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

A evidently did not intend to use the same brush to paint the details of their position, the institutions of governance (legislative or executive), the nature of democratic participation or the extent of accountability of those entrusted with governance to their elected representatives. Hence, in defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor B as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Representative government is a hallmark of a Constitution which is wedded to democracy for it is through a democratic form of governance that the aspirations of those who elect their representatives are met. Undoubtedly, governance of the NCT involves national imperatives. They must also weigh in the balance. The proviso to clause 4 of Article 239AA is constitutional indicator of the national concerns which were borne in mind when the constituent power was exercised to establish the NCT as a political arm of governance by a special constitutional provision. Those national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of the legislative assembly and their entrustment to Parliament. Again, it is the sense of a national imperative which led to the constituent power being so modulated in relation to the NCT as to allow Parliamentary legislative authority over all entries in the State list, in addition to the Concurrent list. Parliament does not exercise legislative authority in relation to State list entries as regards the states in India unless a matter falls within the ambit of Articles 252 or 253. Parliamentary legislative control over Union territories has been broadened precisely as a manifestation of national imperatives or concerns. The executive power of the Council of Ministers being co-extensive with legislative power, this aspect has to be borne in mind. The true challenge is to maintain that delicate balance in a federating Union, such as ours, which ensures that national concerns are preserved in the interest of the unity and integrity of the nation, while at the same time local aspirations exercised through the democratic functioning of elected governments find expression in our polity.

75. The constitutional principle which emerges is that while Delhi presents a special case, quite unlike the other Union territories, the constitutional provisions governing it are an amalgam between national concerns (reflected in control by the Union) and representative democracy H

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(expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature). There is no gainsaying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers which in turn owes collective responsibility to Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience. This Court has to step in only because skirmishes between the two have raised constitutional issues of the proper distribution of executive control over the National Capital Territory. I The Government of National Capital Territory of Delhi C Act, 1991

76. Parliament enacted the Government of National Capital Territory of Delhi Act 199177 “to supplement the provisions of the Constitution relating to the legislative assembly and a Council of Ministers for the National Capital Territory of Delhi”. The legislation has been enacted in pursuance of the provisions of clause 7(a) of Article 239AA.

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A (c) the appropriation of moneys out of the Consolidated Fund of the Capital; (d) the declaring of any expenditure to be expenditure charged on the Consolidated fund of the Capital or the increasing of the amount of any such expenditure;”82 B Similarly, if a Bill, when enacted into law, would involve an expenditure from the consolidated fund of the Capital, it requires the prior recommendation of the Lieutenant Governor before being passed by the legislative assembly. Assent of the Lieutenant Governor to Bills passed by the legislative assembly is mandated in the following terms: C “Section 24. Assent to Bills : - When a Bill has been passed by the Legislative Assembly, it shall be presented to the Lieutenant Governor and the Lieutenant Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President : D Provided that the Lieutenant Governor may, as soon as possible after the presentation of the Bill to him for assent, return the Bill if it is not a Money Bill together with a message requesting that the Assembly will consider the Bill or any specified provisions thereof, and, in particular, will consider the desirability of introducing E any such amendments as he may recommend in his message and, when a Bill is so returned, the Assembly will reconsider the Bill accordingly, and if the Bill is passed again with or without amendment and presented to the Lieutenant Governor for assent, the Lieutenant Governor shall declare either that he assents to the Bill or that he reserves the Bill for the consideration of the F President: Provided further that the Lieutenant Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which, - (a) in the opinion of the Lieutenant Governor would, if it became G law, so derogate from the powers of the High Court as to endanger the position which that court is, by the Constitution, designed to fill; or

82 Section 22(1), GNCTD Act H

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(b) the President may, by order, direct to be reserved for his consideration; or (c) relates to matters referred to in sub-section (5) of section 7 or section 19 or section 34 or sub-section (3) of section 43. Explanation :- For the purposes of this section and section 25, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the matters specified in sub-section (1) of section 22 or any matter incidental to any of those matters and, in either case, there is endorsed thereon the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.” C As the above provisions indicate, the Lieutenant Governor can assent to a Bill, withhold assent or reserve the Bill for consideration of the President. Where the Bill is not a Money Bill, the Lieutenant Governor is permitted to return it for reconsideration to the Assembly. Thereafter, if the Bill is passed again by the Assembly, the Lieutenant Governor can either assent to the Bill or reserve it for consideration of the President. The second proviso sets out three categories of Bills which the Lieutenant Governor must reserve for the consideration of the President. Where the Bill has been reserved for the consideration of the President, Section 25 stipulates that the President may either assent or withhold assent to the Bill. The President may, if it is not a Money Bill, direct the Lieutenant Governor to return the Bill to the assembly for reconsideration and if it is again passed, the Bill has to be presented again to the President for consideration.

78. The power of the Lieutenant Governor is wider than the power of the Governor of a State under Article 200 of the Constitution. Article 200 provides as follows: F “Article 200. When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration G of the President: Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not

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A a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, Assent to Bills. When a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.” Under Article 200, where the Governor has returned a Bill (not being a Money Bill) to the legislative assembly of the State for reconsideration and the Bill is passed by the legislature, the Governor is precluded from withholding assent. In contrast, Section 24 confers authority upon the Lieutenant Governor, even if a Bill has been reconsidered and passed by the legislative assembly of the NCT, to either assent to it or reserve it for consideration of the President. Moreover, the second proviso to Section 24 widens the categories of Bills which the Lieutenant Governor must necessarily reserve for the consideration of the President. Clause (a) of the second proviso corresponds to the second proviso to Article 200. In addition, clause (b) of the second proviso to Section 24 empowers the President to direct the Lieutenant Governor to reserve a Bill for his consideration. Similarly, under clause (c), Bills relating to salaries payable to the Speaker, Deputy Speaker and the members of the legislative assembly of NCT, the official language of the Capital and of the legislative assembly and the salaries and the allowances of the Ministers, are matters upon which the Lieutenant Governor has to reserve a Bill for the consideration of the President. These provisions indicate a greater degree of interface between the President and the Lieutenant Governor.

G 79. Section 27 provides for the laying of an annual financial statement by the Lieutenant Governor before the legislative assembly with the previous sanction of the President, containing the estimated receipts and expenditure of the Capital for that year. Section 29 makes a provision for appropriation Bills. Section 30 provides for supplementary, additional or excess grants. Here again, a provision has been made for H

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the previous sanction of the President. Section 33 empowers the legislative assembly to make rules for regulating, subject to the Act, its procedure and conduct of business. The Lieutenant Governor upon consulting the Speaker of legislative assembly and with the approval of the President may make rules for the timely completion of financial business; for regulating the procedure of and the conduct of business in the legislative assembly in relation to financial matters of Bills; for the appropriation of moneys within the consolidated fund of the Capital; and for prohibiting any discussion on matters where the Lieutenant Governor is to act in his discretion. Under Section 34, the President has been empowered to direct that the official language of the Union shall be adopted for such of the official purposes of the Capital as may be specified, and that any other language shall also be adopted.

80. Part IV of the GNCTD Act has inter alia made provisions for matters which lie in the discretion of the Lieutenant Governor, the conduct of business, and the duty of the Chief Minister to communicate with and share information with the Lieutenant Governor. Section 41 D provides thus: “Section 41. Matters in which Lieutenant Governor to act in his discretion:- (1) The Lieutenant Governor shall act in his discretion in a matter – E (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President ; or (ii) in which he is required by or under any law to act in his F discretion or to exercise any judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. G (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.” H

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A 81. The Lieutenant Governor acts in his discretion in two classes of matters. The first consists of those which are outside the powers conferred upon the legislative assembly but in respect of which the President has delegated powers and functions to the Lieutenant Governor. The second category consists of those matters where the Lieutenant Governor is required to act in his discretion by or under any law or under which he exercises judicial or quasi-judicial functions. Matters falling within the ambit of Section 41 lie outside the realm of the aid and advice mandate. Where a subject or matter lies outside the purview of the legislative assembly, it necessarily lies outside the executive powers of the government of the NCT. Such matters stand excepted from the ambit of the aid and advice which is tendered by the Council of Ministers to the Lieutenant Governor.

82. Section 44 stipulates that the President may make rules for the conduct of business: “Section 44. Conduct of business: D (1) The President shall make rules - (a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of E Ministers; and (b) for the more convenient transaction of business with the Ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. F (2) Save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor. (3) Orders and other instruments made and executed in the name G of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.” H

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Under Section 44, the allocation of business amongst ministers in the A government on matters where the Lieutenant Governor is to act on the aid and advice of the Council of Ministers has to be prescribed by the rules framed by the President. Similarly, rules for the convenient transaction of business with Ministers and for the modalities to be followed where there is a difference between the Lieutenant Governor and the B Council of Ministers or a Minister are framed by the President. All executive action is under sub-section 2 expressed in the name of the Lieutenant Governor. Sub-Section 3 provides for the authentication of orders and instruments made and executed in the name of the Lieutenant Governor.

83. Section 44 may be distinguished from the provisions of the C Constitution in relation to the conduct of business of the Union government (under Article 77) and the conduct of business of the States (under Article 166). Article 77 inter alia stipulates that all executive action of the Union government shall be expressed in the name of the President and that orders or instruments in the name of the President shall be authenticated in accordance with the rules framed by the President. The President is empowered to make rules for the convenient transaction of business and for allocation of that business among ministers. Article 166 is pari materia (with the substitution of the Governor, for the President in relation to a State). Unlike in the case of a State, where rules of business are prescribed by the Governor, Section 44 requires that the rules in relation to the conduct of business in the NCT be framed by the President. Moreover, there is no provision analogous to the proviso to Article 239AA(4) in relation to the affairs of a State under the Constitution. Article 167 does not contain a provision for the procedure to be adopted where there is a difference of opinion between the Governor and the F Council of Ministers.

84. Section 45 provides for the duty of the Chief Minister to communicate with and share information with the Lieutenant Governor: “Section 45. Duties of Chief Minister as respects the furnishing of information to the Lieutenant Governor, etc,- It shall be G the duty of the Chief Minister – (a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation; H

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A (b) to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for; and (c) If the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which B a decision has been taken by a Minister but which has not been considered by the Council.” Section 45 is similar in terms to Article 78 (in relation to the Prime Minister) and Article 167 (in relation to a Chief Minister of a State). Articles 78 and 167 embody the fundamental duty of the elected head of government C in a cabinet form of government to communicate with the titular head of state and to furnish information in regard to the affairs of the state. The duty to keep the head of State informed in relation to the affairs of State arises because real decision making vests in the elected executive. Since decisions are taken by the executive, the head of State is kept apprised in reference to his constitutional position as titular head. D

85. Section 46 provides for the Consolidated Fund of the Capital. Section 47 provides for contingency funds. Section 47(A) provides that the executive power of the Union extends to borrowing upon the security of the Consolidated Fund of the Capital within the limits determined by Parliamentary legislation. E

86. Section 49 establishes the principle of the “general control” of the President over the Lieutenant Governor and the Council of Ministers. “Section 49. Relation of Lieutenant Governor and his Ministers to President – Notwithstanding anything in this Act, the Lieutenant F Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.” As an incident of control, the Lieutenant Governor and Council of Ministers must comply with the particular directions issued by the President. Such directions are obviously issued on the aid and advise of G the Union Council of Ministers. Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union government. H

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87. This survey of the provisions of the GNCTD Act 1991 indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. As we have seen, the Lieutenant Governor has been subjected to a wider obligation to reserve Bills for the consideration of the President and in regard to withholding of his assent to a Bill which has been passed by the legislative assembly in comparison with the duties of a Governor of a State. Matters such as the presentation of the annual financial statement or supplementary, additional or excess grants require previous sanction of the President. The President has been conferred with the power to issue directions in regard to the official language of the National Capital Territory. The Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the legislative assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi judicial functions. Rules for the conduct of business are framed by the President in relation to the National Capital Territory, including for the allocation of business. They would include the procedure to be followed where there is a E difference of opinion between the Lieutenant Governor and the Council of Ministers. Section 49, which has a non-obstante provision, subjects the Lieutenant Governor and the Council of Ministers to the general control of the President and to such directions as may be issued from time to time. F J The Transaction of Business Rules, 1993

88. The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (“Transaction of Business Rules”) have been formulated by the President in exercise of powers conferred by Section 44 of the GNCTD Act 1991. Rule 4(1) embodies the principle G of collective responsibility. According to the Rule 4(1): “4. (1) The Council shall be collectively responsible for all the execution orders issued by any Department in the name of the Lieutenant Governor and contracts made in the name of the President in connection with the administration of the Capital H

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A whether such orders or contracts are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council.”

89. Rule 7 stipulates that all proposals which are referred to in the Schedule must be placed before the Council of Ministers in accordance B with the provisions contained in Chapter 3. All such proposals after consideration by the Minister-in-charge have to be submitted to the Chief Minister. Rule 8 envisages orders of the Chief Minister either for circulation of a proposal under Rule 9 or for placing it for consideration of the Ministers. Rule 9 empowers the Chief Minister to circulate proposals to the Ministers for opinion instead of placing them before the C Council of Ministers. A proposal can be passed by circulation only if there is unanimity of opinion among the Ministers.

90. The Transaction of Business Rules contain elaborate provisions for the Lieutenant Governor to be kept informed right from the stage of a proposal. Rule 9(2), stipulates that where a proposal is circulated, a D memorandum explaining the proposal has to be prepared for circulation among the Ministers and simultaneously a copy has to be forwarded to the Lieutenant Governor. According to the Rule 9(2): “If it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the E facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to the Secretary to the Council who shall arrange to circulate the same among the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.” F Under Rule 10(4), if the Chief Minister accepts the recommendations, he is to return the proposal with his orders to the Secretary to the Council of Ministers. Thereupon, Rule 10(5) stipulates that : “On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass G on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V.” Rule 10(5) requires that on receipt of a proposal, the Secretary to the H Council is to communicate the decision to the Lieutenant Governor and

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to share the proposal with the Secretary of the concerned department. A The Secretary of the department concerned would proceed to issue orders, unless a reference to the Central government is required under Chapter V. Chapter V, as we shall note hereafter, deals with a situation where there has been a difference of opinion between the Lieutenant Governor and the Council of Ministers. B

91. Proposals which are required to be placed before the Council of Ministers are dealt with in Rule 11, which provides thus : “When it has been decided to place a proposal before the Council, the Department to which it belongs, shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal and the points for decision. Copies of C the memorandum and such other documents, as are necessary to enable the proposal to be disposed of shall be forwarded to the Secretary to the Council who shall arrange to circulate the memorandum to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.” D A memorandum explaining the proposal is placed by the department to which the proposal belongs before the Secretary to the Council. The latter circulates the memorandum to the Ministers and simultaneously sends a copy to the Lieutenant Governor. Rule 13(3) requires that the agenda, upon being approved by the Chief Minister, must be forwarded by the Secretary to the Council to the Lieutenant Governor, the Chief Minister and other Ministers. A record of the decisions taken in the meetings of the Council is prepared and, under Rule 13(7), the Secretary to the Council is required to forward a copy to the Ministers and to the Lieutenant Governor. Rule 14 provides thus: “(1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding , shall be placed with the records of the proposal. After approval by the Chief Minister or the Minister presiding , the decision of the Council as approved, shall be forwarded by the Secretary to the Council to the Lieutenant G Governor. (2) Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister concerned shall take necessary action to give effect to the decision.” H

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A After a decision has been taken by the Council on a proposal and upon the approval by the Chief Minister, the decision is forwarded to the Lieutenant Governor. After the decision has been communicated to the Lieutenant Governor, the Minister concerned is empowered to give effect to the decision.

B 92. Rule 15 empowers the Minister in charge of a department to dispose of proposals or matters in the department in accordance with the Standing Orders. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and to the Chief Minister. Under Rule 16, the Minister can provide, by means of Standing Orders, for matters to be brought to his personal notice. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and the Chief Minister. Rule 17 requires a weekly submission of statements containing particulars of important proposals or matters disposed of in the department both to the Lieutenant Governor and the Chief Minister.

93. Rule 19(5) confers authority upon the Lieutenant Governor to call for papers of a proposal or matter from any department. Rule 19(5) is in the following terms: “The Lieutenant Governor may call for papers relating to any proposal or matter in any Department and such requisition shall be complied with by the Secretary to the Department concerned, he shall simultaneously inform the Minister-in-charge of the department of the action taken by him.” Rule 22 provides for a class of matters which shall be brought to the attention of the Lieutenant Governor and the Chief Minister:

F “Any matter which is likely to bring the Government of the Capital into controversy with the Central Government or with any State Government, shall, as soon as possible, be brought to the notice of the Lieutenant Governor and the Chief Minister.” Rule 23 provides for classes of proposals or matters which must be submitted to the Lieutenant Governor before orders are issued. Rule 23 G is in the following terms: “The following classes of proposals or matters shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, namely: H

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(i) matters which affect or are likely to affect the peace and A tranquillity of the capital; (ii) matters which affect or are likely to affect the interest of any minority community, Scheduled Castes and backward classes; (iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the B High Court of Delhi; (iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V; (v) matters pertaining to the Lieutenant Governor’s Secretariat C and personnel establishment and other matters relating to his office; (vi) matters on which Lieutenant Governor is required to make order under any law or instrument in force; (vii) petitions for mercy from persons under sentence for death D and other important cases in which it is proposed to recommend any revision of a judicial sentence; (viii)matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self E Government Institutions and other matters connected with those; and (ix) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.” F Rule 24 provides thus: “Where the Lieutenant Governor is of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the Minister in- charge, he may require the proposal or matter to be placed before G the Council for consideration: Provided that the notes, minutes or comments of the Lieutenant Governor in any such case shall not be brought on the Secretariat record unless the Lieutenant Governor so directs.”

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A Rule 25 casts a duty on the Chief Minister to furnish to the Lieutenant Governor information on certain matters pertaining to the administration of the Capital. According to Rule 25: “The Chief Minister shall: (a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for; and (b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council.” Rule 45 of the Transaction of Business Rules deals with the disposal of business relating to the executive functions of the Lieutenant Governor. Under Rule 45: D “The Lieutenant Governor, may by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions: Provided that the standing orders shall be consistent with the provisions of this Chapter, Chapter V and the instructions issued by the Central Government for time to time. Provided further that the Lieutenant Governor shall in respect of matters connected with ‘public order’, ‘police’ and ‘land’ exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. Provided further that ‘standing orders’ shall not be inconsistent with the rules concerning transaction of business.” The second proviso deals with the class of subjects (public order, police and law) which stand carved out of the legislative powers of the Assembly G and hence lie outside the executive powers of the NCT government. On such matters, to the extent to which functions are delegated to the Lieutenant Governor by the President, the Lieutenant Governor will consult the Chief Minister if the President has so provided in an order under Article 239. H

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Rule 46 makes provisions in regard to persons serving in connection with the administration of the National Capital Territory: “(1)With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. C (2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause(3) of article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the D Union Public Services Commission unless authorised to do so by the Central Government. (3) All correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with E the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.” Under Rule 47, the Lieutenant Governor has to consult the Union F government before exercising his powers or discharging his functions in respect of any matter for which no specific provision is contained in the Rules.

94. Chapter V of the Transaction of Business Rules sets out the procedure to be followed by the Lieutenant Governor in making a G reference to the Central government in the event of a difference of opinion with the Council of Ministers. Rules 49, 50 and 51 provide as follows:

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A “49.In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the B Council.” “50.In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.” “51.Where a case is referred to the Central Government in pursuance of rule 50, it shall be competent for the Lieutenant Governor to direct that action shall be suspended pending the decision of the President on such case or in any case where the matter, in his opinion, is such that it is necessary that immediate action should be taken to give such direction or take such action in the matter as he deems necessary.” Where a direction has been issued by the Lieutenant Governor under Rule 51, the Minister concerned must take action to give effect to the direction.

95. Under Rule 53, an annual plan for each financial year is to be prepared under the directions of the Lieutenant Governor which has to be referred to the Central government for approval. The form of the annual financial statement and the procedure for obtaining the approval of the President have to be prescribed by the Central government under Rule 54.

96. Rule 55(1) provides for certain categories of legislative proposals which must be referred to the Central government by the Lieutenant Governor. Rule 55(2) enunciates those matters upon which the Lieutenant Governor shall make a prior reference to the Union government in the Ministry of Home Affairs or through the appropriate ministry. According to Rule 55: “(1) The Lieutenant Governor shall refer to the Central Government every legislative proposal, which H

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(a) if introduced in a Bill form and enacted by the Legislative A Assembly, is required to be reserved for the consideration of the President under the proviso to subclause (c) of clause (3) of article 239 AA or, as the case may be, under the second proviso to section 24 of the Act; (b) attracts provisions of articles 286, 287, 288 and 304 of the B Constitution as applicable to the Capital; (c) relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Capital or abandonment of revenue or lowering of rate C of any tax. (2) Subject to any instructions which may from time to time be issued by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry D with a copy to the Ministry of Home Affairs in respect of the following matters:- (a) proposals affecting the relations of the Central Government with any State Government, the Supreme Court of India or any other High Court; E (b) proposals for the appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands); (c) important cases which affect or are likely to affect the peace and tranquillity of the National Capital Territory; and F (d) cases which affect or are likely to affect the interests of any minority community, Scheduled Castes or the backward classes.” Rule 56 stipulates that where a matter has been referred by the Lieutenant Governor to the Central government under the Rules, further action shall G not be taken except in accordance with the decision of the Central government.

97. Analysing the Transaction of Business Rules, it becomes evident that the Lieutenant Governor is required to be kept informed of H

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A governmental business. The duty of the Council of Ministers, with the Chief Minister at its head, to do so begins at the stage of a proposal. When a proposal is circulated under the directions of the Chief Minister to the Council of Ministers, a copy of the explanatory memorandum has to be forwarded to the Lieutenant Governor. After the proposal has been approved, the decision is communicated to the Lieutenant Governor. B The decision is forwarded to the Secretary of the department concerned for issuing orders unless a reference to the Central government is warranted under Chapter V. Where a proposal is placed before the Council of Ministers, an explanatory memorandum has to be forwarded to the Lieutenant Governor. Copies of the agenda, upon approval of the C Chief Minister, are required to be submitted to the Lieutenant Governor. A record of the decisions of the Council of Ministers is forwarded to the Lieutenant Governor. After the decisions of the Council have been approved by the Chief Minister, they are forwarded by the Secretary to the Council to the Lieutenant Governor. Rule 14(2) stipulates that after a proposal has been approved by the Council of Ministers and the approved record of the decision has been communicated to the Lieutenant Governor, the minister concerned “shall take necessary action to give effect to the decision”. Communication of the approved record of the decision to the Lieutenant Governor is mandatory and it is only thereafter that the decision can be implemented. The Lieutenant Governor is empowered to call for papers relating to any proposal or matter in any department under Rule 19(5). The power conferred upon the Lieutenant Governor to do so is independent of and does not detract from the duty of the Council of Ministers to keep him informed at every stage. Matters which are likely to bring the government of the NCT into controversy with the Central government or with any state government must be bought to the notice of the Lieutenant Governor. As distinguished from Rule 14, Rule 23 sets out those classes of proposals or matters which have to be submitted to the Lieutenant Governor before orders are issued thereon. Rule 14(2), as noted earlier, stipulates that upon being approved by the Council, the record of the decision is communicated to the Lieutenant G Governor upon which the minister will take necessary action to give effect to the decision. However, Rule 23 elucidates specified situations where proposals or matters must be essentially submitted to the Lieutenant Governor before issuing orders thereon. These matters are considered to be important enough to warrant a mandatory prior submission to the Chief Minister as well as to the Lieutenant Governor before orders are H

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issued. These provisions in the Transaction of Business Rules ensure A that the Lieutenant Governor is kept informed of the affairs and administration of the National Capital Territory at every stage. The rules leave no element of discretion in the Council of Ministers to not comply with the obligation. The obligation to keep the Lieutenant Governor informed at every stage brooks no exceptions. B

98. The Transaction of Business Rules set out a careful defined procedure to enable the Lieutenant Governor to counsel the Ministers. This is to facilitate a further reflection or reconsideration in certain situations. Rule 24 deals with one such situation where the Lieutenant Governor is of the opinion “that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the minister in charge”. The Lieutenant Governor may in either case require that the proposal or matter be placed before the Council of Ministers for consideration. The duty of keeping the Lieutenant Governor abreast of the administration of the affairs of the National Capital Territory is amplified by Rule 25. Under the Rule, a duty has been cast on the Chief Minister to furnish to the Lieutenant Governor information on the administration of the Capital and proposals for legislation as the latter may summon. The Lieutenant Governor may also require the submission to the Council of a matter on which the Minister has taken a decision but it has not been placed before the Council. E

99. Chapter IV enables the Lieutenant Governor to formulate standing orders regulating the transaction and disposal of business relating to his executive functions. The second proviso to Rule 45 specifically deals with matters connected with public order, police and land. These are subjects which lie outside the ambit of legislative powers of the legislative assembly, since they fall under Entries 1, 2 and 18 of the State F List. Since there is an absence of legislative power in relation to these subjects, they lie outside the realm of matters covered by the aid and advice of the Council of Ministers. On these excepted subjects, the Lieutenant Governor has to exercise his executive function to the extent to which there is a delegation by the President. The Lieutenant Governor G has to consult the Chief Minister if it is so provided in an order of the President under Article 239. Clearly, therefore, in regard to the excepted matters, the exercise of the executive functions by the Lieutenant Governor must be in accord with the delegation, if any, by the President. The Lieutenant Governor can exercise only such executive functions, to H

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A the extent to which a delegation has been made. The requirement of consulting the Chief Minister would be subject to the contents of an order issued by the President under Article 239.

100. As regards persons who are in the service connected to the administration of the NCT, the Lieutenant Governor has been assigned under Rule 46 such powers and functions as are entrusted to him by the Rules and orders regulating the conditions of service of such persons or an order of the President made under Article 239. The Lieutenant Governor is mandated to consult the Union Public Service Commission on matters on which it is required to be consulted under Article 320(3). The Lieutenant Governor has to act in accordance with the advice of the Commission unless authorized by the Central government.

101. The Transaction of Business Rules elaborately define the modalities which the Lieutenant Governor must follow in the event of a difference of opinion with the Council of Ministers. The proviso to Article 239AA(4), Section 44(1)(b) of the GNCTD Act and Chapter V of the D Transaction of Business Rules provide a composite and holistic perspective. They elucidate the modalities which must be followed when there is a difference of opinion. Chapter V supplements and gives effect to the proviso to Article 239AA(4). If a difference of opinion arises between the Lieutenant Governor and a Minister on any matter, the first E and primary endeavour must be to resolve it by discussion. Before the matter escalates to the next stage all efforts have to be devoted to a mutual resolution with the Minister. If the difference of opinion continues to persist, the Lieutenant Governor is empowered to direct that the matter in difference be referred to the Council of Ministers. It is when a difference persists between the Lieutenant Governor and the Council of F Ministers that a reference is contemplated by Rule 50 to the Central government for a decision of the President. These provisions provide a road map for the exercise of constitutional statesmanship. The differences between the Lieutenant Governor and a Minister or the Council of Ministers must in good faith be attempted to be resolved. Differences G constitute the heart of democracy. Reason and dialogue are the essence of a democratic government. The affairs of government do admit of variations in perspective and opinion. The problems of governance are complex. The institutional process of decision making must be mature and tolerant. The theatrics which accompany the rough and tumble of politics ought not to disrupt the necessity for institutional governance H which is marked by constitutional sobriety and administrative wisdom.

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102. Settlement of a difference between a Minister and the A Lieutenant Governor by discussion obviates a reference to the President and provides a flexible and expeditious solution where there is a difference of opinion. The first stage at which a resolution is attempted is between the Lieutenant Governor and the Minister in question. If that does not result in a satisfactory solution, the second stage involves the Council of B Ministers as a collective entity. It is when the dispute has failed to meet a satisfactory resolution with the Council of Ministers that the Lieutenant Governor is empowered to make a reference to the Central government. The power of the Lieutenant Governor under Rule 55(2) stands independent of the area of difference of opinion covered by Rules 49, 50 and 51. Rule 55(2) brings into focus certain specified areas where certain C matters have to be referred to the Union government either in the Union Ministry of the Home Affairs or in the appropriate ministry. The matters covered by Rule 55(2) are considered to be important enough to warrant a prior reference to the Central government.

103. The feature which stands out from the Transaction of D Business Rules is that an obligation and duty has been cast upon the elected government and its officers to duly keep the Lieutenant Governor informed of proposals relating to governmental business. The duty to keep the Lieutenant Governor informed is a necessary element of the process and essential for the exercise of the constitutional authority which has been vested in the Lieutenant Governor. It is only when the Lieutenant E Governor is kept duly apprised of matters relating to the administration of the National Capital Territory that a decision can be taken on whether a reference should be made to the Union government under Chapter V. If the Lieutenant Governor were to be kept in the dark, it would not be possible for him as a constitutional authority to determine as to whether F the matter is of such a nature as would warrant a reference to the Central government. Sharing of information and the process of communication ensures a dialogue which promotes harmony in administration. The Rules are founded upon the need to maintain constitutional comity rather than strife. G

104. A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the government of NCT, decision making is by the government comprised of the Council of Ministers with the Chief Minister at its head. The role of the Lieutenant Governor is evinced by the duty which is cast upon the government to H

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A keep him duly apprised on matters relating to the administration of the Union territory. On matters of executive business which lie within the constitutional functions assigned to the executive government of the NCT, such a role is elaborated in the functions assigned to the Lieutenant Governor under Rule 24. Rule 24 deals with an eventuality when the Lieutenant Governor may be of the opinion that any further action should B be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenant Governor does not take his own decision. He has to refer the proposal or matter to the Council of Minister for consideration. Under Rule 25, Lieutenant Governor may require the Council to consider a C matter on which a decision has been taken by a Minister but which has not been considered by the Council. Rule 23 enunciates matters which have to be submitted to the Lieutenant Governor before issuing any orders thereon. If the Lieutenant Governor disagrees with a decision or proposal, recourse has to be taken to the procedure which has been enunciated in Rules 49, 50 and 51. If there is a difference of opinion, the D Lieutenant Governor must refer it to the Union government after following the procedure which has been laid down. After the decision of the President has been communicated, the Lieutenant Governor must follow that decision and implement it. In other words, the Lieutenant Governor has not been conferred with the authority to take a decision independent of E and at variance with the aid and advice which is tendered to him by the Council of Ministers. If he differs with the aid and advice, the Lieutenant Governor must refer the matter to the Union government (after attempts at resolution with the Minister or Council of Ministers have not yielded a solution). After a decision of the President on a matter in difference is communicated, the Lieutenant Governor must abide by that decision. F This principle governs those areas which properly lie within the ambit and purview of the executive functions assigned to the government of the National Capital Territory. Matters under Section 41 which fall under the discretion of the Lieutenant Governor stand at a different footing. The Lieutenant Governor may be required to act in his discretion where G a matter falls outside the powers conferred on the legislative assembly but in respect of which powers or functions have been delegated to him by the President. The Lieutenant Governor may also be required to act in his discretion under a specific provision of law or where he exercises judicial or quasi judicial functions. Matters pertaining to public order, H

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police and land lie outside the ambit of the legislative powers of the A Assembly and hence are outside the executive functions of the government of NCT. These are matters where the Lieutenant Governor would act in the exercise of his functions at his discretion if and to the extent to which there has been a delegation or entrustment by the President to him under Article 239 of the Constitution. Hence, a distinction exists between matters which lie within the domain of the legislative powers of the Assembly and of the executive powers of the NCT government, and those which lie outside. On the former, the Lieutenant Governor must abide by the aid and advice tendered by the Council of Ministers and, in the event of a difference of opinion, refer the matter to the President for decision. In matters which lie outside the legislative powers of the legislative assembly, the Lieutenant Governor has to act in accordance with the entrustment or delegation that has been made to him by the President under Article 239.

105. Section 49 of the GNCTD Act confers an overriding power of control upon the President and the power to issue directions. Upon D the exercise of Presidential powers under Section 49, the Lieutenant Governor would have to abide by the directions of the President. K. Precedents Literal Interpretation E

106. The Learned Additional Solicitor General has relied on certain decisions of this Court to support his submission that while interpreting the Constitution, the Court must read its words in a strictly textual manner. It is his contention that the provisions of Article 239AA, the GNCTD Act and Transaction of Business Rules must be given plain and literal interpretation. F

107. The first case relied by the Learned ASG is the decision in Keshavan Madhava Menon v State of Bombay 83 (“Keshavan Madhava Menon”). A Full Bench of the Bombay High Court had held that assuming that the provisions of the Indian Press (Emergency Powers) Act, 1931 were inconsistent with Article 19(1)(a) of the Constitution, G proceedings which had been commenced and were pending at the date of the commencement of the Constitution were not affected even if the Act was inconsistent with the fundamental rights and had become void under Article 13(1). The appeal against the judgment of the High Court 83 (1951) 2 SCR 228 H

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A was adjudicated by a seven-Judge Constitution Bench of this Court. Justice S R Das, speaking for a majority of this Court held that: “An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of E India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” Applying the standard, the majority held that Article 13 of the Constitution “is entirely prospective in operation and rendered inconsistent existing laws ineffectual on and after the date of the commencement of the Constitution”. The view of the majority was that there is no fundamental H

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right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. Justice Fazal Ali in his dissenting judgment, however, held that: “..Evidently, the framers of the Constitution did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in Article 13(1), it is difficult for me to understand. There can be no doubt that Article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied.” E

108. The next judgment on which reliance has been placed by the ASG is in Tej Kiran Jain v N Sanjiva Reddy84. A Bench of six judges of this Court was considering an appeal from the judgment of a Full Bench of the Delhi High Court rejecting a plaint claiming a decree for damages for statements made on the floor of the Lok Sabha during a F Calling Attention Motion. Such an action was clearly barred under Article 105(2) of the Constitution. This Court rejected the contention that the immunity granted by Article 105(2) in respect of anything said or any vote given in Parliament would apply only to words relevant to the business of Parliament and not to something which was irrelevant. In that context, G the Court held that: “In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity 84 (1970) 2 SCC 272 H

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A inter alia in respect of “anything said …. In Parliament”. The word ‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from the words ‘in Parliament’ which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament B was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity is not only complete but is as it should be…”

109. The third decision is of a Constitution Bench in G Narayanaswami v G Pannerselvam85 (“Narayanaswami”). In that C case, Article 171 of the Constitution came up for interpretation and the submission which was urged was that in order to be qualified to stand for election to a graduate constituency of the Legislative Council of a State, a person must also possess the qualification of being a graduate. Repelling the contention, this Court held that it was not open to the Court D to add to the qualifications prescribed by the Constitution: “..The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents… the view contained in the Judgment under appeal, necessarily results E in writing some words into or adding them to the relevant statutory provisions to the effect that the candidates from graduates’ constituencies of Legislative Councils must also possess the qualification of having graduated. This contravenes the rule of “plain meaning” or “literal” construction which must ordinarily prevail.” F

110. In support of the above contention, reliance has also been placed on two other Constitution Bench decisions of this Court in Kuldip Nayar v Union of India86 (“Kuldip Nayar”) and Manoj Narula v Union of India87 (“Manoj Narula”). In Kuldip Nayar, an amendment made in the Representation of People Act, 1951 was challenged. By the G said amendment, the requirement of “domicile” in the State concerned for getting elected to the Council of States was deleted. It was contended by the petitioner that removing the said requirement violated the principle 85 (1972) 3 SCC 717 86 (2006) 7 SCC 1 87 H (2014) 9 SCC 1

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of federalism, a basic feature of the Constitution. The Court rejected the contention of the petitioner. While endorsing and reiterating the view taken in the judgment in Narayanaswami, the Court held: “It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact the rule of “literal construction” is the safe rule unless the language used is contradictory, ambiguous, or leads really to absurd results… The “representative” of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them. There is absolutely no basis for the contention that a person who is an elector in the State concerned is more “representative” in character than one who is not. We do not find any contradiction, ambiguity, or absurdity in the provisions of the law as a result of the impugned amendment. Even while construing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, the rule of “plain meaning” or “literal” interpretation compels us not to accept the contentions of the petitioners.” In Manoj Narula, a writ petition under Article 32 of the Constitution assailed the appointment of some of the original Respondents as Ministers E to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. The question before the Court was whether a categorical prohibition can be read to the words contained in Article 75(1) of the Constitution so that the Prime Minister is constitutionally prohibited to give advice to the President in respect of a person for becoming a Minister who is facing a criminal trial for a heinous and serious offence and charges have been framed against him by the trial Judge. The Constitution Bench held that it cannot re-write a constitutional provision: “Reading such an implied limitation as a prohibition would tantamount to adding a disqualification at a particular stage of the trial in relation of a person. This is neither expressly stated nor is impliedly discernible from the provision.”

111. These judgments do not advance the proposition which is

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A sought to be urged on behalf of the Union of India that anything but the literal meaning of the words used is irrelevant to the interpretation of the Constitution. The judgment in Keshavan Madhava Menon held that the Court has to gather the spirit of the Constitution from its language and that the language of Article 13 had to be interpreted in accordance with the established rules of interpretation “uninfluenced by any assumed spirit of the Constitution”. These observations of the seven-judge Bench are not intended to adopt a principle of interpretation which requires the Court to ignore the basic values which the Constitution seeks to enhance, while interpreting the words used in the text. The words contained in the text of the Constitution have to be attributed a purposive interpretation which advances fundamental constitutional values. In Keshavan Madhava Menon, the Court found the ‘spirit of the Constitution’ to be perhaps too vague or amorphous (though it was not articulated specifically thus). After the evolution of the basic structure doctrine post Kesavananda, the interpretation of the Constitution must be guided by those fundamental tenets which constitute the foundation and basic features of the document. Where a provision of the Constitution is intended to facilitate participatory governance, the interpretation which the Court places must enhance the values of democracy and of republican form of government which are part of the basic features.

112. The judgment in Tej Kiran Jain rejects the attempt to dilute the immunity conferred by Article 105 in respect of statements made on the floor of the House. The judgment in Narayanaswami rejected the attempt to read a qualification for being elected to the Legislative Council which was not found in the text of Article 171. The Court in Manoj Narula refused to read a disqualification into the words of Article 75 for being appointed as a Minister of the Union Cabinet. The Constitution of India is an embodiment of multiple values. The Constitution preserves national unity. Yet it also nurtures regional autonomy and decentralization. As discussed in the beginning of this judgment, the approach of a constitutional court must be to interpret the Constitution so as “to arbitrate between contesting interpretations of the many core values on which our polity is believed to be based.”88 Each provision of the Constitution must therefore be studied “as an expression of values” and has to be interpreted “against the background of an overarching constitutional 88 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press (2008), at page 9 H

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order”.89 Representative democracy underlines the essence of our A Constitution. Collective responsibility of the Council of Ministers is the most essential component of the Cabinet form of government as envisaged under the Constitution. The trust reposed in the Council of Ministers of the NCT is based on its constitutional status. These moral values of the Constitution must therefore be upheld. B

113. In Kuldip Nayar’s case, the Court had held that in order to interpret the intention behind the enactment of a provision, “one needs to look into the historical legislative developments”. Placing the structure of governance in the NCT to a constitutional pedestal (while making divergences from previous statutory schemes, as discussed earlier in this judgment) provided a special status to the NCT, which this Court C cannot ignore. This Court must interpret the Constitution on the basis of the principles elucidated in the beginning of this judgment. Relationship between Centre and Union Territories D

114. The relationship between the Union government and a Union territory has in varying contexts been the subject matter of decided cases. In Satya Dev Bushahri v Padam Dev90 (“Satya Dev Bushahri”), the election of the first respondent was questioned, among other grounds, for the reason that he was interested in contracts with the government and was disqualified for being chosen to the legislative assembly of Himachal Pradesh. The Election Tribunal rejected the contention holding that Representation of the People Act, 1951 was not applicable to elections in Part C States. The appellant contended that the contracts in which the elected candidate had interest were in fact contracts with the Central government, which disqualified him from becoming a member of the legislative assembly. It was urged that since the executive action of the Central government is vested in the President, the President was also the executive head of Part C States and a contract entered into with the then state of Himachal Pradesh was in law a contract with the Central government. Dealing with the submission, Justice T L Venkatarama Ayyar G speaking for a Bench of three judges of this Court held thus :

89 Martin Loughlin, “The Silences of Constitutions”, International Journal of Constitutional Law (2019, In Press) https://www.iura.uni-treiburg.de/de/institute/rphii/ freiburger vortraege/silences-of-constitutions-m-loughlin-manuskript.pdf 90 (1955) 1 SCR 549 H

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A “9…The fallacy of this reasoning is obvious. The President who is the executive head of the Part C States is not functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under Article 239. The authority conferred under Article 239 to administer Part C States has not the effect of converting those States into the Central B Government. Under Article 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged C with the Central Government.” The Court consequently rejected the contention that a contract with a Part C State should be construed as a contract with the Central government. This decision was subject to a review. In the application for review, reliance was sought to be placed on the provisions of Section D 3(8)(b)(2) of the General Clauses Act which define the expression “Central Government” as follows : “3…Central Government’ shall in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include in relation to the administration of a E Part C State, the Chief Commissioner or Lieutenant-Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under Article 239 or Article 243 of the Constitution, as the case may be.” On this basis, it was urged that a contract with the Chief Commissioner F of Himachal Pradesh must be treated as a contract with the Central government and in consequence the elected candidate was disqualified under the relevant legislation. On the other hand, the elected candidate relied upon the provisions of Section 3(60)(b) which read as follows: “State Government” as respects anything done or to be done after G the commencement of the Constitution, shall mean, in a Part A State, the Governor, in a Part B State the Rajpramukh, and in a Part C State the Central Government.” This Court, in the course of the judgment in review, held that in view of the provisions of Section 3(8), a contract with the Chief Commissioner H

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in a Part C State is a contract with the Central government, which would be a disqualification for election to the legislative assembly under Section 17 of Government of Part C States Act 1951 read with Section 7(d) of Representation of the People Act, 1951. In the view of the Court: “4…We are unable to agree that Section 3(8) has the effect of putting an end to the status of Part C States as independent units, distinct from the Union Government under the Constitution. It merely recognises that those States are centrally administered through the President under Article 239, and enacts that the expression “Central Government “should include the Chief Commissioner administering a Part C State under the authority given to him under Article 239. Section 3(8) does not affect the status of Part C States as distinct entities having their own Legislature and judiciary, as provided in Articles 239 and 240. Its true scope will be clear if, adapting it, we substitute for the words “Central Government” in Section 9 of Act 43 of 1951 the words “the Chief Commissioner acting within the scope of the authority given to him under Article 239”. A contract with the Chief Commissioner would, therefore, under Section 9 read with Section 3(8) of the General Clauses Act, be a contract with the Central Government, and would operate as a disqualification for election to either House of Parliament under Sections 7(d) and 9 of Act 43 of 1951, and it would be a disqualification under Section 17 of E Act 49 of 1951, for election to the Legislative Assembly of the State.”

115. The subsequent decision in Devji Vallabhbhai Tandel v Administrator of Goa, Daman & Diu91 (“Tandel”) involved an order of detention issued under the COFEPOSA92 by the Administrator of F Goa, Daman and Diu. One of the grounds of challenge before the Bench of three Judges of this Court was that an order of detention could be made only by the Chief Minister in the name of the Administrator, and not by the Administrator. Section 2(f) defined the expression “state government”, in relation to a Union territory, to mean the Administrator. G An order of detention could be issued under Section 3(1) by the Central government or the state government or officers of a certain rank who 91 (1982) 2 SCC 222 92 The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 H

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A were duly empowered. Justice Baharul Islam speaking for this Court noted that comparing the provisions of Articles 74 and 163, on the one hand and Section 44 of the Government of Union Territories Act 1963, there was a manifest difference between the position of the President or Governor and the Administrator of a Union territory. In the view of the Court: B “14…The Administrator even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial function, is not bound to act according to the advice of the Council of Ministers. This becomes manifest from the proviso to Section 44(1). It transpires from the proviso C that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator D opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would act according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of E Ministers of the Union Territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union Territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council F of Ministers.” The Court adverted to the fact that when the Administrator makes a reference to the President on a difference of opinion arising with the Council of Ministers, he may “during the interregnum...completely override the advice of the Council of Ministers and act according to his G light”. This Court observed that neither the Governor nor the President enjoys such a power: “15…This basic functional difference in the powers and position enjoyed by the Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to H

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hold on the analogy of the decision in Samsher Singh case is that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own. Therefore, for this additional reason also the submission... must be rejected.”

116. The learned Additional Solicitor General has placed reliance on the above observations to submit that since the proviso to Section 44 was “bodily lifted” (as he describes it) and placed in Article 239AA(4), the construction placed by the Bench of three Judges in Tandel on the ambit of the powers of the Administrator will govern the construction of the proviso to Article 239AA. On the other hand, Mr Gopal Subramanium urged that the above interpretation of the proviso to Section 44(1) of the C 1963 Act will not apply proprio vigore to Article 239AA. In his submission, the constitutional amendment resulting in the introduction of Article 239AA is a significant expression of people’s sovereignty and the intention underlying it must receive a purposive interpretation. While not detracting from the importance of the NCT, Mr Subramanium D submitted that the area of control with the Administrator which is “an exceptional residual power” must not set at naught a democratically elected Cabinet form of government in the Union territory. We will return to the proper construction to be placed upon the proviso. However, at this stage we find it difficult to subscribe to the view that the content of the constitutional provision engrafted in Article 239AA must be read on the same pedestal as the content of the statutory provision in Section 44 of the 1963 Act. The fact that the proviso to Article 239AA(4) is similar in terms to the proviso to Section 44(1) of the 1963 Act may be one aspect of relevance to the construction of the former. Yet, to our mind, in construing a constitutional provision, the considerations which weigh with the Court would not be constricted by the principles underlying the interpretation of the provisions of a statute. Ordinarily while construing a statute, the Court would be guided by the plain and grammatical meaning of the words used. The literal or golden rule of interpretation gives way where its consequence would lead to an absurdity or perpetuate an evil which the legislature had intended to avoid. The Court, even while interpreting a statute, may adopt a purposive interpretation. An interpretation is purposive because it facilitates the object which the legislature intended to achieve by enacting the law. Even a purposive interpretation seeks to fulfil the aim and object of the legislature which H

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A enacted the law. While construing the provisions of the Constitution, the Court cannot be oblivious either to the nature of the document which it construes or to its task as an institution created by the Constitution to interpret its provisions. Ordinary law is susceptible to alteration by legislative majorities. Legislative amendments to statutory provisions are often a response to the predicaments of the moment. The object of elevating rights, duties and modes of governance into the protective terrain of a constitutional document is to precisely elevate them to a status of stability and permanence which we attribute to a constitutional provision. Constitutional provisions are also subject to the amendatory process under Article 368 so long as the basic features of the Constitution are not abridged. The restraints on the constituent power in the form of the special majorities required for the passage of an amendment, the requirement in certain cases of ratification by the state legislatures and the substantive limits imposed by the basic structure doctrine make the distinction between ordinary legislation and a constitutional amendment evident. Interpretation of a constitutional text is therefore governed by the precept that the Court is embarking upon the task of construing an organic document which defines the basic compact for society. It is in that sense that the Court will bear in mind that it is the Constitution which the Court is expounding. These considerations must apply with significant force when an amendment to the Constitution has (as in the present case) strengthened the basic structure by entrenching the principle of democratic governance. Consequently, the line of thought which requires us to read the proviso to Article 239AA(4) in terms of the proviso to Section 44(1), and to follow the line of interpretation of the latter in Tandel’s case is to place words above the heart and soul of the Constitution. Tandel’s case did not have to go into the issues which arise before us in relation to the exercise of constitutional powers. Tandel does not explain what is the nature of the difference of opinion which will warrant a reference to the President. The COFEPOSA, as we have noticed, defined the expression “state government” in relation to a Union territory to mean ‘the Administrator thereof’. The Court did not have to consider the effect of the proviso, in any event not in the context of a constitutional provision. There are more fundamental issues which the Court must resolve while interpreting the text of the Constitution which lie beyond the mere question of whether the Administrator of Goa (as in that case) was authorised to issue an order of detention. While construing H

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the text of Article 239AA, the endeavour of the Court must be to facilitate the strengthening of democratic institutions. Constitutional liberties survive and democracies remain vibrant when the institutions of governance created by the Constitution are capable of withstanding the challenges of the times. As an expounder of constitutional principle, it is the foremost duty of the Court to adopt an interpretation which gives expression to democratic values. Truth, justice and freedom are cardinal values in the democratic quest of achieving the dignity of citizens. The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society. In interpreting constitutional text, history should remind us how fragile liberty and democracy can be, unless citizens fiercely protect their foundations. We can ignore them only at our peril.

117. Another decision of this Court which must be adverted to is in Goa Sampling Employees’ Association v General Superintendence Co. of India Pvt. Ltd.93 (“Goa Sampling”). A reference was made by the Central government of an industrial dispute for adjudication under the Industrial Disputes Act 1947. It was sought to be urged that in relation to a Union Territory, the Central government is the appropriate government. The Tribunal held that the workmen were dock workers governed by an Act of Parliament and since they were working in a major port, it was the Central government which was the appropriate government. The Tribunal also held that even if the state government is the appropriate government, since Goa was then a Union territory and its administration was carried on by an Administrator appointed by the President under Article 239, the Central government was the appropriate government. The High Court held that the industrial dispute in which the workmen were involved did not concern a major port and hence the Central government was not the appropriate government. Moreover, the High Court also held that the Central government is not the state government for the Union territory of Goa under the Act but it was the Administrator appointed under Article 239 who is the state government. The Administrator being the appropriate government, the High Court held that the Central government had no jurisdiction to make the reference. It was the second limb of the finding of the High Court which was considered by this Court in the course of its judgment. In order to appreciate the controversy, it is necessary to 93 (1985) 1 SCC 206 H

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A consider the expressions “Central government” as defined in Section 3(8) of the General Clauses Act, 1897 which reads as follows: “(8) ‘Central Government’ shall— (a) * * * B (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include, (i)-(ii) * * * (iii) in relation to the administration of a Union Territory, the C Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution.” The expression “state government” is defined in Section 3(60), insofar as is material thus: “ ‘State Government’,— D (a)-(b) * * * (c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, E the Central Government;” “Union territory” is defined in Section 3(62) to mean the Union territories specified in the First Schedule to the Constitution and to include any other territory comprised within the territory of India but not specified in that Schedule. F Dealing with the provisions of Section 44(1) of the 1963 Act, this Court observed thus: “12…According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision given G therein by the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point.” H

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The Court noticed that the provisions of Part VI of the Constitution A which deal with the States clearly indicate that a Union territory administration is not a state government. The Court observed that the Constitution makes a distinction between a State and its government (called the state government) on one hand and the Union territory and its administration on the other hand. This distinction, the Court observed, was carried in the definition contained in the General Clauses Act: “14…Now if we recall the definition of three expressions “Central Government” [Section 3(8),] “State Government” [Section 3(60)] and “Union Territory” [Section 3(62-A)] in the General Clauses Act, it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression “Central Government” that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression “Central Government”. When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression “State Government” which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, E 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression “State Government” and the “Administration of a Union Territory” clearly emerges. Therefore, there is no room for doubt that the expression “Administration of F a Union Territory”, Administrator howsoever having been described, would not be comprehended in the expression “State Government” as used in any enactment.” The view of the High Court that the Administrator is the state government insofar as the Union territory is concerned under Section 3(60) was held G to be in error. The decisions in Satya Dev Bushahari and in The State of Madhya Pradesh v Shri Moula Bux94 were distinguished since they were rendered prior to the amendment of Part VIII of the

(1962) 2 SCR 794

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A Constitution in 1956 and before the insertion of Articles 239A and 239B. The position in law was set out as follows: “17…On a conspectus of the relevant provisions of the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory B and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the Administrator of Union Territory does not qualify for the description of a State Government. Therefore, the Central Government is the “appropriate Government”.” The decision of the two judge Bench in Goa Sampling explains that under the General Clauses Act 1897, the expression “Central government” will include the Administrator of a Union territory acting within the scope of his authority under Article 239, in relation to the administration of the Union territory. Similarly, the expression “state government” means in relation to the Union territory, the Central E government. The Central government was held to be the appropriate government to make a reference under the Industrial Disputes Act, 1947. The judgment in Goa Sampling dealt with the limited scope as to which is the appropriate Government under the Industrial Disputes Act.

118. The issue as to whether the Lieutenant Governor of the NCT F is competent to accord sanction for prosecution under the Prevention of Terrorism Act and the Code of Criminal Procedure was considered by a two judge Bench of this Court in State (NCT of Delhi) v Navjot Sandhu95 (“Navjot Sandhu”). In that case, sanctions under both the statutes were accorded “by order and in the name of the Lieutenant Governor”. The sanction under Section 50 of the POTA was urged to G be a nullity on the ground that in relation to the Union Territory only the Central government was competent to accord it. Section 2(1)(h) of POTA defined the expression “State” in relation to a Union territory, to mean the Administrator thereof. Rejecting the challenge, this Court held that under Article 239AA, the Administrator appointed under Article H 95 (2005) 11 SCC 600

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239 does not lose his status as such and it is only his designation which is merged into the new designation of Lieutenant Governor “in keeping with the upgraded status of this particular Union territory”. The Lieutenant Governor, who continues to be an Administrator, was held to derive authority to grant sanction under Section 50 by reason of the legislative fiction under Section 2(1)(h), the Administrator being deemed to be the state government for the purpose of Section 50. Hence : “..by virtue of specific statutory delegation in favour of the Administrator who is constitutionally designated as the Lieutenant Governor as well, the sanction accorded by the said authority is a valid sanction under Section 50 of POTA..” C The decision in Navjot Sandhu turned upon a specific statutory delegation in favour of the Administrator to grant sanction. It is hence of no assistance to the present constitutional context. Decision in NDMC

119. A nine-judge Bench of this Court in New Delhi Municipal D Council v State of Punjab96 (“NDMC”) dealt with the issue as to whether properties owned and occupied by various states in the NCT are exempt from the levy of local taxes under Article 289(1) of the Constitution. Allied to this was the question as to whether the states are entitled to exemption from the levy of taxes imposed by Parliamentary E legislation under Article 246(4) upon their properties situated within the Union territories. Article 246(4) provides thus: “Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the F State List.” Justice B P Jeevan Reddy spoke for the majority of five judges. The minority view of four judges was rendered by Chief Justice Ahmadi.

120. The judgment of the majority notes that the States, put together, do not exhaust the territory of India. Parliament has the power to make G laws with respect to any matter for any part of territory of India not included in a State. Since the Union territories are not included in the territory of any State, Parliament was the only law making body. Dealing with the provisions of Article 239 AA, the Court held : 96 (1997) 7 SCC 339 H

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A “..In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA) but even here the legislature so created was not a full-fledged legislature nor did it have the effect of – assuming that it could – lift the National Capital Territory of Delhi from Union Territory B category to the category of States within the meaning of Chapter I of Part XI of the Constitution. All this necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament – or a legislative body created by it. Parliament can make any law in respect of the said territories – subject, of course, to constitutional limitations other than those specified in Chapter I of Part XI of the Constitution. Above all, the Union Territories are not “States” as contemplated by Chapter I of Part XI; they are the territories of the Union falling outside the territories of the States. Once the Union Territory is a part of the Union and not part of any State, it follows that any tax levied by its legislative body is Union taxation. Admittedly, it cannot be called “State taxation” – and under the constitutional scheme, there is no third kind of taxation. Either it is Union taxation or State taxation..”

121. The judgment of the majority also holds that all Union territories are not situated alike. The first category consists of Union territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has “special features” under Article 239 AA. Though the Union territory of Delhi “is in a class by itself”, it “is certainly not a State within the meaning of Article 246 or part VI of the Constitution”. Various Union territories- the Court observed - are in different stages of evolution. However, the position remains that these Union territories, including the NCT are yet Union territories and not a State. G General Clauses Act

122. Article 367 (1) of the Constitution provides that: “367(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that

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