2018 (7) TMI 1426 - SC - Indian Laws

Powers conferred on the Legislative Assembly of the National Capital Territory of Delhi - Method of understanding confluence of the idea and spirit of the Constitution - Interpretation of the proviso to Article 239AA(4) regarding aid and advice - spirit of the Constitution - Constitutional morality - Whether the inhabitants or voters of NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills Prana into the cells? Importance of a National Capital - Administration of Delhi after Enforcement of the Constitution of India - Constitutional morality - concept of constitutional governance - admissibility of the Balakrishnan Report - doctrine of constitutional trust - principle of collective responsibility - Federal functionalism and democracy - expression pragmatic federalism - Executive power of the Council of Ministers of Delhi - Respondents Union of India and Lieutenant Governor of Delhi argument that although the insertion of Article 239AA envisages the constitution of a Legislative Assembly for the National Capital Territory of Delhi yet the President shall remain its Executive head acting through the Lieutenant Governor and that the powers of the Parliament in respect of the Union Territories shall not be derogated in any manner by the insertion of the said Article 239AA. JUDGMENT - Dipak Misra CJI - HELD THAT - In view of our 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) The elected representatives being accountable to the public must be accessible approachable and act in a transparent manner. Thus the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy rather it lays stress on constitutional ideologies. (iii) In order to realize our constitutional vision it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. (iv) All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions therefore must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution. (v) The Constitution being the supreme instrument envisages the concept of constitutional governance which has as its twin limbs the principles of fiduciary nature of public power and the system of checks and balances. (vi) Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of aid and advice . If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor then the concept of collective responsibility would stand negated. (vii) Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. (viii) The constitutional vision beckons both the Central and the State Governments alike with the aim to have a holistic edifice. 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. (x) There is no dearth of authorities with regard to the method and approach to be embraced by Constitutional Courts while interpreting the constitutional provisions. (xi) In the light of the contemporary issues the purposive method has gained importance over the literal approach and the Constitutional Courts with the vision to realize the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. (xii) In the light of the ruling of the nine-Judge Bench in New Delhi Municipal Corporation 1996 (12) TMI 384 - SUPREME COURT ) it is clear as noon day that by no stretch of imagination NCT of Delhi can be accorded the status of a State under our present constitutional scheme. The status of NCT of Delhi is sui generis a class apart and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State rather he remains an Administrator in a limited sense working with the designation of Lieutenant Governor. (xiii) With the insertion of Article 239AA by virtue of the Sixty-ninth Amendment the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List barring those excepted and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. (xiv) The interpretative dissection of Article 239AA(3) (a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all but three excluded subjects in the State List. (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 certain subjects falling in the State List or the Concurrent List the executive action of the State must conform to the law made by the Parliament. (xvi) As a natural corollary the Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters the executive power is to be exercised by the Government of NCT of Delhi. This however is subject to the proviso to Article 239AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. (xvii) The meaning of aid and advise employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to Clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the aid and advice of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. (xviii) The words any matter employed in the proviso to Clause (4) of Article 239AA cannot be inferred to mean every matter . The power of the Lieutenant Governor under the said proviso represents the exception and not the general Rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality the principle of collaborative federalism and constitutional balance the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. (xix) The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. (xx) The Transaction of Business Rules 1993 stipulates the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure the TBR 1993 suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative 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 said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him Under Article 239AA(4) and the proviso thereof. (xxii) The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. (xxiii) Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench. JUDGMENT - Dr. D.Y. Chandrachud J. - HELD THAT - After analysing the constitutional and statutory provisions and the precedents on this point this Court reaches the following conclusions (1) The introduction of Article 239AA into the Constitution was the result of the exercise of the constituent power. The 69th amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory albeit under the rubric of a Union territory governed by Part VIII of the Constitution; (2) The content of such a constitutional amendment cannot be confined or constrained by the content of legislations which governed Delhi in the past. The constitutional amendments sought to bring stability and permanence to the democratic governance of the NCT. (3) The Administrator appointed by the President Under Article 239(1) is designated with reference to the NCT as its Lieutenant Governor. The substantive source of power to appoint the Lieutenant Governor arises from Article 239 of the Constitution; (4) While Article 239(1) indicates that the administration of a Union territory is by the President the opening words of the provision ( Save as otherwise provided by Parliament by law ) indicate that the nature and extent of the administration by the President is as indicated in the law framed by Parliament. (5) Article 239AA mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital; (6) The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory representative and responsive government. These features emerge from the provisions of Article 239AA which (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 (8) The executive power of the government of NCT is co-extensive with the legislative power. Similarly the Lieutenant Governor is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law; (9) The President has made the Transaction of Business Rules for the NCT as contemplated in the GNCTD Act 1991; (10) Section 41 of the GNCTD Act indicates that not subject to the aid and advice of the Council of Ministers; (11) Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i); (12) The duty to keep the Lieutenant Governor duly informed and apprised of the affairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD 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. 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. (16) The use of the expression State in a particular provision is not dispositive of whether or not its application would stand excluded in relation to a Union territory. The outcome is essentially based on the subject and context in which the word has been used; (17) The doctrines of aid and advice and of collective responsibility give effect to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a difference of opinion to the President is a reflection of (ii) above. (18) If the expression any matter were to be read as every matter it would lead to the President assuming administration of every aspect of the affairs of the Union territory thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi; (19) 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) The provisions of Article 239AA(4) indicate that the Lieutenant Governor must either act on the basis of aid and advice or where he has reason to refer the matter to the President abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi-judicial authority under any law or has been entrusted with powers by the President Under Article 239 on matters which lie outside the competence of the Government of NCT); and (21) The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital Territory. Every trivial difference does not fall under the proviso. Given the complexities of administration and the unforeseen situations which may occur in future it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances warranting recourse to the proviso. In deciding as to whether the proviso should be invoked the Lieutenant Governor shall abide by the principles which have been indicated in the body of this judgment. After the circulation of my judgment to my learned colleagues I have had the benefit of receiving the judgments of the learned Chief Justice and brother Justice Ashok Bhushan. I believe that there is a broad coalescence of our views. The reference shall stand answered in the above terms and the proceedings shall now be placed before the learned Chief Justice of India for appropriate directions in regard to the constitution of the Bench to decide the matters. JUDGMENT - Ashok Bhushan J. - HELD THAT - In view of the discussions we arrive on the following conclusions on the issues which have arisen before us - I. The interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The intent of the Constitution framers the object and reasons of a Constitutional Amendment always throw light on the Constitutional provisions. II. The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State List and Concurrent List. The Legislative 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 Article 239AA is binding on the LG unless he decides to exercise his power given in proviso to Sub-clause (2) of Article 239AA. VII. The Legislative Assembly of NCTD being representing the views of elected representatives their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President. VIII. The power given in proviso to Sub-clause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration when it becomes necessary to safeguard the interest of the Union Territory. IX. For the Executive decisions taken by the Council of Ministers/Ministers of GNCTD proviso to Sub-clause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG. X. The scheme as delineated by 1991 Act and 1993 Rules clearly indicates that LG has to be kept informed of all proposals agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The purpose of communication is not to obtain concurrence of LG. XI. From persons holding high office it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected. We having answered the constitutional issues raised before us in the above manner let these matters be now placed before the appropriate Bench for hearing after obtaining orders from Hon ble the Chief Justice.

Summary

Issues Involved:
1. Legislative power of Parliament and GNCTD.
2. Executive power of Union (President/LG) and GNCTD.
3. Interpretation of the proviso to Article 239AA(4) regarding "aid and advice."
4. Requirement of concurrence of LG for executive decisions of GNCTD.
5. Purpose and object of communication of decisions of Council of Ministers/Minister to LG.
6. Administrative function of GNCTD and LG as delineated by the 1991 Act and the Transaction of Business Rules, 1993.

Detailed Analysis:

Legislative Power of Parliament and GNCTD:
The legislative power of the Parliament and the Legislative Assembly of the National Capital Territory of Delhi (NCTD) is defined under Article 239AA(3). The Legislative Assembly of NCTD has the power to make laws on matters enumerated in the State List and Concurrent List, except for Entries 1, 2, and 18 of the State List and related entries. Parliament retains the power to legislate on these matters as well, and in case of repugnancy, the law made by Parliament prevails unless the President has assented to the law made by the Legislative Assembly.

Executive Power of Union (President/LG) and GNCTD:
The executive power of the Union is co-extensive with its legislative power and extends to all subjects referable to List I and List II on which the Legislative Assembly of NCTD has legislative powers. The executive power of the GNCTD is also co-extensive with its legislative power. The Lieutenant Governor (LG) acts on the aid and advice of the Council of Ministers except in matters where he is required to act in his discretion by or under any law.

Proviso to Article 239AA(4):
The proviso to Article 239AA(4) allows the LG to refer any matter to the President in case of a difference of opinion with the Council of Ministers. This power is not meant to be exercised routinely but only in exceptional circumstances where it is necessary to safeguard the interests of the Union Territory. The phrase "any matter" in the proviso is broad and not restricted to specific categories of cases.

Requirement of Concurrence of LG for Executive Decisions of GNCTD:
The constitutional scheme does not require the concurrence of the LG for executive decisions taken by the Council of Ministers or Ministers of GNCTD. The LG has to be kept informed of all proposals, agendas, and decisions, but his concurrence is not necessary for their implementation. The purpose of communication is to enable the LG to exercise his powers under the proviso to Article 239AA(4) if necessary.

Purpose and Object of Communication of Decisions of Council of Ministers/Minister to LG:
The communication of decisions to the LG is intended to keep him informed and enable him to exercise his powers under the proviso to Article 239AA(4). The communication is not for obtaining concurrence but for ensuring that the LG is aware of the administration's functioning and can intervene if required.

Administrative Function of GNCTD and LG as Delineated by the 1991 Act and the Transaction of Business Rules, 1993:
The 1991 Act and the Transaction of Business Rules, 1993, provide a detailed framework for the functioning of the GNCTD and the LG. The Chief Minister is required to communicate all decisions of the Council of Ministers to the LG. The LG can call for papers relating to any proposal or matter in any department. In case of a difference of opinion, the LG can refer the matter to the President. The rules ensure that the LG is kept informed and can exercise his powers effectively.

Conclusion:
The judgment clarifies the legislative and executive powers of the GNCTD and the Union, the role of the LG, and the procedural requirements for communication and decision-making. The interpretation of Article 239AA and the related provisions aims to balance the democratic aspirations of the people of Delhi with the need for effective administration of the national capital.