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29 H (1999) 6 SCC 667

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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: C

84. Democracy is a form of government where the people rule. Aristotle viewed democracy as a form of government in which the supreme powers are in the hands of freemen and where people form a majority in an elected sovereign government to exercise some role in decision making. Thomas Jefferson defined democracy as a “government by its citizens in mass, acting directly and personally, according to rules established by the majority”. Abraham Lincoln defined democracy as “a government of the people, by the people, and for the people”. The Black’s Law Dictionary defines democracy as:- “That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people.”30 F

85. The Preamble to our Constitution, at the outset, proclaims that India is a sovereign democratic republic. The citizens of India are the sovereign and participate in the process of governance by exercising their virtuous right to vote under the system of universal adult suffrage. The citizens elect their representatives and send them to the Parliament G and State Legislatures for enacting laws and shaping policies at the Union and State level respectively which are reflective of the popular will of the collective.

30 Black’s Law Dictionary 6th Edition Pg.432 H

98 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 86. The parliamentary form of democracy as envisaged by the Constitution has at its very base the power bestowed upon people to vote and make the legislature accountable for their functioning to the people. If the legislature fails to transform the popular will of the people into policies and laws, the people in a democracy like ours have the power to elect new representatives by exercise of their vote. The political equality makes people aware of their right in unison and there is a consistent endeavour to achieve the same.

87. In this context, we may turn to a passage from Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others31 wherein Krishna Iyer, J. quoted with approval the statement of Sir Winston Churchill which is to the following effect:- “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

88. Thus, democratic set up has its limbs firmly entrenched in the ability of the people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, yet it is a right that lies at the heart of democratic form of government. The right to vote is the most cherished value of democracy as it inculcates in the people a sense of belonging. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra32, the learned Judges, after referring to Mohinder Singh Gill’s case, stated that nothing can diminish the overwhelming importance of the cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen in choosing his representatives for governing the country.

89. The aforesaid situation warrants for reciprocative functionalism by thought, action and conduct. It requires the elected representatives to uphold the faith which the collective have reposed in them. Any undue interference amounts to betrayal of the faith of the collective in fulfilment of their aspirations of democratic self-governance. In Kesavananda 31 AIR 1978 SC 851 32 H AIR 1980 SC 1362

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Bharati (supra), it has been observed that the two basic postulates of democracy are faith in human reason and faith in human nature and that there is no higher faith than faith in democratic process. The Court further stated that democracy on adult suffrage is a great experiment with its roots in the faith in the common man. P. Jaganmohan Reddy, J., in his opinion, stated that the republican and democratic form of government is a part of the basic structure of the Constitution and the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India and the democratic character of our polity. Further, he stated that the framers of the Constitution adopted a sovereign democratic republic to secure for the citizens of India the objectives of justice, liberty and equality as set out in the Preamble to our Constitution.

90. Dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain33 ruled that ‘democracy’ as an essential feature of the Constitution is unassailable. The said principle has been reiterated in T.N. Seshan, CEC of India v. Union of India and others.34 D and Kuldip Nayar v. Union of India others.35. When it is conceived that democracy is a part of the basic structure of the Constitution, the essential value of democracy has to be condignly understood and that is why we have referred to certain precedents. The correctness or fallacy of the interpretation of Articles 239 to 239AB would depend upon our appreciation of democratic form of government in a mature body polity. E

91. The Court in Manoj Narula (supra), while delineating the concept of democracy, stated that democracy has been best defined as the Government of the People, by the People and for the People, which expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. Further, it is stated that democracy in India is a product of rule of law which aspires to establish an egalitarian social order and that it is not only a political philosophy but also an embodiment of constitutional philosophy. Democracy being a cherished constitutional 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

33 AIR 1975 SC 2299 34 (1995) 4 SCC 611 35 AIR 2006 SC 3127 H

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A 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 B 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 C 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 abstraction. D It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependant upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation.” E [Emphasis supplied]

92. Now, we shall proceed to discuss the concept of federalism in the context of the Constitution of India. Encyclopedia Britannica defines federalism as:- “Federalism, mode of political organization that unites separate states or other polities within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity. Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties.”

H

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93. In common parlance, federalism is a type of governance in A which the political power is divided into various units. These units are the Centre/Union, States and Municipalities. Traditional jurists like Prof. K.C. Wheare lay emphasis on the independent functioning of different governing units and, thus, define federalism as a method of dividing powers so that the general/central and regional governments are each within a B sphere co-ordinate and independent. As per Prof. Wheare “the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is that Government federal?”36

94. However, modern jurists lay emphasis on the idea of C interdependence and define federalism as a form of government in which there is division of powers between one general/central and several regional authorities, each within its sphere interdependent and co-ordinate with each other.

95. The framers of our Constitution, during debates in the D Constituent Assembly on the draft Constitution, held elaborate discussions on whether to adopt a unitary system of government or federal system of government. During the Constituent Assembly debates, Shri T.T. Krishnamachari said:- “...Are we framing a unitary Constitution? Is this Constitution E 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 36 Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33 H

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A 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 circumscribed by orders handed down for execution by the superior unit. The important words are ‘must not be completely circumscribed’, which envisages some powers of the B State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere.”

96. In this context, Dr. B.R. Ambedkar, speaking on the floor of the Constituent Assembly, said:- “There is only one point of Constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution.” H

GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 103 & ANOTHER [DIPAK MISRA, CJI]

97. The Court in In re: Under Article 143, Constitution of India, A (Special Reference No. 1 of 1964)37 observed that the essential characteristic of federalism is the distribution of limited executive, legislative and judicial 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 B 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 C 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, Justice Jaswant Singh and for himself) observed that the Constitution is not of a federal character where separate, independent and sovereign States could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of this reason that sometimes it has been characterized as quasi-federal in nature.

99. In Shamsher Singh (supra), this Court held that our founding fathers accepted the parliamentary system of quasi-federalism while rejecting the substance of Presidential style of Executive. Dr. Ambedkar stated on the floor of the Constituent Assembly that the Constitution is “both unitary as well as federal according to the requirement of time and circumstances”. He further stated that the Centre would work for the common good and for the general interest of the country as a whole while the States would work for the local interest. He also refuted the plea for exclusive autonomy of the States.

37 AIR 1965 SC 745 H

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A 100. In S.R. Bommai v. Union of India38, the Court considered the nature of federalism under the Constitution of India. A.M. Ahmadi, J. (as the learned Judge then was) observed:- “In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.” D 101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh, J.) opined that the States are constitutionally recognised units and not mere convenient administrative divisions as both the Union and the States have sprung from the provisions of the Constitution. After quoting extensively from H.M. Seervai’s commentary - Constitutional Law of E India, he expressed thus:- “99. The above discussion thus shows 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. 38 (1994) 3 SCC 1 H

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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 its consequences to the governance in the State concerned. So long as the States are not mere administrative units but in their own right constitutional potentates with the same paraphernalia as the Union, and with independent Legislature and the Executive constituted by the same process as the Union, whatever the bias in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labeled unitary or quasi-federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1).”

102. K. Ramaswami, J., in paragraphs 247 and 248 of his separate judgment, observed:- D “247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a E permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.

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A 248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.”

103. B.P. Jeevan Reddy, J., writing a separate opinion (for himself and on behalf of S.C. Agrawal, J.), concluded in paragraph 276 thus:- “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, 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 relations under the Indian Constitution” (Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible nor is it necessary for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis-a-vis the States...”

104. In ITC Ltd. v. Agricultural Produce Market Committee39, the Court observed that the Constitution of India deserves to be 39 (2002) 9 SCC 23 H

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interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves federalism while also upholding the central supremacy as contemplated by some of its articles.

105. In Kuldip Nayar (supra), the Court, while dealing with the question of state domicile for elections to the Rajya Sabha, opined that it is true that the federal principle is dominant in our Constitution and the said principle is one of its basic features but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. Some of the provisions that can be referred to in this context include the power of the Union to deal with extraordinary situations such as during emergency and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority; the power of the Parliament to provide for the creation and regulation of All India Services common to the Union and the States in case there is a resolution of the Council of States supported by not less than two-thirds majority; the existence of only one citizenship, namely, the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States.

106. From the foregoing discussion, it is clear as day that both the concepts, namely, 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 H

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A 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 vision of diversity in unity and the perception of plurality in B eventual cohesiveness is embedded in the final outcome of the desire to achieve the accomplished goal through constitutional process. The meeting of the diversity in unity without losing identity is a remarkable synthesis that the Constitution conceives without even permitting the slightest contrivance or adroitness. C I. Collaborative federalism:

108. 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.

109. 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.

110. Corwin, an eminent thinker, in the context of the United States, coined the term ‘Collaborative Federalism’ and defined it as:- G “...the National Government and the States are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government.”40 40 Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950) H

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111. The U.S. Supreme Court in Carmichael v. S. Coal & Coke A Co.41 propounded that a State Unemployment Statute had not been coerced by the adoption of the Social Security Act and the United States and the State of Alabama are not alien governments but they coexist within the same territory. Unemployment within it is their common concern. The U.S. Supreme Court further observed that the two statutes embody a cooperative legislative effort by the State and National governments for carrying out a public 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’42.

113. Later, Cameron and Simeon described “collaborative federalism,” as:- D

“[T]he 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.”43 E

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 and approach for the governments of the Union and the States may sometimes be different but the ultimate goal and objective always remain the same and the governments at different levels should not lose sight of the ultimate objective. This constitutional objective as enshrined in the Constitution should be the guiding star to them to 41 301 U.S. 495, 525 - 26 (1937) 42 Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1. 43 Cameron, D. and Simeon, R. 2002. Intergovernmental relations in Canada: The emergence of Collaborative federalism. Publius, 32(2):49-72 H

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A move on the path of harmonious co-existence and interdependence. They are the basic tenets of collaborative federalism to sustain the strength of constitutional functionalism in a Welfare State.

115. In a Welfare State, there is a great necessity of collaborative federalism. Martin Painter, a leading Australian proponent of collaborative federalism, lays more stress on negotiations for achieving common goals amongst different levels of governments and, thus, says:- “The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.” 44

116. In the Australian context, Prof. Nicholas Aroney in his book45 has said:- “Rather than displaying a strictly defined distribution of responsibility between two or more “co-ordinate” levels of government, federal systems tend in practice to resemble something more like a “marble cake”, in which governmental functions are shared between various governmental actors within the context of an ever-shifting set of parameters shaped by processes of negotiation, compromise and, at times, cooperation.” E 117. Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their 44 Martin Painter, Collaborative federalism: Economic reform in Australia in the 1990s. 45 Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution, 2009 H

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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 book46, 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 the cooperation of the States secured through the process of discussion, persuasion and compromises. All governments have to appreciate the essential point that they are not independent but interdependent, that they should act not at cross- purposes but in union for the maximisation of the common good.”

119. In State of Rajasthan and others v. Union of India47, the Court took cognizance of the concept of cooperative federalism as perceived by G. Austin and A.H Birch when it observed:- “Mr. Austin thought that our system, if it could be called federal, could be described as “cooperative federalism.” This term was used by another author, Mr. A.H. Birch (see: Federalism, Finance and Social Legislation in Canada, Australia and the United States p. 305), to describe a system in which: “...the practice of administrative cooperation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments and the fact that the general governments, by the use of 46 M.P. Jain, Some aspects of Indian federalism, 1968 47 (1978) 1 SCR 1 H

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A conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions”...”

120. We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities B referred to hereinabove pertain to Union of India and 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 Article 239AA and other articles. J. Pragmatic federalism: C 121. In this context, we may also deal with an ancillary issue, 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 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, 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, F 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 G 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 H

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Court in many a decision. We may state that these theoretical concepts are to be viewed from the practical perspective. In S.R. Bommai’s case, while interpreting Article 356, the Court observed:- “That is why the Constitution of India is differently described, more appropriately as ‘quasi-federal’ because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.” C

123. Thus, the need is to understand the thrust and implication of a provision. To put it differently, the acceptance of ‘pragmatic federalism’ is the need of the day. One aspect needs to be clarified. The acceptance of the said principle should not be viewed as a simplistic phenomenon entrenched in innocence. On the contrary, it would require disciplined wisdom on the part of those who are required to make it meaningful. D And, the meaning, in essentiality, shall rest on pragmatic orientation.

124. The expression ‘pragmatic federalism’ in the Indian context has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein he observes:- E “It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of Governmental powers of State and Central Governments, is overlaid by strongly ‘unitary’ features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government F the executive power of appointing certain Constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Government in emergency situations, vide Articles 352 to 360 of the Constitution.” G

125. The concept of pragmatic federalism is self explanatory. It is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability. H

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A 126. It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve 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. B 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 C 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 D 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, matters have remained with the Centre. This, however, is not unconditional as the Constitution has E provided for a federal balance between the powers of the Centre and the States so that there is no unwarranted or uncalled for interference by the Centre which would entail encroachment by the Centre into the powers of the States. The need is for federal balance which requires mutual respect and deference to actualize the workability of a constitutional provision. F

128. Sawer’s ‘federal principles’ reiterate this concept of federal balance when he states:- “power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions G are intended to be as free as possible to pursue their own local interest.”

129. The interest of the States inherent in a federal form of government gains more importance in a democratic form of government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular State/region to the H

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governance of the Union, that too, with respect to matters which can be A best legislated at the State level goes against the very basic tenet of a democracy. The principle of federal balance which is entrenched in our Constitution has been reiterated on several instances holding that the Centre and the States must act within their own spheres. In In re: Under Article 143, Constitution of India, (Special Reference No. 1 B of 1964) (supra), the Constitution Bench observed:- “...the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other’. 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 is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers.” [Underlining is ours]

130. In UCO Bank v. Dipak Debbarma48, the Court has made several observations on the federal character 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 F 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 ofRuma Pal, J. inITC Ltd. vs. Agricultural Produce Market Committee and Ors., wherein G 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):

48 (2017) 2 SCC 585 H

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A “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, the courts should not adopt an approach, an interpretation, which B has the effect of or tends to have the effect of whittling down the powers reserved to the States.””

131. Thus, the role of the Court in ensuring the federal balance, as mandated by the Constitution, assumes great importance. It is so as the Court is the final arbiter and defender of the Constitution. C L. Interpretation of the Constitution:

132. We have already said that both the parties have projected their view in extremes. The issue deserves to be adjudged regard being had to the language employed in the various articles in Chapter VIII, the context and various constitutional concepts. If the construction sought to be placed by the appellant is accepted, such an acceptation would confer a status on NCT of Delhi which the Parliament in exercise of its constituent power has not conceived. The respondents, per contra, highlight that by the constitutional amendment, introduction of the 1991 Act and the Rules of Business, the Lieutenant Governor functions as the administrator in the truest sense as the contemporaneous documents leading to the amendment would show. They would submit that though Delhi has been conferred a special status, yet that does not bring any new incarnation. The submission, as we perceive, destroys the fundamental marrows of the conception, namely, special status. It, in fact, adorns the Lieutenant Governor with certain attributes and seeks to convey that NCT of Delhi remains where it was. The approach in extremes is to be adjudged and the adjudication, as it seems to us, would depend upon the concepts we have already adumbrated and further we have to carefully analyse the principles of the interpretation of the Constitution. G

133. The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the H

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citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere 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 C 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 was understood at the time of framing of the Constitution unmindful of the circumstances at the time when it was subsequently interpreted or whether the constitutional provisions should be interpreted in the light of contemporaneous needs, experiences and knowledge. In other words, should it be historical interpretation or contemporaneous interpretation.49 The theory of historical perspective found its votary in Chief Justice Taney who categorically stated in Dred Scott v Sanford50 that as long as the F Constitution continues to exist in the present form, it speaks not only in the same words but also with the same meaning and intent with which it spoke when it came from the hands of the framers. Similar observations have been made by Justice Sutherland51. Propagating a different angle,

49 G Bodenheimer, Edgar, Jurispurudence, (Universal Law Publishing Co. Pvt. Ltd, 50 60 U.S. (19 How.) 393 (1857) 51 Home 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 when written is to rob that instrument of the essential element... H

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A Chief Justice Marshall in McCulloch v Maryland52 has observed that the American Constitution is intended to serve for ages to come and it should be adopted to various crises of human affairs. Justice Hughes in State v. Superior Court53 observed that the constitutional provisions should be interpreted to meet and cover the changing conditions of social life and economic life. Justice Holmes observed that the meaning of the B constitutional terms is to be gleaned from their origin and the line of their growth.54 Cardozo once stated:- “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”55 C It would be interesting to note that Justice Brandeis tried to draw a distinction between interpretation and application of constitutional provisions56. The Constitution makers in their wisdom must have reasonably envisaged the future needs and attempted at durable framework of the Constitution. They must not have made the Constitution so rigid as to affect the future. There is a difference between modification D and subversion of the provisions of the Constitution through interpretation. The view is that there is sufficient elasticity but fundamental changes are not envisaged by interpretation. Thus, there is a possibility of reading into the provisions certain regulations or amplifications which are not directly dealt with. There is yet another angle that the libertarian’s E absolutism principle never allows for restrictions to be read into the liberties which are not already mentioned in the Constitution.57

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. F Poudyal v. Union of India and others58:- “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 52 17 US (4Wheat) 316 (1819) G 53 State v. Superior Court (1944) at 547 54 Gompers v. US 233 (1914) 55 Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921 56 Burnett v Coronado Oil and Gas Co., 285 US (1932) 57 The activist Libertarians like Justice Black and Douglas never allowed reading such restrictions. See American Communication Association v Douds 339 US (1950) and dissenting in Poulos v New Hamshire, 345 US(1953) H 58 AIR 1993 SC 1804

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themselves is vital and the constitutional issues are not solved by A 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 work59, B 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 that best explain either particular constitutional provisions or the constitutional text as a whole; arguments based on judicial precedent; and value arguments that assert claims about justice and social policy.”60

137. Comparing the task of interpretation of statute to that of interpretation of musical notes, Judge Hand in the case of Helvering v. Gregory61 stated:- “The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.” E

138. Jerome N. Frank62, highlighting the corresponding duty of the public in allowing discretion to the Judges, has observed:- “a “wise composer” expects a performer to transcend literal meaning in interpreting his score; a wise public should allow a judge to do the same.” F

139. The room for discretion while interpreting constitutional provisions allows freedom to the Judges to come up with a formula which is in consonance with the constitutional precepts while simultaneously resolving the conflict in issue. The following observations made in S.R. Bommai’s case,throw light on the aforesaid perception:- G 59 Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional Interpreta- tion”, Harvard Law Review Association, 1987 60 100 HARV. L. REV. 1189, 1189-90 (1987).10 61 69 F. 2d 809, 810-II (1934) 62 Jerome N. Frank, “Words and Music: Some remarks on Statutory Interpretation,” Columbia Law Review 47 (1947): 1259-1367 H

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A “Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.”

140. It is imperative that judges must remain alive to the idea that the Constitution was never intended to be a rigid and inflexible document and the concepts contained therein are to evolve over time as per the needs and demands of the situation. Although the rules of statutory interpretation can serve as a guide, yet the constitutional courts should not, for the sake of strict compliance to these principles, forget that when the controversy in question arises out of a constitutional provision, their primary responsibility is to work out a solution.

141. In Supreme Court Advocates-on-Record Association D (supra), this Court, acknowledging the sui generis nature of the Constitution, observed thus:- “The constitutional provisions cannot be cut down by technical construction rather it has to be given liberal and meaningful 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 Inc63, 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 H 63

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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 growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts ‘not to read the provisions of the Constitution like a last will and testament lest it become one’.”

143. The Supreme Court of Canadaalso reiterated this view when it held that the meaning of ‘unreasonable’ cannot be determined by recourse to a dictionary or, for that matter, by reference to the rules of statutory construction. The Court pointed out that the task of expounding a Constitution is crucially different from that of construing a statute, for a statute defines present rights and obligations and is easily enacted and as easily repealed whereas a Constitution is drafted with an eye to the future and its function is to provide a continuing framework for the legitimate exercise of governmental power. Further, the Court observed that once enacted, constitutional provisions cannot easily be repealed or amended and hence, it must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers and the judiciary, being the guardian of the E Constitution, must bear these considerations in mind while interpreting it. The Court further stated that the judges must take heed to the warning of Professor Paul Freund when he said that the role of the judges is “not to read the provisions of the Constitution like a last will and testament, lest it becomes one”. F

144. This idea had pervaded the legal system way back in 1930 when the Privy Council through Lord Sankey LC in Edwards v Attorney General for Canada64 had observed that the Constitution must be approached as “a living tree capable of growth and expansion within its natural limits”. G 65

145. Professor Pierre-André Côté in his book has highlighted the action based approach by stating that it must be kept in mind that the 64 [1930] AC 124, 136 65 Pierre-André Côté, The Interpretation of Legislation in Canada 2nd Ed (Cowansville. Quebec:Les Editions Yvon Blais. Inc. 1992) H

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A end goal of the process of legal interpretation is resolution of conflicts and issues. It would be apt to reproduce his words:- “Legal interpretation goes beyond the mere quest for historical truth. The judge, in particular, does not interpret a statute solely for the intellectual pleasure of reviving the thoughts that prevailed B 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: C 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 give effect to its true intention. The Judicial Committee in Attorney General of Trinidad and Tobago v. Whiteman66 has observed:- “The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit…”

147. In S.R. Chaudhuri v. State of Punjab and others67, a three- Judge Bench has opined that constitutional provisions are required to be understood and interpreted with an object-oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The G Court, while holding that the Constituent Assembly debates can be taken aid of, observed the following:- “The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true 66 [1991] 2 AC 240, 247 H 67 (2001) 7 SCC 126

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context in which the same are used and the purpose which they seek to achieve.” (Emphasis is ours)

148. The Court further highlighted that the Constitution is not just a document in solemn form but a living framework for the government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit.

149. We have duly noted in the earlier part of the judgment that the judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation. That is the obligation cast on the judges. In Ashok Kumar Gupta and another v. State of U.P. and others68, the Court observed that while interpreting the Constitution, it must be borne in mind that words of width are both a framework of concepts and means to the goals in the Preamble and concepts may keep changing to expand and elongate the rights. The Court further held that constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth and, therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. Finally, the Court pointed out:- E “To construe law one must enter into its spirit, its setting and history.”

150. In Indian Medical Association v. Union of India and others69, referring to the pronouncement in M. Nagaraj v. Union of India70, the Court said:- F “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 G embodying a set of rules for the passing hour”.” (Emphasis is ours) 68 (1997) 5 SCC 201 69 (2011) 7 SCC 179 70 (2006) 8 SCC 202 H

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A 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 Health71 ruled:- B “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 European ideas: see, however, a classic early statement of the C purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL). In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context. ...” D [Emphasis is supplied]

152. Emphasizing on the importance of determining the purpose and object of a provision, Learned Hand, J. in Cabell v. Markham72 enunciated:- “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

153. The components of purposive interpretation have been elucidated by Former President of the Supreme Court of Israel, Aharon Barak, who states:- G “Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once 71 (2003) UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL) 72 148 F 2d 737 (2d Cir 1945) H

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the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.”73

154. As per the observations made by Aharon Barak, judges interpret a Constitution according to its purpose which comprises of the objectives, values and principles that the constitutional text is designed to actualize. Categorizing this purpose into objective and subjective purpose, he states74:- “Subjective component is the goals, values, and principles that the constituent assembly sought to achieve through it, at the time it enacted the constitution. It is the original intent of the founding fathers. Purposive interpretation translates such intent into a presumption about the subjective purpose, that is, that the ultimate purpose of the text is to achieve the (abstract) 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.” E [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.” 73 Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 - Law 74 ibid H

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A 156. He has further pointed out that both the subjective as well as the objective purposes have their own significance in the interpretation of constitutional provisions:- “The intent of the constitutional founders (abstract subjective intent” remains important. We need the past to understand the present. Subjective purpose confers historical depth, honoring the past and its importance. In purposive interpretation, it takes the form of presumption of purpose that applies immediately, throughout the process of interpreting a constitution. It is not, however, decisive. Its weight is substantial immediately following the founding, but as time elapses, its influence diminishes. It cannot freeze the future development of the constitutional provision. Although the roots of the constitutional provision are in the past, its purpose is determined by the needs of the present, in order to solve problems in the future. In a clash between subjective and objective purposes, the objective purpose of a constitution prevails. D It prevails even when it is possible to prove subjective purpose through reliable, certain, and clear evidence. Subjective purpose remains relevant, however, in resolving contradictions between conflicting objective purposes.”75 N. Constitutional culture and pragmatism: E 157. “Constitutional culture” is inherent in the concepts where words are transformed into concrete consequences. It is an interlocking system of practices, institutional arrangements, norms and habits of thought that determine what questions we ask, what arguments we credit, how we process disputes and how we resolve those disputes. 76

158. The aforestated definition of the term ‘constitutional culture’ F is to be perceived as set of norms and practices that breathe life into the words of the great document. It is the conceptual normative spirit that transforms the Constitution into a dynamic document. It is the constitutional culture that constantly enables the words to keep in stride with the rapid and swift changes occurring in the society. G 159. The responsibility of fostering a constitutional culture falls on the shoulders of the State and the populace. The allegiance to promoting a constitutional culture stems from the crying need of the sovereign to 75 ibid 76 Andrew M. Siegel, Constitutional Theory, Constitutional Culture, 18 U.PA.J. Const. H L. 1067 (2016)

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ensure that the democratic nature of our society remains undaunted and the fundamental tenets of the Constitution rest on strong platform.

160. The 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 E Brennan observed:- “We current Justices read the Constitution in the only way that we can: as Twentieth-Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.”77 77 William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratifi- cation, in interpreting The Constitution: The Debate Over Oreiginal Intent at 23, 27 (Jack N. Rakove ed., 1990) H

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A 164. In Supreme Court Advocates-on-Record-Association and others v. Union of India78, the Court, while emphasizing on the aspect of constitutional culture that governs the functioning of any constitutional body, has observed:- “The functioning of any constitutional body is only disciplined by B appropriate legislation. Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one.” C 165. Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches:- “The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. xxx xxx xxx It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.”

166. In The State of Karnataka and another v. Shri Ranganatha Reddy and another79, 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:- 78 (2016) 5 SCC 1 79 AIR 1978 SC 215 H

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“When cryptic phrases expressive of constitutional culture and A 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?” B 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 University College of London on February 29, 1984 on the subject “Law Lords, Reactionaries or Reformers?” which read as follows:- “Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves “this case requires a policy decision - what is the right policy decision?”The answer is, and I E hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.”” [Emphasis is ours]

168. The Court also observed:- “Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to H

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A the issues under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely B delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner. C Since this is a constitutional issue it cannot be resolved by clinches founded on fictional mythological stories or misdirected philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires D 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 E and another80, 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- F 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 G 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 freedom”

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170. The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while engaging oneself with the process of interpretation of a constitutional provision. O. Interpretation of Articles 239 and 239A:

171. To settle the controversy at hand, it is imperative that we dig deep and perform a meticulous analysis of Articles 239, 239A, 239AA and 239AB all of which fall in Part VIII of the Constitution bearing the heading, ‘The Union Territories’. For this purpose, let us reproduce the aforesaid Articles one by one and carry out the indispensable and crucial task of interpreting them.

172. Article 239 provides for the administration of Union Territories. It reads as follows:- D “239. Administration of Union Territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. E (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.” (Emphasis is ours) F

173. The said Article was brought into existence by the Constitution (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing the words ‘shall’, makes it abundantly clear that every Union territory is mandatorily to be administered by the President through an administrator unless otherwise provided by Parliament in the form of a law. Further, G clause (1) of Article 239 also stipulates that the said administrator shall be appointed by the President with such designation as he may specify.

174. Clause (2) thereafter, being a non-obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an administrator H

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A of a Union 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. B

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 C 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 D India and others v. Surinder S81, 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 appointed by him or through the Government of a neighbouring E State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of Clause (2) of Article 239 (amended), the F President can appoint the Governor of a State as an Administrator of an adjoining Union territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it G clear that prior to 1.11.1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President through an Administrator appointed by him with such designation as he may specify. In terms of Clause 81 (2013) 1 SCC 403 H

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2 of Article 239 (amended), the President is empowered to appoint A the Governor of State as the Administrator to an adjoining Union Territory and once appointed, the Governor, in his capacity as Administrator, has to act independently of the Council of Ministers of the State of which he is the Governor.”

177. Now, let us proceed to scan Article 239A of the Constitution B which deals with the creation of local legislatures or Council of Ministers or both for certain Union Territories. It reads 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 C 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. D (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.” E

178. The aforesaid Article was brought into force by the Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 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 F 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 G 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. H

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A 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 Delhi as it is solely governed by the provisions of Article 239A. B P. Interpretation of Article 239AA of the Constitution

181. We shall now advert to the interpretation of Articles 239AA and 239AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation C and a thorough analysis to unearth and discover the true intention of the Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said articles read as follows:- “239AA. Special provisions with respect to Delhi.—(1) As D 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 thereof appointed under article 239 shall be designated as the Lieutenant Governor. E (2) (a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.

F (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament. G (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 H

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326 and 329 to “appropriate Legislature” shall be deemed to be a 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 B 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 C 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 D 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: E

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: F 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 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 G 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

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A 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 for decision B and act according to the decision given thereon by 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 in the matter as he deems necessary. C (5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. D (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. (7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto. E (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 F 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. G 239AB. Provision in case of failure of constitutional machinery.—If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—

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(a) that a situation has arisen in which the administration of the A 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:- D “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 to go into the various issues connected with the administration of Delhi and to recommend measures inter E alia for the streamlining of the administrative set-up. 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 and also the debates in the Constituent F 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 G 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. H

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A 2. The Bill seeks to give effect to the above proposals.” The aforesaid, as we perceive, really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239AA and other articles that are pertinent to understand the said B provision. Q. Status of NCT of Delhi:

183. The first proposition that has been built centering around the conferment of special status on NCT of Delhi is that it is a State for all purposes except the bar created pertaining to certain legislative matters. C The bedrock has been structured by placing heavy reliance on the purpose of the constitutional amendment, the constitutional assurance to the inhabitants of Delhi and the language employed in sub-article 3(a) of Article 239AA of the Constitution. We have already referred to the historical background and also the report submitted by the Balakrishnan D Committee.

184. Mr. Maninder Singh, learned Additional Solicitor General, would contend that the aid and assistance of the Committee Report can be taken into consideration to interpret the constitutional provisions and also the statutory provisions of the 1991 Act. He has referred to certain E authorities for the said purpose. We shall refer to the said authorities at a later stage. First, we think 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 F (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 G 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. H

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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 State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture — lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the head of State. A Parliamentary-style Republic like ours could not have conceptualised its self-liquidation by this process. On the contrary, democratic capital-formation to strengthen the people’s rights can be achieved only through invigoration of the mechanism of Cabinet-House-Elections. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well- known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to H