful of its consequences to the governance in the State concerned. So long as the States are not mere administrative units but in their own right constitutional potentates with the same paraphernalia as the Union, and with independent Legislature and the Executive constituted by the same process as  the  Union,  whatever the bias  in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labeled unitary or quasi­federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1).”

102. K. Ramaswami, J.,  in paragraphs 247 and 248 of his

separate judgment, observed:­

"247.  Federalism envisaged  in  the  Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law  made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its

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boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi­federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio­economic  and  political justice to the people, to preserve and elongate the constitutional goals including secularism. 248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal  structure,  unity and  integrity of the nation,  secularism, socialism, social justice and judicial review are basic features of the Constitution."

103. B.P. Jeevan  Reddy,  J.,  writing  a separate opinion (for

himself and on behalf of S.C. Agrawal, J.), concluded in

paragraph 276 thus:­

"276. The fact that under the scheme of our Constitution,  greater  power is  conferred upon the Centre vis­a­vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them,  States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an

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approach, an interpretation, which has the effect of or tends  to  have the  effect  of  whittling  down  the powers reserved to the States. It is a  matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even In USA the Centre has become far more powerful notwithstanding the obvious bias  in that Constitution in favour of  the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground  realities.  This  aspect  has  been  dealt  with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures "Union and State relations under the Indian Constitution" (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible nor is it necessary for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis­a­vis the States..."

104. In  ITC Ltd. v. Agricultural Produce Market

Committee39,  the  Court observed that the Constitution of

India  deserves to be interpreted, language permitting, in a

39(2002) 9 SCC 23

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manner that it does not whittle down the powers of the State

Legislature and preserves federalism while also upholding the

central supremacy as contemplated by some of its articles.

105. In Kuldip Nayar  (supra), the Court, while dealing with

the question of state domicile for elections to the Rajya Sabha,

opined that it is true that the federal principle is dominant in

our  Constitution  and the said  principle is one  of its  basic

features but it is equally true that federalism under the Indian

Constitution leans in favour of a strong Centre, a feature that

militates against the concept of strong federalism. Some of the

provisions that can be referred to in this context include the

power of the Union to deal with extraordinary situations such

as during emergency and in the event of a proclamation being

issued under Article 356 that the governance of a State cannot

be carried on in accordance with the provisions of the

Constitution; the power of the Parliament to legislate  with

respect to a matter in the State List in the national interest in

case there is a resolution of the Council of States supported by

prescribed majority; the power of the Parliament to provide for

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the creation and regulation of All India Services common to

the Union and the States in case there is a resolution of the

Council of States supported by not less than two­thirds

majority; the  existence  of  only  one  citizenship,  namely, the

citizenship of India; and, perhaps most important, the power

of the Parliament in relation to the formation of new States

and alteration of areas, boundaries or names of States.

106. From the foregoing discussion, it is clear as day that both

the concepts, namely, democracy, i.e., rule by the people and

federalism are firmly imbibed in our constitutional ethos.

Whatever be  the nature of federalism present  in  the  Indian

Constitution, whether absolutely federal or quasi­federal, the

fact  of the  matter is that federalism  is  a  part  of the  basic

structure of our Constitution as every State is a constituent

unit which has an exclusive Legislature and Executive elected

and constituted by  the same process  as  in the  case of the

Union Government. The resultant effect is that one can

perceive the distinct aim to preserve and protect the unity and

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the territorial integrity of India. This is a special feature of our

constitutional federalism.  

107. It is self­evident that there is a meaningful orchestration

between the concepts of federalism and nature of democracy

present in our Constitution. It would not be a fallacious

metaphor if  we say that  just as  in a fusion reaction two or

more atomic nuclei come together to form a bigger and heavier

nucleus, the founding fathers of our Constitution envisaged a

fusion of federalism and democracy in the quest for achieving

an egalitarian social order, a classical unity in a

contemporaneous diversity. The vision of diversity in unity and

the perception of plurality in eventual cohesiveness is

embedded  in  the  final  outcome of the desire  to achieve  the

accomplished goal through constitutional process. The

meeting of the diversity in unity without losing identity is a

remarkable synthesis that the Constitution conceives without

even permitting the slightest contrivance or adroitness.  

I. Collaborative federalism:

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108. The  Constituent Assembly, while devising the federal

character of our Constitution, could have never envisaged that

the Union Government and the State Governments would

work in tangent. It could  never  have  been the  Constituent

Assembly’s intention that under the garb of quasi­federal tone

of our Constitution, the Union Government would affect the

interest of the States. Similarly, the States under our

constitutional scheme  were not carved as separate islands

each having a distinct vision which would unnecessarily open

the doors for a contrarian principle or gradually put a step to

invite anarchism. Rather, the vision enshrined in the Preamble

to our Constitution, i.e., to achieve the golden goals of justice,

liberty, equality and fraternity, beckons both the Union

Government and the State Governments, alike. The ultimate

aim is to have a holistic structure.  

109. The aforesaid idea, in turn, calls for coordination

amongst the  Union and  the  State  Governments.  The  Union

and  the  States  need  to  embrace  a  collaborative/cooperative

federal architecture for achieving this coordination.

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110. Corwin, an eminent thinker,  in the context of the United

States, coined the term 'Collaborative Federalism' and defined

it as:­

“...the National Government and the States are mutually complementary parts of a single governmental  mechanism all  of  whose powers are intended to realize the current purposes of government.”40

111. The U.S. Supreme Court in   Carmichael v. S. Coal &

Coke Co.41  propounded that  a State Unemployment Statute

had not been coerced by the adoption of the Social Security

Act and the United States and the State of Alabama are not

alien governments but they coexist within the same territory.

Unemployment within it is their common concern. The U.S.

Supreme Court further observed that the two statutes embody

a cooperative legislative effort by the State and National

governments for carrying  out  a  public  purpose common  to

both, which neither could fully achieve without the

cooperation of the other and the Constitution does not prohibit

such cooperation.

40Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950) 41301 U.S. 495, 525 – 26 (1937)

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112. Geoffrey  Sawer  proposes that  cooperative federalism  is

evidenced by the following characteristics: ‘each of the parties

to the arrangement has a reasonable degree of autonomy, can

bargain about the terms of cooperation, and at least if driven

too hard, decline to cooperate’42.

113. Later, Cameron and Simeon described "collaborative

federalism," as:­

“[T]he process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the governments and the territories acting collectively.”43

Although the said statement of  law may not be strictly

applicable, yet the need for co­operation to sustain the federal

structure has its own importance as an idea.  

114. Thus, the Union and the State Governments should

always work  in harmony avoiding  constitutional  discord. In

such  a collaboration, the  national vision  as set out in the

Preamble to our Constitution gets realized. The methods and

42  Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1. 43          Cameron, D. and Simeon, R. 2002. Intergovernmental relations in

Canada: The emergence of collaborative federalism. Publius , 32(2):49– 72

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approach for the governments of the Union and the States may

sometimes  be different  but the  ultimate goal and  objective

always remain the same and the governments at different

levels should  not lose sight of the  ultimate objective. This

constitutional objective as enshrined in the Constitution

should be the guiding star to them to move on the path of

harmonious co­existence and  interdependence.  They are the

basic tenets of collaborative federalism to sustain the strength

of constitutional functionalism in a Welfare State.  

115. In a Welfare State, there is a great necessity of

collaborative federalism. Martin Painter, a leading Australian

proponent of collaborative federalism, lays  more stress on

negotiations for achieving common goals amongst different

levels of governments and, thus, says:­

“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation  for  achieving  the common aims and resolving the outstanding problems.” 44

44 Martin Painter, Collaborative federalism: Economic reform in Australia in the  1990s. Cambridge University Press, 2009.

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116. In the Australian context,  Prof.  Nicholas Aroney in his

book45 has said:­

"Rather than displaying a strictly defined distribution of responsibility  between two or more “co­ordinate” levels of government, federal systems tend in practice to resemble something more like a “marble cake”, in which governmental functions are shared between various governmental actors within the context of an ever­shifting set of parameters shaped by processes of negotiation, compromise and, at times, cooperation.”

117. Thus, the idea behind the concept of collaborative

federalism is negotiation and coordination so as to iron out the

differences which may arise between the Union and the State

Governments in their respective pursuits of development. The

Union Government and the State Governments should

endeavour to address the common problems with the intention

to arrive at a solution by showing statesmanship, combined

action and sincere cooperation.   In collaborative federalism,

the  Union and  the State  Governments should express  their

readiness to achieve the common objective and work together

for achieving it. In a functional Constitution, the authorities

45 Prof.  Nicholas Aroney, The Constitution of a Federal  Commonwealth: The Making and Meaning of the Australian Constitution, 2009

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should exhibit sincere concern to avoid any conflict. This

concept has to be borne in mind when both intend to rely on

the constitutional provision as the source of authority. We are

absolutely  unequivocal that  both the Centre  and the States

must work within their spheres and not think of any

encroachment. But in the context of exercise of authority

within their spheres, there should  be  perception  of  mature

statesmanship so that the constitutionally bestowed

responsibilities are shared by them. Such an approach

requires continuous and seamless interaction between the

Union and the State Governments. We may hasten to add that

this idea of collaborative federalism would be more clear when

we understand the very essence of the special status of NCT of

Delhi and the power conferred on the Chief Minister and the

Council of  Ministers on the one hand and the Lieutenant

Governor on the other by the Constitution.   

118. The idea of cooperative/collaborative  federalism is also

not new to India.  M.P. Jain in his book46, in a different

manner, sets forth the perception thus:­  

46M.P. Jain, Some aspects of Indian federalism, 1968

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“Though the Constitution provides adequate powers to the Centre to fulfil its role, yet, in actual practice, the Centre can maintain its dynamism and initiative not through a show of its powers — which should be exercised only as a last resort in a demonstrable   necessity — but on the cooperation of the States secured through the process of discussion, persuasion and   compromises. All governments have to appreciate the essential point that they are not independent but interdependent, that they should act not at cross­ purposes but in union for the maximisation of the common good.”  

119. In State of Rajasthan and others v. Union of India47,

the Court took cognizance of the concept of cooperative

federalism as perceived by G. Austin and A.H Birch when it

observed:­

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

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

47 (1978) 1 SCR 1

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120. We have dealt with the conceptual essentiality of federal

cooperation as that has an affirmative role on the sustenance

of constitutional philosophy.  We may further add that though

the authorities referred to  hereinabove  pertain to  Union of

India and State Governments in the constitutional sense of the

term “State”, yet the concept has applicability to the NCT of

Delhi regard being had to its special status and language

employed in Article 239AA and other articles.  

J. Pragmatic federalism:

121. In this context, we may also deal with an ancillary issue,

namely, pragmatic federalism. To appreciate the said concept,

we are  required to analyse  the  nature of federalism that is

conceived under the Constitution.  Be  it  noted,  the essential

characteristics of federalism like duality of governments,

distribution of powers between the Union and the State

Governments,  supremacy of the Constitution,  existence of  a

written  Constitution and most importantly,  authority  of the

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Courts  as final interpreters of  the Constitution are all present

under our constitutional scheme. But at the same time, the

Constitution has certain features which can very well be

perceived as deviations from the  federal character. We may, in

brief,  indicate some of these features to underscore the fact

that though our Constitution broadly has a federal character,

yet it still has certain striking  unitary features too.  Under

Article 3 of the Constitution, the Parliament can alter or

change the areas, boundaries or names of the States. During

emergency, the Union Parliament is empowered to make laws

in relation to matters under the State List, give directions to

the States and empower Union officers to execute matters in

the State List.   That apart, in case of inconsistency between

the Union and the State  laws, the Union Law shall  prevail.

Additionally, a Governor of a State is empowered to reserve the

bill  passed by the State Legislature  for  consideration of the

President and the President is not bound to give his assent to

such a bill. Further, a State Legislature can be dissolved and

President’s rule can be imposed in a State either on the report

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of the  Governor or otherwise  when there is failure of the

constitutional machinery in the State.  

122. We have referred to the above aspects to lay stress on the

'quasi­federal' nature of our Constitution which has been so

held by the Court in many a decision. We may state that these

theoretical concepts are to be viewed from the practical

perspective. In S.R. Bommai’s case, while interpreting Article

356, the Court observed:­

“That is why the Constitution of India is differently described, more appropriately as 'quasi­federal' because it is a mixture of the federal and unitary elements, leaning more towards the latter  but then  what is there in  a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.”  

123. Thus, the need is to understand the thrust and

implication of a provision. To put it differently, the acceptance

of  'pragmatic federalism'  is the need of the day. One aspect

needs to  be clarified.  The acceptance  of the  said principle

should not be viewed as a simplistic phenomenon entrenched

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in innocence.  On  the contrary, it  would require  disciplined

wisdom on the  part of those  who  are required to  make it

meaningful.  And, the meaning, in essentiality,  shall  rest on

pragmatic orientation.   

124. The expression   'pragmatic federalism' in the Indian

context has been used by Justice A.M. Ahmadi in  S.R.

Bommai (supra) wherein he observes:­

“It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of Governmental powers of State and Central Governments, is overlaid by strongly 'unitary' features, particularly exhibited by lodging in Parliament the residuary  legislative powers,  and in the Central Government the executive power of appointing certain Constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate  directions to the  State Governments and even displacing the State Legislatures and the  Government in emergency situations, vide Articles 352 to 360 of the Constitution.”

125. The concept of pragmatic federalism is self explanatory.

It is  a  form of federalism which  incorporates the traits and

attributes of sensibility and realism. Pragmatic federalism, for

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achieving the  constitutional  goals, leans on the  principle  of

permissible practicability.

126. It is  useful to state that  pragmatic federalism has the

inbuilt  ability to  constantly  evolve  with the  changing  needs

and situations. It is this dynamic nature of pragmatic

federalism which makes it apt for a body polity like ours to

adopt. The foremost object of the said concept is to come up

with innovative solutions to problems that emerge in a federal

setup of any kind.

K. Concept of federal balance:

127. Another complementary concept in this context, we

think, is “federal balance”. Federalism in contradistinction to

centralism is a concept which envisions a form of Government

where there is a distribution of powers between the States and

the Centre. It has been advocated by the patrons of the federal

theory that the States must enjoy freedom and independence

as much as  possible  and at the  very least  be  on an equal

footing with the Centre. The Indian Constitution prescribes a

federal structure which provides for division of powers

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between the States and the Centre, but with a slight tilt

towards the  Centre. This unique quasi­federal structure is

inherent in the various provisions of the Constitution as it was

felt by the framers of our Constitution keeping in mind the

needs  of independent India  and  that is  why, the residuary

powers  in  most, if  not  all,  matters  have  remained with  the

Centre. This, however, is not unconditional as the

Constitution has provided for a federal balance between the

powers of the Centre and the States so that there is no

unwarranted or uncalled for interference by the Centre which

would entail encroachment by the Centre into the powers of

the  States.  The need  is for federal  balance which requires

mutual respect and deference to actualize the workability of a

constitutional provision.

128. Sawer's 'federal principles' reiterate this concept of

federal balance when he states:­

“power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local interest.”

108

129. The interest of the States inherent in a federal form of

government gains more importance in a democratic form of

government as it is absolutely necessary in a democracy that

the will of the people is given effect to. To subject the people of

a particular State/region to the governance of the Union, that

too, with respect to matters which can be best legislated at

the State level goes against the very basic tenet of a

democracy. The principle of federal balance which is

entrenched in our Constitution has been reiterated on several

instances holding that the Centre and the States must act

within their own spheres.  In  In  re: Under Article 143,

Constitution of India, (Special Reference No. 1 of 1964)

(supra), the Constitution Bench observed:­

"...the essential  characteristic  of federalism  is  the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other'. The supremacy  of the  Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the  member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their

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individuality in a unity.  This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers."

      [Underlining is ours]

130. In  UCO  Bank v. Dipak  Debbarma48,  the Court has

made several observations on the federal character of our

Constitution  and the  need to  maintain the federal  balance

which has been envisaged in our Constitution to prevent any

usurpation of power either by the Centre or the States. We

reproduce the same with profit:­

"The federal structure under the constitutional scheme can also work to nullify an incidental encroachment made by the Parliamentary legislation on a subject of a State legislation where the dominant legislation is the State legislation. An attempt to keep the aforesaid constitutional balance intact and give a limited operation to the doctrine of federal supremacy can be discerned in the concurring judgment of Ruma Pal, J. in ITC Ltd. vs. Agricultural  Produce Market  Committee and Ors., wherein after quoting the observations of this Court in the case of  S.R. Bomai v. Union of India  (para 276), the learned Judge has gone to observe as follows (para 94 of the report):

"276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis­a­vis the States does not mean that States are mere appendages of the Centre.

48(2017) 2 SCC 585

110

Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers.  More  particularly, the  courts  should not adopt an approach, an interpretation, which has the effect of  or tends to have the effect of whittling down the powers reserved to the States.""

131. Thus, the role of the Court in ensuring the federal

balance, as  mandated by the  Constitution, assumes great

importance.   It is so  as the  Court is the final  arbiter  and

defender of the Constitution.  

L. Interpretation of the Constitution:

132. We have already said that both the parties have projected

their  view  in extremes.  The  issue deserves to be adjudged

regard  being  had to the language employed in the various

articles in Chapter VIII, the context and various constitutional

concepts.   If the construction sought to be placed  by the

appellant is accepted, such  an  acceptation  would confer a

status on NCT of Delhi which the Parliament in exercise of its

constituent  power  has  not  conceived.  The respondents,  per

contra, highlight that by the constitutional amendment,

introduction of the 1991 Act and the Rules of Business, the

Lieutenant  Governor functions as the administrator in the

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truest sense as the contemporaneous documents  leading to

the amendment would show.  They would submit that though

Delhi has been conferred a special status, yet that does not

bring any new incarnation. The submission, as we perceive,

destroys the fundamental marrows of the conception, namely,

special status. It, in fact, adorns the Lieutenant Governor with

certain attributes and seeks to convey that NCT of Delhi

remains  where it  was. The approach in extremes is to be

adjudged and the adjudication, as it seems to us, would

depend upon the concepts we have already adumbrated and

further we have to carefully analyse the principles of the

interpretation of the Constitution.   

133. The task of interpreting an instrument as dynamic as the

Constitution assumes great import in a democracy. The

Constitutional Courts are entrusted with the critical task of

expounding the provisions of the Constitution and further

while carrying out this essential function, they are duty bound

to ensure and preserve the rights and liberties of the citizens

without disturbing the very fundamental principles which form

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the foundational base of the Constitution.   Although,

primarily, it is the literal rule which is considered to be the

norm which governs the courts of law while interpreting

statutory and constitutional provisions, yet mere allegiance to

the  dictionary  or literal  meaning of  words contained in the

provision may, sometimes, annihilate the quality of poignant

flexibility and requisite societal progressive adjustability.

Such an approach may not eventually subserve the purpose of

a living document.  

134. In this regard, we think it appropriate to have a bird’s eye

view as to how the American jurists and academicians have

contextually perceived the science of constitutional

interpretation. The most important aspect of modern

constitutional theory is its interpretation. Constitutional law is

a fundamental law  of governance of a  politically organised

society and it provides for an independent judicial system

which has the onerous responsibility of decisional process in

the sphere of application of the constitutional norms. The

resultant consequences do have a vital impact on the well­

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being of the people. The principles of constitutional

interpretation, thus, occupy a prime place in the method of

adjudication. In bringing about constitutional order through

interpretation, the judiciary is often confronted with two

propositions  whether the provisions of the  Constitution―

should  be interpreted  as it  was  understood  at the time  of

framing of the Constitution unmindful of the circumstances at

the time when it was subsequently interpreted or whether the

constitutional provisions should be interpreted in the light of

contemporaneous needs, experiences and knowledge. In other

words, should it be historical interpretation or

contemporaneous interpretation.49  The theory of historical

perspective found its votary in Chief Justice Taney who

categorically stated in Dred Scott v Sanford50 that as long as

the  Constitution continues to exist in the  present form, it

speaks not only in the same words but also with the same

meaning and intent with which it spoke when it came from

the hands of the framers. Similar observations have been

49Bodenheimer,  Edgar, Jurisprudence,(Universal  Law  Publishing  Co.Pvt. Ltd,

Fourth Indian Reprint, 2004) p 405 5060 U.S. (19 How.) 393 (1857)

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made by Justice Sutherland51.   Propagating a different angle,

Chief Justice Marshall in  McCulloch v Maryland52  has

observed that the American Constitution is intended to serve

for ages to come and it should be adopted to various crises of

human affairs. Justice Hughes in  State v. Superior Court53

observed that the constitutional provisions should be

interpreted to  meet and cover the changing conditions of

social life and economic life. Justice Holmes observed that the

meaning of the constitutional terms is to be gleaned from their

origin and the line of their growth.54 Cardozo once stated:­  

“A Constitution states or ought to state not rules for the  passing hour but principles for  an expanding future.”55  

It would be interesting to note that Justice Brandeis tried

to draw a distinction between interpretation and application of

51 Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) see  West  Coast  Hotel  Co.,  v  Parrish,  300  US 379  (1937)  where  he observed, the meaning of the Constitution does not change with the ebb and flow of economic events that (if)the words of the Constitution mean  today  what  they  did  not  mean  when  written  is  to  rob  that instrument of the essential element...

5217 US (4Wheat) 316 (1819)

53State v Superior Court (1944) at 547 54Gompers v US 233 (1914) 55Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University  Press, 1921

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constitutional provisions56.  The Constitution makers in their

wisdom must have reasonably envisaged the future needs and

attempted at durable framework of the  Constitution. They

must not have made the Constitution so rigid as to affect the

future. There is a difference between modification and

subversion of the provisions of the Constitution through

interpretation. The view is that there is sufficient elasticity but

fundamental changes are not envisaged by interpretation.

Thus, there is a possibility of reading into the provisions

certain regulations  or  amplifications  which  are  not  directly

dealt  with.  There  is  yet  another  angle  that  the  libertarian's

absolutism principle never allows for restrictions to be read

into the liberties  which are not already  mentioned in the

Constitution.57

135. Our Constitution, to repeat at the cost of repetition, is an

organic and living document. It contains words that

potentially do have many a concept.   It is evident from the

56Burnett v Coronado Oil and Gas Co., 285 US (1932) 57 The activist libertarians like Justice Black and Douglas never allowed

reading such restrictions.  See American Communication Association v Douds 339 US (1950) and dissenting in Poulos v New Hamshire,  345 US(1953)

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following passage from R.C. Poudyal v. Union of India and

others58:­

“In the interpretation of a constitutional document, "words are but the framework of concepts and concepts may change more than words themselves". The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words  without an  acceptance of the line of their growth. It is aptly said that "the intention of a Constitution is rather to outline principles than to engrave details"".”

136. Professor Richard H. Fallon has, in his celebrated

work59, identified five different strands of interpretative

considerations which shall be taken into account by judges

while interpreting the Constitution. They read thus:­  

“Arguments from the plain, necessary, or meaning of the constitutional text; arguments about the intent of the framers;  arguments of  constitutional theory that reason from the hypothesized purposes that best explain either particular constitutional provisions or the constitutional text as a whole; arguments based on judicial precedent; and value arguments that assert claims about justice and social policy.”60

58AIR 1993 SC 1804 59 Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional  

Interpretation”, Harvard Law Review Association, 1987 60        100 HARV. L. REV. 1189, 1189-90 (1987).10

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137. Comparing the task of interpretation of statute to that of

interpretation of  musical  notes,  Judge Hand  in the  case  of

Helvering v. Gregory61 stated:­

“The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.”

138. Jerome N. Frank62, highlighting the corresponding duty of

the public in allowing discretion to the Judges, has observed:­

“a “wise composer” expects a performer to transcend literal  meaning in interpreting his score; a wise public should allow a judge to do the same.”

139. The room for discretion while interpreting constitutional

provisions allows  freedom to the Judges to come up with a

formula which is in consonance with the constitutional

precepts while simultaneously resolving the conflict in issue.

The following observations  made in  S.R. Bommai’s case,

throw light on the aforesaid perception:­

“Constitutional adjudication is like no other decision­making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our

6169 F. 2d 809, 810-II (1934) 62 Jerome N. Frank, “Words and Music: Some remarks on Statutory  

Interpretation,” Columbia Law Review 47  (1947): 1259-1367

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Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.”

140. It is imperative that judges must remain alive to the idea

that  the Constitution was never intended to  be a rigid and

inflexible document and the concepts contained therein are to

evolve over time as per the needs and demands of the

situation.  Although the rules of  statutory  interpretation can

serve as a guide, yet the constitutional courts should not, for

the sake of strict compliance to these principles, forget that

when the controversy in question arises out of a constitutional

provision, their primary responsibility is to work out a

solution.

141. In  Supreme Court  Advocates­on­Record  Association

(supra),  this Court,  acknowledging the  sui generis  nature of

the Constitution, observed thus:­

“The constitutional provisions cannot be cut down by technical construction rather it has to be given liberal and meaningful interpretation. The ordinary rules and presumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the  provisions of the  Constitution. In

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Minister of Home Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian Constitution, Lord Wilberforce reiterated that a Constitution is a document "sui generis, calling for principles of interpretation of its own, suitable to its character””

142. Dickson, J., in Hunter v. Southam Inc63, rendering the

judgment  of the  Supreme Court  of  Canada,  expounded  the

principle pertaining to constitutional interpretation thus:­

"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights  and obligations. It is  easily enacted and as easily repealed. A constitution, by contrast, is  drafted with an eye to  the  future. Its function  is to provide a continuing  framework  for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts 'not to read the provisions of the Constitution  like  a last  will  and  testament lest it become one'."

63[1984] 2 SCR 145

120

143. The Supreme Court of Canada also reiterated this view

when  it  held that the  meaning of 'unreasonable' cannot  be

determined by recourse to a dictionary or, for that matter, by

reference to the rules of statutory construction.  The  Court

pointed out that the task of expounding a  Constitution is

crucially different from that of construing a statute, for a

statute  defines  present rights  and  obligations  and is easily

enacted and as easily repealed whereas a Constitution is

drafted with an eye to the future and its function is to provide

a continuing framework for the legitimate exercise of

governmental  power.  Further, the Court  observed that  once

enacted, constitutional provisions cannot easily be repealed or

amended and hence, it must be capable of growth and

development over time to meet new social, political and

historical realities  often unimagined by its framers  and  the

judiciary, being the guardian of the Constitution, must bear

these considerations in mind while interpreting it. The Court

further stated that the judges must take heed to the warning

of  Professor Paul  Freund when he said  that  the role of the

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judges is “not to read the provisions of the Constitution like a

last will and testament, lest it becomes one”.

144.  This idea had pervaded  the legal  system way back  in

1930  when the Privy  Council through Lord Sankey LC in

Edwards v  Attorney  General for Canada64 had observed

that the  Constitution must  be  approached as “a living tree

capable of growth and expansion within its natural limits”.

145. Professor Pierre­André Côté in his book65 has highlighted

the action based approach by stating that it must be kept in

mind that the end goal of the process of legal interpretation is

resolution of conflicts and issues. It would be apt to reproduce

his words:­

“Legal interpretation goes beyond the mere quest for historical truth. The judge, in particular, does not interpret a statute solely for the intellectual pleasure of reviving the thoughts that prevailed at the time the enactment was drafted. He interprets it with an eye to action: the application of the statute. Legal interpretation is thus  often  an "interpretive operation’’, that is, one linked to the resolution of concrete issues.”

M. Purposive interpretation:

64[1930] AC 124, 136 65 Pierre-André Côté, The Interpretation of Legislation in Canada 2nd Ed  

(Cowansville. Quebec:Les Editions  Yvon  Blais. Inc. 1992)

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146.  Having stated the principles relating to constitutional

interpretation we, as presently advised, think it apt to devote

some space to purposive interpretation in the context, for we

shall refer to the said facet for understanding the core

controversy. It needs no special emphasis that the reference to

some precedents has to be in juxtaposition with other

concepts and principles. As it can be gathered from the

discussion as well  as the authorities cited above, the  literal

rule is not to be the primary guiding factor in interpreting a

constitutional provision, especially if the resultant outcome

would  not serve the fructification of the rights and values

expressed in the Constitution. In this scenario, the theory of

purposive interpretation has gained importance where the

courts shall interpret the Constitution in a purposive manner

so as to give effect to its true intention. The Judicial

Committee in Attorney General of Trinidad and Tobago v.

Whiteman66 has observed:­

“The language of a Constitution falls to be construed, not in a narrow and legalistic way, but

66[1991] 2 AC 240, 247

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broadly and purposively, so as to give effect to its spirit…”

147. In S.R. Chaudhuri v. State of Punjab and others67, a

three­Judge Bench has opined that constitutional provisions

are required to be understood and interpreted with an object­

oriented approach and a Constitution must not be construed

in a narrow and pedantic sense. The Court, while holding that

the Constituent Assembly debates can be taken aid of,

observed the following:­

“The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve.”

(Emphasis is ours)

148. The Court further highlighted that the Constitution is not

just a document in solemn form but a living framework for the

government of the people exhibiting a sufficient degree of

cohesion and its successful working depends upon the

democratic spirit underlying it being respected in letter and in

spirit.

67(2001) 7 SCC 126

124

149. We have duly noted in the earlier part of the judgment

that the judiciary must interpret the Constitution having

regard to the spirit and further by adopting a  method of

purposive interpretation.  That is the  obligation  cast on the

judges. In  Ashok Kumar Gupta and another v.  State of

U.P. and others68, the Court observed that while  interpreting

the Constitution, it must be borne in mind that words of width

are both a framework of concepts and means to the goals in

the Preamble and concepts may keep changing to expand and

elongate the rights. The Court further held that constitutional

issues are not solved by mere appeal to the meaning of the

words without an acceptance of the line of their growth and,

therefore, the judges should adopt purposive interpretation of

the dynamic concepts of the Constitution and the Act with its

interpretative armoury to articulate the felt necessities of the

time. Finally, the Court pointed out:­

“To construe law one must enter into its spirit, its setting and history.”

68(1997) 5 SCC 201

125

150.  In Indian Medical Association v. Union of India and

others69, referring  to the  pronouncement in  M. Nagaraj  v.

Union of India70, the Court said:­

“In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court, recognized that one of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the constitution endures for ages to come. Eloquently, it was stated that the "Constitution is not an ephemeral legal document embodying a set of rules for the passing hour".”

(Emphasis is ours)

151. The emphasis on context while interpreting constitutional

provisions has burgeoned this shift from the literal rule to the

purposive method in order that the provisions do not remain

static and rigid. The words assume different incarnations to

adapt themselves to the current demands as and when the

need arises. The House of Lords in  Regina (Quintavalle) v.

Secretary of State for Health71 ruled:­

69(2011) 7 SCC 179 70  (2006) 8 SCC 202

71(2003) UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL)

126

“The pendulum has swung towards purposive methods of construction.  This change was not initiated by the teleological  approach of  European Community jurisprudence, and the influence of European  legal  culture generally,  but it  has  been accelerated by European ideas: see, however, a classic  early  statement  of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL). In any event, nowadays the shift towards purposive interpretation is not  in doubt.  The qualification is that the degree of liberality permitted is influenced by the context. ...”

[Emphasis is supplied]  

152. Emphasizing on the importance of determining the

purpose and object of a provision, Learned Hand, J. in Cabell

v. Markham72 enunciated:­

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

72148 F 2d 737 (2d Cir 1945)

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153. The components of  purposive  interpretation have been

elucidated by Former President of   the Supreme  Court of

Israel, Aharon Barak, who states:­

"Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can  bear in its (public or private) language."73

154.   As per the observations made by Aharon Barak,

judges interpret  a  Constitution   according to its  purpose

which comprises of the objectives,  values and principles that

the constitutional text is designed to actualize.   Categorizing

this purpose into objective and subjective purpose, he

states74:­

“Subjective component is the goals, values, and principles that the constituent assembly sought to achieve through it, at the time it enacted the constitution. It is the original intent of the founding fathers. Purposive interpretation translates such

73Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 - Law 74ibid

128

intent into a presumption about the subjective purpose, that  is, that the ultimate purpose of the text is to achieve the (abstract) intent of its authors. There is also, however, the objective purpose of the text ­   the  goals, values, and  principles that the constitutional text is designed to achieve in a modern democracy  at   the time of interpretation. Purposive interpretation translates this purpose into the presumption that the ultimate purpose of the constitution is its objective purpose.”

[Emphasis supplied]

155. It is also apt to reproduce the observations made by him

in the context of the ever changing nature of the

Constitution:­   

“A constitution is at the top of a normative pyramid. It is designed to guide human behavior for a long period of time. It is not easily amendable.  It  uses many open ended expressions. It is designed to shape the character of the state for the long term. It lays the foundation for the state's social values and aspirations. In giving expression to this constitutional uniqueness, a judge interpreting a constitution  must accord significant  weight to its objective purpose and derivative presumptions. Constitutional provisions should be interpreted according to society's basic normative positions at the time of interpretation.”

156. He has further pointed out that both the subjective as

well as the objective purposes have their own significance in

the interpretation of constitutional provisions:­

129

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

N. Constitutional culture and pragmatism:

157. "Constitutional culture" is inherent in the concepts where

words are transformed into concrete  consequences. It is  an

interlocking  system of  practices, institutional  arrangements,

norms and habits of thought that determine what questions

75ibid

130

we ask, what arguments we credit, how we process disputes

and how we resolve those disputes.76

158. The aforestated definition of the term ‘constitutional

culture’ is to be perceived as set of norms and practices that

breathe  life into the words of the great document. It is the

conceptual normative spirit that transforms the Constitution

into a dynamic document. It is the constitutional culture that

constantly enables the words to keep in stride with the rapid

and swift changes occurring in the society.  

159.  The responsibility of fostering  a constitutional culture

falls on the shoulders of the  State and the populace. The

allegiance to  promoting  a  constitutional culture  stems  from

the crying need of the sovereign to ensure that the democratic

nature of our society remains undaunted and the fundamental

tenets of the Constitution rest on strong platform.  

160. The  following observations made by  the Court  in  R.C.

Poudyal  (supra) throw light on this duty cast upon the

functionaries and the citizens:­

76 Andrew M. Siegel, Constitutional Theory, Constitutional Culture, 18  U.PA.J. Const. L. 1067 (2016)

131

“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals.”

161. The Constitutional Courts, while interpreting the

constitutional provisions, have to take into account the

constitutional culture, bearing in mind its flexible and evolving

nature, so that the provisions are given a  meaning  which

reflect the object and purpose of the Constitution.

162. History reveals that in order to promote and nurture this

spirit of constitutional culture, the  Courts  have adopted a

pragmatic approach of interpretation which has ushered in an

era of “constitutional pragmatism”.  

163. In this context, we may have some perspective from the

American approach.  The perception is that language is a

social and contextual enterprise; those who live in a different

society  and use language differently  cannot reconstruct the

original meaning. Justice Brennan observed:­  

“We current Justices read the Constitution in the only way that we can: as Twentieth­Century Americans.  We  look to the  history  of the time  of

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framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly,  what those fundamentals  mean for  us, our descendants will learn, cannot be the measure to the vision of their time.”77

164. In  Supreme Court Advocates­on­Record­Association

and others v. Union of India78, the Court, while emphasizing

on the aspect of constitutional culture that governs the

functioning of any constitutional body, has observed:­  

“The functioning of any constitutional body is only disciplined by appropriate  legislation.  Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the  Chief  Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one.”

77 William  J.  Brennan,  Jr.,  The  Constitution  of  the  United  States: Contemporary  Ratification,  in  Interpreting  The  Constitution:  The Debate Over Original Intent at 23, 27 (Jack N. Rakove ed., 1990)

78(2016 ) 5 SCC 1

133

165. Further, the Court also highlighted that a balance

between idealism  and  pragmatism is inevitable in order to

create a workable situation ruling out any absurdity that may

arise while adopting either one of the approaches:­

“The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non­ arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.

xxx xxx xxx

It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.”

166. In  The State of Karnataka and another v. Shri

Ranganatha Reddy and another79, the Court had laid stress

on the obligation and the responsibility of the judiciary not to

limit itself to the confines of  rigid principles or textualism and

rather adopt an interpretative process which takes into

79AIR 1978 SC 215

134

consideration the constitutional goals and constitutional

culture:­

“When cryptic phrases expressive of constitutional culture and aspirational future, fundamental to the governance of the nation, call for interpretative insight,  do  we merely rest  content to  consult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty? Is the meaning of meanings an artless art?”

And again,

“There is a touch of swadeshi about a country's jurisprudence and so our legal notions must bear the stamp of Indian Developmental amplitude linked to constitutional goals.”

167. Laying emphasis on the need for constitutional

pragmatism, the Court in Indra Sawhney   (supra) noted the

observations made by Lord Rockill in his presidential address

to the Bentham Club at University College of London on

February 29, 1984 on the subject "Law Lords, Reactionaries or

Reformers?" which read as follows:­

“Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves

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"this case requires a policy decision ­ what is the right policy decision?"   The answer is, and I hope will hereafter be, to follow that route which is most consonant  with the current  needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the  Law Lords  will continue  to  be the targets for those  academic lawyers  who will seek intellectual perfection rather than imperfect pragmatism.  But much of the common law and virtually all criminal law,  distasteful  as it  may  be to  some  to  have to acknowledge it, is a blunt instrument by means of which human beings,  whether they  like  it  or  not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.””

[Emphasis is ours]

168. The Court also observed:­

“Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to the issues under controversy by the mere reflexes of the opinion of any section  of the people or  by the turbulence created in the society or by the emotions of the day.

We are very much alive to the fact that the issues with  which  we are now facing are hypersensitive, highly explosive and extremely delicate.  Therefore, the  permissible judicial creativity in tune  with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.

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Since this is a constitutional issue it cannot be resolved by clinches founded on fictional mythological stories or  misdirected  philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary.”

[Emphasis is supplied]

169. Earlier, in  Union of India   v. Sankalchand Himatlal

Sheth and another80, the Court had observed that:­

“…in a dynamic democracy, with goals of transformation set up by the Constitution, the Judge, committee to uphold the founding faiths and fighting creeds of the nation so set forth, has to act heedless of executive hubris, socio­economic pressures and die­hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution. Perfection baffles even the framers  of a  Constitution,  but  while  on statutory construction of an organic document regulating and coordinating the relations among instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic,  holistic recipe  for the  behavioral  needs and norms of life in the raw­of individuals, instrumentalities and the play of power and freedom”

80(1978) 1 SCR 423

137

170. The aforesaid passages set two guidelines. First, it

permits judicial creativity and second, it mentions one to be

conscious of pragmatic realism of the obtaining situation and

the controversy. That apart, there is a suggestion to take note

of the behavioural needs and norms of life.   Thus, creativity,

practical applicability and perception of reality from the

societal perspective are the  warrant  while engaging oneself

with the process of interpretation of a constitutional provision.

O. Interpretation of Articles 239 and 239A:

171. To settle the controversy at hand, it is imperative that we

dig deep and perform a meticulous analysis of Articles 239,

239A, 239AA and 239AB all of which fall in Part VIII of the

Constitution bearing the heading, ‘The Union Territories'. For

this purpose,  let us reproduce the aforesaid Articles one by

one and carry out the indispensable and crucial task of

interpreting them.

172. Article 239 provides for the administration of Union

Territories. It reads as follows:­

“239.  Administration of  Union Territories.—(1) Save as otherwise provided by Parliament by  law,

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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 is ours)

173. The said Article was brought into existence by the

Constitution  (Seventh  Amendment)  Act,  1956.  Clause (1)  of

Article 239, by employing the words ‘shall’, makes it

abundantly clear that every Union territory is mandatorily to

be  administered  by the  President through an  administrator

unless otherwise provided by Parliament in the form of a law.

Further, clause (1) of Article 239 also stipulates that the said

administrator shall be appointed by the President with such

designation as he may specify.

174. Clause (2) thereafter, being a non­obstante clause, lays

down that irrespective of anything contained in Part VI of the

Constitution, the  President  may  appoint the  Governor of a

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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.  

175. In this regard, the Court, in the case of  Shamsher

Singh (supra), has observed thus:­

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

176. Again, the Court, while interpreting Article 239 in Union

of India and others v. Surinder S81, observed:­

"The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or

81  (2013) 1 SCC 403

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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."

177. Now, let us proceed to scan Article 239A 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:­

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"239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories. —(1)  Parliament may by  law create for the Union territory of 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.  

(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."

178. The aforesaid Article was brought into force by the

Constitution (Fourteenth Amendment) Act, 1962. Prior to the

year 1971, under Article 239A, the Parliament had the power

to create by law legislatures and/or Council of Ministers for

the then Union territories of Himachal Pradesh, Tripura,

Manipur, Goa and Daman and Diu. Thereafter, on 25th

January, 1971, Himachal Pradesh acquired statehood and

consequently, Himachal Pradesh was omitted from Article

239A. Subsequently, on 21st  January 1972, Tripura and

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Manipur were granted statehood as a consequence of which

both Manipur and Tripura were omitted from Article 239A.

179. Likewise, with the enactment of the Goa, Daman and Diu

Reorganisation Act,  1987 on 30th  May 1987,  both Goa and

Daman and Diu were omitted from Article 239A. The

Parliament,  under the  Government  of  Union Territories  Act,

1963, created legislatures for the then Union Territories and

accordingly, even after  30th  May,  1987, the applicability of

Article 239A stands limited to UT of Puducherry.  

180. As a natural corollary, the Union Territory of Puducherry

stands on a different footing from other UTs of Andaman and

Nicobar Islands,  Daman and Diu,  Dadar  and Nagar  Haveli,

Lakshadweep  and  Chandigarh.  However,  we  may  hasten to

add  that  Puducherry  cannot  be compared  with the  NCT of

Delhi as it is solely governed by the provisions of Article 239A.

P. Interpretation of Article 239AA of the Constitution

181. We shall now advert to the interpretation of Articles

239AA and 239AB of the Constitution which are the gravamen

of the present batch of appeals. The said Articles require an

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elaborate  interpretation and a thorough analysis to unearth

and discover the true intention of the Parliament while

inserting the said Articles, in exercise of its constituent power,

by the Constitution (Sixty­ninth Amendment) Act, 1991. The

said articles read as follows:­

"239AA. Special provisions with respect to Delhi. —(1) As from the date of commencement of the Constitution (Sixty­ninth 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.

(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

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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 sub­clause (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

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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 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.

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(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 sub­clause (a) shall  not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.

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

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

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and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National  Capital Territory in  accordance  with the provisions of article 239 and article 239AA."

[Emphasis supplied]

182. We deem it appropriate to refer to the Statement of

Objects and Reasons for the amendment which reads thus:­

“The question of re­organisation of the Administrative set­up in the Union territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24­12­1987 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 set­up. 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 set­up 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 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

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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  239AA and  other  articles

that are pertinent to understand the said provision.

Q. Status of NCT of Delhi:

183. The first proposition that has been built centering around

the conferment of special status on NCT of Delhi is that it is a

State for all purposes except the  bar created  pertaining to

certain legislative matters. The bedrock has been structured

by placing heavy reliance on the purpose of the constitutional

amendment, the constitutional assurance to the inhabitants of

Delhi and the language employed in sub­article 3(a) of Article

239AA of the Constitution.  We have  already referred  to  the

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historical  background and also  the report submitted by  the

Balakrishnan Committee.  

184. Mr. Maninder Singh, learned Additional Solicitor General,

would contend that the aid and assistance of the Committee

Report can be taken into consideration to interpret the

constitutional provisions and also the statutory provisions of

the 1991 Act.  He has referred to certain authorities  for the

said purpose. We shall refer to the said authorities at a later

stage. First, we think it seemly to advert to the issue whether

the NCT of Delhi can be called a State in the sense in which

the Constitution expects  one  to  understand.  The said maze

has to be cleared first.  

185. We may now focus on the decision in Shamsher Singh

(supra). The issue centered around the role and the

constitutional status of the President. In that context, it has

been held that the President and the Governor act on the aid

and advice of the Council  of  Ministers and the Constitution

does not stipulate that the President or the Governor shall act

personally without or against the aid and advice of the Council

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of Ministers. Further, the Court held that the Governor can act

on his own accord in matters where he is required to act in his

own discretion as specified in the Constitution and even while

exercising the said discretion, the Governor is required to act

in harmony with the Council of Ministers. We may hasten to

add that the President of India, as has been held in the said

case, has a distinguished role on certain occasions. We may,

in this context, reproduce  below certain  passages from  the

opinion of Krishna Iyer, J.:­

"The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible  with the  basics  of our political architecture — lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the  head of  State.  A  Parliamentary­style  Republic like ours could not have conceptualised its self­ liquidation by this process. On the contrary,

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democratic capital­formation to strengthen the people's rights can be achieved only through invigoration of the  mechanism of Cabinet­House­ Elections.

We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and  in accordance with  the  advice of their Ministers save in a few well­known exceptional situations.  Without being dogmatic or exhaustive, these  situations  relate to (a) the  choice  of  Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country  is  necessitous,  although  in  this  area  the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility  for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement regarding royal assent holds good for the President and Governor in India:

"Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless­ be unconstitutional. The only

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circumstances in which the withholding of the royal  assent  might  be justifiable  would  be if the  Government itself  were  to  advise such a course — a highly improbable contingency — or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of  the measure once it  had been assented to. prudence would suggest the giving of assent."

[Emphasis supplied]

186. That apart, A.N. Ray, C.J., in Shamsher Singh  (supra),

has stated thus:­

"Article 163(1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the  Governor in the exercise of  Was functions, except in so far as he is by or under this Constitution, required to exercise his  functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or  under this  Constitution required to  act in  his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that ought or ought not to have acted in his discretion. Extracting the words "in his discretion" in relation to exercise of functions, the appellants contend that the  Council of  Ministers may aid and advise the Governor in Executive functions but the Governor individually and personally in his discretion will exercise the constitutional functions of appointment and

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removal of officers in State Judicial Service and other State Services. It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article 163 that the aid and advice is except  in so far  as he  is  required to  exercise  his functions or any of them in his discretion. It is necessary to find out as to why the words, in his discretion'  are used in relation to some powers of the Governor and not in the case of the President. Article 143 in the Draft Constitution became Article 163  in the Constitution.  The draft  constitution  in Article 144(6) said that the functions of the Governor under Article with respect to the appointment and dismissal of  Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the Article shall be exercised by him in his discretion. Draft Article 153(3)  was totally  omitted when  it  became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor "may in his discretion return the Bill together with a message requesting that the House  will reconsider the  Bill".  Those  words that "the Governor may in his discretion" were omitted when  it  became Article  200.  The  Governor  under Article 200  may return the Bill with a  message requesting that the House will reconsider the Bill. Draft  Article  188 dealt  with  provisions in  case  of grave emergencies, clauses (1) and (4) in Draft Article 188 used to words "in his discretion in relation to exercise of power by the Governor. Draft Article 188 was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public

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Service Commission used the expression "in his discretion" in relation to exercise  of  power by the Governor in regard to appointment of the Chairman and Members and making of regulation. The words "in his discretion" in relation to exercise of power by the Governor were omitted when it became Article 316. In Paragraph 15 (3) of the Sixth Schedule dealing  with  annulment  or  suspension  of acts  or suspension of acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the Paragraph shall be exercised by him in his discretion. Subparagraph 3 of Paragraph 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution.  

It is, therefore,  understood in the  background  of these illustrative draft articles as to why Article 143 in the Draft Constitution which became Article 163 in our Constitution used the expression "in his discretion" in regard to some powers of the Governor."

[Emphasis supplied]

187. Thereafter,  A.N. Ray, C.J. discussed the provisions of the

Constitution as well  as a couple of  paragraphs of  the Sixth

Schedule  wherein  the words  "in  his  discretion"  are  used  in

relation to certain powers of the Governor to highlight the fact

that a Governor can act in his discretion only when the

provisions of the Constitution so permit.

188. In this context, we may refer with profit to the authority

in Devji  Vallabhbhai Tandel and others v. Administrator

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of Goa, Daman and Diu and another82. In the said case, the

issue that arose for consideration was whether the role and

functions of the Administrator stipulated under the  Union

Territories  Act,  1963  is  similar to those  of  a  Governor of  a

State and as such, whether the Administrator has to act on

the  "aid and advice"  of the Council  of  Ministers.  The Court

considered the relevant  provisions  and  after comparing the

language of Articles 74 and 163 of the Constitution with the

language of Section 44 of the Union Territories Act, 1963, it

observed that the Administrator, even in matters where he is

not required to act in his discretion under the Act or where he

is not exercising any judicial or quasi­judicial functions, is not

bound to act according to the advice of the Council of

Ministers and the same is manifest from the proviso to Section

44(1). The Court went on to say:­

"It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary

82  (1982) 2 SCC 222

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to the advice of the Council the Administrator would be able to override the advice of the  Council of Ministers and on a reference to the President under the proviso, obviously the President would not according to the advice of the 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. 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 Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision  in Shamsher Singh's  case that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own.”

[Emphasis supplied]

157

189. Be it noted, Devji Valabhbhai Tandel (supra) depicts a

pre Sixty­ninth amendment scenario. On that foundation, it is

submitted by the learned counsel for the appellant to buttress

the submission that after the amendment, the status of NCT

of Delhi is that of State and the role of the Lieutenant

Governor is equivalent to that of the Governor of State who is

bound by the aid and advice of the Council of Ministers.

190. Now,  let us allude to the post Sixty­ninth amendment

nine­Judge Bench decision in  New Delhi Municipal

Corporation (supra) wherein B.P. Jeevan Reddy, J., speaking

for the majority after taking note of the rivalised submissions

pertaining  to "Union Taxation",  referred to the decisions  in

Sea Customs Act, Re83 and came to hold thus:­

"152. ... In the year 1991, the Constitution did provide for a  legislature for the Union Territory of Delhi [National  Capital Territory of  Delhi] by the Sixty­Ninth (Amendment)  Act (Article  239­AA)  but even here the legislature so created was not a full­ fledged  legislature nor  did  it  have  the effect  of  — assuming that it could — lift the National Capital Territory of Delhi from Union Territory category to the category of States within the meaning of Chapter I of  Part  XI of the  Constitution.  All this

83             AIR 1963 SC 1760 : (1964) 3 SCR 787

158

necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament  — or a legislative  body created  by it. Parliament can make any law in respect of the said territories  — subject, of course, to constitutional limitations other than those specified in Chapter I of Part XI of the Constitution.”

And again:­

"155. ... it is  necessary to remember that  all the Union Territories are not situated alike. There are certain Union territories (i.e., Andaman and Nicobar Islands and Chandigarh) for which there can be no legislature at all­as on today. There is a second category of Union Territories covered by Article 239­ A (which applied to  Himachal Pradesh,  Manipur, Tripura,  Goa,  Daman and Diu and Pondicherry ­ now,  of course,  only  Pondicherry  survives in this category, the rest having acquired Statehood) which have legislatures by courtesy of Parliament. The Parliament can, by law, provide for Constitution of legislatures for these States and confer upon these legislatures such powers, as it may think appropriate. The Parliament had created legislatures for these  Union territories under the "The  Government of India Territories Act, 1963", empowering them to  make laws with respect to matters in List­II and List­Ill, but subject to its over­ riding power. The third category is Delhi. It had no legislature with effect from November 1, 1956 until one has been created under and by virtue  of the Constitution Sixty­Ninth (Amendment) Act, 1991 which introduced Article 239­AA. We have already dealt with the special features of Article 239­AA and need  not repeat it.  Indeed, a reference to  Article 239­B read with Clause (8) of Article 239­AA shows

159

how the Union Territory of  Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part­VI of the Constitution. In sum, it is also a territory governed by Clause (4) of Article 246. ..."

[Emphasis supplied]

191. Thus, New Delhi Municipal Corporation (supra) makes

it clear as crystal that all Union Territories under our

constitutional scheme are not on the same pedestal and as far

as the NCT of Delhi is concerned, it is not a State within the

meaning of Article 246 or Part­ VI of the Constitution. Though

the NCT of Delhi partakes a unique position after the Sixty­

Ninth Amendment, yet in sum and substance, it remains a

Union  Territory  which is  governed  by  Article  246(4)  of the

Constitution and to which the Parliament, in the exercise of

its constituent power, has given the appellation of the

'National Capital Territory of Delhi'.

192. For  ascertaining  the binding nature of  aid and advice

upon the President and the Governor on one hand and upon

the Lieutenant Governor of Delhi on the other, let us conduct

a comparative analysis of the language employed in Articles

74 and 163 on one hand and Article 239AA on the other. For

160

this purpose, we may reproduce Articles 74 and 163 which

read thus:­

“74. Council of Ministers to aid and advise President (1) There shall be a Council of Ministers with the Prime Minister  at the head to aid and advise  the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question  whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

163. Council of Ministers to aid and advise Governor's

(1)  There shall  be a council  of  Ministers with the chief  Minister at the  head to  aid  and  advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or  under this  Constitution required to  act in  his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question

161

on the ground that he ought or ought not to have acted in his discretion

(3) The question  whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

193. It is  vivid  from Article 74 that the President  is  always

bound by the aid and advice of the Union Council of Ministers

except a few well known situations which are guided by

constitutional conventions. The  Constitution,  however, does

not lay down any express provision which allows the President

to act as per his discretion.

194. The Governor of a State, as per Article 163, is bound by

the aid and advice of his Council of Ministers in the exercise of

his functions except where he is, by or under the Constitution,

required to exercise his functions or any of them in his

discretion. Thus, the Governor may act in his discretion only if

he is so permitted by an express provision of the Constitution.

195. As far as the Lieutenant Governor of Delhi is concerned,

as per Article 239AA(4), he is bound by the aid and advice of

his Council of Ministers in matters for which the Delhi

Legislative Assembly has legislative powers. However, this is

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subject to the proviso contained in Clause (4) of Article 239AA

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).  

196. In the light of the aforesaid analysis and the ruling of the

nine­Judge Bench in  New Delhi Municipal Corporation

(supra), it is clear as noon day that by no stretch of

imagination,  NCT of  Delhi  can be  accorded  the  status of  a

State under our present constitutional scheme and the status

of the Lieutenant Governor of Delhi is not that of a Governor of

a State, rather he remains an Administrator, in a limited

sense, working with the designation of Lieutenant Governor.  

R. Executive power of the Council of Ministers of Delhi:

197. We may note here that there is a serious contest with

regard to the appreciation and interpretation of Article 239AA

163

and Chapter VIII where it occurs. The learned counsel for the

appellant would submit that the Government of NCT of Delhi

has been conferred the executive power that co­exists with its

legislative power and the role of the Lieutenant Governor is

controlled  by the  phrase ‘aid  and advice’  of the  Council  of

Ministers. The learned counsel for the respondents  would

submit with equal force that the Lieutenant Governor

functions as the administrator of NCT of Delhi and the

constitutional amendment has not diminished his

administrative authority.

198. Analysing the provision, it is submitted by Dr. Dhawan

and other senior counsel that the  Government of  Delhi is

empowered under the Constitution to aid and advise the

Lieutenant Governor in the exercise of its functions in relation

to matters in respect of which the Delhi Legislative Assembly

has the legislative power to make laws and the said aid and

advice is binding on the Lieutenant Governor.   Commenting

on the proviso, it is earnestly canvassed that the words

‘difference on any matter’ has to be restricted to the field of

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any  legislation or,  at  best, the  difference in relation  to the

three excepted matters.   For the said argument,  inspiration

has been drawn from Articles 73 and 163 of the Constitution.

Elaborating the argument, it is contended that the reference of

the matter to the President is made where there is doubt as to

whether the aid and advice touches the realm of the excepted

entries  as  stipulated  under  Article  239AA(3)(a)  and nothing

beyond.   To buttress the point, heavy reliance has been laid

on  Ram Jawaya  Kapur  (supra)  wherein the  Court,  while

interpreting the provisions of Article 162 of the Constitution

and delineating on the issue of the  extent  of the  executive

powers of the State, observed:­

"7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the  States, following the  same  analogy  as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down :

165

"Subject to the  provisions  of this  Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws :

Provided that in any matter with respect to which the Legislature of  a  State  and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."

Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II  of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament.  Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which  the  Parliament  has  power to  make  laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.

Neither of these articles contains any definition as  to what  the executive  function  is  and what activities would legitimately come within its scope.  They are concerned primarily  with the distribution of the executive power between the Union on the one hand and the States on the

166

other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the  State  Legislature  has legislated  on  certain items appertaining to their respective lists, that the  Union  or the  State  executive, as the case may be,  can proceed to function  in  respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state  Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.  The same principle underlies article 73 of the Constitution..."

[Underlining is ours]

199. Drawing an analogy while interpreting the provisions of

Article 239AA(3)(a) and Article 239AA(4) would reveal that the

executive power of the Government of NCT of Delhi is

conterminous with the legislative power of the Delhi

Legislative  Assembly which  is  envisaged  in Article  239AA(3)

and which extends over all but three subjects in the State List

and all subjects in the  Concurrent  List  and,   thus,  Article

239AA(4) confers executive power on the Council of Ministers

over all those subjects for which the Delhi Legislative

Assembly has legislative power.

167

200. The legislative power conferred upon the Delhi Legislative

Assembly is to give effect to legislative enactments as per the

needs and requirements of Delhi whereas the executive power

is conferred on the executive to implement certain policy

decisions. This view is also strengthened by the fact that after

the Seventh  Amendment of the  Constitution by  which the

words  'Part C States'  were substituted by the words  'Union

Territories', the word 'State' in the proviso to Article 73 cannot

be read  to  mean Union Territory  as such an  interpretation

would render the scheme  and  purpose of Part  VIII (Union

Territories) of the Constitution infructuous.

S. Essence of Article 239AA of the Constitution:

201. It is perceptible that the constitutional amendment

conceives of conferring special status on Delhi. This has to be

kept in view while interpreting Article 239AA. Both the

Statement of Objects and Reasons and the Balakrishnan

Committee  Report, the relevant extracts of  which  we  have

already reproduced in the earlier part of this judgment, serve

as an enacting history and corpus of public knowledge relative

168

to the introduction of Articles 239AA and 239AB and would be

handy external aids for construing Article 239AA and

unearthing the real intention of the Parliament while

exercising its constituent power.

202. At the outset, we  must declare that the insertion of

Articles 239AA and 239AB which specifically pertain to NCT of

Delhi is reflective of the intention of the Parliament to accord

Delhi a sui generis status from the other Union Territories as

well as from the Union Territory of Puducherry to which Article

239A is singularly applicable as on date. The same has been

authoritatively held by the  majority judgment in the  New

Delhi Municipal Corporation case to the effect that the NCT

of Delhi is a class by itself.

203. The Legislative Assembly, Council  of  Ministers and the

Westminster style cabinet system of government brought by

the  Sixty­ninth amendment highlight the uniqueness

attributed to Delhi with the aim that the residents of Delhi

have a  larger say in how Delhi is  to be governed. The real

purpose behind the Constitution (Sixty­ninth Amendment)

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Act, 1991, as we perceive, is to establish a democratic setup

and representative form of government wherein the majority

has a right to embody their opinion in laws and policies

pertaining to the NCT of Delhi subject to the limitations

imposed by  the Constitution.  For paving the way to realize

this real  purpose, it is  necessary that  we give  a  purposive

interpretation to Article 239AA so that the principles of

democracy and federalism which are part of the basic

structure of our Constitution are reinforced in NCT of Delhi in

their truest sense.

204. The exercise of establishing a democratic and

representative form of government for NCT of Delhi by

insertion of Articles 239AA and 239AB would turn futile if the

Government of Delhi that enjoys the confidence of the people

of Delhi is not able to usher in policies and laws over which

the Delhi Legislative Assembly has power to legislate for the

NCT of Delhi.

205. Further, the Statement of Objects and Reasons for the

Constitution (Seventy­fourth Amendment) Bill, 1991  which

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was enacted as the Constitution (Sixty­ninth Amendment)

Act, 1991 also lends support to our view as it clearly

stipulates that in order to confer a special status upon the

National Capital, arrangements should be incorporated in the

Constitution itself.

206. We may presently carefully peruse each clause of Article

239AA for construing the  meaning. A cursory reading of

clause (1) of Article 239AA shows that on 1st February, 1992,

the  Union  Territory  of  Delhi  was renamed  as the  National

Capital Territory of Delhi and it was to be administered by a

Lieutenant Governor from the date of coming into force of the

Sixty­ninth Amendment Act.

207. Sub­clause  (a)  of  clause  (2)  specifies  that the  National

Capital Territory of Delhi shall have a Legislative Assembly,

the seats of which shall be filled by members chosen by direct

election from territorial constituencies in the National Capital

Territory of Delhi. Sub­clause (b) of clause (2) stipulates that

the total number of seats in the Legislative Assembly of the

National Capital Territory of Delhi so established under sub­

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clause (a), the number of seats reserved for Scheduled Castes

in the said Legislative Assembly, the division of the National

Capital Territory of Delhi into territorial constituencies

(including the basis for such division) and all other matters

relating to the functioning  of the  said  Legislative  Assembly

shall be regulated  by law  made  by  Parliament.  Thereafter,

sub­clause (c) of clause (2) simply provides that the provisions

of Articles 324 to 327 and 329 which pertain to elections and

fall under Part XV of the Constitution shall also apply to the

National  Capital  Territory  of  Delhi, its  Legislative  Assembly

and  the  members  thereof in the  same manner as the said

provisions apply to the States. Further, sub­clause (c)

provides that the phrase "appropriate legislature" in Articles

326  and  329 shall, in the context of the  National  Capital

Territory of Delhi, mean the Parliament.

208. We must note here the stark difference in the language of

Article 239A clause (1) and that of Article 239AA clause (2).

Article 239A clause (1) uses the word 'may' which makes it a

mere directory provision with no obligatory force. Article 239A

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gives  discretion to the  Parliament to create  by law  for the

Union Territory of Puducherry a Council of Ministers and/or a

body which may either be wholly elected or partly elected and

partly nominated to perform the functions of a Legislature for

the Union Territory of Puducherry.

209. On the other hand, Article 239AA clause (2), by using the

word 'shall', makes it mandatory for the Parliament to create

by law a Legislative Assembly for the National Capital

Territory of Delhi. Further, sub­clause (a) of clause (2)

declares very categorically that the members of the Legislative

Assembly of the National Capital  Territory of Delhi shall  be

chosen by direct election from the territorial constituencies in

the  National  Capital  Territory  of  Delhi.  Unlike  Article  239A

clause (1) wherein the body created by the Parliament by law

to perform the functions of a Legislature for the Union

Territory of Puducherry may either be wholly elected or partly

elected and partly nominated, there is no such provision in

the context of the Legislative Assembly of the NCT of Delhi as

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per which members can be nominated to the Legislative

Assembly. This was a deliberate design by the Parliament.

210. We have  highlighted  this  difference to  underscore  and

emphasize the intention of the Parliament,  while inserting

Article 239AA in the exercise of its constituent power, to treat

the Legislative Assembly of the National Capital Territory of

Delhi as a set of elected representatives of the voters of the

NCT of Delhi and to treat the government of the NCT of Delhi

as a representative form of government.  

211. The Legislative Assembly is wholly comprised of elected

representatives  who are  chosen by  direct  elections and are

sent to  Delhi's  Legislative  Assembly  by the  voters  of  Delhi.

None of the  members of Delhi's Legislative Assembly are

nominated. The elected representatives and the  Council of

Ministers of Delhi, being accountable to the voters of Delhi,

must have the appropriate powers so as to perform their

functions 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

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it should be provided with a Legislative Assembly and a

Council of Ministers responsible to such Assembly with

appropriate  powers to  deal  with  matters  of concern to the

common man.

212. Sub­clause (a) of clause (3) of Article 239AA establishes

the power of the Delhi Legislative Assembly to enact laws for

the NCT of Delhi with respect to matters enumerated in the

State List and/or Concurrent list except in so far as matters

with respect to and which relate to entries 1, 2 and 18 of the

State List.

213. Sub­clause (b) of clause (3) lays down that the

Parliament has the powers to make laws with respect to any

matter for a Union Territory including the NCT of Delhi or any

part thereof and sub­clause (a) shall not derogate such powers

of the Parliament. Sub­clause (c) of clause (3) gives the

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 the Parliament,

then the law made by the Parliament shall prevail and the law

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made by the Delhi Legislative Assembly shall be void to the

extent of repugnancy.

214. Thus, it is evident from clause (3) of Article 239AA that

the Parliament has the power to make laws for the NCT of

Delhi on any of the matters enumerated in the State List and

the  Concurrent  List and  at the same time, the Legislative

Assembly of Delhi also has the legislative power with respect

to matters enumerated in the State List and the Concurrent

List except matters with respect to entries which have been

explicitly excluded from Article 239AA(3)(a).

215. Now, it is essential to analyse clause (4) of Article 239AA,

the most important provision for determination of the

controversy at hand. Clause (4) stipulates a Westminster style

cabinet system of government for the NCT of Delhi where there

shall be a Council of Ministers with the Chief Minister at the

head to aid and advise the Lieutenant Governor in the exercise

of his functions in relation to maters with respect to which the

Delhi Legislative Assembly has power to enact laws except in

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matters in respect of which the Lieutenant Governor is

required to act in his discretion.

216. The  proviso to clause (4) stipulates that in case of a

difference of  opinion on any matter between the Lieutenant

Governor  and  his  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.

217. A conjoint reading  of  Article  239AA  (3) (a)  and Article

239AA(4) reveals that the executive power of the Government

of NCT of Delhi is co­extensive with the legislative power of the

Delhi Legislative Assembly which is envisaged in Article

239AA(3) and which extends over all but three subjects in the

State List and all subjects in the Concurrent List and, thus,

Article  239AA(4) confers  executive  power  on  the  Council  of

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Ministers over all those subjects for which the Delhi

Legislative Assembly has legislative power.

218. Article  239AA(3)(a) reserves the  Parliament's legislative

power on all matters in the State list and Concurrent list, but

clause (4) 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  the  case  of  Ram

Jawaya Kapur (supra) which has been discussed elaborately

in the earlier part of the judgment.

219. Article 239AA(4) confers executive powers on the

Government of NCT of Delhi whereas the executive power of

the Union stems from Article 73 and is co­extensive with the

Parliament's legislative power. Further, the ideas of pragmatic

178

federalism and collaborative federalism will fall to the ground

if we 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 the NCT of Delhi some degree of required independence

in  its functioning subject  to the  limitations  imposed by the

Constitution.

220.  Another important aspect is the interpretation of the

phrase ‘aid and advise’ in Article 239AA(4). While so

interpreting, the authorities in Shamsher Singh  (supra) and

Devji Ballabhbhai Tandel  (supra) have to be kept in mind.

Krishna Iyer, J., in  Shamsher Singh  (supra), has

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categorically held that the President and the Governor, being

custodians of all executive powers, shall act only upon and in

accordance with the aid and advice of their Ministers save in a

few  well known exceptional situations.  Devji Ballabhbhai

Tandel  (supra), on the other hand, has observed that there is

a functional difference in the powers and the position enjoyed

by the President and Governor on one hand and the

Administrator on the other hand. It has also been observed

that it is not possible to hold to the view laid down in

Shamsher Singh  (supra) in the context of Governor and

President to  mean that the  Administrator is also  purely a

constitutional functionary who is bound to act on the ‘aid and

advice’ of the Council of Ministers and cannot act on his own.

221. It is necessary to note with immediacy that  Devji

Ballabhbhai Tandel  (supra) represents a pre―Sixty­ninth

Amendment view and that too in the context of a Union

Territory which does not have a unique position as the NCT of

Delhi does. Presently, the scheme of Article 239AA(4) is

different.  It requires the Lieutenant Governor to act as per the

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'aid and advice' of the Council of Ministers with respect to all

matters for which the Legislative Assembly of Delhi has the

power to enact laws except what has been stated in the

proviso which requires a thoughtful interpretation.

222. The language employed in the proviso has to be

understood keeping in view the concepts which we have

elaborately adumbrated hereinbefore. As noted earlier, the

submission of the learned counsel for the appellant is that the

Lieutenant Governor can only exercise the power or take

refuge to the proviso to Article 239AA(4) where the said ‘aid

and advice’ of the Council of Ministers transgresses the area

constitutionally prescribed to them by virtue of Article

239AA(3)(a).

223. We may note here that a narrow or restricted meaning in

respect of the words, namely, “on any matter” as is suggested

by the appellant, takes away the basic concept of

interpretative process, for the said expression does not

remotely convey that it is confined to the excepted legislative

fields.  Similarly, a broad or unrestricted interpretation of the

181

term to include every difference would obstruct the idealistic

smooth stream of governance.   Therefore, the Court has the

duty to place such a meaning or interpretation on the phrase

that is workable and the need is to establish the norm of fine

constitutional balance.   

224. The counsel for the respondents has sought to impress

upon this Court that the term "any" occurring in the proviso to

clause (4) of Article 239AA should be given widest import in

order to include everything within its ambit and for the said

purpose, reliance has been placed upon Tej Kiran  (supra). It

has been highlighted in the earlier part of this judgment that

while interpreting  a  constitutional  provision and construing

the meaning of specific word(s) occurring in a constitutional

provision, the  Court  must read  the  same  in the  context in

which the word(s) occurs by referring to the annexing words of

the said provision and also bearing in mind the concepts that

we  have  adverted to.  As regards the importance  of context

while deciphering the true meaning and importation of a term,

Austin has made the following observations:­

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“When I see the word "any" in a statute, I immediately know it's unlikely to mean "anything" in the universe.  Any" will  have a  limitation on  it, depending on the context. When my wife says, "there isn't any butter." I understand that she's talking about what is in our refrigerator, not worldwide. We look at context over and over, in life and in law."84

225. In this context, the observations  made in the case  of

Small v. United States85 are relevant to be noted:­

"The question before us  is  whether  the statutory reference "convicted in any court" includes a conviction entered in a foreign court.  The  word "any"  considered  alone  cannot  answer  this question. In ordinary life, a speaker who says, "I'll see  any film,"  may  or  may  not  mean  to include films shown  in another  city. In law a  legislature that uses the statutory phrase "'any person'" may or may not mean to include "'persons'" outside "the jurisdiction of the state."

226. Further,  words of  wide import  must be construed  by

placing reliance upon the intention with which the said words

have been used. Elucidating the importance of intention,

Marshall,  C.J.  of  the Supreme Court of  U.S. in the case of

United States v. Palmer86 observed:­

84 J.L  Austin, How  to  do  things  with  words, The William James Lectures delivered at Harvard University, 1955

85 544 U.S. 385 (2005) 86 16 U.S. 3 Wheat .610610(1818)

183

“The words "any person or persons" are broad enough to comprehend every human being. But general  words  must  not only  be limited to cases within the jurisdiction of the state, but also to those objects to which  the  legislature  intended  to apply them. Did the legislature intend to apply these words to the subjects of a foreign power who in a foreign ship may commit murder or robbery on the high seas?

The 8th section also commences  with the  words "any person or persons." But these words must be limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we  must examine the law”.”

227. At home, it has also been acknowledged that the word

'any’ can have different meanings depending on the context in

which it has been used and the Courts must not mechanically

interpret it to mean 'everything'.   In  Shri Balaganesan

Metals v. M.N. Shanmugham  Chetty and others87,  this

Court has observed:­

"The word "any" has the following meaning:­

Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity.”

Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute

87 (1987) 2 SCC 707

184

depends upon the context and the subject matter of the statute."

It is often synonymous with "either", "every" or "all". Its generality may be restricted by context; (Black's Law Dictionary; Fifth Edition)."

228. In  Kihoto Hollohan v. Zachillhu and others88, the

Court has stated:­

"...the words "any direction" would cost it its constitutionality' does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and  limit the contours of its meaning.  The assignment of  a  limited meaning  is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning."

229. In  A.V.S.  Narasimha Rao and Ors.  v.  The State of

Andhra Pradesh and another89,  while interpreting the

expressions "any law” and “any requirement”, the Court has

refused to give a wide import to the said phrases. The

observations in that regard read thus:­

"The words 'any requirement' cannot be read to warrant something which could have been said

88AIR 1993 SC 412 89(1969) 1 SCC 839

185

more specifically. These words bear upon the kind of residence or its duration rather than its location within the  State.  We accept the  argument  of  Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this  clause is  an exception and came as  an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate.  We accordingly reject the contention  of  Mr.  Setalvad seeking to  put a very wide and liberal construction upon the words 'any law' and any requirement'. These words are obviously controlled by the words 'residence within the State or Union territory' which words  mean what they say, neither  more  nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution."

230. To lend support to this view, we can refer to the

observations made by Lindley LJ in  Warburton v.

Huddersfield Industrial Society90 wherein he has stated:­

"I cannot myself avoid coming to the conclusion that 'any lawful purpose' in sub­s (7) means any lawful purpose which is consistent with the rules. It cannot mean anything inconsistent with the rules...can it mean 'any lawful purpose' under the sun', or is it  'any lawful purpose of the society? If

90 [1892] 1 QB 817, pp 821­22

186

you look at  the context, that which precedes and that which follows, I do not think 'anybody, certainly (I do not think any lawyer would construe any lawful purpose,  in the wide way in which Mr Cohen invites us to construe it."

231. That apart,  the Court in  Workmen of Dimakuchi Tea

Estate v. The  Management of Dimakuchi Tea  Estate91

held:­

"A little careful consideration  will show,  however, that  the expression "any person" occurring  in  the third part of the definition clause cannot  mean anybody and everybody in this wide world. First of all. the subject matter of dispute must relate to (i) employment or non­employment or (ii) terms of employment or conditions of labour of any person; these necessarily import  a  limitation  in the sense that a person in respect of  whom  the employer­ employee relation never existed or can never possibly exist cannot be the subject  matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject  matter and scheme of the Act, and consistently with the objects and other provisions of the Act."

232. From the foregoing discussion, it is clear that the words

'any matter' occurring in the proviso to Article 239AA(4) does

not necessarily need to be construed to mean 'every matter'.

As highlighted in the authorities referred to hereinabove, the

91AIR 1958 SC 353

187

word ‘any’ occurring in a statute or constitutional provision is

not to be mechanically read to mean 'every' and the context in

which the word has been used must be given due weightage so

as to deduce the real intention and purpose in which the word

has been used.   

233. It has to be clearly understood that though ‘any’ may

not mean ‘every’, yet how it should be understood is extremely

significant. Let us elaborate. The power given to the

Lieutenant  Governor  under the proviso to  Article 239AA(4)

contains the rule of exception and should not be treated as a

general norm. The Lieutenant Governor is to act with

constitutional objectivity keeping  in view the high degree of

constitutional trust reposed in him while exercising the

special power ordained upon him unlike the Governor and the

President who are bound by the aid and advice of their

Ministers. The Lieutenant Governor need not, in a mechanical

manner, refer every decision of his Ministers to the President.

He has to be guided by the concept of constitutional morality.

There has to be some valid grounds for the Lieutenant

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Governor to refer the decision of the Council of Ministers to

the President  in order to protect  the  interest of the NCT of

Delhi and the principle of constitutionalism.  As per the 1991

Act and Rules of  Business,  he has to  be apprised of  every

decision taken by the Council of Ministers. He cannot change

the decision. That apart, there is no provision for concurrence.

He has the authority to differ. But it cannot be difference for

the sake of difference. It cannot be mechanical or in a routine

matter. The power has been conferred to guide, discuss and

see that the administration runs for the welfare of the people

and also NCT of Delhi that has been given a special status.

Therefore, the word ‘any’ has to be understood treating as a

guidance meant for the constitutional authority. He must bear

in mind the constitutional objectivity, the needed advice and

the realities.  

234. The proviso to Article 239AA(4), we say without any fear

of contradiction, cannot be interpreted in a strict sense of the

mere words employed treating  them as only letters  without

paying heed to the thought and the spirit which they intend to

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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.

235. The authorities in power should constantly remind

themselves that they are constitutional functionaries and they

have the responsibility to ensure that the fundamental

purpose of administration is the welfare of the people in an

ethical manner.   There is requirement of discussion and

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deliberation.   The fine nuances are to be dwelled upon with

mutual respect. Neither of the authorities should feel that they

have been lionized.  They should feel that they are serving the

constitutional norms, values and concepts.

236. Interpretation cannot ignore the conscience of the

Constitution. That apart, when we take a broader view, we are

also alive to the consequence of such an interpretation. If the

expressions “in case of  difference” and “on any matter”  are

construed to mean that the Lieutenant Governor can differ on

any proposal, the expectation of the people  which  has its

legitimacy in a democratic set  up, although  different from

States as understood  under the  Constitution,  will lose its

purpose in simple semantics. The essence and purpose should

not be lost in grammar like the philosophy of geometry cannot

be allowed to lose its universal metaphysics in the methods of

drawing. And that is why, we deliberated upon many a

concept.   Thus, the Administrator, as per the Rules of

Business,  has to  be apprised of each  decision taken  by  a

Minister or Council of Ministers, but that does not mean that

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the Lieutenant Governor should raise an issue in every

matter.  The difference of opinion must meet the standards of

constitutional trust and morality, the principle of collaborative

federalism and constitutional balance, the concept of

constitutional governance  and objectivity and the  nurtured

and cultivated idea of respect for a representative government.

The difference of opinion should never be based on the

perception of “right to differ” and similarly the term “on any

matter” should not be put on such a platform as to conceive

that as one can differ, it should be a norm on each occasion.

The difference must meet the concept of constitutional trust

reposed in the authority and there has to be objective

assessment of the decision that is sent for communication and

further the rationale of difference of opinion should be

demonstrable and it should contain sound reason. There

should not be exposition of the phenomenon of an

obstructionist but reflection of  the philosophy of affirmative

constructionism and a visionary. The constitutional

amendment does not perceive a situation of constant friction

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and difference which gradually builds a structure of conflict.

At the same time, the Council of Ministers being headed by

the Chief Minister should be guided by values and prudence

accepting the constitutional position that the NCT of Delhi is

not a State.  

T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993

237. Our attention, in the course of the proceedings, has also

been drawn to the Government of National Capital Territory of

Delhi Act, 1991 (for brevity, “the 1991 Act') which came into

force with effect from 2nd  January, 1992. The 1991 Act was

enacted by the Parliament by virtue of the power conferred

upon it by clause (7)(a) of Article 239AA. We think it

appropriate to refer to the Statement of Objects and Reasons

of the said enactment. It is as follows:­

"STATEMENT OF OBJECTS AND REASONS Under the new article 239­AA proposed to be inserted by the Constitution (Seventy­fourth Amendment) Bill, 1991, a Legislative Assembly and Council of Ministers will be established for the National Territory. Clause (7) (a) of the said article provides that Parliament may by law make

193

provisions for giving effect to or supplementing the provisions contained in that article and for all that matters incidental or consequential thereto.

2. In pursuance of the said clause, this bill seeks necessary provisions in respect of the legislative Assembly and its functioning including the provisions relating to the Speaker, Deputy Speaker, qualifications or  disqualifications  for  membership, duration, summoning, prorogation or dissolution of the House privileges, legislative procedures, procedure in financial matters, adders by the Lieutenant  Governor to the Legislative Assembly, constitution of Consolidated Fund for the National Capital Territory, Contingency Fund. etc. These are on the; lines of the provisions made in respect of a legislative Assembly of a State with suitable modifications.

3. Under the bill the delimitation of constituencies will be made by the Election Commission in accordance with the Procedure set out therein. Having regard to the special conditions prevailing in  Delhi, it has been provided that in respect of the frost constitution of the Assembly, such delimitation will be on the basis of provisional figures of population in relation to 1991 census, if final figures of population in relation to 1991 census, if final figures have not been published by them.

4. The Bill seeks to give effect to the above proposals."

238.  From the aforesaid, it is clear as crystal that the 1991

Act was conceived to be brought into existence for

supplementing the constitutional provision and also to take

care of incidental matters that are germane to Article 239AA.

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239. Upon scanning the anatomy of the  1991 Act,  we  find

that the Act contains fifty six Sections and is divided into five

Parts, each dealing with different fields. Now, we may refer to

some of the provisions contained in Part IV of the 1991 Act

titled 'Certain Provisions relating to Lieutenant Governor and

Ministers' which are relevant to the case at hand. Section 41

deals with matters in which the Lieutenant Governor may act

in his discretion and reads thus:­

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

(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or 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 quasi­judicial 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

195

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."

240. 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 quasi­judicial 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

stand excluded by clause (3)(a) of Article 239AA.

241. Section 42 deals with the aid and advice tendered by the

Council of Ministers to the Lieutenant Governor and reads as

under:­

"Section 42 Advice by Ministers:­The question whether any. and if so what, advice was tendered by

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Ministers to the Lieutenant Governor shall  not be inquired into in any court."

242. The wordings and phraseology of Section 42 of the 1991

Act is identical to that of clause (2) of Article 74 of the

Constitution which also is an indication that the expression

'aid and advice' should receive a uniform interpretation

subject to other constitutional provisions in the form of the

proviso to clause (4) of Article 239AA of the Constitution of

India. In other words, the 'aid and advice' given by the Council

of Ministers is binding on the Lieutenant Governor so long as

the Lieutenant Governor does not exercise the power conferred

upon him by the proviso to clause (4) of Article 239AA and

refer the matter to the President in exercise of that power for

his ultimate binding decision.

243. Section 44 that deals with the conduct of business in

the NCT of Delhi reads thus:­

"Section 44 Conduct of business.­­(1) the President shall make rules ­

(a) for the allocation of business to the Ministers in so far 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; and

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(b) for the more convenient transaction of business with the Ministers, including the procedure to be adopted in the case of a difference  of opinion  between  the  Lieutenant Governor and the  Council of  Ministers or a Minister.

(2) Save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the  advice of  his  Ministers  or  otherwise shall be expressed to be taken in the name of the Lieutenant Governor.

(3) Orders and other instruments made and executed  in  the  name of the Lieutenant  Governor shall be authenticated in such manner as may be specified in rules to be  made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that  it is not an order or instrument  made or executed by the Lieutenant Governor."

244. Section 44 of the 1991 Act has made it mandatory for the

President to frame rules for the allocation of business to the

Ministers and also the procedure to be adopted in case of a

difference of opinion between the Lieutenant Governor and the

Council of Ministers.

245. In exercise of the powers conferred under the aforesaid

provision, the President has framed the Transaction of

Business of the Government of National Capital Territory of

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Delhi Rules, 1993 (for brevity, ‘TBR, 1993’). The 1991 Act and

the  TBR,  1993,  when read together, reflect the scheme  of

governance for the NCT of Delhi. We will scrutinize and

analyze the relevant rules from the TBR, 1993 after analyzing

the other relevant provisions of the 1991 Act.

246. Now, Section 45 deals with the duties of the Chief

Minister of  Delhi  regarding furnishing of information to the

Lieutenant Governor and reads as below:­

"Section 45. Duties of Chief Minister as respect the furnishing of information to the Lieutenant Governor, etc. ­ It shall be the duty of the Chief Minister ­ (a) to communicate to the Lieutenant Governor

all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation;

(b)To furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for; and

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

247. Again, Section 45 of the 1991 Act is identical and

analogous to Article 167 of the Constitution which makes it

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obligatory for the Chief Minister of the NCT of Delhi to

communicate to the Lieutenant Governor all decisions of the

Council of Ministers relating to the administration of the

affairs of the NCT of Delhi and proposals for legislation. Having

said that, the real purpose of such communication is not to

obtain concurrence of the Lieutenant Governor on all decisions

of the Council of Ministers relating to the administration of the

affairs of the NCT of Delhi and on proposals for legislation, but

in actuality, the objective is to have the Lieutenant Governor

in synergy, to keep him in the loop and to make him aware of

all decisions of the Council of Ministers relating to the

administration of the affairs of the NCT of Delhi and proposals

for legislation so as to enable the Lieutenant  Governor to

exercise the power conferred upon him by the proviso to

clause (4) of Article 239AA.

248. 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:­

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

249. Section 49 of the 1991 Act discloses that the set up in

the  NCT of  Delhi is one  where the  Council of  Ministers

headed by the Chief Minister on one hand and the

Lieutenant Governor on the other are a team, a pair on a

bicycle  built for two  with the  President as its rider  who

retains the general control. Needless to say, the President,

while exercising this general control, acts as per the aid and

advice of the Union Council of Ministers.

250. Let us, in the obtaining situation, refer to the various

rules in TBR, 1993 which are necessary for dealing with the

present case  and for  discerning the real intention  of the

Parliament for inserting Articles 239AA and 239AB. Rule 4

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of the TBR, 1993 very categorically underscores the

collective responsibility of the Council of Ministers:­

“Rule  4(1) The Council shall be collectively responsible for  all the  execution orders  issued by any Department in the name of the Lieutenant Governor and contracts made  in  the name of the President in connection with the administration of the  Capital  whether  such orders  or  contracts  are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council.”

251. Chapter III of the TBR, 1993 deals  with 'Disposal of

Business allocated among  Ministers'. Rule 9 falling under

Chapter III provides for circulation of proposals amongst the

Council of Ministers and reads as under:­

"Rule 9(1) The Chief Minister may direct that any proposal submitted to him under rule 8 may. instead of being placed for discussion in a meeting of the  Council, be  circulated to the  Ministers for opinion, and if all the Ministers are unanimous and the Chief Minister is of the opinion that discussions in a  meeting of the  Council is not required, the proposal shall be treated as finally approved by the Council. In case. Ministers are not unanimous or if the Chief Minister is of the opinion that discussions in a meeting is required, the proposal shall be discussed in a meeting of the Council.

(2) If it  is decided to circulate any proposal,  the Department to  which it belongs, shall prepare a

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memorandum setting out  in brief the  facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to  the Secretary to the Council  who shall arrange to circulate the same among the  Ministers and simultaneously send a copy thereof to the Lieutenant Governor."

[Emphasis supplied]

Rule 9(2) stipulates that if it is decided that a proposal is

to  be circulated, the department to  which it belongs shall

prepare a  memo setting out in brief its facts, points for

decision and recommendations of the Minister­in­charge. The

said memo has to be forwarded to the Secretary to the Council

who shall circulate the same amongst the Ministers and at the

same time send its copy to the Lieutenant Governor.

252. Rule 10, which is relevant, is reproduced below:­

“Rule 10. (1) While directing that a proposal shall be circulated, the Chief Minister may also direct, if the matter be of urgent nature, that the Ministers shall communicate their opinion to the Secretary to the Council by a particular date, which shall be specified in the memorandum referred to in rule 9. (2) If any Minister fails to communicate his opinion to the Secretary to the Council by the date so specified in the memorandum, it shall be assumed that he has accepted the recommendations contained therein.

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(3) If the Minister has accepted the recommendations contained in the memorandum or the date by which he was required to communicate his opinion has expired, the Secretary to the Council shall submit the proposal to the Chief Minister. (4) If the Chief Minister accepts the recommendations and if  he has no observation to make, he shall return the proposal with his orders thereon to the Secretary to the Council. (5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V.

[Underlining is ours]

Rule 10(5) stipulates that when a decision has been

taken by the Council  of  Ministers on a proposal as per the

preceding sub­rules of Rule 10, then the Secretary to the

Council shall communicate the decision to the Lieutenant

Governor and pass on the proposal to the Secretary concerned

for taking necessary steps to issue the orders unless the

Lieutenant Governor decides to refer the decision to the

Central Government in pursuance of the provisions of Chapter

V of the TBR, 1993.

253. Rule 11 of the TBR, 1993 states thus:­

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“Rule  11.  When it has been decided to place a proposal before the Council, the Department to which  it  belongs,  shall,  unless the  Chief  Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal and the points for decision. Copies of the memorandum and such  other  documents, as  are necessary to enable the proposal to be disposed of shall be forwarded to the  Secretary to the Council who shall arrange to circulate the memorandum to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.”

[Emphasis added]

Basically, Rule 11 of the TBR, 1993 deals with the

procedure to be adopted for placing a proposal before the

Council of Ministers. The said rule stipulates that the proposal

shall be forwarded to the Secretary to the Council who shall

arrange to circulate a  memorandum indicating the salient

facts of the proposal and the points for decision to the

Ministers and simultaneously send a copy thereof to the

Lieutenant Governor.

254. The procedure is further detailed in Rule 13 which

stipulates as under:­

“Rule 13  (1) The council shall meet at such place and time as the Chief Minister may direct.

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(2) Except with the permission of the Chief Minister, no case shall be placed on the agenda of a meeting  unless  papers relating thereto  have  been circulated as required under rule 11. (3) After an agenda showing the proposals to be discussed in a  meeting of the  Council has been approved by the Chief Minister, copies thereof, together  with copies  of  such memoranda as  have not been circulated under rule 11, shall be sent by the Secretary to the Council, to the Lieutenant Governor, the Chief Minister and other Ministers, so as to reach them at least two days before the date of such meeting.  The Chief  Minister may,  in case of urgency, curtail the said period of two days. (4) If any Minister is on tour, the agenda shall be forwarded to the Secretary in the Department concerned who, if he considers that the discussion on any proposal should await the return of the Minister may request the Secretary to the Council to take the orders of the Chief Minister for a postponement of the discussion on the proposal until the return of the said Minister. (5) The Chief Minister or in his absence any other Minister nominated by the Chief Minister shall preside at the meeting of the Council. (6) If the Chief Minister so directs, the Secretary of the  Department concerned  may  be required to attend the meeting of the Council. (7) The Secretary to the Council  shall  attend all the  meetings of the  Council and shall prepare a record of the decisions.  He shall forward a copy of such record to Ministers and the Lieutenant Governor.”

[Emphasis supplied]

Rule  13, thus,  deals  with the  meeting  of  Council  of

Ministers  and  sub­rule (3) of  Rule  13  stipulates that the

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agenda of the proposals to be discussed in the meeting of

the Council shall be sent by the Secretary to the Lieutenant

Governor amongst others.

255. Again, Rule 14 states as below:­

“Rule 14  (1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding,  shall  be placed with  the records of the proposal. After approval by the Chief Minister or the Minister  presiding, the  decision of the  Council  as approved, shall be forwarded by the Secretary to the Council to the Lieutenant Governor. (2)  Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister  concerned shall take necessary action to give affect to the decision.”

[Underlining is ours]

Rule 14 deals with the decision of the Council on

different proposals. Sub­rule (1) of Rule 14 provides that once

a  decision  of the  Council  has  been  approved  by the  Chief

Minister or the Minister presiding, the said approved decision

shall be forwarded  by the  Secretary to the  Council to the

Lieutenant Governor.

256. Rule 23, elaborating on the classes of proposals or

matters, enumerates as under:­

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“Rule (23)  The following classes of proposals or matters shall essentially be submitted to the Lieutenant  Governor through the  Chief Secretary and the  Chief  Minister  before issuing  any  orders thereon, namely: (i) matters which affect or are likely to affect the

peace and tranquility of the capital;

(ii) matters which affect or are likely to affect the interest of any minority community. Scheduled Castes and backward classes;

(iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the High Court of Delhi;

(iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V;

(v) matters pertaining to the Lieutenant Governor's Secretariat and personnel establishment and other matters relating to his office;

(vi) matters on which Lieutenant Governor is required to make order under any law or instrument in force;

(vii) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence;

(viii) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those: and

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(ix) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.”

Rule 23 lays down a list of proposals or matters which

are essential to  be submitted  to the  Lieutenant Governor

through the Chief Secretary and the Chief Minister before

issuing any orders.

257. Rule 25 of the TBR, 1993 states thus:­

“Rule 25. The Chief Minister shall: (a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for: and (b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council.

Sub­rule (a) of Rule 25 requires the Chief Minister to

furnish to the Lieutenant Governor information relating to

the administration of the Capital and proposals for

legislation as the Lieutenant Governor may call for.

258. Further, Rule 42 prescribes the procedure after a Bill is

passed by the Legislative Assembly.  It reads as under:­

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“Rule 42.  (1) When a Bill has been passed by the Legislative Assembly it shall be examined in the Department concerned and the Law Department and shall be presented to the Lieutenant Governor with:­ (a)A report of the Secretary of the Department

concerned as to the reason, if any, why the Lieutenant Governor's assent should not be given: and

(b)A report of the Law Secretary as to the reasons, if any, why the Lieutenant Governor's assent should  not  be  given  or the  Bill should  not  be reserved for consideration of the President.”

Rule 42 basically  stipulates that when a bill  has been

passed by the Legislative Assembly of Delhi, the same shall be

presented to the Lieutenant Governor along with a report of

the Secretary of the department concerned and a report of the

Law Secretary.

259. It is  also pertinent to refer to Rules 49 and 50 falling

under Chapter V titled 'Referring to Central Government'

which read as follows:­

“CHAPTER­V

Referring to the Central Government

Rule 48 (Omitted) Rule 49 In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour bv

210

discussion on the  matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council.

Rule 50 In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.”

260. Rule 49 stipulates the procedure to be adopted in case

of  difference  of  opinion  between the  Lieutenant  Governor

and a Minister in regard to any matter. In such a scenario,

as per Rule 49, the Lieutenant Governor shall endeavour by

discussion on the matter to settle any point on which such

difference of opinion has arisen. If such an approach and

attempt to settle a point of difference by discussion turns

out to be futile and the difference of opinion persists, then

the Lieutenant Governor may direct the matter to be

referred to the Council. Rule 49 shows that settlement can

be achieved by way of discussion. It further highlights how,

by discussion and dialogue,  a  conflict  can be avoided by

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adopting an ideology of harmonious co­existence which

would again be in tune with the concepts of collaborative

federalism, pragmatic federalism, federal balance and

constitutional objectivity.

261. Rule 50, on the other hand, provides the procedure to

the  effect that in case of  difference of  opinion between the

Council and the Lieutenant Governor with regard to any

matter, the Lieutenant Governor is required to refer it to the

Central Government for the decision of the President and shall

act according to the decision of the President.

262. The approach of dialogue, settlement by discussion and

suppressing conflicts by harmonious co­existence as

delineated by  Rule 49 should also be adopted in case of

difference of opinion between the Lieutenant Governor on one

hand and the Council on the other. Such an approach would

not  only  result in  acceptance  of the role  of the  Lieutenant

Governor but also help the NCT of Delhi to cherish the fruits

of  a responsive  government  as intended by the  Sixty­ninth

Constitutional Amendment.

212

263. We  have referred to the relevant rules of TBR, 1993

which require that the Lieutenant Governor has to be

apprised and kept in the loop of the various proposals,

agendas and decisions taken by the  Council of  Ministers.

However, a careful perusal of  these rules nowhere suggests

that the communication to the Lieutenant Governor is to

obtain his concurrence or permission. The TBR, 1993 simply

reflect the  scheme envisaged for the  governance  of  NCT of

Delhi wherein just as an administrator in other UTs has to be

apprised, likewise the Lieutenant Governor in Delhi is also to

be informed and notified about the business being conducted.

264. The idea behind the aforesaid rules is just to keep the

Lieutenant Governor notified of the proposals,  agendas and

decisions so that he is acquainted with the business carried

out by the Council of Ministers. The said view is evident from

the various rules which employ the words 'send a copy thereof

to the Lieutenant Governor’, 'forwarded to the Lieutenant

Governor', 'submitted to the Lieutenant Governor and 'cause

to be furnished to the Lieutenant Governor'.

213

265. Thus,  the irresistible conclusion  is  that the Council is

only required to communicate and inform its various

proposals, agendas and decisions to the Lieutenant Governor

so as to keep him apprised and to enable him to scrutinize the

said proposals, agendas and decisions in order to exercise his

powers as bestowed  upon  him  under clause (4) of Article

239AA of the 1991 Act read with Rule 50 of the TBR, 1993.

266. It has to be clearly stated that requiring prior

concurrence of the Lieutenant Governor would absolutely

negate the ideals of representative governance and democracy

conceived for the NCT of Delhi by Article 239AA of the

Constitution. Any view to the contrary would not be in

consonance with the intention of the Parliament to treat Delhi

Government as a representative form of government.  

267. The said interpretation is also in tune with our

constitutional spirit which ensures that the voice of the

citizens does not go unrecognized while making laws and this

is only possible if the agency enacting and enforcing the laws

comprises of the elected representatives chosen by  the  free

214

will of the citizens. It is a well recognized principle of a true

democracy that the power shall not remain vested in a single

person and it is absolutely essential that the ultimate say in

all matters shall vest with the representative Government who

are responsible to give effect to the wishes of the citizens and

effectively address their concerns.

268. A conjoint reading of the 1991 Act and the TBR, 1993

formulated in pursuance of Section 44 of the 1991 Act

divulges that the Lieutenant Governor of Delhi is not a titular

head, rather he enjoys the power of that of an administrator

appointed by the President under Article 239AA. At the cost of

repetition,  we  may reiterate that the  constitutional scheme

adopted for the  NCT of  Delhi conceives of the  Council of

Ministers as the representatives of the people on the one hand

and the Lieutenant Governor as the nominee and appointee of

the President on the other, who are required to function in

harmony  within the constitutional parameters. In the said

scheme of things, the Lieutenant Governor should not emerge

215

as an adversary having a hostile attitude towards the Council

of Ministers of Delhi, rather he should act as a facilitator.

269. We had earlier stated that Mr. Maninder Singh, learned

Additional Solicitor General, had urged that the report of the

Balakrishnan Committee should be taken aid of to interpret

the constitutional provision and for the said purpose, he had

placed reliance on  Maumsell v. Olins92,  Eastman

Photographic Materials Company v. Comptroller­General

of Patents, Designs and Trademarks93,  Tikri Banda

Dullewe v. Padma  Rukmani Dullewe94,  Black Clawson

International Ltd. v. Papierwerke Waldhof­

Aschaffenburg95,  R.S. Nayak v. A.R. Antulay96,  Shrimant

Shamrao Suryavanshi v. Pralhad Bhairoba

Suryavanshi97  and  TMA Pai Foundation v. State of

Karnataka98.  He had laid emphasis on paragraph 34 of the

92  [1975] AC 373 93  (1989) AC 571 94  (1969) 2 AC 313 95  (1975) AC 591 96  (1984) 2 SCC 183  97 (2002) 3 SCC 676 98 (2002) 8 SCC 481

216

judgment in  A.R. Antulay  (supra).   The relevant part of the

said paragraph reads as follows:­

“34. …the basic purpose underlying all  canons of construction  is  the ascertainment with reasonable certainty of the intention of Parliament in enacting the  legislation.  Legislation  is  enacted to achieve a certain object. The object may be to remedy a mischief or to create some rights, obligations or impose duties.  Before  undertaking the  exercise  of enacting a statute, Parliament can be taken to be aware of the constitutional principle of judicial review  meaning thereby the legislation would be dissected and subjected to microscopic examination. More often an expert committee or a joint parliamentary committee examines the provisions of the proposed legislation. But language being an inadequate vehicle of thought comprising intention,  the eyes scanning the statute would be presented with varied meanings. If the basic purpose underlying construction of a legislation is to ascertain the real intention  of the Parliament, why should the  aids  which  Parliament  availed  of such as report of a special committee preceding the enactment,  existing  state  of law, the  environment necessitating enactment of legislation, and the object sought to  be achieved,  be  denied to court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction. Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of joint parliamentary committee, report of a commission set up for collecting

217

information leading to the enactment are permissible external aids to construction.”

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.

However,  in the  instance case, as we have elaborately dealt

with the meaning to be conferred on the constitutional

provision that calls for interpretation, there is no necessity to

be guided by the report of the Committee.  

U. Constitutional renaissance:

271. Before we proceed to record our conclusions, we think it

apposite to reflect on a concept that illumines the basic tenet

of  constitutional  governance having  requisite  veneration  for

constitutional philosophy and its applicability in the present

context.

272. Though ordinarily the term ‘renaissance’ is used in the

context of renewed  activity especially  pertaining to  art and

literature, yet the said word is not alien to the fundamental

meaning of life in a solid civilized society that is well cultivated

218

in culture.  And, life, as history witnesses, gets entrenched in

elevated civilization when there is fair, appropriate, just and

societal interest oriented governance.  In such a situation, no

citizen feels like a subject and instead has the satisfaction that

he is a constituent of the sovereign. When the citizens feel that

there is participatory governance in accordance with the

constitutionally envisaged one, there is prevalence of

constitutional governance.  

273. This prevalence is the recognition and acceptance of

constitutional expectation from the functionaries created by it.

It is to remain in a constant awakening as regards the text,

context, perspective, purpose and the rule of law. Adherence to

rationality, reverence for expected pragmatic approach on the

bedrock of the constitutional text, context and vision and

constant reflection on the valid exercise of the power vested

tantamounts to resurgent constitutionalism.   It may be

understood in a different manner. Our Constitution is a

constructive one. There is no room for absolutism. There is no

space for anarchy. Sometimes it is argued, though in a

219

different context, that one can be a “rational anarchist”, but

the said term has no entry in the field of constitutional

governance and rule of law.   Fulfillment of constitutional

idealism ostracizing anything that  is  not  permissible by the

language of the  provisions of the Constitution and showing

veneration to its spirit and silence with a sense of reawakening

to the vision of the great living document is, in fact,

constitutional renaissance.

274. Let us come to the present context and elaborate the

concept. The said concept garners strength  when there is

rational difference by the Lieutenant Governor on a

constitutional prism, any statutory warrant, executive

disharmony  between the  Centre and  NCT  of  Delhi on real

justifiable grounds, when an executive decision runs counter

to the legislative competence and the decision of the Council of

Ministers defeats the national interest. These are only a few

illustrations. The Constitution does not state the nature of the

difference. It leaves it to the wisdom of the Council of Ministers

who have the collective responsibility and the Lieutenant

220

Governor. That is the constitutional trust which expects the

functionaries under the Constitution to be guided by

constitutional morality, objective pragmatism and the balance

that is required to sustain proper administration.  The idea of

obstinance  is  not  a principle  of  welfare  administration.  The

constitutional principles do not countenance a nomadic

perception. They actually expect governance for the betterment

of society, healthy relationship and mutual respect having an

open mind for acceptance.  

275. The goal is to avoid any disharmony and anarchy.

Sustenance of constitutionally conferred trust, recognition and

acceptance of the principle of constitutional governance,

adherence to the principles and norms which we have

discussed earlier and the constitutional conduct having regard

to the elevated guiding precepts stated in the Preamble will

tantamount to realization of the feeling of constitutional

renaissance. When we say renaissance, we do not mean

revival of any classical note with a sense of nostalgia but true

blossoming of the constitutional ideals, realization and

221

acceptance of constitutional responsibility within the

boundaries of expression and silences and sincerely accepting

the summon to be obeisant to the constitutional conscience

with a sense of reawakening to the constitutional vision.

276.  That is why, the 1991 Act and the TBR, 1993 conceive of

discussion, deliberation and dialogue. The exercise of

entitlement to differ has to be based on principle and

supported by cogent reasons. But, the primary effort has to be

to arrive at a solution. That is the constitutional conduct of a

constitutional functionary.

V. The conclusions in seriatim:

277. In view of our aforesaid analysis, we record our

conclusions in seriatim:­

(i) While interpreting the provisions of the

Constitution, the safe and most sound approach for

the  Constitutional  Courts to  adopt is to read  the

words of the Constitution in the light of the spirit of

the Constitution so that the quintessential

222

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.

(ii) In a democratic republic, the collective who are

the sovereign elect their law making representatives

for  enacting laws  and  shaping  policies  which  are

reflective of the popular will. The elected

representatives being accountable to the public

must be accessible, approachable and act in a

transparent manner. Thus, the elected

representatives must display constitutional

objectivity as a standard of representative

governance which neither tolerates ideological

fragmentation nor encourages any utopian fantasy,

rather it lays stress on constitutional ideologies.

(iii)   Constitutional morality, appositely understood,

means the morality that has inherent elements in

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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 realize our

constitutional vision, it is indispensable that all

citizens and high functionaries in particular

inculcate  a  spirit  of  constitutional  morality  which

negates the  idea of  concentration of  power  in the

hands of a few.

(iv) All  the three organs of the State must remain

true to the Constitution by upholding the trust

reposed by the Constitution in them. The decisions

taken by constitutional functionaries and the

process  by  which  such  decisions  are taken must

have normative reasonability and acceptability.

Such decisions, therefore, must be in accord with

the principles of constitutional objectivity and

symphonious with the spirit of the Constitution.

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(v) The Constitution being the supreme instrument

envisages the concept of constitutional governance

which has, as its twin limbs, the principles of

fiduciary nature of public power and the system of

checks and balances. Constitutional governance, in

turn, gives birth to the requisite constitutional trust

which must be exhibited by all constitutional

functionaries while performing their official duties.

(vi)    Ours is a parliamentary form of government

guided by the principle of collective responsibility of

the Cabinet. The Cabinet owes a duty towards the

legislature for every action taken in any of the

Ministries and every individual Minister is

responsible for every act of the Ministry. This

principle  of  collective  responsibility is  of immense

significance in the context of  ‘aid and advice'. If a

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

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the concept of collective responsibility would stand

negated.

(vii) 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

full­fledged effect to both these concepts.

(viii) 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 achieving

federal balance  has  become  a  necessity requiring

disciplined wisdom on the part of the Union and the

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State  Governments  by  demonstrating  a  pragmatic

orientation.  

(ix) The Constitution has mandated a federal

balance wherein independence of a certain required

degree is assured to the State Governments. As

opposed to centralism, a balanced federal structure

mandates that the Union does not usurp all powers

and the States enjoy freedom without any

unsolicited interference from the Central

Government with respect to matters which

exclusively fall within their domain.

(x) There is no dearth of authorities with regard to

the method and approach to be embraced by

Constitutional Courts while interpreting the

constitutional provisions. Some lay more emphasis

on one approach over the other, while some

emphasize that a mixed balance resulting in a

unique methodology shall serve as the best tool. In

spite of diverse views on the said concept,  what

227

must be kept primarily in mind is that the

Constitution is a dynamic and heterogeneous

instrument, the interpretation of which requires

consideration of several factors which must be given

their due  weightage in order to come  up  with a

solution harmonious with the purpose with which

the different provisions were introduced by the

framers of the Constitution or the Parliament.

(xi) In the light of the contemporary issues, the

purposive method has gained importance over the

literal approach and the Constitutional Courts, with

the vision to realize the true and ultimate purpose

of the  Constitution  not  only in letter  but  also in

spirit and  armed  with the tools of ingenuity  and

creativity, must not shy away 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

228

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.  

(xii) In the light of the ruling of the nine­Judge

Bench in  New Delhi Municipal Corporation

(supra), it is clear as noon day that by no stretch of

imagination, NCT of Delhi can be accorded the

status of a State under our present constitutional

scheme.  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.  

(xiii) With the insertion of Article 239AA by virtue of

the Sixty­ninth Amendment, the Parliament

envisaged a representative form of Government for

229

the 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.

(xiv) The interpretative dissection of Article 239AA(3)

(a) reveals that the Parliament  has the power to

make laws for the National Capital Territory of Delhi

with respect to any matters enumerated in the State

List and the Concurrent List.  At the same time, the

Legislative Assembly of Delhi also has the power to

make laws over all those subjects which figure in

the Concurrent List and all, but three excluded

subjects, in the State List.

230

(xv)  A conjoint reading of  clauses  (3)(a)  and  (4) of

Article 239AA 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 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.  

(xvi) As a natural corollary, the Union of India has

exclusive executive power with respect to the NCT of

Delhi relating to the three matters in the State List

in respect of which the power of the Delhi

Legislative Assembly has been excluded. In respect

of other matters, the executive power is to be

exercised by the Government of NCT of Delhi.  This,

231

however, is subject to the proviso to Article

239AA(4) of the Constitution. Such an

interpretation would be in consonance with the

concepts of pragmatic federalism and federal

balance by giving the Government of NCT of Delhi

some required degree of independence subject to the

limitations imposed by the Constitution.

(xvii)  The meaning of  ‘aid and advise’ employed in

Article 239AA(4) has to be construed to mean that

the Lieutenant Governor of NCT of Delhi is bound

by the aid and advice of  the Council  of  Ministers

and this position holds true so long as the

Lieutenant  Governor does  not exercise  his power

under the proviso to clause (4) of Article 239AA. The

Lieutenant Governor has  not  been entrusted with

any independent decision­making power. He has to

either act on the 'aid and advice’ of Council of

Ministers or he is bound to implement the decision

232

taken by the President on a reference being made by

him.

(xviii) The words “any matter” employed in the

proviso to clause (4) of Article 239AA cannot be

inferred to mean “every matter”. The power of the

Lieutenant Governor under the said proviso

represents the exception and not  the general  rule

which has to be exercised in exceptional

circumstances by the Lieutenant Governor keeping

in mind the standards of  constitutional  trust and

morality, the principle of collaborative federalism

and constitutional balance, 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.

233

(xix) The difference of opinion between the

Lieutenant Governor and the Council  of  Ministers

should have a sound rationale and there should not

be exposition of the phenomenon of an

obstructionist but reflection of the philosophy of

affirmative  constructionism and profound sagacity

and judiciousness.

(xx) The Transaction of Business Rules, 1993

stipulates the procedure to be followed by the

Lieutenant Governor  in case of difference between

him and his  Ministers. The Lieutenant  Governor

and the Council of Ministers must attempt to settle

any  point  of  difference  by  way  of  discussion  and

dialogue.  By contemplating such a procedure, the

TBR, 1993 suggest that the Lieutenant  Governor

must  work harmoniously  with his  Ministers and

must not seek to resist them every step of the way.

The need for harmonious resolution by discussion is

recognized especially to sustain the representative

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form of  governance  as  has  been contemplated  by

the insertion of Article 239AAA.

(xxi)  The scheme that has been conceptualized by

the insertion of Articles 239AA and 239AB read with

the provisions of the  GNCTD  Act, 1991 and the

corresponding TBR, 1993 indicates that the

Lieutenant Governor, being the Administrative

head, shall be kept informed with respect to all the

decisions taken  by the  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

235

him apprised in order to enable him to exercise the

power conferred upon him under Article  239AA(4)

and the proviso thereof.  

(xxii)     The authorities in power should constantly

remind themselves that they are constitutional

functionaries and they have the responsibility to

ensure that the fundamental purpose of

administration is the  welfare  of the  people in  an

ethical manner.  There is requirement of discussion

and deliberation. The fine nuances are to be dwelled

upon with mutual respect. Neither of the authorities

should feel that they have been lionized.   They

should feel that they are serving the constitutional

norms, values and concepts.

(xxiii) Fulfillment of constitutional idealism

ostracizing anything that is not permissible by the

language of the provisions of the Constitution and

showing veneration to its sense, spirit and silence is

constitutional renaissance. It has to be remembered

236

that our Constitution is a constructive one. There is

no room for absolutism. There is no space for

anarchy. Sometimes it is argued, though in a

different context, that one can be a “rational

anarchist”,  but the said term has no entry  in the

field of  constitutional governance and rule of law.

The constitutional functionaries are expected to

cultivate the understanding of constitutional

renaissance by realization of their constitutional

responsibility and sincere acceptance of the

summon to be obeisant to the constitutional

conscience with a sense of reawakening to the

vision of the great living document so as to enable

true blossoming of the constitutional ideals. The

Lieutenant Governor and the Council  of  Ministers

headed by the Chief Minister are to constantly

remain alive to this idealism.

237

278. The Reference is answered accordingly. Matters be placed

before the appropriate regular Bench.

 ………………………………..CJI (Dipak Misra)

………………………………….J. (A.K. Sikri)

…………………………………..J. (A.M. Khanwilkar)  

New Delhi;   July 04, 2018  

1    

REPORTABLE  

   IN THE SUPREME COURT OF INDIA  CIVIL/CRIMINAL APPELLATE/ORIGINAL JURISDICTION  

 CIVIL APPEAL No. 2357 OF 2017  

         GOVT OF NCT OF DELHI                  .....APPELLANT                     

Versus   

UNION OF INDIA                                        ....RESPONDENT  

WITH  

CONTEMPT PETITION (C) No.175/2016  In     

WRIT PETITION (Crl.) No.539/1986,      

CIVIL APPEAL No.2360/2017,  

  CIVIL APPEAL No.2359/2017,  

 CIVIL APPEAL No.2363/2017,  

 CIVIL APPEAL No.2362/2017,  

2    

CIVIL APPEAL No.2358/2017,  

 CIVIL APPEAL No.2361/2017,  

 CRIMINAL APPEAL No.277/2017,  

AND  

CIVIL APPEAL No.2364/2017  

J U D G M E N T  

Dr D Y CHANDRACHUD, J    

INDEX  

 A) Introduction  

B) Constitutional Morality  

C) Constitutional Interpretation  

D) Part VIII of The Constitution: The Union Territories  

E) Cabinet Form of Government  

- Collective Responsibility  

- Aid and Advice

3    

F) The Nature of Executive Power  

G) Constitutional History of the NCT  

- The Government of Part C States Act, 1951  

- The Government of Union Territories Act, 1963  

- The Delhi Administration Act, 1966  

- The Balakrishnan Committee  

H) NCT: A Special Class among Union Territories?  

I) The Government of National Capital Territory of Delhi Act, 1991  

J) The Transaction of Business Rules, 1993  

K) Precedents  

- Literal Interpretation  

- Relationship between Centre and Union Territories  

- Decision in NDMC  

- General Clauses Act  

- “Insofar as any such matter is applicable to Union territories”  

L) Construction of the proviso to Article 239AA(4)  

M)  Conclusions

PART A   

4    

A Introduction  

1 A batch of petitions in the Delhi High Court addressed unresolved issues  

between the Lieutenant Governor of the National Capital Territory and its  

Council of Ministers headed by the Chief Minister.  The judgment of the Delhi  

High Court, delivered on 4 August 2016, travelled to this Court.  When the Civil  

Appeals were heard, a Bench consisting of Hon’ble Mr Justice A K Sikri and  

Hon’ble Mr Justice R K Agrawal, in an order dated 15 February 2017 was of the  

opinion that the appeals should be heard by a Constitution Bench as substantial  

questions of law about the interpretation of Article 239AA of the Constitution are  

involved.   

2 This batch of cases is about the status of Delhi, after the Sixty-ninth  

constitutional amendment1, but more is at stake.  These cases involve vital  

questions about democratic governance and the role of institutions in fulfilling  

constitutional values. The Constitution guarantees to every individual the  

freedom to adopt a way of life in which liberty, dignity and autonomy form the  

core. The Constitution pursues a vision of fulfilling these values through a  

democratic polity. The disputes which led to these cases tell us how crucial  

institutions are to the realization of democracy.  It is through them that the  

aspirations of a democratic way of life, based on the rule of law, are fulfilled.   

Liberty, dignity and autonomy are constraining influences on the power of the  

                                                           1 The Constitution (Sixty Ninth Amendment) Act, 1991

PART A   

5    

state. Fundamental human freedoms limit the authority of the State.  Yet the  

role of institutions in achieving democracy is as significant. Nations fail when  

institutions of governance fail. The working of a democratic institution is  

impacted by the statesmanship (or the lack of it) shown by those in whom the  

electorate vests the trust to govern.  In a society such as ours, which is marked  

by a plurality of cultures, a diversity of tradition, an intricate web of social identity  

and a clatter of ideologies, institutional governance to be robust must  

accommodate each one of them.  Criticism and dissent form the heart of  

democratic functioning.  The responsiveness of institutions is determined in a  

large measure by their ability to be receptive to differences and perceptive to  

the need for constant engagement and dialogue.  Constitutional skirmishes are  

not unhealthy.  They test the resilience of democracy.  How good a system  

works in practice must depend upon the statesmanship of those who are in  

decision making positions within them.  Hence, these cases are as much about  

interpreting the Constitution as they are about the role of institutions in the  

structure of democratic governance and the frailties of those who must answer  

the concerns of citizens.  

3 In the first of a series of articles in the New York Times of 14 December  

2017, David Brooks laments events which occurred in various parts of the world,  

casting a shadow on democracy.  Liberal democracy seemed to triumph with  

the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa.

PART A   

6    

Many of those aspirations are continuously under challenge.  The foundation  

for addressing the aspirations of a democratic spring  are  reflected  in  Brooks’

article titled – ironically – “the Glory of Democracy”.  Drawing from Thomas  

Mann’s “The Coming Victory of Democracy” (1938), he has this to say:  

 “Democracy, Mann continues, is the only system built on  

respect for the infinite dignity of each individual man and  

woman, on each person’s moral striving for freedom,  

justice and truth.  It would be a great error to think of and  

teach democracy as a procedural or political system, or as  

the principle of majority rule.  

It is a “spiritual and moral possession.”  It is not just rules;  

it is a way of life.  It encourages everybody to make the best  

of their capacities – holds that we have a moral  

responsibility to do so.  It encourages the artist to seek  

beauty, the neighbour to seek community, the psychologist  

to seek perception, the scientist to seek truth.  

Monarchies produce great paintings, but democracy  

teaches citizens to put their art into action, to take their  

creative impulses and build a world around them.  

“Democracy is thought; but it is thought related to life and  

action.” Democratic citizens are not just dreaming; they are  

thinkers who sit on the town council.  He quotes the  

philosopher Bergson’s dictum: “Act as men of thought,  

think as men of action.”2  

While we have to interpret the Constitution in deciding this reference, it is well  

to remind ourselves that how citizens respond to their statesmen has a powerful  

role in giving meaning to the fine print of law.   

                                                           2 David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017), available at  

https://www.nytimes.com/2017/12/14/opinion/democracy-thomas-mann.html  

PART B   

7    

B Constitutional Morality  

4 The Constitution was adopted in an atmosphere of expectation and  

idealism. The members of the Constituent Assembly had led the constitutional  

project with a commitment to the future of a nascent nation. “India’s founding  

fathers and mothers”, Granville Austin observes, “established in the  

Constitution both the nation’s ideals and the institutions and processes for  

achieving them”.3 These ideals were “national unity and integrity and a  

democratic and equitable society”4. The Constitution was designed “to break  

the shackles of traditional social hierarchies and to usher in a new era of  

freedom, equality, and justice”5. All this was to be achieved through a  

democratic spirit using constitutional and democratic institutions.6  

5 Democracy is not limited to electing governments. It generates  

aspirations and inspires passions. Democracy is based on “the recognition that  

there is no natural source of authority that can exercise power over individuals”.7  

When India attained independence, it faced a major dilemma. Democracy as  

an ideal had developed in the course of the nationalist struggle against colonial  

rule. Democratic political institutions were still to develop, at any rate fully:  

“Democracy emerged in India out of a confrontation with a  

power imposed from outside rather than an engagement with  

the contradictions inherent in Indian society … In the West, the  

democratic and industrial revolutions emerged together,  

                                                           3 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), page xi  4 Ibid  5 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press (2008), at page 15  6 Granville Austin (Supra Note 3)  7 Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages 35-36

PART B   

8    

reinforcing each other and slowly and steadily transforming the  

whole of society. The economic and social preconditions for  

the success of democracy grew along with, and sometimes in  

advance of, the political institutions of democracy. In India, the  

political argument for democracy was adopted by the leaders  

of the nationalist movement from their colonial rulers and  

adapted to their immediate objective which was freedom from  

colonial rule. The building of new political institutions took  

second place, and the creation of the economic and social  

conditions for the successful operation of those institutions,  

such as education, health care, and other social services,  

lagged well behind.”8  

6 The framers of the Constitution were aware of the challenges which the  

newly instituted democracy could face. In his address to the Constituent  

Assembly, Dr Ambedkar stated: “Democracy in India is only a top-dressing on  

an Indian soil, which is essentially undemocratic”.9 To tackle these challenges,  

the Constitution envisaged the existence of a responsible and representative  

government. Provisions regarding administration of democracy were  

incorporated, in detail, into the Constitution by the members of the Constituent  

Assembly. Dr Ambedkar made an impassioned plea that the core values of  

Indian democracy, to be protected and sustained, ought to be guided by the  

presence of constitutional morality.  

7 While moving the Draft Constitution in the Constituent Assembly on  

November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote:   

“By constitutional morality, Grote meant… a paramount  

reverence for the forms of the constitution, enforcing  

obedience to authority and acting under and within these  

                                                           8 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)  9 Constituent Assembly Debates, Vol. 7 (4th November 1948)   10 Ibid

PART B   

9    

forms, yet combined with the habit of open speech, of action  

subject only to definite legal control, and unrestrained censure  

of those very authorities as to all their public acts combined,  

too with a perfect confidence in the bosom of every citizen  

amidst the bitterness of party contest that the forms of  

constitution will not be less sacred in the eyes of his opponents  

than his own.”  

Dr Ambedkar made it clear that constitutional morality was to be cultivated and  

learned. Constitutional morality was not a “natural sentiment” and its diffusion  

could not be presumed. While highlighting that the diffusion of constitutional  

morality is indispensable for “the peaceful working of the democratic  

constitution”, Dr Ambedkar observed that the form of the Constitution had to be  

in harmony with the form of its administration:  

“One is that the form of administration must be appropriate to  

and in the same sense as the form of the Constitution. The  

other is that it is perfectly possible to pervert the  

Constitution, without changing its form by merely  

changing its form of administration and to make it  

inconsistent and opposed to the spirit of the Constitution.”  

(emphasis added)  

8 If the moral values of our Constitution were not upheld at every stage, the  

text of the Constitution may not be enough to protect its democratic values. In  

order to truly understand what constitutional morality reflects, it is necessary to  

answer “what it is that the Constitution is trying to say” and to identify “the  

broadest possible range… to fix the meaning of the text”11. Bhargava’s work  

                                                           11 Rajiv Bhagava (Supra note 5), at page 6

PART B   

11    

One of the essential features of constitutional morality, thus, is the ability and  

commitment to arrive at decisions on important issues consensually. It requires  

that “despite all differences we are part of a common deliberative enterprise.”15  

It envisages partnership and coordination between various institutions created  

by the Constitution. Mehta has underlined the importance of constitutional  

partnerships by referring to the working of the Constituent Assembly:  

“The ability to work with difference was augmented by another  

quality that is rarer still: the ability to acknowledge true value.  

This may be attributed to the sheer intellectualism of so many  

of the members. Their collective philosophical depth, historical  

knowledge, legal and forensic acumen and sheer command  

over language is enviable. It ensured that the grounds of  

discussion remained intellectual. Also remarkable was their  

ability to acknowledge greatness in others. It was this quality  

that allowed Nehru and Patel, despite deep differences in  

outlook and temperament, to acknowledge each other. Their  

statesmanship was to not let their differences produce a  

debilitating polarization, one that could have wrecked India.  

They combined loyalty and frankness.”16  

10 Constitutional morality places responsibilities and duties on individuals  

who occupy constitutional institutions and offices. Frohnen and Carey formulate  

the demands of the concept thus:  

“Constitutional moralities… can be understood as anticipated  

norms of behavior or even duties primarily on the part of  

individuals within our constitutional institutions. We use the  

term morality and refer to constitutional morality with regard to  

these norms or duties principally because of the purpose they  

serve; they can be viewed as imposing an obligation on  

individuals and institutions to ensure that the constitutional  

system operates in a coherent way, consistent with its basic  

principles and objectives.”17  

                                                           15 Ibid  16 Ibid   17 Bruce P. Frohnen and George W. Carey, “Constitutional Morality and the Rule of Law”, Journal of Law and  

Politics (2011), Vol. 26, at page 498

PART B   

12    

11 Another major feature of constitutional morality is that it provides in a  

Constitution the basic rules which prevent institutions from turning tyrannical. It  

warns against the fallibility of individuals in a democracy, checks state power  

and the tyranny of the majority. Constitutional morality balances popular  

morality and acts as a threshold against an upsurge in mob rule:  

“It is important not to forget that human beings are fallible, that  

they sometimes forget what is good for them in the long run,  

and that they yield to temptations which bring them pleasure  

now but pain later. It is not unknown for people to acquire the  

mentality of the mob and act on the heat of the moment only to  

rue the consequences of the decision later. By providing a  

framework of law culled over from years of collective  

experience and wisdom, constitutions prevent people from  

succumbing to currently fashionable whims and fancies.  

Constitutions anticipate and try to redress the excessively  

mercurial character of everyday politics. They make some  

dimensions of the political process beyond the challenge of  

ordinary politics.”18  

12 No explanation of constitutional morality will be complete without  

understanding the uniquely revolutionary character of the Constitution itself.  

Granville Austin has referred to the Indian Constitution as a “social  

revolutionary” document, the provisions of which are aimed at furthering the  

goals of social revolution.19 Austin described the main features of the Indian  

Constitution as follows:  

“It was to be a modernizing force. Social revolution and  

democracy were to be the strands of the seamless web  

most closely related. Democracy, representative  

government, personal liberty, equality before law, were  

revolutionary for the society. Social-economic  

equitableness as expressed in the Directive Principles of State  

Policy was equally revolutionary. So were the Constitution’s  

                                                           18 Rajiv Bhagava (Supra note 5), at pages 14-15  19 Granville Austin (Supra note 3), at page 63

PART B   

13    

articles allowing abolishing untouchability and those allowing  

for compensatory discrimination in education and employment  

for disadvantaged citizens.”20 (Emphasis supplied)  

The core of the commitment to social revolution, Austin stated, lies in the  

Fundamental Rights and in the Directive Principles of State Policy, which are  

the “conscience of the Constitution” and connect India’s future, present, and  

past.21 Constitutional morality requires the existence of sentiments and  

dedication for realizing a social transformation which the Indian Constitution  

seeks to attain.   

13 Constitutional morality highlights the need to preserve the trust of the  

people in institutions of democracy. It encompasses not just the forms and  

procedures of the Constitution, but provides an “enabling framework that allows  

a society the possibilities of self-renewal”22. It is the governing ideal of  

institutions of democracy which allows people to cooperate and coordinate to  

pursue constitutional aspirations that cannot be achieved single-handedly.  

Andre Beteille in “Democracy and its Institutions” (2012) speaks of the  

significance of constitutional morality:  

“To be effective, constitutional laws have to rest on a  

substratum of constitutional morality… In the absence of  

constitutional morality, the operation of a Constitution, no  

matter how carefully written, tends to become arbitrary, erratic,  

and capricious. It is not possible in a democratic order to  

insulate completely the domain of law from that of politics. A  

Constitution such as ours is expected to provide guidance on  

what should be regulated by the impersonal rule of law and  

                                                           20 Ibid, at page xiii  21 Ibid, at page 63.  22 Pratap Bhanu Mehta (Supra note 14)

PART B   

14    

what may be settled by the competition for power among  

parties, among factions, and among political leaders. It is here  

that the significance of constitutional morality lies. Without  

some infusion of constitutional morality among legislators,  

judges, lawyers, ministers, civil servants, writers, and public  

intellectuals, the Constitution becomes a plaything of power  

brokers.”23  

14 Constitutional morality underscores the ethics of politics in a country. It  

gives politics the identity to succeed. In his last address to the Constituent  

Assembly on November 25, 1949, Dr Ambedkar discussed the importance of  

the role of the people and political parties in a constitutional democracy:  

“I feel, however good a Constitution may be, it is sure to turn  

out bad because those who are called to work it, happen to be  

a bad lot. However bad a Constitution may be, it may turn out  

to be good if those who are called to work it, happen to be a  

good lot. The working of a Constitution does not depend wholly  

upon the nature of the Constitution. The Constitution can  

provide only the organs of State such as the Legislature, the  

Executive and the Judiciary. The factors on which the working  

of those organs of the State depend are the people and the  

political parties they will set up as their instruments to carry out  

their wishes and their politics.”24  

He also invoked John Stuart Mill to caution the nascent Indian democracy of the  

perils of personifying institutions or laying down liberty “at the feet of even a  

great man, or to trust him with power which enables him to subvert their  

institutions”. In Dr Ambedkar’s words:  

“[I]n India, Bhakti or what may be called the path of devotion or  

hero-worship, plays a part in its politics unequalled in  

magnitude by the part it plays in the politics of any other country  

in the world. Bhakti in religion may be a road to the salvation of  

                                                           23 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)  24 Constituent Assembly Debates, Vol. 11 (25th November, 1949)  

PART B   

15    

the soul. But in politics, Bhakti or hero-worship is a sure road  

to degradation and to eventual dictatorship.”25  

Institution building is thus a facet of constitutional morality. It envisages an  

institutional basis for political behaviour. It involves that the political parties and  

the political process address issues affecting the public at large. Constitutional  

morality reduces the gap between representation and legitimacy.26 Justice  

Dipak Misra (as the learned Chief Justice then was) held in Manoj Narula v  

Union of India27 that:   

“The democratic values survive and become successful where  

the people at large and the persons-in-charge of the institution  

are strictly guided by the constitutional parameters without  

paving the path of deviancy and reflecting in action the primary  

concern to maintain institutional integrity and the requisite  

constitutional restraints”.   

It is only when political conflicts are regulated through negotiations and  

accommodation that the enforcement of constitutional principles can be  

achieved.  

15 Constitutional morality requires filling in constitutional silences to  

enhance and complete the spirit of the Constitution. A Constitution can establish  

a structure of government, but how these structures work rests upon the fulcrum  

of constitutional values. Constitutional morality purports to  stop  the  past  from

                                                           25 Ibid  26 Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution,  

Oxford University Press (2016), at page 12  27 (2014) 9 SCC 1

PART C   

17    

the values which the founding fathers infused to provide a just social compact  

in which individual aspirations for dignity and liberty would be achieved. Hence,  

any interpretation of the Constitution must be unabashed in accepting the  

importance of the Constitution as a political document which incorporates a blue  

print for democratic governance. The values which the Constitution as a political  

document incorporates, provide the foundation for understanding its text. It is in  

that sense that successive generations of judges have reminded themselves  

that it is, after all, a Constitution that we are expounding. The words of the  

Constitution cannot be construed merely by alluding to what a dictionary of the  

language would explain. While its language is of relevance to the content of its  

words, the text of the Constitution needs to be understood in the context of the  

history of the movement for political freedom. Constitutional history embodies  

events which predate the adoption of the Constitution. Constitutional history  

also incorporates our experiences in the unfolding of the Constitution over the  

past sixty eight years while confronting complex social and political problems.  

Words in a constitutional text have linkages with the provisions in which they  

appear. It is well to remember that each provision is linked to other segments  

of the document. It is only when they are placed in the wide canvas of  

constitutional values that a true understanding of the text can emerge. The  

principle that the text has to be deduced from context reflects the limitations in  

understanding the Constitution only as a legal document. To perceive the  

Constitution as a purely legal document would be an injustice to the aspirations  

of those who adopted it and a disservice to the experience of our society in

PART C   

18    

grappling with its intractable problems. Justice HR Khanna in Kesavananda  

Bharati v State of Kerala29 (“Kesavananda”) held thus:  

“A Constitution encompasses within itself the broad indications  

as to how the nation is to march forward in times to come. A  

Constitution cannot be regarded as a mere legal document...  

A Constitution must of necessity be the vehicle of the life of a  

nation. It has also to be borne in mind that a Constitution is not  

a gate but a road. Beneath the drafting of a Constitution is the  

awareness that things do not stand still but move on, that life  

of a progressive nation, as of an individual, is not static and  

stagnant but dynamic and dashful.”  

18 The second value which must be borne in mind is that the Constitution  

recognises the aspirations of popular sovereignty. As its Preamble tells us, the  

document was adopted by “We the People of India”. The Preamble sets forth at  

the outset the creation of a “sovereign... democratic, republic”. It is through the  

expression of the sovereignty of the people and on the cornerstone of a  

democratic and republican form of government that the Constitution seeks to  

achieve justice, liberty, equality and fraternity. The width of our constitutional  

aspirations finds abundant reflection in the plurality and diversity of the elements  

which it comprehends within justice, liberty, equality and fraternity. Justice  

incorporates its social, economic, and political manifestations. Liberty  

incorporates freedom of thought, expression, belief, faith and worship. Equality  

is defined in its substantive sense to include equality of status and opportunity.  

Fraternity seeks to assure dignity to the individual while, at the same time,  

ensuring the unity and integrity of the nation.   

                                                           29 AIR (1973) SC 1461

PART C   

19    

19 There are four abiding principles which are essential to understanding the  

content of the Constitution. The first is that as a political document, the  

Constitution is an expression of the sovereignty of the people. The second is  

that the Constitution seeks to achieve its vision of a political and social ordering  

on the basis of democracy. A democratic form of government recognises that  

sovereignty resides within the people. Popular sovereignty can exist when  

democracy is meaningful. The third principle is that the Constitution adopts a  

republican form of government in which the powers of sovereignty are vested  

in the people and are exercised directly or through their elected representatives.  

The fourth, which is not the least in importance, is the secular ideology of the  

Constitution. For, it is on the foundation of a secular order that freedom, liberty,  

dignity and equality to every citizen is achieved.   

20 These principles, it is well to remind ourselves, are not just political  

exhortations. They constitute the essence and substance of the Constitution  

and provide the foundation for the fine print of governance. It is through the  

expression of popular sovereignty that the Constitution has provided an  

assurance for the enforcement of equality and of equal protection of the law.  

The four founding principles constitute the means of achieving accountability  

and amenability to the rule of law. The democratic method of governing the  

country is a value which is intrinsic to the Constitution. Democracy as a way of  

life is also instrumental in achieving fundamental freedoms which the  

Constitution assures to each individual. Each of the four principles has an

PART C   

20    

inseparable connect. They provide the basis on which the Constitution has  

distributed legislative and executive power between the Union and the states.  

They provide the foundation for ensuring basic human freedoms in the  

realisation of dignity, liberty and autonomy. They embody the architecture for  

the governance of the nation. In many respects, the complexity of our  

Constitution is a reflection of the intricate cultural and social structures within  

Indian society. The Constitution has attempted to bring about an equilibrium in  

which a diversity of tradition, plurality of opinion and variations of culture can  

co-exist in one nation. To ignore the infinite variety which underlies our  

constitutional culture is to risk its cohesion. The integrity of the nation is founded  

on accepting and valuing co-existence. Constitutional doctrine must be evolved  

keeping in mind these principles.   

21 Unlike many other constitutional texts in the democratic world, the Indian  

Constitution has lived through a multitude of amendments. In Puttaswamy30,  

this Court had held:  

“The Constitution was drafted and adopted in a historical  

context. The vision of the founding fathers was enriched by the  

histories of suffering of those who suffered oppression and a  

violation of dignity both here and elsewhere. Yet, it would be  

difficult to dispute that many of the problems which  

contemporary societies face would not have been present to  

the minds of the most perspicacious draftsmen. No generation,  

including the present, can have a monopoly over solutions or  

the confidence in its ability to foresee the future.”  

                                                           30 (2017) 10 SCC 1

PART C   

21    

The exercise of the amendatory power cannot be construed as a reflection of  

the deficiency of its original text, as much as it is a reflection of the felt need to  

create new institutions of governance, recognize new rights and to impose  

restraints upon the assertion of majoritarian power. Over time, the Constitution  

was amended to provide constitutional status to local self-governing bodies,  

such as the Panchayats in Part IX, the municipalities in Part IXA and co-

operative societies in Part IXB. These structures of governance have been  

constitutionally entrenched to enhance participatory and representative  

democracy. In other amendments, new rights have been expressly recognized  

such as the right to free and compulsory education for children between the  

ages of six and fourteen in Article 21A. As the nation gained sobering  

experiences about the excess of political power during the Emergency, the  

constituent power responded by introducing limitations (through the Forty  

Fourth Amendment) on the exercise of the emergency powers under Article 352  

and by circumscribing the power to override elected governments in the states  

under Article 356.   

22 The basic structure doctrine was evolved by judicial interpretation in  

Kesavananda to ensure that the fundamentals of constitutional governance are  

not effaced by the exercise of the constituent power to amend the Constitution.  

The postulate of the doctrine is that there are values which are so fundamental  

and intrinsic to the democratic way of life, a republican form of government and  

to the preservation of basic human freedoms, that these must lie outside the

PART C   

23    

23 Democracy has been held, by a Constitution Bench of this Court in  

Kihoto Hollohan v Zachillhu33, to be a part of the basic structure of our  

Constitution. The insertion of Article 239AA by the exercise of the constituent  

power is an instance of an amendment elevating a democratic form of  

governance to a constitutional status for the National Capital Territory. In  

interpreting such exercises of the constituent power which fortify the basic  

structure, the meaning of the constitutional text must be guided by the intent  

underlying such exercises of the constituent power. A nine-judge Bench of this  

Court in I.R. Coelho v State of Tamil Nadu34 had held thus:  

“The Constitution is a living document. The constitutional  

provisions have to be construed having regard to the  

march of time and the development of law. It is, therefore,  

necessary that while construing the doctrine of basic  

structure due regard be had to various decisions which  

led to expansion and development of the law. The principle  

of constitutionalism is now a legal principle which requires  

control over the exercise of Governmental power to ensure that  

it does not destroy the democratic principles upon which it is  

based. These democratic principles include the protection of  

fundamental rights. The principle of constitutionalism  

advocates a check and balance model of the separation of  

powers, it requires a diffusion of powers, necessitating different  

independent centers of decision making. The principle of  

constitutionalism advocates a check and balance model of the  

separation of powers, it requires a diffusion of powers,  

necessitating different independent centers of decision  

making.” (emphasis supplied)  

It is in this background that it would be necessary to turn to the provisions of  

Part VIII of the Constitution.

                                                           33 1992 SCC Supl. (2) 651   34 (2007) 2 SCC 1

PART D   

24    

D Part VIII of The Constitution: The Union Territories

24 Part VIII of the Indian Constitution, prior to 1956, dealt with Part C of the  

First Schedule. Part VIII was amended by the Seventh Amendment to the  

Constitution in 1956. Simultaneously, the First Schedule was amended by the  

Seventh Amendment (together with Article 1). In place of the Part A, B and C  

States, the Constitution now provides a division of the territory of the nation  

between the States and the Union Territories. While clause 1 of Article 1  

stipulates that India is a Union of States, clause 2 incorporates the States and  

the Union Territories of the First Schedule. The territory of India, as Clause 3 of  

Article 1 provides, comprises of :  

(i) The territories of the States;  

(ii) The Union territories; and  

(iii) Territories which may be acquired.  

25 Article 239 provides thus:  

“239. (1) Save as otherwise provided by Parliament by law,  

every Union territory shall be administered by the President  

acting, to such extent as he thinks fit, through an administrator  

to be appointed by him with such designation as he may  

specify.  

(2) Notwithstanding anything contained in Part VI, the  

President may appoint the Governor of a State as the  

administrator of an adjoining Union territory, and where a  

Governor is so appointed, he shall exercise his functions as  

such administrator independently of his Council of Ministers.”   

PART D   

25    

Clause 1 of Article 239 has several elements, which are significant to  

understanding its content:

(i) Clause 1, as its opening words indicate, is subject to Parliament providing  

“otherwise… by law”;  

(ii) Every Union territory is administered by the President;  

(iii) Administration of a Union territory by the President is to such extent as the  

President “thinks fit”;  

(iv) Administration by the President is through the office of an Administrator;  

and  

(v) The Administrator is appointed by the President with a designation as he  

will specify.  

Article 239A, which was inserted by the fourteenth amendment to the  

Constitution in 1962, provides as follows:  

“239A. Creation of local Legislatures or Council of Ministers or  

both for certain Union territories.—  

(1) Parliament may by law create for the Union territory of  

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.  

(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.”   

PART D   

26    

Article 239A applies to the Union territory of Puducherry (Goa, Daman and Diu  

were excluded with effect from 1987 by the Goa, Daman and Diu  

Reorganisation Act, 1987).   

26 Article 239A is enabling. It enables Parliament to enact a law for the  

Union territory so as to create a legislature or a Council of Ministers or both. In  

creating a legislature, Parliament is left free to determine whether the legislative  

body should be entirely elected or should consist of a certain number of  

nominated legislators. Parliament, in its legislative power, may decide either to  

create a legislature or a Council of Ministers. Whether to do so, in the first place,  

is left to its discretion. Whether one or both of such bodies should be created is  

also left to the legislative authority of Parliament. If it decides to enact a law,  

Parliament is empowered to specify the constitutional powers and functions of  

the legislature and of the Council of Ministers. While the Constitution provides  

an enabling provision, the setting up of a legislature, the creation of a Council  

of Ministers and the ambit of their authority are to be governed by an ordinary  

law to be enacted by Parliament. Such a law, clause 2 clarifies, would not  

constitute an amendment of the Constitution under Article 368 even if it were to  

contain provisions which amend or have the effect of amending the Constitution.  

Creating democratic institutions for governing Union territories under Article  

239A was left to the legislative will of Parliament.   

PART D   

27    

27 In contrast to the provisions of Article 239A is the text which the  

Constitution has laid down to govern Delhi. The marginal note to Article 239AA  

provides that the Article makes “special provisions with respect to Delhi”. Article  

239AA provides thus:  

“239AA. Special provisions with respect to Delhi.—  

(1) As from the date of commencement of the Constitution  

(Sixty-ninth Amendment) Act, 1991, the Union territory of  

Delhi 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.   

(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

PART D   

28    

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 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

PART D   

29    

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 239B shall, so far as may be, apply  

in relation to the National Capital Territory, the Lieutenant  

Governor and the Legislative Assembly, as they apply in  

relation to the Union territory of Puducherry, the  

administrator and its Legislature, respectively; and any  

reference in that article to “clause (1) of article 239A” shall  

be deemed to be a reference to this article or article 239AB,  

as the case may be.”   

Article 239AA is a product of the exercise of the constituent power, tracing its  

origins to the sixty ninth amendment which was brought into force on 1 February  

1992. Under clause 1, with the commencement of the Constitution (Sixty Ninth  

Amendment) Act 1991, the Union Territory of Delhi is called the National Capital  

Territory of Delhi. Its Administrator, who is appointed under Article 239, is  

designated as the Lieutenant Governor. The administrator appointed by the  

President under Article 239(1) is designated as the Lieutenant Governor for the  

National Capital Territory. The source of the power to appoint the Lieutenant  

Governor is traceable to Article 239(1).   

28 Clause 2 of Article 239AA contains a constitutional mandate that there  

shall be a legislative assembly for the NCT. This is unlike Article 239A which  

left it to the discretion of Parliament to create a legislature by enacting a law for  

the Union territories governed by that provision. Article 239AA imprints the

PART D   

30    

legislative assembly for the NCT with a constitutional status. Its representative  

character is reflected in the mandate that the members of the legislative  

assembly shall be “chosen by direct election from territorial constituencies” in  

the NCT. The necessity of direct election underlines the rule of participatory  

democracy and of the members of the legislative assembly being  

representatives of the people residing in the territorial constituencies comprised  

in the NCT. Parliament has been assigned the role of regulating through a law,  

the number of seats in the legislative assembly, reservation for the scheduled  

castes, defining the division of the NCT into territorial constituencies and of  

elucidating the functioning of the assembly in all matters. The importance which  

the Constitution ascribes to the status of the legislative assembly is evinced by  

the adoption of the provisions of Articles 324 to 327 and 329 in relation to the  

NCT as they apply in the case of the legislative assembly of a state. These  

articles (which are contained in Part XV of the Constitution) ascribe  

constitutional status to the Election Commission of India and assign to it the  

task of superintending, directing and controlling the conduct of all elections.  

Article 325 is a guarantee against discrimination based on religion, race, caste  

or sex. Article 326 embodies the principle of adult suffrage. Article 327  

empowers Parliament to enact a law in regard to the elections to the  

legislatures. Article 329 imposes a restraint on interference by courts in electoral  

matters. The Constitution has considered the institutional existence of a  

legislative assembly for Delhi to be a matter of such importance as to be  

elevated to a constitutional requirement in clause 2 of Article 239AA and to

PART D   

31    

warrant the guarantee of free and fair elections which is enforced through the  

constitutionally entrenched position of the Election Commission of India.   

29 Clause 3 of Article 239 AA defines the legislative powers of the legislative  

assembly for the NCT. Sub clause (a) empowers the legislative assembly for  

the NCT to enact law with respect to any of the matters contained in the State  

or Concurrent lists to the Seventh Schedule of the Constitution. The ability of  

the legislative assembly is circumscribed “insofar as any such matter is  

applicable to Union territories”. The legislative assembly can hence enact  

legislation in regard to the entries in the State and Concurrent lists to the extent  

to which they apply to a Union territory. Of equal significance is the exception  

which has been carved out : Entries 1, 2 and 18 of the State List (and Entries  

64, 65 and 66 insofar as they relate to Entries 1,2 and 18) lie outside the  

legislative powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the  

State List are thus:  

 “1. Public order (but not including the use of any naval, military  

or air force or any other armed force of the Union or of any  

other force subject to the control of the Union or of any  

contingent or unit thereof in aid of the civil power).  

2. Police (including railway and village police) subject to the  

provisions of entry 2A of List I.  

18.Land, this is to say, rights in o over land, land tenures  

including the relation of landlord and tenant, and the  

collection of rents; transfer and alienation of agricultural  

land; and improvement and agricultural loans; colonization.”   

The subjects of public order, police and land do not lie within the domain of the  

legislative assembly. Entries 64, 65 and 66 provide thus :  

PART D   

32    

“64.Offences against laws with respect to any of the matters in  

this List.  

65. Jurisdiction and powers of all courts, except the Supreme  

Court, with respect to any of the matters in this List.  

66. Fees in respect of any of the matters in this List, but not  

including fees taken in any court.”   

The legislative assembly is disabled from enacting laws governing the above  

entries (which deal with offences against laws referable to the State List,  

jurisdiction of courts and fees) insofar as they relate to public order, the police  

and land. This is a constitutional indication of the fact that the NCT has been  

considered to be of specific importance from the perspective of the nation to  

exclude three important areas which have a vital bearing on its status as a  

national Capital. Apart from the exclusions, the over-arching importance of the  

regulatory power of Parliament is underlined by the conferment upon Parliament  

of legislative power over State as well as Concurrent List subjects in the  

Seventh Schedule. Unlike state legislative assemblies which wield legislative  

power exclusively over the State List, under the provisions of Article 246(3), the  

legislative assembly for NCT does not possess exclusive legislative  

competence over State List subjects. By a constitutional fiction, as if it were,  

Parliament has legislative power over Concurrent as well as State List subjects  

in the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA contains  

a provision for repugnancy, similar to Article 254. A law enacted by the  

legislative assembly would be void to the extent of a repugnancy with a law  

enacted by Parliament unless it has received the assent of the President.  

Moreover, the assent of the President would not preclude Parliament from  

enacting legislation in future to override or modify   the   law    enacted by    the

PART E   

33    

legislative assembly. Hence, the provisions of clause 2 and clause 3 of Article  

239AA indicate that while conferring a constitutional status upon the legislative  

assembly of NCT, the Constitution has circumscribed the ambit of its legislative

Powers firstly, by carving out certain subjects from its competence (vesting  

them in Parliament) and secondly, by enabling Parliament to enact law on  

matters falling both in the State and Concurrent lists. Moreover, in the subjects

which have been assigned to it, the legislative authority of the Assembly is not  

exclusive and is subject to laws which are enacted by Parliament.    

E Cabinet Form of Government  

30 Before deliberating upon the nature and extent of the executive power of  

the NCT, it is necessary to discuss the essential features of the cabinet form of  

government, which are of paramount importance in the current context.  

Collective Responsibility  

31 Collective responsibility is a cornerstone of the Westminster model.  

Initially developed35 as a constitutional convention in Britain between 1780 and  

1832, it began to appear36 in text-books in the 1860s and 1870s. In 1867, Walter  

Bagehot, in his classic work titled “The English Constitution”, called the “House  

of Commons” as “a real choosing body”, which decides the path that the nation

                                                           35 AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd (1964), at page 131  36 Ibid, at page 136

PART E  

35    

the legality of the act in which he takes part. Hence, indirectly  

but surely, the action of every servant of the Crown, and  

therefore, in effect of the Crown itself, is brought under the  

supremacy of the land. Behind parliamentary responsibility lies  

legal liability, and the acts of Ministers no less than the acts of  

subordinate officials are made subject to the rule of law.”42  

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

of the government.  

32 In the twentieth century, Sir Ivor Jennings conceptualized collective  

responsibility of a Cabinet Government, thus:  

“A Government that cannot make up its mind on a fundamental  

issue ought not to be the Government and will be so regarded  

in the constituencies. Its fall may be regarded as imminent.”44  

The conduct of the cabinet determines the fate of the government.  

33 Collective responsibility of Ministers to the Parliament is comprehended  

in two aspects: (i) collective responsibility of Ministers for the policies of the  

government; and (ii) individual responsibility of Ministers for the work of their  

governments.45 The idea behind this bifurcation, as explained by Birch, is to  

hold a government “continuously accountable for its actions, so that it always  

faces the possibility that a major mistake may result in a withdrawal of  

Parliamentary support.”46 In the British system, collective responsibility work on  

                                                           42 Ibid, at page 327  43 Ibid, at page 420  44 Ivor Jennings, Cabinet Government, Cambridge University Press (1959), 3rd Edition, at page 279  45 AH Birch (Supra note 35), at page 131  46 Ibid, at page 137

PART E  

36    

basis of certain precepts  which define and regulate the existence of  

government. Geoffrey Marshall (1989) identifies three strands within the  

principle47:  

i) The confidence principle: a government can only remain in office for  

so long as it retains the confidence of the House of Commons, a  

confidence which can be assumed unless and until proven otherwise  

by a confidence vote;  

ii) The unanimity principle: all members of the government speak and  

vote together in Parliament, save in situations where the Prime  

Minister and the Cabinet themselves make an exception such as a  

free vote or an ‘agreement to differ’; and   

iii) The confidentiality principle: unanimity, as a universally applicable  

situation, is a constitutional fiction, but one which must be maintained,  

and is said to allow frank ministerial discussion within the Cabinet and  

the Government.  

34 A study conducted by the London School of Economics and Political  

Science in 2007 examined the individual and collective performance of  

Ministers between 1945-1997. The findings of the study revealed that though  

the principle acted “as a form of protection for an individual Minister when  

policies pursued in his department are deemed to have failed”, it also induced  

a cost for being a member of the government. All the Ministers of the  

                                                           47 G Marshall, Ministerial responsibility, Oxford University Press (1989), at pages 2-4

PART E  

38    

from British constitutional theory and adopted it into our Constitution.52 Though  

the Constituent Assembly did not adopt British constitutional conventions in the  

written form, collective responsibility of the Cabinet was specifically  

incorporated into India’s constitutional framework.53  

There is a direct relationship between the principle of collective responsibility  

and government accountability. This relationship is conceptualized in “The  

Oxford Companion to Politics in India”:  

“[A]ccountability can be defined in terms of outcomes rather  

than processes of government… It also includes the criterion  

of responsiveness to changes in circumstances that alter  

citizen needs and abilities… In other words, accountability  

refers to the extent to which actual policies and their  

implementation coincide with a normative ideal in terms of what  

they ought to be… In this broad sense, accountability amounts  

to evaluating the nature of governance itself, in outcome-

oriented terms.”54  

The Oxford Handbook of the Indian Constitution55 (2016) adverts to several  

facets of collective responsibility:  

“Collective responsibility has several facets. First, ministers act  

as a common unit; cabinet decisions are binding on all  

ministers. Disagreements, if any, may be aired in private.  

Ministers, however, speak in one voice and stand by one  

another in Parliament and in public. Those that cannot  

reconcile themselves with particular government policies, or  

are unwilling to defend them in public, must resign. Conversely,  

decisions of particular ministers, unless overruled, are  

decisions of the government.”  

                                                           52 Ibid, at page 166  53 Ibid, at page 172  54 Dilip Mookherjee, “Government Accountability” in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds.), The Oxford   

Companion to Politics in India, Oxford University Press (2010), at page 477  55 Shubhankar Dam, “Executive” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford     

Handbook of the Indian Constitution, Oxford University Press (2016), at page 319

PART E  

39    

The principle has also been considered as a political component which political  

parties in power invoke to maintain party discipline.56  

Collective responsibility also exists in practice in situations where ministers  

have no knowledge of the actions taken by the subordinate officers of their  

respective departments:  

“Governing is a complex affair; hundreds of officials in dozens  

of departments make many decisions on a daily basis… These  

officials are also part of the executive, and ministers are  

responsible for those that serve in their departments…  

Ordinarily, ministers busy themselves with policy issues;  

matters of implementation are usually left to officials over  

whom ministers command little or no oversight. Yet, when they  

act, subordinates notionally do so on behalf of ministers.  

Ministers, therefore, cannot seek refuge in ignorance. Nor can  

they absolve themselves by pointing to their officers. Both  

inside and outside Parliament, they are accountable for their  

departmental shortcomings.”57  

36 Collective responsibility, as a principle and practice, has been given effect  

authoritatively in several judgments of this Court. The Constitution Bench of this  

Court, in Rai Sahib Ram Jawaya Kapur v The State of Punjab58, examined  

the functions of the executive. The Court held that the President is “a formal or  

constitutional head of the executive” and that the “real executive powers” are  

vested in the Ministers or the Cabinet:  

“Our Constitution, though federal in its structure, is modelled  

on the British Parliamentary system where the executive is  

deemed to have the primary responsibility for the formulation  

of governmental policy and its transmission into law though the  

condition precedent to the exercise of this responsibility is its  

retaining the confidence of the legislative branch of the State…  

                                                           56 Ibid  57 Ibid, at page 320   58 (1955) 2 SCR 225

PART E  

40    

In the Indian Constitution, therefore, we have the same system  

of parliamentary executive as in England and the council of  

Ministers consisting, as it does, of the members of the  

legislature is, like the British Cabinet, “a hyphen which joins, a  

buckle which fastens the legislative part of the State to the  

executive part”. The Cabinet enjoying, as it does, a majority  

in the legislature concentrates in itself the virtual control  

of both legislative and executive functions; and as the  

Ministers constituting the Cabinet are presumably agreed  

on fundamentals and act on the principle of collective  

responsibility, the most important questions of policy are  

all formulated by them.” (Emphasis supplied)  

The relationship between the responsibility of the Cabinet and individual  

Ministers was dealt with in a Constitution Bench decision in A Sanjeevi Naidu  

v State of Madras59:  

“The cabinet is responsible, to the legislature for every action  

taken in any of the ministries. That is the essence of joint  

responsibility. That does not mean that each and every  

decision must be taken by the cabinet. The political  

responsibility of the Council of Ministers does not and cannot  

predicate the personal responsibility of the Ministers to  

discharge all or any of the governmental functions. Similarly an  

individual Minister is responsible to the legislature for every  

action taken or omitted to be taken in his ministry. This again  

is a political responsibility and not personal responsibility.”  

In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking for the  

majority) opined that Ministers must accept responsibility for every executive  

act:  

“In England, the sovereign never acts on his own responsibility.  

The power of the sovereign is conditioned by the practical rule  

that the Crown must find advisers to bear responsibility for his  

action. Those advisers must have the confidence of the House  

of Commons. This rule of English Constitutional law is  

                                                           59 (1970) 1 SCC 443  60 (1974) 2 SCC 831

PART E  

41    

incorporated in our Constitution. The Indian Constitution  

envisages a parliamentary and responsible form of  

Government at the Centre and in the States and not a  

Presidential form of Government. The powers of the Governor  

as the Constitutional head are not different.”   

A seven-judge Bench decision of this Court in State of Karnataka v Union of  

India61 explained the substance of a government’s collective responsibility. All  

the Ministers are treated as one entity. A government could stay in office only  

so long as it commands the support and confidence of a majority of the  

Members of the Legislature. The government is politically responsible for the  

decisions and policies of each of the Ministers and of his department. The  

sanction against any government action was held to be embodied in the  

principle of collective responsibility, which is enforced by the “pressure of public  

opinion” and expressed specifically in terms of withdrawal of political support:  

“The object of collective responsibility is to make the whole  

body of persons holding Ministerial office collectively, or, if one  

may so put it, "vicariously" responsible for such acts of the  

others is are referable to their collective volition so that, even if  

an individual may not be personally responsible for it, yet, he  

will be deemed to share the responsibility with those who may  

have actually committed some wrong.”  

The decision in Common Cause, A Registered Society v Union of India62  

delivered by a three-judge Bench held that the concept of collective  

responsibility is essentially a “political concept” and that the country is governed  

                                                           61 (1977) 4 SCC 608  62 (1999) 6 SCC 667

PART E  

42    

by the party in power on the basis of the policies endorsed by its Cabinet. The  

Court held that the concept of collective responsibility has two meanings:   

“The first meaning which can legitimately be ascribed to it is  

that all members of a Govt. are unanimous in support of its  

policies and would exhibit that unanimity on public occasions  

although while formulating the policies, they might have  

expressed a different view in the meeting of the Cabinet. The  

other meaning is that Ministers, who had an opportunity to  

speak for or against the policies in the Cabinet are thereby  

personally and morally responsible for its success and failure.”  

The decision in Subramanian Swamy v Manmohan Singh63 theorises that  

collective responsibility may be enforced only politically, thereby making its legal  

implications unclear. In this case, a Minister was charged with committing grave  

irregularities in the grant of telecom licenses. The appellant had provided  

documents to the Prime Minister’s Office (PMO) for the grant of sanction to  

prosecute under the Prevention of Corruption Act, 1988. This Court held:  

“In our view, the officers in the PMO and the Ministry of Law  

and Justice, were duty bound to apprise Respondent No. 1  

[Prime Minister] about seriousness of allegations made by the  

Appellant… By the very nature of the office held by him,  

Respondent No. 1 is not expected to personally look into the  

minute details of each and every case placed before him and  

has to depend on his advisers and other officers.  

Unfortunately, those who were expected to give proper advice  

to Respondent No. 1 and place full facts and legal position  

before him failed to do so. We have no doubt that if  

Respondent No. 1 had been apprised of the true factual and  

legal position regarding the representation made by the  

Appellant, he would have surely taken appropriate decision  

and would not have allowed the matter to linger for a period of  

more than one year.”  

                                                           63 (2012) 3 SCC 64

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43    

The decision implied that “individual ministerial decisions… do not always  

generate collective legal responsibilities”64.  

37 Collective responsibility represents a seminal principle for modern  

parliamentary democracies.65 Collective responsibility of the Council of  

Ministers ensures accountability to the legislature and to the electorate.  

Collective responsibility governs the democratic process, as it makes a  

government liable for every act it does. It envisages that a government works  

effectively to ensure and fulfil the interests of the public. It purports to ensure  

transparency in government decisions. Collective responsibility rests on the  

foundations of constitutional morality, which reflects constitutional ethics.  

Aid and Advice  

38 Collective responsibility under our Constitution is based on a “slightly  

modified version”66 of the British cabinet system. There is a direct relationship  

between collective responsibility and the form of government envisaged by the  

Constitution. The President was designated as the titular head of government.  

The founding fathers and mothers of the Constitution adopted the convention  

which made the President generally bound by the advice of the Council of  

                                                           64 The Oxford Handbook of the Indian Constitution (Supra note 52), at page 320  65 See also Amarinder Singh v Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113; Krishna Kumar  

Singh v State of Bihar, (2017) 3 SCC 1; State of Himachal Pradesh v. Satpal Saini, 2017(2) SCALE 292  66 Granville Austin (Supra note 3), at page 145

PART E  

44    

Ministers. This was explained by Dr B R Ambedkar, while introducing the Draft  

Constitution on 4th November 1948.  

“Under the Draft Constitution the President occupies the same  

position as the King under the English Constitution. He is the  

head of the State but not of the Executive. He represents the  

Nation but does not rule the Nation. He is the symbol of the  

nation. His place in the administration is that of a ceremonial  

device on a seal by which the nation's decisions are made  

known… The President of the Indian Union will be  

generally bound by the advice of his Ministers. He can do  

nothing contrary to their advice nor can he do anything  

without their advice. The President of the United States  

can dismiss any Secretary at any time. The President of  

the Indian Union has no power to do so long as his  

Ministers command a majority in Parliament…  

A democratic executive must satisfy two conditions - (1) It must  

be a stable executive and (2) it must be a responsible  

executive. Unfortunately it has not been possible so far to  

devise a system which can ensure both in equal degree…  

In England, where the Parliamentary system prevails, the  

assessment of responsibility of the Executive is both daily and  

periodic. The daily assessment is done by members of  

Parliament, through questions, Resolutions, No-confidence  

motions, Adjournment motions and Debates on Addresses…  

The daily assessment of responsibility which is not available  

under the American system is it is felt far more effective than  

the periodic assessment and far more necessary in a country  

like India. The Draft Constitution in recommending the  

Parliamentary system of Executive has preferred more  

responsibility to more stability.”67 (Emphasis supplied)  

Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar:  

“…that the Council of Ministers shall be collectively responsible  

to the House of the People. If a President stands in the way of  

the Council of Ministers discharging that responsibility to the  

House he will be guilty of violation of the Constitution and he  

will be even liable to impeachment. Therefore it is merely a  

euphemistic way of saying that the President shall be  

guided by the advice of his Ministers in the exercise of his  

functions. This Council of Ministers will be collectively  

                                                           67Constituent Assembly Debates, Vol. 7 (4th November 1948)  

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45    

responsible to the House of the People, and the House of  

the People must meet all situations in regard to the  

budget, in regard to legislation, in regard to every matter  

connected with the administration of the country.  

Therefore, if the Council of Ministers is to discharge their  

responsibility, it will be the duty of the President to see  

that the Constitution is obeyed…”68(Emphasis supplied)  

As the Chairman of the Constituent Assembly, Dr Rajendra Prasad expected  

the convention to be developed into a healthy practice in independent India:  

“We have had to reconcile the position of an elected President  

with an elected Legislature and, in doing so, we have adopted  

more or less the position of the British Monarch for the  

President… [H]is position is that of a Constitutional President.  

Then we come to the Ministers. They are of course responsible  

to the Legislature and tender advice to the President who is  

bound to act according to that advice. Although there are no  

specific provisions, so far as I know, in the Constitution itself  

making it binding on the President to accept the advice of his  

Ministers, it is hoped that the convention under which in  

England the King acts always on the advice of his  

Ministers will be established in this country also and, the  

President, not so much on account of the written word in  

the Constitution, but as the result of this very healthy  

convention, will become a Constitutional President in all  

matters.”69 (Emphasis supplied)  

The Constitution makers envisaged and adopted a limited role for the President  

as the nominal head of the Indian State and imposed sanctions on his or her  

constitutional authority by making them bound by the decisions of the Council  

of Ministers generally. A similar role was adopted for the Governor in the States.   

                                                           68 Ibid  69 Constituent Assembly Debates, Vol. 11 (26th November, 1949)  

PART E  

46    

39 After the Constitution had come into force, this Court gave judicial  

sanction to the convention. In U.N.R. Rao v Smt. Indira Gandhi70, the  

Constitution Bench held:  

“It will be noticed that Article 74(1) is mandatory in form. We  

are unable to agree with the appellant that in the context the  

word "shall" should be read as “may”. Article 52 is mandatory.  

In other words there shall be a President of India.... The  

Constituent Assembly did not choose the Presidential system  

of Government. If we were to give effect to this contention of  

the appellant we would be changing the whole concept of the  

Executive. It would mean that the President need not have a  

Prime Minister and Ministers to aid and advise in the exercise  

of his functions. As there would be no 'Council of Ministers'  

nobody would be responsible to the House of the People. With  

the aid of advisers he would be able to rule the country at least  

till he is impeached under Article 61… Article 74(1) is  

mandatory and, therefore, the President cannot exercise the  

executive power without the aid and advice of the Council of  

Ministers. We must then harmonise the provisions of Article  

75(3) with Article 74(1) and Article 75(2). Article 75(3) brings  

into existence what is usually called “Responsible  

Government”.”  

In Samsher Singh v State of Punjab71, while dealing with the question whether  

the Governor as the Constitutional or the formal head of the State can exercise  

powers and functions of appointment and removal of members of the  

subordinate judicial service personally, Chief Justice AN Ray delivered the  

majority judgment, holding that:  

“The President as well as the Governor is the constitutional or  

formal head. The President as well as the Governor exercises  

his powers and functions conferred on him by or under the  

Constitution on the aid and advice of his Council of Ministers,  

save in spheres where the Governor is required by or under  

the Constitution to exercise his functions in his discretion.  

Wherever the Constitution requires the satisfaction of the  

                                                           70 (1971) 2 SCC 63  71 (1974) 2 SCC 831

PART E  

47    

President or the Governor for the exercise by the President or  

the Governor of any power or function, the satisfaction required  

by the Constitution is not the personal satisfaction of the  

President or Governor but the satisfaction of the President or  

Governor in the Constitutional sense in the Cabinet system of  

Government, that is, satisfaction of his Council of Ministers on  

whose aid and advice the President or the Governor generally  

exercise all his powers and functions. The decision of any  

Minister or officer under rules of business made under any of  

these two Articles 77(3) and 166(3) is the decision of the  

President or the Governor respectively. These articles did not  

provide for any delegation. Therefore, the decision of Minister  

or officer under the rules of business is the decision of the  

President or the Governor.”  

The Court summed up the position of law as follows:  

“[W]e hold that the President or the Governor acts on the aid  

and advice of the Council of Ministers with the Prime Minister  

at the head in the case of the Union and the Chief Minister at  

the head in the case of State in all matters which vests in the  

executive whether those functions are executive or legislative  

in character. Neither the President nor the Governor is to  

exercise the executive functions personally… Where the  

Governor has any discretion the Governor acts on his own  

judgment. The Governor exercises his discretion in harmony  

with his Council of Ministers.”  

Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a  

concurring opinion.  

40 The convention that the President shall be bound by the aid and advice  

tendered by the Council of Ministers was explicitly made a part of the  

Constitution by the forty-second constitutional amendment. By the amendment,  

Article 74(1) was amended to ensure that the President shall, in the exercise of

PART E  

48    

his functions, act in accordance with the advice tendered by the Council of  

Ministers. Article 74(1) reads thus:  

“There shall be a Council of Ministers with the Prime Minister  

at the head to aid and advise the President who shall, in the  

exercise of his functions, act in accordance with such advice.”  

The Forty-fourth Constitution Amendment added another proviso to Article 74  

(1) so that the “President may require the Council of Ministers to reconsider  

such advice, either generally or otherwise, and the President shall act in  

accordance with the advice tendered after such reconsideration”. Therefore, the  

position which emerges is that where it has not been expressly provided, the  

executive head shall be bound by the advice tendered by the Council of  

Ministers. This constitutional scheme, after the forty-second and forty-fourth  

amendments, has been judicially reaffirmed. Authoring the judgment of the  

Constitution Bench in PU Myllai Hlychho v State of Mizoram72, Justice KG  

Balakrishnan (as he then was) held that the “satisfaction” of the Governor  

required by the Constitution for the exercise of any power or function is not the  

personal satisfaction of the Governor but a satisfaction in the constitutional  

sense under the Cabinet system of Government, i.e. on the aid and advice of  

the Council of Ministers.   

Justice Madan B Lokur, while delivering the concurring opinion in the five-judge  

Constitution Bench decision in Nabam Rebia and Bamang Felix v Deputy  

Speaker, Arunachal Pradesh Legislative Assembly73, opined that the  

                                                           72 (2005) 2 SCC 92  73 (2016) 8 SCC 1

PART E  

49    

absence of the expression "his individual judgment" makes it apparent that the  

Governor would always be bound by the aid and advice of the Council of  

Ministers, except in matters where he/she is permitted under the Constitution to  

act "in his discretion".  

41 Collective responsibility and aid and advice are mutually reinforcing  

principles. Each of them and both in conjunction affirm and enhance the  

democratic values on which the Cabinet form of government is founded.  

Collective responsibility ensures that government speaks as one political entity  

which owes allegiance to the elected representatives of the people. By ensuring  

that government is responsible in its decision making to the legislature, the  

principle of collective responsibility fosters a responsive and accountable  

government. Modern government, with its attendant complexities, comprises of  

several components and constituent elements. They include Ministers who are  

also elected as members of the legislature and unelected public officials who  

work on issues of daily governance. Discussion and dialogue are accepting of  

dissent. In a system of constitutional governance, collective decision making  

must allow room for differences. A synthesis can emerge in government, when  

political maturity and administrative wisdom combine in arriving at acceptable  

solutions to the problems of governance. Collective responsibility allows for and  

acknowledges differences in perception and ideology. Yet, what the doctrine  

does is to place a decision taken by a constituent part of the government as a  

decision of the government. All Ministers are bound by a decision taken by one

PART E  

50    

of them or their departments. In terms of its accountability to the legislature,  

government is treated as one decision making unit so that the politics of  

decision making and administrative divergences do not dilute from the  

responsibility which government owes as a political unit to the legislature. This  

is crucial to ensuring that government is responsive to the aspirations of the  

people in whom political sovereignty resides.   

42 In Kihoto Hollohan v Zachillhu74, Chief Justice Venkatachaliah  

speaking for this Court had held thus:  

“Parliamentary democracy envisages that matters involving  

implementation of policies of the Government should be  

discussed by the elected representatives of the people.  

Debate, discussion and persuasion are, therefore, the means  

and essence of the democratic process. During the debates  

the Members put forward different points of view. Members  

belonging to the same political party may also have, and may  

give expression to, differences of opinion on a matter. Not   

often the view expressed by the Members in the House have  

resulted in substantial modification, and even the withdrawal,  

of the proposals under consideration. Debate and expression  

of different points of view, thus, serve an essential and healthy  

purpose in the functioning of Parliamentary democracy.”  

43 The doctrine of aid and advice enhances the commitment to the same  

democratic values which form the basis of collective responsibility. The  

mandate that a titular head of government must act on the aid and advice of the  

Council of Ministers ensures that the form of democratic governance (decision  

making in the name of a titular head)  is  subservient  to  its  substance,  which

                                                           74 1992 SCC Supp. (2) 651  

PART F  

51    

mandates that the real authority to take decisions must reside in the elected  

arm of the government. The doctrine of aid and advice enhances accountability  

and responsive government – besides representative government – by  

ensuring that the real authority to take decisions  resides   in   the   Council   of  

Ministers, which owes ultimate responsibility to the people, through a legislature  

to whom the Council is responsible. Collective responsibility and the aid and  

advice doctrine must not be construed as disjunctive but together constitute  

integral parts of the discourse in ensuring the strength of and commitment to  

democracy.                       

F The Nature of Executive Power  

44 While the legislative power in relation to the NCT is defined in clauses 2  

and 3, its executive power forms the subject matter of clause 4 of Article 239AA.  

Clause 4 institutionalises the position of the Council of Ministers with a Chief  

Minister as its head. The constitutional role which is ascribed to the Council of  

Ministers is to aid and advise the Lieutenant Governor “in the exercise of his  

functions in relation to matters with respect to which the legislative assembly  

has power to make laws”. There are three salient features of the executive  

power which is vested in the Council of Ministers. Firstly, the executive power  

is co-extensive with the legislative power of the legislative assembly. The  

executive power extends to all subjects upon which the assembly can legislate.  

The executive power of the Council of Ministers does not extend to matters on  

which the legislative assembly cannot legislate. What is beyond the legislative

PART F  

52    

competence of the Assembly is ultra vires the executive powers of the Council  

of Ministers. Secondly, the delineation of the executive power in clause 4  

defines, at the same time, the relationship between the Council of Ministers  

(headed by the Chief Minister) and the Lieutenant Governor. The Council of  

Ministers aids and advises the Lieutenant Governor; the corollary being that the  

Lieutenant Governor has to act on the basis of the aid and advise tendered by  

the Council. Thirdly, the exception to the aid and advice principle in the  

substantive part of clause 4 is in respect of those matters in which the  

Lieutenant Governor is required to act in its discretion “by or under any law”. In  

other words, save and except in regard to areas which are reserved for the  

exercise of his discretion, the Lieutenant Governor must act on the aid and  

advice tendered to him by the Council of Ministers.   

45 The proviso to clause 4 forms the bone of contention. The proviso  

envisages a situation where the Lieutenant Governor has a difference of opinion  

with the Council of Ministers “on any matter”. In such a case, the proviso entails  

the course of action which the Lieutenant Governor must follow. The Lieutenant  

Governor is under a constitutional mandate to refer the difference of opinion to  

the President for decision. As a consequence, the Lieutenant Governor must  

necessarily act according to the decision “given thereon” by the President.  

Pending a decision by the President, the Lieutenant Governor is empowered to  

take action or to issue directions where the matter is of such an emergent nature  

as to require immediate action. The heart of the matter turns upon interpreting

PART F  

53    

the expression “difference of opinion” and the words “on any matter”. Clause 4  

does not specify what kind of a difference of opinion would warrant a reference  

to the President. Nor for that matter, does it explain the nature of the matter on  

which a difference of opinion is contemplated. Before we interpret the ambit of  

the proviso to clause 4, one facet is clear. Where a difference of opinion has  

arisen, warranting a reference to the President, the proviso leaves the course  

of action to be followed by the Lieutenant Governor beyond doubt. In a situation  

where the conditions under the proviso exist, the Lieutenant Governor has to  

refer the matter to the President and must abide by the decision of the  

President.  Reading the substantive part of clause 4 and the proviso, it is thus  

evident that the Lieutenant Governor has two courses of action to follow.  

Primarily, under the substantive part of clause 4, the Lieutenant Governor is  

bound by the aid and advice of the Council of Ministers (the only exception  

being where under a provision of law, he has to act according to his own  

discretion). However, the embargo upon the Lieutenant Governor acting  

otherwise than on the aid and advice of the Council of Ministers is lifted only to  

enable him to refer a difference of opinion on any matter for a decision by the  

President. In other words, the Lieutenant Governor must either abide by the aid  

and advice tendered by the Council of Ministers or, in the event of a difference  

of opinion, reserve it for a decision by the President and thereupon be bound to  

act in accordance with the decision which has been rendered by the President.  

Pending the decision by the President, the proviso enables the Lieutenant  

Governor to attend to a situation requiring immediate action.

PART F  

54    

46 Before elucidating the nature and ambit of the relationship between the  

(i) Council of Ministers and the Lieutenant Governor; and (ii) the Lieutenant  

Governor and the President, it would be necessary to advert to some of the  

other provisions of Article 239AA which have a bearing on those relationships.  

The Lieutenant Governor, as we have noted earlier, is appointed by the  

President under Article 239(1) read with Article 239AA(1). The Chief Minister is  

appointed by the President, while the other ministers are appointed by the  

President on the advice of the Chief Minister. They hold office during the  

pleasure of the President (clause 5). The concept of collective responsibility of  

the Council of Ministers to the legislative assembly is expressly embodied in  

clause 6.  A comparative analysis of the provisions of the Constitution relating  

to the Council of Ministers in the Union and the States indicates that in the case  

of the NCT, Article 239AA has engrafted the fundamental precept of the  

collective responsibility of an elected government in a cabinet form of  

government to the elected legislature. Creating an executive power in  

government which is co-extensive with the legislative power of the elected  

legislature and the collective responsibility of the Council of Ministers to the  

legislature are intrinsic to the cabinet form of government.   

47 Parliament has, by clause 7 of Article 239AA, been empowered to make  

provisions to implement and to supplement the other provisions of that Article.  

Any law enacted by Parliament to do so would not amount to a constitutional

PART F  

55    

amendment within the meaning of Article 368 even if it amends or has the effect  

of amending any provision of the Constitution.   

48 Article 239AB enunciates the course of action which the President is  

empowered to follow where there has been a failure of constitutional machinery  

in the NCT. Article 239AB provides as follows:  

“239AB. Provision in case of failure of constitutional  

machinery.—If the President, on receipt of a report from the  

Lieutenant Governor or otherwise, is satisfied—   

(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.”  

Under Article 239AB, the President is empowered to suspend the operation of  

(i) any provision of Article 239AA; and of (ii) any provisions of law made in  

pursuance of that Article and to make provisions to administer the NCT, in  

accordance with Articles 239 and 239AA where, upon a report from the  

Lieutenant Governor, the President is satisfied that: (a) A situation has arisen  

where the administration of the NCT cannot be carried on in accordance with

PART F  

56    

Article 239AA or a law made in pursuance of it; or (b)  For the proper  

administration of the NCT.  

Article 239B as already noted confers power upon the administrator of  

Puducherry to promulgate ordinances during the recess of the legislature. This  

power is also conferred upon the Lieutenant Governor of the NCT by clause 8  

of Article 239AA. Under Article 241, Parliament is empowered to constitute a  

High Court for a Union territory.  

49 In understanding the nature of the executive power in relation to the NCT  

of Delhi and the relationship between the Council of Ministers and the  

Lieutenant Governor on one hand, and the Lieutenant Governor and the  

President on the other, it is necessary to draw a comparison with the provisions  

of the Constitution governing the Union and the States. Part V of the  

Constitution (consisting of Articles 52 to 151) deals with the Union; Part VI  

(comprising of Articles 152 to 237) deals with the States and Part VIII  

(comprising of Articles 239 to 241) deals with the Union territories. Parts V and  

VI contain similar elucidations with some important variations. Both Part V and  

Part VI deal with the executive, the legislative power of the President, and the  

judiciary. Part V covers the Union judiciary, while Part VI over the High Courts  

and the subordinate courts in the States.   

PART F  

57    

50 Article 52 provides for the President. Article 53 stipulates that the  

executive power of the Union shall be vested in the President and shall be  

exercised by him directly or through subordinate officers in accordance with the  

Constitution. Under Article 73, the executive power of the Union extends (a) to  

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

the exercise of rights, authority and jurisdiction exercisable by the Union  

government under a treaty or agreement. Article 73 provides thus:   

“73. Extent of executive power of the Union.—  

(1) Subject to the provisions of this Constitution, the executive  

power of the Union shall extend—   

(a) to the matters with respect to which Parliament has power  

to make laws; and   

(b) to the exercise of such rights, authority and jurisdiction as  

are exercisable by the Government of India by virtue of any  

treaty or agreement:   

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.”  

The proviso to Article 73(1) stipulates that except as may be expressly provided  

by Constitution or in any law which has been enacted by Parliament, the  

executive power of the Union under sub clause (a) of clause 1 does not extend  

in a State to matters with respect to which the legislature of the State has also

PART F  

58    

power to make laws. The effect of the proviso is that the executive power of the  

Union does not extend to matters in the Concurrent List, since these are matters  

on which State legislatures also have the power to make laws. Article 74(1)  

provides for a Council of Ministers with the Prime Minister as the head. The  

function of the Council of Ministers is “to aid and advice the President”. The  

President is, in the exercise of his functions, under a mandate to “act in  

accordance with such advice”. Article 74 provides as follows:  

“74. Council of Ministers to aid and advise President.—  

(1)  There shall be a Council of Ministers with the Prime  

Minister at the head to aid and advise the President who  

shall, in the exercise of his functions, act in accordance  

with such advice: Provided that the President may require  

the Council of Ministers to reconsider such advice, either  

generally or otherwise, and the President shall act in  

accordance with the advice tendered after such  

reconsideration.   

(2) The question whether any, and if so what, advice was  

tendered by Ministers to the President shall not be inquired  

into in any court.”    

Article 77 provides for the conduct of the business of the Union government:   

“77. Conduct of business of the Government of India.—  

(1) All executive action of the Government of India shall be  

expressed to be taken in the name of the President.   

(2) Orders and other instruments made and executed in the  

name of the President shall be authenticated in such  

manner as may be specified in rules to be made by the  

President, and the validity of an order or instrument which  

is so authenticated shall not be called in question on the  

ground that it is not an order or instrument made or executed  

by the President.  

(3) The President shall make rules for the more convenient  

transaction of the business of the Government of India, and  

for the allocation among Ministers of the said business.”

PART F  

59    

By and under Article 77(1) the executive action of the Union government is  

expressed to be taken in the name of the President. Under clause 2, orders and  

instruments made and executed in the name of the President are to be  

authenticated in such a manner as may be specified in the rules made by the  

President. Clause 3 enables the President to make rules for the transaction of  

the business of the government and for the allocation of governmental business  

among ministers. Article 78 embodies the basic duty of the head of the elected  

government in a Cabinet form of government to communicate with and to  

furnish information to the President. Article 78 provides as follows :  

“78. Duties of Prime Minister as respects the furnishing of  

information to the President, etc.—  

It shall be the duty of the Prime Minister—   

(a) to communicate to the President all decisions of the Council  

of Ministers relating to the administration of the affairs of the  

Union and proposals for legislation;   

(b) to furnish such information relating to the administration of  

the affairs of the Union and proposals for legislation as the  

President may call for; and  

(c) if the President so requires, to submit for the consideration  

of the Council of Ministers any matter on which a decision has  

been taken by a Minister but which has not been considered  

by the Council.”  

These provisions of the Constitution institutionalise the relationship between the  

President and the Union Cabinet and re-affirm the position of the President as  

the titular head of state. The President must act on the aid and advise tendered  

by the Union Cabinet. The executive power of the Union is co-extensive with  

the legislative power of Parliament. In a cabinet form of government, it is the  

Council of Ministers which owes collective responsibility to the House of the

PART F  

60    

People. Collective responsibility, as a constitutional doctrine, ensures  

accountability to the sovereign will of the people who elect the members of the  

legislature. Though all executive action is expressed to be taken in the name of  

the President and orders and instruments made and executed in the name of  

the President are authenticated in the manner prescribed by rules, the  

constitutional position of the President is of a titular head. The use of the  

expression “in the exercise of his functions” in Article 74(1) is formalistic in  

nature since the substance of executive power is vested in and conferred upon  

the government constituted through the Council of Ministers which owes  

collective responsibility to Parliament. The proviso to Article 74(1) stipulates that  

while the President may require the Council of Ministers to reconsider his  

advice, once that has been done, the President is bound to act on the advice  

tendered after reconsideration.   

51 The position of the President as a titular head of State is evidenced in the  

constitutional provisions which define the relationship between the President  

and Parliament. Under Article 111, a Bill is presented to the President for assent  

upon being passed by the Houses of Parliament. Under the proviso to Article  

111, the President is empowered to return a Bill for reconsideration (if it is not  

a Money Bill). Upon being reconsidered, if the Bill is passed again by the  

Houses of Parliament (with or without amendment) the President shall,  

thereafter, not withhold assent.   

PART F  

61    

52 In Part VI of the Constitution, the provisions which define the role of the  

Governor in relation to the states indicate that the Governor is also a titular head  

of government in each state. The executive power of the State is vested in the  

Governor under Article 154. The Governor is appointed by the President under  

Article 155 and holds office during the pleasure of the President under Article  

156. The executive power of the state is co-extensive with the legislative power,  

by virtue of Article 162. However, in relation to matters on which both the  

legislature of a State and Parliament can enact law, the executive power of the  

state is subject to and limited by the conferment of executive power upon the  

Union by the Constitution or by a law enacted by Parliament. In the States,  

Article 163 postulates a Council of Ministers with the Chief Ministers as its head  

to aid and advice the Governor in the exercise of his functions, except where  

the Governor is under the Constitution required to exercise any of the functions  

in his own discretion. Where a question arises as to whether the Governor is  

required to act in his discretion, Article 163(2) makes the decision of the  

Governor final. While the Chief Minister is appointed by the Governor under  

Article 164, other ministers are appointed by the Governor on the advice of the  

Chief Minister and hold office during the pleasure of the Governor. Article 164(2)  

incorporates the principle of collective responsibility of the Council of Ministers  

to the legislative assembly of the State. Article 166 contains a provision dealing  

with the conduct of the business of the government of the State which is pari  

materia with Article 77. Similarly, Article 167 incorporates the duty of the Chief

PART F  

62    

Minister to communicate with and to furnish information on the affairs of the  

state to the Governor, in terms similar to Article 78.   

53 While assessing the status of the National Capital Territory under Article  

239AA, certain significant aspects need to be borne in mind:  

(i) Article 239AA is a result of the exercise of the constituent power under  

Article 368 of the Constitution. By and as a result of Article 239AA, special  

provisions have been made for the National Capital Territory of Delhi.  

These provisions are not an emanation of an act of ordinary legislation;  

(ii) For the NCT of Delhi, the exercise of the constituent power has resulted  

in a constitutionally entrenched status both for the legislature and for the  

Council of Ministers. The legislative assembly is elected by the process  

of direct election. The legislative assembly has the power to enact law in  

respect of matters in the State List of the Seventh Schedule (save for the  

excepted matters in Entries 1, 2 and 18 and Entries 64, 65 and 66 insofar  

as they relate to entries 1, 2 and 18). Yet, while the legislative powers  

which have been conferred on the legislative assembly extend to the  

State List (save for the excepted entries) and the Concurrent List,  

Parliament has been empowered to legislate both on matters falling  

within the State and the Concurrent lists. Parliament possesses  

overriding legislative powers over matters falling in both the State and  

Concurrent lists for the NCT; and

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63    

(iii) Article 239AA(4) provides constitutional status to the Council of Ministers  

and embodies the entrenched principle in a cabinet form of government  

that a titular head of state acts on the aid and advice tendered by his  

ministers, who owe collective responsibility to the legislature. In setting  

up a structure of governance in which there is a legislature elected  

through the process of direct election and an executive arm which is  

collectively responsible to the legislature and which, in the discharge of  

its functions, tenders aid and advise to Lieutenant Governor on matters  

which are co-extensive with legislative power, the Constitution has  

incorporated the basic principles of the cabinet form of government. The  

adoption of these special features of the cabinet form of government in  

relation to the NCT must weigh while interpreting Article 239AA.   

54 At the same time, the constitutional scheme indicates several features in  

relation to the NCT which have resulted in the conferment of a constitutional  

status which falls short of the trappings of full statehood. They include the  

following :  

(a) The position of the National Capital Territory is subsumed under  

Part VIII which applies to Union territories. Delhi is and continues  

to be a Union territory governed by Part VIII;  

(b) Every Union territory is, under Article 239(1), administered by the  

President acting through an Administrator. The Administrator  

appointed under Article 239(1) is designated as the Lieutenant

PART F  

64    

Governor for the NCT under Article 239AA(1). Article 239 is the  

source of the constitutional power to appoint the Lieutenant  

Governor for the NCT;  

(c) The position that the application of Article 239 is not excluded in  

relation to the NCT is made evident by Article 239AB. In a situation  

in which the President is empowered to suspend the provisions of  

Article 239AA, where the administration of the NCT cannot be  

carried on in accordance with Article 239AA, or of any law made in  

pursuance of that Article, the President is empowered to make  

consequential provisions for administering the territory in  

accordance with Article 239 as well as Article 239AA. Hence, the  

provisions of Article 239AA cannot be read disjunctive from Article  

239(1);  

(d) The administration of a Union territory by the President acting  

through an Administrator is firstly subject to Parliamentary law and  

secondly, to such extent as he thinks fit. Hence the nature of the  

administration of a Union territory, including NCT is subject to these  

two provisions;  

(e) The position of the NCT as distinguished with the constitutional  

position of a State finds expression in the contrast between Article  

239AB and Article 356 on the other. Upon the exercise of the power

PART F  

65    

under Article 356, the President “can assume to himself” the  

functions of the government of the State and declare that the  

powers of the legislature of the State shall be exercisable by or  

under the authority of Parliament. In contrast, Section 239AB  

empowers the President to suspend the operation of Article 239AA  

or of any provision of law made under it and to thereupon make  

consequential provisions for the administration of the NCT in  

accordance with Articles 239 and 239AA; and  

(f) While emphasising the binding character of the aid and advise  

tendered to the President, or as the case may be, the Governor,  

the constitutional position in relation to the Lieutenant Governor  

contains a distinct variation.  Article 74(1) embodies, in relation to  

the President of India, the binding character of the aid and advice  

tendered by the Council of Ministers by specifying that the  

President shall, in the exercise of his functions, act in accordance  

with such advice. Upon the President requiring the Council of  

Ministers to reconsider their advice, the President is bound to act  

upon the advice which is tendered after reconsideration. Similarly,  

in the case of Governors in the states, Article 163(1) provides for a  

Council of Ministers “to aid and advise the Governor in the exercise  

of his functions”, except where the Governor is required by the  

Constitution to exercise his functions in his discretion. Article  

239AA(4) incorporates in its substantive segment the constitutional

PART F  

66    

principle of aid and advice which the Council of Ministers tenders