TMI Blog2018 (7) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory evolved as Delhi progressed from a Part C State (before the Seventh Amendment) to a Union Territory governed by legislation - As a Union territory, the position of Delhi has evolved from being administered by an Administrator Under Article 239A following the fourteenth amendment and from governance under the earlier enactments of Parliament to its present-day status as a national capital territory governed by a specific constitutional provision: Article 239AA. 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 gainsaying 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 terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 Constitution 164-188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 976) 2 SCC 310, 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 ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Ministers. 22. The Appellant has alluded to the nine-Judge Bench decision in New Delhi Municipal Corporation v. State of Punjab: (1997) 7 SCC 339 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Punjab AIR 1955 SC 549 and Shamsher Singh v. State of Punjab AIR 1974 SC 2192 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislate 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal, 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 Anr. v. Bal Mukund Sah and Ors. (2000) 4 SCC 640 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. [Emphasis is ours] 53. Thus perceived, the people are the sovereign since they exercise the power of adult franchise that ultimately builds the structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 expect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess 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/governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. [Emphasis is ours] 68. Thus, the concept of constitutional governance is a natural consequent of the doctrine of constitutional sovereignty. The writings of Locke and Montesquieu also throw light on the concept of constitutional governance. Locke lays stress on the fiduciary nature of public power and argues that sovereignty lies with the people. Montesquieu, on the other hand, in his postulate of constitutional governance, has laid more stress on the system of checks and balances and separation of powers between the executive, legislature and the judiciary. According to the ideas of Montesquieu, it can be said that constitutional governan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utional 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 Commission 2000) 4 SCC 309, 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 Ors. and Firdauz Taleyarkhan v. Union of India and Anr. 1990 (2) SCALE 836, in the context of appointment of Judges, it has been stated that it is essentiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 disqualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Supposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Griffith5, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tohra AIR 1980 SC 1362, 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional value needs to be protected, preserved and sustained and for that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous. In the said case, the Court, while emphasizing that good governance is a sine qua non for a healthy democracy, stated thus: In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as primary one and any other interest secondary. The maxim Salus Populi Suprema Lex, has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for Fundamental Rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not an Utopian conception or an abstra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, Shri T.T. Krishnamachari said: Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back. I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authority among bodies which are coordinate with and independent of each other. Further, the Court stated that the supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution, the Court stated, is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers and, thus, the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. 98. Gajendragadkar, C.J., in the said case, observed that our Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. In State of Karnataka v. Union of India (supra), Untwalia, J. (speaking for Justice Singhal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule. 100. For our purpose, further it is really not necessary to determine whether, in spite of the provisions of the Constitution referred to above, our Constitution is federal, quasi-federal or unitary in nature. It is not the theoretical label given to the Constitution but the practical implications of the provisions of the Constitution which are of importance to decide the question that arises in the present context, viz., whether the powers Under Article 356(1) can be exercised by the President arbitrarily and unmindful of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even In USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures Union and State relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, democracy, i.e., Rule by the people and federalism are firmly imbibed in our constitutional ethos. Whatever be the nature of federalism present in the Indian Constitution, whether absolutely federal or quasi-federal, the fact of the matter is that federalism is a part of the basic structure of our Constitution as every State is a constituent unit which has an exclusive Legislature and Executive elected and constituted by the same process as in the case of the Union Government. The resultant effect is that one can perceive the distinct aim to preserve and protect the unity and the territorial integrity of India. This is a special feature of our constitutional federalism. 107. It is self-evident that there is a meaningful orchestration between the concepts of federalism and nature of democracy present in our Constitution. It would not be a fallacious metaphor if we say that just as in a fusion reaction two or more atomic nuclei come together to form a bigger and heavier nucleus, the founding fathers of our Constitution envisaged a fusion of federalism and democracy in the quest for achieving an egalitarian social order, a classical unity in a contemporaneous diversity. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose common to both, which neither could fully achieve without the cooperation of the other and the Constitution does not prohibit such cooperation. 112. Geoffrey Sawer proposes that cooperative federalism is evidenced by the following characteristics: 'each of the parties to the arrangement has a reasonable degree of autonomy, can bargain about the terms of cooperation, and at least if driven too hard, decline to cooperate'9. 113. Later, Cameron and Simeon described collaborative federalism, as: The process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the governments and the territories acting collectively.10 Although the said statement of law may not be strictly applicable, yet the need for co-operation to sustain the federal structure has its own importance as an idea. 114. Thus, the Union and the State Governments should always work in harmony avoiding constitutional discord. In such a collaboration, the national vision as set out in the Preamble to our Constitution gets realized. The methods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. We may hasten to add that this idea of collaborative federalism would be more clear when we understand the very essence of the special status of NCT of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution. 118. The idea of cooperative/collaborative federalism is also not new to India. M.P. Jain in his book13, in a different manner, sets forth the perception thus: Though the Constitution provides adequate powers to the Centre to fulfil its role, yet, in actual practice, the Centre can maintain its dynamism and initiative not through a show of its powers -- which should be exercised only as a last resort in a demonstrable necessity -- but on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rief, indicate some of these features to underscore the fact that though our Constitution broadly has a federal character, yet it still has certain striking unitary features too. Under Article 3 of the Constitution, the Parliament can alter or change the areas, boundaries or names of the States. During emergency, the Union Parliament is empowered to make laws in relation to matters under the State List, give directions to the States and empower Union officers to execute matters in the State List. That apart, in case of inconsistency between the Union and the State laws, the Union Law shall prevail. Additionally, a Governor of a State is empowered to reserve the bill passed by the State Legislature for consideration of the President and the President is not bound to give his assent to such a bill. Further, a State Legislature can be dissolved and President's Rule can be imposed in a State either on the report of the Governor or otherwise when there is failure of the constitutional machinery in the State. 122. We have referred to the above aspects to lay stress on the 'quasi-federal' nature of our Constitution which has been so held by the Court in many a decision. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve with the changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind. K. Concept of federal balance: 127. Another complementary concept in this context, we think, is federal balance . Federalism in contradistinction to centralism is a concept which envisions a form of Government where there is a distribution of powers between the States and the Centre. It has been advocated by the patrons of the federal theory that the States must enjoy freedom and independence as much as possible and at the very least be on an equal footing with the Centre. The Indian Constitution prescribes a federal structure which provides for division of powers between the States and the Centre, but with a slight tilt towards the Centre. This unique quasi-federal structure is inherent in the various provisions of the Constitution as it was felt by the framers of our Constitution keeping in mind the needs of independent India and that is why, the residuary powers in most, if not all, matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racter of our Constitution and the need to maintain the federal balance which has been envisaged in our Constitution to prevent any usurpation of power either by the Centre or the States. We reproduce the same with profit: The federal structure under the constitutional scheme can also work to nullify an incidental encroachment made by the Parliamentary legislation on a subject of a State legislation where the dominant legislation is the State legislation. An attempt to keep the aforesaid constitutional balance intact and give a limited operation to the doctrine of federal supremacy can be discerned in the concurring judgment of Ruma Pal, J. in ITC Ltd. v. Agricultural Produce Market Committee and Ors., wherein after quoting the observations of this Court in the case of S.R. Bomai v. Union of India (para 276), the learned Judge has gone to observe as follows (para 94 of the report): 276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document. 134. In this regard, we think it appropriate to have a bird's eye view as to how the American jurists and academicians have contextually perceived the science of constitutional interpretation. The most important aspect of modern constitutional theory is its interpretation. Constitutional law is a fundamental law of governance of a politically organised society and it provides for an independent judicial system which has the onerous responsibility of decisional process in the sphere of application of the constitutional norms. The resultant consequences do have a vital impact on the well-being of the people. The principles of constitutional interpretation, thus, occupy a prime place in the method of adjudication. In bringing about constitutional order through interpretation, the judiciary is often confronted with two propositions -- whether the provisions of the Constitution should be interpreted as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the Constitution. 20 135. Our Constitution, to repeat at the cost of repetition, is an organic and living document. It contains words that potentially do have many a concept. It is evident from the following passage from R.C. Poudyal v. Union of India and Ors. AIR 1993 SC 1804: In the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves . The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that the intention of a Constitution is rather to outline principles than to engrave details. 136. Professor Richard H. Fallon has, in his celebrated work 21, identified five different strands of interpretative considerations which shall be taken into account by judges while interpreting the Constitution. They read thus: Arguments from the plain, necessary, or meaning of the constitutional text; arguments about the intent of the framers; arguments of constitutional theory that reason from the hypothesized purposes tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l interpretation. The ordinary Rules and presumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the provisions of the Constitution. In Minister of Home Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian Constitution, Lord Wilberforce reiterated that a Constitution is a document sui generis, calling for principles of interpretation of its own, suitable to its character 142. Dickson, J., in Hunter v. Southam Inc [1984] 2 SCR 145, rendering the judgment of the Supreme Court of Canada, expounded the principle pertaining to constitutional interpretation thus: The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the intellectual pleasure of reviving the thoughts that prevailed at the time the enactment was drafted. He interprets it with an eye to action: the application of the statute. Legal interpretation is thus often an interpretive operation , that is, one linked to the resolution of concrete issues. M. Purposive interpretation: 146. Having stated the principles relating to constitutional interpretation we, as presently advised, think it apt to devote some space to purposive interpretation in the context, for we shall refer to the said facet for understanding the core controversy. It needs no special emphasis that the reference to some precedents has to be in juxtaposition with other concepts and principles. As it can be gathered from the discussion as well as the authorities cited above, the literal Rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj v. Union of India (2006) 8 SCC 202, the Court said: In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court, recognized that one of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the constitution endures for ages to come. Eloquently, it was stated that the Constitution is not an ephemeral legal document embodying a set of Rules for the passing hour. (Emphasis is ours) 151. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal Rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in Regina (Quintavalle) v. Secretary of State for Health (2003) 2 AC 687 : (2003) 2 WLR 692 (HL) ruled: The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by Eur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act) intent of its authors. There is also, however, the objective purpose of the text-the goals, values, and principles that the constitutional text is designed to achieve in a modern democracy at the time of interpretation. Purposive interpretation translates this purpose into the presumption that the ultimate purpose of the constitution is its objective purpose. [Emphasis supplied] 155. It is also apt to reproduce the observations made by him in the context of the ever changing nature of the Constitution: A constitution is at the top of a normative pyramid. It is designed to guide human behavior for a long period of time. It is not easily amendable. It uses many open ended expressions. It is designed to shape the character of the state for the long term. It lays the foundation for the state's social values and aspirations. In giving expression to this constitutional uniqueness, a judge interpreting a constitution must accord significant weight to its objective purpose and derivative presumptions. Constitutional provisions should be interpreted according to society's basic normative positions at the time of interpretation. 156. He has further pointed out that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following observations made by the Court in R.C. Poudyal (supra) throw light on this duty cast upon the functionaries and the citizens: Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals. 161. The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution. 162. History reveals that in order to promote and nurture this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of constitutional pragmatism . 163. In this context, we may have some perspective from the American approach. The perception is that language is a social and contextual enterprise; those who live in a different society and use language differently cannot reconstruct the original meaning. Justice Brennan observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the document, as indeed it was not possible to do so. 166. In The State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr. AIR 1978 SC 215, the Court had laid stress on the obligation and the responsibility of the judiciary not to limit itself to the confines of rigid principles or textualism and rather adopt an interpretative process which takes into consideration the constitutional goals and constitutional culture: When cryptic phrases expressive of constitutional culture and aspirational future, fundamental to the governance of the nation, call for interpretative insight, do we merely rest content to consult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty? Is the meaning of meanings an artless art? And again, There is a touch of swadeshi about a country's jurisprudence and so our legal notions must bear the stamp of Indian Developmental amplitude linked to constitutional goals. 167. Laying emphasis on the need for constitutional pragmatism, the Court in Indra Sawhney (supra) noted the observations made by Lord Rockill in his presidential address to the Bentham Club at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the fundamental law which requires careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary. [Emphasis is supplied] 169. Earlier, in Union of India v. Sankalchand Himatlal Sheth and Anr. (1978) 1 SCR 423, the Court had observed that: ...in a dynamic democracy, with goals of transformation set up by the Constitution, the Judge, committee to uphold the founding faiths and fighting creeds of the nation so set forth, has to act heedless of executive hubris, socio-economic pressures and die-hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution. Perfection baffles even the framers of a Constitution, but while on statutory construction of an organic document regulating and coordinating the relations among instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic, holistic recipe for the behavioral needs and norms of life in the raw-of individuals, instrumentalities and the play of power and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Territory which is adjacent and/or contiguous to the State of which he is the Governor. The Governor of a State who is so appointed as an administrator of an adjoining UT shall exercise his functions as an administrator of the said UT independently and autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor. 175. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus: The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers. 176. Again, the Court, while interpreting Article 239 in Union of India and Ors. v. Surinder S. (2013) 1 SCC 403, observed: The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1971, Under Article 239A, the Parliament had the power to create by law legislatures and/or Council of Ministers for the then Union territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter, on 25th January, 1971, Himachal Pradesh acquired statehood and consequently, Himachal Pradesh was omitted from Article 239A. Subsequently, on 21st January 1972, Tripura and Manipur were granted statehood as a consequence of which both Manipur and Tripura were omitted from Article 239A. 179. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30th May 1987, both Goa and Daman and Diu were omitted from Article 239A. The Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30th May, 1987, the applicability of Article 239A stands limited to UT of Puducherry. 180. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in Sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this Sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernor or otherwise, is satisfied-- (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of Article 239 and Article 239AA. [Emphasis supplied] 182. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus: The question of re-organisation of the Administrative set-up in the Union territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink it seemly to advert to the issue whether the NCT of Delhi can be called a State in the sense in which the Constitution expects one to understand. The said maze has to be cleared first. 185. We may now focus on the decision in Shamsher Singh (supra). The issue centered around the role and the constitutional status of the President. In that context, it has been held that the President and the Governor act on the aid and advice of the Council of Ministers and the Constitution does not stipulate that the President or the Governor shall act personally without or against the aid and advice of the Council of Ministers. Further, the Court held that the Governor can act on his own accord in matters where he is required to act in his own discretion as specified in the Constitution and even while exercising the said discretion, the Governor is required to act in harmony with the Council of Ministers. We may hasten to add that the President of India, as has been held in the said case, has a distinguished role on certain occasions. We may, in this context, reproduce below certain passages from the opinion of Krishna Iyer, J.: The omnipotence of the President and of the Governor at S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless-be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course -- a highly improbable contingency -- or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to. prudence would suggest the giving of assent. [Emphasis supplied] 186. That apart, A.N. Ray, C.J., in Shamsher Singh (supra), has stated thus: Article 163(1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of Was functions, except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of power by the Governor. Draft Article 188 was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public Service Commission used the expression in his discretion in relation to exercise of power by the Governor in regard to appointment of the Chairman and Members and making of Regulation. The words in his discretion in relation to exercise of power by the Governor were omitted when it became Article 316. In Paragraph 15 (3) of the Sixth Schedule dealing with annulment or suspension of acts or suspension of acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the Paragraph shall be exercised by him in his discretion. Subparagraph 3 of Paragraph 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution. It is, therefore, understood in the background of these illustrative draft articles as to why Article 143 in the Draft Constitution which became Article 163 in our Constitution used the expression in his discretion in regard to some powers of the Governor. [Emphasis supplied] 187. Thereafter, A.N. Ray, C.J. discussed the provisions of the Constitution as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles the Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can refer the matter to the President but during the interregnum where the matter is in his opinion so urgent that it is necessary for him to take immediate action, he has the power to take such action or to give such directions in the matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor nor the President enjoys any such power. This basic functional difference in the powers and position enjoyed by the Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision in Shamsher Singh's case that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own. [Emphasis supplied] 189. Be it noted, Devji Valabhbhai Tandel (supra) depicts a pre Sixty-ninth amendment scenario. On that foundation, it is submitted by the learned Counsel for the Appellant to buttress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to matters in List-II and List-Ill, but subject to its overriding power. The third category is Delhi. It had no legislature with effect from November 1, 1956 until one has been created under and by virtue of the Constitution Sixty-Ninth (Amendment) Act, 1991 which introduced Article 239-AA. We have already dealt with the special features of Article 239-AA and need not repeat it. Indeed, a reference to Article 239-B read with Clause (8) of Article 239-AA shows how the Union Territory of Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part-VI of the Constitution. In sum, it is also a territory governed by Clause (4) of Article 246.... [Emphasis supplied] 191. Thus, New Delhi Municipal Corporation (supra) makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as the NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part-VI of the Constitution. Though the NCT of Delhi partakes a unique position after the Sixty-Ninth Amendment, yet in sum and substance, it remains a Union Territory which is governed by Article 246(4) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound by the aid and advice of his Council of Ministers in the exercise of his functions except where he is, by or under the Constitution, required to exercise his functions or any of them in his discretion. Thus, the Governor may act in his discretion only if he is so permitted by an express provision of the Constitution. 195. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in Clause (4) of Article 239AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to Clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited Under Article 246(4). 196. In the light of the aforesaid analysis and the ruling of the nine-Judge Bench in New Delhi Municipal Corporation (supra), it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these articles are analogous to those of Section 8 and 49 respectively of the Government of India Act, 1935 and lay down the Rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down: Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Thus under this Article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words 'Part C States' were substituted by the words 'Union Territories', the word 'State' in the proviso to Article 73 cannot be read to mean Union Territory as such an interpretation would render the scheme and purpose of Part VIII (Union Territories) of the Constitution infructuous. S. Essence of Article 239AA of the Constitution: 201. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239AA. Both the Statement of Objects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as an enacting history and corpus of public knowledge relative to the introduction of Articles 239AA and 239AB and would be handy external aids for construing Article 239AA and unearthing the real intention of the Parliament while exercising its constituent power. 202. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritory of Delhi and it was to be administered by a Lieutenant Governor from the date of coming into force of the Sixty-ninth Amendment Act. 207. Sub-clause (a) of Clause (2) specifies that the National Capital Territory of Delhi shall have a Legislative Assembly, the seats of which shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory of Delhi. Sub-clause (b) of Clause (2) stipulates that the total number of seats in the Legislative Assembly of the National Capital Territory of Delhi so established under Sub-clause (a), the number of seats reserved for Scheduled Castes in the said Legislative Assembly, the division of the National Capital Territory of Delhi into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the said Legislative Assembly shall be regulated by law made by Parliament. Thereafter, Sub-clause (c) of Clause (2) simply provides that the provisions of Articles 324 to 327 and 329 which pertain to elections and fall under Part XV of the Constitution shall also apply to the National Capital Territory of Delhi, its Legislative Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. 212. Sub-clause (a) of Clause (3) of Article 239AA establishes the power of the Delhi Legislative Assembly to enact laws for the NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent list except in so far as matters with respect to and which relate to entries 1, 2 and 18 of the State List. 213. Sub-clause (b) of Clause (3) lays down that the Parliament has the powers to make laws with respect to any matter for a Union Territory including the NCT of Delhi or any part thereof and Sub-clause (a) shall not derogate such powers of the Parliament. Sub-clause (c) of Clause (3) gives the Parliament the overriding power to the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 239AA(3)(a) reserves the Parliament's legislative power on all matters in the State list and Concurrent list, but Clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, Clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have co-extensive executive powers. Such a view is in consonance with the observation in the case of Ram Jawaya Kapur (supra) which has been discussed elaborately in the earlier part of the judgment. 219. Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is co-extensive with the Parliament's legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborately adumbrated hereinbefore. As noted earlier, the submission of the learned Counsel for the Appellant is that the Lieutenant Governor can only exercise the power or take refuge to the proviso to Article 239AA(4) where the said 'aid and advice' of the Council of Ministers transgresses the area constitutionally prescribed to them by virtue of Article 239AA(3)(a). 223. We may note here that a narrow or restricted meaning in respect of the words, namely, on any matter as is suggested by the Appellant, takes away the basic concept of interpretative process, for the said expression does not remotely convey that it is confined to the excepted legislative fields. Similarly, a broad or unrestricted interpretation of the term to include every difference would obstruct the idealistic smooth stream of governance. Therefore, the Court has the duty to place such a meaning or interpretation on the phrase that is workable and the need is to establish the norm of fine constitutional balance. 224. The counsel for the Respondents has sought to impress upon this Court that the term any occurring in the proviso to Clause (4) of Article 239AA should be given widest import in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y person or persons. But these words must be limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law. 227. At home, it has also been acknowledged that the word 'any' can have different meanings depending on the context in which it has been used and the Courts must not mechanically interpret it to mean 'everything'. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and Ors. (1987) 2 SCC 707, this Court has observed: The word any has the following meaning: Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity. Word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject matter of the statute. It is often synonymous with either , every or all . Its generality may be restricted by context; (Black's Law Dictionary; Fifth Edition). 228. In Kihoto Hollohan v. Zachillhu and Ors. AIR 1993 SC 412, the Court has stated: ...the words any direction would cost it its constitutionality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose which is consistent with the rules. It cannot mean anything inconsistent with the rules...can it mean 'any lawful purpose' under the sun', or is it 'any lawful purpose of the society? If you look at the context, that which precedes and that which follows, I do not think 'anybody, certainly (I do not think any lawyer would construe any lawful purpose, in the wide way in which Mr. Cohen invites us to construe it. 231. That apart, the Court in Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate AIR 1958 SC 353 held: A little careful consideration will show, however, that the expression any person occurring in the third part of the definition Clause cannot mean anybody and everybody in this wide world. First of all. the subject matter of dispute must relate to (i) employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen. Secondly, the definition Clause must be read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alities. 234. The proviso to Article 239AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional. We feel, it is necessary in the context to read the words of the provision in the spirit of citizenry participation in the governance of a democratic polity that is republican in character. We may hasten to add that when we say so, it should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And we call it constitutional pragmatism. 235. The authorities in power should constantly remind themselves that they are constitutional functionaries and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State. T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 237. Our attention, in the course of the proceedings, has also been drawn to the Government of National Capital Territory of Delhi Act, 1991 (for brevity, the 1991 Act') which came into force with effect from 2nd January, 1992. The 1991 Act was enacted by the Parliament by virtue of the power conferred upon it by Clause (7)(a) of Article 239AA. We think it appropriate to refer to the Statement of Objects and Reasons of the said enactment. It is as follows: STATEMENT OF OBJECTS AND REASONS Under the new Article 239-AA proposed to be inserted by the Constitution (Seventy-fourth Amendment) Bill, 1991, a Legislative Assembly and Council of Ministers will be established for the National Territory. Clause (7) (a) of the said Article provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final. 240. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions and, therefore, it is clear that the Lieutenant Governor cannot exercise his dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not an order or instrument made or executed by the Lieutenant Governor. 244. Section 44 of the 1991 Act has made it mandatory for the President to frame Rules for the allocation of business to the Ministers and also the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers. 245. In exercise of the powers conferred under the aforesaid provision, the President has framed the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (for brevity, 'TBR, 1993'). The 1991 Act and the TBR, 1993, when read together, reflect the scheme of governance for the NCT of Delhi. We will scrutinize and analyze the relevant Rules from the TBR, 1993 after analyzing the other relevant provisions of the 1991 Act. 246. Now, Section 45 deals with the duties of the Chief Minister of Delhi regarding furnishing of information to the Lieutenant Governor and reads as below: Section 45. Duties of Chief Minister as respect the furnishing of information to the Lieutenant Governor, etc. - It shall be the duty of the Chief Minister - (a) to communicate to the Lieutenant Governor al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the general control. Needless to say, the President, while exercising this general control, acts as per the aid and advice of the Union Council of Ministers. 250. Let us, in the obtaining situation, refer to the various Rules in TBR, 1993 which are necessary for dealing with the present case and for discerning the real intention of the Parliament for inserting Articles 239AA and 239AB. Rule 4 of the TBR, 1993 very categorically underscores the collective responsibility of the Council of Ministers: Rule 4(1) The Council shall be collectively responsible for all the execution orders issued by any Department in the name of the Lieutenant Governor and contracts made in the name of the President in connection with the administration of the Capital whether such orders or contracts are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council. 251. Chapter III of the TBR, 1993 deals with 'Disposal of Business allocated among Ministers'. Rule 9 falling under Chapter III provides for circulation of proposals amongst the Council of Ministers and reads as under: R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal with his orders thereon to the Secretary to the Council. (5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V. [Underlining is ours] Rule 10(5) stipulates that when a decision has been taken by the Council of Ministers on a proposal as per the preceding Sub-rules of Rule 10, then the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned for taking necessary steps to issue the orders unless the Lieutenant Governor decides to refer the decision to the Central Government in pursuance of the provisions of Chapter V of the TBR, 1993. 253. Rule 11 of the TBR, 1993 states thus: Rule 11. When it has been decided to place a proposal before the Council, the Department to which it belongs, shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the decisions. He shall forward a copy of such record to Ministers and the Lieutenant Governor. [Emphasis supplied] Rule 13, thus, deals with the meeting of Council of Ministers and Sub-rule (3) of Rule 13 stipulates that the agenda of the proposals to be discussed in the meeting of the Council shall be sent by the Secretary to the Lieutenant Governor amongst others. 255. Again, Rule 14 states as below: Rule 14 (1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding, shall be placed with the records of the proposal. After approval by the Chief Minister or the Minister presiding, the decision of the Council as approved, shall be forwarded by the Secretary to the Council to the Lieutenant Governor. (2) Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister concerned shall take necessary action to give affect to the decision. [Underlining is ours] Rule 14 deals with the decision of the Council on different proposals. Sub-rule (1) of Rule 14 provides that once a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter but which has not been considered by the Council. Sub-rule (a) of Rule 25 requires the Chief Minister to furnish to the Lieutenant Governor information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for. 258. Further, Rule 42 prescribes the procedure after a Bill is passed by the Legislative Assembly. It reads as under: Rule 42. (1) When a Bill has been passed by the Legislative Assembly it shall be examined in the Department concerned and the Law Department and shall be presented to the Lieutenant Governor with: (a) A report of the Secretary of the Department concerned as to the reason, if any, why the Lieutenant Governor's assent should not be given: and (b) A report of the Law Secretary as to the reasons, if any, why the Lieutenant Governor's assent should not be given or the Bill should not be reserved for consideration of the President. Rule 42 basically stipulates that when a bill has been passed by the Legislative Assembly of Delhi, the same shall be presented to the Lieutenant Governor along with a report of the Secretary of the department concerned and a report of the Law Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. Such an approach would not only result in acceptance of the role of the Lieutenant Governor but also help the NCT of Delhi to cherish the fruits of a responsive government as intended by the Sixty-ninth Constitutional Amendment. 263. We have referred to the relevant Rules of TBR, 1993 which require that the Lieutenant Governor has to be apprised and kept in the loop of the various proposals, agendas and decisions taken by the Council of Ministers. However, a careful perusal of these Rules nowhere suggests that the communication to the Lieutenant Governor is to obtain his concurrence or permission. The TBR, 1993 simply reflect the scheme envisaged for the governance of NCT of Delhi wherein just as an administrator in other UTs has to be apprised, likewise the Lieutenant Governor in Delhi is also to be informed and notified about the business being conducted. 264. The idea behind the aforesaid Rules is just to keep the Lieutenant Governor notified of the proposals, agendas and decisions so that he is acquainted with the business carried out by the Council of Ministers. The said view is evident from the various Rules which employ the words 'send a copy thereof to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator. 269. We had earlier stated that Mr. Maninder Singh, learned Additional Solicitor General, had urged that the report of the Balakrishnan Committee should be taken aid of to interpret the constitutional provision and for the said purpose, he had placed reliance on Maumsell v. Olins [1975] AC 373, Eastman Photographic Materials Co. v. Comptroller-General of Patents, Designs and Trademarks (1989) AC 571, Tikri Banda Dullewe v. Padma Rukmani Dullewe LEX/SLCA/0035/1968 : (1969) 2 AC 313, Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg (1975) AC 591, R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183, Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676 and TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481. He had laid emphasis on paragraph 34 of the judgment in A.R. Antulay (supra). The relevant part of the said paragraph reads as follows: 34. ...the basic purpose underlying all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament in enacting the legislation. Legislation is enacted to achieve a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal meaning of life in a solid civilized society that is well cultivated in culture. And, life, as history witnesses, gets entrenched in elevated civilization when there is fair, appropriate, just and societal interest oriented governance. In such a situation, no citizen feels like a subject and instead has the satisfaction that he is a constituent of the sovereign. When the citizens feel that there is participatory governance in accordance with the constitutionally envisaged one, there is prevalence of constitutional governance. 273. This prevalence is the recognition and acceptance of constitutional expectation from the functionaries created by it. It is to remain in a constant awakening as regards the text, context, perspective, purpose and the Rule of law. Adherence to rationality, reverence for expected pragmatic approach on the bedrock of the constitutional text, context and vision and constant reflection on the valid exercise of the power vested tantamounts to resurgent constitutionalism. It may be understood in a different manner. Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the constitutional vision. 276. That is why, the 1991 Act and the TBR, 1993 conceive of discussion, deliberation and dialogue. The exercise of entitlement to differ has to be based on principle and supported by cogent reasons. But, the primary effort has to be to arrive at a solution. That is the constitutional conduct of a constitutional functionary. V. The conclusions in seriatim: 277. In view of our aforesaid analysis, we record our conclusions in seriatim: (i) While interpreting the provisions of the Constitution, the safe and most sound approach for the Constitutional Courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The Courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution. (ii) In a democratic republic, the collective who are the sovereign elect their law making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full-fledged effect to both these concepts. (viii) The constitutional vision beckons both the Central and the State Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co-existence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation. (ix) The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. (xiv) The interpretative dissection of Article 239AA(3) (a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List. (xv) A conjoint reading of Clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co-extensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if the Parliament makes law in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. (xx) The Transaction of Business Rules, 1993 stipulates the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AAA. (xxi) The scheme that has been conceptualized by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD Act, 1991 and the corresponding TBR, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology send a copy thereof to the Lieutenant Governor , for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution: The Union Territories E) Cabinet Form of Government - Collective Responsibility - Aid and Advice F) The Nature of Executive Power G) Constitutional History of the NCT - The Government of Part C States Act, 1951 - The Government of Union Territories Act, 1963 - The Delhi Administration Act, 1966 - The Balakrishnan Committee H) NCT: A Special Class among Union Territories? I) The Government of National Capital Territory of Delhi Act, 1991 J) The Transaction of Business Rules, 1993 K) Precedents - Literal Interpretation - Relationship between Centre and Union Territories - Decision in NDMC - General Clauses Act - Insofar as any such matter is applicable to Union territories L) Construction of the proviso to Article 239AA(4) M) Conclusions A Introduction 1. A batch of petitions in the Delhi High Court addressed unresolved issues between the Lieutenant Governor of the National Capital Territory and its Council of Ministers headed by the Chief Minister. The judgment of the Delhi High Court, delivered on 4 August 2016, travelled to this Court. When the Civil Appeals were heard, a Bench consisting of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 December 2017, David Brooks laments events which occurred in various parts of the world, casting a shadow on democracy. Liberal democracy seemed to triumph with the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa. Many of those aspirations are continuously under challenge. The foundation for addressing the aspirations of a democratic spring are reflected in Brooks' Article titled - ironically - the Glory of Democracy . Drawing from Thomas Mann's The Coming Victory of Democracy (1938), he has this to say: Democracy, Mann continues, is the only system built on respect for the infinite dignity of each individual man and woman, on each person's moral striving for freedom, justice and truth. It would be a great error to think of and teach democracy as a procedural or political system, or as the principle of majority rule. It is a spiritual and moral possession. It is not just rules; it is a way of life. It encourages everybody to make the best of their capacities - holds that we have a moral responsibility to do so. It encourages the artist to seek beauty, the neighbour to seek community, the psychologist to seek perception, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In India, the political argument for democracy was adopted by the leaders of the nationalist movement from their colonial rulers and adapted to their immediate objective which was freedom from colonial rule. The building of new political institutions took second place, and the creation of the economic and social conditions for the successful operation of those institutions, such as education, health care, and other social services, lagged well behind. 38 6 The framers of the Constitution were aware of the challenges which the newly instituted democracy could face. In his address to the Constituent Assembly, Dr Ambedkar stated: Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic . 39 To tackle these challenges, the Constitution envisaged the existence of a responsible and representative government. Provisions regarding administration of democracy were incorporated, in detail, into the Constitution by the members of the Constituent Assembly. Dr Ambedkar made an impassioned plea that the core values of Indian democracy, to be protected and sustained, ought to be guided by the presence of constitutional morality. 7 While moving the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It is high time we identified these interpretations and debated their moral adequacy. 43 9 Constitutional morality does not mean only allegiance to the substantive provisions and principles of the Constitution. It signifies a constitutional culture which each individual in a democracy must imbibe. Pratap Bhanu Mehta identifies certain features of constitutional morality-chief amongst them being liberal values-which governed the making of India's Constitution and created expectations from the polity: The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present. 44 (Emphasis supplied) One of the essential features of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orget what is good for them in the long run, and that they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a framework of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They make some dimensions of the political process beyond the challenge of ordinary politics. 48 12. No explanation of constitutional morality will be complete without understanding the uniquely revolutionary character of the Constitution itself. Granville Austin has referred to the Indian Constitution as a social revolutionary document, the provisions of which are aimed at furthering the goals of social revolution. 49 Austin described the main features of the Indian Constitution as follows: It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o succeed. In his last address to the Constituent Assembly on November 25, 1949, Dr Ambedkar discussed the importance of the role of the people and political parties in a constitutional democracy: I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. 54 He also invoked John Stuart Mill to caution the nascent Indian democracy of the perils of personifying institutions or laying down liberty at the feet of even a great man, or to trust him with power which enables him to subvert their institutions . In Dr. Ambedkar's words: [I]n India, Bhakti or what may be called the path of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from constitutional morality. C Constitutional Interpretation 17. The primary task before the Court here, as in other constitutional cases, is to interpret the Constitution. This reflects a truism. For, while deciding what the Constitution means, we must understand what it says. First and foremost, in understanding the text of the Constitution, it must be borne in mind that the Constitution is not merely a legal document. The Constitution embodies a political vision of a plural democratic polity. This political vision combines with the values which the founding fathers infused to provide a just social compact in which individual aspirations for dignity and liberty would be achieved. Hence, any interpretation of the Constitution must be unabashed in accepting the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The values which the Constitution as a political document incorporates, provide the foundation for understanding its text. It is in that sense that successive generations of judges have reminded themselves that it is, after all, a Constitution that we are expounding. The words of the Constitution cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal aspirations finds abundant reflection in the plurality and diversity of the elements which it comprehends within justice, liberty, equality and fraternity. Justice incorporates its social, economic, and political manifestations. Liberty incorporates freedom of thought, expression, belief, faith and worship. Equality is defined in its substantive sense to include equality of status and opportunity. Fraternity seeks to assure dignity to the individual while, at the same time, ensuring the unity and integrity of the nation. 19. There are four abiding principles which are essential to understanding the content of the Constitution. The first is that as a political document, the Constitution is an expression of the sovereignty of the people. The second is that the Constitution seeks to achieve its vision of a political and social ordering on the basis of democracy. A democratic form of government recognises that sovereignty resides within the people. Popular sovereignty can exist when democracy is meaningful. The third principle is that the Constitution adopts a republican form of government in which the powers of sovereignty are vested in the people and are exercised directly or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. The exercise of the amendatory power cannot be construed as a reflection of the deficiency of its original text, as much as it is a reflection of the felt need to create new institutions of governance, recognize new rights and to impose restraints upon the assertion of majoritarian power. Over time, the Constitution was amended to provide constitutional status to local self-governing bodies, such as the Panchayats in Part IX, the municipalities in Part IXA and co-operative societies in Part IXB. These structures of governance have been constitutionally entrenched to enhance participatory and representative democracy. In other amendments, new rights have been expressly recognized such as the right to free and compulsory education for children between the ages of six and fourteen in Article 21A. As the nation gained sobering experiences about the excess of political power during the Emergency, the constituent power responded by introducing l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating a democratic form of governance to a constitutional status for the National Capital Territory. In interpreting such exercises of the constituent power which fortify the basic structure, the meaning of the constitutional text must be guided by the intent underlying such exercises of the constituent power. A nine-judge Bench of this Court in I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 had held thus: The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law. The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the President with a designation as he will specify. Article 239A, which was inserted by the fourteenth amendment to the Constitution in 1962, provides as follows: 239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.-- (1) Parliament may by law create for the Union territory of Puducherry-- (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. (2) Any such law as is referred to in Clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution. Article 239A applies to the Union territory of Puducherry (Goa, Daman and Diu were excluded with effect from 1987 by the Goa, Daman and Diu Reorganisation Act, 1987). 26. Article 239A is enabling. It enables Parliament to enact a law for the Union territory so as to create a legislature or a Council of Ministers or both. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y shall be regulated by law made by Parliament. (c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to appropriate Legislature shall be deemed to be a reference to Parliament. (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in Sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equential thereto. (b) Any such law as is referred to in Sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution. (8) The provisions of Article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that Article to clause (1) of Article 239A shall be deemed to be a reference to this Article or Article 239AB, as the case may be. Article 239AA is a product of the exercise of the constituent power, tracing its origins to the sixty ninth amendment which was brought into force on 1 February 1992. Under Clause 1, with the commencement of the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory of Delhi is called the National Capital Territory of Delhi. Its Administrator, who is appointed Under Article 239, is designated as the Lieutenant Governor. The administrator appointed by the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed position of the Election Commission of India. 29. Clause 3 of Article 239 AA defines the legislative powers of the legislative assembly for the NCT. Sub Clause (a) empowers the legislative assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent lists to the Seventh Schedule of the Constitution. The ability of the legislative assembly is circumscribed insofar as any such matter is applicable to Union territories . The legislative assembly can hence enact legislation in regard to the entries in the State and Concurrent lists to the extent to which they apply to a Union territory. Of equal significance is the exception which has been carved out: Entries 1, 2 and 18 of the State List (and Entries 64, 65 and 66 insofar as they relate to Entries 1, 2 and 18) lie outside the legislative powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the State List are thus: 1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power). 2. Police (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 239AA indicate that while conferring a constitutional status upon the legislative assembly of NCT, the Constitution has circumscribed the ambit of its legislative Powers firstly, by carving out certain subjects from its competence (vesting them in Parliament) and secondly, by enabling Parliament to enact law on matters falling both in the State and Concurrent lists. Moreover, in the subjects which have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament. E Cabinet Form of Government 30. Before deliberating upon the nature and extent of the executive power of the NCT, it is necessary to discuss the essential features of the cabinet form of government, which are of paramount importance in the current context. Collective Responsibility 31. Collective responsibility is a cornerstone of the Westminster model. Initially developed 60 as a constitutional convention in Britain between 1780 and 1832, it began to appear 61 in text-books in the 1860s and 1870s. In 1867, Walter Bagehot, in his classic work titled The English Constitution , called the House of Commons as a real choosing body , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue ought not to be the Government and will be so regarded in the constituencies. Its fall may be regarded as imminent. 69 The conduct of the cabinet determines the fate of the government. 33. Collective responsibility of Ministers to the Parliament is comprehended in two aspects: (i) collective responsibility of Ministers for the policies of the government; and (ii) individual responsibility of Ministers for the work of their governments. 70 The idea behind this bifurcation, as explained by Birch, is to hold a government continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support. 71 In the British system, collective responsibility work on basis of certain precepts which define and regulate the existence of government. Geoffrey Marshall (1989) identifies three strands within the principle 72: i) The confidence principle: a government can only remain in office for so long as it retains the confidence of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote; ii) The unanimity principle: all members of the government sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cabinet was specifically incorporated into India's constitutional framework. 78 There is a direct relationship between the principle of collective responsibility and government accountability. This relationship is conceptualized in The Oxford Companion to Politics in India : [A]ccountability can be defined in terms of outcomes rather than processes of government... It also includes the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities... In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be... In this broad sense, accountability amounts to evaluating the nature of governance itself, in outcome-oriented terms. 79 The Oxford Handbook of the Indian Constitution 80 (2016) adverts to several facets of collective responsibility: Collective responsibility has several facets. First, ministers act as a common unit; cabinet decisions are binding on all ministers. Disagreements, if any, may be aired in private. Ministers, however, speak in one voice and stand by one another in Parliament and in public. Those t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive part . The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. (Emphasis supplied) The relationship between the responsibility of the Cabinet and individual Ministers was dealt with in a Constitution Bench decision in A Sanjeevi Naidu v. State of Madras (1970) 1 SCC 443: The cabinet is responsible, to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure. The decision in Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64 theorises that collective responsibility may be enforced only politically, thereby making its legal implications unclear. In this case, a Minister was charged with committing grave irregularities in the grant of telecom licenses. The Appellant had provided documents to the Prime Minister's Office (PMO) for the grant of sanction to prosecute under the Prevention of Corruption Act, 1988. This Court held: In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise Respondent No. 1 [Prime Minister] about seriousness of allegations made by the Appellant... By the very nature of the office held by him, Respondent No. 1 is not expected to personally look into the minute details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament... A democratic executive must satisfy two conditions - (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree... In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses... The daily assessment of responsibility which is not available under the American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability. 86 (Emphasis supplied) Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar: ...that the Council of Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao v. Smt. Indira Gandhi (1971) 2 SCC 63, the Constitution Bench held: It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the Appellant that in the context the word shall should be read as may . Article 52 is mandatory. In other words there shall be a President of India.... The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the Appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no 'Council of Ministers' nobody would be responsible to the House of the People. With the aid of advisers he would be able to Rule the country at least till he is impeached Under Article 61... Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called Responsible Government . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound by the aid and advice tendered by the Council of Ministers was explicitly made a part of the Constitution by the forty-second constitutional amendment. By the amendment, Article 74(1) was amended to ensure that the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. Article 74(1) reads thus: There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. The Forty-fourth Constitution Amendment added another proviso to Article 74 (1) so that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration . Therefore, the position which emerges is that where it has not been expressly provided, the executive head shall be bound by the advice tendered by the Council of Ministers. This constitutional scheme, after the forty-second and forty-fourth amendments, has been judicially reaffirmed. Authoring the judgment of the Constitution Bench in PU My ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking unit so that the politics of decision making and administrative divergences do not dilute from the responsibility which government owes as a political unit to the legislature. This is crucial to ensuring that government is responsive to the aspirations of the people in whom political sovereignty resides. 42 In Kihoto Hollohan v. Zachillhu 1992 SCC Supp. (2) 651, Chief Justice Venkatachaliah speaking for this Court had held thus: Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not often the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieutenant Governor has to act on the basis of the aid and advise tendered by the Council. Thirdly, the exception to the aid and advice principle in the substantive part of Clause 4 is in respect of those matters in which the Lieutenant Governor is required to act in its discretion by or under any law . In other words, save and except in regard to areas which are reserved for the exercise of his discretion, the Lieutenant Governor must act on the aid and advice tendered to him by the Council of Ministers. 45. The proviso to Clause 4 forms the bone of contention. The proviso envisages a situation where the Lieutenant Governor has a difference of opinion with the Council of Ministers on any matter . In such a case, the proviso entails the course of action which the Lieutenant Governor must follow. The Lieutenant Governor is under a constitutional mandate to refer the difference of opinion to the President for decision. As a consequence, the Lieutenant Governor must necessarily act according to the decision given thereon by the President. Pending a decision by the President, the Lieutenant Governor is empowered to take action or to issue directions where the matter is of such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed by the President on the advice of the Chief Minister. They hold office during the pleasure of the President (clause 5). The concept of collective responsibility of the Council of Ministers to the legislative assembly is expressly embodied in Clause 6. A comparative analysis of the provisions of the Constitution relating to the Council of Ministers in the Union and the States indicates that in the case of the NCT, Article 239AA has engrafted the fundamental precept of the collective responsibility of an elected government in a cabinet form of government to the elected legislature. Creating an executive power in government which is co-extensive with the legislative power of the elected legislature and the collective responsibility of the Council of Ministers to the legislature are intrinsic to the cabinet form of government. 47. Parliament has, by Clause 7 of Article 239AA, been empowered to make provisions to implement and to supplement the other provisions of that Article. Any law enacted by Parliament to do so would not amount to a constitutional amendment within the meaning of Article 368 even if it amends or has the effect of amending any provision of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union and the States. Part V of the Constitution (consisting of Articles 52 to 151) deals with the Union; Part VI (comprising of Articles 152 to 237) deals with the States and Part VIII (comprising of Articles 239 to 241) deals with the Union territories. Parts V and VI contain similar elucidations with some important variations. Both Part V and Part VI deal with the executive, the legislative power of the President, and the judiciary. Part V covers the Union judiciary, while Part VI over the High Courts and the subordinate courts in the States. 50. Article 52 provides for the President. Article 53 stipulates that the executive power of the Union shall be vested in the President and shall be exercised by him directly or through subordinate officers in accordance with the Constitution. Under Article 73, the executive power of the Union extends (a) to matters with respect to which Parliament has power to make laws; and (b) to the exercise of rights, authority and jurisdiction exercisable by the Union government under a treaty or agreement. Article 73 provides thus: 73. Extent of executive power of the Union.-- (1) Subject to the provisions of this Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any court. Article 77 provides for the conduct of the business of the Union government: 77. Conduct of business of the Government of India.-- (1) All executive action of the Government of India shall be expressed to be taken in the name of the President. (2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in Rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (3) The President shall make Rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. By and Under Article 77(1) the executive action of the Union government is expressed to be taken in the name of the President. Under Clause 2, orders and instruments made and executed in the name of the President are to be authenticated in such a manner as may be specified in the Rules made by the President. Clause 3 enables the President to make Rules for the transaction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after reconsideration. 51. The position of the President as a titular head of State is evidenced in the constitutional provisions which define the relationship between the President and Parliament. Under Article 111, a Bill is presented to the President for assent upon being passed by the Houses of Parliament. Under the proviso to Article 111, the President is empowered to return a Bill for reconsideration (if it is not a Money Bill). Upon being reconsidered, if the Bill is passed again by the Houses of Parliament (with or without amendment) the President shall, thereafter, not withhold assent. 52. In Part VI of the Constitution, the provisions which define the role of the Governor in relation to the states indicate that the Governor is also a titular head of government in each state. The executive power of the State is vested in the Governor Under Article 154. The Governor is appointed by the President Under Article 155 and holds office during the pleasure of the President Under Article 156. The executive power of the state is co-extensive with the legislative power, by virtue of Article 162. However, in relation to matters on which both the legislature of a State and Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t List, Parliament has been empowered to legislate both on matters falling within the State and the Concurrent lists. Parliament possesses overriding legislative powers over matters falling in both the State and Concurrent lists for the NCT; and (iii) Article 239AA(4) provides constitutional status to the Council of Ministers and embodies the entrenched principle in a cabinet form of government that a titular head of state acts on the aid and advice tendered by his ministers, who owe collective responsibility to the legislature. In setting up a structure of governance in which there is a legislature elected through the process of direct election and an executive arm which is collectively responsible to the legislature and which, in the discharge of its functions, tenders aid and advise to Lieutenant Governor on matters which are co-extensive with legislative power, the Constitution has incorporated the basic principles of the cabinet form of government. The adoption of these special features of the cabinet form of government in relation to the NCT must weigh while interpreting Article 239AA. 54. At the same time, the constitutional scheme indicates several features in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, or as the case may be, the Governor, the constitutional position in relation to the Lieutenant Governor contains a distinct variation. Article 74(1) embodies, in relation to the President of India, the binding character of the aid and advice tendered by the Council of Ministers by specifying that the President shall, in the exercise of his functions, act in accordance with such advice. Upon the President requiring the Council of Ministers to reconsider their advice, the President is bound to act upon the advice which is tendered after reconsideration. Similarly, in the case of Governors in the states, Article 163(1) provides for a Council of Ministers to aid and advise the Governor in the exercise of his functions , except where the Governor is required by the Constitution to exercise his functions in his discretion. Article 239AA(4) incorporates in its substantive segment the constitutional principle of aid and advice which the Council of Ministers tenders to the Lieutenant Governor in the exercise of his functions. But, in relation to the advice tendered by the Council of Ministers, the proviso to Article 239AA(4) has engrafted a special provision which does not have a corol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation. This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the NCT. These considerations would necessarily require a careful balance between the two principles. Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation. G Constitutional History of the NCT 56. Mr. Gopal Subramanium, learned Senior Counsel, appearing on behalf of the NCT, has submitted that the NCT occupies a unique position in our constitutional jurisprudence. It has been contended by Mr. Subramanium that the NCT, though it remains a Union Territory, has come to acquire various characteristics that were, prior to the 69th constitutional amendment, considered under the Constitution to be characteristics solely of States. As a consequence, the learned Senior Counsel has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice including railway police; (c) The constitution and powers of municipal corporations and other local authorities, of improvement trusts and of water supply, drainage, electricity, transport and other public utility authorities in Delhi or in New Delhi; (d) Lands and buildings vested in or in the possession of the Union which are situated in Delhi or in New Delhi including all rights in or over such lands and buildings, the collection of rents therefrom and the transfer and alienation thereof; (e) Offences against laws with respect to any of the matters mentioned in the foregoing clauses; (f) Jurisdiction and powers of all courts, with respect to any of the said matters; and (g) Fees in respect of any of the said matters other than fees taken in any court. However, Sub-Section 2 of Section 21 provided that Sub-Section 1 will not derogate from the power conferred upon Parliament by the Constitution to make laws with respect to any matter for a state. The sanction of the Chief Commissioner was required Under Section 23 for certain legislative proposals, these being: (a) Constitution and organisation of the court of the Judicial Commissioner; (b) Jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 38 shall preside over meetings of the Council. (3) If any question arises as to whether any matter is or is not a matter as respects which the Chief Commissioner is required by any law to exercise-any judicial or quasi-judicial functions, the decision of the Chief Commissioner thereon shall be final. (4) If in the State of Delhi any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Chief Commissioner thereon shall be final: Provided that in case of any difference of opinion between the Chief Commissioner and his Ministers on such question, it shall be referred for the decision of the President and his decision shall be final. (5) The question whether any, and if so what, advice was tendered by Ministers to the Chief Commissioner shall not be inquired into in any court. Section 36(1) incorporated the aid and advice principle. But where there was a difference of opinion between the Chief Commissioner and his ministers on any matter , the Chief Commissioner was required to refer it to the President and to act in accordance with the decision of the President. Insofar as the State of Delhi was concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture which placed the Chief Commissioner as an authority superior to the Council of Ministers in the exercise of its executive power. Every decision of the Council of Ministers concerning New Delhi was subject to the concurrence of the Chief Commissioner. The absence of such a provision in Article 239AA cannot be regarded as a matter of no constitutional significance. Historically the constituent body had before it a model which was created by the parliamentary enactment of 1951 but advisedly did not choose to engraft it into the provisions of Article 239AA when the sixty ninth amendment was adopted. 62. The provisions of the Constitution relating to Part A, Part B and Part C States were abrogated with the adoption of the seventh amendment 89 in 1956. Section 130 of the States Reorganization Act 1956 repealed the 1951 Act. The result has been explained in the Statement of Objects and Reasons for the 1956 Act. ... The main features of the reorganization proposed are the abolition of the existing constitutional distinction between Part A, Part B and Part C States, the establishment of two categories for the component units of the Union to be called the States and the abolition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was any inconsistency between a law made by Parliament and a law made by the legislative assembly, the law made by Parliament would prevail to the extent of repugnancy (this provision is similar in nature to Article 239AA(3)(c). Section 44 contained the following provision for the Council of Ministers: 44. Council of Ministers. (1) There shall be a Council of Ministers in each Union territory with the Chief Minister at the head to aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union territory has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions: Provided that, in case of difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer it to the President for decision and act according to the decision given thereon by the President, and pending such decision it shall be competent for the Administrator in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the State List or the Concurrent List; (c) proposals for legislation referred to it by the Administrator with respect to any of the matters enumerated in the State List or the Concurrent List; (d) the estimated receipts and expenditure pertaining to Delhi to be credited to and to be made from, the Consolidated Fund of India; and notwithstanding anything contained in the Delhi Development Act, 1957, the estimated receipts and expenditure of the Delhi Development Authority; (e) matters of administration involving general policy and schemes of development in so far as they relate to matters enumerated in the State List or the Concurrent List; (f) any other matter referred to it by the Administrator. (2) The recommendations of the Metropolitan Council, after having been duly considered by the Executive Council, shall, wherever necessary, be forwarded by the Administrator to the Central Government with the views, if any, expressed thereon by the Executive Council. The recommendations of the Metropolitan Council after they were considered by the Executive Council were to be forwarded to the Central government. The function of the Executive Council was to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Council. (3) The functions of the Administrator with respect to law and order in Delhi including the organization and discipline of police force, and with respect to such other matters as the President may it from time to time specify in this behalf, shall be exercised by him in his discretion. (4) If any question arises as to whether any matter is or is not a matter as respects which the Administrator is by or under this Act required to act in his discretion, the decision of the Administrator thereon shall be final. (5) If any question arises as, to whether any matter is or is not a matter as respects which the Administrator is required by or under any law to exercise any judicial or quasi-judicial functions, the decision of the Administrator thereon shall be final. (6) If any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Administrator thereon shall be final. (7) The question whether any, and if so, what advice was tendered by any member of the Executive Council to the Administrator shall not be enquired into in any court. Every decision of the Executive Council in relation to any matter concernin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council of Ministers. (5) Delhi may be given a special status and dispensation under the Constitution itself. The Committee indicated the reasons which had weighed with it in rejecting the claim for full statehood to Delhi. Firstly, the Committee noted that the conferment of full statehood would result in a constitutional division of legislative power between the Union and the State and to that extent, the Union Executive would be denuded of executive powers in relation to matters governed by the State list. In the view of the Committee: ..This 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 interests irrespective of whether the subject matter is in the State field or Union field. If the administration of the national capital is divided into rigid compartments of State field and Union field, confl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need for 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.. The Committee considered whether the administration of Delhi should be provided for under a law enacted by Parliament, as was the case earlier. The Committee recommended a constitutional amendment in preference to a statute governing the administration of the national capital as a measure of stability and permanence: ..any arrangement providing for the structure of government for the national capital is of great importance and significance to the nation and, as such, it is desirable that any such arrangement should ensure a measure of stability and permanence: The fluid situation which existed at the time when the Constitution came into force and which was the ground relied upon at that time for making a flexibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish a special constitutional arrangement for the governance of the NCT, albeit within the rubric of Union territories. In interpreting the provisions of Article 239AA, this Court cannot adopt a blinkered view, which ignores legislative and constitutional history. While adopting some of the provisions of the Acts of 1963 and 1966, Parliament in its constituent capacity omitted some of the other provisions of the legislative enactments which preceded the sixty ninth amendment. The relationship between the Council of Ministers and the Administrator of the Union territory evolved as Delhi progressed from a Part C State (before the Seventh Amendment) to a Union Territory governed by legislation. As a Union territory, the position of Delhi has evolved from being administered by an Administrator Under Article 239A following the fourteenth amendment and from governance under the earlier enactments of Parliament to its present-day status as a national capital territory governed by a specific constitutional provision: Article 239AA. We have noticed how, when Delhi was within the purview of the Part C States Act, every decision of the Council of Ministers on any matter concerning New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President, through the auspices of an Administrator, to the determination by Parliamentary legislation. 71. The provisions of Article 239 result in significant consequences for the position of Union territories. Article 239 does not elucidate the nature or extent of administrative or regulatory control over the Union territory. Article 239A (which presently applies to Puducherry), Article 239AA (which has special provisions for Delhi) and Article 240 leave no manner of doubt that the relationship of the Union government with every Union and the extent of Presidential control over the administration is not intended to be uniform. These three Articles indicate that a distinction has been made between the status of Union territories at least in terms of the exercise of legislative powers in relation to executive functions. 72. This distinction would emerge from a close reading of the provisions of Article 240 which governs: (i) The Andaman and Nicobar Islands; (ii) Lakshadweep; (iii) Daman and Diu; (iv) Dadar and Nagar Haveli; and (v) Puducherry. Clause 1 of Article 240 enables the President to make Regulations for the peace, progress and good governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ministers, with the function of tendering aid and advice to the Lieutenant Governor. The there shall be formulation is indicative of a constitutional mandate. Bringing into being a legislative assembly and a Council of Ministers for the NCT was not relegated by Parliament (in its constituent power) to its legislative wisdom at a future date upon the enactment of enabling legislation. Clause 7(a) of Article 239AA enables Parliament by law to make provisions to give effect to or to supplement the provisions contained in that Article. Parliament's power is to enforce, implement and fortify Article 239AA and its defining norms. 74. The above analysis would indicate that while Part VIII brings together a common grouping of all Union territories, the Constitution evidently did not intend to use the same brush to paint the details of their position, the institutions of governance (legislative or executive), the nature of democratic participation or the extent of accountability of those entrusted with governance to their elected representatives. Hence, in defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no gainsaying 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. This Court has to step in only because skirmishes between the two have raised constitutional issues of the proper distribution of executive control over the National Capital Territory. I The Government of National Capital Territory of Delhi Act, 1991 76. Parliament enacted the Government of National Capital Territory of Delhi Act 1991 91 to supplement the provisions of the Constitution relating to the legislative assembly and a Council of Ministers for the National Capital Territory of Delhi . The legislation has been enacted in pursuance of the provisions of Clause 7(a) of Article 239AA. 77. Some of the salient features of the law merit reference. The law mandates direct election from territorial constituencies to the legislative assembly 92. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President, any Bill which,- (a) in the opinion of the Lieutenant Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is, by the Constitution, designed to fill; or (b) the President may, by order, direct to be reserved for his consideration; or (c) relates to matters referred to in Sub-section (5) of Section 7 or Section 19 or Section 34 or Sub-section (3) of Section 43. Explanation: For the purposes of this Section and Section 25, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the matters specified in Sub-section (1) of Section 22 or any matter incidental to any of those matters and, in either case, there is endorsed thereon the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill. As the above provisions indicate, the Lieutenant Governor can assent to a Bill, withhold assent or reserve the Bill for consideration of the President. Where the Bill is not a Money Bill, the Lieutenant Governor is permitted to return it for reconsideration to the Assembly. Thereafter, if the Bill is passed again by the Assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature, the Governor is precluded from withholding assent. In contrast, Section 24 confers authority upon the Lieutenant Governor, even if a Bill has been reconsidered and passed by the legislative assembly of the NCT, to either assent to it or reserve it for consideration of the President. Moreover, the second proviso to Section 24 widens the categories of Bills which the Lieutenant Governor must necessarily reserve for the consideration of the President. Clause (a) of the second proviso corresponds to the second proviso to Article 200. In addition, Clause (b) of the second proviso to Section 24 empowers the President to direct the Lieutenant Governor to reserve a Bill for his consideration. Similarly, under Clause (c), Bills relating to salaries payable to the Speaker, Deputy Speaker and the members of the legislative assembly of NCT, the official language of the Capital and of the legislative assembly and the salaries and the allowances of the Ministers, are matters upon which the Lieutenant Governor has to reserve a Bill for the consideration of the President. These provisions indicate a greater degree of interface between the President and the Lieutenant Governor. 79. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final. 81. The Lieutenant Governor acts in his discretion in two classes of matters. The first consists of those which are outside the powers conferred upon the legislative assembly but in respect of which the President has delegated powers and functions to the Lieutenant Governor. The second category consists of those matters where the Lieutenant Governor is required to act in his discretion by or under any law or under which he exercises judicial or quasi-judicial functions. Matters falling within the ambit of Section 41 lie outside the realm of the aid and advice mandate. Where a subject or matter lies outside the purview of the legislative assembly, it necessarily lies outside the executive powers of the government of the NCT. Such matters stand excepted from the ambit of the aid and advice which is tendered by the Council of Ministers to the Lieutenant Governor. 82. Section 44 stipulates that the President may make Rules for the conduct of business: Section 44. Conduct of business: (1) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness among ministers. Article 166 is pari materia (with the substitution of the Governor, for the President in relation to a State). Unlike in the case of a State, where Rules of business are prescribed by the Governor, Section 44 requires that the Rules in relation to the conduct of business in the NCT be framed by the President. Moreover, there is no provision analogous to the proviso to Article 239AA(4) in relation to the affairs of a State under the Constitution. Article 167 does not contain a provision for the procedure to be adopted where there is a difference of opinion between the Governor and the Council of Ministers. 84. Section 45 provides for the duty of the Chief Minister to communicate with and share information with the Lieutenant Governor: Section 45. Duties of Chief Minister as respects the furnishing of information to the Lieutenant Governor, etc,-It shall be the duty of the Chief Minister- (a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. As we have seen, the Lieutenant Governor has been subjected to a wider obligation to reserve Bills for the consideration of the President and in regard to withholding of his assent to a Bill which has been passed by the legislative assembly in comparison with the duties of a Governor of a State. Matters such as the presentation of the annual financial statement or supplementary, additional or excess grants require previous sanction of the President. The President has been conferred with the power to issue directions in regard to the official language of the National Capital Territory. The Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the legislative assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taneously a copy has to be forwarded to the Lieutenant Governor. According to the Rule 9(2): If it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to the Secretary to the Council who shall arrange to circulate the same among the Ministers and simultaneously send a copy thereof to the Lieutenant Governor. Under Rule 10(4), if the Chief Minister accepts the recommendations, he is to return the proposal with his orders to the Secretary to the Council of Ministers. Thereupon, Rule 10(5) stipulates that: On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V. Rule 10(5) requires that on receipt of a proposal, the Secretary to the Council is to communicate the decision to the Lieutenant Governor and to sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Council on a proposal and upon the approval by the Chief Minister, the decision is forwarded to the Lieutenant Governor. After the decision has been communicated to the Lieutenant Governor, the Minister concerned is empowered to give effect to the decision. 92. Rule 15 empowers the Minister in charge of a department to dispose of proposals or matters in the department in accordance with the Standing Orders. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and to the Chief Minister. Under Rule 16, the Minister can provide, by means of Standing Orders, for matters to be brought to his personal notice. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and the Chief Minister. Rule 17 requires a weekly submission of statements containing particulars of important proposals or matters disposed of in the department both to the Lieutenant Governor and the Chief Minister. 93. Rule 19(5) confers authority upon the Lieutenant Governor to call for papers of a proposal or matter from any department. Rule 19(5) is in the following terms: The Lieutenant Governor may call for papers relating to any proposal or matter in any Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the orders passed by the Minister in-charge, he may require the proposal or matter to be placed before the Council for consideration: Provided that the notes, minutes or comments of the Lieutenant Governor in any such case shall not be brought on the Secretariat record unless the Lieutenant Governor so directs. Rule 25 casts a duty on the Chief Minister to furnish to the Lieutenant Governor information on certain matters pertaining to the administration of the Capital. According to Rule 25: The Chief Minister shall: (a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for; and (b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council. Rule 45 of the Transaction of Business Rules deals with the disposal of business relating to the executive functions of the Lieutenant Governor. Under Rule 45: The Lieutenant Governor, may by standing orders in writing, regulate the transaction and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor. Under Rule 47, the Lieutenant Governor has to consult the Union government before exercising his powers or discharging his functions in respect of any matter for which no specific provision is contained in the Rules. 94. Chapter V of the Transaction of Business Rules sets out the procedure to be followed by the Lieutenant Governor in making a reference to the Central government in the event of a difference of opinion with the Council of Ministers. Rules 49, 50 and 51 provide as follows: 49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council. 50. In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters: (a) proposals affecting the relations of the Central Government with any State Government, the Supreme Court of India or any other High Court; (b) proposals for the appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands); (c) important cases which affect or are likely to affect the peace and tranquillity of the National Capital Territory; and (d) cases which affect or are likely to affect the interests of any minority community, Scheduled Castes or the backward classes. Rule 56 stipulates that where a matter has been referred by the Lieutenant Governor to the Central government under the Rules, further action shall not be taken except in accordance with the decision of the Central government. 97. Analysing the Transaction of Business Rules, it becomes evident that the Lieutenant Governor is required to be kept informed of governmental business. The duty of the Council of Ministers, with the Chief Minister at its head, to do so begins at the stage of a proposal. When a proposal is circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon. These matters are considered to be important enough to warrant a mandatory prior submission to the Chief Minister as well as to the Lieutenant Governor before orders are issued. These provisions in the Transaction of Business Rules ensure that the Lieutenant Governor is kept informed of the affairs and administration of the National Capital Territory at every stage. The Rules leave no element of discretion in the Council of Ministers to not comply with the obligation. The obligation to keep the Lieutenant Governor informed at every stage brooks no exceptions. 98. The Transaction of Business Rules set out a careful defined procedure to enable the Lieutenant Governor to counsel the Ministers. This is to facilitate a further reflection or reconsideration in certain situations. Rule 24 deals with one such situation where the Lieutenant Governor is of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the minister in charge . The Lieutenant Governor may in either case require that the proposal or matter be placed before the Council of Ministers for consideration. The duty of keeping the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unless authorized by the Central government. 101. The Transaction of Business Rules elaborately define the modalities which the Lieutenant Governor must follow in the event of a difference of opinion with the Council of Ministers. The proviso to Article 239AA(4), Section 44(1)(b) of the GNCTD Act and Chapter V of the Transaction of Business Rules provide a composite and holistic perspective. They elucidate the modalities which must be followed when there is a difference of opinion. Chapter V supplements and gives effect to the proviso to Article 239AA(4). If a difference of opinion arises between the Lieutenant Governor and a Minister on any matter, the first and primary endeavour must be to resolve it by discussion. Before the matter escalates to the next stage all efforts have to be devoted to a mutual resolution with the Minister. If the difference of opinion continues to persist, the Lieutenant Governor is empowered to direct that the matter in difference be referred to the Council of Ministers. It is when a difference persists between the Lieutenant Governor and the Council of Ministers that a reference is contemplated by Rule 50 to the Central government for a decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating 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 If the Lieutenant Governor were to be kept in the dark, it would not be possible for him as a constitutional authority to determine as to whether the matter is of such a nature as would warrant a reference to the Central government. Sharing of information and the process of communication ensures a dialogue which promotes harmony in administration. The Rules are founded upon the need to maintain constitutional comity rather than strife. 104. 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. The role of the Lieutenant Governor is evinced by the duty which is cast upon the government to keep him duly apprised on matters relating to the administration of the Union territory. On matters of executive business which lie within the constitutional functions assigned to the executive government of the NCT, such a role is elaborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or quasi judicial functions. Matters pertaining to public order, police and land lie outside the ambit of the legislative powers of the Assembly and hence are outside the executive functions of the government of NCT. These are matters where the Lieutenant Governor would act in the exercise of his functions at his discretion if and to the extent to which there has been a delegation or entrustment by the President to him Under Article 239 of the Constitution. Hence, a distinction exists between matters which lie within the domain of the legislative powers of the Assembly and of the executive powers of the NCT government, and those which lie outside. On the former, the Lieutenant Governor must abide by the aid and advice tendered by the Council of Ministers and, in the event of a difference of opinion, refer the matter to the President for decision. In matters which lie outside the legislative powers of the legislative assembly, the Lieutenant Governor has to act in accordance with the entrustment or delegation that has been made to him by the President Under Article 239. 105. Section 49 of the GNCTD Act confers an overriding power of control upon the President and the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision 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. Applying the standard, the majority held that Article 13 of the Constitution is entirely prospective in operation and rendered inconsistent existing laws ineffectual on and afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the provisions of the Article in the way suggested. The Article means what it says in language which could not be plainer. The Article confers immunity inter alia in respect of anything said.... In Parliament . The word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity is not only complete but is as it should be... 109. The third decision is of a Constitution Bench in G. Narayanaswami v. G. Pannerselvam (1972) 3 SCC 717 ( Narayanaswami ). In that case, Article 171 of the Constitution came up for interpretation and the submission which was urged was that in order to be qualified to stand for election to a graduate constituency of the Legislative Council of a State, a person must also possess the qualification of being a graduate. Repelling the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e RP Acts in the broadest or most generous manner, the Rule of plain meaning or literal interpretation compels us not to accept the contentions of the Petitioners. In Manoj Narula, a writ petition Under Article 32 of the Constitution assailed the appointment of some of the original Respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. The question before the Court was whether a categorical prohibition can be read to the words contained in Article 75(1) of the Constitution so that the Prime Minister is constitutionally prohibited to give advice to the President in respect of a person for becoming a Minister who is facing a criminal trial for a heinous and serious offence and charges have been framed against him by the trial Judge. The Constitution Bench held that it cannot re-write a constitutional provision: Reading such an implied limitation as a prohibition would tantamount to adding a disqualification at a particular stage of the trial in relation of a person. This is neither expressly stated nor is impliedly discernible from the provision. 111. These judgments do not advance the proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of the Constitution must therefore be studied as an expression of values and has to be interpreted against the background of an overarching constitutional order . 98 Representative democracy underlines the essence of our Constitution. Collective responsibility of the Council of Ministers is the most essential component of the Cabinet form of government as envisaged under the Constitution. The trust reposed in the Council of Ministers of the NCT is based on its constitutional status. These moral values of the Constitution must therefore be upheld. 113 In Kuldip Nayar's case, the Court had held that in order to interpret the intention behind the enactment of a provision, one needs to look into the historical legislative developments . Placing the structure of governance in the NCT to a constitutional pedestal (while making divergences from previous statutory schemes, as discussed earlier in this judgment) provided a special status to the NCT, which this Court cannot ignore. This Court must interpret the Constitution on the basis of the principles elucidated in the beginning of this judgment. Relationship between Centre and Union Territories 114. The rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after the commencement of the Constitution, mean the President; and shall include in relation to the administration of a Part C State, the Chief Commissioner or Lieutenant-Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it Under Article 239 or Article 243 of the Constitution, as the case may be. On this basis, it was urged that a contract with the Chief Commissioner of Himachal Pradesh must be treated as a contract with the Central government and in consequence the elected candidate was disqualified under the relevant legislation. On the other hand, the elected candidate relied upon the provisions of Section 3(60)(b) which read as follows: State Government as respects anything done or to be done after the commencement of the Constitution, shall mean, in a Part A State, the Governor, in a Part B State the Rajpramukh, and in a Part C State the Central Government. This Court, in the course of the judgment in review, held that in view of the provisions of Section 3(8), a contract with the Chief Commissioner in a Part C State is a contract with the Central government, which would be a disqualificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifest difference between the position of the President or Governor and the Administrator of a Union territory. In the view of the Court: 14...The Administrator even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial function, is not bound to act according to the advice of the Council of Ministers. This becomes manifest from the proviso to Section 44(1). It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would act according to the advice of the Council of Ministers given Under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he constitutional provision engrafted in Article 239AA must be read on the same pedestal as the content of the statutory provision in Section 44 of the 1963 Act. The fact that the proviso to Article 239AA(4) is similar in terms to the proviso to Section 44(1) of the 1963 Act may be one aspect of relevance to the construction of the former. Yet, to our mind, in construing a constitutional provision, the considerations which weigh with the Court would not be constricted by the principles underlying the interpretation of the provisions of a statute. Ordinarily while construing a statute, the Court would be guided by the plain and grammatical meaning of the words used. The literal or golden Rule of interpretation gives way where its consequence would lead to an absurdity or perpetuate an evil which the legislature had intended to avoid. The Court, even while interpreting a statute, may adopt a purposive interpretation. An interpretation is purposive because it facilitates the object which the legislature intended to achieve by enacting the law. Even a purposive interpretation seeks to fulfil the aim and object of the legislature which enacted the law. While construing the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a constitutional provision. There are more fundamental issues which the Court must resolve while interpreting the text of the Constitution which lie beyond the mere question of whether the Administrator of Goa (as in that case) was authorised to issue an order of detention. While construing the text of Article 239AA, the endeavour of the Court must be to facilitate the strengthening of democratic institutions. Constitutional liberties survive and democracies remain vibrant when the institutions of governance created by the Constitution are capable of withstanding the challenges of the times. As an expounder of constitutional principle, it is the foremost duty of the Court to adopt an interpretation which gives expression to democratic values. Truth, justice and freedom are cardinal values in the democratic quest of achieving the dignity of citizens. The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society. In interpreting constitutional text, history should remind us how fragile liberty and democracy can be, unless citizens fiercely protect their foundations. We can ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government; Union territory is defined in Section 3(62) to mean the Union territories specified in the First Schedule to the Constitution and to include any other territory comprised within the territory of India but not specified in that Schedule. Dealing with the provisions of Section 44(1) of the 1963 Act, this Court observed thus: 12...According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision given therein by the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point. The Court noticed that the provisions of Part VI of the Constitution which deal with the States clearly indicate that a Union territory administration is not a state government. The Court observed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the Administrator of Union Territory does not qualify for the description of a State Government. Therefore, the Central Government is the appropriate Government. The decision of the two judge Bench in Goa Sampling explains that under the General Clauses Act 1897, the expression Central government will include the Administrator of a Union territory acting within the scope of his authority Under Article 239, in relation to the administration of the Union territory. Similarly, the expression state government means in relation to the Union territory, the Central government. The Central government was held to be the appropriate government to make a reference under the Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) upon their properties situated within the Union territories. Article 246(4) provides thus: Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List. Justice B P Jeevan Reddy spoke for the majority of five judges. The minority view of four judges was rendered by Chief Justice Ahmadi. 120. The judgment of the majority notes that the States, put together, do not exhaust the territory of India. Parliament has the power to make laws with respect to any matter for any part of territory of India not included in a State. Since the Union territories are not included in the territory of any State, Parliament was the only law making body. Dealing with the provisions of Article 239 AA, the Court held: ..In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA) but even here the legislature so created was not a full-fledged legislature nor did it have the effect of-assuming that it could-lift the National Cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (Seventh Amendment) Act, 1956, the expression State shall mean the States specified in the First Schedule to the Constitution and shall include a Union territory. If this inclusive definition was made applicable for the purpose of construing Article 246(4), an anomaly would arise because Parliament would have no power to legislate in respect of the Union territories with respect to matters governed by the State list. Until a legislature which is empowered to legislate on matters in the State list is created Under Article 239A for the Union territories, there would be no legislature with competence to legislate on those matters. The consequences which would result from reading the provisions of Section 3(58) of the General Clauses Act while interpreting Article 246(4) were noticed in a judgment of a Constitution Bench in TM Kanniyan v. Income Tax Officer, Pondicherry (1968) 2 SCR 103 ( Kanniyan ). The Constitution Bench held that such a construction would be repugnant to the context of Article 246 and hence, Parliament would have Under Article 246(4) plenary powers to make laws for all Union Territories in respect of all matters. The decision in Kanniyan was followed in the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishes a complete answer to the difficulty which is raised since Entry 80 must be read so as to include Union territory . Hence, the members of a police force belonging to a Union territory could have their powers and jurisdiction extended to another state with the consent of that State. The Constitution Bench held that the definitions in the General Clauses Act cannot always be read in interpreting the constitutional text and the definitions apply unless there is anything repugnant in the subject or context . The Constitution Bench held that: After the Seventh Amendment India is a Union of States (Article 1) and the territories thereof are specified in the First Schedule. Then there are Union Territories which are mentioned separately. There is thus a distinction between States and Union Territories which cannot be lost sight of. When the definition cannot be made applicable owing to the context or the subject, the word State refers to States in the First Schedule only. Such an occasion arose in I.M. Kanniyan v. Income-Tax Officer, Pondicherry and Anr., and Bachawat, J., explained Article 246 by holding that the definition of State in two parts in the adapted S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories could be States for the purpose of such consultation. This Court held that the expression State having been defined in Section 3(58), from the commencement of the seventh amendment to the Constitution in 1956, and the President having substituted a new Clause 58 in Section 3, there was nothing repugnant to the subject or context to make that definition inapplicable. The High Court was held to have been in error in holding that Union territories were not States for that purpose. 126. Whether the expression State in the Constitution would cover a Union territory is a matter to be deduced from the context. The Constitution in the First Schedule makes a clear distinction between States and Union territories. Hence, the inclusive definition of the expression State in Section 3(58) of the General Clauses Act cannot apply to the First Schedule. Similarly, in Article 246(4), which enables Parliament to make laws with respect to any matter for any part of the territory of India not included in a State, the definition in Section 3(58) would have no application, having due regard to the context. This was explained in the decision in Kanniyan. When there is something repugnant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niyan right through to the nine-judge Bench decision in NDMC, it has been held that the expression State in Article 246 does not include a Union territory. The expression insofar as any such matter is applicable to Union territories cannot be construed to mean that the legislative assembly of NCT would have no power to legislate on any subject in the State or Concurrent lists, merely by the use of the expression State in that particular entry. This is not a correct reading of the above words of Article 239AA(3)(a). As we see below, that is not how Parliament has construed them as well. 129. Section 7(5) of the GNCTD Act provides that salaries of the Speaker and Deputy Speaker of the legislative assembly may be fixed by the legislative assembly by law. Section 19 provides that the members of the legislative assembly shall receive salaries and allowances as determined by the legislative assembly by law. Section 43(3) similarly provides that the salaries and allowances of ministers shall be determined by the legislative assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive responsibility to the legislative assembly and which, in its capacity of the executive arm of government tenders aid and advice to the Lieutenant Governor under a cabinet form of governance. 132. Broadly speaking, three lines of reasoning emerge before the Court. The Court need not be constrained by having to choose one among them. It would be possible to draw from each, in arriving at a conclusion. The first line of interpretation would have the Court interpret the expression difference of opinion between the Lieutenant Governor and his Council of Ministers on any of the matter without reservation or qualification. This line of interpretation follows a purely literal or textual construction. Any difference of opinion would fulfil the proviso to Clause 4. 'Any matter' would mean any matter without restriction. The Lieutenant Governor would be free to refer to the President just about any difference of opinion of any matter, where it has arisen with the Council of Ministers. This approach cautions the court against confining the proviso to specified categories or confining the areas where differences can arise. 133. The second line of interpretation is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional structure. Our Constitution distributes legislative and executive powers between political entities. Distribution of power between institutions which are the creation of the Constitution is a significant effort to ensure that the values of participation and representation which constitute the foundation of democracy permeate to all levels of governance. The federal structure for governance which is a part of the basic structure recognizes the importance of fulfilling regional aspirations as a means of strengthening unity. The Constitution has adopted some but may be not all elements of a federal polity and the Union government has an important role in the affairs of the nation. For the purpose of the present discourse, it is necessary to emphasise the value which the Constitution places on cooperative governance, within the federal structure. 100 An illustration is to be found in Chapter II of Part XI which deals with the administrative relations between the Union and the States. Under Article 256, an obligation has been cast upon every state to ensure that its executive power is exercised to secure compliance with laws enacted by Parliament. The executive power of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng matter that would result in bringing to a standstill the administration of the affairs of the NCT. Every conceivable difference would be referred to the President. The elected representatives would be reduced to a cipher. The Union government would govern the day to day affairs. The forms of the Constitution would remain but the substance would be lost. Article 239AA has been introduced as a result of the exercise of the constituent power. The purpose of the exercise is to confer a special status on the National Capital Territory. The arrangements for administering the affairs of Delhi are constitutionally entrenched as a result of the Sixty-Ninth amendment. Whether there should be a Council of Ministers or a Legislature (or both) was not left to determination in an Act of Parliament. The Constitution mandates that both must exist in the NCT. The Constitution mandates direct elections to the Legislature. It obligates the existence of a Council of Ministers which owes collective responsibility to the Legislature. It demarcates the area of legislative and executive power. The Lieutenant Governor, as the substantive part of Article 239AA(4) stipulates, is to act on the aid and advi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State and Concurrent Lists for NCT. Hence legislation by the legislative assembly, even on matters which fall within its legislative domain is subject to the overriding power of Parliament. The principle of repugnancy which Article 254 recognises between Union and State legislation on matters in the Concurrent List is extended by Article 239AA [3(b) and 3 (c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the legislative assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being co-extensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a cabinet form of government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive power, consistent with its status as a Union territory. 139. The exercise of the constituent power to introduce Article 239AA was cognizant of the nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s underlying the conferment of such a power, and second, the exercise of the power under the proviso must not destroy the essential democratic values recognised in Article 239AA. Thus, it is necessary to lay down the steps which need to be adopted before recourse is taken to the proviso. The Transaction of Business Rules indicate in sufficiently elaborate terms that when there is a difference of opinion between the Lieutenant Governor and a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that unrestrained recourse to the proviso would virtually transfer the administration of the affairs of the NCT from its government to the Centre. If the expression 'any matter' were to be read so broadly as to comprehend 'every matter', the operation of the proviso would transfer decision making away from the government of the NCT to the Centre. If the proviso were to be so read, it would result in a situation where the President would deal with a reference on every matter, leaving nothing but the husk to the administration of the Union territory. Article 239AB makes a provision where there is a failure of the constitutional machinery in the Union territory. The proviso to Article 239AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the legislative assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment. These features emerge from the provisions of Article 239AA which: (i) require direct election to the legislative assembly from territorial constituencies; (ii) engage the constitutional functions of the Election Commission of India Under Articles 324, 327 and 329; (iii) 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; (iv) mandate the collective responsibility of the Council of Ministers to the legislative assembly; and (v) 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; (7) The distribution of legislative power in Article 239AA is indicative of the predominant role assigned to Parliament as a legislative body. This emerges from: (i) the position that Parliament is empowered to legislate on subjects falling in the State List as well as the Concurren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD Act, 1991 and the Transaction of Business Rules; (13) 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 Transaction of Business 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; (14) 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 's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture adopted for the governance of Delhi; (19) 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 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; (20) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Government of National Capital Territory of Delhi (hereinafter referred to as GNCTD ) being Writ Petition (C) No. 5888 of 2015 (GNCTD v. UOI) impugning: Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with Services and directing the ACB Police Station not to take cognizance of offences against officials of Central Government. and Writ Petition (Crl.) No. 2099 of 2015 (GNCTD v. Nitin Manawat) impugning: Order passed by the Lt. Governor, NCT of Delhi Under Section 24 of Code of Criminal Procedure appointing a Special Public Prosecutor to conduct the trial in FIR No. 21/2012 in the Special Court under PC Act. One writ petition filed by Union of India being Writ Petition (C) No. 8867 of 2015 (UOI v. GNCTD and Anr.) impugning: Notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence. 2. Other six writ petitions were filed by individuals challenging various notifications issued by GNCTD. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inisters in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under Clause (3) (a) of Article 239AA of the Constitution is without substance and cannot be accepted. (iv) It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under Clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to Clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993. (v) The matters connected with 'Services' fall outside the purview of the Legislative Assembly of NCT of Delhi. Therefore, the direction in the impugned Notification S.O. 1368 (E) dated 21.05.2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with 'Services&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and compensation payable in respect thereof are illegal and unconstitutional since such policy directions cannot be issued without communicating to the Lt. Governor of NCT of Delhi for his views. (xi) The Notification No. F.1(1953)/Regn.Br./Div.Com/HQ/2014/191 dated 04.08.2015 issued by the Government of NCT of Delhi, Revenue Department in exercise of the powers conferred by Sub-section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and Rule 4 of the Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 revising the minimum rates for the purpose of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land is illegal since the said notification was issued without seeking the views/concurrence of the Lt. Governor of NCT of Delhi as required under the constitutional scheme. (xii) Though the Lt. Governor of NCT of Delhi is competent to appoint the Special Public Prosecutor Under Section 24(8) of Code of Criminal Procedure, such power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution. 305. In result, W.P.(C) No. 5888/2015 is dismissed, W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for intervenor for whom Dr. A.M. Singhvi and Shri Arvind Datar, learned senior Counsel have appeared. Shri Siddharth Luthra, learned senior Counsel has appeared for Respondent in C.A. No. 2360 of 2017. 11. A common written submission has been filed on behalf of Government of National Capital Territory of Delhi. Shri Maninder Singh, learned Additional Solicitor General has also filed the written submission on behalf of Union of India and Lt. Governor of NCTD. The submissions 12. Learned senior Counsel appearing for GNCTD has emphasised and highlighted various aspects of the different constitutional issues which have arisen for consideration in these appeals. Their submissions are referred hereafter as common submissions on behalf of GNCTD. It is submitted that NCTD occupies a unique position in constitutional jurisprudence by virtue of insertion of Articles 239AA and 239AB vide the Constitution (Sixty Ninth Amendment) Act, 1991. Though still a Union Territory, the NCTD has come to acquire various characteristics that were, prior to the 69th Amendment and the Government of the National Capital Territory Act, 1991 (hereinafter referred to as 1991 Act ), c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrespective of who is the constitutional head, whether President, State Governor or by logical end the LG. In the case of NCTD, the principle of collective responsibility to a democratic legislative body requires that the aid and advice of the Council of Ministers be binding on the LG in order to give due respect to the stated intention of the 69th Constitutional Amendment, i.e., the introduction of constitutionally mandated democratic governance in Delhi. 15. It is the Petitioner's case that the extent of the executive powers of the GNCTD can be understood by way of a combined reading of the provisions of Article 239AA(3) read with Article 239AA(4). The GNCTD possesses exclusive executive powers in relation to matters that fall within the purview of the Assembly's Legislative competence. Neither the President nor the Central Government has any executive powers in Delhi with respect to these matters and the LG as the President's delegate has no role or power in this regard. Article 239AA(3) gives the Delhi Legislative Assembly legislative powers over all but Entries 1, 2, 18 and Entries 64, 65 and 66 in so far as they relate to Entry 1, 2 and 18 of the State List, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that 1991 Act as well as the Rules themselves cannot be used to interpret the constitutional provisions rather they are reflecting the scheme of governance. The services lies within the Legislative and Executive domains of the Delhi Assembly and the GNCTD respectively. 19. Shri Maninder Singh, learned Additional Solicitor General for India replying to the submissions of learned Counsel for the Appellant contends that while interpreting the Constitution the Courts should give effect to plain and literal meaning of the constitutional provisions. There is neither any ambiguity nor any absurdity arising from the plain/literal interpretation of the provisions of 239AA. The constitutional provisions concerning the GNCTD have been inserted keeping in view the carefully envisaged scheme of governance for NCTD under the Constitution of India. The Constitution makers have deliberately used the widest possible words any matter in order to retain the powers of the Union in both the legislative and executive spheres in relation to all matters, keeping in view the unique features as well as special responsibilities of the Union, in each subject in relation to the National Capital. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies including Delhi and any other territory which is not a State, Parliament has power to make laws on any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule. This independent separate provision once again recognises the ultimate/eventual responsibility of the Union in relation to the Union Territories on all subject matters. 25. Since the executive power of the Union Under Article 73(1) (a), and which is vested in the President of India Under Article 53 extends to all subject matters on which Parliament has power to make laws -- in a Union Territory, the executive power of the Union extends to any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule and remains vested in the President Under Article 239 of the Constitution for administering Union Territories, including Union Territory of NCT Delhi. 26. It is submitted that the proviso to Article 239AA(4) re-enforces and recognises the ultimate/eventual responsibility and continuing control of the Union in relation to the administration of the Union Territory of Delhi. The Constitution makers have envisaged that owing to its responsibilities in relation to every sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Union Government is the responsible Government, accountable to the Parliament for the administration of the Union Territories. The National Capital belongs to people of the entire nation. Learned Additional Solicitor General has also referred to and relied on various provisions of 1991 Act and Transaction of Business Rules, 1993 with regard to administration of GNCTD. 30. Learned Additional Solicitor General in its submission also contended that there are very few instances in which LG has made reference to President and in actual working LG neither withhold the files nor there is any other hindrance in decisions taken by GNCTD. He submits that on various occasions without even communicating the decisions taken by the Council of Ministers/Ministers to the LG, the GNCTD starts implementing the decision which is not in accordance with the scheme of governance as delineated by Article 239AA. 1991 Act and Transaction of Business Rules, 1993. 31. Learned Counsel for the parties in support of their respective submissions have placed reliance on a large number of judgments of this Court and Foreign Courts. Relevant decisions of this Court and other Courts shall be referred to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative structure obtaining in the Chief Commissioner's Provinces, including Delhi. The Committee recommended that Delhi, Ajmer, Bhopal, Bilaspur, Coorg, Himachal Pradesh including Cutch, Manipur, Tripura and such other provinces may be so designated as shall be the Lt. Governor's Province. The report was debated in Constituent Assembly when draft Articles 212 and 213 (which was adopted as 239-240) was debated. When the Constitution was enforced from 26th January, 1950 the scheme of the Constitution of India including Articles 1 to 4, Territory of India was divided into four categories Part 'A', Part 'B', Part 'C' and Part 'D' States. With regard to Part 'A' and Part 'B' States, the Constitution envisaged a vertical division of power between the Union and States wherein Part 'C' and 'D' States, Constitution had provided structure under which Union Government retained the power in both the executive and legislative sphere. Pert 'C' States had also been termed as centrally administered areas which included Delhi. Parliament enacted the Government of Part C States Act, 1951, under which provision was made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituencies to be elected by residents of Delhi. By Constitution 14th Amendment Act, 1962, Article 239A was inserted which was enabling provision for the Parliament to make law to create a Legislature or Council of Ministers or both for the Union Territories specified therein. The Union Territory of Delhi was not included in the list of Union Territories in Article 239A. The Parliament enacted the Government of Union Territories Act, 1963. The Delhi Administration Act, 1966 was passed by the Parliament to provide for an elected body of Delhi Metropolitan Council. A Committee was appointed by the Government of India to go into the various issues connected with the administration of Union Territory of Delhi. The Committee, after, studying for two years about all aspects of the matters had submitted its Report on 14.12.1989 to the Home Minister. The Report of the Committee is commonly known as Balakrishnan Committee Report. While submitting the Report S. Balakrishnan, in nutshell, in his letter dated 14.12.1989 addressed to Home Minister has outlined task given to the Committee in following words: The task of designing a proper structure of Government for the national capital partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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. 6.5.10 In the light of the foregoing discussion our conclusion is that it will not be in the national interests and in the interests of Delhi itself, to restructure the set-up in Delhi as a full-fledged constituent State of the Union, this will have to be ruled out. We recommend accordingly. 37. While discussing salient features of proposed structure following was stated in paragraphs 6.7.1 and 6.7.2: 6.7.1 As a consequence of our recommendation in the preceding paragraph that Delhi should be provided with a Legislative Assembly and a Council of Ministers the further issues to be considered are: (i) the extent of the powers and responsibilities to be conferred on or entrusted to these bodies, the special safeguards to ensure that the Union is not hampered in discharging its duties and responsibilities and the other salient features of the structure; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories. 2. The Bill seeks to give effect to the above proposals. 39. By 69th Amendment Act, Article 239AA and Article 239AB were added in Part VIII of the Constitution. Article 239AA and 239AB which Articles are taken up for consideration in these appeals are as follows: Article 239AA {Special provisions with respect to Delhi} 1. As from the date of commencement of the Constitution (Sixty ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this Sub-clause shall prevent Parliament form enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. 4. There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the principles which have been accepted for interpretation of a Constitution. Before we notice the accepted principles for constitutional interpretation, we want to notice prophetic words of Dr. B.R. Ambedkar where Dr. Ambedkar in closing debate on 25.11.1949 in the Constituent Assembly on the draft Constitution made following statement: ...Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. 41. After noticing the universal truth stated by Dr. B.R. Ambedkar as above, we now proceed to notice the principles of Constitutional interpretation. The general Rule for interpreting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 42. This Court in subsequent judgments have also propounded the doctrine of literal interpretation and doctrine of purposive interpretation. 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. This Court in S.R. Chaudhuri v. State of Punjab and Ors., (2001) 7 SCC 126 held that we must remember that 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary constitution reflects the beliefs and political aspirations of those who had framed it. One of the principles of constitutionalism is what it had developed in the democratic traditions. A primary function that is assigned to the written constitution is that of controlling the organs of the Government. Constitutional law presupposes the existence of a State and includes those laws which regulate the structure and function of the principal organs of the government and their relationship to each other and to the citizens. Where there is a written constitution, emphasis is placed on the Rules which it contains and on the way in which they have been interpreted by the highest court with constitutional jurisdiction. Where there is a written constitution the legal structure of the Government may assume a wide variety of forms. Within a federal constitution, the tasks of the Government are divided into two classes, those entrusted to the federal organs of the Government, and those entrusted to the various States, regions or provinces which make up the federation. But the constitutional limits bind both the federal and State organs of the Government, which limits are enforceable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional design and Constitutional objectives be fulfilled. It is submitted that judgments of this Court in Rustom Cavasjee Cooper v. Union of India, (1970)1 SCC 248: AIR 1970 SC 564 and judgment of this Court in Maneka Gandhi v. Union of India and Anr. (1978)1 SCC 248: AIR 1978 SC 597 reflect that principles of less textual and more purposive method of Constitutional interpretation which has been adopted in these cases. Judgment of this Court in K.C. Vasanth Kumar and Anr. v. State of Karnataka, 1985 Supp. SCC 714 has been relied, wherein this Court laid down following: ....It is not enough to exhibit a Marshallian awareness that we are expounding a Constitution; we must also remember that we are expounding a Constitution born in the mid-twentieth century, but of an anti-imperialist struggle, influenced by constitutional instruments, events and revolutions elsewhere, in search of a better world, and wedded to the idea of justice, economic, social and political to all. Such a Constitution must be given a generous interpretation so as to give all its citizens the full measure of justice promised by it. The expositors of the Constitution are to concern themselves less with me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to examine the accounts of telecom service providers Under Article 149. It cannot, however, be said that the Rule of literal construction or the golden Rule of construction has no application to interpretation of the Constitution. So when the language is plain and specific and the literal construction produces no difficulty to the constitutional scheme, the same has to be resorted to. Similarly, where the Constitution has prescribed a method for doing a thing and has left no 'abeyance' or gap, if the court by a strained construction prescribes another method for doing that thing, the decision will become open to serious objection and criticism. 50. Aharon Barak (Former President, Supreme Court of Israel) while dealing with Purposive Constitutional Interpretation expounded the modern concept in following words: The purpose of the constitutional text is to provide a solid foundation for national existence. It is to embody the basic aspirations of the people. It is to guide future generations by its basic choices. It is to control majorities and protect individual dignity and liberty. All these purposes cannot be fulfilled if the only guide to interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity to make its own decisions, including decisions about the terms on which democratic institutions operate, subject to limits imposed by the constitution. 65 Thirdly, constitutions are not to be interpreted with mechanical literalness. Interpreters must take account of the context, ultimate object, and textual setting of a provision, 66 bearing in mind that the question is not what may be supposed to have been intended [by the framers], but what has been said . 67 Fourthly, according to at least some judges, constitutions are not to be interpreted as permitting institutions, including legislatures, to act in a way which offends what I may call the social conscience of a sovereign democratic republic , because law must be regarded by ordinary people as reasonable, just and fair Nevertheless, these principles must be qualified by the recognition of differences between constitutions. 53. Learned Counsel for the Appellant has also relied on the principles of Constitutional silence and Constitutional implications. It is submitted that Constitutional silence and Constitutional implications have also to be given due effect while interpreting Constitutional provisions. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as follows: (Bhanumati case, SCC p. 17, paras 49-50) 49. Apart from the aforesaid reasons, the arguments by the Appellants cannot be accepted in view of a very-well-known constitutional doctrine, namely, the constitutional doctrine of silence. Michael Foley in his treatise on The Silence of Constitutions (Routledge, London and New York) has argued that in a Constitution 'abeyances are valuable, therefore, not in spite of their obscurity but because of it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather than the content or substance of their strictures'. (p. 10) 50. The learned author elaborated this concept further by saying, Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components.' (p. 82) 54. It is further relevant to notice that although above well known Constitutional doctrine was noticed but the Court held that express Constitutional provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposive 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. We, thus, while interpreting Article 239AA have to keep in mind the purpose and object for which Sixty Ninth Constitution (Amendment) Act, 1991 was brought into force. After noticing the above principles, we now proceed further to examine the nature and content of the Constitutional provisions. CONSTITUTIONAL SCHEME OF ARTICLE 239AA 58. To find out the Constitutional Scheme as delineated by Article 239AA, apart from looking into the express language of Article 239AA, we have also to look into the object and purpose of Constitutional provision, on which sufficient light is thrown by the object and reasons as contained in Sixty Ninth Constitutional Amendment as well as Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Central law governing the matter. We, therefore, recommend that even after the creation of a Legislative Assembly and Council of Ministers for Delhi it should continue to be a Union territory for the purposes of the Constitution. 61. 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. 62. At this juncture, it is also relevant to note the issue pertaining to admissibility of the Balakrishnan Report. The issue regarding admissibility of Parliamentary Committee's Report in proceeding Under Article 32/Article 136 of the Constitution of India was engaging attention of the Constitution Bench when hearing in these matters were going on. The Constitution Bench has delivered its judgment in Writ Petition (C) No. 558 of 2012 Kalpna Mehta and Ors. v. Union of India and Ors. on 09.05.2018. The Constitution Bench had held that Parliamentary Committee Reports can be looked into and referred to by this Court in exercise of its jurisdiction Under Article 32/136. The Chief Justice delivering his opinion (for himself and on behalf of Justice A.M. Khanwilkar) in the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the committee by the Court for the above two purposes, we fail to see any valid reason for not accepting the submission of the Petitioner that Courts are not debarred from accepting the Parliamentary-materials and reports, on record, before it, provided the Court does not proceed to permit the parties to question and impeach the reports. 65. Thus, it is now well settled that Parliamentary Committee Report can be looked into to find out the intent and purpose of legislation, in the present case, Sixty Ninth Constitutional Amendment. 66. The statement of object reasons of Sixty Ninth Amendment Act has also referred to the Balakrishnan's Report. While referring to the Balakrishnan's Report, following has been noted: The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the National Capitals of other countries with a federal set-up an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to Union territories except matters with respect to Entries 1, 2, and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2, and 18. (b) Nothing in Sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void; Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent such law shall prevail in National Capital Territory: Provided further that nothing in this Sub-clause shall prevent Parliament fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Article 239AA mentions nothing in Sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof. 74. It is relevant to note that Sub-clause (3) begins with the word subject to the provisions of this Constitution . Article 246 thus, by Chapter 1st of the Part XI of the Constitution dealing with the Legislative relations has to be looked into and to be read alongwith Article 239AA Clause (3). Article 246 provides as follows: 246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). (2) Notwithstanding anything in Clause (3), Parliament and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List ). (3) Subject to Clauses (1) and (2), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory of India. There are certain territories which do not form part of any State and yet are the territories of the Union. That the States and the Union Territories are different entities, is evident from Clause (2) of Article 1 -- indeed from the entire scheme of the Constitution. Article 245(1) says that while Parliament may make laws for the whole or any part of the territory of India, the legislature of a State may make laws for the whole or any part of the State. Article 1(2) read with Article 245(1) shows that so far as the Union Territories are concerned, the only lawmaking body is Parliament. The legislature of a State cannot make any law for a Union Territory; it can make laws only for that State. Clauses (1), (2) and (3) of Article 246 speak of division of legislative powers between Parliament and State legislatures. This division is only between Parliament and the State legislatures, i.e., between the Union and the States. There is no division of legislative powers between the Union and Union Territories. Similarly, there is no division of powers between States and Union Territories. So far as the Union Territories are concerned, it is Clause (4) of Article 246 that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the constitutional scheme, there is no third kind of taxation. Either it is Union taxation or State taxation.... ...155. In this connection, it is necessary to remember that all the Union Territories are not situated alike. There are certain Union Territories (i.e., Andaman and Nicobar Islands and Chandigarh) for which there can be no legislature at all -- as on today. There is a second category of Union Territories covered by Article 239-A (which applied to Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry -- now, of course, only Pondicherry survives in this category, the rest having acquired Statehood) which have legislatures by courtesy of Parliament. Parliament can, by law, provide for constitution of legislatures for these States and confer upon these legislatures such powers, as it may think appropriate. Parliament had created legislatures for these Union Territories under the the Government of Union Territories Act, 1963 , empowering them to make laws with respect to matters in List II and List III, but subject to its overriding power. The third category-is Delhi. It had no legislature with effect from 1-11-1956 until one has been created und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. B. EXECUTIVE POWERS OF THE UNION (PRESIDENT/LG) AND THAT OF THE GNCTD 81. 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 by 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. Clause (4) of Article 239AA 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. The submission of the Respondent is that executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 172 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. Pathak's contention. 83. The Constitution Bench has also in above case laid down that in our Constitution; we have adopted the same system of Parliamentary democracy as in England. In this regard, following was held in Para Nos. 13 and 14: 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lective responsibility, the most important questions of policy are all formulated by them. 84. The Appellant relying on Article 73 of the Constitution had submitted that Article 73 lays down the principle that while there may exist under the Constitution concurrent legislative powers on two different federal units, there can never be any concurrent executive powers. It was further submitted that the above principle equally applies to matters listed in List II and List III of the Constitution of India for NCTD. Referring to the Article 239AA(3)(b), it is contended that the said provision confers power on Parliament to enact legislations in matters in both state list and concurrent lists. Such power is also available Under Article 246. However, it does not follow from the above that the said provision also confers executive powers in relation to matters in the state list and concurrent list. It is further submitted that Parliament may by law confer executive powers in relation to matters in the concurrent list on the Union Government for States, it may also do so in relation to the NCTD. But, if such thing is not done, Union Government will, as a general rule, have no executive po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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. We thus conclude that 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. 88. Learned Counsel for the Appellants have also referred to Article 239AB. One of the submissions raised by the Appellants is that the executive power can be exercised by Union or the Lieutenant Governor only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AA. The Appellants case is that the content and meaning of aid and advice is same as has been used in Article 74 and Article 163 of the Constitution. Article 163 Sub-clause(1) is extracted for ready reference: 163. Council of Ministers to aid and advise Governor:(1) There shall be a council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion. 91. The Appellant's have placed reliance on Constitution Bench judgment of this Court in Shamsher Singh v. State of Punjab and Anr. (1974) 2 SCC 831. The Constitution Bench of this Court in the above case had occasion to examine the phrase aid and advice as used in Article 163 of the Constitution. This Court found that our Constitution embodies generally the Parliamentary system of the Government of British model both for Union and the States. Both President and Governor have to act on the basis of aid and advice received from the Council of the Ministers except when they have to exercise their function in their discretion. Paras 27, 28, 30, 32 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Articles 77(3) and 166(3) provide that the President Under Article 77(3) and the Governor Under Article 166(3) shall make Rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the Rules of Business made under these two articles viz. Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively. 32. It is a fundamental principle of English Constitutional law that Ministers must accept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sovereign is conditioned by the practical Rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This Rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a Parliamentary and responsible form of Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that any other interpretation shall run contrary to the very concept of Parliamentary democracy, which is basic feature of the Constitution. There could have been no second opinion had the proviso to Subclause(4) of Article 239AA was not there. The aid and advice as given by Council of Ministers as referred to in Subclause(4) has to be followed by the Lieutenant Governor unless he decides to exercise his power given in proviso of Subclause(4) of Article 239AA. The proviso is an exception to the power as given in Subclause(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 Subclause(4) of Article 239AA proviso. It is relevant to note that the scheme which is reflected by Subclause(4) of Article 239AA proviso is the same scheme which is contained Under Section 44 of the Government of Union Territories Act, 1963. Section 44 of the Act is quoted below: There shall be a Council of Ministers in each Union Territory with the Chief Minister at the head to aid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. falls within Rule 23 matters such as- i. matters which affect the peace and tranquillity of the Capital; ii. interests of any minority community; iii. relationship with the higher judiciary; iv. any other matters of administrative importance which the Chief Minister may consider necessary. 95. Thus, Appellants contended that apart from above categories mentioned above, proviso has no application in any other matter. We are not able to read any such restriction in the proviso as contended by the Appellants. 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. Sub-clause(3)(a) reads subject to the provisions of this Constitution, the Legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation relying on any principle of Parliamentary democracy or any system of Government or any principle of Constitutional silence or implications. 98. The submission of the Appellants that proviso to Subclause(4) of Article 239AA envisages an extreme and unusual situation and is not meant to be a norm, is substantially correct. 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. Although, it was contended by the Appellant that Article 239 is not applicable with regard to NCTD after Article 239AA has been inserted in the Constitution. The above submission cannot be accepted on account of the express provisions which are mentioned Under Article 239AA and Article 239AB itself. Article 239AA Subclause(1) itself contemplates that administrator appointed Under Article 239 shall be designated as the Lieutenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the conduct of business which is to the following effect: 44. Conduct of business: (1) The President shall make rules: (a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and (b) for the more convenient transaction of business with the ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. (2) Save as otherwise provided in this Act, all executive action of Lieutenant Governor whether taken on the advise of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor. (3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in Rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor. 102. Under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no observation to make, he shall return the proposal with his orders thereon to the Secretary to the Council. (5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V. 104. The above provision also indicates that after proposal is accepted by the Chief Minister, the same shall be communicated to the LG and only thereafter necessary step to issue the orders is to be taken provided no reference is made to the Central Government by the LG under Chapter V of the Rules. 105. Rule 13 Sub-rule (3) provides that an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chief Minister shall be sent to the LG. The agenda approved by the Chief Minister shall be sent by the Secretary to the Council, to the LG. Rule 13 Sub-rule (3) is as follows: Rule 13(3) After an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other proposals or matters of administrative importance which the Chief Minister may consider necessary. 109. Under Rule 24, the LG is empowered to require any order passed by the Minister-in-charge to be placed before the Council for consideration. 110. Rule 25 obliges the Chief Minister to furnish to the LG such information relating to the administration of the Capital and proposals for legislation as the LG may-call for. 111. Rule 49 deals with the difference of opinion between the LG and Minister in regard to any matter, whereas Rule 50 deals with difference of opinion between the LG and the Council with regard to any matter. Rules 49 and 50 are as follows: 49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council. 50. In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved no concurrence is required on the decisions and communication is only for the purpose of enabling the LG to formulate opinion as to whether there is any such difference which may require reference. Only a reasonable time gap is to elapse, which is sufficient to the LG to scrutinise the decision. It is for the LG and the Council of Ministers to formulate an appropriate procedure for smooth running of the administration decisions can very well be implemented by the GNCTD immediately after the decisions are communicated to LG and are seen by the LG. When LG has seen a decision and does not decide to make a reference, the decision has to be implemented by all means. We are, thus, of the view that 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. 115. The 1993 Rules provide that Chief Secretary and the Secretary of the Department concerned are severally responsible for the careful observance of these Rules and when either of them considers that there has been any material departure, he shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in the Concurrent List. III. Executive power is co-extensive with the legislative power. Legislative power is given to give effect to legislative enactments. The Policy of legislation can be given effect to only by executive machinery. IV. When the Constitution was enforced, executive power of Union in reference to Part C States with regard to Concurrent List was not excluded. Part C States having been substituted by 7th Constitution Amendment as Union Territories. The word 'State' as occurring in proviso to Article 73 after 7th Constitution Amendment cannot be read as including Union Territory. Reading the word 'Union Territory' within the word 'State' in proviso to Article 73 shall not be in consonance with scheme of Part VIII (Union Territories) of the Constitution. V. Executive power of the Union is co-extensive on all subjects referable to List II and III on which Legislative Assembly of NCTD has also legislative powers. VI. The aid and advice given by Council of Ministers as referred to in Sub-clause (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 2nd edition, 1981 London; Weidenfeld and Nicholson 6Black's Law Dictionary 6th Edition Pg. 432 7Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33 8Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L. REV. 1, 4 (1950) 9Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1. 10Cameron, D. and Simeon, Rule 2002. Intergovernmental relations in Canada: The emergence of collaborative federalism. Publius, 32(2):49- 72 11Martin Painter, Collaborative federalism: Economic reform in Australia in the 1990s. Cambridge University Press, 2009. 12Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution, 2009 13M.P. Jain, Some aspects of Indian federalism, 1968 14Bodenheimer, Edgar, Jurisprudence, (Universal Law Publishing Co. Pvt. Ltd., Fourth Indian Reprint, 2004) p. 405 15Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934) see West Coast Hotel Co. v. Parrish, 300 US 379 (1937) where he observed, the meaning of the Constitution does not change with the ebb and flow of economic events that (if) the words of the Constitution mean today what they did not mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .com/2010/615/615_pratap_bhanu_mehta.htm. 45Ibid 46Ibid 47Bruce P. Frohnen and George W. Carey, Constitutional Morality and the Rule of Law , Journal of Law and Politics (2011), Vol. 26, at page 498 48Rajiv Bhagava (Supra note 5), at pages 14-15 49Granville Austin (Supra note 3), at page 63 50Ibid, at page xiii 51Ibid, at page 63. 52Pratap Bhanu Mehta (Supra note 14) 53Andre Beteille, Democracy and its Institutions, Oxford University Press (2012) 54Constituent Assembly Debates, Vol. 11 (25th November, 1949) 55Ibid 56Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), at page 12 57Martin Loughlin, The Silences of Constitutions , International Journal of Constitutional Law (2019, In Press), available at https://www.jura.uni-freiburg.de/de/institute/rphil/freiburger_vortraege/silences-of-constitutions-m.-loughlin-manuskript.pdf 58Raju Ramchandran, The Quest and the Questions , Outlook (25 August, 2014), available at https://www.outlookindia.com/magazine/story/the-quest-and-the-questions/291655 59Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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