K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR.

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A general Governments and the fact that the general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions.’”

122. We have dealt with the conceptual essentiality of federal B cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities referred to hereinabove pertain to the Union of India and the State Governments in the constitutional sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in C Article 239-AA and other articles.”

50Copy pinpoint50. The concept of Collaborative federalism was also noticed in paragraph Nos. 110 and 111 in the following words:- “110. The Constituent Assembly, while devising the federal character of our Constitution, could have never envisaged that the Union Government and the State Governments would work in tangent. It could never have been the Constituent Assembly’s intention that under the garb of quasi-federal tone of our Constitution, the Union Government would affect the interest of the States. Similarly, the States under our constitutional scheme were not carved as separate islands each having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put a step to invite anarchism. Rather, the vision enshrined in the Preamble to our Constitution i.e. to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike. The ultimate aim is to have a holistic structure.

111. The aforesaid idea, in turn, calls for coordination amongst the Union and the State Governments. The Union and the States need to embrace a collaborative/cooperative federal architecture for achieving this coordination.”

51Copy pinpoint51. Another concept which was noticed and elaborated was the concept of Pragmatic federalism. Following was laid down in Paragraph 123:-

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 733 [ASHOK BHUSHAN, J.]

“123. In this context, we may also deal with an ancillary issue, A namely, pragmatic federalism. To appreciate the said concept, we are required to analyse the nature of federalism that is conceived under the Constitution. Be it noted, the essential characteristics of federalism like duality of governments, distribution of powers between the Union and the State B Governments, supremacy of the Constitution, existence of a written Constitution and most importantly, authority of the courts as final interpreters of the Constitution are all present under our constitutional scheme. But at the same time, the Constitution has certain features which can very well be perceived as deviations from the federal character. We may, in brief, indicate some of these features to underscore the fact that though our Constitution broadly has a federal character, yet it still has certain striking unitary features too. Under Article 3 of the Constitution, 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 E 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.”

52Copy pinpoint52. It has been laid down by this Court in the above cases, which F is clear from above precedents that Indian Constitution has adopted federal structure. Although, it is not in the strict mould of federalism as understood in theory. That is why, different Constitution Benches of this Court have termed the Indian Constitution as a quasi-federal but the essential characteristics of the federal system are ingrained in the Constitution and reflect in different Constitutional provisions which are G (i) the distribution of legislative and executive power between the Union and the States, (ii) the distribution of such legislative and executive power is by the Constitution itself, and (iii) an independent judiciary to interpret the Constitutional provisions and lay down validly in case of any dispute or doubt. H

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53Copy pinpoint53. The concepts of cooperative federalism, collaborative federalism and pragmatic federalism as has been noticed by the Constitution Bench in State (NCT Of Delhi) (supra) essentially engraft the same concept, i.e. faithful discharge of the functions, both Union and States have to follow Constitutional principles and not to encroach in the field reserved to other by the Constitution. B

54Copy pinpoint54. The principle of federalism as adopted in the constitution of India are well settled as noticed above. The submission, which needs to be answered in the present case is as to whether the federal principles as ingrained in the Constitution are in any manner sacrificed in the present case, i.e., by nominations made by Central Government without concurrence of the Government of Union Territory of Puducherry. Article 239A by which creation of local Legislatures or Council of Ministers or both for certain Union Territories was provided by the Constitution (Fourteenth Amendment) Act, 1962 empowering the Parliament by law, to create for the Union Territory of Puducherry, a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory, or a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law. The Constitution, thus, by Article 239A has empowered the Parliament to create Legislature for the Union Territory by law with such constitution, powers and functions as may be specified in the law. E Thus, it is the Constitution itself, which is empowering Parliament to provide by law for Constitution of Union Territory. Further, the Legislature as a body contemplated by Article 239A is a body, whether elected or partly nominated and partly elected. Thus, the Constitution provision itself contemplate creation of Legislature whether elected or partly F nominated and partly elected. When the Constitution itself empowers the Parliament to frame law to create a body, which may be partly nominated and partly elected and Section 3 of the Act, 1963, which provide for thirty seats to be filled up by persons chosen by direct election and three seats by nominations made by the Central Government, we fail to see that how the law made by Parliament or nominations made by G Central Government breaches the principles of federalism. The Constitution of Legislative body for Union Territory being entrusted to the Parliament by Constitution and there being no indication in the Constitutional provision or provisions of the Act, 1963 that said nomination has to be made with concurrence of Government of Union Territory of H Puducherry, we fail to see any substance in the argument of Shri Kapil

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 735 [ASHOK BHUSHAN, J.]

Sibal that by nominations made by Central Government, federal principles or principle of cooperative federalism has been violated. The concept of federalism itself envisages distribution of power between Union and States. It is further to be noticed that Union Territories are not States. These Union Territories, ordinarily, belong to the Union (i.e. the Central Government) and therefore they are called ‘Union Territories’. That is why they are governed under the administrative control of the President of India. That is the clear purport behind Article 239. However, to a limited extent, the power of the Union is diluted with respect to Puducherry vide Article 239A. At the same time, this constitutional provision, i.e. Article 239A. With regard to the Union Territory of Puducherry itself envisages the constitution of Legislative Council partly by nomination and partly by election. Further, specific authority to nominate in the Legislative Council has been conferred by law i.e. under Section 3 to the Central Government. Thus no breach of federal principles are made out and the submission on the basis of breach of federal principles in nomination by the Central Government is unfounded. D Issue No.4 and 5

55Copy pinpoint55. Both the issues being interdependent are being taken together. The expression “Constitutional convention” has been coined by Professor A.V. Dicey. In 1885, in his introduction to the study of the “Law of the Constitution”, in Chapter dealing with nature of conventions of E Constitution, Professor Dicey States:- “…………The conventions of the constitution are in short rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown, whether these powers are exercised by the King himself or by the F Ministry…………………..”

56Copy pinpoint56. Elaborating further Prof. Dicey States:- “……………………The result follows, that the conventions of the constitution, looked at as a whole, are customs, or understandings, as to the mode in which the several members of G the sovereign legislative body, which, as it will be remembered, is the “Queen in Parliament,” should each exercise their discretionary authority, whether it be termed the prerogative of the Crown or the privileges of Parliament. Since, however, by far the most numerous and important of our constitutional understandings refer H

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A at bottom to the exercise of the prerogative, it will conduce to brevity and clearness if we treat the conventions of the constitution, as rules or customs determining the mode in which the discretionary power of the executive, or in technical language the prerogative, ought (i.e. is expected by the nation) to be employed.”

57Copy pinpoint57. Professor Dicey in his treatment of conventions of the Constitution has held that conventions of the Constitution constitutes customs, practices, maxims, and precepts which are not enforced or recognised by the Courts, make up a body not of laws, but of constitutional or political ethics. The Dicey’s statement that Constitutional conventions are not a body of laws but constitutional or political ethics was subject to debate and discussion. Sir Ivor Jennings in his treatise “The Law and the Constitution” noticed the distinction between laws and conventions as made by Professor Dicey, but opined that distinction appears to be plain and unambiguous, it is by no means free from difficulty.

58Copy pinpoint58. Professor Dicey’s statement that the convention is not a binding rule was departed with by Sir Kenneth Wheare in “Modern Constitutions”, who wrote:- “By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution.” E

59Copy pinpoint59. Sir Ivor Jennings in his treatise has elaborately dealt the conventions of the Constitution while explaining the purpose of the convention, he states:- “The short explanation of the constitutional conventions is that F they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men…………………..”

60Copy pinpoint60. How the conventions are to be established was also explained by Sir Ivor Jennings in following words:- G “It is clear, in the first place, that mere practice is insufficient. The fact that an authority has always behaved in a certain way is no warrant for saying that it ought to behave in that way. But if the authority itself and those connected with it believe that they ought to do so, then the convention does exist. This is the ordinary H

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 737 [ASHOK BHUSHAN, J.]

rule applied to customary law. Practice alone is not enough. It A must be normative………………….”

61Copy pinpoint61. Further, he states that:- “………………………….For neither precedents nor dicta are conclusive. Something more must be added. As in the creation of law, the creation of a convention must be due to the reason of the thing because it accords with the prevailing political philosophy. It helps to make the democratic system operate; it enables the machinery of State to run more smoothly; and if it were not there friction would result. Thus, if a convention continues because it is desirable in the circumstances of the constitution, it must be created for the same reason…………………….”

62Copy pinpoint62. The test to find out as to whether a practice or precedent has become convention, Sir Ivor Jennings lays down following tests:- “……………..We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it. And then, as we have seen, the convention may be broken with impunity.”

63Copy pinpoint63. The above three tests laid down by Sir Ivor Jennings has been approved by a Constitution Bench of this Court in Supreme Court Advocates-On-Record Association and Others Vs. Union of India, (1993) 4 SCC 441 (Para 346). The Constituent Assembly while drafting the Constitution of India was well aware of the British convention. Initially on 17.07.1947 Hon’ble Sardar Vallabhbhai Patel while moving Clause 14 stated that the Governor shall be generally guided by the conventions of responsible, Government as set out in Schedule. A Schedule was contemplated to be framed according to the traditions of responsible G Government. It is useful to notice what was said by Hon’ble Sardar Vallabhbhai Patel: “The Hon’ble Sardar Vallabhbhai Patel : Sir, I move that: “In the appointment of his ministers; and his relations with them, the Governor shall be generally guided by the conventions of H

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A responsible, Government as set out in Schedule.....; but the validity of anything done by the Governor shall not be called in question on the ground that it was done otherwise than in accordance with these conventions.” Now a Schedule according to the traditions of responsible B Government will be framed and put in. This also is a non- controversial thing and I move the proposition for the acceptance of the House.”

64Copy pinpoint64. Although Schedule IIIA was contemplated codifying convention but at the later stage it was decided to drop codifying the convenient. C The reasons for not codifying the convention was elaborated by Shri. T.T. Krishnamachari in Constituent Assembly debate on 11.10.1949. Schedule IIIA which was contemplated to be inserted by way of amendment was not moved. Similarly, Schedule IV which was to describe relations of the President and the Governor viz-a-viz the Ministers was also moved to be deleted. On the questioning of deletion of the Schedule, D Dr. B.R. Ambedkar asked Shri Krishnamachari to explain.Shri T.T. Krishnamachari while explaining stated following: “Shri T.T. Krishnamachari: ....Therefore, we have decided to drop Schedule IIIB which we proposed as an amendment and also Schedule IV which finds a place in the Draft Constitution, E because it is felt to be entirely unnecessary and superfluous, to give such direction in the Constitution which really should arise out of conventions that grow up from time to time, and the President and the Governors in their respective spheres will be guided by those conventions....”

65Copy pinpoint65. The above debates in the Constituent Assembly clearly indicate that Constitutional conventions were very much in the contemplation during the debates in the Constituent Assembly. Conventions were expected to grow from time to time and the President and Governors in their respective spheres were to be guided by those conventions.

66Copy pinpoint66. The American jurisprudence also recognises convention including the constitutional conventions. John Alexander Jameson in ‘A Treatise on Constitutional Conventions’ while explaining the constitutional convention states:

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 739 [ASHOK BHUSHAN, J.]

“as its name implies, constitutional; not simply as having for its A object the framing or amending of Constitutions, but as being within, rather than without, the pale of the fundamental law; as ancillary and subservient and not hostile and paramount to it. The species of Convention sustains an official relation to the state, considered as a political organization. It is charged with a definite, and not a B discretionary and indeterminate, function.”

67Copy pinpoint67. Leonid Sirota in his Article ‘Towards a Jurisprudence of Constitutional Conventions’ defines constitutional convention, as: “those primary constitutional rules, limiting the powers of the several organs of government in a polity and governing the relations among them, which are not found in constitutional or ordinary statutes or the common law, and which reflect the ‘constitutional theory’ or political values of the day.”

68Copy pinpoint68. The constitutional conventions are born and recognised in working of the Constitution. The purpose and object of constitutional convention is to ensure that the legal framework of the Constitution is operated in accordance with constitutional values and constitutional morality. The constitutional conventions always aims to achieve higher values and objectives enshrined in the Constitution. The conventions are not static but can change with the change in constitutional values and constitutional interpretations. No constitutional convention can be recognised or implemented which runs contrary to the expressed constitutional provisions or contrary to the underlined constitutional objectives and aims which Constitution sought to achieve.

69Copy pinpoint69. There have been several pronouncements by this Court where the Constitutional conventions were referred to and relied. In U.N.R. F Rao vs. Smt. Indira Gandhi, (1971) 2 SCC 63, this Court while interpreting Article 75(3) held that while interpreting the Constitution the conventions prevalent at the time when Constitution was formed, have to be kept in mind. In interpreting Article 75(3), this Court took support from the conventions followed in United Kingdom and other countries. G In paragraphs 3 and 11 following was held: “3………It seems to us that a very narrow point arises on the facts of the present case. The House of the People was dissolved by the President on December 27, 1970. The respondent was the Prime Minister before the dissolution. Is H

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A there anything in the Constitution, and in particular in Article 75(3), which renders her carrying on as Prime Minister contrary to the Constitution? It was said that we must interpret Article 75(3) according to its own terms regardless of the conventions that prevail in the United Kingdom. If the words of an Article are clear, notwithstanding any relevant convention, effect will no doubt be given to the words. But it must be remembered that we are interpreting a Constitution and not an Act of Parliament, a Constitution which establishes a Parliamentary system of Government with a Cabinet. In trying to understand one may well keep in mind the conventions prevalent at the time the Constitution was framed.” “11. We are grateful to the learned Attorney-General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. D We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one, and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.” E

70Copy pinpoint70. The most elaborate consideration of Constitutional convention was undertaken by the Constitution Bench of this Court in Supreme Court Advocates-on-record Association and others vs. Union of India, (1993) 4 SCC 441, Justice Kuldip Singh in his judgment has elaborately considered the Constitutional convention. This Court held that conventions are found in all established Constitutions and soon develop even in the newest. In paragraphs 340 and 341 following was laid down: “340. The written Constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions which grow with the passage of time. Conventions are vital insofar as they fill up the gaps in the Constitution itself, help solve problems of interpretation, and allow for the future development of the constitutional framework. Whatever the nature of the H Constitution, a great deal may be left unsaid in legal rules

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 741 [ASHOK BHUSHAN, J.]

allowing enormous discretion to the constitutional A functionaries. Conventions regulate the exercise of that discretion. A power which, juridically, is conferred upon a person or body of persons may be transferred, guided, or canalised by the operation of the conventional rule. K.C. Wheare in his book Modern Constitutions (1967 Edn.) B elaborates such a rule as under: “What often happens is that powers granted in a Constitution are indeed exercised but that, while they are in law exercised by those to whom they are granted, they are in practice exercised by some other person or body of persons. Convention, in short, transfers powers granted in a Constitution from one person to another.”

341. The primary role of conventions is to regulate the exercise of discretion — presumably to guard against the irresponsible abuse of powers. Colin R. Munro in his book Studies in Constitutional Law (1987 Edn.) has summed up the field of operation of the conventions in the following words: “Some of the most important conventions, therefore, are, as Dicey said, concerned with ‘the discretionary powers of the Crown’ and how they should be exercised. But it is not only in connection with executive government and legislature-executive relations that we find such rules and practices in operation. They may be found in other spheres of constitutional activity too; for example, in relations between the Houses of Parliament and in the workings of each House, in the legislative process, in judicial administration and judicial behaviour, in the civil service, in local government, and in the relations with other members of the Commonwealth.””

71Copy pinpoint71. This Court held that every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention. On the requirements for establishing the existence of a convention, this Court quoted with approval the test laid down by Sir W. Ivor Jennings in ‘The Law and the Constitution’. In paragraphs 345 and 346 following was laid down: H

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A “345. Every act by a constitutional authority is a ‘precedent’ in the sense of an example which may or may not be followed in subsequent similar cases, but a long series of precedents all pointing in the same direction is very good evidence of a convention.

B 346. The requirements for establishing the existence of a convention have been succinctly laid down by Sir W. Ivor Jennings in The Law and the Constitution, Fifth Edn., (1959) as under: “We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.””

72Copy pinpoint72. This Court after referring to several treatises on the constitutional law held that the constitutional functionaries have to follow the same as a binding precedent. In paragraphs 351 and 353 following was held: E “351. It is not necessary for us to delve into this subject any more. We agree that a convention while it is a convention is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become law. When customary rules are recognised and enforced by courts as law, there is no reason why a convention cannot be crystallized into a law and become enforceable. “Conventions can become law also by judicial recognition” stated K.C. Wheare in Modern Constitution (1966 Edn.). It is no doubt correct that the existence of a particular convention is to be established by evidence on the basis of historical events and expert factual submissions. But once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent then there is no justification to deny such a convention the status of law. H

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 743 [ASHOK BHUSHAN, J.]

353. We are of the view that there is no distinction between the “constitutional law” and an established “constitutional convention” and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

73Copy pinpoint73. This Court in the above case has clearly held that existence of a particular convention is to be established by historical and factual evidence and for establishing the existence of convention the test laid down by Sir Ivor Jennings was also approved and applied in the following words in paragraph 357: C

“357. We now proceed to consider whether an established constitutional convention can be read in Articles 124(2) and 217(1) of the Constitution of India to the effect that in the matter of appointment of the Judges of the High Courts and Supreme Court, the opinion of the judiciary expressed through D the Chief Justice of India is primal and binding. For that purpose we adopt the test for the existence of a convention, laid down by Sir Ivor Jennings, based on three questions: (a) What are the precedents? (b) Did the actors in the precedents believe that they were bound by a rule?, and (c) Is there a E reason for the rule?”

74Copy pinpoint74. We now proceed to apply the tests for establishing a convention in the facts of the present case. The submission of Shri Kapil Sibal, as noted above, is that on six prior occasions members were nominated to the Puducherry Legislative Assembly after consultation with elected F Government of Puducherry. He has referred to nominations made in the year 1985, 1990, 1996, 2006 and 2011. With regard to year 2001, it has been submitted that when Lt. Governor unilaterally forwarded the names of the members, upon objection from the then Chief Minister, the proceedings were dropped and proposed list was referred back to the Administrator for lack of consultation. G

75Copy pinpoint75. Learned counsel appearing for the Union of India has replied the aforesaid submission. In the short note submitted on behalf of the Union of India, details regarding nominations made on the earlier occasions have been explained. Learned counsel for the Union of India has also produced the original files of the Central Government relating to the H

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A aforesaid nominations as was orally directed on 20.11.2018. It relates to the nominations made on earlier occasions, original records duly flagged has been submitted by the Union of India. The details submitted by the Union of India are in the following tabular form: DETAILS REGARDING NOMINATIONS MADE ON B EARLIER OCCASIONS Centre Union Remarks Territory 1985 Congress Congress File not traceable 1990 Congress DMK On the recommendations of LG FLAG 1 FLAG 1A 1995 Congress Congress CM directly recommended names to FLAG 2 C the Home Minister out of which only FLAG 2A one name was accepted. The other names were taken from request made by President, Puducherry Pradesh Congress Committee and another recommendation/ order of PMO. However, the said notifications were D cancelled by a later notification. 1997 DMK Out of 3 MLA’s, two on the FLAG 3 recommendation of LG and one on the FLAG 3A recommendation of CM FLAG 3B 2001 NDA Congress NO CM recommendation. Persons FLAG 4 recommended by LG were holding FLAG 4A office of profit and hence nominations FLAG 4B E not done. FLAG 4C 2005 UPA Congress All 3 MLA’s nominated on the FLAG 5 recommendation of CM & LG FLAG 5A FLAG 5B FLAG 5C

2007 UPA Congress All 3 MLA’s nominated on the FLAG 6 F recommendation of CM and LG FLAG 6A FLAG 6B 2011 UPA NR Congress Recommendation sent by LG & CM. FLAG 7 However, nominations not done. FLAG 7A FLAG 7B 2014 UPA NR Congress All 3 MLA’s nominated on the FLAG 8 recommendation of CM and LG FLAG 8A FLAG 8B G 2017 NDA Congress No recommendations received either FLAG 8C from LG or CM

76Copy pinpoint76. The above details indicate that in the year 1990, 1997, 2005, 2007 and 2014 nominations were made on the recommendations of Chief Minister/LG. Original records fully support the statement made in the above Chart. The position of nomination is different in the year 1995, 2001 and 2011 which needs to be specifically noted.

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 745 [ASHOK BHUSHAN, J.]

77Copy pinpoint77. In the year 1995, Chief Minister of the Pondicherry suggested three names for nominations whereas President, Puducherry Pradesh Congress Committee also suggested three different names. The Prime Minister had approved three names which consists one name suggested by Chief Minister, one name suggested by President, Puducherry Pradesh Congress Committee and one name of its own. Notification B was issued on 26.07.1995. A decision was subsequently taken to cancel the notification by the Home Minister on 12.08.1995. No further nominations were made in the said year.

78Copy pinpoint78. Now we come to year 2001. In the year 2001, Lieutenant Governor had forwarded names of 10 persons who had sought nominations as members of the Legislative Assembly. The Chief Minister, C Pondicherry had sent representation that the Lt. Governor did not consult him in the matter of proposing nominations. The issue surfaced in the said year as to whether the consultation of Chief Minister is necessary before nomination by the Central Government. The Home Minister by his order dated 08.08.2001 directed for obtaining legal advise. The Joint D Secretary and Legal Adviser submitted a note dated 21.09.2001 in which in paragraph 9 he opined: “9. In the light of the above, we are of the view that consultation with the Chief Minister of Pondicherry is not necessary before the Central Government nominates a person to be a member of E its Legislative Assembly under sub-section (3) of section 3 of the Act.” No final nominations could be made in the year 2001, 2002 and 2003.

79Copy pinpoint79. In the year 2011, although recommendations were sent by the F Lt. Governor and Chief Minister but no nominations were made. After the nominations made in the year 2014, the nominations have been made in the year 2017. A note dated 16.08.2016 was put up by Deputy Secretary that last nomination was made vide notification dated 02.09.2014 with the approval of Home Minister. The tenure of the G Assembly got over and new Assembly has been constituted, hence, new persons are to be appointed as Nominated Members. A perusal of the original records indicates that following four issues were outlined to be referred to the Attorney General for his advice:

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A “Issue No.1: Whether the Central Govt. has got absolute powers to appoint nominated Members to the Legislative Assembly of Puducherry? Issue No.2: Whether recommendation of LG, Puducherry is mandatory for consideration of names for B appointment of nominated Members to Puducherry Legislative Assembly by the Central Government ? Issue No.3: If the reply to Issue 1 is in affirmative, is there any role of the Chief Minister/Council of Ministers C to aid/advise the L.G. in the matter of making such recommendation, and if so, whether such aid and advice is binding upon the LG? Issue No.4: Keeping in view that there is no laid down procedure for such nomination, whether any D prescribed procedure is required to be followed or any specific condition to he imposed for making nominations?”

80Copy pinpoint80. The Attorney General on 15.11.2016 ordered the file “Be put up before the S.G.”. In the records there is detailed opinion given by the E Solicitor General on 29.11.2016. The Solicitor General with regard to Queries Nos.1,2,3 and 4 has opined: “5. In light of the aforementioned observations, the Queries raised are answered accordingly: i. Re:Query (I): Section 3(3) of the Government of Union F Territories Act, 1963 empowers Central Government to nominate members of the Legislative Assembly of Puducherry. Due to the operation of the word “may” in the said sub-section (3), the said power is to be exercised at the discretion of the Central Government. Hence, the Central Government may, or may not nominate three members to the Legislative G Assembly of Puducherry. However, it is relevant to note the members nominated in the manner envisaged in sub-section (3) of Section 3, must comply with the criteria of qualification of members to the Legislative Assembly enumerated in Section 4 of the Government of Union Territories Act, 1963 H

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and will be disqualified from being members of the Legislative A Assembly if found within Section 14 of the Government of Union Territories Act, 1963. ii. Re: Query (iii): The Central Government may in its wisdom consult the Administrator of Puducherry for consideration of names for appointment of nominated members to the B Puducherry Legislative Assembly especially when the Administrator is the nominee of the President. iii. Re: Query (iii): As stated in response to Query (ii), the recommendation of Administrator is not mandatory for consideration of names for appointment of nominated C members to the Puducherry Legislative Assembly but he/she may be consulted. Therefore, the role of Chief Minister Council of Minister to aid/advice the L.G. in the matter of making such recommendation does not arise. iv. Re: Query (iv): There is no prescribed procedure for the D Central Government to nominate three members to the Legislative Assembly. In the absence of such procedure, only the criteria for eligibility of a member laid down in Section 4 supra and the criteria for disqualification in Section 14 supra must be followed. E I have nothing further to add.”

81Copy pinpoint81. The file processed thereafter and Home Minister approved nominations of three persons to the Legislative Assembly, Puducherry on 20.06.2017. Draft notification was put up for approval on 23.06.2016.

82Copy pinpoint82. After having noticed the details of earlier nominations from F 1985 till 2017, now the question has to be answered as to whether from the sequence of the events as noticed above a Constitutional convention can be found established that nominations to the Legislative Assembly has to emanate from Chief Minister and can be made only with the concurrence of Chief Minister. We have noticed the test formulated by G Sir W. Ivor Jennings, as approved by this Court in Supreme Court Advocates-on-record Association case for establishing the existence of a convention. The relevant test, as noticed above, is again reproduced for ready reference:

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A “We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.”

83Copy pinpoint83. We will take up the three questions which are to be posed for deciding the question. First is “what are the precedents”. From the facts noticed above, although it is indicated that on several occasions on the recommendations of the Chief Minister/LG nominations were made by the Central Government, one relevant fact cannot be lost sight that recommendations made by CM/LG were readily accepted by the Central Government when the Government of Puducherry and the Central Government were of the same political party or were of allies. But the instance of year 1995 indicates that the recommendations made by Chief Minister were not followed and the nominations were made taking one name from Chief Minister’s recommendation, one name from Puducherry Pradesh Congress Committee and one name at the instance of the Central Government itself which nominations, however, subsequently were cancelled. In the year 2001 recommendations made by Chief Minister and LG were not accepted and no nominations were made. Similarly, in the year 2011 recommendations were made by Chief Minister and LG but no nominations were made. The above facts does not indicate uniform precedent in making nominations by the Central Government.

84Copy pinpoint84. Now, we come to the second test that is “did the actors in the precedents believed that they were bound by the rules”. The said test is not satisfied in the present case since more than one occasion there is material on records that the Central Government concluded that it is not bound by any rule that recommendations made by Chief Minister is to G be accepted by the Central Government or recommendations of Chief Minister is a condition precedent for exercising power under sub-section (3) of Section (3). No uniform procedure was followed nor the Central Government was under the belief that it is bound under the Rule to accept the recommendations made by the Chief Minister. It is true that there is no inhibition in the Central Government considering the H

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 749 [ASHOK BHUSHAN, J.]

recommendations sent by Chief Minister or LG or ask for suitable names from Chief Minister/LG or even suggests suitable names to the Chief Minister/LG but the fact that the Central Government can consider the recommendations or call for names is not akin to saying that there was any precedent or rule that unless the names are recommended by Chief Minister the Central Government is incapacitated in exercising its powers under sub-section (3) of Section 3 of the Act, 1963. The instance where the Central Government readily accepted recommendations made by LG or Chief Minister which emanated from the Government belonging to the same political party cannot be said to be action of then Central Government by virtue of any rule or convention rather the acts have to be treated as convenient exercise of power. The Central Government C can receive input from any quarter including the Chief Minister or LG for nomination.

85Copy pinpoint85. We may also refer to a judgment of this Court in Consumer Education and Research Society vs. Union of India and others, (2009) 9 SCC 648. One of the questions which came for consideration before this Court in the above case was violation of constitutional convention. In paragraph 37(ii) following question was noticed: “37(ii) Whether of as many as fifty-five offices relating to statutory bodies/non-statutory bodies, without referring the proposal to the Joint Committee would render the amendment a colourable legislation which violated any “constitutional convention” or Article 14 of the Constitution.”

86Copy pinpoint86. One of the contentions raised in the above case for assailing the Parliament (Prevention of Disqualification) Act, 1959 as amended by Act 31 of 2006 on the ground that for exempting particular office from a list of the office of profit, opinion of Joint Committee was not obtained on Act 31 of 2006. Repealing the contention following was held in paragraph 79: “79. This brings us to the last question. It is not in serious dispute that ever since Bhargava Committee submitted its report in November 1955, whenever an office of profit had to be exempted the matter used to be referred to a Joint Committee and its opinion whether the office should be exempted or not, was being taken and only when there was a recommendation that a particular office should be exempted, H

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A the Act was being amended to add that office to the list of exemptions. However, this was merely a parliamentary procedure and not a constitutional convention. Once Parliament is recognised as having the power to exempt from disqualification and to do so with retrospective effect, any alleged violation of any norm or traditional procedure cannot denude the power of Parliament to make a law. Nor can such law which is otherwise valid be described as unconstitutional merely because a procedure which was followed on a few occasions was not followed for the particular amendment.”

87Copy pinpoint87. The above judgment although was considering law made by the Parliament where in the present case we are concerned with the exercise of statutory power of the Central Government under sub-section (3) of Section 3 of the Act, 1963. In exercising the power under Section 3(3) no particular statutory procedure having been prescribed except the exercise of power as per Allocation of Business Rules and Transaction D of Business Rules, 1961 nominations made cannot be held to be vitiated on the submission that a particular procedure which was followed in some earlier cases was not followed.

88Copy pinpoint88. We do not find any established practice or convention to the fact that names for nominations to members of the Legislative Assembly E has to emanate from Chief Minister and can be made by the Central Government only after concurrence by Chief Minister. Both the issues are answered accordingly. Issue No. 6

89Copy pinpoint89. Shri Kapil Sibal submits that High Court in Paragraph No. 5 F has made certain recommendations. He has taken exception to the recommendation (iv), which is to the following effect:- “(iv) If the nominated MLA belongs to a political party on the date of nomination, it should be made clear that he shall become part of the legislature party of that political party. If there is no G legislature party in the house on the date of nomination, the nominated MLA/s shall constitute the legislature party of that political party. This is inter-alia owing to Explanation (b) to paragraph 2(1)(b) of Tenth Schedule to COI using the term ‘political party’ and not ‘legislature party’.” H

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 751 [ASHOK BHUSHAN, J.]

90Copy pinpoint90. We have perused the recommendations made in Paragraph A No. 5 of the judgment of Justice M. Sundar. The recommendations contained in paragraph No. 5 are nothing but recommendations to the Parliament to frame legislation on various aspects as enumerated in the recommendation. We have, in the foregoing discussions, concluded that it is the Central Government, which is under Section 3(3) empowered to B nominate members in the Legislative Assembly of Union Territory. The procedure and manner of taking decision by Central Government has already been regulated by Rules of Business framed by President in exercise of power under Article 77 of the Constitution of India. The Rules framed by President of India under Article 77(3) are applicable to all executive actions of the Central Government including Constitutional C and Statutory functions. In a Constitution Bench judgment of this Court in Samsher Singh Vs. State of Punjab and Another, (1974) 2 SCC 831 following was laid down in Paragraph No. 29:- “29. The executive power is generally described as the residue which does not fall within the legislative or judicial power. But D executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123 viz. ordinance making power and all powers and functions of the Governor except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under E Article 53(1) in one case and are executive powers of the State vested in the Governor under Article 154(1) in the other case. Clause (2) or clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under clause (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 F is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression “Business of the Government of India” in clause (3) of Article 77, and the expression “Business of the Government of the State” in clause (3) of Article 166 includes all executive business.” G

91Copy pinpoint91. There being already Rules of Business for carrying out the functions by the Central Government as per Article 77(3) of the Constitution of India, we fail to see any justification for making recommendation in paragraph No. 5 of the impugned judgment. H

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A Furthermore, the power is to be exercised by Central Government and it is to be presumed that Central Government, in exercise of its power, shall be guided by objective and rational considerations. We, however, hasten to add that there is no inhibition in Central government or the Legislature to make Rules or a Statute for more convenient transaction of business regarding nominations. Recommendations to the Legislature B and the high Constitution authorities are not made in a routine manner and we are of the view that High Court ought to have desisted for making any recommendations as contained in paragraph No. 5. The qualifications and disqualifications to become a member or continue to be a member of a Legislative Assembly have already been provided in the Act, 1963. C The qualifications and disqualifications for members of Legislative Assembly are provided in the Act, 1963 and other relevant Statutes, which are always to be kept in mind, while exercising any Statutory functions by the Central Government. We, thus, are of the view tat not only recommendation made in paragraph No. 5(iv) but all the recommendations made in Paragraph No. 5 deserves to be set aside. In D result, all recommendations as made in Paragraph No. 5 of the impugned judgment are set aside. Issue No.7

92Copy pinpoint92. One of the submissions, which has been pressed by Shri Kapil E Sibal is that even if the nominated members have right to vote in the proceeding of Assembly, they have no right to vote in two circumstances, i.e. budget and no confidence motion against the Government. Article 239A which provides for composition of Union Territory of Puducherry itself contemplated that the Parliament, may by law, create a body, (i) whether elected or; (ii) partly nominated and partly elected, to function as a Legislature for the Union Territory of Puducherry. Under Article 239, the Parliament has enacted the law, i.e., the Government of Union Territory Act, 1963, Section 3 of which provides that there shall be a Legislative Assembly for each Union territory. The total number of seats in the Legislative Assembly of the Union territory to be filled by persons chosen by direct election shall be thirty and the Central Government may nominate not more than three persons, to be members of the Legislative Assembly of the Union territory. Thus, the composition of Legislative Assembly itself consists of both persons chosen by direct election and persons nominated by the Central Government. Both elected and nominated persons are part of Legislative Assembly. The provisions H

K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 753 [ASHOK BHUSHAN, J.]

of Act, 1963 refers to members of the Legislative Assembly. Section 11 A provides that every member of the Legislative Assembly of the Union territory shall, before taking his seat, make and subscribe before the Administrator, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the First Schedule. The expression “every member of the Legislative Assembly B of the Union territory” shall include both elected and nominated members. It is further clarified by First Schedule of the Act, 1963, which contains the forms of oaths and affirmations, which expressly refers both elected and nominated members.

93Copy pinpoint93. Section 12 deals with the voting in the Assembly, which is as follows:- C

12. Voting in Assembly, power of Assembly to act notwithstanding vacancies and quorum. (1) Save as otherwise provided in this Act, all questions at any sitting of the Legislative Assembly of the Union territory shall be D determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. (2) The Speaker or person acting as such shall not vote in the first instance but shall have and exercise a casting vote in the case of an equality of votes. E (3) The Legislative Assembly of the Union territory shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislative Assembly of the Union territory shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat F or voted or otherwise took part in the proceedings. (4) The quorum to constitute a meeting of the Legislative Assembly of the Union territory shall be one-third of the total number of members of the Assembly. (5) If at any time during a meeting of the Legislative Assembly G of the Union territory there is no quorum, it shall be the duty of the Speaker, or person acting as such, either to adjourn the Assembly or to suspend the meeting until there is a quorum.

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94Copy pinpoint94. Section 12(1) provides that all questions at any sitting of the Legislative Assembly of the Union territory shall be determined by a majority of votes of the members present and voting other than the Speaker or person acting as such. When the expression used is votes of members present, obviously the members of the Assembly both elected and nominated person has to be counted, we cannot while interpreting B Section 12(1) exclude the nominated members. Further Section 12(1) uses the expression “all questions at any sitting of the Legislative Assembly”, the expression “all questions” shall include all matters, which are to be decided in any sitting of the Legislative Assembly. The Statutory provision does not give indication that nominated members have no right to vote on budget and no confidence motion against the Government. To accept the submission of Shri Sibal shall be adding words to provision of Section 12, which are clear and express. Further, sub-section(1) provides that in the voting majority of the votes of the members present and voting, the speaker shall not be a person, who shall vote. When provision of sub-section(1) clearly provides no voting by Speaker, if intention of Legislature was to exclude the votes of nominated members, the said expression was bound to find included in the sub-section(1). The conclusion is inescapable that all members including the nominated members are entitled to vote in the sitting of the Legislative Assembly and the submission of Shri Sibal that nominated members cannot exercise vote in budget and no confidence motion has to be rejected. Other provisions like sub-section (4) of Section 12, which provides for quorum to constitute a meeting of the Legislative Assembly used the word “one- third of the total number of members of the Assembly”, members of the Assembly obviously will include both elected and nominated members. Thus, there is no basis for submission raised by Shri Sibal that nominated members cannot exercise their vote in budget and no confidence motion against the Government. The issue is answered accordingly.

95Copy pinpoint95. In view of the foregoing discussions, we uphold the impugned judgment of the Madras High Court for the above reasons except directions in paragraph 5 which are hereby deleted. In the result, the appeals are dismissed subject to the deletion of recommendations made in paragraph 5 of the judgment. Parties shall bear their own costs.

Nidhi Jain Appeals dismissed.