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

A (xx) The Transaction of Business Rules, 1993 stipulates the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the B Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AA. C (xxi) The scheme that has been conceptualized by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD Act, 1991 and the corresponding TBR, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the D Council of Ministers. The terminology “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof. (xxii) The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts. (xxiii) Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the H

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Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.

278Copy pinpoint278. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench. D DR. D. Y. CHANDRACHUD, J. INDEX A) Introduction B) Constitutional Morality E C) Constitutional Interpretation D) Part VIII of The Constitution: The Union Territories E) Cabinet Form of Government - Collective Responsibility F

- Aid and Advice F) The Nature of Executive Power G) Constitutional History of the NCT G - The Government of Part C States Act, 1951 - The Government of Union Territories Act, 1963 - The Delhi Administration Act, 1966 - The Balakrishnan Committee H

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A H) NCT: A Special Class among Union Territories? I) The Government of National Capital Territory of Delhi Act, 1991 J) The Transaction of Business Rules, 1993 B K) Precedents - Literal Interpretation - Relationship between Centre and Union Territories - Decision in NDMC C - General Clauses Act - “Insofar as any such matter is applicable to Union territories” L) Construction of the proviso to Article 239AA(4) M) Conclusions D A Introduction

1. A batch of petitions in the Delhi High Court addressed unresolved issues between the Lieutenant Governor of the National Capital Territory and its Council of Ministers headed by the Chief Minister. The judgment of the Delhi High Court, delivered on 4 August 2016, travelled to this E Court. When the Civil Appeals were heard, a Bench consisting of Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in an order dated 15 February 2017 was of the opinion that the appeals should be heard by a Constitution Bench as substantial questions of law about the interpretation of Article 239AA of the Constitution are involved.

F 2. This batch of cases is about the status of Delhi, after the Sixty- ninth constitutional amendment1, but more is at stake. These cases involve vital questions about democratic governance and the role of institutions in fulfilling constitutional values. The Constitution guarantees to every individual the freedom to adopt a way of life in which liberty, dignity and autonomy form the core. The Constitution pursues a vision of fulfilling G these values through a democratic polity. The disputes which led to these cases tell us how crucial institutions are to the realization of democracy. It is through them that the aspirations of a democratic way of life, based on the rule of law, are fulfilled. Liberty, dignity and autonomy are 1 The Constitution (Sixty Ninth Amendment) Act, 1891 H

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constraining influences on the power of the state. Fundamental human A freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern. In a society such as ours, which is marked by B a plurality of cultures, a diversity of tradition, an intricate web of social identity and a clatter of ideologies, institutional governance to be robust must accommodate each one of them. Criticism and dissent form the heart of democratic functioning. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision making positions within them. Hence, these cases are as much about interpreting the Constitution as they are about the role of institutions in the structure of democratic governance and the frailties of those who must answer the concerns of citizens.

3. In the first of a series of articles in the New York Times of 14 December 2017, David Brooks laments events which occurred in various parts of the world, casting a shadow on democracy. Liberal democracy seemed to triumph with the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa. Many of those aspirations are continuously under challenge. The foundation for addressing the aspirations of a democratic spring are reflected in Brooks’article titled – ironically – “the Glory of Democracy”. Drawing from Thomas Mann’s “The Coming Victory of Democracy” (1938), he has this to say: F “Democracy, Mann continues, is the only system built on respect for the infinite dignity of each individual man and woman, on each person’s moral striving for freedom, justice and truth. It would be a great error to think of and teach democracy as a procedural or political system, or as the principle of majority rule. G It is a “spiritual and moral possession.” It is not just rules; it is a way of life. It encourages everybody to make the best of their capacities – holds that we have a moral responsibility to do so. It encourages the artist to seek beauty, the neighbour to seek H

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A community, the psychologist to seek perception, the scientist to seek truth. Monarchies produce great paintings, but democracy teaches citizens to put their art into action, to take their creative impulses and build a world around them. “Democracy is thought; but it is thought related to life and action.” Democratic citizens are not just dreaming; they are thinkers who sit on the town council. He quotes the philosopher Bergson’s dictum: “Act as men of thought, think as men of action.”2 While we have to interpret the Constitution in deciding this reference, it is well to remind ourselves that how citizens respond to their statesmen has a powerful role in giving meaning to the fine print of law. B Constitutional Morality

4. The Constitution was adopted in an atmosphere of expectation and idealism. The members of the Constituent Assembly had led the constitutional project with a commitment to the future of a nascent nation. “India’s founding fathers and mothers”, Granville Austin observes, “established in the Constitution both the nation’s ideals and the institutions and processes for achieving them”.3 These ideals were “national unity and integrity and a democratic and equitable society”4. The Constitution E was designed “to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice”5. All this was to be achieved through a democratic spirit using constitutional and democratic institutions.6

5. Democracy is not limited to electing governments. It generates F aspirations and inspires passions. Democracy is based on “the recognition that there is no natural source of authority that can exercise power over individuals”.7 When India attained independence, it faced a major 2 David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017), available at https://www.nytimes.com/2017/12/14/opinion/democracy-thomas- mann.html G 3 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford Univer- sity Press (1966), page xi 4 Ibid 5 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press (2008), at page 15 6 Granville Austin (Supra Note 3) 7 Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages H 35-36

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dilemma. Democracy as an ideal had developed in the course of the nationalist struggle against colonial rule. Democratic political institutions were still to develop, at any rate fully: “Democracy emerged in India out of a confrontation with a power imposed from outside rather than an engagement with the contradictions inherent in Indian society … In the West, the democratic and industrial revolutions emerged together, reinforcing each other and slowly and steadily transforming the whole of society. The economic and social preconditions for the success of democracy grew along with, and sometimes in advance of, the political institutions of democracy. In India, the political argument for democracy was adopted by the leaders of the nationalist movement from their colonial rulers and adapted to their immediate objective which was freedom from colonial rule. The building of new political institutions took second place, and the creation of the economic and social conditions for the successful operation of those institutions, such as education, health care, and other social services, lagged well behind.”8

6. The framers of the Constitution were aware of the challenges which the newly instituted democracy could face. In his address to the Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”.9 To E tackle these challenges, the Constitution envisaged the existence of a responsible and representative government. Provisions regarding administration of democracy were incorporated, in detail, into the Constitution by the members of the Constituent Assembly. Dr Ambedkar made an impassioned plea that the core values of Indian democracy, to be protected and sustained, ought to be guided by the presence of constitutional morality.

7. While moving the Draft Constitution in the Constituent Assembly on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote: “By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the 8 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012) 9 Constituent Assembly Debates, Vol. 7 (4th November 1948) 10 Ibid H

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A habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.” B Dr Ambedkar made it clear that constitutional morality was to be cultivated and learned. Constitutional morality was not a “natural sentiment” and its diffusion could not be presumed. While highlighting that the diffusion of constitutional morality is indispensable for “the peaceful working of the democratic constitution”, Dr Ambedkar C observed that the form of the Constitution had to be in harmony with the form of its administration: “One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, D without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.” (emphasis added)

8. If the moral values of our Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values. In order to truly understand what constitutional morality reflects, it is necessary to answer “what it is that the Constitution is trying to say” and to identify “the broadest possible range… to fix the meaning of the text”11. Bhargava’s work titled “Politics and Ethics of the Indian Constitution”12 focuses on the necessity to identify the moral values of the Constitution: “There is… a pressing need to excavate the moral values embedded in the Constitution, to bring out their connections, and to identify the coherent or not-so-coherent ethical worldviews within it. It is not implausible to believe that these values are simply out there, holding their breath and waiting to be discovered. The Constitution is a socially constructed object, and therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It 11 Rajiv Bhagava (Supra note 5), at page 6 12 Ibid H

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is high time we identified these interpretations and debated their A moral adequacy.”13

9. Constitutional morality does not mean only allegiance to the substantive provisions and principles of the Constitution. It signifies a constitutional culture which each individual in a democracy must imbibe. Pratap Bhanu Mehta identifies certain features of constitutional morality? B chief amongst them being liberal values? which governed the making of India’s Constitution and created expectations from the polity: “The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability C to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.”14 (Emphasis supplied) D One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise.”15 It envisages partnership and coordination between various institutions created by the Constitution. Mehta has underlined the importance of constitutional partnerships by referring to the working of the Constituent Assembly: “The ability to work with difference was augmented by another quality that is rarer still: the ability to acknowledge true value. This may be attributed to the sheer intellectualism of so many of the members. Their collective philosophical depth, historical knowledge, legal and forensic acumen and sheer command over language is enviable. It ensured that the grounds of discussion remained intellectual. Also remarkable was their ability to acknowledge greatness in others. It was this quality that allowed Nehru and Patel, despite deep differences in outlook and temperament, to acknowledge each other. Their statesmanship was to not let their differences produce a debilitating polarization, 13 Ibid, at page 9 14 Pratap Bhanu Mehta, “What is constitutional morality?”, Seminar (2010), available at http://www.india-seminar.com/2010/615 pratap bhanu mehta.htm. 15 Ibid H

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A one that could have wrecked India. They combined loyalty and frankness.”16

10. Constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices. Frohnen and Carey formulate the demands of the concept thus: B “Constitutional moralities… can be understood as anticipated norms of behavior or even duties primarily on the part of individuals within our constitutional institutions. We use the term morality and refer to constitutional morality with regard to these norms or duties principally because of the purpose they serve; they can be viewed as imposing an obligation on individuals and institutions to ensure that the constitutional system operates in a coherent way, consistent with its basic principles and objectives.”17

11. Another major feature of constitutional morality is that it provides in a Constitution the basic rules which prevent institutions from turning tyrannical. It warns against the fallibility of individuals in a democracy, checks state power and the tyranny of the majority. Constitutional morality balances popular morality and acts as a threshold against an upsurge in mob rule: “It is important not to forget that human beings are fallible, that they sometimes forget what is good for them in the long run, and that they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a framework of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They make some dimensions of the political process beyond the challenge of ordinary politics.”18

G 12. No explanation of constitutional morality will be complete without understanding the uniquely revolutionary character of the 16 Ibid 17 Bruce P. Frohnen and George W. Carey, “Constitutional Morality and the Rule of Law”, Journal of Law and Politics (2011), Vol. 26, at page 498 18 Rajiv Bhagava (Supra note 5), at pages 14-15 H

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Constitution itself. Granville Austin has referred to the Indian Constitution A as a “social revolutionary” document, the provisions of which are aimed at furthering the goals of social revolution.19 Austin described the main features of the Indian Constitution as follows: “It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. Democracy, representative government, personal liberty, equality before law, were revolutionary for the society. Social-economic equitableness as expressed in the Directive Principles of State Policy was equally revolutionary. So were the Constitution’s articles allowing abolishing untouchability and those allowing for compensatory discrimination in education and employment for disadvantaged citizens.”20 (Emphasis supplied) The core of the commitment to social revolution, Austin stated, lies in the Fundamental Rights and in the Directive Principles of State Policy, which are the “conscience of the Constitution” and connect India’s future, present, and past.21 Constitutional morality requires the existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain.

13. Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self-renewal”22. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly. Andre Beteille in “Democracy and its Institutions” (2012) speaks of the significance of constitutional morality: F “To be effective, constitutional laws have to rest on a substratum of constitutional morality… In the absence of constitutional morality, the operation of a Constitution, no matter how carefully written, tends to become arbitrary, erratic, and capricious. It is not possible in a democratic order to insulate completely the domain G of law from that of politics. A Constitution such as ours is expected 19 Granville Austing (Supra note 3), at pages 63 20 Ibid, at page xiii 21 Ibid, at page 63. 22 Pratap Bhanu Mehta (Supra note 14) H

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A to provide guidance on what should be regulated by the impersonal rule of law and what may be settled by the competition for power among parties, among factions, and among political leaders. It is here that the significance of constitutional morality lies. Without some infusion of constitutional morality among legislators, judges, lawyers, ministers, civil servants, writers, and public intellectuals, B the Constitution becomes a plaything of power brokers.”23

14. Constitutional morality underscores the ethics of politics in a country. It gives politics the identity to succeed. In his last address to the Constituent Assembly on November 25, 1949, Dr Ambedkar discussed the importance of the role of the people and political parties in a C constitutional democracy: “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. D The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their E politics.”24 He also invoked John Stuart Mill to caution the nascent Indian democracy of the perils of personifying institutions or laying down liberty “at the feet of even a great man, or to trust him with power which enables him to subvert their institutions”. In Dr Ambedkar’s words: F “[I]n India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and G to eventual dictatorship.”25 Institution building is thus a facet of constitutional morality. It envisages an institutional basis for political behaviour. It involves that the political 23 Andre Beteille, Democracy and its Institutions, Oxford University Press (2012) 24 Constituent Assembly Debates, Vol. 11 (25th November, 1949) H 25 Ibid

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parties and the political process address issues affecting the public at large. Constitutional morality reduces the gap between representation and legitimacy.26 Justice Dipak Misra (as the learned Chief Justice then was) held in Manoj Narula v Union of India27 that: “The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints”. It is only when political conflicts are regulated through negotiations and accommodation that the enforcement of constitutional principles can be achieved.

15. Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past fromtearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes: “Of necessity, constitutions are unfinished. What is explicit in the text rests on implicit understandings; what is stated rests on what is unstated.”28

16. Constitutional morality provides a principled understanding for unfolding the work of governance. It is a compass to hold in troubled waters. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. F Our expectations may be well ahead of reality. But a sense of constitutional morality, drawn from the values of that document, enables us to hold to account our institutions and those who preside over their destinies. Constitutional interpretation, therefore, must flow from constitutional morality. 26 G Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), at page 12 27 (2014) 9 SCC 1 28 Martin Lughlin, “The Silences of Constitutions”, International Journal of Constitutional Law (2019, In Press), available at https://www.jura,uni-freiburg de/de/ institute/rphil/freiburger vortraege/silences-of-constitutions-m-loughlin- manuskript.pdf H

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A C Constitutional Interpretation

17. The primary task before the Court here, as in other constitutional cases, is to interpret the Constitution. This reflects a truism. For, while deciding what the Constitution means, we must understand what it says. First and foremost, in understanding the text of the B Constitution, it must be borne in mind that the Constitution is not merely a legal document. The Constitution embodies a political vision of a plural democratic polity. This political vision combines with the values which the founding fathers infused to provide a just social compact in which individual aspirations for dignity and liberty would be achieved. Hence, any interpretation of the Constitution must be unabashed in accepting C the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The values which the Constitution as a political document incorporates, provide the foundation for understanding its text. It is in that sense that successive generations of judges have reminded themselves that it is, after all, a D Constitution that we are expounding. The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. Constitutional history embodies events which predate the adoption of the Constitution. E Constitutional history also incorporates our experiences in the unfolding of the Constitution over the past sixty eight years while confronting complex social and political problems. Words in a constitutional text have linkages with the provisions in which they appear. It is well to remember that each provision is linked to other segments of the document. It is only when they are placed in the wide canvas of constitutional values that a true understanding of the text can emerge. The principle that the text has to be deduced from context reflects the limitations in understanding the Constitution only as a legal document. To perceive the Constitution as a purely legal document would be an injustice to the aspirations of those who adopted it and a disservice to the experience of our society in grappling with its intractable problems. Justice HR Khanna in Kesavananda Bharati v State of Kerala29 (“Kesavananda”) held thus: “A Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A 29 H AIR (1973) SC 1461

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Constitution cannot be regarded as a mere legal document... A A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful.”

18. The second value which must be borne in mind is that the Constitution recognises the aspirations of popular sovereignty. As its Preamble tells us, the document was adopted by “We the People of India”. The Preamble sets forth at the outset the creation of a “sovereign... democratic, republic”. It is through the expression of the sovereignty of the people and on the cornerstone of a democratic and republican form of government that the Constitution seeks to achieve justice, liberty, equality and fraternity. The width of our constitutional aspirations finds abundant reflection in the plurality and diversity of the elements which it comprehends within justice, liberty, equality and fraternity. Justice D incorporates its social, economic, and political manifestations. Liberty incorporates freedom of thought, expression, belief, faith and worship. Equality is defined in its substantive sense to include equality of status and opportunity. Fraternity seeks to assure dignity to the individual while, at the same time, ensuring the unity and integrity of the nation. E

19. There are four abiding principles which are essential to understanding the content of the Constitution. The first is that as a political document, the Constitution is an expression of the sovereignty of the people. The second is that the Constitution seeks to achieve its vision of a political and social ordering on the basis of democracy. A democratic form of government recognises that sovereignty resides within the people. F Popular sovereignty can exist when democracy is meaningful. The third principle is that the Constitution adopts a republican form of government in which the powers of sovereignty are vested in the people and are exercised directly or through their elected representatives. The fourth, which is not the least in importance, is the secular ideology of the G Constitution. For, it is on the foundation of a secular order that freedom, liberty, dignity and equality to every citizen is achieved.

20. These principles, it is well to remind ourselves, are not just political exhortations. They constitute the essence and substance of the H

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A Constitution and provide the foundation for the fine print of governance. It is through the expression of popular sovereignty that the Constitution has provided an assurance for the enforcement of equality and of equal protection of the law. The four founding principles constitute the means of achieving accountability and amenability to the rule of law. The democratic method of governing the country is a value which is intrinsic to the Constitution. Democracy as a way of life is also instrumental in achieving fundamental freedoms which the Constitution assures to each individual. Each of the four principles has an inseparable connect. They provide the basis on which the Constitution has distributed legislative and executive power between the Union and the states. They provide the foundation for ensuring basic human freedoms in the realisation of dignity, liberty and autonomy. They embody the architecture for the governance of the nation. In many respects, the complexity of our Constitution is a reflection of the intricate cultural and social structures within Indian society. The Constitution has attempted to bring about an equilibrium in which a diversity of tradition, plurality of opinion and variations of culture can co-exist in one nation. To ignore the infinite variety which underlies our constitutional culture is to risk its cohesion. The integrity of the nation is founded on accepting and valuing co- existence. Constitutional doctrine must be evolved keeping in mind these principles.

E 21. Unlike many other constitutional texts in the democratic world, the Indian Constitution has lived through a multitude of amendments. In Puttaswamy30, this Court had held: “The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future.” The exercise of the amendatory power cannot be construed as a reflection of the deficiency of its original text, as much as it is a reflection of the felt need to create new institutions of governance, recognize new rights 30 (2017) 10 SCC 1 H

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and to impose restraints upon the assertion of majoritarian power. Over A time, the Constitution was amended to provide constitutional status to local self-governing bodies, such as the Panchayats in Part IX, the municipalities in Part IXA and co-operative societies in Part IXB. These structures of governance have been constitutionally entrenched to enhance participatory and representative democracy. In other B amendments, new rights have been expressly recognized such as the right to free and compulsory education for children between the ages of six and fourteen in Article 21A. As the nation gained sobering experiences about the excess of political power during the Emergency, the constituent power responded by introducing limitations (through the Forty Fourth Amendment) on the exercise of the emergency powers under Article C 352 and by circumscribing the power to override elected governments in the states under Article 356.

22. The basic structure doctrine was evolved by judicial interpretation in Kesavananda to ensure that the fundamentals of constitutional governance are not effaced by the exercise of the constituent power to amend the Constitution. The postulate of the doctrine is that there are values which are so fundamental and intrinsic to the democratic way of life, a republican form of government and to the preservation of basic human freedoms, that these must lie outside the power of legislative majorities to override by the exercise of constituent powers. The doctrine was a warning to “a fledgling democracy of the perils of brute majoritarianism”31. The basic structure doctrine and the power of judicial review have ensured (in the course of the previous thirty four years) the preservation of basic constitutional safeguards and the continuance of constitutional institutions accountable to the sovereignty of the people. The basic structure doctrine imposes a restraint on the exercise of the constituent power. Equally, it is necessary to remember that the exercise of the constituent power may in certain cases be regarded as enhancing the basic structure. The constituent power enhances the basic structure when it recognizes new sets of human freedoms, sets up new structures of representative governance in the constitutional text or imposes restraints on the power of the state to override popularly elected institutions. Secularism, which is inherent in the entire constitutional framework and flows from fundamental rights 31 Raju Ramchandran, “The Quest and the Questions”, Outlook (25 August, 2014), available at https://www.outlookindia.com/magazine/story/the-quest-and-the-ques- tions/291655 H

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A guaranteed in Part III, is a part of the basic structure of the Constitution.32 Secularism is based on the foundations of constitutional morality and reflects the idea of our democracy. The insertion of the word “Secular” into the Preamble of the Constitution, by the 42nd amendment, did not redefine the Constitution’s identity. The amendment formally recognized the bedrock of the constitutional scheme. The amendment solidified the B basic structure of the Constitution.

23. Democracy has been held, by a Constitution Bench of this Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic structure of our Constitution. The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating C a democratic form of governance to a constitutional status for the National Capital Territory. In interpreting such exercises of the constituent power which fortify the basic structure, the meaning of the constitutional text must be guided by the intent underlying such exercises of the constituent power. A nine-judge Bench of this Court in I.R. Coelho v State of D Tamil Nadu34 had held thus: “The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic E structure due regard be had to various decisions which led to expansion and development of the law. The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. F The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, G necessitating different independent centers of decision making.” (emphasis supplied) 32 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of India, (1994) 3 SCC 1 33 1992 SCC Supl. (2) 651 34 (2007) 2 SCC 1 H

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It is in this background that it would be necessary to turn to the provisions A of Part VIII of the Constitution. D Part VIII of The Constitution: The Union Territories

24. Part VIII of the Indian Constitution, prior to 1956, dealt with Part C of the First Schedule. Part VIII was amended by the Seventh Amendment to the Constitution in 1956. Simultaneously, the First Schedule B was amended by the Seventh Amendment (together with Article 1). In place of the Part A, B and C States, the Constitution now provides a division of the territory of the nation between the States and the Union Territories. While clause 1 of Article 1 stipulates that India is a Union of States, clause 2 incorporates the States and the Union Territories of the C First Schedule. The territory of India, as Clause 3 of Article 1 provides, comprises of : (i) The territories of the States; (ii) The Union territories; and D (iii) Territories which may be acquired.

25. Article 239 provides thus: “239. (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. (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.” Clause 1 of Article 239 has several elements, which are significant to understanding its content: (i) Clause 1, as its opening words indicate, is subject to Parliament providing “otherwise… by law”; G

(ii) Every Union territory is administered by the President; (iii) Administration of a Union territory by the President is to such extent as the President “thinks fit”; H

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A (iv) Administration by the President is through the office of an Administrator; and (v) The Administrator is appointed by the President with a designation as he will specify. Article 239A, which was inserted by the fourteenth amendment to the B Constitution in 1962, provides as follows: “239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.— (1) Parliament may by law create for the Union territory of 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, D or both with such constitution, powers and functions, in each case, as may be specified in the law. (2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any E provision which amends or has the effect of amending this Constitution.” Article 239A applies to the Union territory of Puducherry (Goa, Daman and Diu were excluded with effect from 1987 by the Goa, Daman and Diu Reorganisation Act, 1987). F

26. Article 239A is enabling. It enables Parliament to enact a law for the Union territory so as to create a legislature or a Council of Ministers or both. In creating a legislature, Parliament is left free to determine whether the legislative body should be entirely elected or should consist of a certain number of nominated legislators. Parliament, in its legislative G power, may decide either to create a legislature or a Council of Ministers. Whether to do so, in the first place, is left to its discretion. Whether one or both of such bodies should be created is also left to the legislative authority of Parliament. If it decides to enact a law, Parliament is empowered to specify the constitutional powers and functions of the H

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legislature and of the Council of Ministers. While the Constitution provides an enabling provision, the setting up of a legislature, the creation of a Council of Ministers and the ambit of their authority are to be governed by an ordinary law to be enacted by Parliament. Such a law, clause 2 clarifies, would not constitute an amendment of the Constitution under Article 368 even if it were to contain provisions which amend or have the effect of amending the Constitution. Creating democratic institutions for governing Union territories under Article 239A was left to the legislative will of Parliament.

27. In contrast to the provisions of Article 239A is the text which the Constitution has laid down to govern Delhi. The marginal note to Article 239AA provides that the Article makes “special provisions with respect to Delhi”. Article 239AA provides thus: “239AA. Special provisions with respect to Delhi.— (1) As from the date of commencement of the Constitution (Sixty- ninth Amendment) Act, 1991, the Union territory of Delhi D 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. (2) (a) There shall be a Legislative Assembly for the National E 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. (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. (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;

H

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A and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament. (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any B of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. C (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a D law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, E to the extent of the repugnancy, be void : Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory : Provided further that nothing in this sub-clause shall prevent F 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 than ten per cent. of the total number of members in the G Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion : Provided that in the case of difference of opinion between H

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the Lieutenant Governor and his Ministers on any matter, the A Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take B immediate action, to take such action or to give such direction in the matter as he deems necessary. (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. C

(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 D clauses and for all matters incidental or consequential thereto. (b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this E Constitution. (8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its F Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be.” Article 239AA is a product of the exercise of the constituent power, tracing its origins to the sixty ninth amendment which was brought into G force on 1 February 1992. Under clause 1, with the commencement of the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory of Delhi is called the National Capital Territory of Delhi. Its Administrator, who is appointed under Article 239, is designated as the Lieutenant Governor. The administrator appointed by the President under Article H

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A 239(1) is designated as the Lieutenant Governor for the National Capital Territory. The source of the power to appoint the Lieutenant Governor is traceable to Article 239(1).

28. Clause 2 of Article 239AA contains a constitutional mandate that there shall be a legislative assembly for the NCT. This is unlike B Article 239A which left it to the discretion of Parliament to create a legislature by enacting a law for the Union territories governed by that provision. Article 239AA imprints the legislative assembly for the NCT with a constitutional status. Its representative character is reflected in the mandate that the members of the legislative assembly shall be “chosen by direct election from territorial constituencies” in the NCT. The C necessity of direct election underlines the rule of participatory democracy and of the members of the legislative assembly being representatives of the people residing in the territorial constituencies comprised in the NCT. Parliament has been assigned the role of regulating through a law, the number of seats in the legislative assembly, reservation for the scheduled D castes, defining the division of the NCT into territorial constituencies and of elucidating the functioning of the assembly in all matters. The importance which the Constitution ascribes to the status of the legislative assembly is evinced by the adoption of the provisions of Articles 324 to 327 and 329 in relation to the NCT as they apply in the case of the legislative assembly of a state. These articles (which are contained in E Part XV of the Constitution) ascribe constitutional status to the Election Commission of India and assign to it the task of superintending, directing and controlling the conduct of all elections. Article 325 is a guarantee against discrimination based on religion, race, caste or sex. Article 326 embodies the principle of adult suffrage. Article 327 empowers Parliament F to enact a law in regard to the elections to the legislatures. Article 329 imposes a restraint on interference by courts in electoral matters. The Constitution has considered the institutional existence of a legislative assembly for Delhi to be a matter of such importance as to be elevated to a constitutional requirement in clause 2 of Article 239AA and to warrant the guarantee of free and fair elections which is enforced through the G constitutionally entrenched position of the Election Commission of India.

29. Clause 3 of Article 239 AA defines the legislative powers of the legislative assembly for the NCT. Sub clause (a) empowers the legislative assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent lists to the Seventh Schedule H

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of the Constitution. The ability of the legislative assembly is circumscribed A “insofar as any such matter is applicable to Union territories”. The legislative assembly can hence enact legislation in regard to the entries in the State and Concurrent lists to the extent to which they apply to a Union territory. Of equal significance is the exception which has been carved out : Entries 1, 2 and 18 of the State List (and Entries 64, 65 and B 66 insofar as they relate to Entries 1,2 and 18) lie outside the legislative powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the State List are thus: “1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).

2. Police (including railway and village police) subject to the provisions of entry 2A of List I.

18. Land, this is to say, rights in o over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; and improvement and agricultural loans; colonization.” The subjects of public order, police and land do not lie within the domain of the legislative assembly. Entries 64, 65 and 66 provide thus : E “64. Offences against laws with respect to any of the matters in this List.

65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. F

66. Fees in respect of any of the matters in this List, but not including fees taken in any court.” The legislative assembly is disabled from enacting laws governing the above entries (which deal with offences against laws referable to the State List, jurisdiction of courts and fees) insofar as they relate to public order, the police and land. This is a constitutional indication of the fact G that the NCT has been considered to be of specific importance from the perspective of the nation to exclude three important areas which have a vital bearing on its status as a national Capital. Apart from the exclusions, the over-arching importance of the regulatory power of Parliament is H

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A underlined by the conferment upon Parliament of legislative power over State as well as Concurrent List subjects in the Seventh Schedule. Unlike state legislative assemblies which wield legislative power exclusively over the State List, under the provisions of Article 246(3), the legislative assembly for NCT does not possess exclusive legislative competence over State List subjects. By a constitutional fiction, as if it were, Parliament B has legislative power over Concurrent as well as State List subjects in the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the legislative assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by thelegislative assembly. Hence, the provisions of clause 2 and clause 3 of Article 239AA indicate that while conferring a constitutional status upon the legislative assembly of NCT, the Constitution has circumscribed the ambit of its legislativePowers firstly, by carving out certain subjects from its competence (vesting them in Parliament) and secondly, by enabling Parliament to enact law on matters falling both in the State and Concurrent lists. Moreover, in the subjectswhich have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament. E E Cabinet Form of Government

30. Before deliberating upon the nature and extent of the executive power of the NCT, it is necessary to discuss the essential features of the cabinet form of government, which are of paramount importance in the current context. F Collective Responsibility

31. Collective responsibility is a cornerstone of the Westminster model. Initially developed35 as a constitutional convention in Britain between 1780 and 1832, it began to appear36 in text-books in the 1860s and 1870s. In 1867, Walter Bagehot, in his classic work titled “The English G Constitution”, called the “House of Commons” as “a real choosing body”, which decides the path that the nationwould follow.37 The consequence 35 AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd (1964), at page 131 36 Ibid, at page 136 37 Walter Bagehot, The English Constitution, 2nd Edition (1873), at page 118, available at H https://socialsciences,mcmaster,ca/econ/ugcm/3113/bagehot/constitution.pdf

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of such a systemic expectation in the British Parliamentary system, A Bagehot declared, was that the public can, “through Parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes”38. The responsibility of Ministers was set as their liability “to have all their public acts discussed in Parliament”39. The Cabinet was defined as “a collective body bound together by a common responsibility”.40 Later, Lord Salisbury formulated this common responsibility thus: “[F]or all that passes in a Cabinet, each Member of it who does not resign is absolutely and irretrievably responsible, and that he has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by one of his Colleagues... It is only on the principle that absolute responsibility is undertaken by every Member of a Cabinet who, after a decision is arrived at, remains a Member of it, that the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential conditions of Parliamentary responsibility established.”41 (Emphasis supplied) Ministers were liable to lose their offices, if they failed to retain the confidence of the House of Commons or the Parliament. In the 1880s, Dicey, “Law of the Constitution”, propounded that: E “[It] is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of F every servant of the Crown, and therefore, in effect of the Crown itself, is brought under the supremacy of the land. Behind parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.”42 G 38 Ibid, at page 34 39 Edward A. Freeman, The Growth of the English Constitution (1872) 40 Ibid 41 HLDeb vol 239 cc 833-4, 8 April 1878 42 Ibid, at page 327 H

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A This fixed the responsibility of the Cabinet for the “general conduct of affairs”43 of the government.

32. In the twentieth century, Sir Ivor Jennings conceptualized collective responsibility of a Cabinet Government, thus: “A Government that cannot make up its mind on a fundamental issue ought not to be the Government and will be so regarded in the constituencies. Its fall may be regarded as imminent.”44 The conduct of the cabinet determines the fate of the government.

33. Collective responsibility of Ministers to the Parliament is comprehended in two aspects: (i) collective responsibility of Ministers for the policies of the government; and (ii) individual responsibility of Ministers for the work of their governments.45 The idea behind this bifurcation, as explained by Birch, is to hold a government “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support.”46 D In the British system, collective responsibility work on basis of certain precepts which define and regulate the existence of government. Geoffrey Marshall (1989) identifies three strands within the principle47: i) The confidence principle: a government can only remain in office for so long as it retains the confidence of the House of E Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote; ii) The unanimity principle: all members of the government speak and vote together in Parliament, save in situations where the Prime Minister and the Cabinet themselves make an exception such as a free vote or an ‘agreement to differ’; and iii) The confidentiality principle: unanimity, as a universally applicable situation, is a constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion within the Cabinet and the Government. 43 Ibid, at page 327 44 Ivor Jennings, Cabinet Government, Cambridge University Press (1959), 3rd Edition, at page 279 45 AH Birch (Supra note 35), at page 131 46 Ibid, at page 137 47 H G Marshall, Ministerial responsibility, Oxford University Press (1989), at pages 2-4

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34. A study conducted by the London School of Economics and A Political Science in 2007 examined the individual and collective performance of Ministers between 1945-1997. The findings of the study revealed that though the principle acted “as a form of protection for an individual Minister when policies pursued in his department are deemed to have failed”, it also induced a cost for being a member of the B government. All the Ministers of the government, as a consequence of the principle of solidarity, were perceived as jointly sharing the responsibility of policy failure.48 The doctrine of collective responsibility has evolved as one of the indispensable features of the parliamentary system of government and reflects the political engagement between government and Parliament. C In a parliamentary democracy, the nuances of the doctrine are political.49 To maintain the notion of “collegiality and coherence”, the ministers work as a team. In the Australian context, Wanna (2012) postulates that collective responsibility thereby acts as an under-flowing current necessary for the survival of a government: D “To survive as a government, ministries must show they can maintain the confidence of the house, put up a credible front to their political opponents and the media, and as a working ministry find ways to deal with the business of state, much of which will involve making collective decisions and imposing collegial executive E authority.”50

35. Granville Austin observes that the framers of India’s Constitution conceived that the democratic values of the Constitution would be achieved in “the institutions of direct, responsible government”51. The members of the Constituent Assembly borrowed the F 48 Samuel Berlinski, Torun Dewan and Keith Dowding, “Individual and Collective Per- formance and the Tenure of British Ministers 1945-1997”, London School of Eco- nomics & Political Science (February 2007), available at http://eprints.Ise.ac.uk/19281/ 1/Individual and Collective Performance and the Tenure of British Ministers 1945- 1997.pdf 49 V Sudheesh Pai, “Is The River Rising Higher Than The Source? Nature Of Rules G Business - Directory Or Mandatory?” Journal of Indian Law Institute (2011), at page 513 50 John Wanna, “Ministers as Ministries and the Logic of their Collective Action”, in Keith Dowding & Chris Lewis (eds.), Ministerial Careers and Accountability in the Australian Commonwealth Government, ANU Press (2012), available at http://press- files.anu.edu.au/downloads/press/p191121/pdf/ch023.pdf 51 Granville Austin (Supra note 3), at page 145 H

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A Parliamentary?Cabinet form of government from British constitutional theory and adopted it into our Constitution.52 Though the Constituent Assembly did not adopt British constitutional conventions in the written form, collective responsibility of the Cabinet was specifically incorporated into India’s constitutional framework.53 B There is a direct relationship between the principle of collective responsibility and government accountability. This relationship is conceptualized in “The Oxford Companion to Politics in India”: “[A]ccountability can be defined in terms of outcomes rather than processes of government… It also includes the criterion of C responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be… In this broad sense, accountability amounts to evaluating the nature of governance itself, in outcome-oriented terms.”54 D The Oxford Handbook of the Indian Constitution55 (2016) adverts to several facets of collective responsibility: “Collective responsibility has several facets. First, ministers act as a common unit; cabinet decisions are binding on all ministers. E Disagreements, if any, may be aired in private. Ministers, however, speak in one voice and stand by one another in Parliament and in public. Those that cannot reconcile themselves with particular government policies, or are unwilling to defend them in public, must resign. Conversely, decisions of particular ministers, unless overruled, are decisions of the government.” F The principle has also been considered as a political component which political parties in power invoke to maintain party discipline.56

52 Ibid, at page 166 53 Ibid, at page 172 54 G Dilip Mookherjee, “Government Accountability” in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds.), The Oxford Companion to Politics in India, Oxford University Press (2010), at page 477 55 Shubhankar Dam, “Executive” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University Press (2016), at page 319 56 Ibid H

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Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments: “Governing is a complex affair; hundreds of officials in dozens of departments make many decisions on a daily basis… These officials are also part of the executive, and ministers are responsible for those that serve in their departments… Ordinarily, ministers busy themselves with policy issues; matters of implementation are usually left to officials over whom ministers command little or no oversight. Yet, when they act, subordinates notionally do so on behalf of ministers. Ministers, therefore, cannot seek refuge in ignorance. Nor can they absolve themselves by pointing to their officers. Both inside and outside Parliament, they are accountable for their departmental shortcomings.”57

36. Collective responsibility, as a principle and practice, has been given effect authoritatively in several judgments of this Court. The Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v D The State of Punjab58, examined the functions of the executive. The Court held that the President is “a formal or constitutional head of the executive” and that the “real executive powers” are vested in the Ministers or the Cabinet: “Our Constitution, though federal in its structure, is modelled on E the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State… F In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”. The Cabinet enjoying, as it does, a majority in the legislature G concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and 57 Ibid, at page 320 58 (1955) 2 SCR 225 H

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A act on the principle of collective responsibility, the most important questions of policy are all formulated by them.” (Emphasis supplied) The relationship between the responsibility of the Cabinet and individual Ministers was dealt with in a Constitution Bench decision in A Sanjeevi B Naidu v State of Madras59: “The cabinet is responsible, to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the C Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility.” D In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking for the majority) opined that Ministers must accept responsibility for every executive act: “In England, the sovereign never acts on his own responsibility. E The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre F and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.” A seven-judge Bench decision of this Court in State of Karnataka v Union of India61 explained the substance of a government’s collective G responsibility. All the Ministers are treated as one entity. A government could stay in office only so long as it commands the support and confidence of a majority of the Members of the Legislature. The government is 59 (1970) 1 SCC 443 60 (1974) 2 SCC 831 H 61 (1977) 4 SCC 608

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politically responsible for the decisions and policies of each of the A Ministers and of his department. The sanction against any government action was held to be embodied in the principle of collective responsibility, which is enforced by the “pressure of public opinion” and expressed specifically in terms of withdrawal of political support: “The object of collective responsibility is to make the whole body B of persons holding Ministerial office collectively, or, if one may so put it, “vicariously” responsible for such acts of the others is are referable to their collective volition so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.” C

The decision in Common Cause, A Registered Society v Union of India62 delivered by a three-judge Bench held that the concept of collective responsibility is essentially a “political concept” and that the country is governed by the party in power on the basis of the policies endorsed by its Cabinet. The Court held that the concept of collective D responsibility has two meanings: “The first meaning which can legitimately be ascribed to it is that all members of a Govt. are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a E different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.” The decision in Subramanian Swamy v Manmohan Singh63 theorises F that collective responsibility may be enforced only politically, thereby making its legal implications unclear. In this case, a Minister was charged with committing grave irregularities in the grant of telecom licenses. The appellant had provided documents to the Prime Minister’s Office (PMO) for the grant of sanction to prosecute under the Prevention of G Corruption Act, 1988. This Court held: “In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise Respondent No. 1 [Prime 62 (1999) 6 SCC 667 63 (2012) 3 SCC 64 H

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A Minister] about seriousness of allegations made by the Appellant… By the very nature of the office held by him, Respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to Respondent No. 1 and place full facts and B legal position before him failed to do so. We have no doubt that if Respondent No. 1 had been apprised of the true factual and legal position regarding the representation made by the Appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.” C The decision implied that “individual ministerial decisions… do not always generate collective legal responsibilities”64.

37. Collective responsibility represents a seminal principle for modern parliamentary democracies.65 Collective responsibility of the Council of Ministers ensures accountability to the legislature and to the electorate. Collective responsibility governs the democratic process, as it makes a government liable for every act it does. It envisages that a government works effectively to ensure and fulfil the interests of the public. It purports to ensure transparency in government decisions. Collective responsibility rests on the foundations of constitutional morality, which reflects constitutional ethics. Aid and Advice

38. Collective responsibility under our Constitution is based on a “slightly modified version”66 of the British cabinet system. There is a direct relationship between collective responsibility and the form of government envisaged by the Constitution. The President was designated as the titular head of government. The founding fathers and mothers of the Constitution adopted the convention which made the President generally bound by the advice of the Council of Ministers. This was explained by Dr B R Ambedkar, while introducing the Draft Constitution G on 4th November 1948.

64 The Oxford Handbook of the India Constitution (Supra note 52), at page 320 65 See also Amarinder Singh v Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113; Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1; State of Himachal Pradesh v. Satpal Saini, 20117(2) SCALE 292 66 H Granville Austin (Supra note 3), at page 145

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“Under the Draft Constitution the President occupies the same A position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known… The President B of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament… C A democratic executive must satisfy two conditions - (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree… In England, where the Parliamentary system prevails, the D assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses… The daily assessment of responsibility which is not available under the E American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.”67 (Emphasis supplied) F Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar: “…that the Council of Ministers shall be collectively responsible to the House of the People. If a President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of violation of the Constitution and he will be even G liable to impeachment. Therefore it is merely a euphemistic way of saying that the President shall be guided by the advice of his Ministers in the exercise of his functions. This Council of Ministers will be collectively responsible to the 67 Constituent Assembly Debates, Vol. 7 (4th November 1948) H

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A House of the People, and the House of the People must meet all situations in regard to the budget, in regard to legislation, in regard to every matter connected with the administration of the country. Therefore, if the Council of Ministers is to discharge their responsibility, it will be the duty of the President to see that the Constitution is B obeyed…”68 (Emphasis supplied) As the Chairman of the Constituent Assembly, Dr Rajendra Prasad expected the convention to be developed into a healthy practice in independent India: C “We have had to reconcile the position of an elected President with an elected Legislature and, in doing so, we have adopted more or less the position of the British Monarch for the President… [H]is position is that of a Constitutional President. Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice. Although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and, the President, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a Constitutional President in all matters.” 69 (Emphasis supplied) F The Constitution makers envisaged and adopted a limited role for the President as the nominal head of the Indian State and imposed sanctions on his or her constitutional authority by making them bound by the decisions of the Council of Ministers generally. A similar role was adopted for the Governor in the States.

G 39. After the Constitution had come into force, this Court gave judicial sanction to the convention. In U.N.R. Rao v Smt. Indira Gandhi70, the Constitution Bench held: 68 Ibid 69 Constituent Assembly Debates, Vol. 11 (26th November, 1949) 70 H (1971) 2 SCC 63

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“It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word “shall” should be read as “may”. Article 52 is mandatory. In other words there shall be a President of India.... The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers’ nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61… Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called D “Responsible Government”.” In Samsher Singh v State of Punjab71, while dealing with the question whether the Governor as the Constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service personally, Chief Justice AN Ray delivered the majority judgment, holding that: E

“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of 71 (1974) 2 SCC 831 H

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A any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.” B The Court summed up the position of law as follows: “[W]e hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head C in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally… Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers.” D Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a concurring opinion.

40. The convention that the President shall be bound by the aid and advice tendered by the Council of Ministers was explicitly made a E part of the Constitution by the forty-second constitutional amendment. By the amendment, Article 74(1) was amended to ensure that the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. Article 74(1) reads thus:

F “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.” The Forty-fourth Constitution Amendment added another proviso to Article 74 (1) so that the “President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President G shall act in accordance with the advice tendered after such reconsideration”. Therefore, the position which emerges is that where it has not been expressly provided, the executive head shall be bound by the advice tendered by the Council of Ministers. This constitutional scheme, after the forty-second and forty-fourth amendments, has been H

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judicially reaffirmed. Authoring the judgment of the Constitution Bench A in PU Myllai Hlychho v State of Mizoram72, Justice KG Balakrishnan (as he then was) held that the “satisfaction” of the Governor required by the Constitution for the exercise of any power or function is not the personal satisfaction of the Governor but a satisfaction in the constitutional sense under the Cabinet system of Government, i.e. on the aid and advice of the Council of Ministers. Justice Madan B Lokur, while delivering the concurring opinion in the five-judge Constitution Bench deciJsion in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly73, opined that the absence of the expression “his individual judgment” makes it apparent that the Governor would always be bound by the aid and advice of the Council of Ministers, except in matters where he/she is permitted under the Constitution to act “in his discretion”.

41. Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. By ensuring that government is responsible in its decision making to the legislature, the principle of collective responsibility fosters a responsive and accountable government. Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance. Discussion and dialogue are accepting of dissent. In a system of constitutional governance, collective decision making must allow room for differences. A synthesis can emerge in government, when political maturity and administrative wisdom combine in arriving at acceptable solutions to the problems of governance. Collective responsibility allows for and acknowledges differences in perception and ideology. Yet, what the doctrine does is to place a decision taken by a constituent part of the government as a decision of the government. All Ministers are bound by a decision taken by one of them or their departments. In terms of its accountability to the legislature, government is treated as one decision making unit so that the politics of 72 (2005) 2 SCC 92 73 (2016) 8 SCC 1 H

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A decision making and administrative divergences do not dilute from the responsibility which government owes as a political unit to the legislature. This is crucial to ensuring that government is responsive to the aspirations of the people in whom political sovereignty resides.

42. In Kihoto Hollohan v Zachillhu 74 , Chief Justice B Venkatachaliah speaking for this Court had held thus: “Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not often the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy.”

43. The doctrine of aid and advice enhances the commitment to the same democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance (decision making in the name of a titular head) is subservient to its substance, whichmandates that the real authority to take decisions must reside in the elected arm of the government. The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible. Collective responsibility and the aid and advice doctrine must not be construed as disjunctive but together constitute integral parts of the discourse in ensuring the strength of and commitment to democracy. F The Nature of Executive Power

44. While the legislative power in relation to the NCT is defined in clauses 2 and 3, its executive power forms the subject matter of clause 74 H 1992 SCC Supp. (2) 651

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4 of Article 239AA. Clause 4 institutionalises the position of the Council A of Ministers with a Chief Minister as its head. The constitutional role which is ascribed to the Council of Ministers is to aid and advise the Lieutenant Governor “in the exercise of his functions in relation to matters with respect to which the legislative assembly has power to make laws”. There are three salient features of the executive power which is vested in the Council of Ministers. Firstly, the executive power is co-extensive with the legislative power of the legislative assembly. The executive power extends to all subjects upon which the assembly can legislate. The executive power of the Council of Ministers does not extend to matters on which the legislative assembly cannot legislate. What is beyond the legislative competence of the Assembly is ultra vires the executive powers of the Council of Ministers. Secondly, the delineation of the executive power in clause 4 defines, at the same time, the relationship between the Council of Ministers (headed by the Chief Minister) and the Lieutenant Governor. The Council of Ministers aids and advises the Lieutenant Governor; the corollary being that the Lieutenant Governor D has to act on the basis of the aid and advise tendered by the Council. Thirdly, the exception to the aid and advice principle in the substantive part of clause 4 is in respect of those matters in which the Lieutenant Governor is required to act in its discretion “by or under any law”. In other words, save and except in regard to areas which are reserved for the exercise of his discretion, the Lieutenant Governor must act on the E aid and advice tendered to him by the Council of Ministers.

45. The proviso to clause 4 forms the bone of contention. The proviso envisages a situation where the Lieutenant Governor has a difference of opinion with the Council of Ministers “on any matter”. In such a case, the proviso entails the course of action which the Lieutenant F Governor must follow. The Lieutenant Governor is under a constitutional mandate to refer the difference of opinion to the President for decision. As a consequence, the Lieutenant Governor must necessarily act according to the decision “given thereon” by the President. Pending a decision by the President, the Lieutenant Governor is empowered to take action or to issue directions where the matter is of such an emergent G nature as to require immediate action. The heart of the matter turns upon interpreting the expression “difference of opinion” and the words “on any matter”. Clause 4 does not specify what kind of a difference of opinion would warrant a reference to the President. Nor for that matter, H

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A does it explain the nature of the matter on which a difference of opinion is contemplated. Before we interpret the ambit of the proviso to clause 4, one facet is clear. Where a difference of opinion has arisen, warranting a reference to the President, the proviso leaves the course of action to be followed by the Lieutenant Governor beyond doubt. In a situation where the conditions under the proviso exist, the Lieutenant Governor B has to refer the matter to the President and must abide by the decision of the President. Reading the substantive part of clause 4 and the proviso, it is thus evident that the Lieutenant Governor has two courses of action to follow. Primarily, under the substantive part of clause 4, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers (the only exception being where under a provision of law, he has to act according to his own discretion). However, the embargo upon the Lieutenant Governor acting otherwise than on the aid and advice of the Council of Ministers is lifted only to enable him to refer a difference of opinion on any matter for a decision by the President. In other words, the Lieutenant Governor must either abide by the aid and advice tendered by the Council of Ministers or, in the event of a difference of opinion, reserve it for a decision by the President and thereupon be bound to act in accordance with the decision which has been rendered by the President. Pending the decision by the President, the proviso enables the Lieutenant Governor to attend to a situation requiring immediate action.

46. Before elucidating the nature and ambit of the relationship between the (i) Council of Ministers and the Lieutenant Governor; and (ii) the Lieutenant Governor and the President, it would be necessary to advert to some of the other provisions of Article 239AA which have a F bearing on those relationships. The Lieutenant Governor, as we have noted earlier, is appointed by the President under Article 239(1) read with Article 239AA(1). The Chief Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Chief Minister. They hold office during the pleasure of the President (clause 5). The concept of collective responsibility of the Council of G Ministers to the legislative assembly is expressly embodied in clause 6. A comparative analysis of the provisions of the Constitution relating to the Council of Ministers in the Union and the States indicates that in the case of the NCT, Article 239AA has engrafted the fundamental precept of the collective responsibility of an elected government in a cabinet H

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form of government to the elected legislature. Creating an executive power in government which is co-extensive with the legislative power of the elected legislature and the collective responsibility of the Council of Ministers to the legislature are intrinsic to the cabinet form of government.

47. Parliament has, by clause 7 of Article 239AA, been empowered to make provisions to implement and to supplement the other provisions of that Article. Any law enacted by Parliament to do so would not amount to a constitutional amendment within the meaning of Article 368 even if it amends or has the effect of amending any provision of the Constitution.

48. Article 239AB enunciates the course of action which the C President is empowered to follow where there has been a failure of constitutional machinery in the NCT. Article 239AB provides as follows: “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— D (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital E 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.” Under Article 239AB, the President is empowered to suspend the operation of (i) any provision of Article 239AA; and of (ii) any provisions of law made in pursuance of that Article and to make provisions to administer the NCT, in accordance with Articles 239 and 239AA where, upon a report from the Lieutenant Governor, the President is satisfied that: (a) A situation has arisen where the administration of the NCT cannot be carried on in accordance with Article 239AA or a law made H

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