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

Judgment

(Concurring):

#1. The introduction of Article 239AA into the Constitution was the result of the exercise of the constituent power. The 69th amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory, albeit under the rubric of a Union territory governed by Part VIII of the Constitution. The content of such a constitutional amendment cannot be confined or constrained by the content of legislations which governed Delhi in the past. The constitutional amendments sought to bring stability and permanence to the democratic governance of the NCT. An amendment which enhances the basic features of the Constitution must bear an interpretation which will fulfil its true character. [Para 143] [304-G-H; 305-A-C]

#2. The Administrator appointed by the President under Article 239(1) is designated, with reference to the NCT as its Lieutenant Governor. The substantive source of power to appoint the Lieutenant Governor arises from Article 239 of the Constitution. While Article 239(1) indicates that the administration of a Union territory is by the President, the opening words of the 33 A B C D E F G H 34 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. provision (“Save as otherwise provided by Parliament by law”) indicate that the nature and extent of the administration by the President is as indicated in the law framed by Parliament. Moreover, the subsequent words of the provision (“to such extent as he thinks fit”) support the same position [Para 143] [305-C-E]

#3. By adopting Article 239AA, Parliament as a constituent body, provided Delhi with a special status by creating constitutionally entrenched institutions of governance. Article 239AA mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital. [Para 143] [305-E-F]

#4. The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government. These features emerge from the provisions of Article 239AA which require direct election to the legislative assembly from territorial constituencies; engage the constitutional functions of the Election Commission of India under Articles 324, 327 and 329; confer law making authority on the legislative assembly in respect of matters governed by the State List (save for excepted matters) and the Concurrent List; mandate the collective responsibility of the Council of Ministers to the legislative assembly; and provide (in the substantive part of Article 239AA(4)) that the Lieutenant Governor shall act on the aid and advise of the Council of Ministers headed by the Chief Minister. In adopting these provisions through an amendment, the Constitution has recognized the importance of the cabinet form of government to govern the affairs of Delhi. [Para 143] [305-F- H; 306-A-C]

#5. The distribution of legislative power in Article 239AA is indicative of the predominant role assigned to Parliament as a legislative body. This emerges from the position that Parliament is empowered to legislate on subjects falling in the State List as well as the Concurrent List; and the carving out of the three subjects of public order, police and land (Entries 1, 2 and 18 of the State List) and of offences, jurisdiction of Courts and fees (Entries 64, 65 and 66 in so far as they relate to the previous GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER entries), all of which are within the exclusive legislative domain of Parliament. Principles of repugnancy govern any inconsistency between laws enacted by the legislative assembly and those by Parliament and the laws of Parliament are to prevail unless a Presidential assent has been received. [Para 143] [306-C-F]

#6. The executive power of the government of NCT is co- extensive with the legislative power. The principle of aid and advice under clause 4 of Article 239AA extends to areas where the Lieutenant Governor exercises functions in relation to matters where the legislative assembly has the power to make laws. In consequence, those matters on which the legislative assembly does not have the power to enact legislation are not governed by the principle of aid and advice. Similarly, the Lieutenant Governor is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law. [Para 143] [306-F-H; 307-A]

#7. The GNCTD Act, 1991 has been enacted by Parliament in pursuance of the legislative authority conferred upon it by clause 7(a) of Article 239AA. The President has made the Transaction of Business Rules for the NCT as contemplated in the GNCTD Act, 1991. Section 41 of the GNCTD Act indicates that in matters which lie outside the legislative powers entrusted to the legislative assembly and where there has been an entrustment or delegation of functions by the President to the Lieutenant Governor under Article 239; and on matters where the Lieutenant Governor exercises his own discretion by or under any law, he is not subject to the aid and advice of the Council of Ministers; Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i). [Para 143] [307-A-D]

#8. Under the Rules, the Lieutenant Governor must be kept duly apprised on all matters pertaining to the administration of the affairs of the NCT. The Rules indicate the duty of the Council of Ministers to inform the Lieutenant Governor right from the stage of a proposal before it. The duty to keep the Lieutenant Governor duly informed and apprised of the affairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD 35 A B C D E F G H 36 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. Act, 1991 and the Transaction of Business Rules. [Para 143] [307-E-F]

#9. While the provisions contained in the Transaction of Business Rules require a scrupulous observance of the duty imposed on the Council of Ministers to inform the Lieutenant Governor on all matters relating to the administration of the NCT, neither the provisions of Article 239AA nor the provisions of the Act and Rules require the concurrence of the Lieutenant Governor to a decision which has been taken by the Council of Ministers. Rule 14 of the Rules in fact indicates that the duty is to inform and not seek the prior concurrence of the Lieutenant Governor. However, in specified areas which fall under Rule 23; it has been mandated that the Lieutenant Governor has to be apprised even before a decision is implemented. [Para 143] [307- F-H; 308-A-B]

#10. The feature which stands out from the Transaction of Business Rules is that an obligation and duty has been cast upon the elected government and its officers to duly keep the Lieutenant Governor informed of proposals relating to governmental business. The duty to keep the Lieutenant Governor informed is a necessary element of the process and essential for the exercise of the constitutional authority which has been vested in the Lieutenant Governor. It is only when the Lieutenant Governor is kept duly apprised of matters relating to the administration of the National Capital Territory that a decision can be taken on whether a reference should be made to the Union government under Chapter V. A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the government of NCT, decision making is by the government comprised of the Council of Ministers with the Chief Minister at its head.. [Para 103, 104] [271-D-F; G-H]

#11. As a result of the provisions of Article 367, the General Clauses Act, 1897 applies, subject to adaptations and modifications made under Article 372, to the interpretation of the Constitution. The definitions of the expressions ‘State’ (Section 3(58)) and ‘State Government’ (Section 3(60)) and ‘Union Territory’ (Section 3(62A)) apply to the interpretation of the provisions of the Constitution unless there is something GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER 37 repugnant in the subject or context of a particular provision of the Constitution. [Para 143] [308-B-C] A

#12. Since the decision of this Court in Kanniyan case and right through to the nine-judge Bench decision in NDMC case, it is a settled principle that the expression ‘State’ in Article 246(4) will not include a Union territory and that the definition contained in the General Clauses Act will not apply having regard to the subject and context of the provision. Decisions of this Court have applied the subject and context test to determine whether the expression ‘State’ in other provisions of the Constitution and in statutory provisions would include a Union territory. [Para 143] [308-D-E]

#13. The use of the expression “State” in a particular provision is not dispositive of whether or not its application would stand excluded in relation to a Union territory. The outcome is essentially based on the subject and context in which the word has been used. [Para 143] [308-E-F]

#14. While giving meaning and content to the proviso to Article 239AA (4), it is necessary to harmonise two significant precepts: that the Constitution has adopted a cabinet form of government for the Union territory of Delhi by creating institutions for the exercise of legislative power and an executive arm represented by the Council of Ministers; and the vital national interests are implicated in the governance of the National Capital Territory. The doctrines of aid and advice and of collective responsibility give effect to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a difference of opinion to the President is a reflection of (ii) above. [Para 143] [308-F-H; 309-A-B]

#15. While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi. [Para 143] [309-B-C] B C D E F G H 38 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R.

#16. Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Rules define the modalities which the Lieutenant Governor must follow in the event of a difference of opinion with the Council of Ministers. The Lieutenant Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President. [Para 143] [309-C-E]

#17. In a cabinet form of government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advise of the Council of Ministers, this recognises that real decision-making authority in a democratic form of government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by the decision which is arrived at by the President. The Lieutenant Governor has, however, been authorised to take immediate action in the meantime where emergent circumstances so require. The provisions of Article 239AA(4) indicate that the Lieutenant Governor must either act on the basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi- judicial authority under any law or has been entrusted with powers by the President under Article 239 on matters which lie outside the competence of the Government of NCT). [Para 143] [309-E- H; 310-A-B]

#18. The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances warranting recourse to the proviso. [Para 143] [310-C-E]

#19. Constitutional morality underscores the ethics of politics in a country. It gives politics the identity to succeed. Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past from tearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes. [Paras 14-15] [192-B; 193-D]

#20. Any interpretation of the Constitution must be unabashed in accepting the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. [Para 17] [194-C-D]

#21. Collective responsibility of the Council of Ministers ensures accountability to the legislature and to the electorate. Collective responsibility governs the democratic process, as it makes a government liable for every act it does. It envisages that a government works effectively to ensure and fulfil the interests of the public. It purports to ensure transparency in government decisions. Collective responsibility rests on the foundations of constitutional morality, which reflects constitutional ethics. [Para 37] [214-C-E]

#22. Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of 39 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. The principle of collective responsibility and aid and advice fosters a responsive and accountable government. The doctrine of aid and advice enhances the commitment to the democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance is subservient to its substance, which mandates that the real authority to take decisions must reside in the elected arm of the government. [Para 41, 43] [219-D-E; 220-E-F] U.N.R. Rao v Smt. Indira Gandhi (1971) 2 SCC 63 : [1971] 0 Suppl. SCR 46; Samsher Singh v State of Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; PU Myllai Hlychho v State of Mizoram (2005) 2 SCC 92 : [2005] 1 SCR 279; Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly; (2016) 8 SCC 1 : [2016] 6 SCR 1; Kihoto Hollohan v Zachillhu (1992) SCC Supl. (2) 651 : [1992] 1 SCR 686 – referred to. The Indian Constitution: Cornerstone of a Nation by Granville Austin, Oxford University Press (1966) p. xi – referred to.

#23. In defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Governance of the NCT involves national imperatives. They must also weigh in the balance. The proviso Article 239AA(4) is constitutional indicator of the national concerns which were borne in mind when the constituent power was exercised to establish the NCT as a political arm of governance by a special constitutional provision. Those national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of 40 A B C D E F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER 41 the legislative assembly and their entrustment to Parliament. [Para 74] [250-B-D] A

#24. The constitutional principle which emerges is that while Delhi presents a special case, quite unlike the other Union territories, the constitutional provisions governing it are an amalgam between national concerns (reflected in control by the Union) and representative democracy (expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature). There is no gain saying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers which in turn owes collective responsibility to Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience. [Para 75] [250-G-H; 251-A-B]

#25. The survey of the provisions of the GNCTD Act 1991 indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the legislative assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi judicial functions. Rules for the conduct of business are framed by the President in relation to National Capital Territory. [Para 87] [259-A-B, D-E] Keshavan Madhava Menon v State of Bombay [1951] 2 SCR 228; Tej Kiran Jain v N Sanjiva Reddy (1970) 2 SCC 272 : [1971] 1 SCR 612; G Narayanaswami v G Pannerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172; Kuldip Nayar v Union of India (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; Manoj Narula v Union of India (2014) B C D E F G H 42 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. 9 SCC 1 : [2014] 9 SCR 965; Satya Dev Bushahri v Padam Dev [1955] 1 SCR 549; Devji Vallabhbhai Tandel v Administrator of Goa, Daman & Diu [1982] 2 SCC 222 : [1982] 3 SCR 553; Goa Sampling Employees’ Association v General Superintendence Co. of India Pvt. Ltd. (1985) 1 SCC 206 : [1985] 2 SCR 373; The State of Madhya Pradesh v Shri Moula Bux (1962) 2 SCR 794; State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; New Delhi Municipal Council v State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472; TM Kanniyan v Income Tax Officer, Pondicherry [1968] 2 SCR 103; Management of Advance Insurance Co. Ltd. v Shri Gurudasmal (1970) 1 SCC 633; Union of India v Prem Kumar Jain (1976) 3 SCC 743 : [1976] 0 Suppl. SCR 166; Manoj Narula v Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kesavananda Bharati v State of Kerala AIR (1973) SC 1461 : [1973] 0 Suppl. SCR 1; Puttaswamy (2017) 10 SCC 1; I.R. Coelho v State of Tamil Nadu (2007) 2 SCC 1 : [2007] 1 SCR 706; Rai Sahib Ram Jawaya Kapur v The State of Punjab [1955] 2 SCR 225; A Sanjeevi Naidu v State of Madras (1970) 1 SCC 443 : [1970] 3 SCR 505; Samsher Singh v State of Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; State of Karnataka v Union of India (1977) 4 SCC 608 : [1978] 2 SCR 1; Common Cause, A Registered Society v Union of India (1999) 6 SCC 667 : [1999] 3 SCR 1279; Subramanian Swamy v Manmohan Singh (2012) 3 SCC 64 : [ 2012] 3 SCR 52 – referred to. Politics and Ethics of the Indian Constitution by Rajiv Bhagava (ed.), Oxford University Press (2008), p. 9; The Indian Constitution: Cornerstone of a Nation by Granville Austin, Oxford University Press (1966) p. xi; Politics and Ethics of the Indian Constitution by Rajiv Bhagava, Oxford University Press (2008)p.15; The Burden of Democracy, Penguin Books (2003) by Pratap Bhanu Mehta pp. 35-36; What is constitutional morality?” by Pratap Bhanu Mehta Seminar (2010); GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER Constituent Assembly Debates, Vol. 11 (25th November, 1949); The Oxford Handbook of the Indian Constitution by Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta Oxford University Press (2016) p.12; “The Quest and the Questions” by Raju Ramchandran; Outlook (25 August, 2014); London School of Economics & Political Science by Niraja Gopal Jayal and Pratap Bhanu Mehta (eds.) (February 2007); “Government Accountability” by Dilip Mookherjee ; The Oxford Companion to Politics in India, Oxford University Press (2010), p. 477; “Executive” by Shubhankar Dam; in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.); The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), p. 319; Politics and Ethics of the Indian Constitution by Rajiv Bhagava Oxford University Press (2008) (ed.) p. 9 - referred to. “The Glory of Democracy” by David Brooks The New York Times December 14, 2017; Democracy and its Institutions, by Andre Beteille Oxford University Press (2012); “Constitutional Morality and the Rule of Law”, Journal of Law and Politics by Bruce P. Frohnen and George W. Carey (2011),Vol. 26, p.498; “The Silences of Constitutions”, International Journal of Constitutional Law by Martin Loughlin (2019, In Press); Representative and Responsible Government, by George Allen & Unwin Ltd (1964), p.131; The English Constitution by Walter Bagehot, 2nd Edition (1873), p. 118; The Growth of the English Constitution by Edward A. Freeman (1872); Cabinet Government by Ivor Jennings, Cambridge University Press (1959), 3rd Edition, p. 279; Ministerial responsibility by G Marshall, Oxford University Press (1989), p. 2-4; “Individual and Collective Performance and the Tenure of British Ministers by Samuel Berlinski, Torun Dewan and Keith Dowding1945-1997”; “The Silences of Constitutions” by Martin Loughlin, International 43 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. Journal of Constitutional Law (2019, In Press) – referred to. Per Ashok Bhushan, J. (Concurring): Principles of Constitutional Interpretation

1.1 The general rule for interpreting a Constitution are the same as those for interpreting a general Statute. There cannot be denial to the fact that the Court has to respect the language used in the Constitution wherever possible, the language be such interpreted as may best serve the purpose of the Constitution. A Constitutional document should be construed with less rigidity and more generosity than other acts. A Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. [Para 41-42][332--D; 333-F, G]

1.2 As regards applying the doctrine of silence and doctrine of implications in interpreting a Constitutional provision, express provision cannot be given a go-bye. The purpose and intent of Constitutional provisions especially the express language used which reflect a particular scheme has to give full effect to and express Constitutional scheme cannot be disregarded on such principles.[Para 56] [343-B-C]

1.3 It is apparent that Constitutional interpretation has to be purposive taking into consideration the need of time and Constitutional principles. The intent of Constitution framers and object and purpose of Constitutional amendment always throw light on the Constitutional provisions but for interpreting a particular Constitutional provision, the Constitutional Scheme and the express language employed cannot be given a go-bye. The purpose and intent of the Constitutional provisions have to be found from the very Constitutional provisions which are up for interpretation. Thus, while interpreting Article 239AA the purpose and object for which Sixty Ninth Constitution (Amendment) Act, 1991 was brought into force has to be kept in mind.[Para 57, 119-I] [343-D-E; 376-F] 44 A B C D E F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER Keshavan Madhava Menon v. State of Bombay AIR 1951 SC 128 : [1951] SCR 228; S. R. Chaudhuri v. State of Punjab & Ors. (2001) 7 SCC 126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam and Others (1972) 3 SCC 717 : [1973] 1 SCR 172; B.R. Kapur v. State of T. N. and Another (2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and Others v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248 : AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v. Union of India and Another (1978)1 SCC 248 : AIR 1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar and Another v. State of Karnataka 1985 Supp. SCC 714 : [1985] Suppl. SCR 352; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referred to. “A critical commentary” on Constitutional Law of India by Shri H.M. Seervai; “Principles of Statutory Interpretation by Justice G.P. Singh 14th Edn; Forward: A Judge on judging the role of a Supreme Court in a Democracy by Aharon Barak; Nature and Significance of Constitutional Legislation by David Feldman 2013 (129) LQR 343-358 – referred to. Constitutional Scheme of Article 239AA

#2. Article 239A which was inserted by Constitutional Fourteenth Amendment Act, 1962 had already contemplated that Parliament may by law provide for Legislative Assembly for a Union territory. The report also highlighted the necessity of certain subjects being kept out of jurisdiction of legislative assembly of Delhi which were to be dealt with by the Union. The Parliamentary Committee Report can be looked into to find out the intent and purpose of legislation-Sixty Ninth Constitutional Amendment. The statement of object and reasons of Sixty Ninth Amendment Act has also referred to the Balakrishnan’s report. The recommendation of the Committee that Delhi should continue 45 A B C D E F G H 46 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. to be Union territory providing with a Legislative Assembly and Council of Ministers responsible to such Assembly was thus, accepted and to give effect the same Article 239AA was inserted in the Constitution. There is no denying that one of the purposes for insertion of Article 239AA is to permit a democratic and republican form of Government. The principle of cabinet responsibility was the Constitutional intent which has to be kept in mind while interpreting the Constitutional provisions. [Para 60, 61, 65-67] [344-C-H; 346-F-G; 347-C-D] Kalpana Mehta and others v. Union of India and others 2018 (7) SCALE 106 – referred to. Legislative Power of Parliament and that of GNCTD

3.1 Clause (3) of the 239AA deals with power to make laws for the whole or any part of the National Territory of Delhi by the Legislative Assembly as well as by Parliament. Article 239 Clause (3) makes it clear that Legislative Assembly shall have power to make laws in respect of any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 (public order, police and land) of the State List and Entries 64, 65 and 66 of the List. Power to make laws in State List or in Concurrent List is hedged by phrase “in so far as any such matter is applicable to Union territories”. [Para 69-71] [348-B-D; 349-C]

3.2 A perusal of the List II and III indicates that although in various entries there is specific mention of words ‘State’ but there is no express reference of ‘Union Territory in any of the entries. The phrase ‘in so far as any such matter is applicable to ‘Union Territory’ is inconsequential. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER Union Territory is excluded by implication or any express Constitutional provision. Thus, there is no difficulty in comprehending the Legislative power of the NCTD as expressly spelled out in Article 239AA. The Union Territories are part of the India which are not included in any State. Thus, Parliament will have power to make laws for any matter with regard to Union territories. In clause (4) of Article 246 by Seventh Constitutional Amendment, in place of words “in Part A or Part B of the First Schedule” the words “in State” have been substituted. Thus, overriding power of the Parliament was provided with regard to Part C and D States on enforcement of the Constitution which Constitutional Scheme is continued after amendment made by Seventh Constitutional Amendment. [Para 72-76] [349-D-G, H; 350-H; 351-A]

3.3 The Parliament has power to make laws for NCTD with respect to any of the matter enumerated in State List or Concurrent List. The Legislative Assembly of NCT has legislative power with respect to any of the matters enumerated in the State List or in the Concurrent List excluding the excepted entries of State List. [Paras 80, 119-II] [354-F; 376-G] NDMC v. State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472 – referred to. Executive Powers of the Union(President /LG) And That of the GNCTD

4.1 Although there is no express provision in the Constitutional Scheme conferring executive power to LG of the Union territory of Delhi, as has been conferred on the Union under Article 73 and conferred on the State under Article 154. Under the Constitutional Scheme executive power is co-extensive with the Legislative power. The Executive power is given to give effect to Legislative enactments. Policy of legislation can be given effect to only by executive machinery. The executive power has to be conceded to fulfill the constitutionally conferred democratic mandate. Article 239(4) AA deals with the exercise of executive power by the Council of Ministers with the Chief Minister as the head to aid and advice the LG in exercise of the above functions. Union and States can exercise Executive power on the subjects on which they have power to legislate. [Para 81,82, 119-III] [354- H; 355-A-B-C; 376-H] 47 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. Rai Sahib Ram JawayaKapur and Others v. State of Punjab AIR 1955 SC 549 : [1955] SCR 225 – referred to.

4.2 The proviso to Article 73(1) provides that the executive power referred to in sub clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Obviously, the proviso refers to the Concurrent List where both Parliament and State has power to make laws. Executive power in reference to Concurrent List has been deliberately excluded to avoid any duplicacy in exercise of power by two authorities. The Article 73 as it stood prior to Constitution Seventh Amendment Act, 1956 contained the expression after the word State “specified in Part A or Part B of the First Schedule”. Thus, the executive power was excluded of the Union only with regard to Part A and Part B States alone. Thus, when the Constitution was enforced, executive power of Union in reference to Part C States was not excluded with regard to Concurrent List also. Part C States having been substituted as now by Union Territories by Constitution Seventh Amendment Act. The word “State” in Proviso to Article 73 cannot be read to include Union Territory. Reading the word Union Territory within the word “State” in proviso to Article 73(1) shall not be in accordance with Scheme of Part VIII (Union Territories) of the Constitution. Union Territories are administered by the President. Exercise of executive power of the Union through President is an accepted principle with regard to Union Territories. The above interpretation is also reinforced due to another reason. Under Article 239AA(4) proviso, the Lieutenant Governor, in case of difference of opinion, can make a reference to the President for decision and has to act according to the decision given thereon. The President, thus, with regard to a particular executive action, which has been referred, has exclusive jurisdiction to take a decision, which both Council of Ministers as well as Lieutenant Governor has to follow. The provision does not indicate that power of the President is confined only to executive actions which are mentioned in List II. When the President as provided by the Constitutional Scheme, is entitled 48 A B C D E F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER to take executive decision on any matter irrespective of the fact whether such executive decision taken by the Council of Ministers or Ministers related to matters covered by List II and List III, the executive power to Union through President cannot be confined to List II. Overriding power to the Union even on the executive matters has to be conceded to be there as per Constitutional scheme. It is another matter that for exercise of executive powers by the Union through President and by Council of Ministers, headed by Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering sub-clause(4) of Article 239AA. Legislative power of the Union is co-extensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239AA by the Constitution 69th Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by the Parliament in exercise of power under Article 239AA(7)(a) of the Constitution. [Para 85, 119-IV] [359-B-G; 360-A-C; 377-A-B]

4.3 Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged Council of Ministers and the Lieutenant Governor shall be under the general control of, and comply with such particular directions issued by the President from time to time. The power of the President to issue direction is not limited in any manner so as to put any restriction on the executive power of the Union. The President further is empowered under Section 44 of Act, 1991 to make rules for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. As per Article 239AA sub-clause (4) read with business rules, the manner and procedure of conduct of business including executive functions of GNCTD has to be administered. Although the Union ordinarily does not interfere with or meddle with the day to day functions of the GNCTD which is in tune with the constitutional scheme as 49 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. delineated by Article 239AA and to give meaning and purpose to the Cabinet form of Government brought in place in the National Capital of Territory. But as the overriding legislative power of the Parliament is conceded in the constitutional scheme, overriding executive power has also to be conceded even though such power is not exercised by the Union in the day to day functioning of the GNCTD. Thus, the executive power of the Union is co-extensive on all subjects referable to List I and List II on which Council of Ministers and the NCTD has also executive powers. [Para 86-87] [360-E-H; 361-A-B]

4.4 The provision of the Article 239AB is a special provision where President may suspend the provision of Article 239AA or any of the provision of any law made in pursuance of that article. The above provision is akin to Article 356.The power under Article 356/239AA is conferred on Union in larger interest of State. It cannot be said that executive power can be exercised by the Union through President only when power under Article 239AB is exercised. The provision of Article 239AB is for entirely different purpose, and is not a provision regarding exercise of general executive power by the Union. [Para 89] [361-H; 362-A-B] Article 239AA(4) proviso

5.1 The Governor is to act on aid and advice of the Council of Ministers and as contemplated under Article 163, according to the Constitutional scheme, Governor is not free to disregard the aid and advice of the Council of Ministers except when he is required to exercise his function in his discretion. The aid and advice as given by Council of Ministers as referred to in sub- clause(4) of Article 239AA has to be followed by the Lieutenant Governor unless he decides to exercise his power given in proviso of sub-clause(4) of Article 239AA.The proviso is an exception to the power as given in sub-clause(4). A case when falls within the proviso, the “aid and advice” of the Council of Ministers as contemplated under sub-clause (4) is not to be adhered to and a reference can be made by Lieutenant Governor. This is an express Constitution scheme, which is delineated by sub- clause(4) of Article 239AA proviso. The scheme which is reflected 50 A B C D E F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER by sub-clause(4) of Article 239AA proviso is the same scheme which is contained under Section 44 of the Government of Union Territories Act, 1963. [Para 92, 119-VI] [365-B, E-G] Shamsher Singh v. State of Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR 814 – referred to.

5.2 With regard to Union Territories, the exception as carved out in proviso was very much there since before. Thus, the scheme as contained in proviso was well known scheme applicable in the Union Territories. When there is an express exception when the aid and advice given by the Council of Ministers is not binding on the Lieutenant Governor and he can refer it to the President and pending such decision in case of urgency take his own decision, it cannot be accepted that aid and advice is binding on the Governor under Article 163. The Legislative Assembly of the NCTD being representing the views of elected members their opinion and decision has to be respected and in all cases, except where Lieutenant Governor decides to make a reference. [Para 92-93, 119-VII] [366-D-E; 377-D]

5.3 The proviso uses the phrase “any matter” in the first sentence, i.e., “provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter...”The word “any matter” are words of wide import and the language of Article 239AA(4) does not admit any kind of restriction in operation of proviso. There is nothing in the provision of sub-clause (4) to read any restriction or limitation on the phrase “any matter” occurring in proviso. The word “any matter” has also been used in Article 239AA(3) while providing for power to make laws as also in sub-clause(b). The use of word “any matter” in above two clauses clearly indicate that it is not used in any limited or restricted manner rather use of word “any matter” is used referring to the entire extent of legislation. When the same phrase has been used in proviso to sub-clause(4), similar interpretation has to be given to the same word used in earlier part of the same Article. [Para 95] [367-D, G] Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 – referred to. 51 A B C D E F G H 52 A B C D E F SUPREME COURT REPORTS [2018] 7 S.C.R.

5.4 It is clear that aid and advice of the Council of Ministers is binding on the Lieutenant Governor except when he decides to exercise his power given in proviso of sub-clause(4) of Article 239AA. In the matters, where power under proviso has not been exercised, aid and advice of the Council of Ministers is binding on the Lieutenant Governor. Proviso to sub-clause(4) of Article 239AA cannot be given any other interpretation relying on any principle of Parliamentary democracy or any system of Government or any principle of Constitutional silence or implications.[Para 97] [368-D-F]

5.5 Proviso to sub-clause(4) of Article 239AA envisages an extreme and unusual situation and is not meant to be a norm. The exercise of power under proviso cannot be a routine affair and it is only in cases where Lieutenant Governor on due consideration of a particular decision of the Council of Ministers/ Ministers, decides to make a reference so that the decision be not implemented. The overall exercise of administration of Union Territory is conferred on President, which is clear from the provisions contained in Part VIII of the Constitution. The submission that Article 239 is not applicable with regard to NCTD after Article 239AA has been inserted in the Constitution, cannot be accepted on account of the express provisions which are mentioned under Article 239AA and Article 239AB itself. Article 239AA sub-clause(1) itself contemplates that administrator appointed under Article 239 shall be designated as the Lieutenant Governor. Thus, the administrator appointed under Article 239 is designated as LG. Article 239AB is also applicable to NCTD. The provisions contained in Part VIII have to be looked into in its entirety. Thus, all the provisions of Part VIII has to be cumulatively read while finding out the intention of the Constitution makers, which makes it clear that Article 239 is also applicable to the NCTD. [Para 98] [368-F-H; 369-A-C] G Whether concurrence of Lieutenant Governor is required on executive decision of GNCTD.

6.1 The constitutional provision of Article 239AA does not indicate that the executive decisions of GNCTD have to be taken with the concurrence of LG. The constitutional provisions inserted by 69th Constitution Amendment are with the object to ensure H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER stability and permanence by providing Legislative Assembly and Council of Ministers by the constitutional provisions itself. With regard to executive decision taken by the Council of Ministers/ Ministers of GNCTD proviso gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between executive decisions of the GNCTD and the LG, but the scheme does not suggest that the decisions by Council of Ministers/Ministers have to be taken with the concurrence of the LG. The above conclusion is re- enforced by looking into the 1991 Act as well as Rules framed by the President under Section 44 of 1991 Act, namely, the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993. The provisions of 1991 Act although provide for communication of proposal, agenda and decisions of the Council of Ministers/Ministers to LG but there is no indication in any of the provisions that the concurrence of LG is required with regard to the aforesaid decisions. [Para 99] [369-C-G]

6.2 Earlier enactments governing the Delhi administration did provide the word concurrence of LG for implementing decisions taken by GNCTD but the said scheme having been given a go-bye in the 1991 Act, there is no requirement of any concurrence of LG to the executive decisions taken by the GNCTD. [Para 100] [369-G-H] Communication to the LG, its purpose and object

7.1 The scheme as delineated by 1991 Act and Rules 1993 clearly indicates that LG has to be kept informed of all proposals, agendas of meeting and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through the proposals and decisions so as to enable him to exercise powers as conceded to him under 1991 Act and Rules 1993. Further, the power given under proviso to 239AA(4) can be exercised only when LG is informed and communicated of all decisions taken by GNCTD. The communication of all decisions is necessary to enable the LG to perform duties and obligations to oversee the administration of GNCTD and where he is of different opinion he can make a 53 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. reference to the President. The purpose of communication is not to obtain his concurrence of the decision but purpose is to post him with the administration so as to enable him to exercise his powers conceded to him under proviso to Article 239AA sub- clause (4). The powers given in proviso to sub-clause (4) is not to be exercised in a routine manner rather it is to be exercised by the LG on appropriate reasons to safeguard the interest of the Union Territory.[Para 101, 113, 119-VIII, X] [377-G-H; 378-A; 374-F-H; 377-E]

7.2 The 1991 Act and 1993 Rules cover the entire gamut, manner and procedure of executive decisions taken by the Council of Ministers/Minister their communication, and implementation and the entire administration is to be run accordingly. The duty of observance of 1993 Rules and other statutory provisions lay both on Council of Ministers, Chief Minister and LG. All have to act in a manner so that the administration may run smoothly without there being any bottleneck. The object and purpose of all constitutional provisions, Parliamentary enactments and the Rules framed by the President is to carry the administration in accordance with the provisions in the interest of public in general so that rights guaranteed by the Constitution to each and every person are realised. When the duty is entrusted on persons holding high office, it is expected that they shall conduct themselves, in faithful, discharge of their duties to ensure smooth running of administration and protection of rights of all concerned. [Para 114, 116] [375-E-F; 376-A-C] S.R. Chaudhuri v. State of Punjab &Ors. (2001) 7 SCC 126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam and Others (1972) 3 SCC 717 : [1973] 1 SCR 172; B.R. Kapur v. State of T. N. and Another (2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and Others v. Union of India and Others (2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee Cooper v. Union of India (1970)1 SCC 248 : AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v. Union of India and Another (1978)1 SCC 248: AIR 54 A B C D E F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER 1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar and Another v. State of Karnataka (1985) Supp. SCC 714 : [1985] Suppl. SCR 352; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kalpana Mehta and others v. Union of India and others 2018 (7) SCALE 106; NDMC v. State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab AIR 1955 SC 549 : [1955] SCR 225; Shamsher Singh v. State of Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR 814; Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 – referred to. “A critical commentary” on Constitutional Law of India by Shri H.M. Seervai; “Principles of Statutory Interpretation by Justice G.P. Singh, 14 th Edn – referred to. Case Law Reference In the Judgment of Justice Dipak Misra, CJI [1951] SCR 228 [1971] 3 SCR 9 [1976] 1 SCR 906 referred to referred to referred to [1993] 2 Suppl. SCR 659 referred to [1970] 3 SCR 530 [1978] 2 SCR 621 [2017] 10 SCC 1 [1955] SCR 225 [1975] 1 SCR 814 [1971] 1 SCR 612 [2000] 2 SCR 299 [2014] 9 SCR 965 [2015] 4 SCR 987 referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 7 Para 8 Para 9 Para 10 Para 24 Para 24 Para 24 Para 25 Para 25 Para 44 Para 52 Para 59 Para 61 55 A B C D E F G H 56 SUPREME COURT REPORTS [2018] 7 S.C.R. A [1992] 2 Suppl. SCR 454 referred to 2018 (7) SCALE 106 referred to [2001] 3 Suppl. SCR 191 referred to B C D E F [2000] 2 SCR 688 1990 (2) SCALE 836 [1978] 2 SCR 1 [1993] 3 SCR 802 [1999] 3 SCR 1279 [1978] 2 SCR 272 [1980] SCR 1302 [1976] SCR 347 referred to referred to referred to referred to referred to referred to referred to referred to [1995] 2 Suppl. SCR 106 referred to [2006] 5 Suppl. SCR 1 referred to [1965] SCR 413 [1994] 2 SCR 644 [2002] 1 SCR 441 [1978] 1 SCR 1 [2016] 11 SCR 723 [1993] 1 SCR 891 [1984] 2 SCR 145 referred to referred to referred to referred to referred to referred to referred to [2001] 1 Suppl. SCR 621 referred to [1997] 3 SCR 269 [2011] 6 SCR 599 G (2006) 8 SCC 202 (2016) 5 SCC 1 [1978] 1 SCR 641 [1978] 1 SCR 423 H referred to referred to referred to referred to referred to referred to Para 63 Para 67 Para 70 Para 73 Para 73 Para 79 Para 81 Para 82 Para 87 Para 88 Para 90 Para 90 Para 90 Para 97 Para 100 Para 104 Para 119 Para 130 Para 135 Para 141 Para 147 Para 149 Para 150 Para 150 Para 164 Para 166 Para 169 GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER 57 [2012] 12 SCR 1077 [1982] 3 SCR 553 [1964] 3 SCR 787 [1987] 2 SCR 1173 [1992] 1 SCR 686 [1970] 1 SCR 115 [1958] SCR 1156 [1984] 2 SCR 495 [2002] 1 SCR 393 referred to referred to referred to referred to referred to referred to referred to referred to referred to [2002] 3 Suppl. SCR 587 referred to Para 176 A Para 188 Para 189 Para 227 Para 228 Para 229 Para 231 Para 269 Para 269 Para 269 [1996] 10 Suppl. SCR 472 followed Para 277(xii) In the Judgment of Justice D Y Chandrachud [2014] 9 SCR 965 [1973] Suppl. SCR 1 (2017) 10 SCC 1 [1992] 1 SCR 686 [2007] 1 SCR 706 [1955] 2 SCR 225 [1970] 3 SCR 505 [1975] 1 SCR 814 [1978] 2 SCR 1 [1999] 3 SCR 1279 [2012] 3 SCR 52 [1971] Suppl. SCR 46 [1975] 1 SCR 814 [2005] 1 SCR 279 [2016] 6 SCR 1 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 14 Para 17 Para 21 Para 23 Para 23 Para 36 Para 36 Para 36 Para 36 Para 36 Para 36 Para 39 Para 39 Para 40 Para 40 B C D E F G H 58 SUPREME COURT REPORTS [2018] 7 S.C.R. A [1951] 2 SCR 228 [1971] 1 SCR 612 [1973] 1 SCR 172 referred to referred to referred to B C [2006] 5 Suppl. SCR 1 referred to [2014] 9 SCR 965 [1955] 1 SCR 549 [1982] 3 SCR 553 [1985] 2 SCR 373 [1962] 2 SCR 794 referred to referred to referred to referred to referred to [2005] 2 Suppl. SCR 79 referred to D [1996] 10 Suppl. SCR 472 referred to [1968] 2 SCR 103 (1970) 1 SCC 633 referred to referred to [1976] Suppl. SCR 166 referred to In the Judgment of Justice Ashok Bhushan [1971]1 SCR 612 [1951] SCR 228 referred to referred to [2001] 1 Suppl. SCR 621 referred to [1973] 1 SCR 172 referred to [2001] 3 Suppl. SCR 191 referred to [2006] 5 Suppl. SCR 1 referred to [2007] 1 SCR 706 [1970] 3 SCR 530 [1978] 2 SCR 621 referred to referred to referred to E F G H Para 107 Para 108 Para 109 Para 110 Para 110 Para 114 Para 115 Para 117 Para 117 Para 118 Para 119 Para 123 Para 124 Para 125 Para 27 Para 41 Para 42 Para 43 Para 44 Para 45 Para 46 Para 47 Para 47 GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER 59 [1985] Suppl. SCR 352 referred to Para 47 A [2014] 9 SCR 965 referred to 2018 (7) SCALE 106 referred to [1996] 10 Suppl. SCR 472 referred to [1955] SCR 225 [1975] 1 SCR 814 [1971] 1 SCR 612 referred to referred to referred to Para 53 Para 62 Para 77 Para 81 Para 91 Para 96 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357 of 2017. From the Judgment and Order dated 04.08.2016 of the High Court of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015 WITH Contempt Petition (C) No. 175 of 2016 in W.P. (Crl.) No. 539 of 1986 C. A. No. 2360, 2359, 2363, 2362, 2358, 2361 and 2364 of 2017 Crl. A. No. 277 of 2017. Maninder Singh, ASG, P. Chidambaram, Dr. Rajeev Dhawan, Shekhar Naphade, Ms. Indira Jaising, Gopal Subramaniam, Mrs. V. Mohana, Sidharth Luthra, Sr. Advs., Shadan Farasat, Ms. Nitya Ramakrishnan, Rahul Mehra, Ahmed Said, Ms. Rudrakshi Deo, Shashi Pratap Singh, Suhail Rashid Bhat, Ms. Neha Sangwan, Chirag M. Shroff, Naveen R. Nath, Abhimanyu Verma, Nehmat Kaur, Gautam Bhatia, Prateek Chadha, Ankur Kashyap, Kushagra Pandey, B. Krishna Prasad, Sija N. Pal, Satya Mitra, Prabhas Bajaj, R. Bala Subramanian, Ms. Binu Tamta, Prateek Jalan, Ritin Rai, P. K. Mullick, Ritesh Kumar, Ms. Meenakshi Grover, Kirtiman Singh, Jayant Malik, Aabhas Kshetarpal, Ms. Kritika, Abhipsit Mishra, Ms. Madhavi Divan, Rahul Kriplani, Ankit Yadav, Mrs. Soma Mullick, Sebat Kumar Devria, Ayush Puri, B. V. Balram Das, K. R. Sasiprabhu, Gautam Khazandvi, Mrs. Gargi Khanna, Nikhil Nayyar, Dr. Monika Gusain, Manpreet Kaur Bhalla, Siddharth Aggarwal, Ms. Stuti Gujral, Zeeshan Diwan, Senthil Jagadeesan, Aman Hingorani, Ms. Priya Hingorani, Dr. Shweta Hingorani, Advs. for the appearing parties. B C D E F G H 60 A B SUPREME COURT REPORTS [2018] 7 S.C.R. The Judgments of the Court were delivered by DIPAK MISRA, CJI (FOR HIMSELF, A. K. SIKRI AND A.M. KHANWILKAR, JJ.) CONTENTS A. Prologue……………………………………………............ 3-22 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 C. Ideals/principles of representative governance.................... 45-50 D. Constitutional morality……………………….................... 50-54 E. Constitutional objectivity……………………...................... 54-57 F. Constitutional governance and the conception of legitimate constitutional trust………………………………………… 57-68 D G. Collective responsibility………………………................... 68-73 H. Federal functionalism and democracy............................... 74-93 I. Collaborative federalism……………………….................. 93-100 E 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 Constitution................... 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 F G H GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER [DIPAK MISRA, CJI] 61 U. Constitutional renaissance…………………................... 213-217 A 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 B C D E F G H 62 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. 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 GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER [DIPAK MISRA, CJI] 63 within its sweep a connotative expansion so that the intrinsic and innate facets are included. A

#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 about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” [Emphasis is ours] 1 1951 SCR 228 B C D E F G H 64 A B C D E F G H SUPREME COURT REPORTS [2018] 7 S.C.R. 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