GOVT. OF NCT OF DELHI vs UNION OF INDIA on 4 July, 2018

CONTENTS

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

B.1 Submissions on behalf of the

appellant…………………………………… 23-34

B.2 Submissions on behalf of the

respondents………………………………. 34-45

C. Ideals/principles of representative

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

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

F. Constitutional governance and the

conception of legitimate constitutional

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

H. Federal functionalism and democracy……. 74-93

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

J. Pragmatic federalism…………………………… 101-104 K. Concept of federal balance…………………… 104-108

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

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

N. Constitutional culture and pragmatism…. 127-135

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

P. Interpretation of Article 239AA of the

Constitution………………………………………. 140-145

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

R. Executive power of the Council of

Ministers of Delhi……………………………….. 160-164

S.

Essence of Article 239AA of the 164-188

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…………………………. 188-213

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

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

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

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 (Sixty-ninth Amendment) Act, 1991 by

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 Sixty-Ninth 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,

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

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

etymology of democracy but also embraces within its sweep a

connotative expansion so that the intrinsic and innate facets

are included.

7. A seven-Judge Bench of the Court in Keshavan

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

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.”

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.

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 by-pass 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]

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, social-science

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

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,

but consist with the letter and spirit of the

Constitution, are constitutional”.”

[Emphasis is added]

10. In Supreme Court Advocates-on-Record 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

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

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

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

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 Re-organization Act, 1956 which did

away with Part A, B, C and D States and only two categories,

namely, States and Union Territories remained and Delhi

became a Union Territory to be administered by an

administrator appointed by the President. The Legislative

Assembly of Delhi and the Council stood abolished. In the

year 1953, the Government of Union Territories Act, 1963 was

enacted to provide for Legislative Assemblies and Council of

Ministers for various Union Territories but the provisions of

the said Act were not made applicable to Delhi. The Delhi

Administration Act, 1966 was enacted to provide for limited

representative Government for Delhi through a Metropolitan

Council comprising of 56 elected members and five nominated

members. In the same year, on 20.08.1966, 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

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 self-evident we find it

unnecessary to go into them in detail except those

relating to constitutional and financial aspects

covered by them.

6.5.6 The important argument from the

Constitutional angle is based on the federal type of

our Constitution under which there is a

constitutional division of powers and functions

between the Union and the State. If Delhi becomes a

full- fledged State, there will be a constitutional

division of sovereign, legislative and executive

powers between the Union and the State of Delhi.

One of the consequences will be that in respect of

matters in the State List, Parliament will have no

power on jurisdiction to make any law except in the

special and emergency situations provided for under

the Constitution and to that extent the Union

Executive cannot exercise executive powers or functions. The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the national capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the national capital and the need for keeping it under the control of the Union Government. Such control is vital in the national interest irrespective of whether the subject matter is in the State field or Union field. If the administration of the 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 day-to-day matters, however vital some of, them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities.

x x x

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

of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the 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 quasi-judicial

functions. The reason is obvious because in

respect of such functions there is no question

of acting on the advice of another person.

(ii) Secondly, the requirement is only in

relation to matters in respect of which the

Legislative Assembly has the powers to make

laws. This power will be subject to the restrictions already dealt with earlier in the Report. Accordingly, the Council of Ministers will not have jurisdiction to deal with matters excluded from the purview of the Legislative Assembly.

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

pending such decision of the President. A

provision of this kind was made for this very

reason not only in the 1951 Act, but also in

the 1963 Act relating to the Union territories

as well as in the 1978 Bill.”

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

Parliament, in exercise of its constituent power, amended the

Constitution by the Constitution (Sixty-ninth 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.

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

special characteristics solely attributed to full-fledged 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

22. The appellant has alluded to the nine-Judge Bench

decision in New Delhi Municipal Corporation v. State of

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 Sixty-ninth 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 Sixty-ninth amendment was aimed at

furthering democracy in Delhi and hence, Article 239AA

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

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

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

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

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 co-extensive with the Parliament's

legislative powers, but this is explicitly subject to other

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.

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

Constitution which reserves the executive powers of the

Central Government vis-a-vis 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

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

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

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

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 Sixty-ninth

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.

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. 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

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 co-extensive 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

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

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,

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

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

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.

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

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,

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

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.

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.

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

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

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

India is only a top-dressing 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. 16James Madison as Publius, Federalist 51

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)

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

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."

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

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 by-pass 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

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

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.

Sometimes, the constitutional sovereignty is

described as the supremacy of the Constitution.

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.

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 non-legislator 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

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."

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

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

241990 (2) SCALE 836

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:

"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

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

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

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

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

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)."”

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

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

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

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

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.

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,

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 self-governance. 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

and the Parliament has no power to abrogate or emasculate

the basic elements or fundamental features of the Constitution