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

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may be made therein under article 372, apply for interpretation of A this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.”

123. As we have noticed, the inclusive definition of the expression ‘State’ in Section 3(58) of the General Clauses Act, 1897 provides that as respects any period after the commencement of the Constitution B (Seventh Amendment) Act, 1956, the expression State shall mean the States specified in the First Schedule to the Constitution and shall include a Union territory. If this inclusive definition was made applicable for the purpose of construing Article 246(4), an anomaly would arise because Parliament would have no power to legislate in respect of the Union territories with respect to matters governed by the State list. Until a C legislature which is empowered to legislate on matters in the State list is created under Article 239A for the Union territories, there would be no legislature with competence to legislate on those matters. The consequences which would result from reading the provisions of Section 3(58) of the General Clauses Act while interpreting Article 246(4) were noticed in a judgment of a Constitution Bench in TM Kanniyan v Income Tax Officer, Pondicherry97 (“Kanniyan”). The Constitution Bench held that such a construction would be repugnant to the context of Article 246 and hence, Parliament would have under Article 246(4) plenary powers to make laws for all Union Territories in respect of all matters. The decision in Kanniyan was followed in the judgment of the majority in the nine-judge bench decision in NDMC. Even the judgment of the minority noted that while certain Union territories have legislative assemblies of their own, “they are very much under the supervision of the Union Government and cannot be said to have an independent status”. Notably, the minority view also accepted the principle that the definition of the expression “State” in Section 3(58) of the General Clauses Act is inapplicable to Article 246(4).

124. A Constitution Bench of this Court in Management of Advance Insurance Co. Ltd. v Shri Gurudasmal 98 (“Advance Insurance”) while construing Entry 80 of the Union list held that the definitions contained in the General Clauses Act may not always apply in relation to the expression “State” in the Constitution and much would depend upon the context. Entry 80 of the Union list provides as follows: 97

(1968) 2 SCR 103

98 (1970) 1 SCC 633 H

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A “80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State” In that case, on a complaint by an Income Tax Officer of the commission of offences by the appellant under Sections 409, 477A and 120B of the Penal Code, a case was registered by the Superintendent of Police in the Special Police Establishment, New Delhi. The appellant filed a writ petition challenging the right of the Special Police Establishment to investigate the case in the State of Maharashtra but it was dismissed by the High Court. In appeal before this Court, it was urged that the Delhi Special Police Establishment constituted under the Act XV of 1946 was not constitutional and had no jurisdiction to investigate cases in other states. The submission was that Entry 80 speaks of a police force belonging to any state and not of a police force belonging to a Union territory. Chief Justice Hidayatullah speaking for a Constitution Bench held that Section 3(58) of the General Clauses Act (which defines State in respect of any period after the commencement of the seventh constitution amendment to include a Union territory) “furnishes a complete answer to the difficulty which is raised since Entry 80 must be read so as to include Union territory”. Hence, the members of a police force belonging to a Union territory could have their powers and jurisdiction extended to another state with the consent of that State. The Constitution Bench held that the definitions in the General Clauses Act “cannot always be read” in interpreting the constitutional text and “the definitions apply unless there is anything repugnant in the subject or context”. The Constitution Bench held that: “After the Seventh Amendment India is a Union of States (Article 1) and the territories thereof are specified in the First Schedule. G Then there are Union Territories which are mentioned separately. There is thus a distinction between “States” and “Union Territories” which cannot be lost sight of. When the definition cannot be made applicable owing to the context or the subject, the word “State” refers to States in the First Schedule only. Such an occasion arose H

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in I.M Kanniyan v Income-Tax Officer, Pondicherry and Another, A and Bachawat, J., explained Article 246 by holding that the definition of “State” in two parts in the adapted Section 3(58) of the General Clauses Act was repugnant to the subject and context of Article 246. There is nothing in the subject or context of Entry 80 of the Union List which can be said to exclude the application B of the definition in Section 3(58). Indeed the Part C States were expressly mentioned in Entry No. 39 of the Federal List of the Government of India Act, 1935 (after its amendment in 1947) and thus before the Seventh Amendment the definition of State (subject to the subject or context) included Part C States. Therefore, the definition of “State” in Section 3(58) in the General Clauses Act C after the adaptation in 1956 applies and includes Union Territories in Entry 80 of the Union List” The Constitution Bench in Advance Insurance did not find anything repugnant in the subject or context of Entry 80 of the Union list. Hence, Entry 80 was held to include Union territories. D

125. In Union of India v Prem Kumar Jain99, a Bench of four judges of this Court dealt with an appeal from a decision of the Delhi High Court which had quashed a notification of the Union government and a scheme for the formation of a joint cadre of the Indian Administrative Service. The High Court had held the formation of a E Delhi – Himachal Cadre of service to be ultra vires. The creation of a joint cadre for all Union territories on 1 January 1968 under Rule 3(1) of the IAS (Cadre) Rules 1954 was challenged as being contrary to Article 312 and the All India Services Act 1951, as it was not common to the Union and a State, a Union territory not being a State. The High Court held that Union territories not being States, the action was ultra vires. F In appeal, this Court observed that it was not necessary for Parliament to make a law providing for the creation of a service common to the Union and the States under Article 312(1), in view of clause 2, which provided as follows : “312 (2) The services known at the commencement of this G Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article”. 99 (1976) 3 SCC 743 H

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A Section 3(1) of the All India Services Act had a provision for making rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service “after consultation with the governments of the States concerned”. The issue was whether Union territories could be States for the purpose of such consultation. This Court held that the expression “State” having been defined in Section 3(58), from the B commencement of the seventh amendment to the Constitution in 1956, and the President having substituted a new clause 58 in Section 3, there was nothing repugnant to the subject or context to make that definition inapplicable. The High Court was held to have been in error in holding that Union territories were not States for that purpose.

C 126. Whether the expression “State” in the Constitution would cover a Union territory is a matter to be deduced from the context. The Constitution in the First Schedule makes a clear distinction between States and Union territories. Hence, the inclusive definition of the expression “State” in Section 3(58) of the General Clauses Act cannot apply to the D First Schedule. Similarly, in Article 246(4), which enables Parliament to make laws with respect to any matter for any part of the territory of India not included in a State, the definition in Section 3(58) would have no application, having due regard to the context. This was explained in the decision in Kanniyan. When there is something repugnant in the subject or context, the definition in Section 3(58) would have no E application. “Insofar as any such matter is applicable to Union territories”

127. In the State list and the Concurrent list of the Seventh Schedule, there are numerous entries which use the expression “State”. F These entries are illustratively catalogued below: “List II

12. Libraries, museums and other similar institutions controlled or financed by the State.

26. Trade and commerce within the State subject to the provisions G of entry 33 of List III.

37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament.

38. Salaries and allowances of members of the Legislature of the H

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State, of the Speaker and Deputy Speaker of the Legislative A Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof.

39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the B committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.

40. Salaries and allowances of Ministers for the State.

41. State public services; State Public Service Commission. C

42. State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.

43. Public debt of the State. LIST III D

3. Preventive detention for reasons connected with the security of a State

4. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons E specified in entry 3 of this List.

43. Recovery in a State of claims in respect of taxes and other public demands, including arrears of land-revenue and sums recoverable as such arrears, arising outside that State.” (Emphasis supplied) F

128. Article 239AA(3)(a) permits the legislative assembly of the NCT to legislate on matters in the State list, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent list, “insofar as any such matter is applicable to Union territories”. In forming an understanding of these words of Article 239AA(3)(a), it has to be noticed that since the decision in G Kanniyan right through to the nine-judge Bench decision in NDMC, it has been held that the expression “State” in Article 246 does not include a Union territory. The expression “insofar as any such matter is applicable to Union territories” cannot be construed to mean that the legislative H

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A assembly of NCT would have no power to legislate on any subject in the State or Concurrent lists, merely by the use of the expression “State” in that particular entry. This is not a correct reading of the above words of Article 239AA(3)(a). As we see below, that is not how Parliament has construed them as well.

B 129. Section 7(5) of the GNCTD Act provides that salaries of the Speaker and Deputy Speaker of the legislative assembly may be fixed by the legislative assembly by law. Section 19 provides that the members of the legislative assembly shall receive salaries and allowances as determined by the legislative assembly by law. Section 43(3) similarly provides that the salaries and allowances of ministers shall be determined by the legislative assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacted the above provisions unless legislative competence resided in the States on the above subject. The subjects pertaining to the salaries and allowances of members of the legislature of the state (including the Speaker and Deputy Speaker) and of the Ministers for the state are governed by Entry 38 and Entry 40 of the State list. The GNCTD Act recognises the legislative competence of the legislative assembly of NCT to enact legislation on these subjects. The use of the expression ‘State’ in these entries does not divest the jurisdiction of thelegislative assembly. Nor are the words of Article E 239AA(3)(a) exclusionary or disabling in nature.

130. The purpose of the above narration is to indicate that the expression ‘State’ is by itself not conclusive of whether a particular provision of the Constitution would apply to Union territories. Similarly, it can also be stated that the definition of the expression state in Section F 3(58) of the General Clauses Act (which includes a Union territory) will not necessarily govern all referencesto ‘State’ in the Constitution. If there is something which is repugnant in the subject or context, the inclusive definition in Section 3(58) will not apply. This is made clear in the precedent emanating from this Court. In certain contexts, it has been G held that the expression ‘State’ will not include Union territories while in other contexts the definition in Section 3(58) has been applied. Hence, the expression “insofar as any such matter is applicable to Union territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.

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L Construction of the proviso to Article 239AA(4) A

131. The vexed issue of interpretation relates to the proviso to Article 239AA(4). Undoubtedly, the National Capital Territory continues to be a Union territory. The Union government has a special interest in the administration of its affairs. This is exemplified by the provisions of Article 239 and Section 49 of the GNCTD Act. The proviso to Article B 239AA(4) must be given an interpretationwhich is marked with a sense of fine constitutional balance. The balance which is drawn must preserve the vital interest of the Union government in the governance of the national capital while supporting the legitimacy, and constitutional status of the Council of Ministers which owes collective responsibility to the legislative assembly and which, in its capacity of the executive arm of government C tenders aid and advice to the Lieutenant Governor under a cabinet form of governance.

132. Broadly speaking, three lines of reasoning emerge before the Court. The Court need not be constrained by having to choose one among them. It would be possible to draw from each, in arriving at a D conclusion. The first line of interpretation would have the Court interpret the expression “difference of opinion between the Lieutenant Governor and his Council of Ministers on any of the matter” without reservation or qualification. This line of interpretation follows a purely literal or textual construction. Any difference of opinion would fulfil the proviso E to clause 4. ‘Any matter’ would mean any matter without restriction. The Lieutenant Governor would be free to refer to the President just about any difference of opinion of any matter, where it has arisen with the Council of Ministers. This approach cautions the court against confining the proviso to specified categories or confining the areas where differences can arise. F

133. The second line of interpretation is that the expression should be read and confined to specified categories. To test the validity of this approach, four categories may be delineated. The Lieutenant Governor may invoke the power under the proviso where: G (i) Executive decisions or acts of the Government of NCT will impede or prejudice the exercise of the executive power of the Union government; (ii) The requirement of complying with laws enacted by Parliament or of the provisions of the Constitution arises; H

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A (iii) The executive authority of the government of NCT is sought to be exercised in an area where it has no legislative competence (the ultra vires doctrine); and (iv) A matter is located within Rule 23 of the Transaction of Business Rules.

B 134. There is a third line of interpretation, which has two facets. The first facet postulates at what stage, a reference to the President may be made in terms of the proviso. According to it, a reference can be made to the President only after the Lieutenant Governor has made an effort to resolve a difference with a Minister or with the Council of C Ministers by seeking a resolution through dialogue and discussion. The Lieutenant Governor has to follow the provisions contained in the Transaction of Business Rules, which mandate that an attempt should be made to resolve differences within the institutional level of the NCT government before escalating matters to the President. The second facet relates to the substantive meaning of the expression ‘any matter’. ‘Any D matter’ in this line of interpretation would not mean ‘every matter’ or every trifling matter but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union territory that it deserves to be escalated to the President. The third approach to interpretation proposes that both a procedural and substantive nuance must be adopted while interpreting the proviso, failing which the salutary constitutional purpose underlying Article 239AA will be defeated.

135. A close analysis of the three lines of interpretation would indicate that there is a kernel of substance in each of them, but there are pitfalls which must be guarded against. The functioning of institutions must establish a constitutional balance which facilitates cooperative governance. Governance in cooperation is both a hallmark and a necessity of our constitutional structure. Our Constitution distributes legislative and executive powers between political entities. Distribution of power between institutions which are the creation of the Constitution is a significant effort to ensure that the values of participation and representation which constitute the foundation of democracy permeate to all levels of governance. The federal structure for governance which is a part of the basic structure recognizes the importance of fulfilling regional aspirations as a means of strengthening unity. The Constitution has adopted some but may be not all elements of a federal polity and the H

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Union government has an important role in the affairs of the nation. For A the purpose of the present discourse, it is necessary to emphasise the value which the Constitution places on cooperative governance, within the federal structure.100 An illustration is to be found in Chapter II of Part XI which deals with the administrative relations between the Union and the States. Under Article 256, an obligation has been cast upon every state to ensure that its executive power is exercised to secure compliance with laws enacted by Parliament. The executive power of the Union extends to issuing directions to a State as are necessary, for that purpose. Article 257 contains a mandate that in exercising its executive power, a State shall not impede or prejudice the exercise of the executive power of the Union. The constitutional vision of cooperative governance is enhanced by the provision made in Article 258 under which the President may, with the consent of a State, entrust to it or to its officers, functions in relation to any matter to which the power of the Union extends. Similarly, even on matters on which a State legislature has no power to make laws, Parliament may confer powers and impose duties on the officers of the State. Article 261 provides that full faith and credit must be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. Without determining (it being unnecessary for the present discussion) the extent to which these provisions apply to a Union territory, the purpose of emphasising the principles which emerge from the chapter on administrative relations is to highlight the necessity for cooperative governance between different levels of government, in a Constitution, such as ours, which contains an elaborate distribution of power between political entities and institutions. The construction which the Court places on the proviso to Article 239AA(4) must facilitate mutual cooperation so that the affairs of state are carried out without dislocations occasioned by differences of perception. Differences between political arms of the state are natural to a democratic way of life. The strength inherent in differences is that the Constitution provides a platform for the robust expression of views, accommodates differences of ideology and acknowledges that the resilience, and not the weakness of the nation lies in the plurality of her cultures and the diversity of her opinions. The working of a democratic Constitution depends as much on the wisdom and statesmanship of those in charge of governing the affairs of the

100 Granville Austin (Supra note 3), at page 232 H

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A nation as much as it relies on the language of the Constitution defining their powers and duties.

136. The proviso to Article 239AA(4) must be operated and applied in a manner which facilitates and does not obstruct the governance of the NCT. If the expression ‘any matter’ were to be construed as ‘every matter’ or every trifling matter that would result in bringing to a standstill the administration of the affairs of the NCT. Every conceivable difference would be referred to the President. The elected representatives would be reduced to a cipher. The Union government would govern the day to day affairs. The forms of the Constitution would remain but the substance would be lost. Article 239AA has been introduced as a result of the exercise of the constituent power. The purpose of the exercise is to confer a special status on the National Capital Territory. The arrangements for administering the affairs of Delhi are constitutionally entrenched as a result of the Sixty-Ninth amendment. Whether there should be a Council of Ministers or a Legislature (or both) was not left to determination in an Act of Parliament. The Constitution mandates that both must exist in the NCT. The Constitution mandates direct elections to the Legislature. It obligates the existence of a Council of Ministers which owes collective responsibility to the Legislature. It demarcates the area of legislative and executive power. The Lieutenant Governor, as the substantive part of Article 239AA(4) stipulates, is to act on the aid and advice of the Council of Ministers. In adopting these provisions, the Constitution incorporates the essentials of the cabinet form of government. Was this to have no meaning? A constitutional court must be averse to accepting an interpretation which will reduce these aspirations of governance to a mere form, without the accompanying substance. The Court must take into consideration constitutional morality, which is a guiding spirit for all stakeholders in a democracy.

137. In discharging his constitutional role, the Lieutenant Governor has to be conscious of the fact that the Council of Ministers which tenders aid and advice is elected to serve the people and represents both the aspirations and responsibilities of democracy. Neither the Constitution nor the enabling legislation, which we have noticed earlier, contemplate that every decision of the executive government must receive the prior concurrence of the Lieutenant Governor before it can be implemented.

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138. The interpretation of the proviso must be cognizant of the A constitutional position that though Delhi has a special status, it continues to be a Union territory governed by Part VIII. There are take-aways from the first line of interpretation which have significance. Within the rubric of Union territories, as the nine-judge Bench decision in NDMC noticed, different Union territories are in varying stages of evolution. B Some of the erstwhile Union territories such as Goa attained full statehood and ceased to be Union territories. Some may not have a legislature. Some may have a Legislature under an enactment of Parliament. Delhi has a special position in that both its Legislature as well as Council of Ministers have a constitutionally recognized status. The conferment of this status by a constitutional amendment enhances the position of its arms of governance within Union territories without conferring statehood. Delhi is administered by the President under Article 239 acting through an Administrator who is designated as a Lieutenant Governor under Article 239AA(1). The language of the opening words of Article 239(1) must be read in harmony with Article 239AA. In terms of the reach of its legislative powers, the legislative assembly for the NCT does not exercise exclusive jurisdiction over State List subjects. Parliament has legislative authority (in addition to the Union List), both in regard to the State and Concurrent Lists for NCT. Hence legislation by the legislative assembly, even on matters which fall within its legislative domain is subject to the overriding power of Parliament. The principle of repugnancy which Article 254 recognises between Union and State legislation on matters in the Concurrent List is extended by Article 239AA [3(b) and 3 (c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the legislative assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being co-extensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a cabinet form of government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive power, consistent with its status as a Union territory.

139. The exercise of the constituent power to introduce Article 239AA was cognizant of the necessity to protect national interests H

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A inherent in the governance of a national capital. A sense of permanence and stability was sought to be attributed to the arrangements made for governing Delhi by bringing in a constitutional amendment. Both in terms of the reach of the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that the governance of Delhi implicates a sense of national interest. When matters of national interest arise, they would predicate a predominant role for institutions of national governance.

140. Consistent with the need to preserve national interest, it would not be appropriate to restrict the ambit of the proviso to Article 239AA(4) to situations where the action of the government is ultra vires the limits of its executive powers. This becomes evident on a construction of the provisions of Section 41(1)(i) and Section 44(1)(a) of the GNCTD Act. Sub-clause(i) of Section 41(1) enables the Lieutenant Governor to act in his discretion on a matter 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. Under Section 44(1)(a), Rules of Business are made on matters on which the Lieutenant Governor is required to act on the aid and advice of the Council of Ministers. Section 44(1)(a) covers business which is not a part of Section 41(1)(i). This is because matters which fall within Section 44(1)(i) are not governed by the principle of aid and advice. E

141. There is much to be said for not laying down an exhaustive catalogue of situations to which the proviso applies. Governance involves complexities. In the very nature of things, it would not be possible for a Court delivering judgment in the context of the problems of the day to anticipate situations which may arise in future. It would be unsafe to F confine a constitutional provision to stated categories which may affect the resilience of the Constitution to deal with unforeseen situations. Some of the illustrations which may warrant the exercise of the power under the proviso may shed light on the purpose of the proviso and the object which it seeks to achieve.

G 142. There are two constitutional perspectives: first, the operation of the proviso should preserve the national concerns underlying the conferment of such a power, and second, the exercise of the power under the proviso must not destroy the essential democratic values recognised in Article 239AA. Thus, it is necessary to lay down the steps H

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which need to be adopted before recourse is taken to the proviso. The A Transaction of Business Rules indicate in sufficiently elaborate terms that when there is a difference of opinion between the Lieutenant Governor and a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, to give clarity to the operating procedure for invoking the proviso. Moreover, once a reference is made to the President, the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted by emergent circumstances until the President has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Minister or, as the case may be, the Council of Ministers to resolve a matter of difference. The nature of the differences which may warrant a reference to the President cannot be exhaustively catalogued. But it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national capital. Financial concerns of the Union government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved. A situation of the nature indicated in Rule 23 of the Transaction of Business Rules may well justify recourse to the proviso. The touchstone for recourse to the proviso is that the difference of opinion H

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A is not a contrived difference. The matter on which a difference has arisen must be substantial and not trifling. In deciding whether to make a reference, the Lieutenant Governor must always bear in mind the latitude which a representative government possesses to take decisions in areas falling within its executive authority. The Lieutenant Governor must bear in mind that it is not he, but the Council of Ministers which B takes substantive decisions and even when he invokes the proviso, the Lieutenant Governor has to abide by the decision of the President. The Lieutenant Governor must also be conscious of the fact that unrestrained recourse to the proviso would virtually transfer the administration of the affairs of the NCT from its government to the Centre. If the expression C ‘any matter’ were to be read so broadly as to comprehend ‘every matter’, the operation of the proviso would transfer decision making away from the government of the NCT to the Centre. If the proviso were to be so read, it would result in a situation where the President would deal with a reference on every matter, leaving nothing but the husk to the administration of the Union territory. Article 239AB makes a provision where there is a failure of the constitutional machinery in the Union territory. The proviso to Article 239AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the legislative assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi as a national capital are not bypassed. If these fundamental precepts are borne in mind, the operation of the proviso should pose no difficulty and the intervention of the President F could be invoked in appropriate cases where a matter fundamental to the governance to the Union territory is involved. M Conclusions

143. After analysing the constitutional and statutory provisions G and the precedents on this point, this Court reaches the following conclusions: (1)The introduction of Article 239AA into the Constitution was the result of the exercise of the constituent power. The 69th amendment to the Constitution has important consequences H

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for the special status of Delhi as the National Capital Territory, A albeit under the rubric of a Union territory governed by Part VIII of the Constitution; (2)The content of such a constitutional amendment cannot be confined or constrained by the content of legislations which governed Delhi in the past. The constitutional amendments B sought to bring stability and permanence to the democratic governance of the NCT. An amendment which enhances the basic features of the Constitution must bear an interpretation which will fulfil its true character; (3)The Administrator appointed by the President under Article C 239(1) is designated, with reference to the NCT as its Lieutenant Governor. The substantive source of power to appoint the Lieutenant Governor arises from Article 239 of the Constitution; (4)While Article 239(1) indicates that the administration of a Union D territory is by the President, the opening words of the provision (“Save as otherwise provided by Parliament by law”) indicate that the nature and extent of the administration by the President is as indicated in the law framed by Parliament. Moreover, the subsequent words of the provision (“to such extent as he thinks fit”) support the same position; E

(5) By adopting Article 239AA, Parliament as a constituent body, provided Delhi with a special status by creating constitutionally entrenched institutions of governance. Article 239AA mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital; F (6) The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government. These features emerge from the provisions of Article 239AA which: G (i) require direct election to the legislative assembly from territorial constituencies; (ii) engage the constitutional functions of the Election Commission of India under Articles 324, 327 and 329; H

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A (iii) confer law making authority on the legislative assembly in respect of matters governed by the State List (save for excepted matters) and the Concurrent List; (iv) mandate the collective responsibility of the Council of Ministers to the legislative assembly; and B (v) provide (in the substantive part of Article 239AA(4)) that the Lieutenant Governor shall act on the aid and advise of the Council of Ministers headed by the Chief Minister. In adopting these provisions through an amendment, the Constitution has recognized the importance of the cabinet form of government to C govern the affairs of Delhi; (7)The distribution of legislative power in Article 239AA is indicative of the predominant role assigned to Parliament as a legislative body. This emerges from:

D (i) the position that Parliament is empowered to legislate on subjects falling in the State List as well as the Concurrent List; and (ii) the carving out of the three subjects of public order, police and land (Entries 1, 2 and 18 of the State List) and of offences, jurisdiction of Courts and fees (Entries 64, 65 E and 66 in so far as they relate to the previous entries), all of which are within the exclusive legislative domain of Parliament. Principles of repugnancy govern any inconsistency between laws enacted by the legislative assembly and those by Parliament and the laws of F Parliament are to prevail unless a Presidential assent has been received. (8)The executive power of the government of NCT is co-extensive with the legislative power. The principle of aid and advice under clause 4 of Article 239AA extends to areas where the G Lieutenant Governor exercises functions in relation to matters where the legislative assembly has the power to make laws. In consequence, those matters on which the legislative assembly does not have the power to enact legislation are not governed by the principle of aid and advice. Similarly, the Lieutenant Governor is not subject to aid and advice on matters H

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where he is required to exercise his own discretion by or under A any law; (9)The GNCTD Act, 1991 has been enacted by Parliament in pursuance of the legislative authority conferred upon it by clause 7(a) of Article 239AA. The President has made the Transaction of Business Rules for the NCT as contemplated in the GNCTD B Act, 1991; (10)Section 41 of the GNCTD Act indicates that: (i) in matters which lie outside the legislative powers entrusted to the legislative assembly and where there has been an entrustment or delegation of functions by the President C to the Lieutenant Governor under Article 239; and (ii) on matters where the Lieutenant Governor exercises his own discretion by or under any law, he is not subject to the aid and advice of the Council of Ministers; D (11)Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i); (12) Under the Transaction of Business Rules, the Lieutenant Governor must be kept duly apprised on all matters pertaining to the administration of the affairs of the NCT. The Rules E indicate the duty of the Council of Ministers to inform the Lieutenant Governor right from the stage of a proposal before it. The duty to keep the Lieutenant Governor duly informed and apprised of the affairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD Act, 1991 and the F Transaction of Business Rules; (13) While the provisions contained in the Transaction of Business Rules require a scrupulous observance of the duty imposed on the Council of Ministers to inform the Lieutenant Governor on all matters relating to the administration of the NCT, neither G the provisions of Article 239AA nor the provisions of the Act and Rules require the concurrence of the Lieutenant Governor to a decision which has been taken by the Council of Ministers. Rule 14 of the Transaction of Business Rules in fact indicates that the duty is to inform and not seek the prior concurrence of H

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A the Lieutenant Governor. However, in specified areas which fall under Rule 23; it has been mandated that the Lieutenant Governor has to be apprised even before a decision is implemented; (14) As a result of the provisions of Article 367, the General B Clauses Act, 1897 applies, subject to adaptations and modifications made under Article 372, to the interpretation of the Constitution. The definitions of the expressions ‘state’ (Section 3(58)) and ‘state government’ (Section 3(60)) and ‘union territory’ (Section 3(62A)) apply to the interpretation of the provisions of the Constitution unless there is something C repugnant in the subject or context of a particular provision of the Constitution; (15) Since the decision of this Court in Kanniyan (supra) and right through to the nine-judge Bench decision in NDMC (supra), it is a settled principle that the expression ‘state’ in D Article 246(4) will not include a Union territory and that the definition contained in the General Clauses Act will not apply having regard to the subject and context of the provision. Decisions of this Court have applied the subject and context test to determine whether the expression ‘state’ in other provisions of the Constitution and in statutory provisions would include a Union territory; (16) The use of the expression “State” in a particular provision is not dispositive of whether or not its application would stand excluded in relation to a Union territory. The outcome is essentially based on the subject and context in which the word has been used; (17) While giving meaning and content to the proviso to Article 239AA (4), it is necessary to harmonise two significant precepts: (i) The Constitution has adopted a cabinet form of government for the Union territory of Delhi by creating institutions for the exercise of legislative power and an executive arm represented by the Council of Ministers; and (ii) Vital national interests are implicated in the governance of the National Capital Territory. H

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The doctrines of aid and advice and of collective responsibility give effect A to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a difference of opinion to the President is a reflection of (ii) above. (18) While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President B by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the C constitutional structure adopted for the governance of Delhi; (19) Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor must, by a D process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, E when the matter may be escalated to the President; (20) In a cabinet form of government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239AA(4) F recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advise of the Council of Ministers, this recognises that real decision-making authority in a democratic form of government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by G the decision which is arrived at by the President. The Lieutenant Governor has, however, been authorised to take immediate action in the meantime where emergent circumstances so require. The provisions of Article 239AA(4) indicate that the Lieutenant Governor must either act on the H

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A basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi- judicial authority under any law or has been entrusted with B powers by the President under Article 239 on matters which lie outside the competence of the Government of NCT); and (21) The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital C Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances warranting recourse to the proviso. In deciding as to whether the proviso should be invoked the Lieutenant Governor shall abide by the principles which have been indicated in the body of this judgment.

144. After the circulation of my judgment to my learned colleagues, I have had the benefit of receiving the judgments of the learned Chief Justice and brother Justice Ashok Bhushan. I believe that there is a broad coalescence of our views. F

145. The reference shall stand answered in the above terms and the proceedings shall now be placed before the learned Chief Justice of India for appropriate directions in regard to the constitution of the Bench to decide the matters.

G ASHOK BHUSHAN, J. 1. These appeals have been filed questioning the Division Bench judgment of Delhi High Court dated 04.08.2016 deciding nine writ petitions by a common judgment, out of nine writ petitions, two writ petitions were filed by the Government of National Capital Territory of Delhi (hereinafter referred to as “GNCTD”) being Writ Petition (C) No.5888 of 2015 (GNCTD vs. UOI) impugning: H

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“Notifications dated 21.05.2015 and 23.07.2014 issued by A the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with “Services” and directing the ACB Police Station not to take cognizance of offences against officials of Central Government.” B and Writ Petition (Crl.) No.2099 of 2015 (GNCTD vs. Nitin Manawat) impugning: “Order passed by the Lt. Governor, NCT of Delhi under Section 24 of Cr. P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court C under PC Act.” One writ petition filed by Union of India being Writ Petition (C) No.8867 of 2015 (UOI vs. GNCTD & Anr.) impugning: “Notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, D 1952 without placing before the Lieutenant Governor for his views/concurrence.”

2. Other six writ petitions were filed by individuals challenging various notifications issued by GNCTD. The petitioners in Writ Petition (C) No.7887 of 2015 and Writ Petition (C) No.8382 of 2015 had E challenged the notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952. In Writ Petition (C) No.7934 of 2015 (Naresh Kumar vs. GNCTD & Ors.) impugned action was: “Notification dated 04.08.2015 issued by the Revenue F Department, GNCTD revising minimum rates of agricultural land (circle rules) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Undervaluation of Instrument)Rules without placing before the Lieutenant Governor for his views/concurrence.” G Writ Petition(C) No.8190 of 2015 (Sandeep Tiwari vs. GNCTD & Ors.) was filed questioning: “Order passed by the Department of Power, GNCTD under Delhi Electricity Reforms Act, 2000 read with Delhi Electricity H

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A Reforms (Transfer Scheme) Rules, 2001 appointing the Nominee Directors on Board of Electricity Distribution Companies without placing before the Lieutenant Governor for his views/concurrence.”

3. The petitioner in Writ Petition (C)No.348 of 2016 (Ramakant B Kumar vs. GNCTD) had also challenged notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 constituting the Commission of Inquiry.

4. The Division Bench of the High Court after considering the arguments of the parties recorded its conclusion in paragraph 304 of the C judgment and its outcome in paragraph 305. Paragraphs 304 and 305 are extracted below: “304. The conclusions in this batch of petitions may be summarized as under:- (i) On a reading of Article 239 and Article 239AA of the D Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the E Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi. (ii) Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of Article 239AA has not diluted the application of Article 239 in any manner. F (iii) The contention of the Government of NCT of Delhi that the Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the Council of Ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA G of the Constitution is without substance and cannot be accepted. (iv)It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect H

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of which power to make laws has been conferred on the A Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause B (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993. (v)The matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi. Therefore, the direction in the impugned Notification C S.O.1368(E) dated 21.05.2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with ‘Services’ exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional. (vi) The direction in the impugned Notification S.O.1896(E) dated 23.07.2014 as reiterated in the Notification S.O.1368(E) dated 21.05.2015 that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws. (vii) Notification No.F.5/DUV/Tpt./4/7/ 2015/ 9386-9393 dated 11.08.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the G Commission of Inquiry for inquiring into all aspects of the award of work related to grant of CNG Fitness Certificates in the Transport Department, Government of NCT of Delhi is illegal since the same was issued without H

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A seeking the views/concurrence of the Lt. Governor as provided under Rule 10 and Rule 23 read with Chapter V of Transaction of Business Rules, 1993. (viii)For the same reasons, the Notification No. F.01/66/2015/ DOV/15274- 15281 dated 22.12.2015 issued by the B Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry to inquire into the allegations regarding irregularities in the functioning of Delhi and District Cricket Association is also declared as illegal. C (ix) The appointment of Nominee Directors of Government of NCT of Delhi on Board of BSES Rajdhani Power Limited, BSES Yamuna Power Limited and Tata Power Delhi Distribution Limited by the Delhi Power Company Limited on the basis of the recommendations of the Chief Minister D of Delhi without communicating the decision of the Chief Minister to the Lt. Governor of NCT of Delhi for his views is illegal. (x) The proceedings of the Government of NCT of Delhi, Department of Power No.F.11(58) /2010/Power/1856 E dated 12.06.2015 issuing policy directions to the Delhi Electricity Regulatory Commission regarding disruption in electricity supply to consumers and compensation payable in respect thereof are illegal and unconstitutional since such policy directions cannot be issued without communicating to the Lt. Governor of NCT of Delhi for his views. (xi)The Notification No.F.1(1953)/Regn.Br./ Div.Com/HQ/ 2014/191 dated 04.08.2015 issued by the Government of NCT of Delhi, Revenue Department in exercise of the powers conferred by sub-section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and Rule 4 of the Delhi Stamp (Prevention of Under - Valuation of Instruments) Rules, 2007 revising the minimum rates for the purpose of chargeability of stamp duty on the

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instruments related to sale/transfer of agriculture land is A illegal since the said notification was issued without seeking the views/concurrence of the Lt. Governor of NCT of Delhi as required under the constitutional scheme. (xii) Though the Lt. Governor of NCT of Delhi is competent to appoint the Special Public Prosecutor under Section B 24(8) of Cr.P.C., such power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution.

305. In result, W.P.(C) No.5888/2015 is dismissed, W.P.(C) Nos.7887/ 2015, 7934/2015, 8190/2015, 8382/2015, 8867/2015, 9164/2015 C and 348/2016 are allowed and W.P.(Crl.) No.2099/2015 is disposed of with directions.”

5. The Government of NCTD aggrieved by the judgment has filed appeals. The GNCTD in its appeals has prayed for setting aside the judgment of the High Court. D

6. Union of India has filed two appeals, namely, C.A.No.2364 of 2017 questioning the judgment of Division Bench in Writ Petition(C) No.7934 of 2015 and Criminal Appeal No.277 of 2017 questioning the judgment in Writ Petition(Crl.) No.2099 of 2015.

7. These appeals raise important questions of law in respect of the powers exercisable by democratically elected Government of NCT in juxtaposition to the power of Lt. Governor of NCTD (hereinafter referred to as “LG”).

8. During the hearing of the appeals, a two Judge Bench of this Court opined that the appeals involve substantial questions of law as to the interpretation of Article 239AA of the Constitution of India. The Division Bench passed the following order for placing the matter before Chief Justice for constituting a Constitution Bench: “During the hearing of these appeals our attention is drawn to the provisions of Article 145(3) of the Constitution G of India. Having gone through the matters and the aforesaid provisions, we are of the opinion that these appeals need to be heard by a Constitution Bench as these matters involve substantial questions of law as to the interpretation of Article 239AA of the Constitution. H

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A The Registry shall accordingly place the papers before Hon’ble the Chief Justice of India for constituting an appropriate Constitution Bench.”

9. These appeals, thus, have been placed before this Constitution Bench. At the outset, it was agreed between the learned counsel for the B parties that this Constitution Bench may only answer the constitutional questions and the individual appeals thereafter will be decided by appropriate regular Benches.

10. We have been benefited by erudite submissions made by learned senior counsel, Shri P. Chidambaram, Shri Gopal Subramanium, C Dr. Rajiv Dhawan, Smt. Indira Jaising and Shri Shekhar Naphade. On behalf of Union of India, submissions have been advanced by Shri Maninder Singh, learned Additional Solicitor General for India. We have also heard other learned counsel appearing for the parties as well as learned counsel appearing for intervenor for whom Dr. A.M. Singhvi and Shri Arvind Datar, learned senior counsel have appeared. Shri D Siddharth Luthra, learned senior counsel has appeared for respondent in C.A. NO.2360 of 2017.

11. A common written submission has been filed on behalf of Government of National Capital Territory of Delhi. Shri Maninder Singh, learned Additional Solicitor General has also filed the written submission on behalf of Union of India and Lt. Governor of NCTD. The submissions

12. Learned senior counsel appearing for GNCTD has emphasised and highlighted various aspects of the different constitutional issues which have arisen for consideration in these appeals. Their submissions are referred hereafter as common submissions on behalf of GNCTD. It is submitted that NCTD occupies a unique position in constitutional jurisprudence by virtue of insertion of Articles 239AA and 239AB vide the Constitution (Sixty Ninth Amendment) Act, 1991. Though still a Union Territory, the NCTD has come to acquire various characteristics that were, prior to the 69th Amendment and the Government of the National Capital Territory Act, 1991 (hereinafter referred to as “1991 Act”), considered under the Constitution to be characteristics solely of States. As a consequence, the GNCTD also enjoys far more powers than the Government of any other Union Territory. The History of constitutional provisions and Parliamentary enactments with respect to the NCTD H

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clearly establishes that 69th Amendment and 1991 Act were passed aiming A for giving the residents of the NCTD proper participation an ever larger say in the governance of NCTD, truer and deeper form of democracy. Article 239AA intended to completely eradicate any hierarchical structure which functionally placed Lieutenant Governor of Delhi (hereinafter referred to as “LG”) in a position superior to that of the Council of B Ministers, especially with respect to the exercise of executive power. Pursuant to Article 239AA, a cabinet system of Government on the Westminster style was introduced in Delhi and the LG was made a titular head alone in respect of matters that were assigned to Legislative Assembly and the Council of Ministers. By way of the express and deliberate exclusion of language similar to that of the 1963 Act and 1966 C Act from the words of Article 239AA, and the replacement of “assist and advise” with the term of art “aid and advice”, the 69th Constitutional Amendment consciously obviated a requirement for the LG’s concurrence and allowed the Council of Ministers created thereunder to govern the NCTD. The provisions of Article 239AA must be interpreted as furthering the basic structure of the Constitution, a purposive interpretation has always been adopted by this Court. Learned counsel have also relied on “doctrine of constitutional silence and convention”.

13. It is contended that federalism being the basic structure of the Constitution. The interpretation of the constitutional provisions has to be done in a manner which may strengthen the federal structure as contemplated by the Constitution. The arguments of respondent that provisions of Article 239AA should be read in a strictly textual manner is not correct. Our constitutional jurisprudence has moved away by several decisions of this Court from a textual to more purposive and organic method of constitutional interpretation. F

14. The 69 Constitutional Amendment installed a Westminster th

style of Government for NCTD. The constitutional head would be bound by the “aid and advice” of their Council of Ministers, this is irrespective of who is the constitutional head, whether President, State Governor or by logical end the LG. In the case of NCTD, the principle of collective G responsibility to a democratic legislative body requires that the “aid and advice” of the Council of Ministers be binding on the LG in order to give due respect to the stated intention of the 69th Constitutional Amendment, i.e., the introduction of constitutionally mandated democratic governance in Delhi. H

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A 15. It is the petitioner’s case that the extent of the executive powers of the GNCTD can be understood by way of a combined reading of the provisions of Article 239AA(3) read with Article 239AA(4). The GNCTD possesses exclusive executive powers in relation to matters that fall within the purview of the Assembly’s Legislative competence. Neither the President nor the Central Government has any executive powers in B Delhi with respect to these matters and the LG as the President’s delegate has no role or power in this regard. Article 239AA(3) gives the Delhi Legislative Assembly legislative powers over all but Entries 1, 2, 18 and Entries 64, 65 and 66 in so far as they relate to Entry 1, 2 and 18 of the State List, and all the subjects in the Concurrent List. The Council of C Ministers’ executive domain under Article 239AA(4) is the same. Moreover, Article 239AA reserves primacy of the Union Parliament and the Central Government only in limited area. This is clear from the provisions of Article 239AA(3)(b). The primacy of the legislative powers of Parliament is reserved by this provision but there is no corresponding provision in the Constitution which preserves the executive power of the D Central Government vis-a-vis the Delhi Government in respect of the NCT. Thus, Article 239AA(3)(b) consciously preserves Parliament’s Legislative powers for Delhi, as they obtained for all Union Territories under Article 246. Also it consciously omits from giving the Centre coterminous executive powers, and Article 73 will only operate to give E the Centre executive power in relation to the three reserved subjects of State List.

16. Dwelling on the interpretation of proviso to Article 239AA(4), it is submitted that proviso is not meant for the LG to have a different view on the merits of the aid and advice that has been tendered by the F Council of Ministers and is only meant to deal with situations where the aid and advice of the Council of Ministers is transgressing beyond the areas constitutionally prescribed to them. It is submitted that the said proviso operates in the following areas, where the decision of the Council of Ministers of the NCTD:- G a. is outside the bounds of executive power under Article 239AA(4); b. impedes or prejudices the lawful exercise of the executive power of the Union; c. is contrary to the laws of the Parliament. H

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d. falls within Rule 23 of the Transaction of Business of A Government of National Capital Territory of Delhi Rules, 1993 matters such as- i. matters which affect the peace and tranquillity of the Capital; ii. Interests of any minority community; iii. Relationship with the higher judiciary; iv. any other matters of administrative importance which the Chief Minister may consider necessary.

17. A holistic reading of Article 239AA(4) and the proviso reveals that the proviso exists because the norm is for the LG to be bound by the aid and advice of the Council of Ministers of the NCTD. This norm can only be departed from in the circumstances laid out above for the applicability of the proviso.

18. It is submitted that 1991 Act as well as the Rules themselves cannot be used to interpret the constitutional provisions rather they are reflecting the scheme of governance. The “services” lies within the Legislative and Executive domains of the Delhi Assembly and the GNCTD respectively.

19. Shri Maninder Singh, learned Additional Solicitor General for India replying to the submissions of learned counsel for the appellant contends that while interpreting the Constitution the Courts should give effect to plain and literal meaning of the constitutional provisions. There is neither any ambiguity nor any absurdity arising from the plain/literal interpretation of the provisions of 239AA. The constitutional provisions concerning the GNCTD have been inserted keeping in view the carefully envisaged scheme of governance for NCTD under the Constitution of India. The Constitution makers have deliberately used the widest possible words “any matter” in order to retain the powers of the Union in both the legislative and executive spheres in relation to all matters, keeping in view the unique features as well as special responsibilities of the Union, in each subject in relation to the National Capital. Any contention seeking G a restrictive interpretation of the said provisions are impermissible in view of the law laid down by this Court. Any such contention would not only be contrary to the constitutional scheme envisaged for Delhi but would also be contrary to the intention of the Constitution makers in H

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A using the widest possible language for emphasising the responsibility and supremacy of the Union in the administration of the National Capital.

20. The contention on the basis of principles of constitutional silence or constitutional implication which run contrary to the constitutional scheme envisaged by express provisions has to be rejected. The B Balakrishnan Committee Report which was foundation for 69 th Constitutional Amendment throws light on the intention of the Constitution makers.

21. Article 239 is an integral/inseparable part of the constitutional scheme envisaged for all Union Territories as provided for under Part C VIII of the Constitution, and is to be read with Article 239AA for NCT of Delhi. Article 239 applies to all Union Territories including NCT of Delhi when read with Article 239AA, the way it applies to Pondicherry when read with the provision of Article 239A.

22. Shri Maninder Singh during his submission has referred to D various paragraphs of Balakrishnan Committee Report to bring home his point of view.

23. It is submitted that even when Article 239AA(3)(a) stipulates that Legislative Assembly of Delhi shall have the power to legislate in respect of subject matters provided in List II and List III of the VIIth E Schedule of Constitution of India, it specifically restricts the legislative powers of Legislative Assembly of Delhi to those subject matters which are “applicable to Union Territories”. The Constitution envisages that List II and List III of the VIIth Schedule of the Constitution of India contain certain subject matters which are not applicable to Union Territories. The intention of the Constitution makers is that even when F the subject matters contained in List II and List III of the VIIth Schedule become available to the Legislative Assembly of NCT of Delhi, the subject matters in the said Lists which are not applicable to Union Territories would not become available to the Legislative Assembly of NCT of Delhi and would be beyond its legislative powers.

G 24. Article 246(4) provides that in relation to all Union Territories including Delhi and any other territory which is not a State, Parliament has power to make laws on any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule. This independent separate provision once again recognises the ultimate/eventual responsibility of the Union in relation to the Union Territories on all subject matters. H

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25. Since the executive power of the Union under Article 73(1)(a), A and which is vested in the President of India under Article 53 extends to all subject matters on which Parliament has power to make laws – in a Union Territory, the executive power of the Union extends to any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule and remains vested in the President under Article 239 of the Constitution B for administering Union Territories, including Union Territory of NCT Delhi.

26. It is submitted that the proviso to Article 239AA(4) re-enforces and recognises the ultimate/eventual responsibility and continuing control of the Union in relation to the administration of the Union Territory of Delhi. The Constitution makers have envisaged that owing to its C responsibilities in relation to every subject, it may become necessary for the Union Government to take any decision with regard to any matter in relation to the administration of the National Capital Territory of Delhi. Such a need may also be arising in relation to day-to-day functioning of the National Capital. D

27. It is further submitted that the Constitution makers have deliberately used the widest possible phrase of “any matter” in the proviso to Article 239AA(4). The Constitution Bench of this Court in the case of Tej Kiran Jain and Others Vs. N. Sanjiva Reddy and Others, (1970) 2 SCC 272 has clearly held that the word “any” used in relation E to “anything” in the Constitution – would necessarily mean “everything”. The said principle would make it abundantly clear that the phrase “any matter” used in Article 239AA would necessarily and unexceptionally mean “every matter”. Further, only such an interpretation would ensure the intended objective and the necessity that if the need arises, the Union is not prevented from discharging its responsibilities in relation to the F National Capital in relation to any matter.

28. It is further respectfully submitted that the proviso to Article 239AA(4) would not deserve to be interpreted as an “exception”. It is not an exception but the reiteration of a constitutional mandate. The constitutional mandate is that the Union would have overarching control G in relation to all matters for the National Capital. There is no vestige of any exclusive Executive Power in the Council of Ministers of NCT of Delhi. The vestige of the Executive Power continues to remain in the President. The proviso is controlling the provision of Article 239AA(4), reiterating the overarching control of the Union, and is not an exception. H

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A The proviso indicates the constitutional mandate of supremacy of the Union. In the humble submission of the respondents, no restrictive interpretation of the proviso ought to be permitted and the clear Constitutional mandate contained in the proviso to Article 239AA(4) would deserve to be followed, especially in the case of the National Capital. B

29. It is most respectfully reiterated that the unitary scheme of governance for Union Territories, especially for National Capital of Delhi, has been envisaged keeping in view the fact that the administration of Union Territories specially National Capital of Delhi is the responsibility of the President/Union. The Union Government is the responsible C Government, accountable to the Parliament for the administration of the Union Territories. The National Capital belongs to people of the entire nation. Learned Additional Solicitor General has also referred to and relied on various provisions of 1991 Act and Transaction of Business Rules, 1993 with regard to administration of GNCTD.

D 30. Learned Additional Solicitor General in its submission also contended that there are very few instances in which LG has made reference to President and in actual working LG neither withhold the files nor there is any other hindrance in decisions taken by GNCTD. He submits that on various occasions without even communicating the decisions taken by the Council of Ministers/Ministers to the LG, the GNCTD starts implementing the decision which is not in accordance with the scheme of governance as delineated by Article 239AA. 1991 Act and Transaction of Business Rules, 1993.

31. Learned counsel for the parties in support of their respective submissions have placed reliance on a large number of judgments of this Court and Foreign Courts. Relevant decisions of this Court and other Courts shall be referred to while considering the respective submissions. Importance of a National Capital

32. The word “Capital” is derived from Latin word “caput” G meaning head and denotes a certain primacy status associated with the very idea of a Capital. Delhi is the National Capital of the country. For the purposes of this case it is not necessary to notice the early history of Delhi. During the British period Calcutta was a seat of both the Provincial Government of Bengal as well as the Central Government. The conflicts H

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of authorities and jurisdiction between the Governor of Bengal and A Governor- General was brought into the notice of the Secretary of the State in London. Lord Hardinge in his dispatch of 25.08.1911 emphasised “that the Capital of a great Central Government should be separate and independent, and effect has been given to this principle in the United States of America, Canada and Australia”. A decision was taken to B transfer Capital from Calcutta to Delhi which was announced on 12.12.1911. A Government Notification No.911 dated 17.09.1912 was issued under which the Governor-General-in-Council took under his authority the Territories comprising the Tehsil of Delhi and the Police Station of Mehrauli which were formerly included in the province of Punjab. The Notification provided for the administration of areas as a C separate province under a Chief Commissioner. The Delhi Laws Act, 1911 and the Delhi Laws Act, 1915 made provisions for the continuance of the Laws in force in the Territories comprising the Chief Commissioner’s province of Delhi and for the extension of other enactments in force in any part of British India to Delhi by Governor- D General-in-Council. In 1915, trans-Yamuna areas comprising 65 villages were separated from United Provinces of Agra and Oudh and added to the Chief Commissioner’s of Delhi. Administration of Delhi after Enforcement of the Constitution of India. E

33. The Government of India Act, 1935 did not affect any material changes in the administrative set-up for Delhi and it continued as before to be a Chief Commissioner’s Province directly administered by the Governor-General “acting to such extent as he thinks fit through a Chief Commissioner”. On 31.07.1947, a Committee under the Chairmanship of Dr. B.Pattabhi Sitaramayya was established to study and report on F the constitutional changes required in the administrative structure obtaining in the Chief Commissioner’s Provinces, including Delhi. The Committee recommended that Delhi, Ajmer, Bhopal, Bilaspur, Coorg, Himachal Pradesh including Kutch, Manipur, Tripura and such other provinces may be so designated as shall be the Lt. Governor’s Province. G The report was debated in Constituent Assembly when draft Articles 212 and 213 (which was adopted as 239-240) was debated. When the Constitution was enforced from 26th January, 1950 the scheme of the Constitution of India including Articles 1 to 4, Territory of India was

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A divided into four categories Part ‘A’, Part ‘B’, Part ‘C’ and Part ‘D’ States. With regard to Part ‘A’ and Part ‘B’ States, the Constitution envisaged a vertical division of power between the Union and States wherein Part ‘C’ and ‘D’ States, Constitution had provided structure under which Union Government retained the power in both the executive and legislative sphere. Part ‘C’ States had also been termed as centrally B administered areas which included Delhi. Parliament enacted the Government of Part C States Act, 1951, under which provision was made to aid and advice to Chief Commissioner. The States Re- organisation Commission was set up on 29.12.1953 which also took up subject of functioning of Part ‘C’ States. The State Re-organisation C Commission made the following Report with regard to Delhi: “584. It is hardly necessary to discuss in any detail the reasons why Delhi, if it is to continue as the Union Capital, cannot be made part of a full-fledged constituent unit of the Indian Union. Even under a unitary system of government, the normal D practice is to place national capitals under a special dispensation. In France, for example, there is a greater degree of central control over Paris than over other municipalities. In England, the police administration of the metropolitan area is directly under the control of the Home Secretary, who does not exercise similar powers in respect of other municipal areas. E Apart from reasons which are peculiar to each country or city, there are some general considerations necessitating special arrangements in respect of national capitals. Capital cities possess, or come to possess, some degree of political and social predominance. They are seats of national governments, with considerable property belonging to these governments. Foreign diplomatic missions and international agencies are located in these capitals. They also become centres of national culture and art. So far as federal capitals are concerned, there is also an additional consideration. Any constitutional division of powers, if it is applicable to units functioning in the seats of national governments, is bound to give rise to embarrassing situations. Practice in other countries, administrative necessity and the desirability of avoiding conflicting jurisdictions, all point to the need for effective control by national governments over federal capitals.”

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34. On the basis of the recommendation of the State Re- A organisation Commission, 7th Amendment Act, 1956 was passed, under the Amendment Part ‘C’ States were renamed as Union Territory. Delhi a Part ‘C’ State became Union Territory and the Legislative Assembly and Council of Ministers ceased to act w.e.f. 01.11.1956. Subsequent to 7th Amendment, different schemes were enforced for administration of B Delhi, Delhi Municipal Corporation Act, 1957 was passed by the Parliament providing for direct election of Councillors from all the constituencies to be elected by residents of Delhi. By Constitution 14 th Amendment Act, 1962, Article 239A was inserted which was enabling provision for the Parliament to make law to create a Legislature or Council of Ministers or both for the Union Territories specified therein. The Union C Territory of Delhi was not included in the list of Union Territories in Article 239A. The Parliament enacted the Government of Union Territories Act, 1963. The Delhi Administration Act, 1966 was passed by the Parliament to provide for an elected body of Delhi Metropolitan Council. A Committee was appointed by the Government of India to go D into the various issues connected with the administration of Union Territory of Delhi. The Committee, after, studying for two years about all aspects of the matters had submitted its Report on 14.12.1989 to the Home Minister. The Report of the Committee is commonly known as Balakrishnan Committee Report. While submitting the Report S.Balakrishnan, in nutshell, in his letter dated 14.12.1989 addressed to E Home Minister has outlined task given to the Committee in following words: “The task of designing a proper structure of Government for the national capital particularly for a country with a federal set up like ours, has always proved difficult because of two conflicting requirements. On the one hand, effective administration of the national capital is of vital importance to the national Government not only for ensuring a high degree of security and a high level of administrative efficiency but also for enabling the Central Government to discharge its national and international responsibilities; to ensure this, it must necessarily have a complete and comprehensive control over the affairs of the capital. On the other hand, the legitimate demand of the large population of the capital city for the democratic right of participation in the government at the H

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A city level is too important to be ignored. We have endeavoured to design a governmental structure for Delhi which we hope, would reconcile these two requirements.”

35. Balakrishnan Committee Report studied different aspects connected with the administration of Delhi, the Capital of this country. B While studying “National Capital Administration in some countries”, in Chapter V, the Committee examined various models including United States of America, Canada, Japan and United Kingdom. After noticing the different aspects in paragraph 5.7.3 following has been observed: “5.7.3 It will be clear from the above that it has been recognised in many countries of the world that the national government should have the ultimate control and authority over the affairs of the national capital. At the same time, there is a noticeable trend in those countries to accept the principle of associating the people in the capital with sectors of administration affecting them, by means of a representative body. Because of the difficulty in securing a balance between these two considerations, the problem of evolving an appropriate governmental structure for the national capital has proved difficult in many countries particularly those with a federal type of government.“

E 36. Before the Committee, the arguments for giving Statehood to Delhi as well as arguments against the Statehood was noticed. The Committee after considering the rival arguments concluded following in paragraph 6.5.9 and 6.5.10: “6.5.9 We are also impressed with the argument that Delhi F as the national capital belongs to the nation as a whole and any constituent ‘State of the Union of which Delhi will become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day-to-day matters, however, vital G some of them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities. 6.5.10 In the light of the foregoing discussion our conclusion is that it will not be in the national interests and in H

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the interests of Delhi itself, to restructure the set-up in Delhi A as a full-fledged constituent State of the Union, this will have to be ruled out. We recommend accordingly.”

37. While discussing “salient features of proposed structure” following was stated in paragraphs 6.7.1 and 6.7.2: “6.7.1 As a consequence of our recommendation in the preceding paragraph that Delhi should be provided with a Legislative Assembly and a Council of Ministers the further issues to be considered are: (g) the extent of the powers and responsibilities to be conferred on or entrusted to these bodies, the special safeguards to ensure that the Union is not hampered in discharging its duties and responsibilities and the other salient features of the structure; and (h) the manner in which the proposed changes in the structure should be brought about, that is, whether they should be by amendments to the Constitution, or by a Parliamentary law or by a combination of both. We will now take up the issue in item (i) above in the succeeding paragraphs. Item (ii) will be discussed in Chapter VII. E 6.7.2 As we have already stated, any governmental set- up for Delhi should ensure that the Union is not fettered or hampered in any way in the discharge of its own special responsibilities in relation to the administration of the national capital, by a constitutional division of powers, functions and responsibilities between the Union and the Delhi F Administration. The only way of ensuring this arrangement is to keep Delhi as a Union Territory for the purposes of the Constitution. Thereby, the provision in Article 246(4) of the Constitution will automatically ensure that Parliament has concurrent and overriding powers to make laws for Delhi on G all matters, including those relateable to the State List. Correspondingly, the Union, Executive can exercise executive powers in respect of all such matters subject to the provisions of any Central law governing the matter. We, therefore, recommend that even after the creation of a Legislative H

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A Assembly and Council of Ministers for Delhi it should continue to be a Union Territory for the purposes of the Constitution.”

38. Various other recommendations were made by Balakrishnan Committee which led to Constitution 69th Amendment. Statement and Objects of Constitution 69th Amendment notices the object and purpose B of constitutional amendment which are to the following effect: “STATEMENT OF OBJECTS AND REASONS The question of re-organisation of the Administrative set-up in the Union territory of Delhi has been under the consideration of the Government for some time. The C Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national Capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a F view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories.

2. The Bill seeks to give effect to the above proposals.”

39. By 69th Amendment Act, Article 239AA and Article 239AB G were added in Part VIII of the Constitution. Article 239AA and 239AB which Articles are taken up for consideration in these appeals are as follows: “Article 239AA {Special provisions with respect to Delhi}

1. As from the date of commencement of the Constitution (Sixty H

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ninth Amendment) Act, 1991, the Union territory of Delhi shall A be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor. 2(a) There shall be a Legislative Assembly for the National B Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament. (c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament. E

3(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to F Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect G to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether H

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A passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament form enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.

4. There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the D Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

5. The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

6. The Council of Ministers shall be collectively responsible to the Legislative Assembly. 7(a) Parliament may, by law, make provisions for giving effect to, or supplement the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.

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(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this constitution.

8. The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Pondicherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) or article 239A” shall be deemed to be a reference to this article or article 239AB, C as the case may be. Article 239AB {Provision in case of failure of constitutional monarchy} If the President, on receipt of a report from the Lieutenant D Governor or otherwise, is satisfied - (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or E (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such F conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.” G The Principles of Constitutional Interpretation

40. Before we proceed to examine the scheme delineated by Article 239AA, it is necessary to have an overview on the principles which have been accepted for interpretation of a Constitution. Before we notice the accepted principles for constitutional interpretation, we H

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A want to notice prophetic words of Dr. B.R. Ambedkar where Dr. Ambedkar in closing debate on 25.11.1949 in the Constituent Assembly on the draft Constitution made following statement: “...Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

41. After noticing the universal truth stated by Dr. B.R. Ambedkar as above, we now proceed to notice the principles of Constitutional D interpretation. The general rule for interpreting a Constitution are the same as those for interpreting a general Statute. Article 367 of the Constitution provides that Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the E interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. This Court in Keshavan Madhava Menon Vs. State of Bombay, AIR 1951 SC 128 : (1951) SCR 228 held that court of law has to gather the spirit of the Constitution from the language of the Constitution. True meaning of the Constitution has to be arrived at uninfluenced by any assumed interpretation of the F Constitution. In Para 13 of the judgment, following was held :- “13. 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 G Constitution. What one may believe or think to be the 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 H President, in exercise of the powers conferred on him by that

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