Holding

The Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers in matters within the legislative competence of the Delhi Legislative Assembly, except when he exercises the power under the proviso to Article 239AA(4) to refer a difference of opinion to the President, which must be done in exceptional circumstances and not mechanically, guided by constitutional morality and trust.

Summary

The Supreme Court of India interpreted Article 239AA of the Constitution, which provides special provisions for the National Capital Territory of Delhi. The case arose from a dispute between the Government of NCT of Delhi and the Union of India regarding the powers of the Lieutenant Governor and the elected Council of Ministers. The Court held that NCT of Delhi is not a State but a sui generis Union Territory with a special status. The Lieutenant Governor is bound by the aid and advice of the Council of Ministers in matters within the legislative competence of the Delhi Legislative Assembly, except when he exercises the power under the proviso to Article 239AA(4) to refer a difference of opinion to the President. This proviso is an exception and must be exercised in exceptional circumstances, guided by constitutional morality, trust, and collaborative federalism. The executive power of the Government of NCT is co-extensive with its legislative power, except for the three excluded subjects of public order, police, and land. The Court emphasized that the Lieutenant Governor does not need to give concurrence to decisions; communication is required to keep him informed, but not to seek approval. The judgment reinforced democratic and representative governance for Delhi while preserving national interests.

Issues considered

Whether NCT of Delhi can be accorded the status of a State under the Constitution?
What is the status of the Lieutenant Governor of Delhi and is he bound by the aid and advice of the Council of Ministers?
What is the scope of the proviso to Article 239AA(4) and the meaning of 'any matter'?
Whether the concurrence of the Lieutenant Governor is required for executive decisions of the Government of NCT of Delhi?
What is the extent of the executive power of the Government of NCT of Delhi?
How should the principles of constitutional morality, collaborative federalism, and constitutional trust be applied in interpreting Article 239AA?
Whether the Union of India has overriding executive powers over matters within the legislative competence of the Delhi Legislative Assembly?

Legislation cited

Constitution of Indias. 163, s. 239, s. 239A, s. 239AA, s. 239AB, s. 239B, s. 246, s. 367, s. 368, s. 73, s. 74
Government of National Capital Territory of Delhi Act, 1991s. 41, s. 42, s. 44, s. 45, s. 49, s. 52
Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993s. 10, s. 13, s. 14, s. 23, s. 24, s. 25, s. 4, s. 49, s. 50, s. 51, s. 55, s. 57, s. 9

Subjects

Constitutional lawInterpretation of ConstitutionArticle 239AANational Capital Territory of DelhiLieutenant GovernorCouncil of MinistersAid and adviceExecutive powerFederalismCollaborative federalismConstitutional moralityConstitutional trustRepresentative governmentCollective responsibilityUnion Territories

Judgment

[2018] 7 S.C.R. 1 1

GOVERNMENT OF NCT OF DELHI A
v.
UNION OF INDIA & ANOTHER
(Civil Appeal No. 2357 of 2017)
JULY 04, 2018 B
[DIPAK MISRA, CJI, A. K. SIKRI, A. M. KHANWILKAR,
DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Constitution of India:
Art. 239AA and 239AB – Special provisions with respect to C
Delhi – National Capital Territory of Delhi – Status of – Held: NCT
of Delhi cannot be accorded the status of a State under the present
constitutional scheme – Status of NCT of Delhi is sui generis – Status
of Lieutenant Governor of Delhi is not that of a Governor of a
State, rather he remains an Administrator, in a limited sense, working
D
with the designation of Lieutenant Governor – LG cannot act
independently and is bound by the aid and advice of the elected
council of ministers subject to proviso to Art. 239 AA to refer the
matter to the Parliament – Decisions of the Council of Ministers
must be communicated to the Lieutenant Governor but this does not
mean that the concurrence of the Lieutenant Governor is required E
– Power of the Lieutenant Governor under proviso to Art. 239AA(4)
has to be exercised in exceptional circumstances keeping in mind
the standards of constitutional trust and morality, principle of
collaborative federalism and constitutional balance, the concept
of constitutional governance and objectivity and the nurtured and
F
cultivated idea of respect for a representative government –
Lieutenant Governor should not act in a mechanical manner without
due application of mind so as to refer every decision of the Council
of Ministers to the President – Exercise of establishing a democratic
and representative form of government for NCT of Delhi by insertion
of Arts. 239AA and 239AB would turn futile if the Government of G
Delhi is not able to usher in policies and laws over which the Delhi
Legislative Assembly has power to legislate for the NCT of Delhi –
Constitution (Sixty-ninth Amendment) Act, 1991.

H
1
2 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Art. 239AA – Interpretation of – Held: Interpretative dissection
of Art.239AA(3)(a) reveals that the Parliament has the power to
make laws for the NCT of Delhi with respect to any matters
enumerated in State List and Concurrent List – Legislative Assembly
of Delhi also has power to make laws over all those subjects which
figure in Concurrent List and all, but three excluded subjects (public
B
order, police and land), in the State List – As a natural corollary,
Union of India has exclusive executive power with respect to NCT
of Delhi relating to the three matters in the State List in respect of
which the power of Delhi Legislative Assembly has been excluded –
In respect of other matters, the executive power is to be exercised
C by the Government of NCT of Delhi – This, however, is subject to
the proviso to Article 239AA(4) – Such an interpretation would be
in consonance with the concepts of pragmatic federalism and federal
balance by giving the Government of NCT of Delhi some required
degree of independence subject to the limitations imposed by the
Constitution.
D
Representative governance – Ideals/principles of – Held: In
a democratic republic, the sovereign elect their law making
representatives for enacting laws and shaping policies – Main
purpose of representative government is to represent the public will
– Elected representatives being accountable to the public must be
E accessible, approachable and act in a transparent manner – Thus,
the elected representatives must display constitutional objectivity
as a standard of representative governance.
Constitutional morality and constitutional objectivity –
Concept of – Held: Constitutional morality is that fulcrum which
F acts as an essential check upon the high functionaries and citizen
alike – Further, the theory of checks and balance gives rise to
principle of constitutional objectivity – Constitutional trust expects
the functionaries under the Constitution to be guided by
constitutional morality, objective pragmatism and the balance,
G required to sustain proper administration – Lieutenant Governor
need not, in a mechanical manner, refer every decision of the Council
of Ministers to the President – He has to be guided by the concept
of constitutional morality and is to act with constitutional objectivity.
Constitutional governance and the conception of legitimate
H constitutional trust – Held: Concept of constitutional governance
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 3
& ANOTHER

has two features, the principles of fiduciary nature of public power A
and the system of checks and balances – It gives rise to the requisite
constitutional trust which must be exhibited by all constitutional
functionaries while performing their official duties – Power of the
Lieutenant Governor under proviso to Art.239AA(4) is to be exercised
in exceptional circumstances keeping in mind the standards of
B
constitutional trust and morality, the principle of collaborative
federalism and constitutional balance, the concept of constitutional
governance and objectivity and the nurtured and cultivated idea of
respect for a representative government – Lieutenant Governor
should not act in a mechanical manner without due application of
mind so as to refer every decision of the Council of Ministers to the C
President.
Collective responsibility – Principle of – Held: Parliamentary
form of government is guided by the principle of collective
responsibility of the Cabinet – Cabinet owes a duty towards the
legislature for every action taken in any of the Ministries and every D
individual Minister is responsible for every act of the Ministry –
Principle of collective responsibility is of immense significance in
the context of ‘aid and advice’ – If a well deliberated legitimate
decision of Council of Ministers is not given effect to due to an
attitude to differ on the part of the Lieutenant Governor, then the
concept of collective responsibility would stand negated. E
Federal functionalism and democracy – Concept of – Held:
Constitution contemplates a meaningful instrumentation of
federalism and democracy to put in place an egalitarian social order,
a classical unity in a contemporaneous diversity and a pluralistic
setting in eventual cohesiveness without losing identity. F
Collaborative federalism, pragmatic federalism and federal
balance – Concept of – Held: Constitutional vision beckons both
the Central and the State Governments alike with the aim to have a
holistic structure – Thus, the Union and the State Governments must
embrace a collaborative federal planning by displaying harmonious
G
co-existence and interdependence so as to avoid any possible
constitutional discord – Acceptance of pragmatic federalism and
achieving federal balance has become a necessity requiring
disciplined wisdom on the part of Union and State Governments by
demonstrating a pragmatic orientation – These concept has
applicability to NCT of Delhi. H
4 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Federal balance – Concept of – Held: Federalism is a concept
which envisions a form of Government where there is a distribution
of powers between the States and the Centre – Principle of federal
balance is that the Centre and the States must act within their own
spheres – Union not to usurp all powers and the States enjoy freedom
without any unsolicited interference from the Central Government
B
with respect to matters which exclusively fall within their domain –
Role of the Court in ensuring the federal balance, assumes great
importance.
Constitutional culture and pragmatism – Need for – Held:
Term ‘constitutional culture’ is the conceptual normative spirit that
C transforms the Constitution into a dynamic document – It constantly
enables to keep in stride with the rapid and swift changes occurring
in the society – Responsibility of fostering a constitutional culture
is on the State and the populace – Constitutional Courts, while
interpreting the constitutional provisions, have to take into account
D the constitutional culture, bearing in mind its flexible and evolving
nature, so that the provisions are given a meaning which reflect the
object and purpose of the Constitution – In order to promote and
nurture the spirit of constitutional culture, pragmatic approach of
interpretation adopted by the courts have ushered in an era of
‘constitutional pragmatism’.
E
Constitutional renaissance – Understanding of – Held: It is
fulfillment of constitutional idealism ignoring anything that is not
permissible by the language of the provisions of the Constitution
and showing regard to its sense, spirit and silence – Constitution is
a constructive one – There is no room for absolutism or anarchy in
F the field of constitutional governance and rule of law –
Constitutional functionaries are expected to cultivate the
understanding of constitutional renaissance – Lieutenant Governor
and the Council of Ministers to follow this idealism.
Interpretation of Statutes:
G
Interpretation of the Constitution – Approach to be adopted
– Held: Constitutional Courts to read the words of the Constitution
in the light of the spirit of the Constitution so that the ideal democratic
nature of the Constitution and the paradigm of representative
participation are not destroyed – Several factors must be given their
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 5
& ANOTHER

due weightage in order to come up with a solution harmonious with A
the purpose with which the different provisions were introduced –
Judges to see that the Constitution was never intended to be a rigid
and inflexible document and the concepts contained therein are to
evolve over time as per the needs and demands of the situation.
Interpretation of the Constitution – Purposive interpretation B
– Held: Literal rule is not to be the primary guiding factor in
interpreting a constitutional provision, especially if the resultant
outcome would not serve the fructification of the rights and values
expressed in the Constitution – In this situation, the courts to interpret
the Constitution in a purposive manner so as to give effect to its
true intention and the provisions do not remain static and rigid. C

HELD:
Per Dipak Misra, CJI (For himself, A. K. Sikri and A. M.
Khanwilkar, JJ.):
1.1 NCT of Delhi cannot be accorded the status of a State D
under the present constitutional scheme. The status of NCT of
Delhi is sui generis, a class apart, and the status of the Lieutenant
Governor of Delhi is not that of a Governor of a State, rather he
remains an Administrator, in a limited sense, working with the
designation of Lieutenant Governor. With the insertion of Article E
239AA by virtue of the Sixty-ninth Amendment, the Parliament
envisaged a representative form of Government for the NCT of
Delhi. The said provision intends to provide for the Capital a
directly elected Legislative Assembly which shall have legislative
powers over matters falling within the State List and the
Concurrent List, barring those excepted, (public order, police F
and land) and a mandate upon the Lieutenant Governor to act on
the aid and advice of the Council of Ministers except when he
decides to refer the matter to the President for final decision.
The meaning of ‘aid and advise’ employed in Article 239AA(4)
has to be construed to mean that the Lieutenant Governor of G
NCT of Delhi is bound by the aid and advice of the Council of
Ministers and this position holds true so long as the Lieutenant
Governor does not exercise his power under the proviso to clause
(4) of Article 239AA. The Lieutenant Governor has not been
entrusted with any independent decision-making power. He has
H
6 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to either act on the ‘aid and advice’ of Council of Ministers or he
is bound to implement the decision taken by the President on a
reference being made by him. [Para 277-xii, xiii, xvii]
1.2 The interpretative dissection of Article 239AA(3)(a)
reveals that the Parliament has the power to make laws for the
B National Capital Territory of Delhi with respect to any matters
enumerated in the State List and the Concurrent List. At the
same time, the Legislative Assembly of Delhi also has the power
to make laws over all those subjects which figure in the
Concurrent List and all, but three excluded subjects, in the State
List, public order, police and land. [Para 277-xiv] [180-B-D;
C 181-C-D]
1.3 As a natural corollary, the Union of India has exclusive
executive power with respect to the NCT of Delhi relating to the
three matters in the State List in respect of which the power of
the Delhi Legislative Assembly has been excluded. In respect of
D other matters, the executive power is to be exercised by the
Government of NCT of Delhi. This, however, is subject to the
proviso to Article 239AA(4) of the Constitution. Such an
interpretation would be in consonance with the concepts of
pragmatic federalism and federal balance by giving the
Government of NCT of Delhi some required degree of
E independence subject to the limitations imposed by the
Constitution. [Para 277-xvi] [181-A-C]
New Delhi Municipal Corporation v. State of Punjab
[1996] 10 Suppl. SCR 472: (1997) 7 SCC 339 –
followed.
F Ideals/principles of representative governance:
2.1 Representative Governance in a republican form of
democracy is a kind of democratic setup wherein the people of a
nation elect and choose their law making representatives. The
representatives so elected are entrusted by the citizens with the
G task of framing policies which are reflective of the will of the
electorate. The main purpose of a representative government is
to represent the public will, perception and the popular sentiment
into policies. The representatives, thus, act on behalf of the people
at large and remain accountable to the people for their activities
H as lawmakers. Therefore, representative form of governance
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 7
& ANOTHER

comes out as a device to bring to fore the popular will. The A
Constitution of India has embraced the representative model of
governance at all levels, i.e., local, State and the Union. Thus
perceived, the people are the sovereign since they exercise the
power of adult franchise that ultimately builds the structure of
representative democracy. That apart, every constituent of the
B
sovereign is entitled to air his/her grievances through their
elected representatives. The twin idea establishes the
cornerstone of the precept of accountability to the public because
there rests the origin of power and responsibility. [Paras 49, 52,
53] [81-G-H; 82-E; 83-B]
State of Bihar and another v. Bal Mukund Sah and others C
[2000] 2 SCR 299 : 2000 (4) SCC 640 – referred to.
The Principles of Representative Government by
Bernard Manin, Cambridge University Press, 1997
– referred to.
D
2.2 In a democratic republic, the collective who are the
sovereign elect their law making representatives for enacting
laws and shaping policies which are reflective of the popular will.
The elected representatives being accountable to the public must
be accessible, approachable and act in a transparent manner.
Thus, the elected representatives must display constitutional E
objectivity as a standard of representative governance which
neither tolerates ideological fragmentation nor encourages any
utopian fantasy, rather it lays stress on constitutional ideologies.
[Para 277 (ii)] [177-F-G]
2.3 When elected representatives and constitutional F
functionaries enter their office, they take oath to bear allegiance
to the Constitution and uphold the Constitution. Thus, it is
expected of them not only to remain alive to the provisions of
the Constitution but also to concepts like constitutionalism,
constitutional objectivity and constitutional trust, etc. The support G
expressed by the sovereign in the form of votes cannot become
an excuse to perform actions which fall foul to the Constitution
or are ultra vires. Though the elected representatives are
expected to act as instruments of transforming popular will into
policies and laws, yet they must do so within the contours of the
H
8 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution. They must display constitutional objectivity as a
standard of representative governance, for that is ingrained in
the conceptual democratic majority which neither tolerates
ideological fragmentation nor encourages any kind of utopian
fantasy. It lays stress on realizable constitutional ideologies. [Para
56] [83-G-H; 84-A-B]
B
Constitutional morality:
3.1 Constitutional morality in its strictest sense of the term
implies strict and complete adherence to the constitutional
principles as enshrined in various segments of the document.
C When a country is endowed with a Constitution, there is an
accompanying promise which stipulates that every member of
the country right from its citizens to the high constitutional
functionaries must idolize the constitutional fundamentals. This
duty imposed by the Constitution stems from the fact that the
Constitution is the indispensable foundational base that functions
D as the guiding force to protect and ensure that the democratic
setup promised to the citizenry remains unperturbed. The
constitutional functionaries owe a greater degree of responsibility
towards this eloquent instrument for it is from this document
that they derive their power and authority and, as a natural
E corollary, they must ensure that they cultivate and develop a spirit
of constitutionalism where every action taken by them is governed
by and is in strict conformity with the basic tenets of the
Constitution. [Para 57] [84-C-E]
3.2 Constitutional morality is that fulcrum which acts as an
F essential check upon the high functionaries and citizens alike, as
experience has shown that unbridled power without any checks
and balances would result in a despotic and tyrannical situation
which is antithetical to the very idea of democracy. Constitutional
morality acts as a check against lapses on the part of the
governmental agencies and colourable activities aimed at affecting
G the democratic nature of polity. [Paras 59, 61] [84-G-H; 85-A, E]
3.3 Constitutional morality, appositely understood, means
the morality that has inherent elements in the constitutional
norms and the conscience of the Constitution. Any act to garner
justification must possess the potentiality to be in harmony with
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 9
& ANOTHER

the constitutional impulse. In order to realize the constitutional A
vision, it is indispensable that all citizens and high functionaries
in particular inculcate a spirit of constitutional morality which
negates the idea of concentration of power in the hands of a few.
When one is expressing an idea of generosity, he may not be
meeting the standard of justness. There may be an element of
B
condescension. But when one shows justness in action, there is
no feeling of any grant or generosity. That will come within the
normative value. That is the test of constitutional justness which
falls within the sweep of constitutional morality. It advocates the
principle of constitutional justness without subjective exposition
of generosity. [Para 61] [85-F-G; 86-A-B] C
Manoj Narula v. Union of India [2014] 9 SCR 965 :
(2014) 9 SCC 1; Krishnamoorthy v. Sivakumar and
others [2015] 4 SCR 987 : (2015) 3 SCC 467 –
referred to.
Constitutional objectivity: D

4.1 The Constitution, in its grandness, resolutely embraces
the theory of “checks and balances”. This theory in turn, gives
birth to the principle of “constitutional objectivity”. The
Constitution expects the organs of the State adorned by high
constitutional functionaries that while discharging their duties, E
they remain alive to the allegiance they bear to the Constitution.
Neutrality as envisaged under the constitutional scheme should
guide them in the performance of their duties and functions under
the Constitution. This is the trust which the Constitution reposes
in them. [Para 62] [86-B-D] F
4.2 The concept of constitutional objectivity is, by itself,
inherent in the vision of the founding father and it is incumbent
upon the organs of the State to make comprehensive efforts
towards realization of this vision. But, at the same time, they
must remain true to the Constitution by upholding the trust which G
the Constitution places in them and thereby exhibit constitutional
objectivity in its truest sense. The decisions taken by
constitutional functionaries and the process by which such
decisions are taken must have normative reasonability and
acceptability. Such decisions, therefore, must be in accord with
H
10 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the principles of constitutional objectivity and symphonious with
the spirit of the Constitution. It is not only the decision itself but
also the process adopted in such decision making which should
be in tune with constitutional objectivity. A decision by a
constitutional functionary may, in the ultimate analysis, withstand
scrutiny but unless the process adopted for arriving at such a
B
decision is in tandem with the idea of constitutional objectivity, it
invites criticism. Therefore, the decision making process should
never by-pass the established norms and conventions which are
time tested and should affirm to the idea of constitutionalism.
[Paras 63, 64] [86-D-E, 87-B-D]
C
Indra Sawhney v Union of India and Others 1993 AIR
477 : [1992] 2 Suppl SCR 454 – referred to.
Constitutional governance and the conception of legitimate
constitutional trust:
D 5.1 The Constitution being the supreme instrument
envisages the concept of constitutional governance which has,
as its twin limbs, the principles of fiduciary nature of public power
and the system of checks and balances. Constitutional governance,
in turn, gives birth to the requisite constitutional trust which must
be exhibited by all constitutional functionaries while performing
E their official duties. [Para 277(v)] [178-D]
5.2 The concept of constitutional governance in a body polity
like ours, is neither hypothetical nor an abstraction but is real,
concrete and grounded. The word ‘governance’ encapsulates the
idea of an administration, a governing body or organization
F whereas the word ‘constitutional’ means something sanctioned
by or consistent with or operating under the fundamental organic
law, i.e., the Constitution. Thus, the word ‘governance’ when
qualified by the term ‘constitutional’ conveys a form of governance/
government which adheres to the concept of constitutionalism.
G The said form of governance is sanctioned by the Constitution
itself, its functions are consistent with the Constitution and it
operates under the aegis of the Constitution. The concept of
constitutional governance is a natural consequent of the doctrine
of constitutional sovereignty. [Paras 65, 68] [87-E-F; 89-B]

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 11
& ANOTHER

Kalpana Mehta and others v. Union of India and others A
(2018) 7 SCALE 106; B.R. Kapur v. State of T.N. and
another [2001] 3 Suppl. SCR 191 : 2001 (7) SCC 231;
Manoj Narula v. Union of India [2014] 9 SCR 965 :
(2014) 9 SCC 1; Re: Dr. Ram Ashray Yadav, Chairman,
Bihar Public Service Commission [2000] 2 SCR 688 :
B
2000 (4) SCC 309; Subhash Sharma and others and
Firdauz Taleyarkhan v. Union of India and another
1990 (2) SCALE 836 – referred to.

5.3 The Constitution of India, is an organic document that
requires all its functionaries to observe, apply and protect the C
constitutional values spelt out by it. These values constitute the
constitutional morality. This makes the Constitution of India a
political document that organizes the governance of Indian society
through specific functionaries for requisite ends in an appropriate
manner. The constitutional culture stands on the fulcrum of these
values. The element of trust is an imperative between D
constitutional functionaries so that Governments can work in
accordance with constitutional norms. It may be stated with
definiteness that when such functionaries exercise their power
under the Constitution, the sustenance of the values that usher
in the foundation of constitutional governance should remain as E
the principal motto. There has to be implicit institutional trust
between such functionaries. [Para 77] [93-D-F]

Collective responsibility:
6. Ours is a parliamentary form of government guided by F
the principle of collective responsibility of the Cabinet. The
Cabinet owes a duty towards the legislature for every action taken
in any of the Ministries and every individual Minister is
responsible for every act of the Ministry. This principle of
collective responsibility is of immense significance in the context
of ‘aid and advice’. If a well deliberated legitimate decision of the G
Council of Ministers is not given effect to due to an attitude to
differ on the part of the Lieutenant Governor, then the concept
of collective responsibility would stand negated.[Para 277(vi)]
[178-E-F]
H
12 SUPREME COURT REPORTS [2018] 7 S.C.R.

A State of Karnataka v. Union of India and another [1978]
2 SCR 1; R.K. Jain v. Union of India and others (1993)
3 SCR 802; Common Cause, A Registered Society v.
Union of India and others [1999] 3 SCR 1279 : 1999
(6) SCC 667 – referred to.
B “Government and Law”: An introduction to the
working of the Constitution in Britain by T. C. Hartley
and J.A.G. Griffith 2ndedn. 1981 London; Weidenfeld
and Nicholson – referred to.
Federal functionalism and democracy:
C 7.1 The parliamentary form of democracy as envisaged by
the Constitution has at its very base the power bestowed upon
people to vote and make the legislature accountable for their
functioning to the people. If the legislature fails to transform the
popular will of the people into policies and laws, the people in a
D democracy like ours have the power to elect new representatives
by exercise of their vote. The political equality makes people
aware of their right in unison and there is a consistent endeavour
to achieve the same. Thus, democratic set up has its limbs firmly
entrenched in the ability of the people to elect their
representatives and the faith that the representatives so elected
E will best represent their interest. Though this right to vote is not
a fundamental right, yet it is a right that lies at the heart of
democratic form of government. The right to vote is the most
cherished value of democracy as it inculcates in the people a
sense of belonging. The said situation warrants for reciprocative
F functionalism by thought, action and conduct. It requires the
elected representatives to uphold the faith which the collective
have reposed in them. Any undue interference amounts to
betrayal of the faith of the collective in fulfilment of their
aspirations of democratic self-governance. [Paras 86, 88, 89] [98-
A-B, D-E, G
G
7.2 Democracy and federalism are firmly imbibed in our
constitutional ethos. Whatever be the nature of federalism present
in the Indian Constitution, whether absolutely federal or quasi-
federal, the fact of the matter is that federalism is a part of the
basic structure of our Constitution as every State is a constituent
H unit which has an exclusive Legislature and Executive elected
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 13
& ANOTHER

and constituted by the same process as in the case of the Union A
Government. The resultant effect is that one can perceive the
distinct aim to preserve and protect the unity and the territorial
integrity of India. This is a special feature of the constitutional
federalism. [Para 106] [107-F-G]
7.3 Our Constitution contemplates a meaningful B
orchestration of federalism and democracy to put in place an
egalitarian social order, a classical unity in a contemporaneous
diversity and a pluralistic milieu in eventual cohesiveness without
losing identity. Sincere attempts should be made to give full-
fledged effect to both these concepts. The meeting of the diversity
in unity without losing identity is a remarkable synthesis that the C
Constitution conceives without even permitting the slightest
contrivance or adroitness. [Para 277(vii), 106] [178-G-H;
108-B-C]
Mohinder Singh Gill and another v. Chief Election
Commissioner, New Delhi and others [1978] 2 SCR D
272 : (1978) 1 SCC 405; Raghbir Singh Gill v. S.
Gurcharan Singh Tohra 1980 AIR 1362 : [1980}
SCR 1302; Kesavananda Bharati v State of Kerala AIR
(1973) SC 1461 : [1973] Suppl. SCR 1; Indira Nehru
Gandhi v. Raj Narain [1976] SCR 347 : 1975 Suppl. E
SCC 1; T.N. Seshan, CEC of India v. Union of India
and others. [1995] 2 Suppl. SCR 106 : (1995) 4 SCC
611; KuldipNayar v. Union of India others. [2006] 5
Suppl. SCR 1 : (2006) 7 SCC 1; In re: Under Article
143, Constitution of India, (Special Reference No. 1
of 1964) 1965 AIR 745 : [1965] SCR 413; State of F
Karnataka v. Union of India and another
[1978] 2 SCR 1; Shamsher Singh v. State of Punjab
1974 AIR 2192 : [1975] 1 SCR 814; S.R. Bommai v.
Union of India [1994] 2 SCR 644 : (1994) 3 SCC 1;
ITC Ltd. v. Agricultural Produce Market G
Committee [2002] 1 SCR 441 : (2002) 9 SCC 232 –
referred to.
Federal Government by Prof. K.C. Wheare, 1963
Edn. p.33; Black’s Law Dictionary 6th Edn.p. 432 –
referred to. H
14 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Collaborative federalism:
8.1 The vision enshrined in the Preamble, i.e., to achieve
the golden goals of justice, liberty, equality and fraternity, beckons
both the Union Government and the State Governments, alike.
The constitutional vision beckons both the Central and the State
B Governments alike with the aim to have a holistic edifice. Thus,
the Union and the State Governments must embrace a
collaborative federal architecture by displaying harmonious co-
existence and interdependence so as to avoid any possible
constitutional discord. [Paras 108, 277(viii)] [108-E; 179-A-B]
C 8.2 The Union and the State Governments should always
work in harmony avoiding constitutional discord. In such a
collaboration, the national vision as set out in the Preamble to
our Constitution gets realized. The methods and approach for
the governments of the Union and the States may sometimes be
different but the ultimate goal and objective always remain the
D same and the governments at different levels should not lose
sight of the ultimate objective. This constitutional objective as
enshrined in the Constitution should be the guiding star to them
to move on the path of harmonious co-existence and
interdependence. They are the basic tenets of collaborative
E federalism to sustain the strength of constitutional functionalism
in a Welfare State. [Para 114] [109-F-G; 110-A]
8.3 The idea behind the concept of collaborative federalism
is negotiation and coordination so as to work out the differences
which may arise between the Union and the State Governments
F in their respective pursuits of development. The Union
Government and the State Governments should endeavour to
address the common problems with the intention to arrive at a
solution by showing statesmanship, combined action and sincere
cooperation. In collaborative federalism, the Union and the State
Governments should express their readiness to achieve the
G common objective and work together for achieving it. In a
functional Constitution, the authorities should exhibit sincere
concern to avoid any conflict. This concept has to be borne in
mind when both intend to rely on the constitutional provision as
the source of authority. Both the Centre and the States must work
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 15
& ANOTHER

within their spheres and not think of any encroachment. But in A
the context of exercise of authority within their spheres, there
should be perception of mature statesmanship so that the
constitutionally bestowed responsibilities are shared by them.
Such an approach requires continuous and seamless interaction
between the Union and the State Governments. [Para 117] [110-
B
E-G; 111-A-B]
8.4 Though the authorities referred to pertain to Union of
India and State Governments in the constitutional sense of the
term “State”, yet the concept has applicability to the NCT of Delhi
regard being had to its special status and language employed in
Article 239AA and other articles. [Para 120] [112-B] C

State of Rajasthan and others v. Union of India (1978)
1 SCR 1 - referred to.
Some aspects of Indian federalism by M.P. Jain –
referred to. D
Carmichael v. S. Coal & Coke Co. 301 U.S. 495, 525-
26 (1937) – referred to.
The Passing of Dual Federalism by Edward S. Corwin
36 VA.L.REV. 1,4 (1950); Modern Federalism by
Geoffrey Sawer (Pitman Australia, 1976) 1; Inter E
governmental relations in Canada: The emergence of
collaborative federalism by Cameron, D. and Simeon
R. Publius, 32(2) : 49-72; Collaborative federalism :
Economic reform in Australia in the 1990s by Martin
Painter, Cambridge University Press, 2009; The F
Constitution of a Federal Commonwealth: The Making
and Meaning of the Australian Constitution, 2009 by
Prof. Nicholas Aroney – referred to.
Pragmatic federalism:
9.1 The essential characteristics of federalism like duality G
of governments, distribution of powers between the Union and
the State Governments, supremacy of the Constitution, existence
of a written Constitution and most importantly, authority of the
Courts as final interpreters of the Constitution are all present
under our constitutional scheme. But at the same time, the
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16 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution has certain features which can very well be perceived
as deviations from the federal character. Though Constitution
broadly has a federal character, yet it still has certain striking
unitary features too. The need is to understand the thrust and
implication of a provision. Acceptance of pragmatic federalism
and achieving federal balance has become a necessity requiring
B
disciplined wisdom on the part of the Union and the State
Governments by demonstrating a pragmatic orientation. [Para
121, 277(viii)] [112-D-E; 113-C-D; 119-B]
9.2 The concept of pragmatic federalism is self explanatory.
It is a form of federalism which incorporates the traits and
C attributes of sensibility and realism. Pragmatic federalism, for
achieving the constitutional goals, leans on the principle of
permissible practicability. It is useful to state that pragmatic
federalism has the inbuilt ability to constantly evolve with the
changing needs and situations. It is this dynamic nature of
D pragmatic federalism which makes it apt for a body polity like
ours to adopt. The foremost object of the said concept is to come
up with innovative solutions to problems that emerge in a federal
setup of any kind. [Paras 125-126] [113-G-H; 114-A-B]
Concept of federal balance:
E 10.1 Constitution has mandated a federal balance wherein
independence of a certain required degree is assured to the State
Governments. As opposed to centralism, a balanced federal
structure mandates that the Union does not usurp all powers and
the States enjoy freedom without any unsolicited interference from
the Central Government with respect to matters which
F exclusively fall within their domain. The need is for federal balance
which required mutual respect and deference to actualize the
workability of a constitutional provision. [Para 277 (ix), 127]
[179-C; 114-E-F]
10.2 The interest of the States inherent in a federal form of
G government gains more importance in a democratic form of
government as it is absolutely necessary in a democracy that the
will of the people is given effect to. To subject the people of a
particular State/region to the governance of the Union, that too,
with respect to matters which can be best legislated at the State
level goes against the very basic tenet of a democracy. The
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 17
& ANOTHER

principle of federal balance which is entrenched in the Constitution A
is that the Centre and the States must act within their own spheres.
Thus, the role of the Court in ensuring the federal balance, as
mandated by the Constitution, assumes great importance. It is
so as the Court is the final arbiter and defender of the
Constitution. [Paras 129, 131] [114-G-H; 115-A-B; 116-B-C]
B
In re: Under Article 143, Constitution of India, (Special
Reference No. 1 of 1964); UCO Bank v. Dipak
Debbarma [2016] 11 SCR 723 : (2017) 2 SCC 585 –
referred to.
Interpretation of the Constitution: C
11.1 While interpreting the provisions of the Constitution,
the safe and most sound approach for the Constitutional Courts
to adopt is to read the words of the Constitution in the light of
the spirit of the Constitution so that the quintessential democratic
nature of the Constitution and the paradigm of representative D
participation by way of citizenry engagement are not annihilated.
The Courts must adopt such an interpretation which glorifies the
democratic spirit of the Constitution. Constitution is a dynamic
and heterogeneous instrument, the interpretation of which
requires consideration of several factors which must be given
their due weightage in order to come up with a solution E
harmonious with the purpose with which the different provisions
were introduced by the framers of the Constitution or the
Parliament. [Para 277(i), (x)] [177-E; 179-E-F]
11.2 The Constitutional Courts are entrusted with the
critical task of expounding the provisions of the Constitution and F
further while carrying out this essential function, they are duty
bound to ensure and preserve the rights and liberties of the
citizens without disturbing the very fundamental principles which
form the foundational base of the Constitution. Although, primarily,
it is the literal rule which is considered to be the norm which G
governs the courts of law while interpreting statutory and
constitutional provisions, yet mere allegiance to the dictionary
or literal meaning of words contained in the provision may,
sometimes, annihilate the quality of poignant flexibility and
requisite societal progressive adjustability. Such an approach may
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18 SUPREME COURT REPORTS [2018] 7 S.C.R.

A not eventually subserve the purpose of a living document. [Para
133] [116-G-H; 117-A-B]
R.C. Poudyal v. Union of India and others [1993]
1 SCR 891 : (1994) 1 Suppl. SCC 324; Supreme Court
Advocates-on-Record Association and another v. Union
B of India [1993] 2 Suppl. SCR 659 : (1993) 4 SCC 441–
referred to.
Dred Scott v Sanford 60 U.S. (19 How.) 393 (1857);
Home Building and Loan Association v Blaisdell, 290
U.S. 398 (1934) West Coast Hotel Co. v Parrish 300
C US 379 (1937); McCulloch v. Maryland 17 US
(4Wheat) 316 (1819); State v Superior Court (1944) at
547; Gompers v US 233 (1914); Burnett v Coronado
Oil and Gas Co., 285 US (1932); American
Communication Association v Douds 339 US (1950)
Poulos v New Hamshire, 345 US (1953); *—-Helvering
D v. Gregory 69 F. 2d 809, 810-II (1934); Hunter v.
SouthamInc [1984] 2 SCR 145; Edwards v Attorney
General for Canada [1930] AC 124, 136; – referred
to.
Jurisprudence by Bodenheimer, Edgar (Universal Law
E Publishing Co.Pvt. Ltd, Fourth Indian Reprint, 2004) p
405; “A Constructivist Coherence Theory of
Constitutional Interpretation”, by Richard H. Fallon,
Harvard Law Review Association, 1987; “Words and
Music: Some remarks on Statutory Interpretation,” by
F Jerome N. Frank Columbia Law Review 47 (1947):
1259-1367; The Interpretation of Legislation in Canada
by Pierre-André Côté, 2nd Ed (Cowansville. Quebec:Les
Editions Yvon Blais. Inc. 1992) – referred to.
Purposive interpretation:
G 12. In the light of the contemporary issues, the purposive
method has gained importance over the literal approach and the
Constitutional Courts, with the vision to realize the true and
ultimate purpose of the Constitution not only in letter but also in
spirit and armed with the tools of ingenuity and creativity, must
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 19
& ANOTHER

not shy away from performing this foremost duty to achieve A
constitutional functionalism by adopting a pragmatic approach.
The literal rule is not to be the primary guiding factor in
interpreting a constitutional provision, especially if the resultant
outcome would not serve the fructification of the rights and values
expressed in the Constitution. In this scenario, the theory of
B
purposive interpretation has gained importance where the courts
shall interpret the Constitution in a purposive manner so as to
give effect to its true intention. The emphasis on context while
interpreting constitutional provisions has burgeoned this shift
from the literal rule to the purposive method in order that the
provisions do not remain static and rigid. The words assume C
different incarnations to adapt themselves to the current demands
as and when the need arises. The spirit and conscience of the
Constitution should not be lost in grammar and the popular will
of the people which has its legitimacy in a democratic set up cannot
be allowed to lose its purpose in simple semantics. [Paras 146,
D
151, 277(xi)] [179-G; 122-D-E; 124-A-B]
S.R. Chaudhuri v. State of Punjab and others [2001] 1
Suppl. SCR 621 : (2001) 7 SCC 126; Ashok Kumar
Gupta and another v. State of U.P. and others [1997]
3 SCR 269 : (1997) 5 SCC 201; Indian Medical
Association v. Union of India and others [2011] E
6 SCR 599 : (2011) 7 SCC 179; M. Nagaraj v. Union
of India (2006) 8 SCC 202 – referred to.
Attorney General of Trinidad and Tobago v. Whiteman
[1991] 2 AC 240; Regina (Quintavalle) v. Secretary of
State for Health (2003) UKHL 13 : (2003) 2 AC 687 : F
(2003) 2 WLR 692 (HL); Cabell v. Markham 148 F 2d
737 (2d Cir 1945)– referred to.
Purposive Interpretation in Law by Sharon Barak
Princelon University Press, 2005– referred to.
G
Constitutional culture and pragmatism:
13. The definition of the term ‘constitutional culture’ is to
be perceived as set of norms and practices that breathe life into
the words of the great document. It is the conceptual normative
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20 SUPREME COURT REPORTS [2018] 7 S.C.R.

A spirit that transforms the Constitution into a dynamic document.
The Constitutional Courts, while interpreting the constitutional
provisions, have to take into account the constitutional culture,
bearing in mind its flexible and evolving nature, so that the
provisions are given a meaning which reflect the object and
purpose of the Constitution. In order to promote and nurture
B
this spirit of constitutional culture, the Courts have adopted a
pragmatic approach of interpretation which has ushered in an era
of “constitutional pragmatism”. Exposition of judicial sensibility
to the functionalism of the Constitution is called constitutional
pragmatism. [Paras 158, 161, 162, 277(xi)] [126-F-G; 127-C-D]
C Supreme Court Advocates-on-Record-Association and
others v. Union of India (2016) 5 SCC 1; R.C. Poudyal
v. Union of India and others [1993] 1 SCR 891 : (1994)
(1) Suppl. SCC 324; The State of Karnataka and
another v. Shri Ranganatha Reddy and another [1978]
D 1 SCR 641: (1977) 4 SCC 471; Union of India v.
Sankalchand Himatlal Sheth and another [1978] 1 SCR
423 – referred to.
Willaim J. Brennan, Jr., The Constitution of the United
States: Contemporary Ratification in interpreting The
E Constitution: The Debate Over Original Intent at 23,
27 (Jack N. Rakove ed., 1990); Constitutional Theory,
Constitutional Culture, by Andrew M. Siegel, 18 U.PA.J.
Const. L. 1067 (2016) – referred to.
Interpretation of Articles 239 and 239A:
F 14.1 Article 239 was brought into existence by the
Constitution (Seventh Amendment) Act, 1956. Clause (1) of
Article 239, by employing the words ‘shall’, makes it abundantly
clear that every Union territory is mandatorily to be administered
by the President through an administrator unless otherwise
G provided by Parliament in the form of a law. Further, clause (1) of
Article 239 also stipulates that the said administrator shall be
appointed by the President with such designation as he may
specify. Clause (2) thereafter, being a non-obstante clause, lays
down that irrespective of anything contained in Part VI of the
Constitution, the President may appoint the Governor of a State
H to act as an administrator of a Union Territory which is adjacent
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 21
& ANOTHER

and/or contiguous to the State of which he is the Governor. The A
Governor of a State who is so appointed as an administrator of an
adjoining UT shall exercise his functions as an administrator of
the said UT independently and autonomously and not as per the
aid and advice of the Council of Ministers of the State of which he
is the Governor. [Paras 173-174] [131-G-H; 132-A-B]
B
Shamsher Singh v. State of Punjab 1974 AIR
2192 : [1975] 1 SCR 814; Union of India and others
v. Surinder S [2012] 12 SCR 1077 : (2013) 1 SCC 403
– referred to.
14.2 Article 239 A was brought into force by the Constitution C
(Fourteenth Amendment) Act, 1962. The Parliament, under the
Government of Union Territories Act, 1963, created legislatures
for the then Union Territories and accordingly, even after 30th
May, 1987, the applicability of Article 239A stands limited to UT
of Puducherry. As a natural corollary, the Union Territory of
Puducherry stands on a different footing from other UTs of D
Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar
Haveli, Lakshadweep and Chandigarh. However, Puducherry
cannot be compared with the NCT of Delhi as it is solely governed
by the provisions of Article 239A. [Paras 178-180] [133-E, G-H;
134-A-B] E
Interpretation of Article 239AA
15. The Articles 239AA and 239AB require an elaborate
interpretation and a thorough analysis to unearth and discover
the true intention of the Parliament while inserting the said
Articles, in exercise of its constituent power, by the Constitution F
(Sixty-ninth Amendment) Act, 1991. The amendment really
conceives of conferring special status on Delhi. This fundamental
grammar has to be kept in view when the interpretative dissection
of Article 239AA and other articles that are pertinent to
understand the said provision are looked into. [Paras 181, 182] G
[134-C; 138-A-B]
Status of NCT of Delhi:
16. As far as the Lieutenant Governor of Delhi is concerned,
as per Article 239AA(4), he is bound by the aid and advice of his
Council of Ministers in matters for which the Delhi Legislative H
22 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Assembly has legislative powers. However, this is subject to the
proviso contained in Clause (4) of Article 239AA which gives the
power to the Lieutenant Governor that in case of any difference
between him and his Ministers, he shall refer the same to the
President for a binding decision. This proviso to clause (4) has
retained the powers for the Union even over matters falling within
B
the legislative domain of the Delhi Assembly. This overriding
power of the Union to legislate qua other Union Territories is
exposited under Article 246(4). [Para 195] [146-C-E]
Shamsher Singh v. State of Punjab 1974 AIR
2192 : [1975] 1 SCR 814; Devji Vallabhbhai Tandel
C and others v. Administrator of Goa, Daman and Diu
and another [1982] 3 SCR 553 : (1982) 2 SCC 222;
Sea Customs Act, Re, AIR 1963 SC 1760 : [1964] 3
SCR 787; New Delhi Municipal Corporation v. State
of Punjab [1996] 10 Suppl. SCR 472 : (1997) 7 SCC
D 339 – referred to.
Executive power of the Council of Ministers of Delhi:
17.1 Drawing an analogy while interpreting the provisions
of Article 239AA(3)(a) and Article 239AA(4) would reveal that
the executive power of the Government of NCT of Delhi is
E conterminous with the legislative power of the Delhi Legislative
Assembly which is envisaged in Article 239AA(3) and which
extends over all but three subjects in the State List and all
subjects in the Concurrent List and, thus, Article 239AA(4)
confers executive power on the Council of Ministers over all
F those subjects for which the Delhi Legislative Assembly has
legislative power. [Para 199] [148-G-H; 149-A-B]
17.2 The legislative power conferred upon the Delhi
Legislative Assembly is to give effect to legislative enactments
as per the needs and requirements of Delhi whereas the executive
G power is conferred on the executive to implement certain policy
decisions. This view is also strengthened by the fact that after
the Seventh Amendment of the Constitution by which the words
‘Part C States’ were substituted by the words ‘Union Territories’,
the word ‘State’ in the proviso to Article 73 cannot be read to
mean Union Territory as such an interpretation would render the
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 23
& ANOTHER

scheme and purpose of Part VIII (Union Territories) of the A
Constitution infructuous. [Para 200] [149-B-D]
Essence of Article 239AA of the Constitution:
18.1 The constitutional amendment conceives of conferring
special status on Delhi. This has to be kept in view while
interpreting Article 239AA. The insertion of Articles 239AA and B
239AB which specifically pertain to NCT of Delhi is reflective of
the intention of the Parliament to accord Delhi a sui generis status
from the other Union Territories as well as from the Union
Territory of Puducherry to which Article 239A is singularly
applicable as on date. [Paras 201-202] [149-B-D, F-G] C
18.2 The Sixty-ninth amendment highlight the uniqueness
attributed to Delhi with the aim that the residents of Delhi have a
larger say in how Delhi is to be governed. The real purpose behind
the Constitution (Sixty-ninth Amendment) Act, 1991, is to
establish a democratic setup and representative form of D
government wherein the majority has a right to embody their
opinion in laws and policies pertaining to the NCT of Delhi subject
to the limitations imposed by the Constitution. For paving the
way to realize this real purpose, it is necessary to give a purposive
interpretation to Article 239AA so that the principles of
democracy and federalism which are part of the basic structure E
of the Constitution are reinforced in NCT of Delhi in their truest
sense. The exercise of establishing a democratic and
representative form of government for NCT of Delhi by insertion
of Articles 239AA and 239AB would turn futile if the Government
of Delhi that enjoys the confidence of the people of Delhi is not F
able to usher in policies and laws over which the Delhi Legislative
Assembly has power to legislate for the NCT of Delhi. [Paras
203, 204] [149-H; 150-A-B]
18.3 The stark difference in the language of Article 239A
clause (1) and that of Article 239AA clause (2) is noticed. Article G
239A clause (1) uses the word ‘may’ which makes it a mere
directory provision with no obligatory force. Article 239A gives
discretion to the Parliament to create by law for the Union Territory
of Puducherry a Council of Ministers and/or a body which may
either be wholly elected or partly elected and partly nominated
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24 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to perform the functions of a Legislature for the Union Territory
of Puducherry. Article 239AA clause (2), by using the word ‘shall’,
makes it mandatory for the Parliament to create by law a
Legislative Assembly for the National Capital Territory of Delhi.
Further, sub-clause (a) of clause (2) declares very categorically
that the members of the Legislative Assembly of the National
B
Capital Territory of Delhi shall be chosen by direct election from
the territorial constituencies in the National Capital Territory of
Delhi. Unlike Article 239A clause (1) wherein the body created
by the Parliament by law to perform the functions of a Legislature
for the Union Territory of Puducherry may either be wholly elected
C or partly elected and partly nominated, there is no such provision
in the context of the Legislative Assembly of the NCT of Delhi
as per which members can be nominated to the Legislative
Assembly. This was a deliberate design by the Parliament. This
difference is highlighted to underscore and emphasize the
intention of the Parliament, while inserting Article 239AA in the
D
exercise of its constituent power, to treat the Legislative
Assembly of the National Capital Territory of Delhi as a set of
elected representatives of the voters of the NCT of Delhi and to
treat the government of the NCT of Delhi as a representative
form of government. [Paras 208-210] [151-C-H]
E 18.4 It is evident from clause (3) of Article 239AA that the
Parliament has the power to make laws for the NCT of Delhi on
any of the matters enumerated in the State List and the
Concurrent List and at the same time, the Legislative Assembly
of Delhi also has the legislative power with respect to matters
F enumerated in the State List and the Concurrent List except
matters with respect to entries which have been explicitly
excluded from Article 239AA(3)(a). [Para 214] [152-F-G]
18.5 Clause (4) of Article 239AA stipulates a Westminster
style cabinet system of government for the NCT of Delhi where
there shall be a Council of Ministers with the Chief Minister at
G
the head to aid and advise the Lieutenant Governor in the exercise
of his functions in relation to matters with respect to which the
Delhi Legislative Assembly has power to enact laws except in
matters in respect of which the Lieutenant Governor is required
to act in his discretion. The proviso to clause (4) stipulates that
H in case of a difference of opinion on any matter between the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 25
& ANOTHER

Lieutenant Governor and his Ministers, the Lieutenant Governor A
shall refer it to the President for a binding decision. Further,
pending such decision by the President, in any case where the
matter, in the opinion of the Lieutenant Governor, is so urgent
that it is necessary for him to take immediate action, the proviso
makes him competent to take such action and issue such
B
directions as he deems necessary. [Paras 215-216] [152-G-H;
153-A-C]
18.6 A conjoint reading of Article 239AA(3)(a) and Article
239AA(4) reveals that the executive power of the Government
of NCT of Delhi is co-extensive with the legislative power of the
Delhi Legislative Assembly which is envisaged in Article C
239AA(3) and which extends over all but three subjects in the
State List and all subjects in the Concurrent List and, thus, Article
239AA(4) confers executive power on the Council of Ministers
over all those subjects for which the Delhi Legislative Assembly
has legislative power. [Para 217, 277(xv)] [153-D; 180-G-H] D
18.7 Article 239AA(3)(a) reserves the Parliament’s
legislative power on all matters in the State list and Concurrent
list, but clause (4) nowhere reserves the executive powers of
the Union with respect to such matters. On the contrary, clause
(4) explicitly grants to the Government of Delhi executive powers E
in relation to matters for which the Legislative Assembly has
power to legislate. The legislative power is conferred upon the
Assembly to enact whereas the policy of the legislation has to be
given effect to by the executive for which the Government of
Delhi has to have co-extensive executive powers. [Para 218]
[153-E-F] F

18.8 Article 239AA(4) confers executive powers on the
Government of NCT of Delhi whereas the executive power of
the Union stems from Article 73 and is co-extensive with the
Parliament’s legislative power. Further, the ideas of pragmatic
federalism and collaborative federalism will fall to the ground if it G
is said that the Union has overriding executive powers even in
respect of matters for which the Delhi Legislative Assembly has
legislative powers. Thus, it can be very well said that the executive
power of the Union in respect of NCT of Delhi is confined to the
three matters in the State List for which the legislative power of H
26 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the Delhi Legislative Assembly has been excluded under Article
239 AA (3) (a). Such an interpretation would thwart any attempt
on the part of the Union Government to seize all control and
allow the concepts of pragmatic federalism and federal balance
to prevail by giving the NCT of Delhi some degree of required
independence in its functioning subject to the limitations imposed
B
by the Constitution. [Para 219] [153-G-H; 154-A-B]
18.9 The Court has the duty to place such a meaning or
interpretation on the phrase that is workable and the need is to
establish the norm of fine constitutional balance. The words ‘any
matter’ occurring in the proviso to Article 239AA(4) does not
C necessarily need to be construed to mean ‘every matter’. The
word ‘any’ occurring in a statute or constitutional provision is
not to be mechanically read to mean ‘every’ and the context in
which the word has been used must be given due weightage so
as to deduce the real intention and purpose in which the word
D has been used. [Paras 223, 232, 277(xviii)]
18.10 The power of the Lieutenant Governor under the
said proviso represents the exception and not the general rule
which has to be exercised in exceptional circumstances by the
Lieutenant Governor keeping in mind the standards of
E constitutional trust and morality, the principle of collaborative
federalism and constitutional balance, the concept of constitutional
governance and objectivity and the nurtured and cultivated idea
of respect for a representative government. The Lieutenant
Governor need not, in a mechanical manner, refer every decision
of his Ministers to the President. There has to be some valid
F grounds for the Lieutenant Governor to refer the decision of the
Council of Ministers to the President in order to protect the
interest of the NCT of Delhi and the principle of constitutionalism.
As per the 1991 Act and Rules of Business, he has to be apprised
of every decision taken by the Council of Ministers. He cannot
G change the decision. That apart, there is no provision for
concurrence. He has the authority to differ. But it cannot be
difference for the sake of difference. It cannot be mechanical or
in a routine matter. The power has been conferred to guide,
discuss and see that the administration runs for the welfare of
the people and also NCT of Delhi that has been given a special
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 27
& ANOTHER

status. Therefore, the word ‘any’ has to be understood treating A
as a guidance meant for the constitutional authority. He must
bear in mind the constitutional objectivity, the needed advice and
the realities. [Para 233, 277(xviii)] [159-B-E; 181-E-F]
How to do things with words by J.L. Austin, The William
James Lectures delivered at Harvard University, 1955 B
– referred to.
18.11 The proviso to Article 239AA(4), cannot be
interpreted in a strict sense of the mere words employed treating
them as only letters without paying heed to the thought and the
spirit which they intend to convey. It is necessary in the context C
to read the words of the provision in the spirit of citizenry
participation in the governance of a democratic polity that is
republican in character. It should not be construed that there is
allowance of enormous entry of judicial creativity, for the
construction one intends to place has its plinth and platform on
the Preamble and precedents pertaining to constitutional D
interpretation and purposive interpretation keeping in view the
conception of sense and spirit of the Constitution. It is, in a way,
exposition of judicial sensibility to the functionalism of the
Constitution. And this is called constitutional pragmatism. [Para
234] [159-F-H; 160-A] E
18.12 The authorities in power should constantly remind
themselves that they are constitutional functionaries and they
have the responsibility to ensure that the fundamental purpose
of administration is the welfare of the people in an ethical manner.
There is requirement of discussion and deliberation. The fine F
nuances are to be dwelled upon with mutual respect. Neither of
the authorities should feel that they have been lionized. They
should feel that they are serving the constitutional norms, values
and concepts. [Para 235, 277(xxii)] [160-B-C; 182-C-E]
18.13 Interpretation cannot ignore the conscience of the G
Constitution. That apart, when a broader view is taken, this Court
is alive to the consequence of such an interpretation. If the
expressions “in case of difference” and “on any matter” are
construed to mean that the Lieutenant Governor can differ on
any proposal, the expectation of the people which has its legitimacy
H
28 SUPREME COURT REPORTS [2018] 7 S.C.R.

A in a democratic set up, although different from States as
understood under the Constitution, will lose its purpose in simple
semantics. The Administrator, as per the Rules of Business, has
to be apprised of each decision taken by a Minister or Council of
Ministers, but that does not mean that the Lieutenant Governor
should raise an issue in every matter. The difference of opinion
B
must meet the standards of constitutional trust and morality, the
principle of collaborative federalism and constitutional balance,
the concept of constitutional governance and objectivity and the
nurtured and cultivated idea of respect for a representative
government. The difference of opinion should never be based on
C the perception of “right to differ” and similarly the term “on any
matter” should not be put on such a platform as to conceive that
as one can differ, it should be a norm on each occasion. The
difference must meet the concept of constitutional trust reposed
in the authority and there has to be objective assessment of the
decision that is sent for communication and further the rationale
D
of difference of opinion should be demonstrable and it should
contain sound reason. There should not be exposition of the
phenomenon of an obstructionist but reflection of the philosophy
of affirmative constructionism and a visionary. The constitutional
amendment does not perceive a situation of constant friction and
E difference which gradually builds a structure of conflict. At the
same time, the Council of Ministers being headed by the Chief
Minister should be guided by values and prudence accepting the
constitutional position that the NCT of Delhi is not a State. [Para
236, 277(xix)] [160-D-G; 161-A-B; 181-G-H]
F Shri Balaganesan Metals v. M. N. Shanmugham Chetty
and others [1987] 2 SCR 1173 : (1987) 2 SCC 707;
Kihoto Hollohan v. Zachillhu and others 1993 AIR 412 :
[1992] (1) SCR 686; A.V.S. Narasimha Rao and Ors. v.
The State of Andhra Pradesh and another [1970] 1 SCR
115 : (1969) 1 SCC 839; Workmen of Dimakuchi Tea
G Estate v. The Management of Dimakuchi Tea Estate
1958 AIR 353 : [1958] SCR 1156 – referred to.
Small v. United States 544 U.S. 385 (2005); United States
v. Palmer 16 U.S. 3 Wheat .610610 (1818); Warburton
v. Huddersfield Industrial Society [1892] 1 QB 817,
H pp. 821-22 – referred to.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 29
& ANOTHER

The Government of National Capital Territory of Delhi Act, 1991 A
and the Transaction of Business of the Government of National
Capital Territory of Delhi Rules, 1993
19.1 It is clear as crystal that the 1991 Act was conceived
to be brought into existence for supplementing the constitutional
provision and also to take care of incidental matters that are B
germane to Article 239AA. A careful perusal of Section 41 of the
1991 Act shows that the Lieutenant Governor can act in his
discretion only in matters which fall outside the legislative
competence of the Legislative Assembly of Delhi or in respect of
matters of which powers are entrusted or delegated to him by
the President or where he is required by law to act in his discretion C
or to exercise any judicial or quasi-judicial functions and,
therefore, it is clear that the Lieutenant Governor cannot exercise
his discretion in each and every matter and by and large, his
discretionary powers are limited to the three matters over which
the legislative power of the Delhi Legislative Assembly stand D
excluded by clause (3)(a) of Article 239AA. [Paras 238, 240] [162-
C, B-C]
19.2 Section 42 deals with the aid and advice tendered by
the Council of Ministers to the Lieutenant Governor. The
wordings and phraseology of Section 42 of the 1991 Act is identical E
to that of clause (2) of Article 74 which also is an indication that
the expression ‘aid and advice’ should receive a uniform
interpretation subject to other constitutional provisions in the
form of the proviso to clause (4) of Article 239AA. In other words,
the ‘aid and advice’ given by the Council of Ministers is binding
on the Lieutenant Governor so long as the Lieutenant Governor F
does not exercise the power conferred upon him by the proviso
to clause (4) of Article 239AA and refer the matter to the President
in exercise of that power for his ultimate binding decision. [Paras
241, 242] [163-C-F]
19.3 Section 44 of the 1991 Act has made it mandatory for G
the President to frame rules for the allocation of business to the
Ministers and also the procedure to be adopted in case of a
difference of opinion between the Lieutenant Governor and the
Council of Ministers. In exercise of the powers conferred under
the provision, the President has framed the Transaction of H
30 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Business of the Government of National Capital Territory of Delhi
Rules, 1993. The 1991 Act and the TBR, 1993, when read
together, reflect the scheme of governance for the NCT of Delhi.
[Para 244-245] [164-D-E]
19.4 Section 45 of the 1991 Act is identical and analogous
B to Article 167 of the Constitution which makes it obligatory for
the Chief Minister of the NCT of Delhi to communicate to the
Lieutenant Governor all decisions of the Council of Ministers
relating to the administration of the affairs of the NCT of Delhi
and proposals for legislation. The real purpose of such
communication is not to obtain concurrence of the Lieutenant
C Governor on all decisions of the Council of Ministers relating to
the administration of the affairs of the NCT of Delhi and on
proposals for legislation, but in actuality, the objective is to have
the Lieutenant Governor in synergy, to keep him in the loop and
to make him aware of all decisions of the Council of Ministers
D relating to the administration of the affairs of the NCT of Delhi
and proposals for legislation so as to enable the Lieutenant
Governor to exercise the power conferred upon him by the
proviso to clause (4) of Article 239AA. [Para 247] [165-B-D]
19.5 The Transaction of Business Rules, 1993 stipulates
E the procedure to be followed by the Lieutenant Governor in case
of difference between him and his Ministers. The Lieutenant
Governor and the Council of Ministers must attempt to settle
any point of difference by way of discussion and dialogue. By
contemplating such a procedure, the TBR, 1993 suggest that
the Lieutenant Governor must work harmoniously with his
F Ministers and must not seek to resist them every step of the
way. The need for harmonious resolution by discussion is
recognized especially to sustain the representative form of
governance as has been contemplated by the insertion of Article
239AAA. [Para 277(xx)] [182-A-C]
G 19.6 The scheme that has been conceptualized by the
insertion of Articles 239AA and 239AB read with the provisions
of the GNCTD Act, 1991 and the corresponding TBR, 1993
indicates that the Lieutenant Governor, being the Administrative
head, shall be kept informed with respect to all the decisions
H taken by the Council of Ministers. The terminology “send a copy
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 31
& ANOTHER

thereof to the Lieutenant Governor”, “forwarded to the A
Lieutenant Governor”, “submitted to the Lieutenant Governor”
and “cause to be furnished to the Lieutenant Governor” employed
in the said rules leads to the only possible conclusion that the
decisions of the Council of Ministers must be communicated to
the Lieutenant Governor but this does not mean that the
B
concurrence of the Lieutenant Governor is required. The said
communication is imperative so as to keep him apprised in order
to enable him to exercise the power conferred upon him under
Article 239AA(4) and the proviso thereof. [Para 277(xxi)]
[182-C-E]
19.7 A conjoint reading of the 1991 Act and the TBR, 1993 C
formulated in pursuance of Section 44 of the 1991 Act divulges
that the Lieutenant Governor of Delhi is not a titular head, rather
he enjoys the power of that of an administrator appointed by the
President under Article 239AA. The constitutional scheme
adopted for the NCT of Delhi conceives of the Council of D
Ministers as the representatives of the people on the one hand
and the Lieutenant Governor as the nominee and appointee of
the President on the other, who are required to function in
harmony within the constitutional parameters. In the said scheme
of things, the Lieutenant Governor should not emerge as an
adversary having a hostile attitude towards the Council of E
Ministers of Delhi, rather he should act as a facilitator. [Para 268]
[174-A-C]
R. S. Nayak v. A.R. Antulay [1984] 2 SCR 495 : (1984)
2 SCC 183; Shrimant Shamrao Suryavanshi v. Pralhad
Bhairoba Suryavanshi [2002] 1 SCR 393 : (2002) 3 F
SCC 676; TMA Pai Foundation v. State of Karnataka
(2002) 8 SCC 481: [ 2002] 3 Suppl. SCR 587 –
referred to.
Maumsell v. Olins [1975] AC 373; Eastman
Photographic Materials Company v. Comptroller- G
General of Patents, Designs and Trademarks (1989)
AC 571; Tikri Banda Dullewe v. Padma Rukmani
Dullewe (1969) 2 AC 313; Black Clawson International
Ltd. v. PapierwerkeWaldhof-Aschaffenburg (1975) AC
591 – referred to. H
32 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitutional renaissance:
20.1 Fulfillment of constitutional idealism ostracizing
anything that is not permissible by the language of the provisions
of the Constitution and showing veneration to its spirit and silence
with a sense of reawakening to the vision of the great living
B document is, in fact, constitutional renaissance. The Constitution
is a constructive one. There is no room for absolutism. There is
no space for anarchy. Sometimes it is argued, though in a different
context, that one can be a “rational anarchist”, but the said term
has no entry in the field of constitutional governance and rule of
law. The constitutional functionaries are expected to cultivate
C the understanding of constitutional renaissance by realization of
their constitutional responsibility and sincere acceptance of the
summon to be obeisant to the constitutional conscience with a
sense of reawakening to the vision of the great living document
so as to enable true blossoming of the constitutional ideals. The
D Lieutenant Governor and the Council of Ministers headed by
the Chief Minister are to constantly remain alive to this idealism.
[Para 272, 273, 277(xxiii)] [182-G; 183-A; 176-C-D; 183-B-D]
20.2 The said concept garners strength when there is
rational difference by the Lieutenant Governor on a constitutional
E prism, any statutory warrant, executive disharmony between the
Centre and NCT of Delhi on real justifiable grounds, when an
executive decision runs counter to the legislative competence
and the decision of the Council of Ministers defeats the national
interest. These are only a few illustrations. The Constitution does
not state the nature of the difference. It leaves it to the wisdom
F of the Council of Ministers who have the collective responsibility
and the Lieutenant Governor. That is the constitutional trust which
expects the functionaries under the Constitution to be guided by
constitutional morality, objective pragmatism and the balance that
is required to sustain proper administration. The idea of
G obstinance is not a principle of welfare administration. The
constitutional principles do not countenance a nomadic
perception. They actually expect governance for the betterment
of society, healthy relationship and mutual respect having an open
mind for acceptance. [Para 274] [176-E-G]

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 33
& ANOTHER

20.3 The goal is to avoid any disharmony and anarchy. A
Sustenance of constitutionally conferred trust, recognition and
acceptance of the principle of constitutional governance,
adherence to the principles and norms and the constitutional
conduct having regard to the elevated guiding precepts stated in
the Preamble will tantamount to realization of the feeling of
B
constitutional renaissance. [Para 275] [176-G; 177-A-B]
Keshavan Madhava Menon v. The State of Bombay 1951
SCR 228; Madhav Rao Jivaji Rao Scindia and others
v. Union of India and anr [1971] 3 SCR 9 : (1971) 1
SCC 85; State of Kerala and anr v. N. M. Thomas and
others [1976] 1 SCR 906 : (1976) 2 SCC 310; R.C. C
Cooper v. U.O.I. [1970] 3 SCR 530 : (1970) 1 SCC
248; Maneka Gandhi v. U.O.I. [1978] 2 SCR 621 :
(1978) 1 SCC 248; Justice K.S. Puttaswamy (Retd.) v.
U.O.I. (2017) 10 SCC 1; Rai Sahib Ram Jawaya Kapur
v. State of Punjab 1955 AIR 549 : [1955] SCR 225; D
Tej Kiran Jain v. N. Sanjiva Reddy [1971] 1 SCR 612 :
(1970) 2 SCC 272 – referred to.
Per Dr D Y Chandrachud, J. (Concurring):
1. The introduction of Article 239AA into the Constitution
was the result of the exercise of the constituent power. The 69th E
amendment to the Constitution has important consequences for
the special status of Delhi as the National Capital Territory, albeit
under the rubric of a Union territory governed by Part VIII of the
Constitution. The content of such a constitutional amendment
cannot be confined or constrained by the content of legislations F
which governed Delhi in the past. The constitutional amendments
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. [Para 143] [304-G-H; 305-A-C]
G
2. The Administrator appointed by the President under
Article 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. While Article 239(1) indicates that the administration
of a Union territory is by the President, the opening words of the H
34 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 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 [Para 143]
[305-C-E]
B
3. 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.
C [Para 143] [305-E-F]
4. 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
D 239AA which require direct election to the legislative assembly
from territorial constituencies; engage the constitutional functions
of the Election Commission of India under Articles 324, 327 and
329; confer law making authority on the legislative assembly in
respect of matters governed by the State List (save for excepted
E matters) and the Concurrent List; mandate the collective
responsibility of the Council of Ministers to the legislative
assembly; and 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
F Constitution has recognized the importance of the cabinet form
of government to govern the affairs of Delhi. [Para 143] [305-F-
H; 306-A-C]
5. The distribution of legislative power in Article 239AA is
indicative of the predominant role assigned to Parliament as a
G legislative body. This emerges from the position that Parliament
is empowered to legislate on subjects falling in the State List as
well as the Concurrent List; and 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
H (Entries 64, 65 and 66 in so far as they relate to the previous
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 35
& ANOTHER

entries), all of which are within the exclusive legislative domain A
of Parliament. Principles of repugnancy govern any inconsistency
between laws enacted by the legislative assembly and those by
Parliament and the laws of Parliament are to prevail unless a
Presidential assent has been received. [Para 143] [306-C-F]
6. The executive power of the government of NCT is co- B
extensive with the legislative power. The principle of aid and
advice under clause 4 of Article 239AA extends to areas where
the 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 C
the principle of aid and advice. Similarly, the Lieutenant Governor
is not subject to aid and advice on matters where he is required
to exercise his own discretion by or under any law. [Para 143]
[306-F-H; 307-A]
7. The GNCTD Act, 1991 has been enacted by Parliament D
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 Act, 1991. Section 41 of the GNCTD Act indicates
that in matters which lie outside the legislative powers entrusted E
to the legislative assembly and where there has been an
entrustment or delegation of functions by the President to the
Lieutenant Governor under Article 239; and 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; Section 44 of the GNCTD Act indicates that aid and F
advice governs areas other than those specified in Section
44(1)(i). [Para 143] [307-A-D]
8. Under the Rules, the Lieutenant Governor must be kept
duly apprised on all matters pertaining to the administration of
the affairs of the NCT. The Rules indicate the duty of the Council G
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 H
36 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Act, 1991 and the Transaction of Business Rules. [Para 143]
[307-E-F]
9. 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
B Governor on all matters relating to the administration of the NCT,
neither 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 Rules in fact indicates that the duty is
to inform and not seek the prior concurrence of the Lieutenant
C 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. [Para 143] [307-
F-H; 308-A-B]
10. The feature which stands out from the Transaction of
D Business Rules is that an obligation and duty has been cast upon
the elected government and its officers to duly keep the
Lieutenant Governor informed of proposals relating to
governmental business. The duty to keep the Lieutenant
Governor informed is a necessary element of the process and
E essential for the exercise of the constitutional authority which
has been vested in the Lieutenant Governor. It is only when the
Lieutenant Governor is kept duly apprised of matters relating to
the administration of the National Capital Territory that a decision
can be taken on whether a reference should be made to the Union
government under Chapter V. A significant aspect of the Rules is
F that on matters which fall within the ambit of the executive
functions of the government of NCT, decision making is by the
government comprised of the Council of Ministers with the Chief
Minister at its head.. [Para 103, 104] [271-D-F; G-H]
11. As a result of the provisions of Article 367, the General
G 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
H provisions of the Constitution unless there is something
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 37
& ANOTHER

repugnant in the subject or context of a particular provision of A
the Constitution. [Para 143] [308-B-C]
12. Since the decision of this Court in Kanniyan case and
right through to the nine-judge Bench decision in NDMC case, it
is a settled principle that the expression ‘State’ in Article 246(4)
will not include a Union territory and that the definition contained B
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. [Para 143]
[308-D-E] C

13. 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. [Para 143] [308-E-F] D

14. While giving meaning and content to the proviso to
Article 239AA (4), it is necessary to harmonise two significant
precepts: that 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 E
represented by the Council of Ministers; and the vital national
interests are implicated in the governance of the National Capital
Territory. The doctrines of aid and advice and of collective
responsibility give effect to (i) above while the empowerment of
the Lieutenant Governor to refer any matter on which there is a F
difference of opinion to the President is a reflection of (ii) above.
[Para 143] [308-F-H; 309-A-B]
15. While it may not be possible to make an exhaustive
catalogue of those differences which may be referred to the
President by the Lieutenant Governor, it must be emphasised G
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 constitutional structure
adopted for the governance of Delhi. [Para 143] [309-B-C] H
38 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 16. 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 Rules define the modalities which
the Lieutenant Governor must follow in the event of a difference
of opinion with the Council of Ministers. The Lieutenant
B
Governor must, by a 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,
C when the matter may be escalated to the President. [Para 143]
[309-C-E]
17. 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
D in the substantive part of Article 239AA(4) 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
E the proviso, he has to abide by 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
F on the 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 powers
G by the President under Article 239 on matters which lie outside
the competence of the Government of NCT). [Para 143] [309-E-
H; 310-A-B]
18. The proviso to Article 239AA is in the nature of a
protector to safeguard the interests of the Union on matters of
H national interest in relation to the affairs of the National Capital
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 39
& ANOTHER

Territory. Every trivial difference does not fall under the proviso. A
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
B
in the exercise of judicial review to exhaustively indicate the
circumstances warranting recourse to the proviso. [Para 143]
[310-C-E]
19. Constitutional morality underscores the ethics of politics
in a country. It gives politics the identity to succeed.
Constitutional morality requires filling in constitutional silences C
to enhance and complete the spirit of the Constitution. A
Constitution can establish a structure of government, but how
these structures work rests upon the fulcrum of constitutional
values. Constitutional morality purports to stop the past from
tearing the soul of the nation apart by acting as a guiding basis to D
settle constitutional disputes. [Paras 14-15] [192-B; 193-D]
20. Any interpretation of the Constitution must be
unabashed in accepting the importance of the Constitution as a
political document which incorporates a blue print for democratic
governance. The words of the Constitution cannot be construed
merely by alluding to what a dictionary of the language would E
explain. While its language is of relevance to the content of its
words, the text of the Constitution needs to be understood in the
context of the history of the movement for political freedom. [Para
17] [194-C-D]
21. Collective responsibility of the Council of Ministers F
ensures accountability to the legislature and to the electorate.
Collective responsibility governs the democratic process, as it
makes a government liable for every act it does. It envisages
that a government works effectively to ensure and fulfil the
interests of the public. It purports to ensure transparency in
government decisions. Collective responsibility rests on the G
foundations of constitutional morality, which reflects constitutional
ethics. [Para 37] [214-C-E]
22. Collective responsibility and aid and advice are mutually
reinforcing principles. Each of them and both in conjunction affirm
and enhance the democratic values on which the Cabinet form of H
40 SUPREME COURT REPORTS [2018] 7 S.C.R.

A government is founded. Collective responsibility ensures that
government speaks as one political entity which owes allegiance
to the elected representatives of the people. The principle of
collective responsibility and aid and advice fosters a responsive
and accountable government. The doctrine of aid and advice
enhances the commitment to the democratic values which form
B
the basis of collective responsibility. The mandate that a titular
head of government must act on the aid and advice of the Council
of Ministers ensures that the form of democratic governance is
subservient to its substance, which mandates that the real
authority to take decisions must reside in the elected arm of the
C government. [Para 41, 43] [219-D-E; 220-E-F]
U.N.R. Rao v Smt. Indira Gandhi (1971) 2 SCC 63 :
[1971] 0 Suppl. SCR 46; Samsher Singh v State of
Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; PU
Myllai Hlychho v State of Mizoram (2005) 2 SCC 92 :
D [2005] 1 SCR 279; Nabam Rebia and Bamang Felix v.
Deputy Speaker, Arunachal Pradesh Legislative
Assembly; (2016) 8 SCC 1 : [2016] 6 SCR 1; Kihoto
Hollohan v Zachillhu (1992) SCC Supl. (2) 651 : [1992]
1 SCR 686 – referred to.
E The Indian Constitution: Cornerstone of a Nation by
Granville Austin, Oxford University Press (1966) p.
xi – referred to.
23. In defining the ambit of the constitutional powers
entrusted to the Council of Ministers for the NCT and their
F relationship with Lieutenant Governor as a delegate of the
President, the Court cannot be unmindful of the constitutional
importance which has to be assigned to representative
government. Governance of the NCT involves national
imperatives. They must also weigh in the balance. The proviso
Article 239AA(4) is constitutional indicator of the national
G concerns which were borne in mind when the constituent power
was exercised to establish the NCT as a political arm of
governance by a special constitutional provision. Those national
imperatives have led to the carving out of the areas of police,
public order and land from the sphere of legislative authority of
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 41
& ANOTHER

the legislative assembly and their entrustment to Parliament. [Para A
74] [250-B-D]
24. The constitutional principle which emerges is that while
Delhi presents a special case, quite unlike the other Union
territories, the constitutional provisions governing it are an
amalgam between national concerns (reflected in control by the B
Union) and representative democracy (expressed through the
mandate of a Council of Ministers which owes collective
responsibility to a directly elected legislature). There is no gain
saying the fact that the control by the Union, is also control of the
President acting on the aid and advice of the Union Council of
Ministers which in turn owes collective responsibility to C
Parliament. Constitutional statesmanship between the two levels
of governance, the Centre and the Union territory, ought to ensure
that practical issues are resolved with a sense of political maturity
and administrative experience. [Para 75] [250-G-H; 251-A-B]
25. The survey of the provisions of the GNCTD Act 1991 D
indicates that there is a significant interface between the President
and the Lieutenant Governor in matters relating to the
administration of the Capital. The Lieutenant Governor has been
conferred with certain specific powers by the provisions of the
Act including, among them, requirements of seeking the prior E
recommendation of the President to the introduction of financial
Bills. Lieutenant Governor has been vested with the power to
act in his own discretion in matters which fall outside the ambit
and power of the legislative assembly and which have been
delegated to him by the President as well as in regard to those
matters where he is required under law to exercise his own F
discretion or to act in exercise of judicial or quasi judicial functions.
Rules for the conduct of business are framed by the President in
relation to National Capital Territory. [Para 87] [259-A-B, D-E]
Keshavan Madhava Menon v State of Bombay [1951]
2 SCR 228; Tej Kiran Jain v N Sanjiva Reddy (1970) 2 G
SCC 272 : [1971] 1 SCR 612; G Narayanaswami v G
Pannerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172;
Kuldip Nayar v Union of India (2006) 7 SCC 1 : [2006]
5 Suppl. SCR 1; Manoj Narula v Union of India (2014)
H
42 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 9 SCC 1 : [2014] 9 SCR 965; Satya Dev Bushahri v
Padam Dev [1955] 1 SCR 549; Devji Vallabhbhai
Tandel v Administrator of Goa, Daman & Diu [1982] 2
SCC 222 : [1982] 3 SCR 553; Goa Sampling Employees’
Association v General Superintendence Co. of India
Pvt. Ltd. (1985) 1 SCC 206 : [1985] 2 SCR 373; The
B
State of Madhya Pradesh v Shri Moula Bux (1962) 2
SCR 794; State (NCT of Delhi) v Navjot Sandhu (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79; New Delhi
Municipal Council v State of Punjab (1997) 7 SCC 339 :
[1996] 10 Suppl. SCR 472; TM Kanniyan v Income Tax
C Officer, Pondicherry [1968] 2 SCR 103; Management
of Advance Insurance Co. Ltd. v Shri Gurudasmal
(1970) 1 SCC 633; Union of India v Prem Kumar Jain
(1976) 3 SCC 743 : [1976] 0 Suppl. SCR 166; Manoj
Narula v Union of India (2014) 9 SCC 1 : [2014] 9
SCR 965; Kesavananda Bharati v State of Kerala AIR
D
(1973) SC 1461 : [1973] 0 Suppl. SCR 1; Puttaswamy
(2017) 10 SCC 1; I.R. Coelho v State of Tamil Nadu
(2007) 2 SCC 1 : [2007] 1 SCR 706; Rai Sahib Ram
Jawaya Kapur v The State of Punjab [1955] 2 SCR
225; A Sanjeevi Naidu v State of Madras (1970) 1 SCC
E 443 : [1970] 3 SCR 505; Samsher Singh v State of
Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; State
of Karnataka v Union of India (1977) 4 SCC 608 :
[1978] 2 SCR 1; Common Cause, A Registered Society
v Union of India (1999) 6 SCC 667 : [1999] 3
SCR 1279; Subramanian Swamy v Manmohan Singh
F
(2012) 3 SCC 64 : [ 2012] 3 SCR 52 – referred to.
Politics and Ethics of the Indian Constitution by Rajiv
Bhagava (ed.), Oxford University Press (2008), p. 9;
The Indian Constitution: Cornerstone of a Nation by
Granville Austin, Oxford University Press (1966)
G p. xi; Politics and Ethics of the Indian Constitution by
Rajiv Bhagava, Oxford University Press (2008)p.15;
The Burden of Democracy, Penguin Books (2003) by
Pratap Bhanu Mehta pp. 35-36; What is constitutional
morality?” by Pratap Bhanu Mehta Seminar (2010);
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 43
& ANOTHER

Constituent Assembly Debates, Vol. 11 (25th November, A
1949); The Oxford Handbook of the Indian Constitution
by Sujit Choudhry, Madhav Khosla and Pratap Bhanu
Mehta Oxford University Press (2016) p.12;
“The Quest and the Questions” by Raju
Ramchandran;Outlook (25 August, 2014); London
B
School of Economics & Political Science by Niraja
Gopal Jayal and Pratap Bhanu Mehta (eds.) (February
2007); “Government Accountability” by Dilip
Mookherjee ; The Oxford Companion to Politics in
India, Oxford University Press (2010), p. 477;
“Executive” by Shubhankar Dam; in Sujit Choudhry, C
Madhav Khosla and Pratap Bhanu Mehta (eds.); The
Oxford Handbook of the Indian Constitution, Oxford
University Press (2016), p. 319; Politics and Ethics of
the Indian Constitution by Rajiv Bhagava Oxford
University Press (2008) (ed.) p. 9 - referred to.
D
“The Glory of Democracy” by David Brooks The New
York Times December 14, 2017; Democracy and its
Institutions, by Andre Beteille Oxford University Press
(2012); “Constitutional Morality and the Rule of Law”,
Journal of Law and Politics by Bruce P. Frohnen and
George W. Carey (2011),Vol. 26, p.498; “The Silences E
of Constitutions”, International Journal of
Constitutional Law by Martin Loughlin (2019, In Press);
Representative and Responsible Government, by George
Allen & Unwin Ltd (1964), p.131; The English
Constitution by Walter Bagehot, 2nd Edition (1873), F
p. 118; The Growth of the English Constitution by
Edward A. Freeman (1872); Cabinet Government by
Ivor Jennings, Cambridge University Press (1959),
3 rd Edition, p. 279; Ministerial responsibility by G
Marshall, Oxford University Press (1989), p. 2-4;
“Individual and Collective Performance and the Tenure G
of British Ministers by Samuel Berlinski, Torun Dewan
and Keith Dowding1945-1997”; “The Silences of
Constitutions” by Martin Loughlin, International

H
44 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Journal of Constitutional Law (2019, In Press) –
referred to.
Per Ashok Bhushan, J. (Concurring):
Principles of Constitutional Interpretation
B 1.1 The general rule for interpreting a Constitution are the
same as those for interpreting a general Statute. There cannot
be denial to the fact that the Court has to respect the language
used in the Constitution wherever possible, the language be such
interpreted as may best serve the purpose of the Constitution. A
Constitutional document should be construed with less rigidity
C and more generosity than other acts. A Constitution is not just a
document in solemn form, but a living framework for the
Government of the people exhibiting a sufficient degree of
cohesion and its successful working depends upon the democratic
spirit underlying it being respected in letter and in spirit. [Para
D 41-42][332--D; 333-F, G]
1.2 As regards applying the doctrine of silence and doctrine
of implications in interpreting a Constitutional provision, express
provision cannot be given a go-bye. The purpose and intent of
Constitutional provisions especially the express language used
E which reflect a particular scheme has to give full effect to and
express Constitutional scheme cannot be disregarded on such
principles.[Para 56] [343-B-C]
1.3 It is apparent that Constitutional interpretation has to
be purposive taking into consideration the need of time and
F Constitutional principles. The intent of Constitution framers and
object and purpose of Constitutional amendment always throw
light on the Constitutional provisions but for interpreting a
particular Constitutional provision, the Constitutional Scheme
and the express language employed cannot be given a go-bye.
The purpose and intent of the Constitutional provisions have to
G be found from the very Constitutional provisions which are up
for interpretation. Thus, while interpreting Article 239AA the
purpose and object for which Sixty Ninth Constitution
(Amendment) Act, 1991 was brought into force has to be kept in
mind.[Para 57, 119-I] [343-D-E; 376-F]
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 45
& ANOTHER

Keshavan Madhava Menon v. State of Bombay AIR A
1951 SC 128 : [1951] SCR 228; S. R. Chaudhuri v.
State of Punjab & Ors. (2001) 7 SCC 126 : [2001] 1
Suppl. SCR 621; G. Narayanaswami v. G. Paneerselvam
and Others (1972) 3 SCC 717 : [1973] 1 SCR 172;
B.R. Kapur v. State of T. N. and Another (2001) 7 SCC
B
231 : [2001] 3 Suppl. SCR 191; Kuldip Nayar and
Others v. Union of India and Others (2006) 7 SCC 1 :
[2006] 5 Suppl. SCR 1; I.R. Coelho v. State of T.N.
(2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom Cavasjee
Cooper v. Union of India (1970) 1 SCC 248 : AIR
1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi v. C
Union of India and Another (1978)1 SCC 248 : AIR
1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar
and Another v. State of Karnataka 1985 Supp. SCC
714 : [1985] Suppl. SCR 352; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965 – referred
D
to.
“A critical commentary” on Constitutional Law of India
by Shri H.M. Seervai; “Principles of Statutory
Interpretation by Justice G.P. Singh 14th Edn; Forward:
A Judge on judging the role of a Supreme Court in a
Democracy by Aharon Barak; Nature and Significance E
of Constitutional Legislation by David Feldman 2013
(129) LQR 343-358 – referred to.
Constitutional Scheme of Article 239AA
2. Article 239A which was inserted by Constitutional F
Fourteenth Amendment Act, 1962 had already contemplated that
Parliament may by law provide for Legislative Assembly for a
Union territory. The report also highlighted the necessity of
certain subjects being kept out of jurisdiction of legislative
assembly of Delhi which were to be dealt with by the Union. The
Parliamentary Committee Report can be looked into to find out G
the intent and purpose of legislation-Sixty Ninth Constitutional
Amendment. The statement of object and reasons of Sixty Ninth
Amendment Act has also referred to the Balakrishnan’s report.
The recommendation of the Committee that Delhi should continue
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46 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to be Union territory providing with a Legislative Assembly and
Council of Ministers responsible to such Assembly was thus,
accepted and to give effect the same Article 239AA was inserted
in the Constitution. There is no denying that one of the purposes
for insertion of Article 239AA is to permit a democratic and
republican form of Government. The principle of cabinet
B
responsibility was the Constitutional intent which has to be kept
in mind while interpreting the Constitutional provisions. [Para
60, 61, 65-67] [344-C-H; 346-F-G; 347-C-D]
Kalpana Mehta and others v. Union of India and others
2018 (7) SCALE 106 – referred to.
C
Legislative Power of Parliament and that of GNCTD
3.1 Clause (3) of the 239AA deals with power to make laws
for the whole or any part of the National Territory of Delhi by the
Legislative Assembly as well as by Parliament. Article 239 Clause
(3) makes it clear that Legislative Assembly shall have power to
D
make laws in respect of any of the matters enumerated in the
State List or in the Concurrent List in so far as any such matter is
applicable to Union territories except matters with respect to
Entries 1, 2 and 18 (public order, police and land) of the State
List and Entries 64, 65 and 66 of the List. Power to make laws in
E State List or in Concurrent List is hedged by phrase “in so far as
any such matter is applicable to Union territories”. [Para 69-71]
[348-B-D; 349-C]
3.2 A perusal of the List II and III indicates that although
in various entries there is specific mention of words ‘State’ but
F there is no express reference of ‘Union Territory in any of the
entries. The phrase ‘in so far as any such matter is applicable to
‘Union Territory’ is inconsequential. On the commencement of
the Constitution, there was no concept of Union Territories and
there were only Part A, B, C and D States. After Seventh
Constitutional Amendment, where First Schedule as well as
G Article 2 of the Constitution were amended which included
mention of Union Territory both in Article 1 as well as in First
Schedule. Thus, the above phrase was used to facilitate the
automatic conferment of powers to make laws for Delhi on all
matters including those relatable to the State List and Concurrent
H List except where an entry indicates that its applicability to the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 47
& ANOTHER

Union Territory is excluded by implication or any express A
Constitutional provision. Thus, there is no difficulty in
comprehending the Legislative power of the NCTD as expressly
spelled out in Article 239AA. The Union Territories are part of
the India which are not included in any State. Thus, Parliament
will have power to make laws for any matter with regard to Union
B
territories. In clause (4) of Article 246 by Seventh Constitutional
Amendment, in place of words “in Part A or Part B of the First
Schedule” the words “in State” have been substituted. Thus,
overriding power of the Parliament was provided with regard to
Part C and D States on enforcement of the Constitution which
Constitutional Scheme is continued after amendment made by C
Seventh Constitutional Amendment. [Para 72-76] [349-D-G, H;
350-H; 351-A]
3.3 The Parliament has power to make laws for NCTD with
respect to any of the matter enumerated in State List or
Concurrent List. The Legislative Assembly of NCT has legislative D
power with respect to any of the matters enumerated in the State
List or in the Concurrent List excluding the excepted entries of
State List. [Paras 80, 119-II] [354-F; 376-G]
NDMC v. State of Punjab (1997) 7 SCC 339 : [1996]
10 Suppl. SCR 472 – referred to.
E
Executive Powers of the Union(President /LG) And That of the
GNCTD
4.1 Although there is no express provision in the
Constitutional Scheme conferring executive power to LG of the
Union territory of Delhi, as has been conferred on the Union under
Article 73 and conferred on the State under Article 154. Under F
the Constitutional Scheme executive power is co-extensive with
the Legislative power. The Executive power is given to give effect
to Legislative enactments. Policy of legislation can be given effect
to only by executive machinery. The executive power has to be
conceded to fulfill the constitutionally conferred democratic G
mandate. Article 239(4) AA deals with the exercise of executive
power by the Council of Ministers with the Chief Minister as the
head to aid and advice the LG in exercise of the above functions.
Union and States can exercise Executive power on the subjects
on which they have power to legislate. [Para 81,82, 119-III] [354-
H; 355-A-B-C; 376-H] H
48 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Rai Sahib Ram JawayaKapur and Others v. State of
Punjab AIR 1955 SC 549 : [1955] SCR 225 – referred
to.
4.2 The proviso to Article 73(1) provides that the executive
power referred to in sub clause (a) shall not, save as expressly
B provided in this Constitution or in any law made by Parliament,
extend in any State to matters with respect to which the
Legislature of the State has also power to make laws. Obviously,
the proviso refers to the Concurrent List where both Parliament
and State has power to make laws. Executive power in reference
to Concurrent List has been deliberately excluded to avoid any
C duplicacy in exercise of power by two authorities. The Article 73
as it stood prior to Constitution Seventh Amendment Act, 1956
contained the expression after the word State “specified in Part
A or Part B of the First Schedule”. Thus, the executive power
was excluded of the Union only with regard to Part A and Part B
D States alone. Thus, when the Constitution was enforced, executive
power of Union in reference to Part C States was not excluded
with regard to Concurrent List also.Part C States having been
substituted as now by Union Territories by Constitution Seventh
Amendment Act. The word “State” in Proviso to Article 73 cannot
be read to include Union Territory. Reading the word Union
E Territory within the word “State” in proviso to Article 73(1) shall
not be in accordance with Scheme of Part VIII (Union Territories)
of the Constitution. Union Territories are administered by the
President. Exercise of executive power of the Union through
President is an accepted principle with regard to Union
F Territories. The above interpretation is also reinforced due to
another reason. Under Article 239AA(4) proviso, the Lieutenant
Governor, in case of difference of opinion, can make a reference
to the President for decision and has to act according to the
decision given thereon. The President, thus, with regard to a
particular executive action, which has been referred, has exclusive
G jurisdiction to take a decision, which both Council of Ministers
as well as Lieutenant Governor has to follow. The provision does
not indicate that power of the President is confined only to
executive actions which are mentioned in List II. When the
President as provided by the Constitutional Scheme, is entitled
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 49
& ANOTHER

to take executive decision on any matter irrespective of the fact A
whether such executive decision taken by the Council of
Ministers or Ministers related to matters covered by List II and
List III, the executive power to Union through President cannot
be confined to List II. Overriding power to the Union even on
the executive matters has to be conceded to be there as per
B
Constitutional scheme. It is another matter that for exercise of
executive powers by the Union through President and by Council
of Ministers, headed by Chief Minister of NCTD, the Constitution
itself indicates a scheme which advances the constitutional
objectives and provide a mechanism for exercise of executive
powers, which aspect shall be, however, further elaborated while C
considering sub-clause(4) of Article 239AA. Legislative power
of the Union is co-extensive with its executive power in relation
to NCT is further indicated by the provisions of the Government
of National Capital Territory of Delhi Act, 1991. The insertion of
Article 239AA by the Constitution 69th Amendment has been
D
followed by enactment of the Government of National Capital
Territory of Delhi Act, 1991 which Act was enacted by the
Parliament in exercise of power under Article 239AA(7)(a) of
the Constitution. [Para 85, 119-IV] [359-B-G; 360-A-C; 377-A-B]
4.3 Legislative power of the Union is exercised by the
President as per the constitutional scheme and Section 49 itself E
indicates that Parliament clearly envisaged Council of Ministers
and the Lieutenant Governor shall be under the general control
of, and comply with such particular directions issued by the
President from time to time. The power of the President to issue
direction is not limited in any manner so as to put any restriction F
on the executive power of the Union. The President further is
empowered under Section 44 of Act, 1991 to make rules for the
allocation of business to the Ministers in so far as it is business
with respect to which the Lieutenant Governor is required to
act on the aid and advice of his Council of Ministers. As per Article
239AA sub-clause (4) read with business rules, the manner and G
procedure of conduct of business including executive functions
of GNCTD has to be administered. Although the Union ordinarily
does not interfere with or meddle with the day to day functions of
the GNCTD which is in tune with the constitutional scheme as
H
50 SUPREME COURT REPORTS [2018] 7 S.C.R.

A delineated by Article 239AA and to give meaning and purpose to
the Cabinet form of Government brought in place in the National
Capital of Territory. But as the overriding legislative power of
the Parliament is conceded in the constitutional scheme,
overriding executive power has also to be conceded even though
such power is not exercised by the Union in the day to day
B
functioning of the GNCTD. Thus, the executive power of the Union
is co-extensive on all subjects referable to List I and List II on
which Council of Ministers and the NCTD has also executive
powers. [Para 86-87] [360-E-H; 361-A-B]
4.4 The provision of the Article 239AB is a special provision
C where President may suspend the provision of Article 239AA or
any of the provision of any law made in pursuance of that article.
The above provision is akin to Article 356.The power under
Article 356/239AA is conferred on Union in larger interest of
State. It cannot be said that executive power can be exercised by
D the Union through President only when power under Article
239AB is exercised. The provision of Article 239AB is for entirely
different purpose, and is not a provision regarding exercise of
general executive power by the Union. [Para 89] [361-H;
362-A-B]
E Article 239AA(4) proviso
5.1 The Governor is to act on aid and advice of the Council
of Ministers and as contemplated under Article 163, according
to the Constitutional scheme, Governor is not free to disregard
the aid and advice of the Council of Ministers except when he is
F required to exercise his function in his discretion. The aid and
advice as given by Council of Ministers as referred to in sub-
clause(4) of Article 239AA has to be followed by the Lieutenant
Governor unless he decides to exercise his power given in proviso
of sub-clause(4) of Article 239AA.The proviso is an exception to
the power as given in sub-clause(4). A case when falls within the
G proviso, the “aid and advice” of the Council of Ministers as
contemplated under sub-clause (4) is not to be adhered to and a
reference can be made by Lieutenant Governor. This is an
express Constitution scheme, which is delineated by sub-
clause(4) of Article 239AA proviso. The scheme which is reflected
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 51
& ANOTHER

by sub-clause(4) of Article 239AA proviso is the same scheme A
which is contained under Section 44 of the Government of Union
Territories Act, 1963. [Para 92, 119-VI] [365-B, E-G]
Shamsher Singh v. State of Punjab and Another (1974)
2 SCC 831 : [1975] 1 SCR 814 – referred to.
5.2 With regard to Union Territories, the exception as B
carved out in proviso was very much there since before. Thus,
the scheme as contained in proviso was well known scheme
applicable in the Union Territories. When there is an express
exception when the aid and advice given by the Council of
Ministers is not binding on the Lieutenant Governor and he can C
refer it to the President and pending such decision in case of
urgency take his own decision, it cannot be accepted that aid and
advice is binding on the Governor under Article 163. The
Legislative Assembly of the NCTD being representing the views
of elected members their opinion and decision has to be respected
and in all cases, except where Lieutenant Governor decides to D
make a reference. [Para 92-93, 119-VII] [366-D-E; 377-D]
5.3 The proviso uses the phrase “any matter” in the first
sentence, i.e., “provided that in the case of difference of opinion
between the Lieutenant Governor and his Ministers on any
matter...”The word “any matter” are words of wide import and E
the language of Article 239AA(4) does not admit any kind of
restriction in operation of proviso. There is nothing in the
provision of sub-clause (4) to read any restriction or limitation
on the phrase “any matter” occurring in proviso. The word “any
matter” has also been used in Article 239AA(3) while providing F
for power to make laws as also in sub-clause(b). The use of word
“any matter” in above two clauses clearly indicate that it is not
used in any limited or restricted manner rather use of word “any
matter” is used referring to the entire extent of legislation. When
the same phrase has been used in proviso to sub-clause(4), similar
interpretation has to be given to the same word used in earlier G
part of the same Article. [Para 95] [367-D, G]
Tej Kiran Jain and Others v. N. Sanjiva Reddy and
Others (1970) 2 SCC 272 : [1971] 1 SCR 612 –
referred to.
H
52 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 5.4 It is clear that aid and advice of the Council of Ministers
is binding on the Lieutenant Governor except when he decides
to exercise his power given in proviso of sub-clause(4) of Article
239AA. In the matters, where power under proviso has not been
exercised, aid and advice of the Council of Ministers is binding
on the Lieutenant Governor. Proviso to sub-clause(4) of Article
B
239AA cannot be given any other interpretation relying on any
principle of Parliamentary democracy or any system of
Government or any principle of Constitutional silence or
implications.[Para 97] [368-D-F]
5.5 Proviso to sub-clause(4) of Article 239AA envisages
C an extreme and unusual situation and is not meant to be a norm.
The exercise of power under proviso cannot be a routine affair
and it is only in cases where Lieutenant Governor on due
consideration of a particular decision of the Council of Ministers/
Ministers, decides to make a reference so that the decision be
D not implemented. The overall exercise of administration of Union
Territory is conferred on President, which is clear from the
provisions contained in Part VIII of the Constitution. The
submission that Article 239 is not applicable with regard to NCTD
after Article 239AA has been inserted in the Constitution, cannot
be accepted on account of the express provisions which are
E mentioned under Article 239AA and Article 239AB itself. Article
239AA sub-clause(1) itself contemplates that administrator
appointed under Article 239 shall be designated as the Lieutenant
Governor. Thus, the administrator appointed under Article 239
is designated as LG. Article 239AB is also applicable to NCTD.
F The provisions contained in Part VIII have to be looked into in
its entirety. Thus, all the provisions of Part VIII has to be
cumulatively read while finding out the intention of the
Constitution makers, which makes it clear that Article 239 is
also applicable to the NCTD. [Para 98] [368-F-H; 369-A-C]
G Whether concurrence of Lieutenant Governor is required on
executive decision of GNCTD.
6.1 The constitutional provision of Article 239AA does not
indicate that the executive decisions of GNCTD have to be taken
with the concurrence of LG. The constitutional provisions inserted
H by 69th Constitution Amendment are with the object to ensure
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 53
& ANOTHER

stability and permanence by providing Legislative Assembly and A
Council of Ministers by the constitutional provisions itself. With
regard to executive decision taken by the Council of Ministers/
Ministers of GNCTD proviso gives adequate safeguard
empowering the LG to make a reference to the President in the
event there is difference of opinion between executive decisions
B
of the GNCTD and the LG, but the scheme does not suggest that
the decisions by Council of Ministers/Ministers have to be taken
with the concurrence of the LG. The above conclusion is re-
enforced by looking into the 1991 Act as well as Rules framed by
the President under Section 44 of 1991 Act, namely, the
Transaction of Business of the Government of National Capital C
Territory of Delhi Rules, 1993. The provisions of 1991 Act
although provide for communication of proposal, agenda and
decisions of the Council of Ministers/Ministers to LG but there
is no indication in any of the provisions that the concurrence of
LG is required with regard to the aforesaid decisions. [Para 99]
D
[369-C-G]
6.2 Earlier enactments governing the Delhi administration
did provide the word concurrence of LG for implementing
decisions taken by GNCTD but the said scheme having been
given a go-bye in the 1991 Act, there is no requirement of any
concurrence of LG to the executive decisions taken by the E
GNCTD. [Para 100] [369-G-H]
Communication to the LG, its purpose and object
7.1 The scheme as delineated by 1991 Act and Rules 1993
clearly indicates that LG has to be kept informed of all proposals, F
agendas of meeting and decisions taken. The purpose of
communication of all decisions is to keep him posted with the
administration of Delhi. The communication of all decisions is
necessary to enable him to go through the proposals and decisions
so as to enable him to exercise powers as conceded to him under
1991 Act and Rules 1993. Further, the power given under proviso G
to 239AA(4) can be exercised only when LG is informed and
communicated of all decisions taken by GNCTD. The
communication of all decisions is necessary to enable the LG to
perform duties and obligations to oversee the administration of
GNCTD and where he is of different opinion he can make a H
54 SUPREME COURT REPORTS [2018] 7 S.C.R.

A reference to the President. The purpose of communication is not
to obtain his concurrence of the decision but purpose is to post
him with the administration so as to enable him to exercise his
powers conceded to him under proviso to Article 239AA sub-
clause (4). The powers given in proviso to sub-clause (4) is not
to be exercised in a routine manner rather it is to be exercised
B
by the LG on appropriate reasons to safeguard the interest of the
Union Territory.[Para 101, 113, 119-VIII, X] [377-G-H; 378-A;
374-F-H; 377-E]
7.2 The 1991 Act and 1993 Rules cover the entire gamut,
manner and procedure of executive decisions taken by the Council
C of Ministers/Minister their communication, and implementation
and the entire administration is to be run accordingly. The duty
of observance of 1993 Rules and other statutory provisions lay
both on Council of Ministers, Chief Minister and LG. All have to
act in a manner so that the administration may run smoothly
D without there being any bottleneck. The object and purpose of
all constitutional provisions, Parliamentary enactments and the
Rules framed by the President is to carry the administration in
accordance with the provisions in the interest of public in general
so that rights guaranteed by the Constitution to each and every
person are realised. When the duty is entrusted on persons
E holding high office, it is expected that they shall conduct
themselves, in faithful, discharge of their duties to ensure smooth
running of administration and protection of rights of all concerned.
[Para 114, 116] [375-E-F; 376-A-C]
S.R. Chaudhuri v. State of Punjab &Ors. (2001) 7 SCC
F 126 : [2001] 1 Suppl. SCR 621; G. Narayanaswami v.
G. Paneerselvam and Others (1972) 3 SCC 717 : [1973]
1 SCR 172; B.R. Kapur v. State of T. N. and Another
(2001) 7 SCC 231 : [2001] 3 Suppl. SCR 191; Kuldip
Nayar and Others v. Union of India and Others (2006)
G 7 SCC 1 : [2006] 5 Suppl. SCR 1; I.R. Coelho v. State
of T.N. (2007) 2 SCC 1 : [2007] 1 SCR 706; Rustom
Cavasjee Cooper v. Union of India (1970)1 SCC 248 :
AIR 1970 SC 564 : [1970] 3 SCR 530; Maneka Gandhi
v. Union of India and Another (1978)1 SCC 248: AIR

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 55
& ANOTHER

1978 SC 597 : [1978] 2 SCR 621; K.C. Vasanth Kumar A
and Another v. State of Karnataka (1985) Supp. SCC
714 : [1985] Suppl. SCR 352; Manoj Narula v. Union
of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Kalpana
Mehta and others v. Union of India and others 2018
(7) SCALE 106; NDMC v. State of Punjab (1997) 7
B
SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram
Jawaya Kapur and Others v. State of Punjab AIR 1955
SC 549 : [1955] SCR 225; Shamsher Singh v. State of
Punjab and Another (1974) 2 SCC 831 : [1975] 1 SCR
814; Tej Kiran Jain and Others v. N. Sanjiva Reddy
and Others (1970) 2 SCC 272 : [1971] 1 SCR 612 – C
referred to.
“A critical commentary” on Constitutional Law of India
by Shri H.M. Seervai; “Principles of Statutory
Interpretation by Justice G.P. Singh, 14 th Edn –
referred to. D
Case Law Reference
In the Judgment of Justice Dipak Misra, CJI
[1951] SCR 228 referred to Para 7
[1971] 3 SCR 9 referred to Para 8 E
[1976] 1 SCR 906 referred to Para 9
[1993] 2 Suppl. SCR 659 referred to Para 10
[1970] 3 SCR 530 referred to Para 24
[1978] 2 SCR 621 referred to Para 24 F

[2017] 10 SCC 1 referred to Para 24
[1955] SCR 225 referred to Para 25
[1975] 1 SCR 814 referred to Para 25
G
[1971] 1 SCR 612 referred to Para 44
[2000] 2 SCR 299 referred to Para 52
[2014] 9 SCR 965 referred to Para 59
[2015] 4 SCR 987 referred to Para 61
H
56 SUPREME COURT REPORTS [2018] 7 S.C.R.

A [1992] 2 Suppl. SCR 454 referred to Para 63
2018 (7) SCALE 106 referred to Para 67
[2001] 3 Suppl. SCR 191 referred to Para 70
[2000] 2 SCR 688 referred to Para 73
B 1990 (2) SCALE 836 referred to Para 73
[1978] 2 SCR 1 referred to Para 79
[1993] 3 SCR 802 referred to Para 81
[1999] 3 SCR 1279 referred to Para 82
C
[1978] 2 SCR 272 referred to Para 87
[1980] SCR 1302 referred to Para 88
[1976] SCR 347 referred to Para 90
[1995] 2 Suppl. SCR 106 referred to Para 90
D
[2006] 5 Suppl. SCR 1 referred to Para 90
[1965] SCR 413 referred to Para 97
[1994] 2 SCR 644 referred to Para 100
[2002] 1 SCR 441 referred to Para 104
E
[1978] 1 SCR 1 referred to Para 119
[2016] 11 SCR 723 referred to Para 130
[1993] 1 SCR 891 referred to Para 135

F [1984] 2 SCR 145 referred to Para 141
[2001] 1 Suppl. SCR 621 referred to Para 147
[1997] 3 SCR 269 referred to Para 149
[2011] 6 SCR 599 referred to Para 150
G (2006) 8 SCC 202 referred to Para 150
(2016) 5 SCC 1 referred to Para 164
[1978] 1 SCR 641 referred to Para 166
[1978] 1 SCR 423 referred to Para 169
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 57
& ANOTHER

[2012] 12 SCR 1077 referred to Para 176 A
[1982] 3 SCR 553 referred to Para 188
[1964] 3 SCR 787 referred to Para 189
[1987] 2 SCR 1173 referred to Para 227
[1992] 1 SCR 686 referred to Para 228 B
[1970] 1 SCR 115 referred to Para 229
[1958] SCR 1156 referred to Para 231
[1984] 2 SCR 495 referred to Para 269
C
[2002] 1 SCR 393 referred to Para 269
[2002] 3 Suppl. SCR 587 referred to Para 269
[1996] 10 Suppl. SCR 472 followed Para 277(xii)
In the Judgment of Justice D Y Chandrachud
D
[2014] 9 SCR 965 referred to Para 14
[1973] Suppl. SCR 1 referred to Para 17
(2017) 10 SCC 1 referred to Para 21
[1992] 1 SCR 686 referred to Para 23
E
[2007] 1 SCR 706 referred to Para 23
[1955] 2 SCR 225 referred to Para 36
[1970] 3 SCR 505 referred to Para 36
[1975] 1 SCR 814 referred to Para 36 F
[1978] 2 SCR 1 referred to Para 36
[1999] 3 SCR 1279 referred to Para 36
[2012] 3 SCR 52 referred to Para 36
[1971] Suppl. SCR 46 referred to Para 39 G
[1975] 1 SCR 814 referred to Para 39
[2005] 1 SCR 279 referred to Para 40
[2016] 6 SCR 1 referred to Para 40
H
58 SUPREME COURT REPORTS [2018] 7 S.C.R.

A [1951] 2 SCR 228 referred to Para 107
[1971] 1 SCR 612 referred to Para 108
[1973] 1 SCR 172 referred to Para 109
[2006] 5 Suppl. SCR 1 referred to Para 110
B
[2014] 9 SCR 965 referred to Para 110
[1955] 1 SCR 549 referred to Para 114
[1982] 3 SCR 553 referred to Para 115
C
[1985] 2 SCR 373 referred to Para 117
[1962] 2 SCR 794 referred to Para 117
[2005] 2 Suppl. SCR 79 referred to Para 118

D [1996] 10 Suppl. SCR 472 referred to Para 119
[1968] 2 SCR 103 referred to Para 123
(1970) 1 SCC 633 referred to Para 124
[1976] Suppl. SCR 166 referred to Para 125
E
In the Judgment of Justice Ashok Bhushan
[1971]1 SCR 612 referred to Para 27
[1951] SCR 228 referred to Para 41
F [2001] 1 Suppl. SCR 621 referred to Para 42
[1973] 1 SCR 172 referred to Para 43
[2001] 3 Suppl. SCR 191 referred to Para 44

G [2006] 5 Suppl. SCR 1 referred to Para 45
[2007] 1 SCR 706 referred to Para 46
[1970] 3 SCR 530 referred to Para 47
[1978] 2 SCR 621 referred to Para 47
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 59
& ANOTHER

[1985] Suppl. SCR 352 referred to Para 47 A
[2014] 9 SCR 965 referred to Para 53
2018 (7) SCALE 106 referred to Para 62
[1996] 10 Suppl. SCR 472 referred to Para 77
B
[1955] SCR 225 referred to Para 81
[1975] 1 SCR 814 referred to Para 91
[1971] 1 SCR 612 referred to Para 96
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2357 C
of 2017.
From the Judgment and Order dated 04.08.2016 of the High Court
of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015
WITH
D
Contempt Petition (C) No. 175 of 2016 in W.P. (Crl.) No. 539
of 1986
C. A. No. 2360, 2359, 2363, 2362, 2358, 2361 and 2364 of 2017
Crl. A. No. 277 of 2017.
Maninder Singh, ASG, P. Chidambaram, Dr. Rajeev Dhawan, E
Shekhar Naphade, Ms. Indira Jaising, Gopal Subramaniam,
Mrs. V. Mohana, Sidharth Luthra, Sr. Advs., Shadan Farasat, Ms. Nitya
Ramakrishnan, Rahul Mehra, Ahmed Said, Ms. Rudrakshi Deo, Shashi
Pratap Singh, Suhail Rashid Bhat, Ms. Neha Sangwan, Chirag M. Shroff,
Naveen R. Nath, Abhimanyu Verma, Nehmat Kaur, Gautam Bhatia, F
Prateek Chadha, Ankur Kashyap, Kushagra Pandey, B. Krishna Prasad,
Sija N. Pal, Satya Mitra, Prabhas Bajaj, R. Bala Subramanian, Ms. Binu
Tamta, Prateek Jalan, Ritin Rai, P. K. Mullick, Ritesh Kumar,
Ms. Meenakshi Grover, Kirtiman Singh, Jayant Malik, Aabhas Kshetarpal,
Ms. Kritika, Abhipsit Mishra, Ms. Madhavi Divan, Rahul Kriplani, Ankit
Yadav, Mrs. Soma Mullick, Sebat Kumar Devria, Ayush Puri, G
B. V. Balram Das, K. R. Sasiprabhu, Gautam Khazandvi, Mrs. Gargi
Khanna, Nikhil Nayyar, Dr. Monika Gusain, Manpreet Kaur Bhalla,
Siddharth Aggarwal, Ms. Stuti Gujral, Zeeshan Diwan, Senthil
Jagadeesan, Aman Hingorani, Ms. Priya Hingorani, Dr. Shweta
Hingorani, Advs. for the appearing parties. H
60 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The Judgments of the Court were delivered by
DIPAK MISRA, CJI (FOR HIMSELF, A. K. SIKRI AND
A.M. KHANWILKAR, JJ.)
CONTENTS
B A. Prologue……………………………………………............ 3-22
B. Rivalised Submissions…………………………................... 22-23
B.1 Submissions on behalf of the appellant……………........... 23-34
B.2 Submissions on behalf of the respondents.......................... 34-45
C C. Ideals/principles of representative governance.................... 45-50
D. Constitutional morality……………………….................... 50-54
E. Constitutional objectivity……………………...................... 54-57
F. Constitutional governance and the conception of legitimate
D constitutional trust………………………………………… 57-68
G. Collective responsibility………………………................... 68-73
H. Federal functionalism and democracy............................... 74-93
I. Collaborative federalism……………………….................. 93-100
E J. Pragmatic federalism……………………………............. 101-104
K. Concept of federal balance……………………............... 104-108
L. Interpretation of the Constitution…………...................... 108-120
M. Purposive interpretation………………………................ 120-127
F N. Constitutional culture and pragmatism…......................... 127-135
O. Interpretation of Articles 239 & 239A…......................... 135-140
P. Interpretation of Article 239AA of the Constitution……... 140-145
Q. Status of NCT of Delhi…………………………............. 146-160
G
R. Executive power of the Council of Ministers of Delhi....... 160-164
S. Essence of Article 239AA of the Constitution................... 164-188
T. The Government of National Capital Territory of Delhi Act,
1991 and the Transaction of Business of the Government of
H National Capital Territory of Delhi Rules, 1993 ..................... 188-213
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 61
& ANOTHER [DIPAK MISRA, CJI]

U. Constitutional renaissance…………………................... 213-217 A
V. The conclusions in seriatim…………………................ 217-231
A. Prologue:
The present reference to the Constitution Bench has its own
complexity as the centripodal issue in its invitation of the interpretation B
of Article 239AA of the Constitution invokes a host of concepts, namely,
constitutional objectivity navigating through the core structure with the
sense and sensibility of having a real test of constitutional structure; the
culture of purposive interpretation because the Court is concerned with
the sustenance of glory of constitutional democracy in a Democratic
Republic as envisioned in the Constitution; and understanding the idea C
of citizenry participation viewed with the lens of progressive perception
inherent in the words of a great living document emphasizing on the
democratic theme to achieve the requisite practical goal in the world of
reality. We may call it as pragmatic interpretation of a constitutional
provision, especially the one that has the effect potentiality to D
metamorphose a workable provision into an unnecessary and unwarranted
piece of ambiguity. In such a situation, the necessity is to scan the anatomy
of the provision and lift it to the pedestal of constitutional ethos with the
aid of judicial creativity that breathes essentiality of life into the same. It
is the hermeneutics of law that works. It is the requisite constitutional
stimulus to sustain the fundamental conception of participative democracy E
so that the real pulse is felt and further the constitutional promise to the
citizens is fulfilled. It gets rid of the unpleasant twitches and convulsions.
To put it differently, the assurance by the insertion of Article 239AA by
the Constitution (Sixty-ninth Amendment) Act, 1991 by exercise of the
constituent power is not to be renounced with any kind of rigid F
understanding of the provision. It is because the exercise of constituent
power is meant to confer democratic, societal and political powers on
the citizens who reside within the National Capital Territory of Delhi
that has been granted a special status.
2. The principal question is whether the inhabitants or voters of G
NCT of Delhi remain where they were prior to the special status conferred
on the Union Territory or the amended constitutional provision that has
transformed Delhi instills “Prana” into the cells. Let it be made clear
that any ingenious effort to scuttle the hope and aspiration that has ignited
the idea of “march ahead” among the inhabitants by any kind of linguistic
H
62 SUPREME COURT REPORTS [2018] 7 S.C.R.

A gymnastics will not commend acceptation. The appellant claims that the
status of the voters of NCT Delhi after the Sixty-Ninth Amendment has
moved from notional to real but the claim has been negatived by the
Delhi High Court. Learned counsel for the appellant criticize the judgment
and order of the High Court by contending, apart from other aspects,
that the language employed in the entire Chapter containing Article
B
239AA, unless appositely interpreted, shall denude the appellant, the
National Capital Territory of Delhi, of its status.
3. The criticism is founded on the base that the Constitution of
India, an organic and continuing document, has concretised their desire
and enabled the people to have the right to participate as a collective in
C the decision making process that shall govern them and also pave the
path of their welfare. The participation of the collective is the vital force
for larger public interest and higher constitutional values spelt out in the
Constitution and the silences therein and the same are to be protected. It
is the assertion that the collective in a democracy speak through their
D elected representatives seeking mitigation of the grievances.
4. This Court, being the final arbiter of the Constitution, in such a
situation, has to enter into the process of interpretation with the new
tools such as constitutional pragmatism having due regard for sanctity of
objectivity, realization of the purpose in the truest sense by constantly
E reminding one and all about the sacrosanctity of democratic structure as
envisaged by our Constitution, elevation of the precepts of constitutional
trust and morality, and the solemn idea of decentralization of power and,
we must say, the ideas knock at the door to be invited. The compulsive
invitation is the warrant to sustain the values of democracy in the
prescribed framework of law. The aim is to see that in the ultimate
F eventuate, the rule of law prevails and the interpretative process allows
the said idea its deserved space, for when the rule of law is conferred its
due status in the sphere of democracy, it assumes significant credibility.
5. We would like to call such a method of understanding
“confluence of the idea and spirit of the Constitution”, for it celebrates
G the grand idea behind the constitutional structure founded on the cherished
values of democracy.
6. As we have used the words “spirit of the Constitution”, it becomes
our obligation to clarify the concept pertaining to the same. The canon
of constitutional interpretation that glorifies the democratic concepts lays
H emphasis not only on the etymology of democracy but also embraces
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 63
& ANOTHER [DIPAK MISRA, CJI]

within its sweep a connotative expansion so that the intrinsic and innate A
facets are included.
7. A seven-Judge Bench of the Court in Keshavan Madhava
Menon v. The State of Bombay1 observed:-
“An argument founded on what is claimed to be the spirit of the
Constitution is always attractive, for it has a powerful appeal to B
sentiment and emotion; but a court of law has to gather the spirit
of the Constitution from the language of the Constitution. What
one may believe or think to be 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 C
modify existing laws by way of repeal or amendment. There is
nothing to prevent the President, in exercise of the powers
conferred on him by that article, from repealing, say the whole or
any part of the Indian Press (Emergency Powers) Act, 1931. If
the President does so, then such repeal will at once attract Section
6 of the General Clauses Act. In such a situation all prosecutions D
under the Indian Press (Emergency Powers) Act, 1931, which
were pending at the date of its repeal by the President would be
saved and must be proceeded with notwithstanding the repeal of
that Act unless an express provision was otherwise made in the
repealing Act. It is therefore clear that the idea of the preservation E
of past inchoate rights or liabilities and pending proceedings to
enforce the same is not foreign or abhorrent to the Constitution of
India. We are, therefore, unable to accept the contention about
the spirit of the Constitution as invoked by the learned counsel in
aid of his plea that pending proceedings under a law which has
become void cannot be proceeded with. Further, if it is against the F
spirit of the Constitution to continue the pending prosecutions under
such a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such repressive
law before the Constitution of India came into force should continue
to rot in jail. It is, therefore, quite clear that the court should construe G
the language of Article 13(1) according to the established rules of
interpretation and arrive at its true meaning uninfluenced by any
assumed spirit of the Constitution.”
[Emphasis is ours]
1
1951 SCR 228 H
64 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The aforesaid decision has to be understood in the context of the
phraseology ‘spirit of the Constitution’. As we understand, the Court
has not negatived the concept as an alien one. It has laid emphasis on
the support from the language used. It has not accepted the assumed
spirit of the Constitution. Needless to say, there cannot be assumptions.
Every proposition should have a base and the Constitution of India to be
B
an organic and living one has to be perceived with progressive dynamism
and not stuck with inflexibility. Flexibility has to be allowed room and
that is what we find in later authorities.
8. In Madhav Rao Jivaji Rao Scindia and others v. Union of
India and another2, Hegde, J, in his concurring opinion, emphasized on
C the spirit of the Constitution. The learned Judge, while not accepting the
exercise of power for collateral reasons, stated:-
“Exercise of power for collateral reasons has been considered by
this Court in several decisions as a fraud on that power — see
Balaji v. State of Mysore. Breach of any of the Constitutional
D provisions even if made to further a popular cause is bound to be
a dangerous precedent. Disrespect to the Constitution is bound to
be broadened from precedent to precedent and before long the
entire Constitution may be treated with contempt and held up to
ridicule. That is what happened to the Weimar Constitution. If the
E Constitution or any of its provisions have ceased to serve the
needs of the people, ways must be found to change them but it is
impermissible to by-pass the Constitution or its provisions. Every
contravention of the letter or the spirit of the Constitution is bound
to have chain reaction. For that reason also the impugned orders
must be held to be ultra vires Article 366(22).”
F
[underlining is ours]
9. In State of Kerala and another v. N. M. Thomas and others3,
Krishna Iyer, J., in his concurring opinion, opined thus:-
“106. Law, including constitutional law, can no longer “go it alone”
G but must be illumined in the interpretative process by sociology
and allied fields of knowledge. Indeed, the term “constitutional
law” symbolises an intersection of law and politics, wherein issues
of political power are acted on by persons trained in the legal
2
(1971) 1 SCC 85
3
H (1976) 2 SCC 310
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 65
& ANOTHER [DIPAK MISRA, CJI]

tradition, working in judicial institutions, following the procedures A
of law, thinking as lawyers think. So much so, a wider perspective
is needed to resolve issues of constitutional law. Maybe, one
cannot agree with the view of an eminent jurist and former Chief
Justice of India:
“The judiciary as a whole is not interested in the policy B
underlying a legislative measure.”
Moreover, the Indian Constitution is a great social document, almost
revolutionary in its aim of transforming a medieval, hierarchical
society into a modern, egalitarian democracy. Its provisions can
be comprehended only by a spacious, social-science approach, C
not by pedantic, traditional legalism. Here we are called upon to
delimit the amplitude and decode the implications of Article 16(1)
in the context of certain special concessions relating to
employment, under the Kerala State (the appellant), given to
scheduled castes and scheduled tribes (for short, hereinafter
referred to as harijans) whose social lot and economic indigence D
are an Indian reality recognized by many articles of the
Constitution. An overview of the decided cases suggests the need
to reinterpret the dynamic import of the “equality clauses” and, to
stress again, beyond reasonable doubt that the paramount law,
which is organic and regulates our nation’s growing life, must E
take in its sweep “ethics, economics, politics and sociology”.
Equally pertinent to the issue mooted before us is the lament of
Friedmann:
“It would be tragic if the law were so petrified as to be
unable to respond to the unending challenge of evolutionary or F
revolutionary changes in society.”
The main assumptions which Friedmann makes are:
“First, the law is, in Holmes’ phrase, not a ‘brooding
omnipotence in the sky’, but a flexible instrument of social
order, dependent on the political values of the society which it G
purports to regulate . . . .”
107. Naturally surges the interrogation, what are the challenges
of changing values to which the guarantee of equality must respond
and how? To pose the problem with particular reference to our
H
66 SUPREME COURT REPORTS [2018] 7 S.C.R.

A case, does the impugned rule violate the constitutional creed of
equal opportunity in Article 16 by resort to a suspect classification
or revivify it by making the less equal more equal by a legitimate
differentiation? Chief Justice Marshall’s classic statement in
McCulloch v. Maryland followed by Justice Brennan in
Katzenbach v. Morgan remains a beacon light:
B
“Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are constitutional”.”
C [Emphasis is added]
10. In Supreme Court Advocates-on-Record Association and
another v. Union of India4, this Court observed that a fortiori any
construction of the constitutional provisions which conflicts with the
constitutional purpose or negates the avowed object has to be eschewed,
D being opposed to the true meaning and spirit of the Constitution and,
therefore, being an alien concept.
11. We have referred to the aforesaid precedents to state that the
spirit of the Constitution has its own signification. In the context of the
case at hand, the democratic nature of our Constitution and the paradigm
E of representative participation are undoubtedly comprised in the “spirit
of the Constitution”. While interpreting the provisions of the Constitution,
the safe and most sound approach is to read the words of the Constitution
in the light of the avowed purpose and spirit of the Constitution so that it
does not result in an illogical outcome which could have never been the
intention of the Constituent Assembly or of the Parliament while exercising
F its constituent power. Therefore, a constitutional court, while adhering
to the language employed in the provision, should not abandon the concept
of the intention, spirit, the holistic approach and the constitutional
legitimate expectation which combinedly project a magnificent facet of
purposive interpretation. The Court should pose a question to itself
G whether a straight, literal and textual approach would annihilate the sense
of the great living document which is required to be the laser beam to
illumine. If the answer is in the affirmative, then the constitutional courts
should protect the sense and spirit of the Constitution taking aid of
purposive interpretation as that is the solemn duty of the constitutional
4
(1993) 4 SCC 441
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 67
& ANOTHER [DIPAK MISRA, CJI]

courts as the final arbiters of the Constitution. It is a constitutional summon A
for performance of duty. The stress has to be on changing society, relevant
political values, absence of any constitutional prohibition and legitimacy
of the end to be achieved by appropriate means. We shall refer to the
aspect of purposive interpretation regard being had to the context and
other factors that gain primacy to be adverted to at a subsequent stage.
B
12. Having prefaced thus, we shall now proceed to state the
controversy in brief since in this batch of appeals which has been referred
to the Constitution Bench, we are required to advert to the issue that
essentially pertains to the powers conferred on the Legislative Assembly
of the National Capital Territory of Delhi and the executive power
exercised by the elected Government of NCT of Delhi. The facts C
involved and the controversy raised in each individual appeal need not
be dwelled upon, for we only intend to answer the constitutional issue.
13. The primordial adjudication, as is presently the requisite,
commands our focus on the interpretation of Article 239AA of the
Constitution of India. The said interpretation, be it noted, is not to be D
done in an exclusive compartment but in the context in which it has been
introduced and also keeping in view the conceptual structure of the other
relevant articles of the Constitution. Before we delve into the various
facets of Article 239AA and other provisions of the Constitution which
have been pressed into service by the learned counsel appearing for the E
appellant and the learned Additional Solicitor General, we think it
appropriate to narrate a brief history of Delhi.
14. On 12.12.1911, Delhi became the capital of India. Delhi Tehsil
and Mehrauli Thana were separate from Punjab and annexed to Delhi
headed by a Commissioner and it came to be known as the Chief F
Commissioner’s province. In 1912, the Delhi Laws Act, 1912 came into
force with effect from 01.10.1912 making certain laws prevalent in Punjab
to be applicable to Delhi. The Delhi Laws Act, 1915 empowered the
Chief Commissioner, Delhi to determine application of laws by issuing
appropriate notification in the Gazette of India. The Government of
India Act, 1919 and the Government of India Act, 1935 retained Delhi as G
a centrally administered territory. On coming into force of the Constitution
of India on 26.01.1950, Delhi became a Part C State. In the year 1951,
the Government of Part C States Act, 1951 was enacted providing, inter
alia, for a Legislative Assembly in Delhi. Section 21(1) of the 1951 Act
H
68 SUPREME COURT REPORTS [2018] 7 S.C.R.

A empowered the Legislative Assembly to make laws on all matters of
List II of the Seventh Schedule of the Constitution except (i) public
order; (ii) police (including railway police); (iii) constitution and powers
of municipal corporations and local authorities, etc.-public utility
authorities; (iv) lands & buildings vested in/in possession of the Union
situated in Delhi or New Delhi; (v) offences against laws about subjects
B
mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to
the above matters and court fee thereon.
15. On 19.10.1956, the Constitution of India (Seventh Amendment)
Act, 1956 was passed to implement the provisions of the States Re-
organization Act, 1956 which did away with Part A, B, C and D States
C and only two categories, namely, States and Union Territories remained
and Delhi became a Union Territory to be administered by an administrator
appointed by the President. The Legislative Assembly of Delhi and the
Council stood abolished. In the year 1953, the Government of Union
Territories Act, 1963 was enacted to provide for Legislative Assemblies
D and Council of Ministers for various Union Territories but the provisions
of the said Act were not made applicable to Delhi. The Delhi
Administration Act, 1966 was enacted to provide for limited representative
Government for Delhi through a Metropolitan Council comprising of 56
elected members and five nominated members. In the same year, on
20.08.1966, the Ministry of Home Affairs issued S.O. No. 2524 that
E provided, inter alia, that the Lieutenant Governor/Administrator/Chief
Commissioner shall be subject to the control of the President of India
and exercise such powers and discharge the functions of a State
Government under the Commission of Inquiry Act, 1952 within the Union
Territories. In the year 1987, the Balakrishnan Committee was set up to
F submit its recommendations with regard to the status to be conferred on
Delhi and the said Committee recommended that Delhi should continue
to be a Union Territory but there must be a Legislative Assembly and
Council of Ministers responsible to the said Assembly with appropriate
powers; and to ensure stability, appropriate constitutional measures should
be taken to confer the National Capital a special status. The relevant
G portion of the Balakrishnan Committee report reads as follows:-
“6.5.5 In paragraphs 6.5.2 and 6.5.3 we have briefly summarised
the arguments for and against making Delhi a constituent State
of the Union. After the most careful consideration of all the
arguments and on an objective appraisal, we are fully convinced
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 69
& ANOTHER [DIPAK MISRA, CJI]

that most of the arguments against making Delhi a State of the A
Union are very substantial, sound and valid and deserve
acceptance. This was also the view expressed before us by some
of the eminent and knowledgeable persons whom we interviewed.
As these arguments are self-evident we find it unnecessary to go
into them in detail except those relating to constitutional and
B
financial aspects covered by them.
6.5.6 The important argument from the Constitutional angle is
based on the federal type of our Constitution under which there is
a constitutional division of powers and functions between the Union
and the State. If Delhi becomes a full- fledged State, there will be
a constitutional division of sovereign, legislative and executive C
powers between the Union and the State of Delhi. One of the
consequences will be that in respect of matters in the State List,
Parliament will have no power on jurisdiction to make any law
except in the special and emergency situations provided for under
the Constitution and to that extent the Union Executive cannot D
exercise executive powers or functions. The constitutional
prohibition on the exercise of powers and functions will make it
virtually impossible for the Union to discharge its special
responsibilities in relation to the national capital as well as to the
nation itself. We have already indicated in an earlier chapter the
special features of the national capital and the need for keeping it E
under the control of the Union Government. Such control is vital
in the national interest irrespective of whether the subject matter
is in the State field or Union field. If the administration of the
natural capital is divided into rigid compartments of State of field
and Union field, conflicts are likely to arise in several vital matters, F
particularly if the two Governments are run by different political
parties. Such conflicts may, at times, prejudice the national
interest……
x x x
6.5.9 We are also impressed with the argument that Delhi as the G
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-
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70 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to-day matters, however vital some of, them may be, will not be
available to the Union, thereby prejudicing the discharge of its
national duties and responsibilities.
x x x
LT. GOVERNOR AND COUNCIL OF MINISTERS
B
6.7.19 As anecessary corollary to the establishment of a
responsible Government for Delhi the structure of the executive
should be more or less on the pattern provided by the Constitution.
Accordingly, there should be a Head of the Administration with a
Council of Ministers answerable to the Legislative Assembly. As
C Delhi will continue to have the status of a Union territory, Article
239 will apply to it and so it will have an Administrator with such
designation as may be specified. The present designation of the
Lt. Governor may be continued and recognized in the Constitution
itself. …
D x x x
6.7.21 The Administrator should be expressly required to perform
his functions on the aid and advice of the Council of Ministers.
The expression “to aid and advice” is a well understood term of
art to denote the implications of the Cabinet system of Government
E adopted by our Constitution. Under this system, the general rule
is that the exercise of executive functions by the Administrator
has to be on the aid and advice of his Council of Ministers which
means that it is virtually the Ministers that should take decisions
on such matters. However, for Delhi, the following modifications
F of this general rule will have to be adopted:
(i) Firstly, the requirement of acting on the aid and advice of the
council of Ministers cannot apply to the exercise by the
Administrator of any judicial or quasi-judicial functions. The reason
is obvious because in respect of such functions there is no question
of acting on the advice of another person.
G
(ii) Secondly, the requirement is only in relation to matters in respect
of which the Legislative Assembly has the powers to make laws.
This power will be subject to the restrictions already dealt with
earlier in the Report. Accordingly, the Council of Ministers will
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 71
& ANOTHER [DIPAK MISRA, CJI]

not have jurisdiction to deal with matters excluded from the purview A
of the Legislative Assembly.
(iii) Thirdly, there is need for a special provision to resolve
differences between the Administrator and his Council of Ministers
on any matter concerning the administration of Delhi. Normally,
the general principle applicable to the system of responsible B
Government under the Constitution is that the Head of the
Administration should act as a mere Constitutional figurehead and
will have to accept the advice of the Council of Ministers except
when the matter is left to his discretion. However, by virtue of
Article 239 of the Constitution, the ultimate responsibility for good
administration of Delhi is vested in the President acting through C
the Administrator. Because of this the Administrator has to take a
somewhat more active part in the administration than the Governor
of a State. It is, therefore, necessary to reconcile between the
need to retain the responsibility of the Administrator to the Centre
in this regard and the need to enforce the collective responsibility D
of the Council of Ministers to the Legislature. The best way of
doing this is to provide that in case of difference of opinion which
cannot be resolved between the Administrator and his Council of
Ministers, he should refer the question to the President and the
decision of the President thereon will be final. In cases of urgency,
if immediate action is necessary, the Administrator may direct E
action to be taken pending such decision of the President. A
provision of this kind was made for this very reason not only in
the 1951 Act, but also in the 1963 Act relating to the Union
territories as well as in the 1978 Bill.”
16. As the chronology would show, after due deliberation, the F
Parliament, in exercise of its constituent power, amended the Constitution
by the Constitution (Sixty-ninth Amendment) Act in the year 1991 and
inserted Articles 239AA and 239AB in the Constitution to which we
shall refer at an appropriate stage when we dwell upon the interpretative
process. G
B. Rivalised Submissions:
17. Now, we may note the rivalised submissions at the Bar. We
have heard Mr. P. Chidambaram, Mr. Gopal Subramaniam, Dr. Rajiv
Dhawan, Ms. Indira Jaising and Mr. Shekhar Naphade, learned senior
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72 SUPREME COURT REPORTS [2018] 7 S.C.R.

A counsel appearing on behalf of the Government of NCT of Delhi. Mr.
Maninder Singh, learned Additional Solicitor General of India, has
advanced arguments on behalf of the Union of India and the Lieutenant
Governor of Delhi.
18. A common written submission has been filed on behalf of the
B Government of NCT of Delhi and Mr. Maninder Singh, learned Additional
Solicitor General of India, has filed written submissions on behalf of both
the Union of India and the Lieutenant Governor of NCT of Delhi.
19. An application for intervention being I.A. No. 10556 of 2017
was filed by the applicant, Reliance Industries Ltd. We have heard Dr.
C A.M. Singhvi, learned senior counsel on behalf of the said intervenor.
Another application for intervention was filed by The Kapila and Nirmal
Hingorani Foundation and we have heard Mr. Aman Hingorani, learned
counsel on behalf of the said Foundation.
B.1 Submissions on behalf of the appellant:
D 20. It is submitted by learned senior counsel appearing on behalf
of the appellant that the NCTD occupies a unique position in the
constitutional scheme by virtue of the insertion of Articles 239AA and
239AB and the consequent enactment of the 1991 Act that has shaped
the NCTD into a constitutional hybrid and has led Delhi to acquire certain
E special characteristics solely attributed to full-fledged States under the
Constitution. As per the appellant, the Government of NCT of Delhi
enjoys far more power than the administrative set ups of other Union
Territories especially after the constitutional amendment and coming into
force of the 1991 Act.

F 21. After expansively referring to the constitutional history of the
NCTD, it is urged on behalf of the appellant that the insertion of Article
239AA was intended to eradicate the hierarchical structure which
functionally placed the Lieutenant Governor of Delhi in a superior position
to that of the Council of Ministers, especially with respect to the executive
powers and the Lieutenant Governor has to be treated as a titular head
G alone in respect of matters that have been assigned to the Legislative
Assembly and the Council of Ministers.
22. The appellant has alluded to the nine-Judge Bench decision in
New Delhi Municipal Corporation v. State of Punjab5 to contend that
5
(1997) 7 SCC 339
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 73
& ANOTHER [DIPAK MISRA, CJI]

the Union Territory of Delhi is a class by itself different from all other A
Union Territories which our Constitution envisages, and the larger Bench
had no occasion to decide in what shape and form the NCTD is different
from other Union Territories, for the said issue did not arise therein.
Nevertheless, the majority opinion clearly rules as regards Delhi’s unique
constitutional status unlike other Union Territories by virtue of the
B
constitutionally created Legislative Assembly, Council of Ministers and
Westminster style cabinet system of government that have been brought
by the Sixty-ninth Amendment and the 1991 Act.
23. It is further submitted by the appellant that the Sixty-Ninth
Amendment to the Constitution and the consequent 1991 Act were passed
with the aim to give the citizens of NCT of Delhi a larger say in the C
governance of NCTD. Democracy being one of the facets of the basic
structure of the Constitution, the Sixty-ninth amendment was aimed at
furthering democracy in Delhi and hence, Article 239AA should be
interpreted in the backdrop of the fact that Delhi has been conferred
special status among various UTs and in such a way that democracy in D
its true sense is established in Delhi.
24. It is submitted that constitutional jurisprudence in the Indian
context has undergone a sea change after the decisions in R.C. Cooper
v. U.O.I6and Maneka Gandhi v. U.O.I7. Learned counsel for the
appellant submit that this Court should adopt a more purposive and an E
organic method of interpretation as adopted by this Court in a catena of
cases including the recent one in Justice K.S. Puttaswamy (Retd.)
and another v. U.O.I. and others8 wherein the majority observed that
the decisions of this Court prior to R.C. Cooper (supra) and Maneka
Gandhi (supra) must be understood in their historical context.
F
25. Article 239AA has deliberately excluded the words “assist
and advice” as were used in the 1963 and 1966 Acts, rather the said
Article employs the expression “aid and advice” and, therefore, it
consciously obviates the requirement of the Lieutenant Governor’s
concurrence on every matter. Thus, it is the proponement of the appellant
that Article 239AA of the Constitution which has conferred a Westminster G
style cabinet system of government for the NCT of Delhi makes the
Lieutenant Governor bound by the ‘aid and advice’ of the Council of
6
AIR 1970 SC 564
7
AIR 1978 SC 597
8
(2017) 10 SCC 1 H
74 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Ministers. To buttress its argument, the appellant has referred to the
judgments in Rai Sahib Ram Jawaya Kapur and Ors. v. State of
Punjab9 and Shamsher Singh v. State of Punjab10 which, as per the
appellant, though arose in the context of the State of Punjab, decided
that since our Constitution has conferred a Westminster style cabinet
system for the Government of State of Punjab, an executive Government
B
established under the aegis of the Constitution should be able to exercise
all executive powers necessary to fulfill the needs that the situation
warrants and consequently, the Governor has to act in accordance with
the aid and advice tendered by the Council of Ministers with the Chief
Minister as its head.
C 26. It is further argued that GNCTD has the sole power to take
executive actions on all matters on which the Delhi Legislature is
competent to pass laws irrespective of whether or not the Legislature
has actually passed a law on the subject. Emphasis is laid on the principle
of collective responsibility to a democratically elected legislative body
D and, on that basis, it is proponed that the Lieutenant Governor of Delhi is
bound by the aid and advice of the Council of Ministers of Delhi. It is put
forth that such an interpretation can alone meet the purpose of
constitutionally mandated governance in Delhi post insertion of Article
239AA in the Constitution.
E 27. It is the stand of the appellant that the extent of executive
powers of the Government of NCT of Delhi can be understood by
appositely juxtaposed reading of Article 239AA(3) with Article 239AA(4)
which stipulates that the Government of NCT of Delhi has exclusive
executive powers in relation to matters which fall within the purview of
Delhi Assembly’s legislative competence. Article 239AA(3) gives the
F Delhi Legislative Assembly the legislative powers over all except three
subjects in the State List and all subjects in the Concurrent List and as a
natural corollary, Article 239AA(4) confers executive power on the
Council of Ministers over all those subjects in respect of which the Delhi
Legislative Assembly has the legislative power to legislate.
G 28. It is asserted by the counsel for the appellant that Article
239AA preserves the Parliament’s legislative powers over all subjects
in the State and the Concurrent Lists, but no such executive power is
reserved for the Union. The appellant contends that there is conscious
9
AIR 1955 SC 549
10
H AIR 1974 SC 2192
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 75
& ANOTHER [DIPAK MISRA, CJI]

difference between the language of Article 239AA(3) which gives A
overriding legislative powers to the Parliament and that of Article
239AA(4) which refrains from doing the likewise in the context of
executive powers. The Centre’s executive power stems from Article 73
and would normally be co-extensive with the Parliament’s legislative
powers, but this is explicitly subject to other provisions of the Constitution
B
which has to include Article 239AA. Thus, Article 239AA has, in the
case of Delhi, whittled down the executive power of the Centre to only
the three reserved subjects falling outside the purview of the executive
power of the Council of Ministers of Delhi.
29. The appellant has argued that though Article 73 of the
Constitution lays down the principle that there may exist under the C
Constitution concurrent legislative powers between the Parliament and
the State Legislative Assemblies, yet there can never be concurrent
executive powers between the Central and the State Governments as
such a situation would result in chaos in the absence of any responsibility/
accountability for executive actions. This principle, as per the appellant, D
must apply equally in relation to matters contained in List II and List III
of the Seventh Schedule and the effect of Article 239AA(3) is that all
matters on which the Delhi Legislative Assembly has power to legislate
are effectively equivalent to matters of the Concurrent List.
30. Article 239AB would become redundant if it is to be accepted E
that the Constitution allows the Union Government to override all
executive actions/decisions of the GNCTD in the ordinary course of
things, as in such a situation, it would never be necessary to invoke the
special provision in the form of Article 239AB for the Union Government
to take over the administration of Delhi. Further, Article 239AB stipulates
that if the administration of Delhi is not carried out in accordance with F
Article 239AA, the President may suspend the operation of any part or
whole of Article 239AA. This, as per the appellant, clearly shows that
when an elected government is in place, the administration of Delhi has
to be carried out in accordance with Article 239AA.
31. After quoting Dr. Ambedkar on federalism in the Constituent G
Assembly Debates dated 25.11.1949, the appellant has contended that
Article 239AA is an example of the hallmark of federalism in our
Constitution which reserves legislative primacy of the Parliament in
certain limited areas but there is no such corresponding provision in the
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76 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution which reserves the executive powers of the Central
Government vis-a-vis GNCTD.
32. It is contended on behalf of the appellant that there is necessity
for uniform and consistent interpretation of the phrase ‘aid and advice’
used in different articles of the Constitution such as Article 74, Article
B 163 and Article 239AA in the context of the functions of the President,
the Governor and the Lieutenant Governor respectively. It is urged that
the provisions of the Constitution being on a higher pedestal than ordinary
statutory provisions require to be interpreted in a different manner and
in view of the same, Article 239AA(4) deserves to be interpreted in a
manner as other provisions of the Constitution and, hence, there is warrant
C for interpreting the phrase ‘aid and advice’ in a broad sense so that such
‘aid and advice’ is binding on the nominee of the President, i.e., the
Lieutenant Governor. It would be an anathema to the constitutional
philosophy to surmise that just because the Constitution permits a
difference of opinion between the Lieutenant Governor and the Council
D of Ministers, the ‘aid and advice’ tendered by the Council of Ministers is
not binding upon the Lieutenant Governor.
33. The appellant has further submitted that under Article
239AA(4), the Government of NCT of Delhi and the Council of Ministers
of the NCT of Delhi have exclusive power over all matters in relation to
E subjects under List II (excluding Entries 1, 2 and 18 thereof and Entries
34, 65 and 66 in so far as they apply to Entries 1, 2 and 18 thereof) and
List III of the Seventh Schedule. According to the appellant, the substantive
part of Article 239AA(4) itself lays down the exception to it, i.e., when
the Lieutenant Governor is to act in his discretion under the law and not
as per the advice of the Council of Ministers. The proviso to Article
F 239AA(4), as per the appellant, comes into play where the ‘aid and
advice’ of the Council of Ministers transgresses the areas constitutionally
prescribed to it and the proviso does not allow the Lieutenant Governor
to have a different view on the merits of the ‘aid and advice’ that has
been tendered by the Council of Ministers. According to the appellant,
G the proviso to Article 239AA(4) operates only in exceptional situations
and is not a general norm. Any attempt to expand the scope of the
proviso beyond exceptional matters is not tenable as it would have the
effect of rendering the main part of Article 239AA(4) otiose. To rely
upon the proviso to Article 239AA(4) to say that the ‘aid and advice’ of
the Council of Ministers is not binding upon the Lieutenant Governor in
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 77
& ANOTHER [DIPAK MISRA, CJI]

areas in which the Delhi Legislative Assembly has competence to legislate A
would defeat the purpose for which institutions necessary to
operationalize democracy in Delhi were created. It is submitted by the
appellant that the 1991 Act as well as the Rules themselves cannot be
used to interpret the constitutional provisions inasmuch as they only reflect
the scheme of governance.
B
B.2 Submissions on behalf of the respondents:
34. The submissions put forth by Mr. Maninder Singh, learned
Additional Solicitor General of India, appearing on behalf of the
respondents, Union of India and Lieutenant Governor of Delhi, revolve
around the argument that although the insertion of Article 239AA C
envisages the constitution of a Legislative Assembly for the National
Capital Territory of Delhi, yet the President shall remain its Executive
head, acting through the Lieutenant Governor, and that the powers of
the Parliament in respect of the Union Territories shall not be derogated
in any manner by the insertion of the said Article 239AA.
D
35. The respondents submit that the constitutional scheme
envisaged for the Union Territories has been dealt with in New Delhi
Municipal Corporation (supra) case and although the Court in this
case had contemplated three categories of Union Territories, yet it had
arrived at the conclusion that those surviving as Union Territories and
not having acquired Statehood shall remain so and Delhi, now referred E
to as “National Capital Territory of Delhi”, is still a Union Territory. The
respondents further submit that once it has been determined that Delhi
continues to be a Union Territory, its governance shall be regulated by
the provision of Article 239 which stipulates that all Union Territories
shall be governed by the President of India and neither a plain textual F
reading nor a contextual reading of Article 239AA stipulates any vertically
divided exclusive jurisdiction with the Legislative Assembly or the Council
of Ministers.
36. The respondents, thereafter, in their submissions, after citing
several authorities, have sought to impress upon this Court that Article G
239AA be given its literal and true interpretation as there exists no
ambiguity attracting the requirement of purposive interpretation. The
respondents have also submitted that since it was on the
recommendations made by the Balakrishnan Committee, which had been
accepted in toto, that the Sixty-ninth amendment and the 1991 Act came
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78 SUPREME COURT REPORTS [2018] 7 S.C.R.

A into force, the Court should consider the report of the Committee and
the reasons provided therein in order to ascertain the true intention of
the exercise of the constituent power of the Parliament for bringing
about the said amendment as well as the GNCTD Act.
37. It is also asserted by the respondents that Article 239 is an
B integral part of the Constitution and the foundation stone of Part VIII
and that Article 239AA shall be read conjointly with Article 239 which
provides that the ultimate administration with respect to Delhi shall remain
with the President acting through its administrator.
38. The respondents also contend that although Article 239AA
C confers on the Legislative Assembly of Delhi the power to legislate with
respect to subject matters provided in List II and List III of the Seventh
Schedule, yet the said power is limited by the very same Article when it
employs the phrase “in so far as any such matter is applicable to Union
Territories....” and also by specifically excluding from the legislative power
of the Assembly certain entries as delineated in Article 239AA(3)(a).
D This restriction, as per the respondents, limits the power of the Legislative
Assembly to legislate and this restriction has to be understood in the
context of conferment of special status.
39. To reiterate the position that the President remains the Executive
head for all Union Territories, Mr. Singh has drawn the attention of the
E Court to Articles 53 and 73 read with Article 246(4) of the Constitution.
It is further urged that nowhere in the Constitution, including Articles
239A or 239AA, it has been stipulated that the executive power of a
Union Territory shall vest in the Council of Ministers/Legislative Assembly.
It has been argued that the contention of the appellant that on the creation
F of Legislative Assembly, there was an automatic investiture of executive
power on the said Assembly is flawed as the constitutional scheme does
not envisage any conferment of automatic power on the Council of
Ministers. Further, as the submission is structured, Article 239AA(4)
employs the phrase “Lieutenant Governor and his Ministers” which
implies that it is the “Lieutenant Governor” and not the “Council of
G Ministers” who is responsible for the administration of the Union Territory.
That apart, the provisions of Articles 298, 299 and 239AB of the
Constitution and Section 52 of the 1991 Act also reiterate the position
that the Constitution does not stipulate any automatic conferral of
executive power and the same is echoed in the Balakrishnan Committee
H Report.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 79
& ANOTHER [DIPAK MISRA, CJI]

40. The respondents contend that the contention of the principle A
laid down in the judgment of Ram Jawaya Kapur (supra), that wherever
there is existence of legislative power there is co-extensive existence of
executive power, is with respect to only the Union and the States and is
not applicable to Union Territories as the same would be against the
constitutional mandate as laid down in its various provisions.
B
41. The respondents, to further advance their arguments, have
pointed out the distinction between Articles 239AB and 356 of the
Constitution and have submitted that Article 356 envisages that the
President shall assume to himself the functions of the State Government
and the powers vested in the Governor in case of failure of “constitutional
machinery” but in the case of Union Territories, this clause would become C
inapplicable as the executive power of a Union Territory remains vested
with the President. The respondents would further submit that Article
239AB does not stipulate any “assumption of powers” by the President
but merely provides for suspension of operation of Article 239AA in the
NCT of Delhi in case the President is satisfied that it is necessary to do D
so for the proper administration of NCT of Delhi.
42. The respondents, in their submissions, also point out that a
close reading of Article 239 with Article 239AA along with Section 44 of
the GNCTD Act, 1991 would reveal that the expression “Executive action
of the Lt. Governor” and not the “Executive action of NCT of Delhi” E
has been stipulated in the said provisions. The said intention can also be
seen from the fact that the phrase Lieutenant Governor “with the
Ministers” has been used in Section 44(1)(b) and further Article 239AA(4)
also engages the phrase “his functions”. This leads to the implication
that the extent of contribution/participation to be made by the Council of
Ministers is only to render aid and advice to the Lieutenant Governor. F

43. It has been further submitted on behalf of the respondents
that the aid and advice rendered by the Council of Ministers is not binding
upon the Lieutenant Governor and he is empowered to form an opinion
that differs from the opinion of the Council of Ministers. In such a
situation, the proviso to Article 239AA(4) comes into play which provides G
that in case of such difference of opinion, the decision of the President
shall be final. Learned Additional Solicitor General has stressed that this
is in recognition of the fact that the ultimate responsibility in relation to
the administration of the Union Territories lies with the Union and there
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80 SUPREME COURT REPORTS [2018] 7 S.C.R.

A is clear demarcation of difference as regards the manner of governance
between States and Union Territories whereby in case of the former,
the Governor is bound by the advice tendered by the Council of Ministers.
44. The respondents further point out that a combined reading of
Article 239AA(4) and Section 41(2) of the 1991 Act would suggest that
B when the question arises if a matter is one where the Lieutenant Governor
shall exercise his discretion, the decision of the Lieutenant Governor
shall be final. Article 239AA(4) and the proviso thereto is not an exception
and, hence, should not be given a restrictive meaning and the phrase
“any matter” has been deliberately kept of the widest import. To bring
home the point, reliance has been placed on the dictum laid down in Tej
C Kiran Jain and others v. N. Sanjiva Reddy and others11 where the
word “anything” has been said to mean “everything”. Therefore, the
phrase “any matter” has to be interpreted to mean “every matter”. The
said interpretation, as per the respondents, would be in accord with the
objective of the Constitution that the Union shall retain the ultimate
D authority to legislate on any matter with respect to the National Capital
Territory of Delhi.
45. The respondents also submit that Article 239AA does not
contemplate a new scheme and it is similar to that envisaged under
Article 239A which pertains to the administration and governance of the
E Union Territory of Puducherry. A comparison of the scheme provided
under Article 239, Article 239A read with the 1963 Act for Puducherry
on one hand and Article 239, Article 239AA read with the 1991 Act for
Delhi on the other hand would reveal that both the schemes are similar
to the extent that the intention is to retain the continuing control of the
President and the Parliament for the executive and legislative functioning
F of the Union Territories.
46. The respondents contend that Article 239AA, and in particular,
clause 4 of the said provision, is not the first of its kind and a similar
provision in the form of Section 44 existed in the Government of Union
Territories Act, 1963 and that the issue of interpretation of this Section
G had come up before this Court in several cases wherein it has been laid
down that the “State Government” with respect to Union Territory would
mean “Central Government” in terms of Section 3(60) of the General
Clauses Act. Hence, when a similar provision such as Article 239AA(4)
11
(1970) 2 SCC 272
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 81
& ANOTHER [DIPAK MISRA, CJI]

has already been given a certain interpretation by this Court, then merely A
because of the fact that special provisions have been placed in the
Constitution for the NCT of Delhi, which is not so in the case of other
Union Territories, it shall not bar the Courts from adopting an interpretation
of Article 239AA which is similar to Section 44 of the 1963 Act.
47. The respondents finally submit that as per the constitutional B
mandate, the ultimate responsibility with respect to all matters governing
the NCT of Delhi fall within the domain of the Union Government. To
bolster the said stand, the respondents have placed reliance upon relevant
portions of the Balakrishnan Committee Report and also various other
provisions of the Constitution of India and the 1991 Act. Further, the
respondents argue that to devolve exclusive legislative or exclusive C
executive power on the Legislative Assembly or Council of Ministers of
the NCT of Delhi would result in elevating a Union Territory to the
status of a State, a demand which has been rejected by the Constitution
makers on several instances. That apart, it would be impermissible under
any interpretation of the constitutional text and also contrary to the D
constitutional mandate.
48. Before we dwell upon the submissions, we are of the considered
view that we should state certain principles and analyse certain
constitutional concepts. Frankly speaking, we feel the necessity as we
are really concerned with the interpretation of a constitutional provision E
having regard to its operational perspective in a democracy. We have
said so in the prelude. We do not think and we are not persuaded to think
that the present controversy can rest on either of the extremes propagated
before us. We are convinced that a holistic approach has to be adopted
from a constitutional vision which is bound to encapsulate crystalline
realism. F

C. Ideals/principles of representative governance:
49. Representative Governance in a Republican form of democracy
is a kind of democratic setup wherein the people of a nation elect and
choose their law making representatives. The representatives so elected G
are entrusted by the citizens with the task of framing policies which are
reflective of the will of the electorate. The main purpose of a
Representative Government is to represent the public will, perception
and the popular sentiment into policies. The representatives, thus, act on
behalf of the people at large and remain accountable to the people for
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82 SUPREME COURT REPORTS [2018] 7 S.C.R.

A their activities as lawmakers. Therefore, representative form of
governance comes out as a device to bring to fore the popular will.
50. Bernard Manin in “The Principles of Representative
Government”12 has deliberated on the postulate that the concept of
representation has its origin around the Middle ages in the context of the
B church and in the context of cities in their relation to the king or the
emperor. The idea, as Manin says, was to send out delegates having
power to connect to those who appointed them in the first place and
there lies the kernel of the concept of representation. This technique
then got transferred and used for other purposes.
C 51. Thomas Jefferson, in the United States Declaration of
Independence (1776), highlights on the stipulation that governments derive
their just powers from the consent of the governed. This idea, simply
put, reflects the concept of representative governance. The cogent factors
for constituting the representative form of government are that all citizens
are regarded as equal and the vote of all citizens, which is the source of
D governing power, is assigned equal weight. In this sense, the views of all
citizens carry the same strength and no one can impose his/her views on
others.
52. The Constitution of India has embraced the representative
model of governance at all levels, i.e., local, State and the Union.
E Acknowledging the representative form of governance adopted by our
Constitution and the elected representatives being the instruments for
conveying the popular will of the people, the Court in State of Bihar
and another v. Bal Mukund Sah and others13 has observed:-
“...Besides providing a quasi federal system in the country and
F envisaging the scheme for distribution of legislative powers between
the State and the center, it emphasizes the establishment of the
rule of law. The form of Government envisaged under a
parliamentary system of democracy is a representative democracy
in which the people of the country are entitled to exercise their
G sovereignty through the legislature which is to be elected on the
basis of adult franchise and to which the executive, namely, the
Council of Ministers is responsible. The legislature has been
12
Bernard Manin, The Principles of Representative Government, Cambridge Univer-
sity Press, 1997
13
H (2000) 4 SCC 640
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 83
& ANOTHER [DIPAK MISRA, CJI]

acknowledged to be a nerve center of the State activities. It is A
through parliament that elected representatives of the people
ventilate people’s grievances.
[Emphasis is ours]
53. Thus perceived, the people are the sovereign since they exercise
the power of adult franchise that ultimately builds the structure of B
representative democracy. That apart, every constituent of the sovereign
is entitled to air his/her grievances through their elected representatives.
The twin idea establishes the cornerstone of the precept of accountability
to the public because there rests the origin of power and responsibility.
54. A representative form of government should not become a C
government by elites where the representatives so elected do nothing to
give effect to the will of the sovereign. The elected representatives must
not have an ulterior motive for representing their constituents and they
should not misuse the popular mandate awarded to them by covertly
transforming it into ‘own rule’. The inherent value of public accountability
can never be brushed aside. D

55. Another ideal for representative governance is accessibility
and approachability. Since responsiveness to the needs and demands of
the people is the basic parameter for evaluating the effectiveness of
representative governance, it is necessary that elected representatives
develop a sense of belonging with their constituents. The sense of E
belonging has its limitation also. If the desire of the constituent is rational
and draws strength from legal paradigms, it deserves to be given due
acceptance but if the aspiration blows from some illogical or unacceptable
proposition, the same should not be allowed any space. It is because in a
representative form of government, aspirations and desires are canvassed F
and propounded on the bedrock of constitutional principles. Hence, we
may say that inherent constitutional aspirations should draw inspiration
from the Constitution. There can never be sacrifice of constitutional
conscience.
56. Be it remembered, when elected representatives and G
constitutional functionaries enter their office, they take oath to bear
allegiance to the Constitution and uphold the Constitution. Thus, it is
expected of them not only to remain alive to the provisions of the
Constitution but also to concepts like constitutionalism, constitutional

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

A objectivity and constitutional trust, etc. The support expressed by the
sovereign in the form of votes cannot become an excuse to perform
actions which fall foul to the Constitution or are ultra vires. Though the
elected representatives are expected to act as instruments of transforming
popular will into policies and laws, yet they must do so within the contours
of the Constitution. They must display constitutional objectivity as a
B
standard of representative governance, for that is ingrained in the
conceptual democratic majority which neither tolerates ideological
fragmentation nor encourages any kind of utopian fantasy. It lays stress
on realizable constitutional ideologies.
D. Constitutional morality:
C
57. Constitutional morality in its strictest sense of the term implies
strict and complete adherence to the constitutional principles as enshrined
in various segments of the document. When a country is endowed with
a Constitution, there is an accompanying promise which stipulates that
every member of the country right from its citizens to the high
D constitutional functionaries must idolize the constitutional fundamentals.
This duty imposed by the Constitution stems from the fact that the
Constitution is the indispensable foundational base that functions as the
guiding force to protect and ensure that the democratic setup promised
to the citizenry remains unperturbed. The constitutional functionaries
E owe a greater degree of responsibility towards this eloquent instrument
for it is from this document that they derive their power and authority
and, as a natural corollary, they must ensure that they cultivate and develop
a spirit of constitutionalism where every action taken by them is governed
by and is in strict conformity with the basic tenets of the Constitution.

F 58. In this context, the observations made by Dr. B.R. Ambedkar
are of great significance:-
“Constitutional morality is not a natural sentiment. It has to be
cultivated. We must realize that our people are yet to learn it.
Democracy in India is only a top-dressing on an Indian soil, which
G is essentially undemocratic.”14
59. Constitutional morality is that fulcrum which acts as an essential
check upon the high functionaries and citizens alike, as experience has
shown that unbridled power without any checks and balances would
result in a despotic and tyrannical situation which is antithetical to the
14
H Constituent Assembly Debates 1989: VII, 38.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 85
& ANOTHER [DIPAK MISRA, CJI]

very idea of democracy. The following passage from Manoj Narula v. A
Union of India15 can aptly be quoted to throw some light on the idea:-
“If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which
is to be administered by men over men, the great difficulty lies in B
this: you must first enable the government to control the governed;
and in the next place oblige it to control itself. A dependence on
the people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary
precautions.16”
C
60. In the said case, it has been further observed:-
“Regard being had to the aforesaid concept, it would not be out of
place to state that institutional respectability and adoption of
precautions for the sustenance of constitutional values would
include reverence for the constitutional structure. It is always D
profitable to remember the famous line of Laurence H. Tribe that
a Constitution is “written in blood, rather than ink”17.”
61. Constitutional morality acts as a check against lapses on the
part of the governmental agencies and colourable activities aimed at
affecting the democratic nature of polity. In Krishnamoorthy v. E
Sivakumar and others18, it has been explained thus:-
“Democracy, which has been best defined as the government of
the people, by the people and for the people, expects prevalence
of genuine orderliness, positive propriety, dedicated discipline and
sanguine sanctity by constant affirmance of constitutional morality F
which is the pillar stone of good governance.”
Constitutional morality, appositely understood, means the morality
that has inherent elements in the constitutional norms and the conscience
of the Constitution. Any act to garner justification must possess the
potentiality to be in harmony with the constitutional impulse. We may
G
give an example. When one is expressing an idea of generosity, he may
not be meeting the standard of justness. There may be an element of
15
(2014) 9 SCC 1
16
Jamesh Madison as Publius, Federalist 51
17
Laurence H. Tribe, THE INVISIBLE CONSTITUTION 29 (2008)
18
(2015) 3 SCC 467 H
86 SUPREME COURT REPORTS [2018] 7 S.C.R.

A condescension. But when one shows justness in action, there is no feeling
of any grant or generosity. That will come within the normative value.
That is the test of constitutional justness which falls within the sweep of
constitutional morality. It advocates the principle of constitutional justness
without subjective exposition of generosity.
B E. Constitutional objectivity:
62. Our Constitution, in its grandness, resolutely embraces the
theory of “checks and balances”. This concept of checks and balances,
in turn, gives birth to the principle of “constitutional objectivity”. The
Constitution expects the organs of the State adorned by high constitutional
C functionaries that while discharging their duties, they remain alive to the
allegiance they bear to the Constitution. Neutrality as envisaged under
the constitutional scheme should guide them in the performance of their
duties and functions under the Constitution. This is the trust which the
Constitution reposes in them.
D 63. The founding fathers of our Constitution had a vision for our
Nation whose ultimate aim was to make right the upheaval that existed
before setting up of the Constituent Assembly. The concept of
constitutional objectivity is, by itself, inherent in this vision and it is
incumbent upon the organs of the State to make comprehensive efforts
towards realization of this vision. But, at the same time, they must remain
E true to the Constitution by upholding the trust which the Constitution
places in them and thereby exhibit constitutional objectivity in its truest
sense. In Indra Sawhney v. Union of India and others19, the Court
observed:-
“...Therefore, the permissible judicial creativity in tune with the
F Constitutional objectivity is essential to the interpretation of the
Constitutional provisions so that the dominant values may be
discovered and enforced. At the same time, one has to be very
cautious and careful in approaching the issues in a very pragmatic
and realistic manner.”
G The aforesaid passage tells us in an illuminating manner how the
Court is expected to proceed on the path of judicial creativity in
consonance with constitutional objectivity having a keen sense of
pragmatism.

19
AIR 1993 SC 477
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 87
& ANOTHER [DIPAK MISRA, CJI]

64. It can be said without inviting any controversy that the concept A
of constitutional objectivity has to be equally followed by the Executive
and the Legislature as it is the Constitution from which they derive their
power and, in turn, the Constitution expects them to be just and reasonable
in the exercise of such power. The decisions taken by constitutional
functionaries, in the discharge of their duties, must be based on normative
B
acceptability. Such decisions, thus, have to be in accord with the principles
of constitutional objectivity which, as a lighthouse, will guide the authorities
to take a constitutionally right decision. This action, needless to say, would
be in the spirit of the Constitution. It may be further noted here that it is
not only the decision itself but also the process adopted in such decision
making which should be in tune with constitutional objectivity. A decision C
by a constitutional functionary may, in the ultimate analysis, withstand
scrutiny but unless the process adopted for arriving at such a decision is
in tandem with the idea of constitutional objectivity, it invites criticism.
Therefore, the decision making process should never by-pass the
established norms and conventions which are time tested and should
D
affirm to the idea of constitutionalism.
F. Constitutional governance and the conception of
legitimate constitutional trust:
65. The concept of constitutional governance in a body polity like
ours, where the Constitution is the supreme fundamental law, is neither E
hypothetical nor an abstraction but is real, concrete and grounded. The
word ‘governance’ encapsulates the idea of an administration, a governing
body or organization whereas the word ‘constitutional’ means something
sanctioned by or consistent with or operating under the fundamental
organic law, i.e., the Constitution. Thus, the word ‘governance’ when
qualified by the term ‘constitutional’ conveys a form of F
governance/government which adheres to the concept of
constitutionalism. The said form of governance is sanctioned by the
Constitution itself, its functions are consistent with the Constitution and
it operates under the aegis of the Constitution.
66. According to Encyclopedia Britannica, “Constitutional G
Government” means:-
“...the existence of a constitution—which may be a legal
instrument or merely a set of fixed norms or principles generally
accepted as the fundamental law of the polity—that effectively
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88 SUPREME COURT REPORTS [2018] 7 S.C.R.

A controls the exercise of political power. The essence of
constitutionalism is the control of power by its distribution among
several state organs or offices in such a way that they are each
subjected to reciprocal controls and forced to cooperate in
formulating the will of the state....”
B 67. It is axiomatic that the Constitution of India is the suprema
lex, i.e., the paramount law of the land. All the three wings of the State,
i.e., the legislature, the judiciary and the executive derive their power
and authority from the Constitution. It is the Constitution which endows
the requisite amount of oxygen and other necessary supplies which, in
turn, enable these organs to work for the betterment of the nation and
C the body polity. In the context of the supremacy of the Constitution, the
Court in Kalpana Mehta and others v. Union of India and others20
has laid down:-
“The Constitution of India is the supreme fundamental law and all
laws have to be in consonance or in accord with the Constitution.
D The constitutional provisions postulate the conditions for the
functioning of the legislature and the executive and prescribe that
the Supreme Court is the final interpreter of the Constitution. All
statutory laws are required to conform to the fundamental law,
that is, the Constitution. The functionaries of the three wings,
E namely, the legislature, the executive and the judiciary, as has
been stated in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another21. derive their
authority and jurisdiction from the Constitution. The Parliament
has the exclusive authority to make laws and that is how the
supremacy of the Parliament in the field of legislation is understood.
F There is a distinction between parliamentary supremacy in the
field of legislation and constitutional supremacy. The Constitution
is the fundamental document that provides for constitutionalism,
constitutional governance and also sets out morality, norms and
values which are inhered in various articles and sometimes are
G decipherable from the constitutional silence. Its inherent dynamism
makes it organic and, therefore, the concept of — constitutional
sovereignty is sacrosanct. It is extremely sacred and, as stated
earlier, the authorities get their powers from the Constitution. It is
20
(2018) 7 SCALE 106
21
AIR 1973 SC 1461 : (1973) 4 SCC 225
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 89
& ANOTHER [DIPAK MISRA, CJI]

—the source. Sometimes, the constitutional sovereignty is A
described as the supremacy of the Constitution.
[Emphasis is ours]
68. Thus, the concept of constitutional governance is a natural
consequent of the doctrine of constitutional sovereignty. The writings of
Locke and Montesquieu also throw light on the concept of constitutional B
governance. Locke lays stress on the fiduciary nature of public power
and argues that sovereignty lies with the people. Montesquieu, on the
other hand, in his postulate of constitutional governance, has laid more
stress on the system of “checks and balances” and “separation of powers”
between the executive, legislature and the judiciary. According to the C
ideas of Montesquieu, it can be said that constitutional governance involves
the denial of absolute power to any one organ of the State and a system
of checks and balances is the basic foundation of constitutional
governance. In constitutional form of Government, power is distributed
amongst the three organs of the State in such a way that the constitutional
goal as set out in the Preamble of our Constitution is realised. D
69. The postulates laid by Locke and Montesquieu are inherent in
our constitutional scheme and have also been recognized by the Court.
Therefore, it can safely be said that the nomenclature of constitutional
governance has at its very base a Constitution which is the supreme law
of the land and the conception, in its width, embraces two more ideas, E
i.e., fiduciary nature of public power and the system of checks and
balances.
70. We may hasten to add that the Court, while interpreting various
provisions of the Constitution on different occasions, has always been
alive to the concept of constitutional governance. In B.R. Kapur v. State F
of T.N. and another22, the majority, while dealing with the issue of a
writ of quo warranto, ruled that if a non-legislator could be sworn in as
the Chief Minister under Article 164 of the Constitution, then he or she
must satisfy the qualification of membership of a legislator as provided
under Article 173. Recently, in Manoj Narula (supra), while interpreting
G
Article 75(1) of the Constitution, the Court observed:-
“...In a controlled Constitution like ours, the Prime Minister is
expected to act with constitutional responsibility as a consequence
of which the cherished values of democracy and established norms
22
(2001) 7 SCC 231 H
90 SUPREME COURT REPORTS [2018] 7 S.C.R.

A of good governance get condignly fructified. The framers of the
Constitution left many a thing unwritten by reposing immense trust
in the Prime Minister. The scheme of the Constitution suggests
that there has to be an emergence of constitutional governance
which would gradually grow to give rise to constitutional
renaissance.”
B
[Emphasis is ours]
71. The provisions of the Constitution need not expressly stipulate
the concepts of constitutionalism, constitutional governance or
constitutional trust and morality, rather these norms and values are
C inherent in various articles of the Constitution and sometimes are
decipherable from the constitutional silences as has been held in Kalpana
Mehta (supra).
72. Having discussed about the concept of constitutional
governance, in the obtaining situation, we may allude to the conception
of legitimate constitutional trust. In this regard, the speech of Dr.
D
Ambedkar reflects his concern:-
“I feel that the Constitution is workable; it is flexible and it is
strong enough to hold the country together both in peacetime and
in wartime. Indeed, if I may say so, if things go wrong under the
new Constitution the reason will not be that we had a bad
E
Constitution. What we will have to say is that Man was vile.”
73. In Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission23, the Court discussed the role of the members of
Public Service Commissions and, treating them as constitutional trustees,
observed that the credibility of the institution of Public Service Commission
F is founded upon the faith of the common man on its proper functioning.
The faith would be eroded and confidence destroyed if it appears that
the Chairman or the Members of the Commission act subjectively and
not objectively. In Subhash Sharma and others and Firdauz
Taleyarkhan v. Union of India and another24, in the context of
G appointment of Judges, it has been stated that it “is essentially a discharge
of a constitutional trust of which certain constitutional functionaries are
collectively repositories.”

23
(2000) 4 SCC 309
24
1990 (2) SCALE 836
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& ANOTHER [DIPAK MISRA, CJI]

74. The framers of the Constitution also did recognize that the A
adoption of the Constitution would not ipso facto, like a magic wand,
instill in the countrymen the values of constitutionalism. The founding
fathers expected that constitutional functionaries who derive their
authority from the Constitution shall always remain sincerely obeisant to
the Constitution. The Court in Manoj Narula (supra), while highlighting
B
the responsibility conferred on the Prime Minister under the Constitution,
discussed the doctrine of constitutional trust and, in that context,
reproduced what Edmund Burke had said centuries ago:-
“All persons possessing any portion of power ought to be strongly
and awfully impressed with the idea that they act in trust: and that
they are to account for their conduct in that trust to the one great C
Master, Author and Founder of Society.”
75. Thereafter, the Court went on to state:-
“This Court, in re Art. 143, Constitution of India and Delhi Laws
Act (1912)25, opined that the doctrine of constitutional trust is D
applicable to our Constitution since it lays the foundation of
representative democracy. The Court further ruled that accordingly,
the Legislature cannot be permitted to abdicate its primary duty,
viz. to determine what the law shall be. Though it was stated in
the context of exercise of legislative power, yet the same has
signification in the present context, for in a representative E
democracy, the doctrine of constitutional trust has to be envisaged
in every high constitutional functionary.”
76. The Court further observed:-
“... we shall proceed to deal with the doctrine of “constitutional F
trust”. The issue of constitutional trust arises in the context of the
debate in the Constituent Assembly that had taken place pertaining
to the recommendation for appointment of a Minister to the Council
of Ministers. Responding to the proposal for the amendment
suggested by Prof. K.T. Shah with regard to the introduction of a
disqualification of a convicted person becoming a Minister, Dr. G
B.R. Ambedkar had replied: -
“His last proposition is that no person who is convicted may be
appointed a Minister of the State. Well, so far as his intention
is concerned, it is no doubt very laudable and I do not think any
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92 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Member of this House would like to differ from him on that
proposition. But the whole question is this whether we should
introduce all these qualifications and disqualifications in the
Constitution itself. Is it not desirable, is it not sufficient that we
should trust the Prime Minister, the Legislature and the public
at large watching the actions of the Ministers and the actions
B
of the Legislature to see that no such infamous thing is done
by either of them? I think this is a case which may eminently
be left to the good- sense of the Prime Minister and to the
good sense of the Legislature with the general public holding a
watching brief upon them. I therefore say that these
C amendments are unnecessary.”
And again:-
“98. From the aforesaid, it becomes graphically vivid that the
Prime Minister has been regarded as the repository of
constitutional trust. The use of the words “on the advice of the
D Prime Minister” cannot be allowed to operate in a vacuum to
lose their significance. There can be no scintilla of doubt that
the Prime Minister’s advice is binding on the President for the
appointment of a person as a Minister to the Council of Ministers
unless the said person is disqualified under the Constitution to
E contest the election or under the 1951 Act, as has been held in
B.R. Kapur case. That is in the realm of disqualification. But,
a pregnant one, the trust reposed in a high constitutional
functionary like the Prime Minister under the Constitution does
not end there. That the Prime Minister would be giving apposite
advice to the President is a legitimate constitutional expectation,
F for it is a paramount constitutional concern. In a controlled
Constitution like ours, the Prime Minister is expected to act
with constitutional responsibility as a consequence of which
the cherished values of democracy and established norms of
good governance get condignly fructified. The Framers of the
G Constitution left many a thing unwritten by reposing immense
trust in the Prime Minister. The scheme of the Constitution
suggests that there has to be an emergence of constitutional
governance which would gradually grow to give rise to
constitutional renaissance.

H x x x x x
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 93
& ANOTHER [DIPAK MISRA, CJI]

100. Thus, while interpreting Article 75(1), definitely a A
disqualification cannot be added. However, it can always be
legitimately expected, regard being had to the role of a Minister
in the Council of Ministers and keeping in view the sanctity of
oath he takes, the Prime Minister, while living up to the trust
reposed in him, would consider not choosing a person with
B
criminal antecedents against whom charges have been framed
for heinous or serious criminal offences or charges of corruption
to become a Minister of the Council of Ministers. This is what
the Constitution suggests and that is the constitutional
expectation from the Prime Minister. Rest has to be left to the
wisdom of the Prime Minister. We say nothing more, nothing C
less.”
77. The Constitution of India, as stated earlier, is an organic
document that requires all its functionaries to observe, apply and protect
the constitutional values spelt out by it. These values constitute the
constitutional morality. This makes the Constitution of India a political D
document that organizes the governance of Indian society through specific
functionaries for requisite ends in an appropriate manner. The
constitutional culture stands on the fulcrum of these values. The element
of trust is an imperative between constitutional functionaries so that
Governments can work in accordance with constitutional norms. It may
be stated with definiteness that when such functionaries exercise their E
power under the Constitution, the sustenance of the values that usher in
the foundation of constitutional governance should remain as the principal
motto. There has to be implicit institutional trust between such
functionaries. We shall elaborate the functional aspect of this principle
when we scan the language employed under Article 239AA and other F
adjunct articles to decipher the true purpose of the said provision from
the perspective of the workability of the Constitution in the sphere of
governance.
G. Collective responsibility:
78. In the Constituent Assembly Debates, Dr. B.R. Ambedkar G
spoke thus on collective responsibility:-
“I want to tell my friend Prof. K.T. Shah that his amendment
would be absolutely fatal to the other principle which we want to

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

A enact, namely collective responsibility. All Members of the House
are very keen that the Cabinet should work on the basis of collective
responsibility and all agree that is a very sound principle. But I do
not know how many Members of the House realise what exactly
is the machinery by which collective responsibility is enforced.
Obviously, there cannot be a statutory remedy. Supposing a Minister
B
differed from other Members of the Cabinet and gave expression
to his views which were opposed to the views of the Cabinet, it
would be hardly possible for the law to come in and to prosecute
him for having committed a breach of what might be called
collective responsibility. Obviously, there cannot be a legal sanction
C for collective responsibility. The only sanction through which
collective responsibility can be enforced is through the Prime
Minister. In my judgment collective responsibility is enforced by
the enforcement of two principles. One principle is that no person
shall be nominated to the Cabinet except on the advice of the
Prime Minister. Secondly, no person shall be retained as a Member
D
of the Cabinet if the Prime Minister says that he shall be dismissed.
It is only when Members of the Cabinet both in the matter of their
appointment as well as in the matter of their dismissal are placed
under the Prime Minister, that it would be possible to realise our
ideal of collective responsibility. I do not see any other means or
E any other way of giving effect to that principle.
Supposing you have no Prime Minister; what would really happen?
What would happen is this, that every Minister will be subject to
the control or influence of the President. It would be perfectly
possible for the President who is no ad idem with a particular
F Cabinet, to deal with each Minister separately singly, influence
them and thereby cause disruption in the Cabinet. Such a thing is
not impossible to imagine. Before collective responsibility was
introduced in the British Parliament you remember how the English
King used to disrupt the British Cabinet. He had what was called
a Party of King’s Friends both in the Cabinet as well as in
G Parliament. That sort of thing was put a stop to by collective
responsibility. As I said, collective responsibility can be achieved
only through the instrumentality of the Prime Minister. Therefore,
the Prime Minister is really the keystone of the arch of the Cabinet

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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 95
& ANOTHER [DIPAK MISRA, CJI]

and unless and until we create that office and endow that office A
with statutory authority to nominate and dismiss Ministers there
can be no collective responsibility.”
79. In State of Karnataka v. Union of India and another26, the
Court, after reproducing a few passages from Sir Ivor Jennings and Mr.
Joseph Chamberlain, observed:- B
“...The following discussion on the subject in “Representative and
Responsible Government” by A. H. Birch will be found useful in
this connection:-
“Ministerial accountability to Parliament has two aspects : the
collective responsibility of Ministers for the policies of the C
Government and their individual responsibility for the work of
their departments. Both forms of responsibility are embodied
in conventions which cannot be legally enforced. Both
conventions were developed during the nineteenth century, and
in both cases the practice was established before the doctrine D
was announced (page 131).”
80. In “Government and Law” by T. C. Hartley and J.A.G.
Griffith27, the position in regard to the collective responsibility of Ministers
to the Legislature is tersely stated as under:-
“Ministers are said to be collectively responsible. This is often E
elevated by writers to the level of a ‘doctrine’ but is in truth
little more than a political practice which is commonplace and
inevitable. Ordinarily, Ministers form the governmental team,
all being appointed by the Prime Minister from one political
party. A Cabinet Minister deals with his own area of policy F
and does not normally have much to do with the area of other
Ministers. Certainly no Cabinet Minister would be likely to make
public statements which impinged on the work of another
Minister’s department. On a few important issues, policy is
determined by the Cabinet after discussion. Collective
responsibility means that Cabinet decisions bind all Cabinet G
Ministers, even if they argued in the opposite direction in
Cabinet. But this is to say no more than a Cabinet Minister
26
(1978) 2 SCR 1
27
Hartley T.C. and Griffith J.A.G., Government and Law; an introduction to the working
of the Constitution in Britain 2nd edition, 1981 London; Weidenfelf and Nicholson H
96 SUPREME COURT REPORTS [2018] 7 S.C.R.

A who finds himself in a minority must either accept the majority
view or resign. The team must not be weakened by some of
its members making clear in public that they disapprove of the
Government’s policy. And obviously what is true for Cabinet
Ministers is even more true for other Ministers. If they do not
like what the team is doing, they must either keep quiet or
B
leave.”
81. Speaking on collective responsibility, the Court in the case
of R.K. Jain v. Union of India and others28 has opined that each
member of the Cabinet has personal responsibility to his conscience and
also responsibility to the Government. Discussion and persuasion may
C diminish disagreement, reach unanimity, or leave it unaltered. Despite
persistence of disagreement, it is a decision, though some members like
less than others. Both practical politics and good government require
that those who like it less must still publicly support it. If such support is
too great a strain on a Minister’s conscience or incompatible with his/
D her perceptions of commitment and he/she finds it difficult to support
the decision, it would be open to him/her to resign. So, the price of
acceptance of Cabinet office is the assumption of responsibility to support
Cabinet decisions and, therefore, the burden of that responsibility is
shared by all.
E 82. In Common Cause, A Registered Society v. Union of India
and others29, the Court, explaining the concept of collective responsibility,
stated:-
“30. The concept of “collective responsibility” is essentially a
political concept. The country is governed by the party in power
F on the basis of the policies adopted and laid down by it in the
Cabinet Meeting. “Collecting Responsibility” has two meanings :
The first meaning which can legitimately be ascribed to it is that
all members of a Govt, are unanimous in support of its policies
and would exhibit that unanimity on public occasions although
while formulating the policies, they might have expressed a
G different view in the meeting of the Cabinet. The other meaning
is that Ministers, who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally
responsible for its success and failure.”
28
(1993) 3 SCR 802
29
H (1999) 6 SCC 667
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 97
& ANOTHER [DIPAK MISRA, CJI]

83. The principle of collective responsibility is of immense A
significance in the context of ‘aid and advice’ of the Council of Ministers.
The submission of the learned counsel of the appellant is that when after
due deliberation between the Chief Minister and the Council of Ministers
a decision is taken, but the same is not given effect to because of
interdiction of the Lieutenant Governor, the value of collective
B
responsibility that eventually gets transformed into a Cabinet decision
stands absolutely denuded. It is emphatically submitted that if the
collective responsibility of the Council of Ministers is not given the
expected weightage, there will be corrosion of the essential feature of
representative government.
H. Federal functionalism and democracy: C

84. Democracy is a form of government where the people rule.
Aristotle viewed democracy as a form of government in which the
supreme powers are in the hands of freemen and where people form a
majority in an elected sovereign government to exercise some role in
decision making. Thomas Jefferson defined democracy as a “government D
by its citizens in mass, acting directly and personally, according to rules
established by the majority”. Abraham Lincoln defined democracy as “a
government of the people, by the people, and for the people”. The Black’s
Law Dictionary defines democracy as:-
“That form of government in which the sovereign power resides E
in and is exercised by the whole body of free citizens; as
distinguished from a monarchy, aristocracy, or oligarchy. According
to the theory of a pure democracy, every citizen should participate
directly in the business of governing, and the legislative assembly
should comprise the whole people.”30 F
85. The Preamble to our Constitution, at the outset, proclaims that
India is a sovereign democratic republic. The citizens of India are the
sovereign and participate in the process of governance by exercising
their virtuous right to vote under the system of universal adult suffrage.
The citizens elect their representatives and send them to the Parliament G
and State Legislatures for enacting laws and shaping policies at the Union
and State level respectively which are reflective of the popular will of
the collective.

30
Black’s Law Dictionary 6th Edition Pg.432
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98 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 86. The parliamentary form of democracy as envisaged by the
Constitution has at its very base the power bestowed upon people to
vote and make the legislature accountable for their functioning to the
people. If the legislature fails to transform the popular will of the people
into policies and laws, the people in a democracy like ours have the
power to elect new representatives by exercise of their vote. The political
B
equality makes people aware of their right in unison and there is a
consistent endeavour to achieve the same.
87. In this context, we may turn to a passage from Mohinder
Singh Gill and another v. Chief Election Commissioner, New Delhi
and others31 wherein Krishna Iyer, J. quoted with approval the statement
C of Sir Winston Churchill which is to the following effect:-
“At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross
on a little bit of paper - no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of
D the point.”
88. Thus, democratic set up has its limbs firmly entrenched in the
ability of the people to elect their representatives and the faith that the
representatives so elected will best represent their interest. Though this
right to vote is not a fundamental right, yet it is a right that lies at the
E heart of democratic form of government. The right to vote is the most
cherished value of democracy as it inculcates in the people a sense of
belonging. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra32, the
learned Judges, after referring to Mohinder Singh Gill’s case, stated
that nothing can diminish the overwhelming importance of the cross or
F preference indicated by the dumb sealed lip voter. That is his right and
the trust reposed by the Constitution in him is that he will act as a
responsible citizen in choosing his representatives for governing the
country.
89. The aforesaid situation warrants for reciprocative functionalism
G by thought, action and conduct. It requires the elected representatives
to uphold the faith which the collective have reposed in them. Any undue
interference amounts to betrayal of the faith of the collective in fulfilment
of their aspirations of democratic self-governance. In Kesavananda
31
AIR 1978 SC 851
32
H AIR 1980 SC 1362
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 99
& ANOTHER [DIPAK MISRA, CJI]

Bharati (supra), it has been observed that the two basic postulates of A
democracy are faith in human reason and faith in human nature and that
there is no higher faith than faith in democratic process. The Court further
stated that democracy on adult suffrage is a great experiment with its
roots in the faith in the common man. P. Jaganmohan Reddy, J., in his
opinion, stated that the republican and democratic form of government
B
is a part of the basic structure of the Constitution and the Parliament has
no power to abrogate or emasculate the basic elements or fundamental
features of the Constitution such as the sovereignty of India and the
democratic character of our polity. Further, he stated that the framers of
the Constitution adopted a sovereign democratic republic to secure for
the citizens of India the objectives of justice, liberty and equality as set C
out in the Preamble to our Constitution.
90. Dealing with the concept of democracy, the majority in Indira
Nehru Gandhi v. Raj Narain33 ruled that ‘democracy’ as an essential
feature of the Constitution is unassailable. The said principle has been
reiterated in T.N. Seshan, CEC of India v. Union of India and others.34 D
and Kuldip Nayar v. Union of India others.35. When it is conceived
that democracy is a part of the basic structure of the Constitution, the
essential value of democracy has to be condignly understood and that is
why we have referred to certain precedents. The correctness or fallacy
of the interpretation of Articles 239 to 239AB would depend upon our
appreciation of democratic form of government in a mature body polity. E

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

33
AIR 1975 SC 2299
34
(1995) 4 SCC 611
35
AIR 2006 SC 3127 H
100 SUPREME COURT REPORTS [2018] 7 S.C.R.

A case, the Court, while emphasizing that good governance is a sine qua
non for a healthy democracy, stated thus:-
“In a democracy, the citizens legitimately expect that the
Government of the day would treat the public interest as primary
one and any other interest secondary. The maxim Salus Populi
B Suprema Lex, has not only to be kept in view but also has to be
revered. The faith of the people is embedded in the root of the
idea of good governance which means reverence for citizenry
rights, respect for Fundamental Rights and statutory rights in any
governmental action, deference for unwritten constitutional values,
veneration for institutional integrity, and inculcation of accountability
C to the collective at large. It also conveys that the decisions are
taken by the decision making authority with solemn sincerity and
policies are framed keeping in view the welfare of the people,
and including all in a homogeneous compartment. The concept of
good governance is not an Utopian conception or an abstraction.
D It has been the demand of the polity wherever democracy is
nourished. The growth of democracy is dependant upon good
governance in reality and the aspiration of the people basically is
that the administration is carried out by people with responsibility
with service orientation.”
E [Emphasis supplied]
92. Now, we shall proceed to discuss the concept of federalism in
the context of the Constitution of India. Encyclopedia Britannica defines
federalism as:-
“Federalism, mode of political organization that unites separate
F states or other polities within an overarching political system in
such a way as to allow each to maintain its own fundamental
political integrity. Federal systems do this by requiring that basic
policies be made and implemented through negotiation in some
form, so that all the members can share in making and executing
decisions. The political principles that animate federal systems
G
emphasize the primacy of bargaining and negotiated coordination
among several power centres; they stress the virtues of dispersed
power centres as a means for safeguarding individual and local
liberties.”

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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 101
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93. In common parlance, federalism is a type of governance in A
which the political power is divided into various units. These units are
the Centre/Union, States and Municipalities. Traditional jurists like Prof.
K.C. Wheare lay emphasis on the independent functioning of different
governing units and, thus, define federalism as a method of dividing powers
so that the general/central and regional governments are each within a
B
sphere co-ordinate and independent. As per Prof. Wheare “the systems
of Government embody predominantly on division of powers between
Centre and regional authority each of which in its own sphere is
coordinating with the other independent as of them, and if so is that
Government federal?”36
94. However, modern jurists lay emphasis on the idea of C
interdependence and define federalism as a form of government in which
there is division of powers between one general/central and several
regional authorities, each within its sphere interdependent and co-ordinate
with each other.
95. The framers of our Constitution, during debates in the D
Constituent Assembly on the draft Constitution, held elaborate discussions
on whether to adopt a unitary system of government or federal system
of government. During the Constituent Assembly debates, Shri T.T.
Krishnamachari said:-
“...Are we framing a unitary Constitution? Is this Constitution E
centralizing power in Delhi? Is there any way provided by means
of which the position of people in various areas could be
safeguarded, their voices heard in regard to matters of their local
administration? I think it is a very big charge to make that this
Constitution is not a federal Constitution, and that it is a unitary F
one. We should not forget that this question that the Indian
Constitution should be a federal one has been settled by our Leader
who is no more with us, in the Round Table Conference in London
eighteen years back.”
“I would ask my honourable friend to apply a very simple test so G
far as this Constitution is concerned to find out whether it is federal
or not. The simple question I have got from the German school of
political philosophy is that the first criterion is that the State must
exercise compulsive power in the enforcement of a given political
36
Prof. K.C. Wheare, Federal Government, 1963 Edn. at page 33
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A order, the second is that these powers must be regularly exercised
over all the inhabitants of a given territory; and the third is the
most important and that is that the activity of the State must not
be completely circumscribed by orders handed down for execution
by the superior unit. The important words are ‘must not be
completely circumscribed’, which envisages some powers of the
B
State are bound to be circumscribed by the exercise of federal
authority. Having all these factors in view, I will urge that our
Constitution is a federal Constitution. I urge that our Constitution
is one in which we have given power to the Units which are both
substantial and significant in the legislative sphere and in the
C executive sphere.”
96. In this context, Dr. B.R. Ambedkar, speaking on the floor of
the Constituent Assembly, said:-
“There is only one point of Constitutional import to which I propose
to make a reference. A serious complaint is made on the ground
D that there is too much of centralization and that the States have
been reduced to Municipalities. It is clear that this view is not
only an exaggeration, but is also founded on a misunderstanding
of what exactly the Constitution contrives to do. As to the relation
between the Centre and the States, it is necessary to bear in mind
E the fundamental principle on which it rests. The basic principle of
Federalism is that the legislative and executive authority is
partitioned between the Centre and the States not by any law to
be made by the Centre but the Constitution itself. This is what the
Constitution does. The States, under our Constitution, are in no
way dependent upon the Centre for their legislative or executive
F authority. The Centre and the States are co-equal in this matter. It
is difficult to see how such a Constitution can be called centralism.
It may be that the Constitution assigns to the Centre too large a
field for the operation of its legislative and executive authority
than is to be found in any other Federal Constitution. It may be
G that the residuary powers are given to the Centre and not to the
States. But these features do not form the essence of federalism.
The chief mark of federalism, as I said lies in the partition of the
legislative and executive authority between the Centre and the
Units by the Constitution. This is the principle embodied in our
Constitution.”
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 103
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97. The Court in In re: Under Article 143, Constitution of India, A
(Special Reference No. 1 of 1964)37 observed that the essential
characteristic of federalism is the distribution of limited executive,
legislative and judicial authority among bodies which are coordinate with
and independent of each other. Further, the Court stated that the
supremacy of the Constitution is fundamental to the existence of a federal
B
State in order to prevent either the legislature of the federal unit or those
of the member States from destroying or impairing that delicate balance
of power which satisfies the particular requirements of States which are
desirous of union, but not prepared to merge their individuality in a unity.
This supremacy of the Constitution, the Court stated, is protected by the
authority of an independent judicial body to act as the interpreter of a C
scheme of distribution of powers and, thus, the dominant characteristic
of the British Constitution cannot be claimed by a Federal Constitution
like ours.
98. Gajendragadkar, C.J., in the said case, observed that our
Constitution has all the essential elements of a federal structure as was D
the case in the Government of India Act 1935, the essence of federalism
being the distribution of powers between the federation or the Union
and the States or the provinces. In State of Karnataka v. Union of
India (supra), Untwalia, J. (speaking for Justice Singhal, Justice Jaswant
Singh and for himself) observed that the Constitution is not of a federal
character where separate, independent and sovereign States could be E
said to have joined to form a nation as in the United States of America or
as may be the position in some other countries of the world. It is because
of this reason that sometimes it has been characterized as quasi-federal
in nature.
99. In Shamsher Singh (supra), this Court held that our founding F
fathers accepted the parliamentary system of quasi-federalism while
rejecting the substance of Presidential style of Executive. Dr. Ambedkar
stated on the floor of the Constituent Assembly that the Constitution is
“both unitary as well as federal according to the requirement of time and
circumstances”. He further stated that the Centre would work for the G
common good and for the general interest of the country as a whole
while the States would work for the local interest. He also refuted the
plea for exclusive autonomy of the States.

37
AIR 1965 SC 745
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104 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 100. In S.R. Bommai v. Union of India38, the Court considered
the nature of federalism under the Constitution of India. A.M. Ahmadi,
J. (as the learned Judge then was) observed:-
“In order to understand whether our Constitution is truly federal,
it is essential to know the true concept of federalism. Dicey calls
B it a political contrivance for a body of States which desire Union
but not unity. Federalism is, therefore, a concept which unites
separate States into a Union without sacrificing their own
fundamental political integrity. Separate States, therefore, desire
to unite so that all the member-States may share in formulation of
the basic policies applicable to all and participate in the execution
C of decisions made in pursuance of such basic policies. Thus the
essence of a federation is the existence of the Union and the
States and the distribution of powers between them. Federalism,
therefore, essentially implies demarcation of powers in a federal
compact.”
D 101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh, J.)
opined that the States are constitutionally recognised units and not mere
convenient administrative divisions as both the Union and the States
have sprung from the provisions of the Constitution. After quoting
extensively from H.M. Seervai’s commentary - Constitutional Law of
E India, he expressed thus:-
“99. The above discussion thus shows that the States have an
independent constitutional existence and they have as important a
role to play in the political, social, educational and cultural life of
the people as the Union. They are neither satellites nor agents of
F the Centre. The fact that during emergency and in certain other
eventualities their powers are overridden or invaded by the Centre
is not destructive of the essential federal nature of our Constitution.
The invasion of power in such circumstances is not a normal
feature of the Constitution. They are exceptions and have to be
resorted to only occasionally to meet the exigencies of the special
G situations. The exceptions are not a rule.
100. For our purpose, further it is really not necessary to determine
whether, in spite of the provisions of the Constitution referred to
above, our Constitution is federal, quasi-federal or unitary in nature.
38
(1994) 3 SCC 1
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It is not the theoretical label given to the Constitution but the A
practical implications of the provisions of the Constitution which
are of importance to decide the question that arises in the present
context, viz., whether the powers under Article 356(1) can be
exercised by the President arbitrarily and unmindful of its
consequences to the governance in the State concerned. So long
B
as the States are not mere administrative units but in their own
right constitutional potentates with the same paraphernalia as the
Union, and with independent Legislature and the Executive
constituted by the same process as the Union, whatever the bias
in favour of the Centre, it cannot be argued that merely because
(and assuming it is correct) the Constitution is labeled unitary or C
quasi-federal or a mixture of federal and unitary structure, the
President has unrestricted power of issuing Proclamation under
Article 356(1).”
102. K. Ramaswami, J., in paragraphs 247 and 248 of his separate
judgment, observed:- D
“247. Federalism envisaged in the Constitution of India is a basic
feature in which the Union of India is permanent within the
territorial limits set in Article 1 of the Constitution and is
indestructible. The State is the creature of the Constitution and
the law made by Articles 2 to 4 with no territorial integrity, but a E
permanent entity with its boundaries alterable by a law made by
Parliament. Neither the relative importance of the legislative entries
in Schedule VII, Lists I and II of the Constitution, nor the fiscal
control by the Union per se are decisive to conclude that the
Constitution is unitary. The respective legislative powers are
traceable to Articles 245 to 254 of the Constitution. The State qua F
the Constitution is federal in structure and independent in its
exercise of legislative and executive power. However, being the
creature of the Constitution the State has no right to secede or
claim sovereignty. Qua the Union, State is quasi-federal. Both
are coordinating institutions and ought to exercise their respective G
powers with adjustment, understanding and accommodation to
render socio-economic and political justice to the people, to preserve
and elongate the constitutional goals including secularism.

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

A 248. The preamble of the Constitution is an integral part of the
Constitution. Democratic form of Government, federal structure,
unity and integrity of the nation, secularism, socialism, social justice
and judicial review are basic features of the Constitution.”
103. B.P. Jeevan Reddy, J., writing a separate opinion (for himself
B and on behalf of S.C. Agrawal, J.), concluded in paragraph 276 thus:-
“276. The fact that under the scheme of our Constitution, greater
power is conferred upon the Centre vis-a-vis the States does not
mean that States are mere appendages of the Centre. Within the
sphere allotted to them, States are supreme. The Centre cannot
C tamper with their powers. More particularly, the courts should not
adopt an approach, an interpretation, which has the effect of or
tends to have the effect of whittling down the powers reserved to
the States. It is a matter of common knowledge that over the last
several decades, the trend the world over is towards strengthening
of Central Governments be it the result of advances in
D technological/scientific fields or otherwise, and that even In USA
the Centre has become far more powerful notwithstanding the
obvious bias in that Constitution in favour of the States. All this
must put the court on guard against any conscious whittling down
of the powers of the States. Let it be said that the federalism in
E the Indian Constitution is not a matter of administrative
convenience, but one of principle the outcome of our own historical
process and a recognition of the ground realities. This aspect has
been dealt with elaborately by Shri M.C. Setalvad in his Tagore
Law Lectures “Union and State relations under the Indian
Constitution” (Eastern Law House, Calcutta, 1974). The nature
F of the Indian federation with reference to its historical background,
the distribution of legislative powers, financial and administrative
relations, powers of taxation, provisions relating to trade, commerce
and industry, have all been dealt with analytically. It is not possible
nor is it necessary for the present purposes to refer to them. It is
G enough to note that our Constitution has certainly a bias towards
Centre vis-a-vis the States...”
104. In ITC Ltd. v. Agricultural Produce Market Committee39,
the Court observed that the Constitution of India deserves to be
39
(2002) 9 SCC 23
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interpreted, language permitting, in a manner that it does not whittle A
down the powers of the State Legislature and preserves federalism while
also upholding the central supremacy as contemplated by some of its
articles.
105. In Kuldip Nayar (supra), the Court, while dealing with the
question of state domicile for elections to the Rajya Sabha, opined that it B
is true that the federal principle is dominant in our Constitution and the
said principle is one of its basic features but it is equally true that federalism
under the Indian Constitution leans in favour of a strong Centre, a feature
that militates against the concept of strong federalism. Some of the
provisions that can be referred to in this context include the power of the
Union to deal with extraordinary situations such as during emergency C
and in the event of a proclamation being issued under Article 356 that
the governance of a State cannot be carried on in accordance with the
provisions of the Constitution; the power of the Parliament to legislate
with respect to a matter in the State List in the national interest in case
there is a resolution of the Council of States supported by prescribed D
majority; the power of the Parliament to provide for the creation and
regulation of All India Services common to the Union and the States in
case there is a resolution of the Council of States supported by not less
than two-thirds majority; the existence of only one citizenship, namely,
the citizenship of India; and, perhaps most important, the power of the
Parliament in relation to the formation of new States and alteration of E
areas, boundaries or names of States.
106. From the foregoing discussion, it is clear as day that both the
concepts, namely, democracy, i.e., rule by the people and federalism are
firmly imbibed in our constitutional ethos. Whatever be the nature of
federalism present in the Indian Constitution, whether absolutely federal F
or quasi-federal, the fact of the matter is that federalism is a part of the
basic structure of our Constitution as every State is a constituent unit
which has an exclusive Legislature and Executive elected and constituted
by the same process as in the case of the Union Government. The
resultant effect is that one can perceive the distinct aim to preserve and G
protect the unity and the territorial integrity of India. This is a special
feature of our constitutional federalism.
107. It is self-evident that there is a meaningful orchestration
between the concepts of federalism and nature of democracy present in
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108 SUPREME COURT REPORTS [2018] 7 S.C.R.

A our Constitution. It would not be a fallacious metaphor if we say that just
as in a fusion reaction two or more atomic nuclei come together to form
a bigger and heavier nucleus, the founding fathers of our Constitution
envisaged a fusion of federalism and democracy in the quest for achieving
an egalitarian social order, a classical unity in a contemporaneous
diversity. The vision of diversity in unity and the perception of plurality in
B
eventual cohesiveness is embedded in the final outcome of the desire to
achieve the accomplished goal through constitutional process. The
meeting of the diversity in unity without losing identity is a remarkable
synthesis that the Constitution conceives without even permitting the
slightest contrivance or adroitness.
C I. Collaborative federalism:
108. The Constituent Assembly, while devising the federal
character of our Constitution, could have never envisaged that the Union
Government and the State Governments would work in tangent. It could
never have been the Constituent Assembly’s intention that under the
D garb of quasi-federal tone of our Constitution, the Union Government
would affect the interest of the States. Similarly, the States under our
constitutional scheme were not carved as separate islands each having
a distinct vision which would unnecessarily open the doors for a contrarian
principle or gradually put a step to invite anarchism. Rather, the vision
E enshrined in the Preamble to our Constitution, i.e., to achieve the golden
goals of justice, liberty, equality and fraternity, beckons both the Union
Government and the State Governments, alike. The ultimate aim is to
have a holistic structure.
109. The aforesaid idea, in turn, calls for coordination amongst
F the Union and the State Governments. The Union and the States need to
embrace a collaborative/cooperative federal architecture for achieving
this coordination.
110. Corwin, an eminent thinker, in the context of the United
States, coined the term ‘Collaborative Federalism’ and defined it as:-
G “...the National Government and the States are mutually
complementary parts of a single governmental mechanism all of
whose powers are intended to realize the current purposes of
government.”40
40
Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950)
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111. The U.S. Supreme Court in Carmichael v. S. Coal & Coke A
Co.41 propounded that a State Unemployment Statute had not been
coerced by the adoption of the Social Security Act and the United States
and the State of Alabama are not alien governments but they coexist
within the same territory. Unemployment within it is their common
concern. The U.S. Supreme Court further observed that the two statutes
B
embody a cooperative legislative effort by the State and National
governments for carrying out a public purpose common to both, which
neither could fully achieve without the cooperation of the other and the
Constitution does not prohibit such cooperation.
112. Geoffrey Sawer proposes that cooperative federalism is
evidenced by the following characteristics: ‘each of the parties to the C
arrangement has a reasonable degree of autonomy, can bargain
about the terms of cooperation, and at least if driven too hard,
decline to cooperate’42.
113. Later, Cameron and Simeon described “collaborative
federalism,” as:- D

“[T]he process by which national goals are achieved, not by the
federal government acting alone or by the federal government
shaping provincial behavior through the exercise of its spending
power, but by some or all of the governments and the territories
acting collectively.”43 E

Although the said statement of law may not be strictly applicable,
yet the need for co-operation to sustain the federal structure has its own
importance as an idea.
114. Thus, the Union and the State Governments should always F
work in harmony avoiding constitutional discord. In such a collaboration,
the national vision as set out in the Preamble to our Constitution gets
realized. The methods and approach for the governments of the Union
and the States may sometimes be different but the ultimate goal and
objective always remain the same and the governments at different levels
should not lose sight of the ultimate objective. This constitutional objective G
as enshrined in the Constitution should be the guiding star to them to
41
301 U.S. 495, 525 - 26 (1937)
42
Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1.
43
Cameron, D. and Simeon, R. 2002. Intergovernmental relations in Canada: The
emergence of Collaborative federalism. Publius, 32(2):49-72 H
110 SUPREME COURT REPORTS [2018] 7 S.C.R.

A move on the path of harmonious co-existence and interdependence. They
are the basic tenets of collaborative federalism to sustain the strength of
constitutional functionalism in a Welfare State.
115. In a Welfare State, there is a great necessity of collaborative
federalism. Martin Painter, a leading Australian proponent of collaborative
B federalism, lays more stress on negotiations for achieving common goals
amongst different levels of governments and, thus, says:-
“The practical exigencies in fulfilling constitutionally sanctioned
functions should bring all governments from different levels together
as equal partners based on negotiated cooperation for achieving
C the common aims and resolving the outstanding problems.” 44
116. In the Australian context, Prof. Nicholas Aroney in his book45
has said:-
“Rather than displaying a strictly defined distribution of
responsibility between two or more “co-ordinate” levels of
D government, federal systems tend in practice to resemble
something more like a “marble cake”, in which governmental
functions are shared between various governmental actors within
the context of an ever-shifting set of parameters shaped by
processes of negotiation, compromise and, at times, cooperation.”
E 117. Thus, the idea behind the concept of collaborative federalism
is negotiation and coordination so as to iron out the differences which
may arise between the Union and the State Governments in their
respective pursuits of development. The Union Government and the State
Governments should endeavour to address the common problems with
F the intention to arrive at a solution by showing statesmanship, combined
action and sincere cooperation. In collaborative federalism, the Union
and the State Governments should express their readiness to achieve
the common objective and work together for achieving it. In a functional
Constitution, the authorities should exhibit sincere concern to avoid any
conflict. This concept has to be borne in mind when both intend to rely
G on the constitutional provision as the source of authority. We are absolutely
unequivocal that both the Centre and the States must work within their
44
Martin Painter, Collaborative federalism: Economic reform in Australia in the 1990s.
45
Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making
and Meaning of the Australian Constitution, 2009
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spheres and not think of any encroachment. But in the context of exercise A
of authority within their spheres, there should be perception of mature
statesmanship so that the constitutionally bestowed responsibilities are
shared by them. Such an approach requires continuous and seamless
interaction between the Union and the State Governments. We may
hasten to add that this idea of collaborative federalism would be more
B
clear when we understand the very essence of the special status of
NCT of Delhi and the power conferred on the Chief Minister and the
Council of Ministers on the one hand and the Lieutenant Governor on
the other by the Constitution.
118. The idea of cooperative/collaborative federalism is also not
new to India. M.P. Jain in his book46, in a different manner, sets forth the C
perception thus:-
“Though the Constitution provides adequate powers to the Centre
to fulfil its role, yet, in actual practice, the Centre can maintain its
dynamism and initiative not through a show of its powers —
which should be exercised only as a last resort in a demonstrable D
necessity — but on the cooperation of the States secured through
the process of discussion, persuasion and compromises. All
governments have to appreciate the essential point that they are
not independent but interdependent, that they should act not at
cross- purposes but in union for the maximisation of the common E
good.”
119. In State of Rajasthan and others v. Union of India47, the
Court took cognizance of the concept of cooperative federalism as
perceived by G. Austin and A.H Birch when it observed:-
“Mr. Austin thought that our system, if it could be called federal, F
could be described as “cooperative federalism.” This term was
used by another author, Mr. A.H. Birch (see: Federalism, Finance
and Social Legislation in Canada, Australia and the United States
p. 305), to describe a system in which:
“...the practice of administrative cooperation between general G
and regional governments, the partial dependence of the regional
governments upon payments from the general governments
and the fact that the general governments, by the use of
46
M.P. Jain, Some aspects of Indian federalism, 1968
47
(1978) 1 SCR 1 H
112 SUPREME COURT REPORTS [2018] 7 S.C.R.

A conditional grants, frequently promote developments in matters
which are constitutionally assigned to the regions”...”
120. We have dealt with the conceptual essentiality of federal
cooperation as that has an affirmative role on the sustenance of
constitutional philosophy. We may further add that though the authorities
B referred to hereinabove pertain to Union of India and State Governments
in the constitutional sense of the term “State”, yet the concept has
applicability to the NCT of Delhi regard being had to its special status
and language employed in Article 239AA and other articles.
J. Pragmatic federalism:
C 121. In this context, we may also deal with an ancillary issue,
namely, pragmatic federalism. To appreciate the said concept, we are
required to analyse the nature of federalism that is conceived under the
Constitution. Be it noted, the essential characteristics of federalism like
duality of governments, distribution of powers between the Union and
D the State Governments, supremacy of the Constitution, existence of a
written Constitution and most importantly, authority of the Courts as
final interpreters of the Constitution are all present under our constitutional
scheme. But at the same time, the Constitution has certain features
which can very well be perceived as deviations from the federal
character. We may, in brief, indicate some of these features to underscore
E the fact that though our Constitution broadly has a federal character, yet
it still has certain striking unitary features too. Under Article 3 of the
Constitution, the Parliament can alter or change the areas, boundaries or
names of the States. During emergency, the Union Parliament is
empowered to make laws in relation to matters under the State List,
F give directions to the States and empower Union officers to execute
matters in the State List. That apart, in case of inconsistency between
the Union and the State laws, the Union Law shall prevail. Additionally,
a Governor of a State is empowered to reserve the bill passed by the
State Legislature for consideration of the President and the President is
not bound to give his assent to such a bill. Further, a State Legislature
G can be dissolved and President’s rule can be imposed in a State either on
the report of the Governor or otherwise when there is failure of the
constitutional machinery in the State.
122. We have referred to the above aspects to lay stress on the
‘quasi-federal’ nature of our Constitution which has been so held by the
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Court in many a decision. We may state that these theoretical concepts A
are to be viewed from the practical perspective. In S.R. Bommai’s
case, while interpreting Article 356, the Court observed:-
“That is why the Constitution of India is differently described,
more appropriately as ‘quasi-federal’ because it is a mixture of
the federal and unitary elements, leaning more towards the latter B
but then what is there in a name, what is important to bear in mind
is the thrust and implications of the various provisions of the
Constitution bearing on the controversy in regard to scope and
ambit of the Presidential power under Article 356 and related
provisions.”
C
123. Thus, the need is to understand the thrust and implication of
a provision. To put it differently, the acceptance of ‘pragmatic federalism’
is the need of the day. One aspect needs to be clarified. The acceptance
of the said principle should not be viewed as a simplistic phenomenon
entrenched in innocence. On the contrary, it would require disciplined
wisdom on the part of those who are required to make it meaningful. D
And, the meaning, in essentiality, shall rest on pragmatic orientation.
124. The expression ‘pragmatic federalism’ in the Indian context
has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein
he observes:-
E
“It would thus seem that the Indian Constitution has, in it, not only
features of a pragmatic federalism which, while distributing
legislative powers and indicating the spheres of Governmental
powers of State and Central Governments, is overlaid by strongly
‘unitary’ features, particularly exhibited by lodging in Parliament
the residuary legislative powers, and in the Central Government F
the executive power of appointing certain Constitutional
functionaries including High Court and Supreme Court Judges
and issuing appropriate directions to the State Governments and
even displacing the State Legislatures and the Government in
emergency situations, vide Articles 352 to 360 of the Constitution.” G
125. The concept of pragmatic federalism is self explanatory. It
is a form of federalism which incorporates the traits and attributes of
sensibility and realism. Pragmatic federalism, for achieving the
constitutional goals, leans on the principle of permissible practicability.
H
114 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 126. It is useful to state that pragmatic federalism has the inbuilt
ability to constantly evolve with the changing needs and situations. It is
this dynamic nature of pragmatic federalism which makes it apt for a
body polity like ours to adopt. The foremost object of the said concept is
to come up with innovative solutions to problems that emerge in a federal
setup of any kind.
B
K. Concept of federal balance:
127. Another complementary concept in this context, we think, is
“federal balance”. Federalism in contradistinction to centralism is a
concept which envisions a form of Government where there is a
C distribution of powers between the States and the Centre. It has been
advocated by the patrons of the federal theory that the States must
enjoy freedom and independence as much as possible and at the very
least be on an equal footing with the Centre. The Indian Constitution
prescribes a federal structure which provides for division of powers
between the States and the Centre, but with a slight tilt towards the
D Centre. This unique quasi-federal structure is inherent in the various
provisions of the Constitution as it was felt by the framers of our
Constitution keeping in mind the needs of independent India and that is
why, the residuary powers in most, if not all, matters have remained with
the Centre. This, however, is not unconditional as the Constitution has
E provided for a federal balance between the powers of the Centre and
the States so that there is no unwarranted or uncalled for interference
by the Centre which would entail encroachment by the Centre into the
powers of the States. The need is for federal balance which requires
mutual respect and deference to actualize the workability of a
constitutional provision.
F
128. Sawer’s ‘federal principles’ reiterate this concept of federal
balance when he states:-
“power of the centre is limited, in theory at least, to those
matters which concern the nation as a whole. The regions
G are intended to be as free as possible to pursue their own
local interest.”
129. The interest of the States inherent in a federal form of
government gains more importance in a democratic form of government
as it is absolutely necessary in a democracy that the will of the people is
given effect to. To subject the people of a particular State/region to the
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governance of the Union, that too, with respect to matters which can be A
best legislated at the State level goes against the very basic tenet of a
democracy. The principle of federal balance which is entrenched in our
Constitution has been reiterated on several instances holding that the
Centre and the States must act within their own spheres. In In re:
Under Article 143, Constitution of India, (Special Reference No. 1
B
of 1964) (supra), the Constitution Bench observed:-
“...the essential characteristic of federalism is the distribution of
limited executive, legislative and judicial authority among bodies
which are coordinate with and independent of each other’. The
supremacy of the Constitution is fundamental to the existence of
a federal State in order to prevent either the legislature of the C
federal unit or those of the member States from destroying or
impairing that delicate balance of power which satisfies the
particular requirements of States which are desirous of union, but
not prepared to merge their individuality in a unity. This supremacy
of the Constitution is protected by the authority of an independent D
judicial body to act as the interpreter of a scheme of distribution
of powers.”
[Underlining is ours]
130. In UCO Bank v. Dipak Debbarma48, the Court has made
several observations on the federal character of our Constitution and E
the need to maintain the federal balance which has been envisaged in
our Constitution to prevent any usurpation of power either by the Centre
or the States. We reproduce the same with profit:-
“The federal structure under the constitutional scheme can also
work to nullify an incidental encroachment made by the F
Parliamentary legislation on a subject of a State legislation where
the dominant legislation is the State legislation. An attempt to keep
the aforesaid constitutional balance intact and give a limited
operation to the doctrine of federal supremacy can be discerned
in the concurring judgment ofRuma Pal, J. inITC Ltd. vs.
Agricultural Produce Market Committee and Ors., wherein G
after quoting the observations of this Court in the case of S.R.
Bomai v. Union of India (para 276), the learned Judge has gone
to observe as follows (para 94 of the report):

48
(2017) 2 SCC 585
H
116 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “276. The fact that under the scheme of our Constitution,
greater power is conferred upon the Centre vis-a-vis the States
does not mean that States are mere appendages of the Centre.
Within the sphere allotted to them, States are supreme. The
Centre cannot tamper with their powers. More particularly,
the courts should not adopt an approach, an interpretation, which
B
has the effect of or tends to have the effect of whittling down
the powers reserved to the States.””
131. Thus, the role of the Court in ensuring the federal balance,
as mandated by the Constitution, assumes great importance. It is so as
the Court is the final arbiter and defender of the Constitution.
C
L. Interpretation of the Constitution:
132. We have already said that both the parties have projected
their view in extremes. The issue deserves to be adjudged regard being
had to the language employed in the various articles in Chapter VIII, the
D context and various constitutional concepts. If the construction sought
to be placed by the appellant is accepted, such an acceptation would
confer a status on NCT of Delhi which the Parliament in exercise of its
constituent power has not conceived. The respondents, per contra,
highlight that by the constitutional amendment, introduction of the 1991
Act and the Rules of Business, the Lieutenant Governor functions as
E the administrator in the truest sense as the contemporaneous documents
leading to the amendment would show. They would submit that though
Delhi has been conferred a special status, yet that does not bring any
new incarnation. The submission, as we perceive, destroys the
fundamental marrows of the conception, namely, special status. It, in
F fact, adorns the Lieutenant Governor with certain attributes and seeks
to convey that NCT of Delhi remains where it was. The approach in
extremes is to be adjudged and the adjudication, as it seems to us, would
depend upon the concepts we have already adumbrated and further we
have to carefully analyse the principles of the interpretation of the
Constitution.
G
133. The task of interpreting an instrument as dynamic as the
Constitution assumes great import in a democracy. The Constitutional
Courts are entrusted with the critical task of expounding the provisions
of the Constitution and further while carrying out this essential function,
they are duty bound to ensure and preserve the rights and liberties of the
H
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citizens without disturbing the very fundamental principles which form A
the foundational base of the Constitution. Although, primarily, it is the
literal rule which is considered to be the norm which governs the courts
of law while interpreting statutory and constitutional provisions, yet mere
allegiance to the dictionary or literal meaning of words contained in the
provision may, sometimes, annihilate the quality of poignant flexibility
B
and requisite societal progressive adjustability. Such an approach may
not eventually subserve the purpose of a living document.
134. In this regard, we think it appropriate to have a bird’s eye
view as to how the American jurists and academicians have contextually
perceived the science of constitutional interpretation. The most important
aspect of modern constitutional theory is its interpretation. Constitutional C
law is a fundamental law of governance of a politically organised society
and it provides for an independent judicial system which has the onerous
responsibility of decisional process in the sphere of application of the
constitutional norms. The resultant consequences do have a vital impact
on the well-being of the people. The principles of constitutional D
interpretation, thus, occupy a prime place in the method of adjudication.
In bringing about constitutional order through interpretation, the judiciary
is often confronted with two propositions - whether the provisions of the
Constitution should be interpreted as it was understood at the time of
framing of the Constitution unmindful of the circumstances at the time
when it was subsequently interpreted or whether the constitutional E
provisions should be interpreted in the light of contemporaneous needs,
experiences and knowledge. In other words, should it be historical
interpretation or contemporaneous interpretation.49 The theory of
historical perspective found its votary in Chief Justice Taney who
categorically stated in Dred Scott v Sanford50 that as long as the F
Constitution continues to exist in the present form, it speaks not only in
the same words but also with the same meaning and intent with which it
spoke when it came from the hands of the framers. Similar observations
have been made by Justice Sutherland51. Propagating a different angle,

49
G
Bodenheimer, Edgar, Jurispurudence, (Universal Law Publishing Co. Pvt. Ltd,
50
60 U.S. (19 How.) 393 (1857)
51
Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) see West Coast
Hotel Co., v Parrish, 300 US 379 (1937) where he observed, the meaning of the
Constitution does not change with the ebb and flow of economic events that (if) the
words of the Constitution mean today what they did not mean when written is to rob
that instrument of the essential element... H
118 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Chief Justice Marshall in McCulloch v Maryland52 has observed that
the American Constitution is intended to serve for ages to come and it
should be adopted to various crises of human affairs. Justice Hughes in
State v. Superior Court53 observed that the constitutional provisions
should be interpreted to meet and cover the changing conditions of social
life and economic life. Justice Holmes observed that the meaning of the
B
constitutional terms is to be gleaned from their origin and the line of their
growth.54 Cardozo once stated:-
“A Constitution states or ought to state not rules for the passing
hour but principles for an expanding future.”55
C It would be interesting to note that Justice Brandeis tried to draw
a distinction between interpretation and application of constitutional
provisions56. The Constitution makers in their wisdom must have
reasonably envisaged the future needs and attempted at durable
framework of the Constitution. They must not have made the Constitution
so rigid as to affect the future. There is a difference between modification
D and subversion of the provisions of the Constitution through interpretation.
The view is that there is sufficient elasticity but fundamental changes
are not envisaged by interpretation. Thus, there is a possibility of reading
into the provisions certain regulations or amplifications which are not
directly dealt with. There is yet another angle that the libertarian’s
E absolutism principle never allows for restrictions to be read into the
liberties which are not already mentioned in the Constitution.57
135. Our Constitution, to repeat at the cost of repetition, is an
organic and living document. It contains words that potentially do have
many a concept. It is evident from the following passage from R.C.
F Poudyal v. Union of India and others58:-
“In the interpretation of a constitutional document, “words are but
the framework of concepts and concepts may change more than
words themselves”. The significance of the change of the concepts
52
17 US (4Wheat) 316 (1819)
G 53
State v. Superior Court (1944) at 547
54
Gompers v. US 233 (1914)
55
Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921
56
Burnett v Coronado Oil and Gas Co., 285 US (1932)
57
The activist Libertarians like Justice Black and Douglas never allowed reading such
restrictions. See American Communication Association v Douds 339 US (1950) and
dissenting in Poulos v New Hamshire, 345 US(1953)
H 58
AIR 1993 SC 1804
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 119
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themselves is vital and the constitutional issues are not solved by A
a mere appeal to the meaning of the words without an acceptance
of the line of their growth. It is aptly said that “the intention of a
Constitution is rather to outline principles than to engrave
details””.”
136. Professor Richard H. Fallon has, in his celebrated work59, B
identified five different strands of interpretative considerations which
shall be taken into account by judges while interpreting the Constitution.
They read thus:-
“Arguments from the plain, necessary, or meaning of the
constitutional text; arguments about the intent of the framers;
arguments of constitutional theory that reason from the C
hypothesized purposes that best explain either particular
constitutional provisions or the constitutional text as a whole;
arguments based on judicial precedent; and value arguments that
assert claims about justice and social policy.”60
137. Comparing the task of interpretation of statute to that of D
interpretation of musical notes, Judge Hand in the case of Helvering v.
Gregory61 stated:-
“The meaning of a sentence may be more than that of the separate
words, as a melody is more than the words.”
E
138. Jerome N. Frank62, highlighting the corresponding duty of
the public in allowing discretion to the Judges, has observed:-
“a “wise composer” expects a performer to transcend literal
meaning in interpreting his score; a wise public should allow a
judge to do the same.”
F
139. The room for discretion while interpreting constitutional
provisions allows freedom to the Judges to come up with a formula
which is in consonance with the constitutional precepts while
simultaneously resolving the conflict in issue. The following observations
made in S.R. Bommai’s case,throw light on the aforesaid perception:-
G
59
Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional Interpreta-
tion”, Harvard Law Review Association, 1987
60
100 HARV. L. REV. 1189, 1189-90 (1987).10
61
69 F. 2d 809, 810-II (1934)
62
Jerome N. Frank, “Words and Music: Some remarks on Statutory Interpretation,”
Columbia Law Review 47 (1947): 1259-1367
H
120 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “Constitutional adjudication is like no other decision-making. There
is a moral dimension to every major constitutional case; the
language of the text is not necessarily a controlling factor. Our
Constitution works because of its generalities, and because of the
good sense of the judges when interpreting it. It is that informed
freedom of action of the judges that helps to preserve and protect
B
our basic document of governance.”
140. It is imperative that judges must remain alive to the idea that
the Constitution was never intended to be a rigid and inflexible document
and the concepts contained therein are to evolve over time as per the
needs and demands of the situation. Although the rules of statutory
C interpretation can serve as a guide, yet the constitutional courts should
not, for the sake of strict compliance to these principles, forget that
when the controversy in question arises out of a constitutional provision,
their primary responsibility is to work out a solution.
141. In Supreme Court Advocates-on-Record Association
D (supra), this Court, acknowledging the sui generis nature of the
Constitution, observed thus:-
“The constitutional provisions cannot be cut down by technical
construction rather it has to be given liberal and meaningful
interpretation. The ordinary rules and presumptions, brought in
E aid to interpret the statutes, cannot be made applicable while
interpreting the provisions of the Constitution. In Minister of Home
Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian
Constitution, Lord Wilberforce reiterated that a Constitution is a
document “sui generis, calling for principles of interpretation of its
F own, suitable to its character””
142. Dickson, J., in Hunter v. Southam Inc63, rendering the
judgment of the Supreme Court of Canada, expounded the principle
pertaining to constitutional interpretation thus:-
“The task of expounding a constitution is crucially different from
G that of construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A
constitution, by contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the legitimate
exercise of governmental power and, when joined by a Bill or a
H 63
[1984] 2 SCR 145
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Charter of Rights, for the unremitting protection of individual rights A
and liberties. Once enacted, its provisions cannot easily be repealed
or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical
realities often unimagined by its framers. The judiciary is the
guardian of the constitution and must, in interpreting its provisions,
B
bear these considerations in mind. Professor Paul Freund
expressed this idea aptly when he admonished the American courts
‘not to read the provisions of the Constitution like a last will and
testament lest it become one’.”
143. The Supreme Court of Canadaalso reiterated this view when
it held that the meaning of ‘unreasonable’ cannot be determined by C
recourse to a dictionary or, for that matter, by reference to the rules of
statutory construction. The Court pointed out that the task of expounding
a Constitution is crucially different from that of construing a statute, for
a statute defines present rights and obligations and is easily enacted and
as easily repealed whereas a Constitution is drafted with an eye to the D
future and its function is to provide a continuing framework for the
legitimate exercise of governmental power. Further, the Court observed
that once enacted, constitutional provisions cannot easily be repealed or
amended and hence, it must be capable of growth and development
over time to meet new social, political and historical realities often
unimagined by its framers and the judiciary, being the guardian of the E
Constitution, must bear these considerations in mind while interpreting
it. The Court further stated that the judges must take heed to the warning
of Professor Paul Freund when he said that the role of the judges is “not
to read the provisions of the Constitution like a last will and testament,
lest it becomes one”. F
144. This idea had pervaded the legal system way back in 1930
when the Privy Council through Lord Sankey LC in Edwards v Attorney
General for Canada64 had observed that the Constitution must be
approached as “a living tree capable of growth and expansion within its
natural limits”. G
65
145. Professor Pierre-André Côté in his book has highlighted
the action based approach by stating that it must be kept in mind that the
64
[1930] AC 124, 136
65
Pierre-André Côté, The Interpretation of Legislation in Canada 2nd Ed (Cowansville.
Quebec:Les Editions Yvon Blais. Inc. 1992) H
122 SUPREME COURT REPORTS [2018] 7 S.C.R.

A end goal of the process of legal interpretation is resolution of conflicts
and issues. It would be apt to reproduce his words:-
“Legal interpretation goes beyond the mere quest for historical
truth. The judge, in particular, does not interpret a statute solely
for the intellectual pleasure of reviving the thoughts that prevailed
B at the time the enactment was drafted. He interprets it with an
eye to action: the application of the statute. Legal interpretation is
thus often an “interpretive operation’’, that is, one linked to the
resolution of concrete issues.”
M. Purposive interpretation:
C 146. Having stated the principles relating to constitutional
interpretation we, as presently advised, think it apt to devote some space
to purposive interpretation in the context, for we shall refer to the said
facet for understanding the core controversy. It needs no special emphasis
that the reference to some precedents has to be in juxtaposition with
other concepts and principles. As it can be gathered from the discussion
D as well as the authorities cited above, the literal rule is not to be the
primary guiding factor in interpreting a constitutional provision, especially
if the resultant outcome would not serve the fructification of the rights
and values expressed in the Constitution. In this scenario, the theory of
purposive interpretation has gained importance where the courts shall
E interpret the Constitution in a purposive manner so as to give effect to its
true intention. The Judicial Committee in Attorney General of Trinidad
and Tobago v. Whiteman66 has observed:-
“The language of a Constitution falls to be construed, not in a
narrow and legalistic way, but broadly and purposively, so as to
F give effect to its spirit…”
147. In S.R. Chaudhuri v. State of Punjab and others67, a three-
Judge Bench has opined that constitutional provisions are required to be
understood and interpreted with an object-oriented approach and a
Constitution must not be construed in a narrow and pedantic sense. The
G Court, while holding that the Constituent Assembly debates can be taken
aid of, observed the following:-
“The words used may be general in terms but, their full import
and true meaning, has to be appreciated considering the true
66
[1991] 2 AC 240, 247
H 67
(2001) 7 SCC 126
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context in which the same are used and the purpose which they A
seek to achieve.”
(Emphasis is ours)
148. The Court further highlighted that the Constitution is not just
a document in solemn form but a living framework for the government
of the people exhibiting a sufficient degree of cohesion and its successful B
working depends upon the democratic spirit underlying it being respected
in letter and in spirit.
149. We have duly noted in the earlier part of the judgment that
the judiciary must interpret the Constitution having regard to the spirit
and further by adopting a method of purposive interpretation. That is the
C
obligation cast on the judges. In Ashok Kumar Gupta and another v.
State of U.P. and others68, the Court observed that while interpreting
the Constitution, it must be borne in mind that words of width are both a
framework of concepts and means to the goals in the Preamble and
concepts may keep changing to expand and elongate the rights. The
Court further held that constitutional issues are not solved by mere appeal D
to the meaning of the words without an acceptance of the line of their
growth and, therefore, the judges should adopt purposive interpretation
of the dynamic concepts of the Constitution and the Act with its
interpretative armoury to articulate the felt necessities of the time. Finally,
the Court pointed out:-
E
“To construe law one must enter into its spirit, its setting and
history.”
150. In Indian Medical Association v. Union of India and
others69, referring to the pronouncement in M. Nagaraj v. Union of
India70, the Court said:-
F
“In M. Nagaraj, Kapadia J., (as he then was) speaking for the
Court, recognized that one of the cardinal principles of
constitutional adjudication is that the mode of interpretation ought
to be the one that is purposive and conducive to ensure that the
constitution endures for ages to come. Eloquently, it was stated
that the “Constitution is not an ephemeral legal document G
embodying a set of rules for the passing hour”.”
(Emphasis is ours)
68
(1997) 5 SCC 201
69
(2011) 7 SCC 179
70
(2006) 8 SCC 202 H
124 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 151. The emphasis on context while interpreting constitutional
provisions has burgeoned this shift from the literal rule to the purposive
method in order that the provisions do not remain static and rigid. The
words assume different incarnations to adapt themselves to the current
demands as and when the need arises. The House of Lords in Regina
(Quintavalle) v. Secretary of State for Health71 ruled:-
B
“The pendulum has swung towards purposive methods of
construction. This change was not initiated by the teleological
approach of European Community jurisprudence, and the influence
of European legal culture generally, but it has been accelerated
by European ideas: see, however, a classic early statement of the
C purposive approach by Lord Blackburn in River Wear
Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL).
In any event, nowadays the shift towards purposive interpretation
is not in doubt. The qualification is that the degree of liberality
permitted is influenced by the context. ...”
D [Emphasis is supplied]
152. Emphasizing on the importance of determining the purpose
and object of a provision, Learned Hand, J. in Cabell v. Markham72
enunciated:-
“Of course it is true that the words used, even in their literal sense,
E
are the primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature
and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some
F purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”
153. The components of purposive interpretation have been
elucidated by Former President of the Supreme Court of Israel, Aharon
Barak, who states:-
G “Purposive interpretation is based on three components: language,
purpose, and discretion. Language shapes the range of semantic
possibilities within which the interpreter acts as a linguist. Once
71
(2003) UKHL 13 : (2003) 2 AC 687 : (2003) 2 WLR 692 (HL)
72
148 F 2d 737 (2d Cir 1945)
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the interpreter defines the range, he or she chooses the legal A
meaning of the text from among the (express or implied) semantic
possibilities. The semantic component thus sets the limits of
interpretation by restricting the interpreter to a legal meaning that
the text can bear in its (public or private) language.”73
154. As per the observations made by Aharon Barak, judges B
interpret a Constitution according to its purpose which comprises of the
objectives, values and principles that the constitutional text is designed
to actualize. Categorizing this purpose into objective and subjective
purpose, he states74:-
“Subjective component is the goals, values, and principles that the C
constituent assembly sought to achieve through it, at the time it
enacted the constitution. It is the original intent of the founding
fathers. Purposive interpretation translates such intent into a
presumption about the subjective purpose, that is, that the ultimate
purpose of the text is to achieve the (abstract) intent of its authors.
There is also, however, the objective purpose of the text - the D
goals, values, and principles that the constitutional text is designed
to achieve in a modern democracy at the time of interpretation.
Purposive interpretation translates this purpose into the presumption
that the ultimate purpose of the constitution is its objective
purpose.” E
[Emphasis supplied]
155. It is also apt to reproduce the observations made by him in
the context of the ever changing nature of the Constitution:-
“A constitution is at the top of a normative pyramid. It is designed
to guide human behavior for a long period of time. It is not easily F
amendable. It uses many open ended expressions. It is designed
to shape the character of the state for the long term. It lays the
foundation for the state’s social values and aspirations. In giving
expression to this constitutional uniqueness, a judge interpreting a
constitution must accord significant weight to its objective purpose G
and derivative presumptions. Constitutional provisions should be
interpreted according to society’s basic normative positions at the
time of interpretation.”
73
Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 -
Law
74
ibid H
126 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 156. He has further pointed out that both the subjective as well as
the objective purposes have their own significance in the interpretation
of constitutional provisions:-
“The intent of the constitutional founders (abstract subjective
intent” remains important. We need the past to understand the
B present. Subjective purpose confers historical depth, honoring the
past and its importance. In purposive interpretation, it takes the
form of presumption of purpose that applies immediately,
throughout the process of interpreting a constitution. It is not,
however, decisive. Its weight is substantial immediately following
the founding, but as time elapses, its influence diminishes. It cannot
C freeze the future development of the constitutional provision.
Although the roots of the constitutional provision are in the past,
its purpose is determined by the needs of the present, in order to
solve problems in the future. In a clash between subjective and
objective purposes, the objective purpose of a constitution prevails.
D It prevails even when it is possible to prove subjective purpose
through reliable, certain, and clear evidence. Subjective purpose
remains relevant, however, in resolving contradictions between
conflicting objective purposes.”75
N. Constitutional culture and pragmatism:
E 157. “Constitutional culture” is inherent in the concepts where
words are transformed into concrete consequences. It is an interlocking
system of practices, institutional arrangements, norms and habits of thought
that determine what questions we ask, what arguments we credit, how
we process disputes and how we resolve those disputes. 76
158. The aforestated definition of the term ‘constitutional culture’
F
is to be perceived as set of norms and practices that breathe life into the
words of the great document. It is the conceptual normative spirit that
transforms the Constitution into a dynamic document. It is the
constitutional culture that constantly enables the words to keep in stride
with the rapid and swift changes occurring in the society.
G 159. The responsibility of fostering a constitutional culture falls on
the shoulders of the State and the populace. The allegiance to promoting
a constitutional culture stems from the crying need of the sovereign to
75
ibid
76
Andrew M. Siegel, Constitutional Theory, Constitutional Culture, 18 U.PA.J. Const.
H L. 1067 (2016)
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 127
& ANOTHER [DIPAK MISRA, CJI]

ensure that the democratic nature of our society remains undaunted and A
the fundamental tenets of the Constitution rest on strong platform.
160. The following observations made by the Court in R.C. Poudyal
(supra) throw light on this duty cast upon the functionaries and the
citizens:-
“Mere existence of a Constitution, by itself, does not ensure B
constitutionalism or a constitutional culture. It is the political
maturity and traditions of a people that import meaning to a
Constitution which otherwise merely embodies political hopes and
ideals.”
161. The Constitutional Courts, while interpreting the constitutional C
provisions, have to take into account the constitutional culture, bearing in
mind its flexible and evolving nature, so that the provisions are given a
meaning which reflect the object and purpose of the Constitution.
162. History reveals that in order to promote and nurture this
spirit of constitutional culture, the Courts have adopted a pragmatic
approach of interpretation which has ushered in an era of “constitutional D
pragmatism”.
163. In this context, we may have some perspective from the
American approach. The perception is that language is a social and
contextual enterprise; those who live in a different society and use
language differently cannot reconstruct the original meaning. Justice E
Brennan observed:-
“We current Justices read the Constitution in the only way that
we can: as Twentieth-Century Americans. We look to the history
of the time of framing and to the intervening history of
interpretation. But the ultimate question must be, what do the words F
of the text mean in our time? For the genius of the Constitution
rests not in any static meaning it might have had in a world that is
dead and gone, but in the adaptability of its great principles to
cope with current problems and current needs. What the
constitutional fundamentals meant to the wisdom of other times
cannot be their measure to the vision of our time. Similarly, what G
those fundamentals mean for us, our descendants will learn, cannot
be the measure to the vision of their time.”77
77 William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratifi-
cation, in interpreting The Constitution: The Debate Over Oreiginal Intent at 23, 27
(Jack N. Rakove ed., 1990) H
128 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 164. In Supreme Court Advocates-on-Record-Association and
others v. Union of India78, the Court, while emphasizing on the aspect
of constitutional culture that governs the functioning of any constitutional
body, has observed:-
“The functioning of any constitutional body is only disciplined by
B appropriate legislation. Constitution does not lay down any
guidelines for the functioning of the President and Prime Minister
nor the Governors or the Chief Ministers. Performance of
constitutional duties entrusted to them is structured by legislation
and constitutional culture. The provisions of the Constitution cannot
be read like a last will and testament lest it becomes one.”
C 165. Further, the Court also highlighted that a balance between
idealism and pragmatism is inevitable in order to create a workable
situation ruling out any absurdity that may arise while adopting either
one of the approaches:-
“The rule of law envisages the area of discretion to be the
D minimum, requiring only the application of known principles or
guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing the element of
plurality by requiring a collective decision, are further checks
E against arbitrariness. This is how idealism and pragmatism are
reconciled and integrated, to make the system workable in a
satisfactory manner.
xxx xxx xxx
It is this pragmatic interpretation of the Constitution that was
postulated by the Constituent Assembly, which did not feel the
F
necessity of filling up every detail in the document, as indeed it
was not possible to do so.”
166. In The State of Karnataka and another v. Shri
Ranganatha Reddy and another79, the Court had laid stress on the
obligation and the responsibility of the judiciary not to limit itself to the
G
confines of rigid principles or textualism and rather adopt an interpretative
process which takes into consideration the constitutional goals and
constitutional culture:-
78
(2016) 5 SCC 1
79
AIR 1978 SC 215
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 129
& ANOTHER [DIPAK MISRA, CJI]

“When cryptic phrases expressive of constitutional culture and A
aspirational future, fundamental to the governance of the nation,
call for interpretative insight, do we merely rest content to consult
the O.E.D. and alien precedents, or feel the philosophy and share
the foresight of the founding fathers and their telescopic faculty?
Is the meaning of meanings an artless art?”
B
And again,
“There is a touch of swadeshi about a country’s jurisprudence
and so our legal notions must bear the stamp of Indian
Developmental amplitude linked to constitutional goals.”
167. Laying emphasis on the need for constitutional pragmatism, C
the Court in Indra Sawhney (supra) noted the observations made by
Lord Rockill in his presidential address to the Bentham Club at University
College of London on February 29, 1984 on the subject “Law Lords,
Reactionaries or Reformers?” which read as follows:-
“Legal policy now stands enthroned and will I hope remain one of D
the foremost considerations governing the development by the
House of Lords of the common law. What direction should this
development now take? I can think of several occasions upon
which we have all said to ourselves “this case requires a policy
decision - what is the right policy decision?”The answer is, and I E
hope will hereafter be, to follow that route which is most consonant
with the current needs of the society, and which will be seen to be
sensible and will pragmatically thereafter be easy to apply. No
doubt the Law Lords will continue to be the targets for those
academic lawyers who will seek intellectual perfection rather than
imperfect pragmatism. But much of the common law and virtually F
all criminal law, distasteful as it may be to some to have to
acknowledge it, is a blunt instrument by means of which human
beings, whether they like it or not, are governed and subject to
which they are required to live, and blunt instruments are rarely
perfect intellectually or otherwise. By definition they operate G
bluntly and not sharply.””
[Emphasis is ours]
168. The Court also observed:-
“Be that as it may, sitting as a Judge one cannot be swayed either
way while interpreting the Constitutional provisions pertaining to H
130 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the issues under controversy by the mere reflexes of the opinion
of any section of the people or by the turbulence created in the
society or by the emotions of the day.
We are very much alive to the fact that the issues with which we
are now facing are hypersensitive, highly explosive and extremely
B delicate. Therefore, the permissible judicial creativity in tune with
the Constitutional objectivity is essential to the interpretation of
the Constitutional provisions so that the dominant values may be
discovered and enforced. At the same time, one has to be very
cautious and careful in approaching the issues in a very pragmatic
and realistic manner.
C
Since this is a constitutional issue it cannot be resolved by clinches
founded on fictional mythological stories or misdirected philosophies
or odious comparisons without any regard to social and economic
conditions but by pragmatic, purposive and value oriented approach
to the Constitution as it is the fundamental law which requires
D careful navigation by political set up of the country and any
deflection or deviation disturbing or threatening the social balance
has to be restored, as far as possible, by the judiciary.”
[Emphasis is supplied]
169. Earlier, in Union of India v. Sankalchand Himatlal Sheth
E
and another80, the Court had observed that:-
“…in a dynamic democracy, with goals of transformation set up
by the Constitution, the Judge, committee to uphold the founding
faiths and fighting creeds of the nation so set forth, has to act
heedless of executive hubris, socio-economic pressures and die-
F hard obscurantism. This occupational heroism, professionally
essential, demands the inviolable independence woven around the
judiciary by our Constitution. Perfection baffles even the framers
of a Constitution, but while on statutory construction of an organic
document regulating and coordinating the relations among
G instrumentalities, the highest Court must remember that law,
including the suprema lex, is a principled, pragmatic, holistic
recipe for the behavioral needs and norms of life in the raw-of
individuals, instrumentalities and the play of power and freedom”

80
(1978) 1 SCR 423
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 131
& ANOTHER [DIPAK MISRA, CJI]

170. The aforesaid passages set two guidelines. First, it permits A
judicial creativity and second, it mentions one to be conscious of pragmatic
realism of the obtaining situation and the controversy. That apart, there
is a suggestion to take note of the behavioural needs and norms of life.
Thus, creativity, practical applicability and perception of reality from the
societal perspective are the warrant while engaging oneself with the
B
process of interpretation of a constitutional provision.
O. Interpretation of Articles 239 and 239A:
171. To settle the controversy at hand, it is imperative that we dig
deep and perform a meticulous analysis of Articles 239, 239A, 239AA
and 239AB all of which fall in Part VIII of the Constitution bearing the
C
heading, ‘The Union Territories’. For this purpose, let us reproduce the
aforesaid Articles one by one and carry out the indispensable and crucial
task of interpreting them.
172. Article 239 provides for the administration of Union Territories.
It reads as follows:-
D
“239. Administration of Union Territories.—(1) Save as
otherwise provided by Parliament by law, every Union territory
shall be administered by the President acting, to such extent as he
thinks fit, through an administrator to be appointed by him with
such designation as he may specify.
E
(2) Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State as the administrator of an
adjoining Union territory, and where a Governor is so appointed,
he shall exercise his functions as such administrator independently
of his Council of Ministers.”
(Emphasis is ours) F
173. The said Article was brought into existence by the Constitution
(Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing
the words ‘shall’, makes it abundantly clear that every Union territory is
mandatorily to be administered by the President through an administrator
unless otherwise provided by Parliament in the form of a law. Further, G
clause (1) of Article 239 also stipulates that the said administrator shall
be appointed by the President with such designation as he may specify.
174. Clause (2) thereafter, being a non-obstante clause, lays down
that irrespective of anything contained in Part VI of the Constitution, the
President may appoint the Governor of a State to act as an administrator H
132 SUPREME COURT REPORTS [2018] 7 S.C.R.

A of a Union Territory which is adjacent and/or contiguous to the State of
which he is the Governor. The Governor of a State who is so appointed
as an administrator of an adjoining UT shall exercise his functions as an
administrator of the said UT independently and autonomously and not as
per the aid and advice of the Council of Ministers of the State of which
he is the Governor.
B
175. In this regard, the Court, in the case of Shamsher Singh
(supra), has observed thus:-
“The provisions of the Constitution which expressly require the
Governor to exercise his powers in his discretion are contained in
C Articles to which reference has been made. To illustrate, Article
239(2) states that where a Governor is appointed an Administrator
of an adjoining Union Territory he shall exercise his functions as
such administrator independently of his Council of Ministers.”
176. Again, the Court, while interpreting Article 239 in Union of
D India and others v. Surinder S81, observed:-
“The unamended Article 239 envisaged administration of the States
specified in Part C of the First Schedule of the Constitution by the
President through a Chief Commissioner or a Lieutenant Governor
to be appointed by him or through the Government of a neighbouring
E State. This was subject to other provisions of Part VIII of the
Constitution. As against this, amended Article 239 lays down that
subject to any law enacted by Parliament every Union Territory
shall be administered by the President acting through an
Administrator appointed by him with such designation as he may
specify. In terms of Clause (2) of Article 239 (amended), the
F President can appoint the Governor of a State as an Administrator
of an adjoining Union territory and on his appointment, the Governor
is required to exercise his function as an Administrator
independently of his Council of Ministers. The difference in the
language of the unamended and amended Article 239 makes it
G clear that prior to 1.11.1956, the President could administer Part
C State through a Chief Commissioner or a Lieutenant Governor,
but, after the amendment, every Union Territory is required to be
administered by the President through an Administrator appointed
by him with such designation as he may specify. In terms of Clause
81
(2013) 1 SCC 403
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 133
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2 of Article 239 (amended), the President is empowered to appoint A
the Governor of State as the Administrator to an adjoining Union
Territory and once appointed, the Governor, in his capacity as
Administrator, has to act independently of the Council of Ministers
of the State of which he is the Governor.”
177. Now, let us proceed to scan Article 239A of the Constitution B
which deals with the creation of local legislatures or Council of Ministers
or both for certain Union Territories. It reads as follows:-
“239A. Creation of local Legislatures or Council of
Ministers or both for certain Union territories.—(1)
Parliament may by law create for the Union territory of C
Puducherry—
(a) a body, whether elected or partly nominated and partly elected,
to function as a Legislature for the Union territory, or
(b) a Council of Ministers, or both with such constitution, powers
and functions, in each case, as may be specified in the law. D
(2) Any such law as is referred to in clause (1) shall not be deemed
to be an amendment of this Constitution for the purposes of article
368 notwithstanding that it contains any provision which amends
or has the effect of amending this Constitution.”
E
178. The aforesaid Article was brought into force by the
Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971,
under Article 239A, the Parliament had the power to create by law
legislatures and/or Council of Ministers for the then Union territories of
Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter,
on 25th January, 1971, Himachal Pradesh acquired statehood and F
consequently, Himachal Pradesh was omitted from Article 239A.
Subsequently, on 21st January 1972, Tripura and Manipur were granted
statehood as a consequence of which both Manipur and Tripura were
omitted from Article 239A.
179. Likewise, with the enactment of the Goa, Daman and Diu G
Reorganisation Act, 1987 on 30th May 1987, both Goa and Daman and
Diu were omitted from Article 239A. The Parliament, under the
Government of Union Territories Act, 1963, created legislatures for the
then Union Territories and accordingly, even after 30th May, 1987, the
applicability of Article 239A stands limited to UT of Puducherry.
H
134 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 180. As a natural corollary, the Union Territory of Puducherry
stands on a different footing from other UTs of Andaman and Nicobar
Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and
Chandigarh. However, we may hasten to add that Puducherry cannot
be compared with the NCT of Delhi as it is solely governed by the
provisions of Article 239A.
B
P. Interpretation of Article 239AA of the Constitution
181. We shall now advert to the interpretation of Articles 239AA
and 239AB of the Constitution which are the gravamen of the present
batch of appeals. The said Articles require an elaborate interpretation
C and a thorough analysis to unearth and discover the true intention of the
Parliament while inserting the said Articles, in exercise of its constituent
power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said
articles read as follows:-
“239AA. Special provisions with respect to Delhi.—(1) As
D from the date of commencement of the Constitution (Sixty-ninth
Amendment) Act, 1991, the Union territory of Delhi shall be called
the National Capital Territory of Delhi (hereafter in this Part
referred to as the National Capital Territory) and the administrator
thereof appointed under article 239 shall be designated as the
Lieutenant Governor.
E
(2) (a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled by
members chosen by direct election from territorial constituencies
in the National Capital Territory.

F (b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division of
the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters relating
to the functioning of the Legislative Assembly shall be regulated
by law made by Parliament.
G
(c) The provisions of articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative Assembly
of the National Capital Territory and the members thereof as they
apply, in relation to a State, the Legislative Assembly of a State
and the members thereof respectively; and any reference in articles
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 135
& ANOTHER [DIPAK MISRA, CJI]

326 and 329 to “appropriate Legislature” shall be deemed to be a A
reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any
part of the National Capital Territory with respect to any of the
matters enumerated in the State List or in the Concurrent List in B
so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of C
Parliament under this Constitution to make laws with respect to
any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a law
made by Parliament with respect to that matter, whether passed D
before or after the law made by the Legislative Assembly, or of
an earlier law, other than a law made by the Legislative Assembly,
then, in either case, the law made by Parliament, or, as the case
may be, such earlier law, shall prevail and the law made by the
Legislative Assembly shall, to the extent of the repugnancy, be
void: E

Provided that if any such law made by the Legislative
Assembly has been reserved for the consideration of the President
and has received his assent, such law shall prevail in the National
Capital Territory:
F
Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or
repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more
G
than ten per cent, of the total number of members in the Legislative
Assembly, with the Chief Minister at the head to aid and advise
the Lieutenant Governor in the exercise of his functions in relation
to matters with respect to which the Legislative Assembly has

H
136 SUPREME COURT REPORTS [2018] 7 S.C.R.

A power to make laws, except in so far as he is, by or under any
law, required to act in his discretion:
Provided that in the case of difference of opinion between the
Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
B and act according to the decision given thereon by the President
and pending such decision it shall be competent for the Lieutenant
Governor in any case where the matter, in his opinion, is so urgent
that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems
necessary.
C
(5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the advice
of the Chief Minister and the Ministers shall hold office during the
pleasure of the President.
D (6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
E (b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the purposes
of article 368 notwithstanding that it contains any provision which
amends or has the effect of amending, this Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in
F relation to the National Capital Territory, the Lieutenant Governor
and the Legislative Assembly, as they apply in relation to the Union
territory of Puducherry, the administrator and its Legislature,
respectively; and any reference in that article to “clause (1) of
article 239A” shall be deemed to be a reference to this article or
article 239AB, as the case may be.
G
239AB. Provision in case of failure of constitutional
machinery.—If the President, on receipt of a report from the
Lieutenant Governor or otherwise, is satisfied—

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(a) that a situation has arisen in which the administration of the A
National Capital Territory cannot be carried on in accordance
with the provisions of article 239AA or of any law made in
pursuance of that article; or
(b) that for the proper administration of the National Capital
Territory it is necessary or expedient so to do, the President may B
by order suspend the operation of any provision of article 239AA
or of all or any of the provisions of any law made in pursuance of
that article for such period and subject to such conditions as may
be specified in such law and make such incidental and consequential
provisions as may appear to him to be necessary or expedient for
administering the National Capital Territory in accordance with C
the provisions of article 239 and article 239AA.”
[Emphasis supplied]
182. We deem it appropriate to refer to the Statement of Objects
and Reasons for the amendment which reads thus:-
D
“The question of re-organisation of the Administrative set-up in
the Union territory of Delhi has been under the consideration of
the Government for some time. The Government of India appointed
on 24-12-1987 a Committee to go into the various issues connected
with the administration of Delhi and to recommend measures inter
E
alia for the streamlining of the administrative set-up. The
Committee went into the matter in great detail and considered the
issues after holding discussions with various individuals,
associations, political parties and other experts and taking into
account the arrangements in the national Capitals of other countries
with a federal set-up and also the debates in the Constituent F
Assembly as also the reports by earlier Committees and
Commissions. After such detailed inquiry and examination, it
recommended that Delhi should continue to be a Union territory
and provided with a Legislative Assembly and a Council of
Ministers responsible to such Assembly with appropriate powers
G
to deal with matters of concern to the common man. The
Committee also recommended that with a view to ensure stability
and permanence the arrangements should be incorporated in the
Constitution to give the National Capital a special status among
the Union territories.
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138 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 2. The Bill seeks to give effect to the above proposals.”
The aforesaid, as we perceive, really conceives of conferring
special status on Delhi. This fundamental grammar has to be kept in
view when we penetrate into the interpretative dissection of Article
239AA and other articles that are pertinent to understand the said
B provision.
Q. Status of NCT of Delhi:
183. The first proposition that has been built centering around the
conferment of special status on NCT of Delhi is that it is a State for all
purposes except the bar created pertaining to certain legislative matters.
C The bedrock has been structured by placing heavy reliance on the purpose
of the constitutional amendment, the constitutional assurance to the
inhabitants of Delhi and the language employed in sub-article 3(a) of
Article 239AA of the Constitution. We have already referred to the
historical background and also the report submitted by the Balakrishnan
D Committee.
184. Mr. Maninder Singh, learned Additional Solicitor General,
would contend that the aid and assistance of the Committee Report can
be taken into consideration to interpret the constitutional provisions and
also the statutory provisions of the 1991 Act. He has referred to certain
E authorities for the said purpose. We shall refer to the said authorities at
a later stage. First, we think it seemly to advert to the issue whether the
NCT of Delhi can be called a State in the sense in which the Constitution
expects one to understand. The said maze has to be cleared first.
185. We may now focus on the decision in Shamsher Singh
F (supra). The issue centered around the role and the constitutional status
of the President. In that context, it has been held that the President and
the Governor act on the aid and advice of the Council of Ministers and
the Constitution does not stipulate that the President or the Governor
shall act personally without or against the aid and advice of the Council
of Ministers. Further, the Court held that the Governor can act on his
G own accord in matters where he is required to act in his own discretion
as specified in the Constitution and even while exercising the said
discretion, the Governor is required to act in harmony with the Council
of Ministers. We may hasten to add that the President of India, as has
been held in the said case, has a distinguished role on certain occasions.
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We may, in this context, reproduce below certain passages from the A
opinion of Krishna Iyer, J.:-
“The omnipotence of the President and of the Governor at State
level — is euphemistically inscribed in the pages of our
Fundamental Law with the obvious intent that even where express
conferment of power or functions is written into the articles, such B
business has to be disposed of decisively by the Ministry
answerable to the Legislature and through it vicariously to the
people, thus vindicating our democracy instead of surrendering it
to a single summit soul whose deification is incompatible with the
basics of our political architecture — lest national elections become
but Dead Sea fruits, legislative organs become labels full of sound C
and fury signifying nothing and the Council of Ministers put in a
quandary of responsibility to the House of the People and
submission to the personal decision of the head of State. A
Parliamentary-style Republic like ours could not have
conceptualised its self-liquidation by this process. On the contrary, D
democratic capital-formation to strengthen the people’s rights can
be achieved only through invigoration of the mechanism of
Cabinet-House-Elections.
We declare the law of this branch of our Constitution to be that
the President and Governor, custodians of all executive and other E
powers under various articles shall, by virtue of these provisions,
exercise their formal constitutional powers only upon and in
accordance with the advice of their Ministers save in a few well-
known exceptional situations. Without being dogmatic or
exhaustive, these situations relate to (a) the choice of Prime
Minister (Chief Minister), restricted though this choice is by the F
paramount consideration that he should command a majority in
the House; (b) the dismissal of a Government which has lost its
majority in the House, but refuses to quit office; (c) the dissolution
of the House where an appeal to the country is necessitous,
although in this area the head of State should avoid getting involved G
in politics and must be advised by his Prime Minister (Chief
Minister) who will eventually take the responsibility for the step.
We do not examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the action
must be compelled by the peril to democracy and the appeal to
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A the House or to the country must become blatantly obligatory. We
have no doubt that de Smith’s statement regarding royal assent
holds good for the President and Governor in India:
“Refusal of the royal assent on the ground that the Monarch
strongly disapproved of a Bill or that it was intensely
B controversial would nevertheless- be unconstitutional. The only
circumstances in which the withholding of the royal assent
might be justifiable would be if the Government itself were to
advise such a course — a highly improbable contingency —
or possibly if it was notorious that a Bill had been passed in
disregard to mandatory procedural requirements; but since the
C Government in the latter situation would be of the opinion that
the deviation would not affect the validity of the measure once
it had been assented to. prudence would suggest the giving of
assent.”
[Emphasis supplied]
D 186. That apart, A.N. Ray, C.J., in Shamsher Singh (supra), has
stated thus:-
“Article 163(1) states that there shall be a Council of Ministers
with the Chief Minister at the head to aid and advice the Governor
in the exercise of Was functions, except in so far as he is by or
E under this Constitution, required to exercise his functions or any
of them in his discretion. Article 163(2) states that if any question
arises whether any matter is or is not a matter as respects which
the Governor is by or under this Constitution required to act in his
discretion, the decision of the Governor in his discretion shall be
F final and the validity of anything done by the Governor shall not
be called in question on the ground that ought or ought not to have
acted in his discretion. Extracting the words “in his discretion” in
relation to exercise of functions, the appellants contend that the
Council of Ministers may aid and advise the Governor in Executive
functions but the Governor individually and personally in his
G discretion will exercise the constitutional functions of appointment
and removal of officers in State Judicial Service and other State
Services. It is noticeable that though in Article 74 it is stated that
there shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President in the exercise of his
functions, there is no provision in Article 74 comparable to Article
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163 that the aid and advice is except in so far as he is required to A
exercise his functions or any of them in his discretion. It is
necessary to find out as to why the words, in his discretion’ are
used in relation to some powers of the Governor and not in the
case of the President. Article 143 in the Draft Constitution became
Article 163 in the Constitution. The draft constitution in Article
B
144(6) said that the functions of the Governor under Article with
respect to the appointment and dismissal of Ministers shall be
exercised by him in his discretion. Draft Article 144(6) was totally
omitted when Article 144 became Article 164 in the Constitution.
Again Draft Article 153(3) said that the functions of the Governor
under clauses (a) and (c) of clause (2) of the Article shall be C
exercised by him in his discretion. Draft Article 153(3) was totally
omitted when it became Article 174 of our Constitution. Draft
Article 175 (proviso) said that the Governor “may in his discretion
return the Bill together with a message requesting that the House
will reconsider the Bill”. Those words that “the Governor may in
D
his discretion” were omitted when it became Article 200. The
Governor under Article 200 may return the Bill with a message
requesting that the House will reconsider the Bill. Draft Article
188 dealt with provisions in case of grave emergencies, clauses
(1) and (4) in Draft Article 188 used to words “in his discretion in
relation to exercise of power by the Governor. Draft Article 188 E
was totally omitted Draft Article 285(1) and (2) dealing with
composition and staff of Public Service Commission used the
expression “in his discretion” in relation to exercise of power by
the Governor in regard to appointment of the Chairman and
Members and making of regulation. The words “in his discretion”
F
in relation to exercise of power by the Governor were omitted
when it became Article 316. In Paragraph 15 (3) of the Sixth
Schedule dealing with annulment or suspension of acts or
suspension of acts and resolutions of District and Regional Councils
it was said that the functions of the Governor under the Paragraph
shall be exercised by him in his discretion. Sub-paragraph 3 of G
Paragraph 15 of the Sixth Schedule was omitted at the time of
enactment of the Constitution.
It is, therefore, understood in the background of these illustrative
draft articles as to why Article 143 in the Draft Constitution which
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A became Article 163 in our Constitution used the expression “in his
discretion” in regard to some powers of the Governor.”
[Emphasis supplied]
187. Thereafter, A.N. Ray, C.J. discussed the provisions of the
Constitution as well as a couple of paragraphs of the Sixth Schedule
B wherein the words “in his discretion” are used in relation to certain powers
of the Governor to highlight the fact that a Governor can act in his
discretion only when the provisions of the Constitution so permit.
188. In this context, we may refer with profit to the authority in
Devji Vallabhbhai Tandel and others v. Administrator of Goa,
C Damanand Diu and another82.In the said case, the issue that arose
for consideration was whether the role and functions of the Administrator
stipulated under the Union Territories Act, 1963 is similar to those of a
Governor of a State and as such, whether the Administrator has to act
on the “aid and advice” of the Council of Ministers. The Court considered
D the relevant provisions and after comparing the language of Articles 74
and 163 of the Constitution with the language of Section 44 of the Union
Territories Act, 1963, it observed that the Administrator, even in matters
where he is not required to act in his discretion under the Act or where
he is not exercising any judicial or quasi-judicial functions, is not bound
to act according to the advice of the Council of Ministers and the same
E is manifest from the proviso to Section 44(1). The Court went on to
say:-
“It transpires from the proviso that in the event of a difference of
opinion between the Administrator and his Ministers on any matter,
the Administrator shall refer the matter to the President for decision
F and act according to the decision given thereon by the President.
If the President in a given situation agrees with what the
Administrator opines contrary to the advice of the Council the
Administrator would be able to override the advice of the Council
of Ministers and on a reference to the President under the proviso,
obviously the President would not according to the advice of the
G
Council of Ministers given under Article 74. Virtually, therefore,
in the event of a difference of opinion between the Council of
Ministers of the Union territory and the Administrator, the right to
decide would vest in the Union Government and the Council of
Ministers of the Union territory would be bound by the view taken
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by the Union Government. Further, the Administrator enjoys still A
some more power to act in derogation of the advice of the Council
of Ministers. The second limb of the proviso to Section 44(1)
enables the Administrator that in the event of a difference of opinion
between him and the Council of Ministers not only he can refer
the matter to the President but during the interregnum where the
B
matter is in his opinion so urgent that it is necessary for him to
take immediate action, he has the power to take such action or to
give such directions in the matter as he deems necessary. In other
words, during the interregnum he can completely override the
advice of the Council of Ministers and act according to his light.
Neither the Governor nor the President enjoys any such power. C
This basic functional difference in the powers and position enjoyed
by the Governor and the President on the one hand and the
Administrator on the other is so glaring that it is not possible to
hold on the analogy of the decision in Shamsher Singh’s case that
the Administrator is purely a constitutional functionary bound to
D
act on the advice of the Council of Ministers and cannot act on
his own.”
[Emphasis supplied]
189. Be it noted, Devji ValabhbhaiTandel (supra) depicts a pre
Sixty-ninth amendment scenario. On that foundation, it is submitted by
the learned counsel for the appellant to buttress the submission that after E
the amendment, the status of NCT of Delhi is that of State and the role
of the Lieutenant Governor is equivalent to that of the Governor of State
who is bound by the aid and advice of the Council of Ministers.
190. Now, let us allude to the post Sixty-ninth amendment nine-
Judge Bench decision in New Delhi Municipal Corporation (supra) F
wherein B.P. Jeevan Reddy, J., speaking for the majority after taking
note of the rivalised submissions pertaining to “Union Taxation”, referred
to the decisions in Sea Customs Act, Re83 and came to hold thus:-
“152. ... In the year 1991, the Constitution did provide for a
legislature for the Union Territory of Delhi [National Capital G
Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article
239-AA) but even here the legislature so created was not a full-
fledged legislature nor did it have the effect of — assuming that it
could — lift the National Capital Territory of Delhi from Union
Territory category to the category of States within the meaning of H
144 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Chapter I of Part XI of the Constitution. All this necessarily means
that so far as the Union Territories are concerned, there is no
such thing as List I, List II or List III. The only legislative body is
Parliament — or a legislative body created by it. Parliament can
make any law in respect of the said territories — subject, of course,
to constitutional limitations other than those specified in Chapter
B
I of Part XI of the Constitution.”
And again:-
“155. ... it is necessary to remember that all the Union Territories
are not situated alike. There are certain Union territories (i.e.,
C Andaman and Nicobar Islands and Chandigarh) for which there
can be no legislature at all-as on today. There is a second category
of Union Territories covered by Article 239-A (which applied to
Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and
Pondicherry - now, of course, only Pondicherry survives in this
category, the rest having acquired Statehood) which have
D legislatures by courtesy of Parliament. The Parliament can, by
law, provide for Constitution of legislatures for these States and
confer upon these legislatures such powers, as it may think
appropriate. The Parliament had created legislatures for these
Union territories under the “The Government of India Territories
E Act, 1963”, empowering them to make laws with respect to
matters in List-II and List-Ill, but subject to its over-riding power.
The third category is Delhi. It had no legislature with effect from
November 1, 1956 until one has been created under and by virtue
of the Constitution Sixty-Ninth (Amendment) Act, 1991 which
introduced Article 239-AA. We have already dealt with the special
F features of Article 239-AA and need not repeat it. Indeed, a
reference to Article 239-B read with Clause (8) of Article 239-
AA shows how the Union Territory of Delhi is in a class by itself
but is certainly not a State within the meaning of Article 246 or
Part-VI of the Constitution. In sum, it is also a territory governed
G by Clause (4) of Article 246. ...”
[Emphasis supplied]
191. Thus, New Delhi Municipal Corporation (supra) makes it
clear as crystal that all Union Territories under our constitutional scheme
are not on the same pedestal and as far as the NCT of Delhi is concerned,
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it is not a State within the meaning of Article 246 or Part- VI of the A
Constitution. Though the NCT of Delhi partakes a unique position after
the Sixty- Ninth Amendment, yet in sum and substance, it remains a
Union Territory which is governed by Article 246(4) of the Constitution
and to which the Parliament, in the exercise of its constituent power, has
given the appellation of the ‘National Capital Territory of Delhi’.
B
192. For ascertaining the binding nature of aid and advice upon
the President and the Governor on one hand and upon the Lieutenant
Governor of Delhi on the other, let us conduct a comparative analysis of
the language employed in Articles 74 and 163 on one hand and Article
239AA on the other. For this purpose, we may reproduce Articles 74
and 163 which read thus:- C

“74. Council of Ministers to aid and advise President
(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice: D
Provided that the President may require the council of Ministers
to reconsider such advice, either generally or otherwise, and the
President shall act in accordance with the advice tendered after
such reconsideration.
(2) The question whether any, and if so what, advice was tendered E
by Ministers to the President shall not be inquired into in any court.
163. Council of Ministers to aid and advise Governor’s
(1) There shall be a council of Ministers with the chief Minister at
the head to aid and advise the Governor in the exercise of his
F
functions, except in so far as he is by or under this constitution
required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the G
Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered
by Ministers to the Governor shall not be inquired into in any court.”
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A 193. It is vivid from Article 74 that the President is always bound
by the aid and advice of the Union Council of Ministers except a few
well known situations which are guided by constitutional conventions.
The Constitution, however, does not lay down any express provision
which allows the President to act as per his discretion.
B 194. The Governor of a State, as per Article 163, is bound by the
aid and advice of his Council of Ministers in the exercise of his functions
except where he is, by or under the Constitution, required to exercise his
functions or any of them in his discretion. Thus, the Governor may act in
his discretion only if he is so permitted by an express provision of the
Constitution.
C
195. As far as the Lieutenant Governor of Delhi is concerned, as
per Article 239AA(4), he is bound by the aid and advice of his Council
of Ministers in matters for which the Delhi Legislative Assembly has
legislative powers. However, this is subject to the proviso contained in
Clause (4) of Article 239AA which gives the power to the Lieutenant
D Governor that in case of any difference between him and his Ministers,
he shall refer the same to the President for a binding decision. This
proviso to clause (4) has retained the powers for the Union even over
matters falling within the legislative domain of the Delhi Assembly. This
overriding power of the Union to legislate qua other Union Territories is
E exposited under Article 246(4).
196. In the light of the aforesaid analysis and the ruling of the
nine-Judge Bench in New Delhi Municipal Corporation (supra), it is
clear as noon day that by no stretch of imagination, NCT of Delhi can be
accorded the status of a State under our present constitutional scheme
F and the status of the Lieutenant Governor of Delhi is not that of a
Governor of a State, rather he remains an Administrator, in a limited
sense, working with the designation of Lieutenant Governor.
R. Executive power of the Council of Ministers of Delhi:
197. We may note here that there is a serious contest with regard
G to the appreciation and interpretation of Article 239AA and Chapter
VIII where it occurs. The learned counsel for the appellant would submit
that the Government of NCT of Delhi has been conferred the executive
power that co-exists with its legislative power and the role of the
Lieutenant Governor is controlled by the phrase ‘aid and advice’ of the
Council of Ministers. The learned counsel for the respondents would
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 147
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submit with equal force that the Lieutenant Governor functions as the A
administrator of NCT of Delhi and the constitutional amendment has not
diminished his administrative authority.
198. Analysing the provision, it is submitted by Dr. Dhawan and
other senior counsel that the Government of Delhi is empowered under
the Constitution to aid and advise the Lieutenant Governor in the exercise B
of its functions in relation to matters in respect of which the Delhi
Legislative Assembly has the legislative power to make laws and the
said aid and advice is binding on the Lieutenant Governor. Commenting
on the proviso, it is earnestly canvassed that the words ‘difference on
any matter’ has to be restricted to the field of any legislation or, at best,
the difference in relation to the three excepted matters. For the said C
argument, inspiration has been drawn from Articles 73 and 163 of the
Constitution. Elaborating the argument, it is contended that the reference
of the matter to the President is made where there is doubt as to whether
the aid and advice touches the realm of the excepted entries as stipulated
under Article 239AA(3)(a) and nothing beyond. To buttress the point, D
heavy reliance has been laid on Ram Jawaya Kapur (supra) wherein
the Court, while interpreting the provisions of Article 162 of the
Constitution and delineating on the issue of the extent of the executive
powers of the State, observed:-
“7. Article 73 of the Constitution relates to the executive powers E
of the Union, while the corresponding provision in regard to the
executive powers of a State is contained in article 162. The
provisions of these articles are analogous to those of section 8
and 49 respectively of the Government of India Act, 1935 and lay
down the rule of distribution of executive powers between the
Union and the States, following the same analogy as is provided F
in regard to the distribution of legislative powers between them.
Article 162, with which we are directly concerned in this case,
lays down :
“Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to G
which the Legislature of the State has power to make laws :
Provided that in any matter with respect to which the Legislature
of a State and Parliament have power to make laws, the
executive power of the State shall be subject to, and limited by,
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A the executive power expressly conferred by this Constitution
or by any law made by Parliament upon the Union or authorities
thereof.”
Thus under this article the executive authority of the State is
exclusive in respect to matters enumerated in List II of Seventh
B Schedule. The authority also extends to the Concurrent List
except as provided in the Constitution itself or in any law passed
by the Parliament. Similarly, article 73 provides that the
executive powers of the Union shall extend to matters with
respect to which the Parliament has power to make laws and
to the exercise of such rights, authority and jurisdiction as are
C exercisable by the Government of India by virtue of any treaty
or any agreement. The proviso engrafted on clause (1) further
lays down that although with regard to the matters in the
Concurrent List the executive authority shall be ordinarily left
to be State it would be open to the Parliament to provide that in
D exceptional cases the executive power of the Union shall extend
to these matters also.
Neither of these articles contains any definition as to what the
executive function is and what activities would legitimately
come within its scope. They are concerned primarily with the
E distribution of the executive power between the Union on the
one hand and the States on the other. They do not mean, as
Mr. Pathak seems to suggest, that it is only when the Parliament
or the State Legislature has legislated on certain items
appertaining to their respective lists, that the Union or the State
executive, as the case may be, can proceed to function in
F respect to them. On the other hand, the language of article 162
clearly indicates that the powers of the State executive do
extend to matters upon which the state Legislature is competent
to legislate and are not confined to matters over which
legislation has been passed already. The same principle
G underlies article 73 of the Constitution...”
[Underlining is ours]
199. Drawing an analogy while interpreting the provisions of Article
239AA(3)(a) and Article 239AA(4) would reveal that the executive
power of the Government of NCT of Delhi is conterminous with the
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legislative power of the Delhi Legislative Assembly which is envisaged A
in Article 239AA(3) and which extends over all but three subjects in the
State List and all subjects in the Concurrent List and, thus, Article
239AA(4) confers executive power on the Council of Ministers over all
those subjects for which the Delhi Legislative Assembly has legislative
power.
B
200. The legislative power conferred upon the Delhi Legislative
Assembly is to give effect to legislative enactments as per the needs
and requirements of Delhi whereas the executive power is conferred on
the executive to implement certain policy decisions. This view is also
strengthened by the fact that after the Seventh Amendment of the
Constitution by which the words ‘Part C States’ were substituted by the C
words ‘Union Territories’, the word ‘State’ in the proviso to Article 73
cannot be read to mean Union Territory as such an interpretation would
render the scheme and purpose of Part VIII (Union Territories) of the
Constitution infructuous.
S. Essence of Article 239AA of the Constitution: D

201. It is perceptible that the constitutional amendment conceives
of conferring special status on Delhi. This has to be kept in view while
interpreting Article 239AA. Both the Statement of Objects and Reasons
and the Balakrishnan Committee Report, the relevant extracts of which
we have already reproduced in the earlier part of this judgment, serve as E
an enacting history and corpus of public knowledge relative to the
introduction of Articles 239AA and 239AB and would be handy external
aids for construing Article 239AA and unearthing the real intention of
the Parliament while exercising its constituent power.
202. At the outset, we must declare that the insertion of Articles F
239AA and 239AB which specifically pertain to NCT of Delhi is
reflective of the intention of the Parliament to accord Delhi a sui generis
status from the other Union Territories as well as from the Union Territory
of Puducherry to which Article 239A is singularly applicable as on date.
The same has been authoritatively held by the majority judgment in the G
New Delhi Municipal Corporation case to the effect that the NCT of
Delhi is a class by itself.
203. The Legislative Assembly, Council of Ministers and the
Westminster style cabinet system of government brought by the Sixty-
ninth amendment highlight the uniqueness attributed to Delhi with the
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A aim that the residents of Delhi have a larger say in how Delhi is to be
governed. The real purpose behind the Constitution (Sixty-ninth
Amendment) Act, 1991, as we perceive, is to establish a democratic
setup and representative form of government wherein the majority has
a right to embody their opinion in laws and policies pertaining to the
NCT of Delhi subject to the limitations imposed by the Constitution. For
B
paving the way to realize this real purpose, it is necessary that we give a
purposive interpretation to Article 239AA so that the principles of
democracy and federalism which are part of the basic structure of our
Constitution are reinforced in NCT of Delhi in their truest sense.
204. The exercise of establishing a democratic and representative
C form of government for NCT of Delhi by insertion of Articles 239AA
and 239AB would turn futile if the Government of Delhi that enjoys the
confidence of the people of Delhi is not able to usher in policies and laws
over which the Delhi Legislative Assembly has power to legislate for
the NCT of Delhi.
D 205. Further, the Statement of Objects and Reasons for the
Constitution (Seventy-fourth Amendment) Bill, 1991 which was enacted
as the Constitution (Sixty-ninth Amendment) Act, 1991 also lends support
to our view as it clearly stipulates that in order to confer a special status
upon the National Capital, arrangements should be incorporated in the
E Constitution itself.
206. We may presently carefully peruse each clause of Article
239AA for construing the meaning. A cursory reading of clause (1) of
Article 239AA shows that on 1st February, 1992, the Union Territory of
Delhi was renamed as the National Capital Territory of Delhi and it was
F to be administered by a Lieutenant Governor from the date of coming
into force of the Sixty-ninth Amendment Act.
207. Sub-clause (a) of clause (2) specifies that the National Capital
Territory of Delhi shall have a Legislative Assembly, the seats of which
shall be filled by members chosen by direct election from territorial
G constituencies in the National Capital Territory of Delhi. Sub--clause (b)
of clause (2) stipulates that the total number of seats in the Legislative
Assembly of the National Capital Territory of Delhi so established under
sub-clause (a), the number of seats reserved for Scheduled Castes in
the said Legislative Assembly, the division of the National Capital Territory

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of Delhi into territorial constituencies (including the basis for such division) A
and all other matters relating to the functioning of the said Legislative
Assembly shall be regulated by law made by Parliament. Thereafter,
sub-clause (c) of clause (2) simply provides that the provisions of Articles
324 to 327 and 329 which pertain to elections and fall under Part XV of
the Constitution shall also apply to the National Capital Territory of Delhi,
B
its Legislative Assembly and the members thereof in the same manner
as the said provisions apply to the States. Further, sub--clause (c) provides
that the phrase “appropriate legislature” in Articles 326 and 329 shall, in
the context of the National Capital Territory of Delhi, mean the Parliament.
208. We must note here the stark difference in the language of
Article 239A clause (1) and that of Article 239AA clause (2). Article C
239A clause (1) uses the word ‘may’ which makes it a mere directory
provision with no obligatory force. Article 239A gives discretion to the
Parliament to create by law for the Union Territory of Puducherry a
Council of Ministers and/or a body which may either be wholly elected
or partly elected and partly nominated to perform the functions of a D
Legislature for the Union Territory of Puducherry.
209. On the other hand, Article 239AA clause (2), by using the
word ‘shall’, makes it mandatory for the Parliament to create by law a
Legislative Assembly for the National Capital Territory of Delhi. Further,
sub-clause (a) of clause (2) declares very categorically that the members E
of the Legislative Assembly of the National Capital Territory of Delhi
shall be chosen by direct election from the territorial constituencies in
the National Capital Territory of Delhi. Unlike Article 239A clause (1)
wherein the body created by the Parliament by law to perform the
functions of a Legislature for the Union Territory of Puducherry may
either be wholly elected or partly elected and partly nominated, there is F
no such provision in the context of the Legislative Assembly of the NCT
of Delhi as per which members can be nominated to the Legislative
Assembly. This was a deliberate design by the Parliament.
210. We have highlighted this difference to underscore and
emphasize the intention of the Parliament, while inserting Article 239AA G
in the exercise of its constituent power, to treat the Legislative Assembly
of the National Capital Territory of Delhi as a set of elected
representatives of the voters of the NCT of Delhi and to treat the
government of the NCT of Delhi as a representative form of government.
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A 211. The Legislative Assembly is wholly comprised of elected
representatives who are chosen by direct elections and are sent to Delhi’s
Legislative Assembly by the voters of Delhi. None of the members of
Delhi’s Legislative Assembly are nominated. The elected representatives
and the Council of Ministers of Delhi, being accountable to the voters of
Delhi, must have the appropriate powers so as to perform their functions
B
effectively and efficiently. This is also discernible from the Balakrishnan
Committee Report which recommended that though Delhi should continue
to be a Union Territory, yet it should be 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.
C 212. Sub-clause (a) of clause (3) of Article 239AA establishes
the power of the Delhi Legislative Assembly to enact laws for the NCT
of Delhi with respect to matters enumerated in the State List and/or
Concurrent list except in so far as matters with respect to and which
relate to entries 1, 2 and 18 of the State List.
D 213. Sub-clause (b) of clause (3) lays down that the Parliament
has the powers to make laws with respect to any matter for a Union
Territory including the NCT of Delhi or any part thereof and sub-clause
(a) shall not derogate such powers of the Parliament. Sub-clause (c) of
clause (3) gives the Parliament the overriding power to the effect that
E where any provision of any law made by the Legislative Assembly of
Delhi is repugnant to any provision of law made by the Parliament, then
the law made by the Parliament shall prevail and the law made by the
Delhi Legislative Assembly shall be void to the extent of repugnancy.
214. Thus, it is evident from clause (3) of Article 239AA that the
F Parliament has the power to make laws for the NCT of Delhi on any of
the matters enumerated in the State List and the Concurrent List and at
the same time, the Legislative Assembly of Delhi also has the legislative
power with respect to matters enumerated in the State List and the
Concurrent List except matters with respect to entries which have been
explicitly excluded from Article 239AA(3)(a).
G
215. Now, it is essential to analyse clause (4) of Article 239AA,
the most important provision for determination of the controversy at
hand. Clause (4) stipulates a Westminster style cabinet system of
government for the NCT of Delhi where there shall be a Council of
Ministers with the Chief Minister at the head to aid and advise the
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Lieutenant Governor in the exercise of his functions in relation to maters A
with respect to which the Delhi Legislative Assembly has power to enact
laws except in matters in respect of which the Lieutenant Governor is
required to act in his discretion.
216. The proviso to clause (4) stipulates that in case of a difference
of opinion on any matter between the Lieutenant Governor and his B
Ministers, the Lieutenant Governor shall refer it to the President for a
binding decision. Further, pending such decision by the President, in any
case where the matter, in the opinion of the Lieutenant Governor, is so
urgent that it is necessary for him to take immediate action, the proviso
makes him competent to take such action and issue such directions as
he deems necessary. C

217. A conjoint reading of Article 239AA (3) (a) and Article
239AA(4) reveals that the executive power of the Government of NCT
of Delhi is co-extensive with the legislative power of the Delhi Legislative
Assembly which is envisaged in Article 239AA(3) and which extends
over all but three subjects in the State List and all subjects in the D
Concurrent List and, thus, Article 239AA(4) confers executive power
on the Council of Ministers over all those subjects for which the Delhi
Legislative Assembly has legislative power.
218. Article 239AA(3)(a) reserves the Parliament’s legislative
power on all matters in the State list and Concurrent list, but clause (4) E
nowhere reserves the executive powers of the Union with respect to
such matters. On the contrary, clause (4) explicitly grants to the
Government of Delhi executive powers in relation to matters for which
the Legislative Assembly has power to legislate. The legislative power
is conferred upon the Assembly to enact whereas the policy of the F
legislation has to be given effect to by the executive for which the
Government of Delhi has to have co-extensive executive powers. Such
a view is in consonance with the observation in the case of Ram Jawaya
Kapur (supra) which has been discussed elaborately in the earlier part
of the judgment.
G
219. Article 239AA(4) confers executive powers on the
Government of NCT of Delhi whereas the executive power of the Union
stems from Article 73 and is co-extensive with the Parliament’s legislative
power. Further, the ideas of pragmatic federalism and collaborative
federalism will fall to the ground if we are to say that the Union has
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154 SUPREME COURT REPORTS [2018] 7 S.C.R.

A overriding executive powers even in respect of matters for which the
Delhi Legislative Assembly has legislative powers. Thus, it can be very
well said that the executive power of the Union in respect of NCT of
Delhi is confined to the three matters in the State List for which the
legislative power of the Delhi Legislative Assembly has been excluded
under Article 239 AA (3) (a). Such an interpretation would thwart any
B
attempt on the part of the Union Government to seize all control and
allow the concepts of pragmatic federalism and federal balance to prevail
by giving the NCT of Delhi some degree of required independence in its
functioning subject to the limitations imposed by the Constitution.
220. Another important aspect is the interpretation of the phrase
C ‘aid and advise’ in Article 239AA(4). While so interpreting, the authorities
in Shamsher Singh (supra) and Devji Ballabhbhai Tandel (supra)
have to be kept in mind. Krishna Iyer, J., in Shamsher Singh (supra),
has categorically held that the President and the Governor, being
custodians of all executive powers, shall act only upon and in accordance
D with the aid and advice of their Ministers save in a few well known
exceptional situations. Devji Ballabhbhai Tandel (supra), on the other
hand, has observed that there is a functional difference in the powers
and the position enjoyed by the President and Governor on one hand and
the Administrator on the other hand. It has also been observed that it is
not possible to hold to the view laid down in Shamsher Singh (supra) in
E the context of Governor and President to mean that the Administrator is
also purely a constitutional functionary who is bound to act on the ‘aid
and advice’ of the Council of Ministers and cannot act on his own.
221. It is necessary to note with immediacy that Devji Ballabhbhai
Tandel (supra) represents a pre¯Sixty-ninth Amendment view and that
F too in the context of a Union Territory which does not have a unique
position as the NCT of Delhi does. Presently, the scheme of Article
239AA(4) is different. It requires the Lieutenant Governor to act as per
the ‘aid and advice’ of the Council of Ministers with respect to all matters
for which the Legislative Assembly of Delhi has the power to enact
G laws except what has been stated in the proviso which requires a
thoughtful interpretation.
222. The language employed in the proviso has to be understood
keeping in view the concepts which we have elaborately adumbrated
hereinbefore. As noted earlier, the submission of the learned counsel for
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 155
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the appellant is that the Lieutenant Governor can only exercise the power A
or take refuge to the proviso to Article 239AA(4) where the said ‘aid
and advice’ of the Council of Ministers transgresses the area
constitutionally prescribed to them by virtue of Article 239AA(3)(a).
223. We may note here that a narrow or restricted meaning in
respect of the words, namely, “on any matter” as is suggested by the B
appellant, takes away the basic concept of interpretative process, for
the said expression does not remotely convey that it is confined to the
excepted legislative fields. Similarly, a broad or unrestricted interpretation
of the term to include every difference would obstruct the idealistic smooth
stream of governance. Therefore, the Court has the duty to place such
a meaning or interpretation on the phrase that is workable and the need C
is to establish the norm of fine constitutional balance.
224. The counsel for the respondents has sought to impress upon
this Court that the term “any” occurring in the proviso to clause (4) of
Article 239AA should be given widest import in order to include everything
within its ambit and for the said purpose, reliance has been placed upon D
Tej Kiran (supra). It has been highlighted in the earlier part of this
judgment that while interpreting a constitutional provision and construing
the meaning of specific word(s) occurring in a constitutional provision,
the Court must read the same in the context in which the word(s) occurs
by referring to the annexing words of the said provision and also bearing
in mind the concepts that we have adverted to. As regards the importance E
of context while deciphering the true meaning and importation of a term,
Austin has made the following observations:-
“When I see the word “any” in a statute, I immediately know it’s
unlikely to mean “anything” in the universe. Any” will have a
limitation on it, depending on the context. When my wife says, F
“there isn’t any butter.” I understand that she’s talking about what
is in our refrigerator, not worldwide. We look at context over and
over, in life and in law.”84
225. In this context, the observations made in the case of Small
v. United States85 are relevant to be noted:- G
“The question before us is whether the statutory reference
“convicted in any court” includes a conviction entered in a foreign
84 J.L Austin, How to do things with words, The William James Lectures delivered at
Harvard University 1955
85 544 U.S. 385 (2005) H
156 SUPREME COURT REPORTS [2018] 7 S.C.R.

A court. The word “any” considered alone cannot answer this
question. In ordinary life, a speaker who says, “I’ll see any film,”
may or may not mean to include films shown in another city. In
law a legislature that uses the statutory phrase “‘any person’”
may or may not mean to include “‘persons’” outside “the
jurisdiction of the state.”
B
226. Further, words of wide import must be construed by placing
reliance upon the intention with which the said words have been used.
Elucidating the importance of intention, Marshall, C.J. of the Supreme
Court of U.S. in the case of United States v. Palmer86 observed:-
C “The words “any person or persons” are broad enough to
comprehend every human being. But general words must not only
be limited to cases within the jurisdiction of the state, but also to
those objects to which the legislature intended to apply them. Did
the legislature intend to apply these words to the subjects of a
foreign power who in a foreign ship may commit murder or robbery
D on the high seas?
The 8th section also commences with the words “any person or
persons.” But these words must be limited in some degree, and
the intent of the legislature will determine the extent of this limitation.
For this intent we must examine the law”.”
E
227. At home, it has also been acknowledged that the word ‘any’
can have different meanings depending on the context in which it has
been used and the Courts must not mechanically interpret it to mean
‘everything’. In Shri Balaganesan Metals v. M.N. Shanmugham
Chetty and others87, this Court has observed:-
F
“The word “any” has the following meaning:-
Some; one out of many; an indefinite number. One indiscriminately
of whatever kind or quantity.”
Word “any” has a diversity of meaning and may be employed to
G indicate “all” or “every” as well as “some” or “one” and its meaning
in a given statute depends upon the context and the subject matter
of the statute.”
86
16 U.S. 3 Wheat .610610(1818)
87
(1987) 2 SCC 707
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It is often synonymous with “either”, “every” or “all”. Its generality A
may be restricted by context; (Black’s Law Dictionary; Fifth
Edition).”
228. In Kihoto Hollohan v. Zachillhu and others88, the Court
has stated:-
“...the words “any direction” would cost it its constitutionality’ B
does not commend to us. But we approve the conclusion that
these words require to be construed harmoniously with the other
provisions and appropriately confined to the objects and purposes
of the Tenth Schedule. Those objects and purposes define and
limit the contours of its meaning. The assignment of a limited C
meaning is not to read it down to promote its constitutionality but
because such a construction is a harmonious construction in the
context. There is no justification to give the words the wider
meaning.”
229. In A.V.S. Narasimha Rao and Ors. v. The State of Andhra D
Pradesh and another89, while interpreting the expressions “any law”
and “any requirement”, the Court has refused to give a wide import to
the said phrases. The observations in that regard read thus:-
“The words ‘any requirement’ cannot be read to warrant something
which could have been said more specifically. These words bear E
upon the kind of residence or its duration rather than its location
within the State. We accept the argument of Mr. Gupte that the
Constitution, as it stands, speaks of a whole State as the venue
for residential qualification and it is impossible to think that the
Constituent Assembly was thinking of residence in Districts,
Taluqas, cities, towns or villages. The fact that this clause is an F
exception and came as an amendment must dictate that a narrow
construction upon the exception should be placed as indeed the
debates in the Constituent Assembly also seem to indicate. We
accordingly reject the contention of Mr. Setalvad seeking to put a
very wide and liberal construction upon the words ‘any law’ and G
any requirement’. These words are obviously controlled by the
words ‘residence within the State or Union territory’ which words
mean what they say, neither more nor less. It follows, therefore,

88
AIR 1993 SC 412
89
(1969) 1 SCC 839 H
158 SUPREME COURT REPORTS [2018] 7 S.C.R.

A that Section 3 of the Public Employment (Requirement as to
Residence) Act, 1957, in so far as it relates to Telengana (and we
say nothing about the other parts) and Rule 3 of the Rules under
it are ultra vires the Constitution.”
230. To lend support to this view, we can refer to the observations
B made by Lindley LJ in Warburton v. Huddersfield Industrial Society90
wherein he has stated:-
“I cannot myself avoid coming to the conclusion that ‘any lawful purpose’
in sub-s (7) means any lawful purpose which is consistent with the rules.
It cannot mean anything inconsistent with the rules...can it mean ‘any
C lawful purpose’ under the sun’, or is it ‘any lawful purpose of the society?
If you look at the context, that which precedes and that which follows, I
do not think ‘anybody, certainly (I do not think any lawyer would construe
any lawful purpose, in the wide way in which Mr Cohen invites us to
construe it.”
D 231. That apart, the Court in Workmen of Dimakuchi Tea Estate
v. The Management of Dimakuchi Tea Estate91 held:-
“A little careful consideration will show, however, that the
expression “any person” occurring in the third part of the definition
clause cannot mean anybody and everybody in this wide world.
E First of all. the subject matter of dispute must relate to (i)
employment or non-employment or (ii) terms of employment or
conditions of labour of any person; these necessarily import a
limitation in the sense that a person in respect of whom the
employer- employee relation never existed or can never possibly
exist cannot be the subject matter of a dispute between employers
F and workmen. Secondly, the definition clause must be read in the
context of the subject matter and scheme of the Act, and
consistently with the objects and other provisions of the Act.”
232. From the foregoing discussion, it is clear that the words ‘any
matter’ occurring in the proviso to Article 239AA(4) does not necessarily
G need to be construed to mean ‘every matter’. As highlighted in the
authorities referred to hereinabove, the word ‘any’ occurring in a statute
or constitutional provision is not to be mechanically read to mean ‘every’
and the context in which the word has been used must be given due
90
(1892) 1 QB 817, PP 821-22
H 91
AIR 1958 SC 353
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 159
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weightage so as to deduce the real intention and purpose in which the A
word has been used.
233. It has to be clearly understood that though ‘any’ may not
mean ‘every’, yet how it should be understood is extremely significant.
Let us elaborate. The power given to the Lieutenant Governor under the
proviso to Article 239AA(4) contains the rule of exception and should B
not be treated as a general norm. The Lieutenant Governor is to act with
constitutional objectivity keeping in view the high degree of constitutional
trust reposed in him while exercising the special power ordained upon
him unlike the Governor and the President who are bound by the aid and
advice of their Ministers. The Lieutenant Governor need not, in a
mechanical manner, refer every decision of his Ministers to the President. C
He has to be guided by the concept of constitutional morality. There has
to be some valid grounds for the Lieutenant Governor to refer the decision
of the Council of Ministers to the President in order to protect the interest
of the NCT of Delhi and the principle of constitutionalism. As per the
1991 Act and Rules of Business, he has to be apprised of every decision D
taken by the Council of Ministers. He cannot change the decision. That
apart, there is no provision for concurrence. He has the authority to
differ. But it cannot be difference for the sake of difference. It cannot
be mechanical or in a routine matter. The power has been conferred to
guide, discuss and see that the administration runs for the welfare of the
people and also NCT of Delhi that has been given a special status. E
Therefore, the word ‘any’ has to be understood treating as a guidance
meant for the constitutional authority. He must bear in mind the
constitutional objectivity, the needed advice and the realities.
234. The proviso to Article 239AA(4), we say without any fear of
contradiction, cannot be interpreted in a strict sense of the mere words F
employed treating them as only letters without paying heed to the thought
and the spirit which they intend to convey. They are not to be treated as
bones and flesh without nerves and neurons that make the nerves
functional. We feel, it is necessary in the context to read the words of
the provision in the spirit of citizenry participation in the governance of a G
democratic polity that is republican in character. We may hasten to add
that when we say so, it should not be construed that there is allowance
of enormous entry of judicial creativity, for the construction one intends
to place has its plinth and platform on the Preamble and precedents

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

A pertaining to constitutional interpretation and purposive interpretation
keeping in view the conception of sense and spirit of the Constitution. It
is, in a way, exposition of judicial sensibility to the functionalism of the
Constitution. And we call it constitutional pragmatism.
235. The authorities in power should constantly remind themselves
B that they are constitutional functionaries and they have the responsibility
to ensure that the fundamental purpose of administration is the welfare
of the people in an ethical manner. There is requirement of discussion
and deliberation. The fine nuances are to be dwelled upon with mutual
respect. Neither of the authorities should feel that they have been lionized.
They should feel that they are serving the constitutional norms, values
C and concepts.
236. Interpretation cannot ignore the conscience of the Constitution.
That apart, when we take a broader view, we are also alive to the
consequence of such an interpretation. If the expressions “in case of
difference” and “on any matter” are construed to mean that the Lieutenant
D Governor can differ on any proposal, the expectation of the people which
has its legitimacy in a democratic set up, although different from States
as understood under the Constitution, will lose its purpose in simple
semantics. The essence and purpose should not be lost in grammar like
the philosophy of geometry cannot be allowed to lose its universal
E metaphysics in the methods of drawing. And that is why, we deliberated
upon many a concept. Thus, the Administrator, as per the Rules of
Business, has to be apprised of each decision taken by a Minister or
Council of Ministers, but that does not mean that the Lieutenant Governor
should raise an issue in every matter. The difference of opinion must
meet the standards of constitutional trust and morality, the principle of
F collaborative federalism and constitutional balance, the concept of
constitutional governance and objectivity and the nurtured and cultivated
idea of respect for a representative government. The difference of
opinion should never be based on the perception of “right to differ” and
similarly the term “on any matter” should not be put on such a platform
G as to conceive that as one can differ, it should be a norm on each occasion.
The difference must meet the concept of constitutional trust reposed in
the authority and there has to be objective assessment of the decision
that is sent for communication and further the rationale of difference of
opinion should be demonstrable and it should contain sound reason. There

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should not be exposition of the phenomenon of an obstructionist but A
reflection of the philosophy of affirmative constructionism and a visionary.
The constitutional amendment does not perceive a situation of constant
friction and difference which gradually builds a structure of conflict. At
the same time, the Council of Ministers being headed by the Chief Minister
should be guided by values and prudence accepting the constitutional
B
position that the NCT of Delhi is not a State.
T. The Government of National Capital Territory of Delhi Act,
1991 and the Transaction of Business of the Government
of National Capital Territory of Delhi Rules, 1993
237. Our attention, in the course of the proceedings, has also been C
drawn to the Government of National Capital Territory of Delhi Act,
1991 (for brevity, “the 1991 Act’) which came into force with effect
from 2nd January, 1992. The 1991 Act was enacted by the Parliament by
virtue of the power conferred upon it by clause (7)(a) of Article 239AA.
We think it appropriate to refer to the Statement of Objects and Reasons
of the said enactment. It is as follows:- D

“STATEMENT OF OBJECTS AND REASONS
Under the new article 239-AA proposed to be inserted by the
Constitution (Seventy-fourth Amendment) Bill, 1991, a Legislative
Assembly and Council of Ministers will be established for the E
National Territory. Clause (7) (a) of the said article provides that
Parliament may by law make provisions for giving effect to or
supplementing the provisions contained in that article and for all
that matters incidental or consequential thereto.
2. In pursuance of the said clause, this bill seeks necessary provisions F
in respect of the legislative Assembly and its functioning including
the provisions relating to the Speaker, Deputy Speaker,
qualifications or disqualifications for membership, duration,
summoning, prorogation or dissolution of the House privileges,
legislative procedures, procedure in financial matters, adders by
the Lieutenant Governor to the Legislative Assembly, constitution G
of Consolidated Fund for the National Capital Territory,
Contingency Fund. etc. These are on the; lines of the provisions
made in respect of a legislative Assembly of a State with suitable
modifications.
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162 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 3. Under the bill the delimitation of constituencies will be made by
the Election Commission in accordance with the Procedure set
out therein. Having regard to the special conditions prevailing in
Delhi, it has been provided that in respect of the frost constitution
of the Assembly, such delimitation will be on the basis of provisional
figures of population in relation to 1991 census, if final figures of
B
population in relation to 1991 census, if final figures have not been
published by them.
4. The Bill seeks to give effect to the above proposals.”
238. From the aforesaid, it is clear as crystal that the 1991 Act
C was conceived to be brought into existence for supplementing the
constitutional provision and also to take care of incidental matters that
are germane to Article 239AA.
239. Upon scanning the anatomy of the 1991 Act, we find that
the Act contains fifty six Sections and is divided into five Parts, each
D dealing with different fields. Now, we may refer to some of the provisions
contained in Part IV of the 1991 Act titled ‘Certain Provisions relating to
Lieutenant Governor and Ministers’ which are relevant to the case at
hand. Section 41 deals with matters in which the Lieutenant Governor
may act in his discretion and reads thus:-

E “Section 41- Matters in which Lieutenant Governor to act
in his discretion.-(l) The Lieutenant Governor shall act in his
discretion in a matter-
(i) which falls outside the purview of the powers conferred on
the Legislative Assembly but in respect of which powers or
F functions are entrusted or delegated to him by the President;
or
(ii) in which he is required by or under any law to act in his discretion
or to exercise any judicial or quasi-judicial functions.
(2) If any question arises as to whether any matter is or is not a
G matter as respects which the Lieutenant Governor is by or under
any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final.
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is required by
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any law to exercise any judicial or quasi- judicial functions, the A
decision of the Lieutenant Governor thereon shall be final.”
240. A careful perusal of Section 41 of the 1991 Act shows that
the Lieutenant Governor can act in his discretion only in matters which
fall outside the legislative competence of the Legislative Assembly of
Delhi or in respect of matters of which powers are entrusted or delegated B
to him by the President or where he is required by law to act in his
discretion or to exercise any judicial or quasi-judicial functions and,
therefore, it is clear that the Lieutenant Governor cannot exercise his
discretion in each and every matter and by and large, his discretionary
powers are limited to the three matters over which the legislative power
of the Delhi Legislative Assembly stand excluded by clause (3)(a) of C
Article 239AA.
241. Section 42 deals with the aid and advice tendered by the
Council of Ministers to the Lieutenant Governor and reads as under:-
“Section 42 Advice by Ministers:-The question whether any. D
and if so what, advice was tendered by Ministers to the Lieutenant
Governor shall not be inquired into in any court.”
242. The wordings and phraseology of Section 42 of the 1991 Act
is identical to that of clause (2) of Article 74 of the Constitution which
also is an indication that the expression ‘aid and advice’ should receive a E
uniform interpretation subject to other constitutional provisions in the
form of the proviso to clause (4) of Article 239AA of the Constitution of
India. In other words, the ‘aid and advice’ given by the Council of
Ministers is binding on the Lieutenant Governor so long as the Lieutenant
Governor does not exercise the power conferred upon him by the proviso
to clause (4) of Article 239AA and refer the matter to the President in F
exercise of that power for his ultimate binding decision.
243. Section 44 that deals with the conduct of business in the
NCT of Delhi reads thus:-
“Section 44 Conduct of business.—(1) the President shall make
G
rules -
(a) for the allocation of business to the Ministers in so far as it is
business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of
Ministers; and
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164 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (b) for the more convenient transaction of business with the
Ministers, including the procedure to be adopted in the case
of a difference of opinion between the Lieutenant Governor
and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of
B the Lieutenant Governor whether taken on the advice of his
Ministers or otherwise shall be expressed to be taken in the name
of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name
of the Lieutenant Governor shall be authenticated in such manner
as may be specified in rules to be made by the Lieutenant Governor
C and the validity of an order or instrument which is so authenticated
shall not be called in question on the ground that it is not an order
or instrument made or executed by the Lieutenant Governor.”
244. Section 44 of the 1991 Act has made it mandatory for the
President to frame rules for the allocation of business to the Ministers
D and also the procedure to be adopted in case of a difference of opinion
between the Lieutenant Governor and the Council of Ministers.
245. In exercise of the powers conferred under the aforesaid
provision, the President has framed the Transaction of Business of the
Government of National Capital Territory of Delhi Rules, 1993 (for brevity,
E ‘TBR, 1993’). The 1991 Act and the TBR, 1993, when read together,
reflect the scheme of governance for the NCT of Delhi. We will
scrutinize and analyze the relevant rules from the TBR, 1993 after
analyzing the other relevant provisions of the 1991 Act.
246. Now, Section 45 deals with the duties of the Chief Minister
F of Delhi regarding furnishing of information to the Lieutenant Governor
and reads as below:-
“Section 45. Duties of Chief Minister as respect the
furnishing of information to the Lieutenant Governor, etc. -
It shall be the duty of the Chief Minister -
G (a) to communicate to the Lieutenant Governor all decisions of
the Council of Ministers relating to the administration of the
affairs of the Capital and proposals for legislation;
(b) To furnish such information relating to the administration of
the affairs of the Capital and proposals for legislation as
H Lieutenant Governor may call for; and
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 165
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(c) If the Lieutenant Governor so requires, to submit for the A
consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not
been considered by the Council.”
247. Again, Section 45 of the 1991 Act is identical and analogous
to Article 167 of the Constitution which makes it obligatory for the Chief B
Minister of the NCT of Delhi to communicate to the Lieutenant Governor
all decisions of the Council of Ministers relating to the administration of
the affairs of the NCT of Delhi and proposals for legislation. Having
said that, the real purpose of such communication is not to obtain
concurrence of the Lieutenant Governor on all decisions of the Council
of Ministers relating to the administration of the affairs of the NCT of C
Delhi and on proposals for legislation, but in actuality, the objective is to
have the Lieutenant Governor in synergy, to keep him in the loop and to
make him aware of all decisions of the Council of Ministers relating to
the administration of the affairs of the NCT of Delhi and proposals for
legislation so as to enable the Lieutenant Governor to exercise the power D
conferred upon him by the proviso to clause (4) of Article 239AA.
248. Another important provision is Section 49 of the 1991 Act
which falls under Part V of the Act titled ‘Miscellaneous and Transitional
Provisions” and stipulates the relation of the Lieutenant Governor and
his Ministers to the President. Section 49 reads thus:- E
“Section 49. Relation of Lieutenant Governor and his
Ministers to President: Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be under
the general control of, and comply with such particular directions,
if any, as may from time-to-time be given by the President.” F
249. Section 49 of the 1991 Act discloses that the set up in the
NCT of Delhi is one where the Council of Ministers headed by the
Chief Minister on one hand and the Lieutenant Governor on the other
are a team, a pair on a bicycle built for two with the President as its rider
who retains the general control. Needless to say, the President, while G
exercising this general control, acts as per the aid and advice of the
Union Council of Ministers.
250. Let us, in the obtaining situation, refer to the various rules in
TBR, 1993 which are necessary for dealing with the present case and
for discerning the real intention of the Parliament for inserting Articles
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166 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 239AA and 239AB. Rule 4 of the TBR, 1993 very categorically
underscores the collective responsibility of the Council of Ministers:-
“Rule 4(1) The Council shall be collectively responsible for all the
execution orders issued by any Department in the name of the
Lieutenant Governor and contracts made in the name of the
B President in connection with the administration of the Capital
whether such orders or contracts are authorised by an individual
Minister in respect of a matter pertaining to the Department under
his charge or as a result or discussions at a meeting of the Council.”
251. Chapter III of the TBR, 1993 deals with ‘Disposal of Business
C allocated among Ministers’. Rule 9 falling under Chapter III provides
for circulation of proposals amongst the Council of Ministers and reads
as under:-
“Rule 9(1) The Chief Minister may direct that any proposal
submitted to him under rule 8 may. instead of being placed for
D discussion in a meeting of the Council, be circulated to the Ministers
for opinion, and if all the Ministers are unanimous and the Chief
Minister is of the opinion that discussions in a meeting of the Council
is not required, the proposal shall be treated as finally approved
by the Council. In case. Ministers are not unanimous or if the
Chief Minister is of the opinion that discussions in a meeting is
E required, the proposal shall be discussed in a meeting of the Council.
(2) If it is decided to circulate any proposal, the Department to
which it belongs, shall prepare a memorandum setting out in brief
the facts of the proposal, the points for decision and the
recommendations of the Minister in charge and forward copies
F thereof to the Secretary to the Council who shall arrange to
circulate the same among the Ministers and simultaneously send
a copy thereof to the Lieutenant Governor.”
[Emphasis supplied]
Rule 9(2) stipulates that if it is decided that a proposal is to be
G circulated, the department to which it belongs shall prepare a memo
setting out in brief its facts, points for decision and recommendations of
the Minister-in-charge. The said memo has to be forwarded to the
Secretary to the Council who shall circulate the same amongst the
Ministers and at the same time send its copy to the Lieutenant Governor.
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252. Rule 10, which is relevant, is reproduced below:- A
“Rule 10. (1) While directing that a proposal shall be circulated,
the Chief Minister may also direct, if the matter be of urgent
nature, that the Ministers shall communicate their opinion to the
Secretary to the Council by a particular date, which shall be
specified in the memorandum referred to in rule 9. B
(2) If any Minister fails to communicate his opinion to the Secretary
to the Council by the date so specified in the memorandum, it
shall be assumed that he has accepted the recommendations
contained therein.
(3) If the Minister has accepted the recommendations contained C
in the memorandum or the date by which he was required to
communicate his opinion has expired, the Secretary to the Council
shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if he
has no observation to make, he shall return the proposal with his D
orders thereon to the Secretary to the Council.
(5) On receipt of the proposal, the Secretary to the Council shall
communicate the decision to the Lieutenant Governor and pass
on the proposal to the Secretary concerned who shall thereafter
take necessary steps to issue the orders unless a reference to the E
Central Government is required in pursuance of the provisions of
Chapter V.
[Underlining is ours]
Rule 10(5) stipulates that when a decision has been taken by the
F
Council of Ministers on a proposal as per the preceding sub-rules of
Rule 10, then the Secretary to the Council shall communicate the decision
to the Lieutenant Governor and pass on the proposal to the Secretary
concerned for taking necessary steps to issue the orders unless the
Lieutenant Governor decides to refer the decision to the Central
Government in pursuance of the provisions of Chapter V of the TBR, G
1993.
253. Rule 11 of the TBR, 1993 states thus:-
“Rule 11. When it has been decided to place a proposal before
the Council, the Department to which it belongs, shall, unless the
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A Chief Minister otherwise directs, prepare a memorandum indicating
precisely the salient facts of the proposal and the points for
decision. Copies of the memorandum and such other documents,
as are necessary to enable the proposal to be disposed of shall be
forwarded to the Secretary to the Council who shall arrange to
circulate the memorandum to the Ministers and simultaneously
B
send a copy thereof to the Lieutenant Governor.”
[Emphasis added]
Basically, Rule 11 of the TBR, 1993 deals with the procedure to
be adopted for placing a proposal before the Council of Ministers. The
C said rule stipulates that the proposal shall be forwarded to the Secretary
to the Council who shall arrange to circulate a memorandum indicating
the salient facts of the proposal and the points for decision to the Ministers
and simultaneously send a copy thereof to the Lieutenant Governor.
254. The procedure is further detailed in Rule 13 which stipulates
D as under:-
“Rule 13 (1) The council shall meet at such place and time as the
Chief Minister may direct.
(2) Except with the permission of the Chief Minister, no case
shall be placed on the agenda of a meeting unless papers relating
E thereto have been circulated as required under rule 11.
(3) After an agenda showing the proposals to be discussed in a
meeting of the Council has been approved by the Chief Minister,
copies thereof, together with copies of such memoranda as have
not been circulated under rule 11, shall be sent by the Secretary to
F the Council, to the Lieutenant Governor, the Chief Minister and
other Ministers, so as to reach them at least two days before the
date of such meeting. The Chief Minister may, in case of urgency,
curtail the said period of two days.
(4) If any Minister is on tour, the agenda shall be forwarded to the
G Secretary in the Department concerned who, if he considers that
the discussion on any proposal should await the return of the
Minister may request the Secretary to the Council to take the
orders of the Chief Minister for a postponement of the discussion
on the proposal until the return of the said Minister.
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(5) The Chief Minister or in his absence any other Minister A
nominated by the Chief Minister shall preside at the meeting of
the Council.
(6) If the Chief Minister so directs, the Secretary of the Department
concerned may be required to attend the meeting of the Council.
(7) The Secretary to the Council shall attend all the meetings of B
the Council and shall prepare a record of the decisions. He shall
forward a copy of such record to Ministers and the Lieutenant
Governor.”
[Emphasis supplied]
C
Rule 13, thus, deals with the meeting of Council of Ministers and
sub-rule (3) of Rule 13 stipulates that the agenda of the proposals to be
discussed in the meeting of the Council shall be sent by the Secretary to
the Lieutenant Governor amongst others.
255. Again, Rule 14 states as below:- D
“Rule 14 (1) The decision of the Council relating to each proposal
shall be separately recorded and after approval by the Chief
Minister, or the Minister presiding, shall be placed with the records
of the proposal. After approval by the Chief Minister or the Minister
presiding, the decision of the Council as approved, shall be
E
forwarded by the Secretary to the Council to the Lieutenant
Governor.
(2) Where a proposal has been approved by the Council and the
approved record of the decision has been communicated to the
Lieutenant Governor, the Minister concerned shall take necessary
F
action to give affect to the decision.”
[Underlining is ours]
Rule 14 deals with the decision of the Council on different
proposals. Sub-rule (1) of Rule 14 provides that once a decision of the
Council has been approved by the Chief Minister or the Minister presiding, G
the said approved decision shall be forwarded by the Secretary to the
Council to the Lieutenant Governor.
256. Rule 23, elaborating on the classes of proposals or matters,
enumerates as under:-
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170 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “Rule (23) The following classes of proposals or matters shall
essentially be submitted to the Lieutenant Governor through the
Chief Secretary and the Chief Minister before issuing any orders
thereon, namely:
(i) matters which affect or are likely to affect the peace and
B tranquility of the capital;
(ii) matters which affect or are likely to affect the interest of any
minority community. Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with
any State Government , the Supreme Court of India or the
C High Court of Delhi;
(iv) proposals or matters required to be referred to the Central
Government under the Act or under Chapter V;
(v) matters pertaining to the Lieutenant Governor’s Secretariat
and personnel establishment and other matters relating to his
D office;
(vi) matters on which Lieutenant Governor is required to make
order under any law or instrument in force;
(vii) petitions for mercy from persons under sentence for death
and other important cases in which it is proposed to
recommend any revision of a judicial sentence;
E
(viii) matters relating to summoning, prorogation and dissolution
of the Legislative Assembly, removal of disqualification of
voters at elections to the Legislative Assembly, Local Self
Government Institutions and other matters connected with
those: and
F
(ix) any other proposals or matters of administrative importance
which the Chief Minister may consider necessary.”
Rule 23 lays down a list of proposals or matters which are essential
to be submitted to the Lieutenant Governor through the Chief Secretary
and the Chief Minister before issuing any orders.
G
257. Rule 25 of the TBR, 1993 states thus:-
“Rule 25. The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such
information relating to the administration of the Capital and
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proposals for legislation as the Lieutenant Governor may call for: A
and
(b) if the Lieutenant Governor so requires, submit for the
consideration of the Council any matter on which a decision has
been taken by a Minister but which has not been considered by
the Council. B
Sub-rule (a) of Rule 25 requires the Chief Minister to furnish to
the Lieutenant Governor information relating to the administration of
the Capital and proposals for legislation as the Lieutenant Governor
may call for.
258. Further, Rule 42 prescribes the procedure after a Bill is passed C
by the Legislative Assembly. It reads as under:-
“Rule 42. (1) When a Bill has been passed by the Legislative
Assembly it shall be examined in the Department concerned and
the Law Department and shall be presented to the Lieutenant
Governor with:- D
(a) A report of the Secretary of the Department concerned as to
the reason, if any, why the Lieutenant Governor’s assent should
not be given: and
(b) A report of the Law Secretary as to the reasons, if any, why
E
the Lieutenant Governor’s assent should not be given or the
Bill should not be reserved for consideration of the President.”
Rule 42 basically stipulates that when a bill has been passed by
the Legislative Assembly of Delhi, the same shall be presented to the
Lieutenant Governor along with a report of the Secretary of the
F
department concerned and a report of the Law Secretary.
259. It is also pertinent to refer to Rules 49 and 50 falling under
Chapter V titled ‘Referring to Central Government’ which read as
follows:-
“CHAPTER-V G
Referring to the Central Government
Rule 48 (Omitted)
Rule 49 In case of difference of opinion between the Lieutenant
Governor and a Minister in regard to any matter, the Lieutenant
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A Governor shall endeavour bv discussion on the matter to settle
any point on which such difference of opinion has arisen. Should
the difference of opinion persist, the Lieutenant Governor may
direct that the matter be referred to the Council.
Rule 50 In case of difference of opinion between the Lieutenant
B Governor and the Council with regard to any matter, the Lieutenant
Governor shall refer it to the Central Government for the decision
of the President and shall act according to the decision of the
President.”
260. Rule 49 stipulates the procedure to be adopted in case of
C difference of opinion between the Lieutenant Governor and a Minister
in regard to any matter. In such a scenario, as per Rule 49, the Lieutenant
Governor shall endeavour by discussion on the matter to settle any point
on which such difference of opinion has arisen. If such an approach and
attempt to settle a point of difference by discussion turns out to be futile
and the difference of opinion persists, then the Lieutenant Governor
D may direct the matter to be referred to the Council. Rule 49 shows that
settlement can be achieved by way of discussion. It further highlights
how, by discussion and dialogue, a conflict can be avoided by adopting
an ideology of harmonious co-existence which would again be in tune
with the concepts of collaborative federalism, pragmatic federalism,
E federal balance and constitutional objectivity.
261. Rule 50, on the other hand, provides the procedure to the
effect that in case of difference of opinion between the Council and the
Lieutenant Governor with regard to any matter, the Lieutenant Governor
is required to refer it to the Central Government for the decision of the
F President and shall act according to the decision of the President.
262. The approach of dialogue, settlement by discussion and
suppressing conflicts by harmonious co-existence as delineated by Rule
49 should also be adopted in case of difference of opinion between the
Lieutenant Governor on one hand and the Council on the other. Such an
G approach would not only result in acceptance of the role of the Lieutenant
Governor but also help the NCT of Delhi to cherish the fruits of a
responsive government as intended by the Sixty-ninth Constitutional
Amendment.
263. We have referred to the relevant rules of TBR, 1993 which
require that the Lieutenant Governor has to be apprised and kept in the
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loop of the various proposals, agendas and decisions taken by the Council A
of Ministers. However, a careful perusal of these rules nowhere suggests
that the communication to the Lieutenant Governor is to obtain his
concurrence or permission. The TBR, 1993 simply reflect the scheme
envisaged for the governance of NCT of Delhi wherein just as an
administrator in other UTs has to be apprised, likewise the Lieutenant
B
Governor in Delhi is also to be informed and notified about the business
being conducted.
264. The idea behind the aforesaid rules is just to keep the
Lieutenant Governor notified of the proposals, agendas and decisions so
that he is acquainted with the business carried out by the Council of
Ministers. The said view is evident from the various rules which employ C
the words ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded
to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor and
‘cause to be furnished to the Lieutenant Governor’.
265. Thus, the irresistible conclusion is that the Council is only
required to communicate and inform its various proposals, agendas and D
decisions to the Lieutenant Governor so as to keep him apprised and to
enable him to scrutinize the said proposals, agendas and decisions in
order to exercise his powers as bestowed upon him under clause (4) of
Article 239AA of the 1991 Act read with Rule 50 of the TBR, 1993.
266. It has to be clearly stated that requiring prior concurrence of E
the Lieutenant Governor would absolutely negate the ideals of
representative governance and democracy conceived for the NCT of
Delhi by Article 239AA of the Constitution. Any view to the contrary
would not be in consonance with the intention of the Parliament to treat
Delhi Government as a representative form of government. F
267. The said interpretation is also in tune with our constitutional
spirit which ensures that the voice of the citizens does not go unrecognized
while making laws and this is only possible if the agency enacting and
enforcing the laws comprises of the elected representatives chosen by
the free will of the citizens. It is a well recognized principle of a true G
democracy that the power shall not remain vested in a single person and
it is absolutely essential that the ultimate say in all matters shall vest with
the representative Government who are responsible to give effect to the
wishes of the citizens and effectively address their concerns.

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

A 268. A conjoint reading of the 1991 Act and the TBR, 1993
formulated in pursuance of Section 44 of the 1991 Act divulges that the
Lieutenant Governor of Delhi is not a titular head, rather he enjoys the
power of that of an administrator appointed by the President under Article
239AA. At the cost of repetition, we may reiterate that the constitutional
scheme adopted for the NCT of Delhi conceives of the Council of
B
Ministers as the representatives of the people on the one hand and the
Lieutenant Governor as the nominee and appointee of the President on
the other, who are required to function in harmony within the constitutional
parameters. In the said scheme of things, the Lieutenant Governor should
not emerge as an adversary having a hostile attitude towards the Council
C of Ministers of Delhi, rather he should act as a facilitator.
269. We had earlier stated that Mr. Maninder Singh, learned
Additional Solicitor General, had urged that the report of the Balakrishnan
Committee should be taken aid of to interpret the constitutional provision
and for the said purpose, he had placed reliance on Maumsell v. Olins92,
D Eastman Photographic Materials Company v. Comptroller-General
of Patents, Designs and Trademarks93, Tikri Banda Dullewe v.
Padma Rukmani Dullewe94, Black Clawson International Ltd. v.
Papierwerke Waldhof-Aschaffenburg95, R.S. Nayak v. A.R. Antulay96,
Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi97
and TMA Pai Foundation v. State of Karnataka98. He had laid
E emphasis on paragraph 34 of the judgment in A.R. Antulay (supra).
The relevant part of the said paragraph reads as follows:-
“34. …the basic purpose underlying all canons of construction
is the ascertainment with reasonable certainty of the intention of
Parliament in enacting the legislation. Legislation is enacted to
F achieve a certain object. The object may be to remedy a mischief
or to create some rights, obligations or impose duties. Before
undertaking the exercise of enacting a statute, Parliament can be
taken to be aware of the constitutional principle of judicial review
92
[1975] AC 373
G 93
(1989) AC 571
94
(1969) 2 AC 313
95
(1975) AC 591
96
(1984) 2 SCC 183
97
(2002) 3 SCC 676
98
(2002) 8 SCC 481
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meaning thereby the legislation would be dissected and subjected A
to microscopic examination. More often an expert committee or
a joint parliamentary committee examines the provisions of the
proposed legislation. But language being an inadequate vehicle of
thought comprising intention, the eyes scanning the statute would
be presented with varied meanings. If the basic purpose underlying
B
construction of a legislation is to ascertain the real intention of the
Parliament, why should the aids which Parliament availed of such
as report of a special committee preceding the enactment, existing
state of law, the environment necessitating enactment of legislation,
and the object sought to be achieved, be denied to court whose
function is primarily to give effect to the real intention of the C
Parliament in enacting the legislation. Such denial would deprive
the Court of a substantial and illuminating aid to construction.
Therefore, departing from the earlier English decisions we are of
the opinion that reports of the committee which preceded the
enactment of a legislation, reports of joint parliamentary committee,
D
report of a commission set up for collecting information leading to
the enactment are permissible external aids to construction.”
270. There can be no quarrel about the proposition that the reports
of the Committee enacting a legislation can serve as an external aid for
construing or understanding the statute. However, in the instant case,
as we have elaborately dealt with the meaning to be conferred on the E
constitutional provision that calls for interpretation, there is no necessity
to be guided by the report of the Committee.
U. Constitutional renaissance:
271. Before we proceed to record our conclusions, we think it F
apposite to reflect on a concept that illumines the basic tenet of
constitutional governance having requisite veneration for constitutional
philosophy and its applicability in the present context.
272. Though ordinarily the term ‘renaissance’ is used in the context
of renewed activity especially pertaining to art and literature, yet the G
said word is not alien to the fundamental meaning of life in a solid civilized
society that is well cultivated in culture. And, life, as history witnesses,
gets entrenched in elevated civilization when there is fair, appropriate,
just and societal interest oriented governance. In such a situation, no
citizen feels like a subject and instead has the satisfaction that he is a
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176 SUPREME COURT REPORTS [2018] 7 S.C.R.

A constituent of the sovereign. When the citizens feel that there is
participatory governance in accordance with the constitutionally envisaged
one, there is prevalence of constitutional governance.
273. This prevalence is the recognition and acceptance of
constitutional expectation from the functionaries created by it. It is to
B remain in a constant awakening as regards the text, context, perspective,
purpose and the rule of law. Adherence to rationality, reverence for
expected pragmatic approach on the bedrock of the constitutional text,
context and vision and constant reflection on the valid exercise of the
power vested tantamounts to resurgent constitutionalism. It may be
understood in a different manner. Our Constitution is a constructive one.
C There is no room for absolutism. There is no space for anarchy. Sometimes
it is argued, though in a different context, that one can be a “rational
anarchist”, but the said term has no entry in the field of constitutional
governance and rule of law. Fulfillment of constitutional idealism
ostracizing anything that is not permissible by the language of the
D provisions of the Constitution and showing veneration to its spirit and
silence with a sense of reawakening to the vision of the great living
document is, in fact, constitutional renaissance.
274. Let us come to the present context and elaborate the concept.
The said concept garners strength when there is rational difference by
E the Lieutenant Governor on a constitutional prism, any statutory warrant,
executive disharmony between the Centre and NCT of Delhi on real
justifiable grounds, when an executive decision runs counter to the
legislative competence and the decision of the Council of Ministers
defeats the national interest. These are only a few illustrations. The
Constitution does not state the nature of the difference. It leaves it to the
F wisdom of the Council of Ministers who have the collective responsibility
and the Lieutenant Governor. That is the constitutional trust which expects
the functionaries under the Constitution to be guided by constitutional
morality, objective pragmatism and the balance that is required to sustain
proper administration. The idea of obstinance is not a principle of welfare
G administration. The constitutional principles do not countenance a nomadic
perception. They actually expect governance for the betterment of
society, healthy relationship and mutual respect having an open mind for
acceptance.
275. The goal is to avoid any disharmony and anarchy. Sustenance
H of constitutionally conferred trust, recognition and acceptance of the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 177
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principle of constitutional governance, adherence to the principles and A
norms which we have discussed earlier and the constitutional conduct
having regard to the elevated guiding precepts stated in the Preamble
will tantamount to realization of the feeling of constitutional renaissance.
When we say renaissance, we do not mean revival of any classical note
with a sense of nostalgia but true blossoming of the constitutional ideals,
B
realization and acceptance of constitutional responsibility within the
boundaries of expression and silences and sincerely accepting the summon
to be obeisant to the constitutional conscience with a sense of
reawakening to the constitutional vision.
276. That is why, the 1991 Act and the TBR, 1993 conceive of
discussion, deliberation and dialogue. The exercise of entitlement to differ C
has to be based on principle and supported by cogent reasons. But, the
primary effort has to be to arrive at a solution. That is the constitutional
conduct of a constitutional functionary.
V. The conclusions in seriatim:
D
277. In view of our aforesaid analysis, we record our conclusions
in seriatim:-
(i) While interpreting the provisions of the Constitution, the safe
and most sound approach for the Constitutional Courts to adopt is
to read the words of the Constitution in the light of the spirit of the E
Constitution so that the quintessential democratic nature of our
Constitution and the paradigm of representative participation by
way of citizenry engagement are not annihilated. The Courts must
adopt such an interpretation which glorifies the democratic spirit
of the Constitution.
F
(ii) In a democratic republic, the collective who are the sovereign
elect their law making representatives for enacting laws and
shaping policies which are reflective of the popular will. The
elected representatives being accountable to the public must be
accessible, approachable and act in a transparent manner. Thus,
the elected representatives must display constitutional objectivity G
as a standard of representative governance which neither tolerates
ideological fragmentation nor encourages any utopian fantasy,
rather it lays stress on constitutional ideologies.
(iii) Constitutional morality, appositely understood, means the
morality that has inherent elements in the constitutional norms H
178 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and the conscience of the Constitution. Any act to garner
justification must possess the potentiality to be in harmony with
the constitutional impulse. In order to realize our constitutional
vision, it is indispensable that all citizens and high functionaries in
particular inculcate a spirit of constitutional morality which negates
the idea of concentration of power in the hands of a few.
B
(iv) All the three organs of the State must remain true to the
Constitution by upholding the trust reposed by the Constitution in
them. The decisions taken by constitutional functionaries and the
process by which such decisions are taken must have normative
reasonability and acceptability. Such decisions, therefore, must
C be in accord with the principles of constitutional objectivity and
symphonious with the spirit of the Constitution.
(v) The Constitution being the supreme instrument envisages the
concept of constitutional governance which has, as its twin limbs,
the principles of fiduciary nature of public power and the system
D of checks and balances. Constitutional governance, in turn, gives
birth to the requisite constitutional trust which must be exhibited
by all constitutional functionaries while performing their official
duties.
(vi) Ours is a parliamentary form of government guided by the
E principle of collective responsibility of the Cabinet. The Cabinet
owes a duty towards the legislature for every action taken in any
of the Ministries and every individual Minister is responsible for
every act of the Ministry. This principle of collective responsibility
is of immense significance in the context of ‘aid and advice’. If a
F well deliberated legitimate decision of the Council of Ministers is
not given effect to due to an attitude to differ on the part of the
Lieutenant Governor, then the concept of collective responsibility
would stand negated.
(vii) Our Constitution contemplates a meaningful orchestration of
G federalism and democracy to put in place an egalitarian social
order, a classical unity in a contemporaneous diversity and a
pluralistic milieu in eventual cohesiveness without losing identity.
Sincere attempts should be made to give full-fledged effect to
both these concepts.

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(viii) The constitutional vision beckons both the Central and the A
State Governments alike with the aim to have a holistic edifice.
Thus, the Union and the State Governments must embrace a
collaborative federal architecture by displaying harmonious co-
existence and interdependence so as to avoid any possible
constitutional discord. Acceptance of pragmatic federalism and
B
achieving federal balance has become a necessity requiring
disciplined wisdom on the part of the Union and the State
Governments by demonstrating a pragmatic orientation.
(ix) The Constitution has mandated a federal balance wherein
independence of a certain required degree is assured to the State
Governments. As opposed to centralism, a balanced federal C
structure mandates that the Union does not usurp all powers and
the States enjoy freedom without any unsolicited interference from
the Central Government with respect to matters which exclusively
fall within their domain.
(x) There is no dearth of authorities with regard to the method D
and approach to be embraced by Constitutional Courts while
interpreting the constitutional provisions. Some lay more emphasis
on one approach over the other, while some emphasize that a
mixed balance resulting in a unique methodology shall serve as
the best tool. In spite of diverse views on the said concept, what E
must be kept primarily in mind is that the Constitution is a dynamic
and heterogeneous instrument, the interpretation of which requires
consideration of several factors which must be given their due
weightage in order to come up with a solution harmonious with
the purpose with which the different provisions were introduced
by the framers of the Constitution or the Parliament. F

(xi) In the light of the contemporary issues, the purposive method
has gained importance over the literal approach and the
Constitutional Courts, with the vision to realize the true and ultimate
purpose of the Constitution not only in letter but also in spirit and
armed with the tools of ingenuity and creativity, must not shy away G
from performing this foremost duty to achieve constitutional
functionalism by adopting a pragmatic approach. It is, in a way,
exposition of judicial sensibility to the functionalism of the
Constitution which we call constitutional pragmatism. The spirit
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180 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and conscience of the Constitution should not be lost in grammar
and the popular will of the people which has its legitimacy in a
democratic set up cannot be allowed to lose its purpose in simple
semantics.
(xii) In the light of the ruling of the nine-Judge Bench in New
B Delhi Municipal Corporation (supra), it is clear as noon day
that by no stretch of imagination, NCT of Delhi can be accorded
the status of a State under our present constitutional scheme.
The status of NCT of Delhi is sui generis, a class apart, and the
status of the Lieutenant Governor of Delhi is not that of a Governor
of a State, rather he remains an Administrator, in a limited sense,
C working with the designation of Lieutenant Governor.
(xiii) With the insertion of Article 239AA by virtue of the Sixty-
ninth Amendment, the Parliament envisaged a representative form
of Government for the NCT of Delhi. The said provision intends
to provide for the Capital a directly elected Legislative Assembly
D which shall have legislative powers over matters falling within the
State List and the Concurrent List, barring those excepted, and a
mandate upon the Lieutenant Governor to act on the aid and advice
of the Council of Ministers except when he decides to refer the
matter to the President for final decision.
E (xiv) The interpretative dissection of Article 239AA(3)(a) reveals
that the Parliament has the power to make laws for the National
Capital Territory of Delhi with respect to any matters enumerated
in the State List and the Concurrent List. At the same time, the
Legislative Assembly of Delhi also has the power to make laws
F over all those subjects which figure in the Concurrent List and all,
but three excluded subjects, in the State List.
(xv) A conjoint reading of clauses (3)(a) and (4) of Article 239AA
divulges that the executive power of the Government of NCTD is
co-extensive with the legislative power of the Delhi Legislative
G Assembly and, accordingly, the executive power of the Council
of Ministers of Delhi spans over all subjects in the Concurrent
List and all, but three excluded subjects, in the State List. However,
if the Parliament makes law in respect of certain subjects falling
in the State List or the Concurrent List, the executive action of
the State must conform to the law made by the Parliament.
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(xvi) As a natural corollary, the Union of India has exclusive A
executive power with respect to the NCT of Delhi relating to the
three matters in the State List in respect of which the power of
the Delhi Legislative Assembly has been excluded. In respect of
other matters, the executive power is to be exercised by the
Government of NCT of Delhi. This, however, is subject to the
B
proviso to Article 239AA(4) of the Constitution. Such an
interpretation would be in consonance with the concepts of
pragmatic federalism and federal balance by giving the
Government of NCT of Delhi some required degree of
independence subject to the limitations imposed by the Constitution.
(xvii) The meaning of ‘aid and advise’ employed in Article C
239AA(4) has to be construed to mean that the Lieutenant
Governor of NCT of Delhi is bound by the aid and advice of the
Council of Ministers and this position holds true so long as the
Lieutenant Governor does not exercise his power under the proviso
to clause (4) of Article 239AA. The Lieutenant Governor has not D
been entrusted with any independent decision-making power. He
has to either act on the ‘aid and advice’ of Council of Ministers or
he is bound to implement the decision taken by the President on a
reference being made by him.
(xviii) The words “any matter” employed in the proviso to clause E
(4) of Article 239AA cannot be inferred to mean “every matter”.
The power of the Lieutenant Governor under the said proviso
represents the exception and not the general rule which has to be
exercised in exceptional circumstances by the Lieutenant Governor
keeping in mind the standards of constitutional trust and morality,
the principle of collaborative federalism and constitutional balance, F
the concept of constitutional governance and objectivity and the
nurtured and cultivated idea of respect for a representative
government. The Lieutenant Governor should not act in a
mechanical manner without due application of mind so as to refer
every decision of the Council of Ministers to the President. G
(xix) The difference of opinion between the Lieutenant Governor
and the Council of Ministers should have a sound rationale and
there should not be exposition of the phenomenon of an
obstructionist but reflection of the philosophy of affirmative
constructionism and profound sagacity and judiciousness. H
182 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (xx) The Transaction of Business Rules, 1993 stipulates the
procedure to be followed by the Lieutenant Governor in case of
difference between him and his Ministers. The Lieutenant
Governor and the Council of Ministers must attempt to settle any
point of difference by way of discussion and dialogue. By
contemplating such a procedure, the TBR, 1993 suggest that the
B
Lieutenant Governor must work harmoniously with his Ministers
and must not seek to resist them every step of the way. The need
for harmonious resolution by discussion is recognized especially
to sustain the representative form of governance as has been
contemplated by the insertion of Article 239AA.
C (xxi) The scheme that has been conceptualized by the insertion of
Articles 239AA and 239AB read with the provisions of the
GNCTD Act, 1991 and the corresponding TBR, 1993 indicates
that the Lieutenant Governor, being the Administrative head, shall
be kept informed with respect to all the decisions taken by the
D Council of Ministers. The terminology “send a copy thereof to the
Lieutenant Governor”, “forwarded to the Lieutenant Governor”,
“submitted to the Lieutenant Governor” and “cause to be furnished
to the Lieutenant Governor” employed in the said rules leads to
the only possible conclusion that the decisions of the Council of
Ministers must be communicated to the Lieutenant Governor but
E this does not mean that the concurrence of the Lieutenant Governor
is required. The said communication is imperative so as to keep
him apprised in order to enable him to exercise the power conferred
upon him under Article 239AA(4) and the proviso thereof.
(xxii) The authorities in power should constantly remind
F themselves that they are constitutional functionaries and they have
the responsibility to ensure that the fundamental purpose of
administration is the welfare of the people in an ethical manner.
There is requirement of discussion and deliberation. The fine
nuances are to be dwelled upon with mutual respect. Neither of
G the authorities should feel that they have been lionized. They
should feel that they are serving the constitutional norms, values
and concepts.
(xxiii) Fulfillment of constitutional idealism ostracizing anything
that is not permissible by the language of the provisions of the
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 183
& ANOTHER

Constitution and showing veneration to its sense, spirit and silence A
is constitutional renaissance. It has to be remembered that our
Constitution is a constructive one. There is no room for absolutism.
There is no space for anarchy. Sometimes it is argued, though in
a different context, that one can be a “rational anarchist”, but the
said term has no entry in the field of constitutional governance
B
and rule of law. The constitutional functionaries are expected to
cultivate the understanding of constitutional renaissance by
realization of their constitutional responsibility and sincere
acceptance of the summon to be obeisant to the constitutional
conscience with a sense of reawakening to the vision of the great
living document so as to enable true blossoming of the constitutional C
ideals. The Lieutenant Governor and the Council of Ministers
headed by the Chief Minister are to constantly remain alive to this
idealism.
278. The Reference is answered accordingly. Matters be placed
before the appropriate regular Bench. D
DR. D. Y. CHANDRACHUD, J.
INDEX
A) Introduction
B) Constitutional Morality E
C) Constitutional Interpretation
D) Part VIII of The Constitution: The Union Territories
E) Cabinet Form of Government
- Collective Responsibility F

- Aid and Advice
F) The Nature of Executive Power
G) Constitutional History of the NCT
G
- The Government of Part C States Act, 1951
- The Government of Union Territories Act, 1963
- The Delhi Administration Act, 1966
- The Balakrishnan Committee
H
184 SUPREME COURT REPORTS [2018] 7 S.C.R.

A H) NCT: A Special Class among Union Territories?
I) The Government of National Capital Territory of Delhi Act,
1991
J) The Transaction of Business Rules, 1993
B K) Precedents
- Literal Interpretation
- Relationship between Centre and Union Territories
- Decision in NDMC
C - General Clauses Act
- “Insofar as any such matter is applicable to Union territories”
L) Construction of the proviso to Article 239AA(4)
M) Conclusions
D A Introduction
1. A batch of petitions in the Delhi High Court addressed unresolved
issues between the Lieutenant Governor of the National Capital Territory
and its Council of Ministers headed by the Chief Minister. The judgment
of the Delhi High Court, delivered on 4 August 2016, travelled to this
E Court. When the Civil Appeals were heard, a Bench consisting of
Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in
an order dated 15 February 2017 was of the opinion that the appeals
should be heard by a Constitution Bench as substantial questions of law
about the interpretation of Article 239AA of the Constitution are involved.
F 2. This batch of cases is about the status of Delhi, after the Sixty-
ninth constitutional amendment1, but more is at stake. These cases involve
vital questions about democratic governance and the role of institutions
in fulfilling constitutional values. The Constitution guarantees to every
individual the freedom to adopt a way of life in which liberty, dignity and
autonomy form the core. The Constitution pursues a vision of fulfilling
G
these values through a democratic polity. The disputes which led to these
cases tell us how crucial institutions are to the realization of democracy.
It is through them that the aspirations of a democratic way of life, based
on the rule of law, are fulfilled. Liberty, dignity and autonomy are
1
The Constitution (Sixty Ninth Amendment) Act, 1891
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 185
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

constraining influences on the power of the state. Fundamental human A
freedoms limit the authority of the State. Yet the role of institutions in
achieving democracy is as significant. Nations fail when institutions of
governance fail. The working of a democratic institution is impacted by
the statesmanship (or the lack of it) shown by those in whom the electorate
vests the trust to govern. In a society such as ours, which is marked by
B
a plurality of cultures, a diversity of tradition, an intricate web of social
identity and a clatter of ideologies, institutional governance to be robust
must accommodate each one of them. Criticism and dissent form the
heart of democratic functioning. The responsiveness of institutions is
determined in a large measure by their ability to be receptive to
differences and perceptive to the need for constant engagement and C
dialogue. Constitutional skirmishes are not unhealthy. They test the
resilience of democracy. How good a system works in practice must
depend upon the statesmanship of those who are in decision making
positions within them. Hence, these cases are as much about interpreting
the Constitution as they are about the role of institutions in the structure
D
of democratic governance and the frailties of those who must answer
the concerns of citizens.
3. In the first of a series of articles in the New York Times of 14
December 2017, David Brooks laments events which occurred in various
parts of the world, casting a shadow on democracy. Liberal democracy
seemed to triumph with the fall of the Berlin wall in 1989 and the E
dismantling of apartheid in South Africa. Many of those aspirations are
continuously under challenge. The foundation for addressing the
aspirations of a democratic spring are reflected in Brooks’article titled
– ironically – “the Glory of Democracy”. Drawing from Thomas Mann’s
“The Coming Victory of Democracy” (1938), he has this to say: F
“Democracy, Mann continues, is the only system built on respect
for the infinite dignity of each individual man and woman, on each
person’s moral striving for freedom, justice and truth. It would be
a great error to think of and teach democracy as a procedural or
political system, or as the principle of majority rule. G
It is a “spiritual and moral possession.” It is not just rules; it is a
way of life. It encourages everybody to make the best of their
capacities – holds that we have a moral responsibility to do so. It
encourages the artist to seek beauty, the neighbour to seek
H
186 SUPREME COURT REPORTS [2018] 7 S.C.R.

A community, the psychologist to seek perception, the scientist to
seek truth.
Monarchies produce great paintings, but democracy teaches
citizens to put their art into action, to take their creative impulses
and build a world around them. “Democracy is thought; but it is
B thought related to life and action.” Democratic citizens are not
just dreaming; they are thinkers who sit on the town council. He
quotes the philosopher Bergson’s dictum: “Act as men of thought,
think as men of action.”2
While we have to interpret the Constitution in deciding this reference, it
C is well to remind ourselves that how citizens respond to their statesmen
has a powerful role in giving meaning to the fine print of law.
B Constitutional Morality
4. The Constitution was adopted in an atmosphere of expectation
and idealism. The members of the Constituent Assembly had led the
D constitutional project with a commitment to the future of a nascent nation.
“India’s founding fathers and mothers”, Granville Austin observes,
“established in the Constitution both the nation’s ideals and the institutions
and processes for achieving them”.3 These ideals were “national unity
and integrity and a democratic and equitable society”4. The Constitution
E was designed “to break the shackles of traditional social hierarchies and
to usher in a new era of freedom, equality, and justice”5. All this was to
be achieved through a democratic spirit using constitutional and
democratic institutions.6
5. Democracy is not limited to electing governments. It generates
F aspirations and inspires passions. Democracy is based on “the recognition
that there is no natural source of authority that can exercise power over
individuals”.7 When India attained independence, it faced a major
2
David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017),
available at https://www.nytimes.com/2017/12/14/opinion/democracy-thomas-
mann.html
G 3
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford Univer-
sity Press (1966), page xi
4
Ibid
5
Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University
Press (2008), at page 15
6
Granville Austin (Supra Note 3)
7
Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages
H 35-36
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 187
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

dilemma. Democracy as an ideal had developed in the course of the A
nationalist struggle against colonial rule. Democratic political institutions
were still to develop, at any rate fully:
“Democracy emerged in India out of a confrontation with a power
imposed from outside rather than an engagement with the
contradictions inherent in Indian society … In the West, the B
democratic and industrial revolutions emerged together, reinforcing
each other and slowly and steadily transforming the whole of
society. The economic and social preconditions for the success of
democracy grew along with, and sometimes in advance of, the
political institutions of democracy. In India, the political argument
for democracy was adopted by the leaders of the nationalist C
movement from their colonial rulers and adapted to their immediate
objective which was freedom from colonial rule. The building of
new political institutions took second place, and the creation of
the economic and social conditions for the successful operation
of those institutions, such as education, health care, and other D
social services, lagged well behind.”8
6. The framers of the Constitution were aware of the challenges
which the newly instituted democracy could face. In his address to the
Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only
a top-dressing on an Indian soil, which is essentially undemocratic”.9 To E
tackle these challenges, the Constitution envisaged the existence of a
responsible and representative government. Provisions regarding
administration of democracy were incorporated, in detail, into the
Constitution by the members of the Constituent Assembly. Dr Ambedkar
made an impassioned plea that the core values of Indian democracy, to
be protected and sustained, ought to be guided by the presence of F
constitutional morality.
7. While moving the Draft Constitution in the Constituent Assembly
on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote:
“By constitutional morality, Grote meant… a paramount reverence G
for the forms of the constitution, enforcing obedience to authority
and acting under and within these forms, yet combined with the
8
Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)
9
Constituent Assembly Debates, Vol. 7 (4th November 1948)
10
Ibid H
188 SUPREME COURT REPORTS [2018] 7 S.C.R.

A habit of open speech, of action subject only to definite legal control,
and unrestrained censure of those very authorities as to all their
public acts combined, too with a perfect confidence in the bosom
of every citizen amidst the bitterness of party contest that the
forms of constitution will not be less sacred in the eyes of his
opponents than his own.”
B
Dr Ambedkar made it clear that constitutional morality was to be
cultivated and learned. Constitutional morality was not a “natural
sentiment” and its diffusion could not be presumed. While highlighting
that the diffusion of constitutional morality is indispensable for “the
peaceful working of the democratic constitution”, Dr Ambedkar
C observed that the form of the Constitution had to be in harmony with the
form of its administration:
“One is that the form of administration must be appropriate to and
in the same sense as the form of the Constitution. The other is
that it is perfectly possible to pervert the Constitution,
D without changing its form by merely changing its form of
administration and to make it inconsistent and opposed to
the spirit of the Constitution.” (emphasis added)
8. If the moral values of our Constitution were not upheld at every
stage, the text of the Constitution may not be enough to protect its
E democratic values. In order to truly understand what constitutional
morality reflects, it is necessary to answer “what it is that the Constitution
is trying to say” and to identify “the broadest possible range… to fix the
meaning of the text”11. Bhargava’s work titled “Politics and Ethics of
the Indian Constitution”12 focuses on the necessity to identify the moral
F values of the Constitution:
“There is… a pressing need to excavate the moral values
embedded in the Constitution, to bring out their connections, and
to identify the coherent or not-so-coherent ethical worldviews
within it. It is not implausible to believe that these values are simply
G out there, holding their breath and waiting to be discovered. The
Constitution is a socially constructed object, and therefore it does
not possess the hard objectivity of natural objects. This element
of the Constitution is the ground for contesting interpretations. It
11
Rajiv Bhagava (Supra note 5), at page 6
12
Ibid
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 189
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

is high time we identified these interpretations and debated their A
moral adequacy.”13
9. Constitutional morality does not mean only allegiance to the
substantive provisions and principles of the Constitution. It signifies a
constitutional culture which each individual in a democracy must imbibe.
Pratap Bhanu Mehta identifies certain features of constitutional morality? B
chief amongst them being liberal values? which governed the making of
India’s Constitution and created expectations from the polity:
“The Constitution was made possible by a constitutional morality
that was liberal at its core. Not liberal in the eviscerated ideological
sense, but in the deeper virtues from which it sprang: an ability C
to combine individuality with mutual regard, intellectualism
with a democratic sensibility, conviction with a sense of
fallibility, deliberation with decision, ambition with a
commitment to institutions, and hope for a future with due
regard for the past and present.”14 (Emphasis supplied)
D
One of the essential features of constitutional morality, thus, is the ability
and commitment to arrive at decisions on important issues consensually.
It requires that “despite all differences we are part of a common
deliberative enterprise.”15 It envisages partnership and coordination
between various institutions created by the Constitution. Mehta has
underlined the importance of constitutional partnerships by referring to E
the working of the Constituent Assembly:
“The ability to work with difference was augmented by another
quality that is rarer still: the ability to acknowledge true value.
This may be attributed to the sheer intellectualism of so many of
the members. Their collective philosophical depth, historical F
knowledge, legal and forensic acumen and sheer command over
language is enviable. It ensured that the grounds of discussion
remained intellectual. Also remarkable was their ability to
acknowledge greatness in others. It was this quality that allowed
Nehru and Patel, despite deep differences in outlook and G
temperament, to acknowledge each other. Their statesmanship
was to not let their differences produce a debilitating polarization,
13
Ibid, at page 9
14
Pratap Bhanu Mehta, “What is constitutional morality?”, Seminar (2010), available at
http://www.india-seminar.com/2010/615 pratap bhanu mehta.htm.
15
Ibid H
190 SUPREME COURT REPORTS [2018] 7 S.C.R.

A one that could have wrecked India. They combined loyalty and
frankness.”16
10. Constitutional morality places responsibilities and duties on
individuals who occupy constitutional institutions and offices. Frohnen
and Carey formulate the demands of the concept thus:
B “Constitutional moralities… can be understood as anticipated
norms of behavior or even duties primarily on the part of individuals
within our constitutional institutions. We use the term morality
and refer to constitutional morality with regard to these norms or
duties principally because of the purpose they serve; they can be
C viewed as imposing an obligation on individuals and institutions to
ensure that the constitutional system operates in a coherent way,
consistent with its basic principles and objectives.”17
11. Another major feature of constitutional morality is that it
provides in a Constitution the basic rules which prevent institutions from
D turning tyrannical. It warns against the fallibility of individuals in a
democracy, checks state power and the tyranny of the majority.
Constitutional morality balances popular morality and acts as a threshold
against an upsurge in mob rule:
“It is important not to forget that human beings are fallible, that
E they sometimes forget what is good for them in the long run, and
that they yield to temptations which bring them pleasure now but
pain later. It is not unknown for people to acquire the mentality of
the mob and act on the heat of the moment only to rue the
consequences of the decision later. By providing a framework of
law culled over from years of collective experience and wisdom,
F constitutions prevent people from succumbing to currently
fashionable whims and fancies. Constitutions anticipate and try to
redress the excessively mercurial character of everyday politics.
They make some dimensions of the political process beyond the
challenge of ordinary politics.”18
G 12. No explanation of constitutional morality will be complete
without understanding the uniquely revolutionary character of the
16
Ibid
17
Bruce P. Frohnen and George W. Carey, “Constitutional Morality and the Rule of
Law”, Journal of Law and Politics (2011), Vol. 26, at page 498
18
Rajiv Bhagava (Supra note 5), at pages 14-15
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 191
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Constitution itself. Granville Austin has referred to the Indian Constitution A
as a “social revolutionary” document, the provisions of which are aimed
at furthering the goals of social revolution.19 Austin described the main
features of the Indian Constitution as follows:
“It was to be a modernizing force. Social revolution and
democracy were to be the strands of the seamless web most B
closely related. Democracy, representative government,
personal liberty, equality before law, were revolutionary for
the society. Social-economic equitableness as expressed in the
Directive Principles of State Policy was equally revolutionary. So
were the Constitution’s articles allowing abolishing untouchability
and those allowing for compensatory discrimination in education C
and employment for disadvantaged citizens.”20 (Emphasis supplied)
The core of the commitment to social revolution, Austin stated, lies in
the Fundamental Rights and in the Directive Principles of State Policy,
which are the “conscience of the Constitution” and connect India’s future,
present, and past.21 Constitutional morality requires the existence of D
sentiments and dedication for realizing a social transformation which the
Indian Constitution seeks to attain.
13. Constitutional morality highlights the need to preserve the trust
of the people in institutions of democracy. It encompasses not just the
forms and procedures of the Constitution, but provides an “enabling E
framework that allows a society the possibilities of self-renewal”22. It is
the governing ideal of institutions of democracy which allows people to
cooperate and coordinate to pursue constitutional aspirations that cannot
be achieved single-handedly. Andre Beteille in “Democracy and its
Institutions” (2012) speaks of the significance of constitutional morality: F
“To be effective, constitutional laws have to rest on a substratum
of constitutional morality… In the absence of constitutional
morality, the operation of a Constitution, no matter how carefully
written, tends to become arbitrary, erratic, and capricious. It is
not possible in a democratic order to insulate completely the domain G
of law from that of politics. A Constitution such as ours is expected
19
Granville Austing (Supra note 3), at pages 63
20
Ibid, at page xiii
21
Ibid, at page 63.
22
Pratap Bhanu Mehta (Supra note 14)
H
192 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to provide guidance on what should be regulated by the impersonal
rule of law and what may be settled by the competition for power
among parties, among factions, and among political leaders. It is
here that the significance of constitutional morality lies. Without
some infusion of constitutional morality among legislators, judges,
lawyers, ministers, civil servants, writers, and public intellectuals,
B
the Constitution becomes a plaything of power brokers.”23
14. Constitutional morality underscores the ethics of politics in a
country. It gives politics the identity to succeed. In his last address to the
Constituent Assembly on November 25, 1949, Dr Ambedkar discussed
the importance of the role of the people and political parties in a
C constitutional democracy:
“I feel, however good a Constitution may be, it is sure to turn out
bad because those who are called to work it, happen to be a bad
lot. However bad a Constitution may be, it may turn out to be
good if those who are called to work it, happen to be a good lot.
D The working of a Constitution does not depend wholly upon the
nature of the Constitution. The Constitution can provide only the
organs of State such as the Legislature, the Executive and the
Judiciary. The factors on which the working of those organs of
the State depend are the people and the political parties they will
set up as their instruments to carry out their wishes and their
E politics.”24
He also invoked John Stuart Mill to caution the nascent Indian democracy
of the perils of personifying institutions or laying down liberty “at the
feet of even a great man, or to trust him with power which enables him
to subvert their institutions”. In Dr Ambedkar’s words:
F “[I]n India, Bhakti or what may be called the path of devotion or
hero-worship, plays a part in its politics unequalled in magnitude
by the part it plays in the politics of any other country in the world.
Bhakti in religion may be a road to the salvation of the soul. But in
politics, Bhakti or hero-worship is a sure road to degradation and
G to eventual dictatorship.”25
Institution building is thus a facet of constitutional morality. It envisages
an institutional basis for political behaviour. It involves that the political
23
Andre Beteille, Democracy and its Institutions, Oxford University Press (2012)
24
Constituent Assembly Debates, Vol. 11 (25th November, 1949)
H 25
Ibid
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 193
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

parties and the political process address issues affecting the public at A
large. Constitutional morality reduces the gap between representation
and legitimacy.26 Justice Dipak Misra (as the learned Chief Justice then
was) held in Manoj Narula v Union of India27 that:
“The democratic values survive and become successful where
the people at large and the persons-in-charge of the institution are B
strictly guided by the constitutional parameters without paving the
path of deviancy and reflecting in action the primary concern to
maintain institutional integrity and the requisite constitutional
restraints”.
It is only when political conflicts are regulated through negotiations and C
accommodation that the enforcement of constitutional principles can be
achieved.
15. Constitutional morality requires filling in constitutional silences
to enhance and complete the spirit of the Constitution. A Constitution
can establish a structure of government, but how these structures work D
rests upon the fulcrum of constitutional values. Constitutional morality
purports to stop the past fromtearing the soul of the nation apart by
acting as a guiding basis to settle constitutional disputes:
“Of necessity, constitutions are unfinished. What is explicit in the
text rests on implicit understandings; what is stated rests on what E
is unstated.”28
16. Constitutional morality provides a principled understanding for
unfolding the work of governance. It is a compass to hold in troubled
waters. It specifies norms for institutions to survive and an expectation
of behaviour that will meet not just the text but the soul of the Constitution. F
Our expectations may be well ahead of reality. But a sense of
constitutional morality, drawn from the values of that document, enables
us to hold to account our institutions and those who preside over their
destinies. Constitutional interpretation, therefore, must flow from
constitutional morality.
26
G
Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta, The Oxford Handbook of
the Indian Constitution, Oxford University Press (2016), at page 12
27
(2014) 9 SCC 1
28
Martin Lughlin, “The Silences of Constitutions”, International Journal of
Constitutional Law (2019, In Press), available at https://www.jura,uni-freiburg de/de/
institute/rphil/freiburger vortraege/silences-of-constitutions-m-loughlin-
manuskript.pdf H
194 SUPREME COURT REPORTS [2018] 7 S.C.R.

A C Constitutional Interpretation
17. The primary task before the Court here, as in other
constitutional cases, is to interpret the Constitution. This reflects a truism.
For, while deciding what the Constitution means, we must understand
what it says. First and foremost, in understanding the text of the
B Constitution, it must be borne in mind that the Constitution is not merely
a legal document. The Constitution embodies a political vision of a plural
democratic polity. This political vision combines with the values which
the founding fathers infused to provide a just social compact in which
individual aspirations for dignity and liberty would be achieved. Hence,
any interpretation of the Constitution must be unabashed in accepting
C the importance of the Constitution as a political document which
incorporates a blue print for democratic governance. The values which
the Constitution as a political document incorporates, provide the
foundation for understanding its text. It is in that sense that successive
generations of judges have reminded themselves that it is, after all, a
D Constitution that we are expounding. The words of the Constitution cannot
be construed merely by alluding to what a dictionary of the language
would explain. While its language is of relevance to the content of its
words, the text of the Constitution needs to be understood in the context
of the history of the movement for political freedom. Constitutional history
embodies events which predate the adoption of the Constitution.
E Constitutional history also incorporates our experiences in the unfolding
of the Constitution over the past sixty eight years while confronting
complex social and political problems. Words in a constitutional text have
linkages with the provisions in which they appear. It is well to remember
that each provision is linked to other segments of the document. It is
only when they are placed in the wide canvas of constitutional values
F
that a true understanding of the text can emerge. The principle that the
text has to be deduced from context reflects the limitations in
understanding the Constitution only as a legal document. To perceive
the Constitution as a purely legal document would be an injustice to the
aspirations of those who adopted it and a disservice to the experience of
G our society in grappling with its intractable problems. Justice HR Khanna
in Kesavananda Bharati v State of Kerala29 (“Kesavananda”) held
thus:
“A Constitution encompasses within itself the broad indications
as to how the nation is to march forward in times to come. A
29
H AIR (1973) SC 1461
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 195
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Constitution cannot be regarded as a mere legal document... A A
Constitution must of necessity be the vehicle of the life of a nation.
It has also to be borne in mind that a Constitution is not a gate but
a road. Beneath the drafting of a Constitution is the awareness
that things do not stand still but move on, that life of a progressive
nation, as of an individual, is not static and stagnant but dynamic
B
and dashful.”
18. The second value which must be borne in mind is that the
Constitution recognises the aspirations of popular sovereignty. As its
Preamble tells us, the document was adopted by “We the People of
India”. The Preamble sets forth at the outset the creation of a “sovereign...
democratic, republic”. It is through the expression of the sovereignty of C
the people and on the cornerstone of a democratic and republican form
of government that the Constitution seeks to achieve justice, liberty,
equality and fraternity. The width of our constitutional aspirations finds
abundant reflection in the plurality and diversity of the elements which it
comprehends within justice, liberty, equality and fraternity. Justice D
incorporates its social, economic, and political manifestations. Liberty
incorporates freedom of thought, expression, belief, faith and worship.
Equality is defined in its substantive sense to include equality of status
and opportunity. Fraternity seeks to assure dignity to the individual while,
at the same time, ensuring the unity and integrity of the nation.
E
19. There are four abiding principles which are essential to
understanding the content of the Constitution. The first is that as a political
document, the Constitution is an expression of the sovereignty of the
people. The second is that the Constitution seeks to achieve its vision of
a political and social ordering on the basis of democracy. A democratic
form of government recognises that sovereignty resides within the people. F
Popular sovereignty can exist when democracy is meaningful. The third
principle is that the Constitution adopts a republican form of government
in which the powers of sovereignty are vested in the people and are
exercised directly or through their elected representatives. The fourth,
which is not the least in importance, is the secular ideology of the G
Constitution. For, it is on the foundation of a secular order that freedom,
liberty, dignity and equality to every citizen is achieved.
20. These principles, it is well to remind ourselves, are not just
political exhortations. They constitute the essence and substance of the
H
196 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution and provide the foundation for the fine print of governance.
It is through the expression of popular sovereignty that the Constitution
has provided an assurance for the enforcement of equality and of equal
protection of the law. The four founding principles constitute the means
of achieving accountability and amenability to the rule of law. The
democratic method of governing the country is a value which is intrinsic
B
to the Constitution. Democracy as a way of life is also instrumental in
achieving fundamental freedoms which the Constitution assures to each
individual. Each of the four principles has an inseparable connect. They
provide the basis on which the Constitution has distributed legislative
and executive power between the Union and the states. They provide
C the foundation for ensuring basic human freedoms in the realisation of
dignity, liberty and autonomy. They embody the architecture for the
governance of the nation. In many respects, the complexity of our
Constitution is a reflection of the intricate cultural and social structures
within Indian society. The Constitution has attempted to bring about an
equilibrium in which a diversity of tradition, plurality of opinion and
D
variations of culture can co-exist in one nation. To ignore the infinite
variety which underlies our constitutional culture is to risk its cohesion.
The integrity of the nation is founded on accepting and valuing co-
existence. Constitutional doctrine must be evolved keeping in mind these
principles.
E 21. Unlike many other constitutional texts in the democratic world,
the Indian Constitution has lived through a multitude of amendments. In
Puttaswamy30, this Court had held:
“The Constitution was drafted and adopted in a historical context.
The vision of the founding fathers was enriched by the histories
F of suffering of those who suffered oppression and a violation of
dignity both here and elsewhere. Yet, it would be difficult to dispute
that many of the problems which contemporary societies face
would not have been present to the minds of the most perspicacious
draftsmen. No generation, including the present, can have a
monopoly over solutions or the confidence in its ability to foresee
G the future.”
The exercise of the amendatory power cannot be construed as a reflection
of the deficiency of its original text, as much as it is a reflection of the
felt need to create new institutions of governance, recognize new rights
30
(2017) 10 SCC 1
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 197
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

and to impose restraints upon the assertion of majoritarian power. Over A
time, the Constitution was amended to provide constitutional status to
local self-governing bodies, such as the Panchayats in Part IX, the
municipalities in Part IXA and co-operative societies in Part IXB. These
structures of governance have been constitutionally entrenched to
enhance participatory and representative democracy. In other
B
amendments, new rights have been expressly recognized such as the
right to free and compulsory education for children between the ages of
six and fourteen in Article 21A. As the nation gained sobering experiences
about the excess of political power during the Emergency, the constituent
power responded by introducing limitations (through the Forty Fourth
Amendment) on the exercise of the emergency powers under Article C
352 and by circumscribing the power to override elected governments in
the states under Article 356.
22. The basic structure doctrine was evolved by judicial
interpretation in Kesavananda to ensure that the fundamentals of
constitutional governance are not effaced by the exercise of the D
constituent power to amend the Constitution. The postulate of the doctrine
is that there are values which are so fundamental and intrinsic to the
democratic way of life, a republican form of government and to the
preservation of basic human freedoms, that these must lie outside the
power of legislative majorities to override by the exercise of constituent
powers. The doctrine was a warning to “a fledgling democracy of the E
perils of brute majoritarianism”31. The basic structure doctrine and the
power of judicial review have ensured (in the course of the previous
thirty four years) the preservation of basic constitutional safeguards and
the continuance of constitutional institutions accountable to the sovereignty
of the people. The basic structure doctrine imposes a restraint on the F
exercise of the constituent power. Equally, it is necessary to remember
that the exercise of the constituent power may in certain cases be
regarded as enhancing the basic structure. The constituent power
enhances the basic structure when it recognizes new sets of human
freedoms, sets up new structures of representative governance in the
constitutional text or imposes restraints on the power of the state to G
override popularly elected institutions. Secularism, which is inherent in
the entire constitutional framework and flows from fundamental rights
31
Raju Ramchandran, “The Quest and the Questions”, Outlook (25 August, 2014),
available at https://www.outlookindia.com/magazine/story/the-quest-and-the-ques-
tions/291655 H
198 SUPREME COURT REPORTS [2018] 7 S.C.R.

A guaranteed in Part III, is a part of the basic structure of the Constitution.32
Secularism is based on the foundations of constitutional morality and
reflects the idea of our democracy. The insertion of the word “Secular”
into the Preamble of the Constitution, by the 42nd amendment, did not
redefine the Constitution’s identity. The amendment formally recognized
the bedrock of the constitutional scheme. The amendment solidified the
B
basic structure of the Constitution.
23. Democracy has been held, by a Constitution Bench of this
Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic
structure of our Constitution. The insertion of Article 239AA by the
exercise of the constituent power is an instance of an amendment elevating
C a democratic form of governance to a constitutional status for the National
Capital Territory. In interpreting such exercises of the constituent power
which fortify the basic structure, the meaning of the constitutional text
must be guided by the intent underlying such exercises of the constituent
power. A nine-judge Bench of this Court in I.R. Coelho v State of
D Tamil Nadu34 had held thus:
“The Constitution is a living document. The constitutional
provisions have to be construed having regard to the march
of time and the development of law. It is, therefore,
necessary that while construing the doctrine of basic
E structure due regard be had to various decisions which led
to expansion and development of the law. The principle of
constitutionalism is now a legal principle which requires control
over the exercise of Governmental power to ensure that it does
not destroy the democratic principles upon which it is based. These
democratic principles include the protection of fundamental rights.
F The principle of constitutionalism advocates a check and balance
model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centers of decision making.
The principle of constitutionalism advocates a check and balance
model of the separation of powers, it requires a diffusion of powers,
G necessitating different independent centers of decision making.”
(emphasis supplied)
32
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of
India, (1994) 3 SCC 1
33
1992 SCC Supl. (2) 651
34
(2007) 2 SCC 1
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 199
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

It is in this background that it would be necessary to turn to the provisions A
of Part VIII of the Constitution.
D Part VIII of The Constitution: The Union Territories
24. Part VIII of the Indian Constitution, prior to 1956, dealt with
Part C of the First Schedule. Part VIII was amended by the Seventh
Amendment to the Constitution in 1956. Simultaneously, the First Schedule B
was amended by the Seventh Amendment (together with Article 1). In
place of the Part A, B and C States, the Constitution now provides a
division of the territory of the nation between the States and the Union
Territories. While clause 1 of Article 1 stipulates that India is a Union of
States, clause 2 incorporates the States and the Union Territories of the C
First Schedule. The territory of India, as Clause 3 of Article 1 provides,
comprises of :
(i) The territories of the States;
(ii) The Union territories; and
D
(iii) Territories which may be acquired.
25. Article 239 provides thus:
“239. (1) Save as otherwise provided by Parliament by law, every
Union territory shall be administered by the President acting, to
such extent as he thinks fit, through an administrator to be E
appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President
may appoint the Governor of a State as the administrator of an
adjoining Union territory, and where a Governor is so appointed,
he shall exercise his functions as such administrator independently F
of his Council of Ministers.”
Clause 1 of Article 239 has several elements, which are significant to
understanding its content:
(i) Clause 1, as its opening words indicate, is subject to Parliament
providing “otherwise… by law”; G

(ii) Every Union territory is administered by the President;
(iii) Administration of a Union territory by the President is to such
extent as the President “thinks fit”;
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200 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (iv) Administration by the President is through the office of an
Administrator; and
(v) The Administrator is appointed by the President with a
designation as he will specify.
Article 239A, which was inserted by the fourteenth amendment to the
B Constitution in 1962, provides as follows:
“239A. Creation of local Legislatures or Council of Ministers or
both for certain Union territories.—
(1) Parliament may by law create for the Union territory of
C Puducherry—
(a) a body, whether elected or partly nominated and partly
elected, to function as a Legislature for the Union
territory, or
(b) a Council of Ministers,
D
or both with such constitution, powers and functions, in each
case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) shall not be
deemed to be an amendment of this Constitution for the
purposes of article 368 notwithstanding that it contains any
E provision which amends or has the effect of amending this
Constitution.”
Article 239A applies to the Union territory of Puducherry (Goa, Daman
and Diu were excluded with effect from 1987 by the Goa, Daman and
Diu Reorganisation Act, 1987).
F
26. Article 239A is enabling. It enables Parliament to enact a law
for the Union territory so as to create a legislature or a Council of Ministers
or both. In creating a legislature, Parliament is left free to determine
whether the legislative body should be entirely elected or should consist
of a certain number of nominated legislators. Parliament, in its legislative
G power, may decide either to create a legislature or a Council of Ministers.
Whether to do so, in the first place, is left to its discretion. Whether one
or both of such bodies should be created is also left to the legislative
authority of Parliament. If it decides to enact a law, Parliament is
empowered to specify the constitutional powers and functions of the
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 201
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

legislature and of the Council of Ministers. While the Constitution provides A
an enabling provision, the setting up of a legislature, the creation of a
Council of Ministers and the ambit of their authority are to be governed
by an ordinary law to be enacted by Parliament. Such a law, clause 2
clarifies, would not constitute an amendment of the Constitution under
Article 368 even if it were to contain provisions which amend or have
B
the effect of amending the Constitution. Creating democratic institutions
for governing Union territories under Article 239A was left to the
legislative will of Parliament.
27. In contrast to the provisions of Article 239A is the text which
the Constitution has laid down to govern Delhi. The marginal note to
Article 239AA provides that the Article makes “special provisions with C
respect to Delhi”. Article 239AA provides thus:
“239AA. Special provisions with respect to Delhi.—
(1) As from the date of commencement of the Constitution (Sixty-
ninth Amendment) Act, 1991, the Union territory of Delhi D
shall be called the National Capital Territory of Delhi (hereafter
in this Part referred to as the National Capital Territory) and
the administrator thereof appointed under article 239 shall be
designated as the Lieutenant Governor.
(2) (a) There shall be a Legislative Assembly for the National E
Capital Territory and the seats in such Assembly shall be
filled by members chosen by direct election from territorial
constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division F
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
G
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;

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

A and any reference in articles 326 and 329 to “appropriate
Legislature” shall be deemed to be a reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or
any part of the National Capital Territory with respect to any
B of the matters enumerated in the State List or in the Concurrent
List in so far as any such matter is applicable to Union
territories except matters with respect to Entries 1, 2 and 18
of the State List and Entries 64, 65 and 66 of that List in so
far as they relate to the said Entries 1, 2 and 18.
C (b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect
to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a
D law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the
Legislative Assembly, then, in either case, the law made by
Parliament, or, as the case may be, such earlier law, shall
prevail and the law made by the Legislative Assembly shall,
E to the extent of the repugnancy, be void : Provided that if any
such law made by the Legislative Assembly has been reserved
for the consideration of the President and has received his
assent, such law shall prevail in the National Capital Territory :
Provided further that nothing in this sub-clause shall prevent
F Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying or
repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more
than ten per cent. of the total number of members in the
G Legislative Assembly, with the Chief Minister at the head to
aid and advise the Lieutenant Governor in the exercise of his
functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except in so
far as he is, by or under any law, required to act in his discretion
: Provided that in the case of difference of opinion between
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 203
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

the Lieutenant Governor and his Ministers on any matter, the A
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the
Lieutenant Governor in any case where the matter, in his
opinion, is so urgent that it is necessary for him to take
B
immediate action, to take such action or to give such direction
in the matter as he deems necessary.
(5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the
advice of the Chief Minister and the Ministers shall hold office
during the pleasure of the President. C

(6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing D
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the
purposes of article 368 notwithstanding that it contains any
provision which amends or has the effect of amending, this E
Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in
relation to the National Capital Territory, the Lieutenant
Governor and the Legislative Assembly, as they apply in relation
to the Union territory of Puducherry, the administrator and its F
Legislature, respectively; and any reference in that article to
“clause (1) of article 239A” shall be deemed to be a reference
to this article or article 239AB, as the case may be.”
Article 239AA is a product of the exercise of the constituent power,
tracing its origins to the sixty ninth amendment which was brought into
G
force on 1 February 1992. Under clause 1, with the commencement of
the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory
of Delhi is called the National Capital Territory of Delhi. Its Administrator,
who is appointed under Article 239, is designated as the Lieutenant
Governor. The administrator appointed by the President under Article
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204 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 239(1) is designated as the Lieutenant Governor for the National Capital
Territory. The source of the power to appoint the Lieutenant Governor
is traceable to Article 239(1).
28. Clause 2 of Article 239AA contains a constitutional mandate
that there shall be a legislative assembly for the NCT. This is unlike
B Article 239A which left it to the discretion of Parliament to create a
legislature by enacting a law for the Union territories governed by that
provision. Article 239AA imprints the legislative assembly for the NCT
with a constitutional status. Its representative character is reflected in
the mandate that the members of the legislative assembly shall be “chosen
by direct election from territorial constituencies” in the NCT. The
C necessity of direct election underlines the rule of participatory democracy
and of the members of the legislative assembly being representatives of
the people residing in the territorial constituencies comprised in the NCT.
Parliament has been assigned the role of regulating through a law, the
number of seats in the legislative assembly, reservation for the scheduled
D castes, defining the division of the NCT into territorial constituencies
and of elucidating the functioning of the assembly in all matters. The
importance which the Constitution ascribes to the status of the legislative
assembly is evinced by the adoption of the provisions of Articles 324 to
327 and 329 in relation to the NCT as they apply in the case of the
legislative assembly of a state. These articles (which are contained in
E Part XV of the Constitution) ascribe constitutional status to the Election
Commission of India and assign to it the task of superintending, directing
and controlling the conduct of all elections. Article 325 is a guarantee
against discrimination based on religion, race, caste or sex. Article 326
embodies the principle of adult suffrage. Article 327 empowers Parliament
F to enact a law in regard to the elections to the legislatures. Article 329
imposes a restraint on interference by courts in electoral matters. The
Constitution has considered the institutional existence of a legislative
assembly for Delhi to be a matter of such importance as to be elevated
to a constitutional requirement in clause 2 of Article 239AA and to warrant
the guarantee of free and fair elections which is enforced through the
G constitutionally entrenched position of the Election Commission of India.
29. Clause 3 of Article 239 AA defines the legislative powers of
the legislative assembly for the NCT. Sub clause (a) empowers the
legislative assembly for the NCT to enact law with respect to any of the
matters contained in the State or Concurrent lists to the Seventh Schedule
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 205
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

of the Constitution. The ability of the legislative assembly is circumscribed A
“insofar as any such matter is applicable to Union territories”. The
legislative assembly can hence enact legislation in regard to the entries
in the State and Concurrent lists to the extent to which they apply to a
Union territory. Of equal significance is the exception which has been
carved out : Entries 1, 2 and 18 of the State List (and Entries 64, 65 and
B
66 insofar as they relate to Entries 1,2 and 18) lie outside the legislative
powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the
State List are thus:
“1. Public order (but not including the use of any naval, military
or air force or any other armed force of the Union or of any
other force subject to the control of the Union or of any C
contingent or unit thereof in aid of the civil power).
2. Police (including railway and village police) subject to the
provisions of entry 2A of List I.
18. Land, this is to say, rights in o over land, land tenures including D
the relation of landlord and tenant, and the collection of rents;
transfer and alienation of agricultural land; and improvement
and agricultural loans; colonization.”
The subjects of public order, police and land do not lie within the domain
of the legislative assembly. Entries 64, 65 and 66 provide thus : E
“64. Offences against laws with respect to any of the matters in
this List.
65. Jurisdiction and powers of all courts, except the Supreme
Court, with respect to any of the matters in this List.
F
66. Fees in respect of any of the matters in this List, but not
including fees taken in any court.”
The legislative assembly is disabled from enacting laws governing the
above entries (which deal with offences against laws referable to the
State List, jurisdiction of courts and fees) insofar as they relate to public
order, the police and land. This is a constitutional indication of the fact G
that the NCT has been considered to be of specific importance from the
perspective of the nation to exclude three important areas which have a
vital bearing on its status as a national Capital. Apart from the exclusions,
the over-arching importance of the regulatory power of Parliament is
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206 SUPREME COURT REPORTS [2018] 7 S.C.R.

A underlined by the conferment upon Parliament of legislative power over
State as well as Concurrent List subjects in the Seventh Schedule. Unlike
state legislative assemblies which wield legislative power exclusively
over the State List, under the provisions of Article 246(3), the legislative
assembly for NCT does not possess exclusive legislative competence
over State List subjects. By a constitutional fiction, as if it were, Parliament
B
has legislative power over Concurrent as well as State List subjects in
the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA
contains a provision for repugnancy, similar to Article 254. A law enacted
by the legislative assembly would be void to the extent of a repugnancy
with a law enacted by Parliament unless it has received the assent of
C the President. Moreover, the assent of the President would not preclude
Parliament from enacting legislation in future to override or modify the
law enacted by thelegislative assembly. Hence, the provisions of clause
2 and clause 3 of Article 239AA indicate that while conferring a
constitutional status upon the legislative assembly of NCT, the Constitution
has circumscribed the ambit of its legislativePowers firstly, by carving
D
out certain subjects from its competence (vesting them in Parliament)
and secondly, by enabling Parliament to enact law on matters falling
both in the State and Concurrent lists. Moreover, in the subjectswhich
have been assigned to it, the legislative authority of the Assembly is not
exclusive and is subject to laws which are enacted by Parliament.
E E Cabinet Form of Government
30. Before deliberating upon the nature and extent of the executive
power of the NCT, it is necessary to discuss the essential features of the
cabinet form of government, which are of paramount importance in the
current context.
F Collective Responsibility
31. Collective responsibility is a cornerstone of the Westminster
model. Initially developed35 as a constitutional convention in Britain
between 1780 and 1832, it began to appear36 in text-books in the 1860s
and 1870s. In 1867, Walter Bagehot, in his classic work titled “The English
G Constitution”, called the “House of Commons” as “a real choosing body”,
which decides the path that the nationwould follow.37 The consequence
35
AH Birch, Representative and Responsible Government, George Allen & Unwin Ltd
(1964), at page 131
36
Ibid, at page 136
37
Walter Bagehot, The English Constitution, 2nd Edition (1873), at page 118, available at
H https://socialsciences,mcmaster,ca/econ/ugcm/3113/bagehot/constitution.pdf
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 207
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

of such a systemic expectation in the British Parliamentary system, A
Bagehot declared, was that the public can, “through Parliament, turn out
an administration which is not doing as it likes, and can put in an
administration which will do as it likes”38. The responsibility of Ministers
was set as their liability “to have all their public acts discussed in
Parliament”39. The Cabinet was defined as “a collective body bound
B
together by a common responsibility”.40 Later, Lord Salisbury formulated
this common responsibility thus:
“[F]or all that passes in a Cabinet, each Member of it who
does not resign is absolutely and irretrievably responsible,
and that he has no right afterwards to say that he agreed in one
case to a compromise, while in another he was persuaded by one C
of his Colleagues... It is only on the principle that absolute
responsibility is undertaken by every Member of a Cabinet who,
after a decision is arrived at, remains a Member of it, that the joint
responsibility of Ministers to Parliament can be upheld, and one
of the most essential conditions of Parliamentary responsibility D
established.”41 (Emphasis supplied)
Ministers were liable to lose their offices, if they failed to retain the
confidence of the House of Commons or the Parliament.
In the 1880s, Dicey, “Law of the Constitution”, propounded that:
E
“[It] is now well-established law that the Crown can act only
through Ministers and according to certain prescribed forms which
absolutely require the co-operation of some Minister, such as a
Secretary of State or the Lord Chancellor, who thereby becomes
not only morally but legally responsible for the legality of the act
in which he takes part. Hence, indirectly but surely, the action of F
every servant of the Crown, and therefore, in effect of the Crown
itself, is brought under the supremacy of the land. Behind
parliamentary responsibility lies legal liability, and the acts of
Ministers no less than the acts of subordinate officials are made
subject to the rule of law.”42
G
38
Ibid, at page 34
39
Edward A. Freeman, The Growth of the English Constitution (1872)
40
Ibid
41
HLDeb vol 239 cc 833-4, 8 April 1878
42
Ibid, at page 327
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208 SUPREME COURT REPORTS [2018] 7 S.C.R.

A This fixed the responsibility of the Cabinet for the “general conduct of
affairs”43 of the government.
32. In the twentieth century, Sir Ivor Jennings conceptualized
collective responsibility of a Cabinet Government, thus:
“A Government that cannot make up its mind on a fundamental
B issue ought not to be the Government and will be so regarded in
the constituencies. Its fall may be regarded as imminent.”44
The conduct of the cabinet determines the fate of the government.
33. Collective responsibility of Ministers to the Parliament is
C comprehended in two aspects: (i) collective responsibility of Ministers
for the policies of the government; and (ii) individual responsibility of
Ministers for the work of their governments.45 The idea behind this
bifurcation, as explained by Birch, is to hold a government “continuously
accountable for its actions, so that it always faces the possibility that a
major mistake may result in a withdrawal of Parliamentary support.”46
D In the British system, collective responsibility work on basis of certain
precepts which define and regulate the existence of government.
Geoffrey Marshall (1989) identifies three strands within the principle47:
i) The confidence principle: a government can only remain in
office for so long as it retains the confidence of the House of
E Commons, a confidence which can be assumed unless and
until proven otherwise by a confidence vote;
ii) The unanimity principle: all members of the government
speak and vote together in Parliament, save in situations where
the Prime Minister and the Cabinet themselves make an
F exception such as a free vote or an ‘agreement to differ’;
and
iii) The confidentiality principle: unanimity, as a universally
applicable situation, is a constitutional fiction, but one which
must be maintained, and is said to allow frank ministerial
G discussion within the Cabinet and the Government.
43
Ibid, at page 327
44
Ivor Jennings, Cabinet Government, Cambridge University Press (1959), 3rd Edition,
at page 279
45
AH Birch (Supra note 35), at page 131
46
Ibid, at page 137
47
H G Marshall, Ministerial responsibility, Oxford University Press (1989), at pages 2-4
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 209
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

34. A study conducted by the London School of Economics and A
Political Science in 2007 examined the individual and collective
performance of Ministers between 1945-1997. The findings of the study
revealed that though the principle acted “as a form of protection for an
individual Minister when policies pursued in his department are deemed
to have failed”, it also induced a cost for being a member of the
B
government. All the Ministers of the government, as a consequence of
the principle of solidarity, were perceived as jointly sharing the
responsibility of policy failure.48
The doctrine of collective responsibility has evolved as one of the
indispensable features of the parliamentary system of government and
reflects the political engagement between government and Parliament. C
In a parliamentary democracy, the nuances of the doctrine are political.49
To maintain the notion of “collegiality and coherence”, the ministers work
as a team. In the Australian context, Wanna (2012) postulates that
collective responsibility thereby acts as an under-flowing current
necessary for the survival of a government: D
“To survive as a government, ministries must show they can
maintain the confidence of the house, put up a credible front to
their political opponents and the media, and as a working ministry
find ways to deal with the business of state, much of which will
involve making collective decisions and imposing collegial executive E
authority.”50
35. Granville Austin observes that the framers of India’s
Constitution conceived that the democratic values of the Constitution
would be achieved in “the institutions of direct, responsible government”51.
The members of the Constituent Assembly borrowed the F
48
Samuel Berlinski, Torun Dewan and Keith Dowding, “Individual and Collective Per-
formance and the Tenure of British Ministers 1945-1997”, London School of Eco-
nomics & Political Science (February 2007), available at http://eprints.Ise.ac.uk/19281/
1/Individual and Collective Performance and the Tenure of British Ministers 1945-
1997.pdf
49
V Sudheesh Pai, “Is The River Rising Higher Than The Source? Nature Of Rules G
Business - Directory Or Mandatory?” Journal of Indian Law Institute (2011), at page
513
50
John Wanna, “Ministers as Ministries and the Logic of their Collective Action”, in
Keith Dowding & Chris Lewis (eds.), Ministerial Careers and Accountability in the
Australian Commonwealth Government, ANU Press (2012), available at http://press-
files.anu.edu.au/downloads/press/p191121/pdf/ch023.pdf
51
Granville Austin (Supra note 3), at page 145 H
210 SUPREME COURT REPORTS [2018] 7 S.C.R.

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

52
Ibid, at page 166
53
Ibid, at page 172
54
G Dilip Mookherjee, “Government Accountability” in Niraja Gopal Jayal and Pratap
Bhanu Mehta (eds.), The Oxford Companion to Politics in India, Oxford University
Press (2010), at page 477
55
Shubhankar Dam, “Executive” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu
Mehta (eds.), The Oxford Handbook of the Indian Constitution, Oxford University
Press (2016), at page 319
56
Ibid
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 211
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Collective responsibility also exists in practice in situations where ministers A
have no knowledge of the actions taken by the subordinate officers of
their respective departments:
“Governing is a complex affair; hundreds of officials in dozens of
departments make many decisions on a daily basis… These
officials are also part of the executive, and ministers are responsible B
for those that serve in their departments… Ordinarily, ministers
busy themselves with policy issues; matters of implementation
are usually left to officials over whom ministers command little or
no oversight. Yet, when they act, subordinates notionally do so on
behalf of ministers. Ministers, therefore, cannot seek refuge in
ignorance. Nor can they absolve themselves by pointing to their C
officers. Both inside and outside Parliament, they are accountable
for their departmental shortcomings.”57
36. Collective responsibility, as a principle and practice, has been
given effect authoritatively in several judgments of this Court. The
Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v D
The State of Punjab58, examined the functions of the executive. The
Court held that the President is “a formal or constitutional head of the
executive” and that the “real executive powers” are vested in the
Ministers or the Cabinet:
“Our Constitution, though federal in its structure, is modelled on E
the British Parliamentary system where the executive is deemed
to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the
condition precedent to the exercise of this responsibility is its
retaining the confidence of the legislative branch of the State… F
In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of Ministers
consisting, as it does, of the members of the legislature is, like the
British Cabinet, “a hyphen which joins, a buckle which fastens
the legislative part of the State to the executive part”. The Cabinet
enjoying, as it does, a majority in the legislature G
concentrates in itself the virtual control of both legislative
and executive functions; and as the Ministers constituting
the Cabinet are presumably agreed on fundamentals and
57
Ibid, at page 320
58
(1955) 2 SCR 225 H
212 SUPREME COURT REPORTS [2018] 7 S.C.R.

A act on the principle of collective responsibility, the most
important questions of policy are all formulated by them.”
(Emphasis supplied)
The relationship between the responsibility of the Cabinet and individual
Ministers was dealt with in a Constitution Bench decision in A Sanjeevi
B Naidu v State of Madras59:
“The cabinet is responsible, to the legislature for every action
taken in any of the ministries. That is the essence of joint
responsibility. That does not mean that each and every decision
must be taken by the cabinet. The political responsibility of the
C Council of Ministers does not and cannot predicate the personal
responsibility of the Ministers to discharge all or any of the
governmental functions. Similarly an individual Minister is
responsible to the legislature for every action taken or omitted to
be taken in his ministry. This again is a political responsibility and
not personal responsibility.”
D
In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking
for the majority) opined that Ministers must accept responsibility for
every executive act:
“In England, the sovereign never acts on his own responsibility.
E The power of the sovereign is conditioned by the practical rule
that the Crown must find advisers to bear responsibility for his
action. Those advisers must have the confidence of the House of
Commons. This rule of English Constitutional law is incorporated
in our Constitution. The Indian Constitution envisages a
parliamentary and responsible form of Government at the Centre
F and in the States and not a Presidential form of Government. The
powers of the Governor as the Constitutional head are not
different.”
A seven-judge Bench decision of this Court in State of Karnataka v
Union of India61 explained the substance of a government’s collective
G responsibility. All the Ministers are treated as one entity. A government
could stay in office only so long as it commands the support and confidence
of a majority of the Members of the Legislature. The government is
59
(1970) 1 SCC 443
60
(1974) 2 SCC 831
H 61
(1977) 4 SCC 608
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 213
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

The decision in Common Cause, A Registered Society v Union of
India62 delivered by a three-judge Bench held that the concept of
collective responsibility is essentially a “political concept” and that the
country is governed by the party in power on the basis of the policies
endorsed by its Cabinet. The Court held that the concept of collective D
responsibility has two meanings:
“The first meaning which can legitimately be ascribed to it is that
all members of a Govt. are unanimous in support of its policies
and would exhibit that unanimity on public occasions although
while formulating the policies, they might have expressed a E
different view in the meeting of the Cabinet. The other meaning
is that Ministers, who had an opportunity to speak for or against
the policies in the Cabinet are thereby personally and morally
responsible for its success and failure.”
The decision in Subramanian Swamy v Manmohan Singh63 theorises F
that collective responsibility may be enforced only politically, thereby
making its legal implications unclear. In this case, a Minister was charged
with committing grave irregularities in the grant of telecom licenses.
The appellant had provided documents to the Prime Minister’s Office
(PMO) for the grant of sanction to prosecute under the Prevention of G
Corruption Act, 1988. This Court held:
“In our view, the officers in the PMO and the Ministry of Law
and Justice, were duty bound to apprise Respondent No. 1 [Prime
62
(1999) 6 SCC 667
63
(2012) 3 SCC 64 H
214 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Minister] about seriousness of allegations made by the Appellant…
By the very nature of the office held by him, Respondent No. 1 is
not expected to personally look into the minute details of each and
every case placed before him and has to depend on his advisers
and other officers. Unfortunately, those who were expected to
give proper advice to Respondent No. 1 and place full facts and
B
legal position before him failed to do so. We have no doubt that if
Respondent No. 1 had been apprised of the true factual and legal
position regarding the representation made by the Appellant, he
would have surely taken appropriate decision and would not have
allowed the matter to linger for a period of more than one year.”
C The decision implied that “individual ministerial decisions… do not always
generate collective legal responsibilities”64.
37. Collective responsibility represents a seminal principle for
modern parliamentary democracies.65 Collective responsibility of the
Council of Ministers ensures accountability to the legislature and to the
D electorate. Collective responsibility governs the democratic process, as
it makes a government liable for every act it does. It envisages that a
government works effectively to ensure and fulfil the interests of the
public. It purports to ensure transparency in government decisions.
Collective responsibility rests on the foundations of constitutional morality,
E which reflects constitutional ethics.
Aid and Advice
38. Collective responsibility under our Constitution is based on a
“slightly modified version”66 of the British cabinet system. There is a
direct relationship between collective responsibility and the form of
F government envisaged by the Constitution. The President was designated
as the titular head of government. The founding fathers and mothers of
the Constitution adopted the convention which made the President
generally bound by the advice of the Council of Ministers. This was
explained by Dr B R Ambedkar, while introducing the Draft Constitution
G on 4th November 1948.

64
The Oxford Handbook of the India Constitution (Supra note 52), at page 320
65
See also Amarinder Singh v Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC
113; Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1; State of Himachal
Pradesh v. Satpal Saini, 20117(2) SCALE 292
66
H Granville Austin (Supra note 3), at page 145
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 215
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

“Under the Draft Constitution the President occupies the same A
position as the King under the English Constitution. He is the head
of the State but not of the Executive. He represents the Nation
but does not rule the Nation. He is the symbol of the nation. His
place in the administration is that of a ceremonial device on a seal
by which the nation’s decisions are made known… The President
B
of the Indian Union will be generally bound by the advice of
his Ministers. He can do nothing contrary to their advice
nor can he do anything without their advice. The President
of the United States can dismiss any Secretary at any time.
The President of the Indian Union has no power to do so
long as his Ministers command a majority in Parliament… C
A democratic executive must satisfy two conditions - (1) It must
be a stable executive and (2) it must be a responsible executive.
Unfortunately it has not been possible so far to devise a system
which can ensure both in equal degree…
In England, where the Parliamentary system prevails, the D
assessment of responsibility of the Executive is both daily and
periodic. The daily assessment is done by members of Parliament,
through questions, Resolutions, No-confidence motions,
Adjournment motions and Debates on Addresses… The daily
assessment of responsibility which is not available under the E
American system is it is felt far more effective than the periodic
assessment and far more necessary in a country like India. The
Draft Constitution in recommending the Parliamentary
system of Executive has preferred more responsibility to
more stability.”67 (Emphasis supplied)
F
Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar:
“…that the Council of Ministers shall be collectively responsible
to the House of the People. If a President stands in the way of
the Council of Ministers discharging that responsibility to the House
he will be guilty of violation of the Constitution and he will be even G
liable to impeachment. Therefore it is merely a euphemistic
way of saying that the President shall be guided by the advice
of his Ministers in the exercise of his functions. This
Council of Ministers will be collectively responsible to the
67
Constituent Assembly Debates, Vol. 7 (4th November 1948)
H
216 SUPREME COURT REPORTS [2018] 7 S.C.R.

A House of the People, and the House of the People must
meet all situations in regard to the budget, in regard to
legislation, in regard to every matter connected with the
administration of the country. Therefore, if the Council of
Ministers is to discharge their responsibility, it will be the
duty of the President to see that the Constitution is
B
obeyed…”68 (Emphasis supplied)
As the Chairman of the Constituent Assembly, Dr Rajendra Prasad
expected the convention to be developed into a healthy practice in
independent India:
C “We have had to reconcile the position of an elected President
with an elected Legislature and, in doing so, we have adopted
more or less the position of the British Monarch for the President…
[H]is position is that of a Constitutional President.
Then we come to the Ministers. They are of course responsible
D to the Legislature and tender advice to the President who is bound
to act according to that advice. Although there are no specific
provisions, so far as I know, in the Constitution itself making it
binding on the President to accept the advice of his Ministers, it
is hoped that the convention under which in England the
King acts always on the advice of his Ministers will be
E established in this country also and, the President, not so
much on account of the written word in the Constitution,
but as the result of this very healthy convention, will become
a Constitutional President in all matters.” 69 (Emphasis
supplied)
F The Constitution makers envisaged and adopted a limited role for the
President as the nominal head of the Indian State and imposed sanctions
on his or her constitutional authority by making them bound by the decisions
of the Council of Ministers generally. A similar role was adopted for the
Governor in the States.
G 39. After the Constitution had come into force, this Court gave
judicial sanction to the convention. In U.N.R. Rao v Smt. Indira
Gandhi70, the Constitution Bench held:
68
Ibid
69
Constituent Assembly Debates, Vol. 11 (26th November, 1949)
70
H (1971) 2 SCC 63
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 217
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

“The President as well as the Governor is the constitutional or
formal head. The President as well as the Governor exercises his
powers and functions conferred on him by or under the Constitution
on the aid and advice of his Council of Ministers, save in spheres
where the Governor is required by or under the Constitution to F
exercise his functions in his discretion. Wherever the Constitution
requires the satisfaction of the President or the Governor for the
exercise by the President or the Governor of any power or function,
the satisfaction required by the Constitution is not the personal
satisfaction of the President or Governor but the satisfaction of G
the President or Governor in the Constitutional sense in the Cabinet
system of Government, that is, satisfaction of his Council of
Ministers on whose aid and advice the President or the Governor
generally exercise all his powers and functions. The decision of
71
(1974) 2 SCC 831
H
218 SUPREME COURT REPORTS [2018] 7 S.C.R.

A any Minister or officer under rules of business made under any of
these two Articles 77(3) and 166(3) is the decision of the President
or the Governor respectively. These articles did not provide for
any delegation. Therefore, the decision of Minister or officer under
the rules of business is the decision of the President or the
Governor.”
B
The Court summed up the position of law as follows:
“[W]e hold that the President or the Governor acts on the aid and
advice of the Council of Ministers with the Prime Minister at the
head in the case of the Union and the Chief Minister at the head
C in the case of State in all matters which vests in the executive
whether those functions are executive or legislative in character.
Neither the President nor the Governor is to exercise the executive
functions personally… Where the Governor has any discretion
the Governor acts on his own judgment. The Governor exercises
his discretion in harmony with his Council of Ministers.”
D
Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati,
delivered a concurring opinion.
40. The convention that the President shall be bound by the aid
and advice tendered by the Council of Ministers was explicitly made a
E part of the Constitution by the forty-second constitutional amendment.
By the amendment, Article 74(1) was amended to ensure that the
President shall, in the exercise of his functions, act in accordance with
the advice tendered by the Council of Ministers. Article 74(1) reads
thus:

F “There shall be a Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall, in the exercise
of his functions, act in accordance with such advice.”
The Forty-fourth Constitution Amendment added another proviso to
Article 74 (1) so that the “President may require the Council of Ministers
to reconsider such advice, either generally or otherwise, and the President
G
shall act in accordance with the advice tendered after such
reconsideration”. Therefore, the position which emerges is that where it
has not been expressly provided, the executive head shall be bound by
the advice tendered by the Council of Ministers. This constitutional
scheme, after the forty-second and forty-fourth amendments, has been
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 219
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

judicially reaffirmed. Authoring the judgment of the Constitution Bench A
in PU Myllai Hlychho v State of Mizoram72, Justice KG Balakrishnan
(as he then was) held that the “satisfaction” of the Governor required by
the Constitution for the exercise of any power or function is not the
personal satisfaction of the Governor but a satisfaction in the constitutional
sense under the Cabinet system of Government, i.e. on the aid and advice
B
of the Council of Ministers.
Justice Madan B Lokur, while delivering the concurring opinion in the
five-judge Constitution Bench deciJsion in Nabam Rebia and Bamang
Felix v Deputy Speaker, Arunachal Pradesh Legislative
Assembly73, opined that the absence of the expression “his individual
judgment” makes it apparent that the Governor would always be bound C
by the aid and advice of the Council of Ministers, except in matters
where he/she is permitted under the Constitution to act “in his discretion”.
41. Collective responsibility and aid and advice are mutually
reinforcing principles. Each of them and both in conjunction affirm and
enhance the democratic values on which the Cabinet form of government D
is founded. Collective responsibility ensures that government speaks as
one political entity which owes allegiance to the elected representatives
of the people. By ensuring that government is responsible in its decision
making to the legislature, the principle of collective responsibility fosters
a responsive and accountable government. Modern government, with E
its attendant complexities, comprises of several components and
constituent elements. They include Ministers who are also elected as
members of the legislature and unelected public officials who work on
issues of daily governance. Discussion and dialogue are accepting of
dissent. In a system of constitutional governance, collective decision
making must allow room for differences. A synthesis can emerge in F
government, when political maturity and administrative wisdom combine
in arriving at acceptable solutions to the problems of governance.
Collective responsibility allows for and acknowledges differences in
perception and ideology. Yet, what the doctrine does is to place a decision
taken by a constituent part of the government as a decision of the G
government. All Ministers are bound by a decision taken by one of them
or their departments. In terms of its accountability to the legislature,
government is treated as one decision making unit so that the politics of
72
(2005) 2 SCC 92
73
(2016) 8 SCC 1 H
220 SUPREME COURT REPORTS [2018] 7 S.C.R.

A decision making and administrative divergences do not dilute from the
responsibility which government owes as a political unit to the legislature.
This is crucial to ensuring that government is responsive to the aspirations
of the people in whom political sovereignty resides.
42. In Kihoto Hollohan v Zachillhu 74 , Chief Justice
B Venkatachaliah speaking for this Court had held thus:
“Parliamentary democracy envisages that matters involving
implementation of policies of the Government should be discussed
by the elected representatives of the people. Debate, discussion
and persuasion are, therefore, the means and essence of the
C democratic process. During the debates the Members put forward
different points of view. Members belonging to the same political
party may also have, and may give expression to, differences of
opinion on a matter. Not often the view expressed by the Members
in the House have resulted in substantial modification, and even
the withdrawal, of the proposals under consideration. Debate and
D expression of different points of view, thus, serve an essential and
healthy purpose in the functioning of Parliamentary democracy.”
43. The doctrine of aid and advice enhances the commitment to
the same democratic values which form the basis of collective
responsibility. The mandate that a titular head of government must act
E on the aid and advice of the Council of Ministers ensures that the form
of democratic governance (decision making in the name of a titular head)
is subservient to its substance, whichmandates that the real authority
to take decisions must reside in the elected arm of the government. The
doctrine of aid and advice enhances accountability and responsive
F government – besides representative government – by ensuring that the
real authority to take decisions resides in the Council of Ministers, which
owes ultimate responsibility to the people, through a legislature to whom
the Council is responsible. Collective responsibility and the aid and advice
doctrine must not be construed as disjunctive but together constitute
integral parts of the discourse in ensuring the strength of and commitment
G to democracy.
F The Nature of Executive Power
44. While the legislative power in relation to the NCT is defined in
clauses 2 and 3, its executive power forms the subject matter of clause
74
H 1992 SCC Supp. (2) 651
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 221
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

4 of Article 239AA. Clause 4 institutionalises the position of the Council A
of Ministers with a Chief Minister as its head. The constitutional role
which is ascribed to the Council of Ministers is to aid and advise the
Lieutenant Governor “in the exercise of his functions in relation to matters
with respect to which the legislative assembly has power to make laws”.
There are three salient features of the executive power which is vested
B
in the Council of Ministers. Firstly, the executive power is co-extensive
with the legislative power of the legislative assembly. The executive
power extends to all subjects upon which the assembly can legislate.
The executive power of the Council of Ministers does not extend to
matters on which the legislative assembly cannot legislate. What is beyond
the legislative competence of the Assembly is ultra vires the executive C
powers of the Council of Ministers. Secondly, the delineation of the
executive power in clause 4 defines, at the same time, the relationship
between the Council of Ministers (headed by the Chief Minister) and
the Lieutenant Governor. The Council of Ministers aids and advises the
Lieutenant Governor; the corollary being that the Lieutenant Governor
D
has to act on the basis of the aid and advise tendered by the Council.
Thirdly, the exception to the aid and advice principle in the substantive
part of clause 4 is in respect of those matters in which the Lieutenant
Governor is required to act in its discretion “by or under any law”. In
other words, save and except in regard to areas which are reserved for
the exercise of his discretion, the Lieutenant Governor must act on the E
aid and advice tendered to him by the Council of Ministers.
45. The proviso to clause 4 forms the bone of contention. The
proviso envisages a situation where the Lieutenant Governor has a
difference of opinion with the Council of Ministers “on any matter”. In
such a case, the proviso entails the course of action which the Lieutenant F
Governor must follow. The Lieutenant Governor is under a constitutional
mandate to refer the difference of opinion to the President for decision.
As a consequence, the Lieutenant Governor must necessarily act
according to the decision “given thereon” by the President. Pending a
decision by the President, the Lieutenant Governor is empowered to
take action or to issue directions where the matter is of such an emergent G
nature as to require immediate action. The heart of the matter turns
upon interpreting the expression “difference of opinion” and the words
“on any matter”. Clause 4 does not specify what kind of a difference of
opinion would warrant a reference to the President. Nor for that matter,
H
222 SUPREME COURT REPORTS [2018] 7 S.C.R.

A does it explain the nature of the matter on which a difference of opinion
is contemplated. Before we interpret the ambit of the proviso to clause
4, one facet is clear. Where a difference of opinion has arisen, warranting
a reference to the President, the proviso leaves the course of action to
be followed by the Lieutenant Governor beyond doubt. In a situation
where the conditions under the proviso exist, the Lieutenant Governor
B
has to refer the matter to the President and must abide by the decision
of the President. Reading the substantive part of clause 4 and the proviso,
it is thus evident that the Lieutenant Governor has two courses of action
to follow. Primarily, under the substantive part of clause 4, the Lieutenant
Governor is bound by the aid and advice of the Council of Ministers (the
C only exception being where under a provision of law, he has to act
according to his own discretion). However, the embargo upon the
Lieutenant Governor acting otherwise than on the aid and advice of the
Council of Ministers is lifted only to enable him to refer a difference of
opinion on any matter for a decision by the President. In other words,
the Lieutenant Governor must either abide by the aid and advice tendered
D
by the Council of Ministers or, in the event of a difference of opinion,
reserve it for a decision by the President and thereupon be bound to act
in accordance with the decision which has been rendered by the
President. Pending the decision by the President, the proviso enables
the Lieutenant Governor to attend to a situation requiring immediate
E action.
46. Before elucidating the nature and ambit of the relationship
between the (i) Council of Ministers and the Lieutenant Governor; and
(ii) the Lieutenant Governor and the President, it would be necessary to
advert to some of the other provisions of Article 239AA which have a
F bearing on those relationships. The Lieutenant Governor, as we have
noted earlier, is appointed by the President under Article 239(1) read
with Article 239AA(1). The Chief Minister is appointed by the President,
while the other ministers are appointed by the President on the advice of
the Chief Minister. They hold office during the pleasure of the President
(clause 5). The concept of collective responsibility of the Council of
G Ministers to the legislative assembly is expressly embodied in clause 6.
A comparative analysis of the provisions of the Constitution relating to
the Council of Ministers in the Union and the States indicates that in the
case of the NCT, Article 239AA has engrafted the fundamental precept
of the collective responsibility of an elected government in a cabinet
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 223
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

form of government to the elected legislature. Creating an executive A
power in government which is co-extensive with the legislative power
of the elected legislature and the collective responsibility of the Council
of Ministers to the legislature are intrinsic to the cabinet form of
government.
47. Parliament has, by clause 7 of Article 239AA, been empowered B
to make provisions to implement and to supplement the other provisions
of that Article. Any law enacted by Parliament to do so would not amount
to a constitutional amendment within the meaning of Article 368 even if
it amends or has the effect of amending any provision of the Constitution.
48. Article 239AB enunciates the course of action which the C
President is empowered to follow where there has been a failure of
constitutional machinery in the NCT. Article 239AB provides as follows:
“239AB. Provision in case of failure of constitutional machinery.—
If the President, on receipt of a report from the Lieutenant
Governor or otherwise, is satisfied— D
(a) that a situation has arisen in which the administration of the
National Capital Territory cannot be carried on in accordance
with the provisions of article 239AA or of any law made in
pursuance of that article; or
(b) that for the proper administration of the National Capital E
Territory it is necessary or expedient so to do, the President may
by order suspend the operation of any provision of article 239AA
or of all or any of the provisions of any law made in pursuance of
that article for such period and subject to such conditions as may
be specified in such law and make such incidental and consequential F
provisions as may appear to him to be necessary or expedient for
administering the National Capital Territory in accordance with
the provisions of article 239 and article 239AA.”
Under Article 239AB, the President is empowered to suspend the
operation of (i) any provision of Article 239AA; and of (ii) any provisions
G
of law made in pursuance of that Article and to make provisions to
administer the NCT, in accordance with Articles 239 and 239AA where,
upon a report from the Lieutenant Governor, the President is satisfied
that: (a) A situation has arisen where the administration of the NCT
cannot be carried on in accordance with Article 239AA or a law made
H
224 SUPREME COURT REPORTS [2018] 7 S.C.R.

A in pursuance of it; or (b) For the proper administration of the NCT.
Article 239B as already noted confers power upon the administrator of
Puducherry to promulgate ordinances during the recess of the legislature.
This power is also conferred upon the Lieutenant Governor of the NCT
by clause 8 of Article 239AA. Under Article 241, Parliament is
B empowered to constitute a High Court for a Union territory.
49. In understanding the nature of the executive power in relation
to the NCT of Delhi and the relationship between the Council of Ministers
and the Lieutenant Governor on one hand, and the Lieutenant Governor
and the President on the other, it is necessary to draw a comparison with
C the provisions of the Constitution governing the Union and the States.
Part V of the Constitution (consisting of Articles 52 to 151) deals with
the Union; Part VI (comprising of Articles 152 to 237) deals with the
States and Part VIII (comprising of Articles 239 to 241) deals with the
Union territories. Parts V and VI contain similar elucidations with some
important variations. Both Part V and Part VI deal with the executive,
D the legislative power of the President, and the judiciary. Part V covers
the Union judiciary, while Part VI cover the High Courts and the
subordinate courts in the States.
50. Article 52 provides for the President. Article 53 stipulates that
the executive power of the Union shall be vested in the President and
E shall be exercised by him directly or through subordinate officers in
accordance with the Constitution. Under Article 73, the executive power
of the Union extends (a) to matters with respect to which Parliament
has power to make laws; and (b) to the exercise of rights, authority and
jurisdiction exercisable by the Union government under a treaty or
F agreement. Article 73 provides thus:
“73. Extent of executive power of the Union.—
(1) Subject to the provisions of this Constitution, the executive
power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to
G
make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are
exercisable by the Government of India by virtue of any treaty or
agreement:
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 225
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Provided that the executive power referred to in sub-clause (a) A
shall not, save as expressly provided in this Constitution or in any
law made by Parliament, extend in any State to matters with respect
to which the Legislature of the State has also power to make
laws.
(2) Until otherwise provided by Parliament, a State and any officer B
or authority of a State may, notwithstanding anything in this article,
continue to exercise in matters with respect to which Parliament
has power to make laws for that State such executive power or
functions as the State or officer or authority thereof could exercise
immediately before the commencement of this Constitution.”
C
The proviso to Article 73(1) stipulates that except as may be expressly
provided by Constitution or in any law which has been enacted by
Parliament, the executive power of the Union under sub clause (a) of
clause 1 does not extend in a State to matters with respect to which the
legislature of the State has also power to make laws. The effect of the
proviso is that the executive power of the Union does not extend to D
matters in the Concurrent List, since these are matters on which State
legislatures also have the power to make laws. Article 74(1) provides
for a Council of Ministers with the Prime Minister as the head. The
function of the Council of Ministers is “to aid and advice the President”.
The President is, in the exercise of his functions, under a mandate to E
“act in accordance with such advice”. Article 74 provides as follows:
“74. Council of Ministers to aid and advise President.—
(1) There shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President who shall, in the
exercise of his functions, act in accordance with such advice: F
Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with the
advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered G
by Ministers to the President shall not be inquired into in any
court.”
Article 77 provides for the conduct of the business of the Union
government:
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226 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “77. Conduct of business of the Government of India.—
(1) All executive action of the Government of India shall be
expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name
of the President shall be authenticated in such manner as
B may be specified in rules to be made by the President, and
the validity of an order or instrument which is so authenticated
shall not be called in question on the ground that it is not an
order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient
C transaction of the business of the Government of India, and
for the allocation among Ministers of the said business.”
By and under Article 77(1) the executive action of the Union government
is expressed to be taken in the name of the President. Under clause 2,
orders and instruments made and executed in the name of the President
D are to be authenticated in such a manner as may be specified in the rules
made by the President. Clause 3 enables the President to make rules for
the transaction of the business of the government and for the allocation
of governmental business among ministers. Article 78 embodies the basic
duty of the head of the elected government in a Cabinet form of
E government to communicate with and to furnish information to the
President. Article 78 provides as follows :
“78. Duties of Prime Minister as respects the furnishing of
information to the President, etc.—
It shall be the duty of the Prime Minister—
F
(a) to communicate to the President all decisions of the Council
of Ministers relating to the administration of the affairs of the
Union and proposals for legislation;
(b) to furnish such information relating to the administration of the
affairs of the Union and proposals for legislation as the President
G may call for; and
(c) if the President so requires, to submit for the consideration of
the Council of Ministers any matter on which a decision has been
taken by a Minister but which has not been considered by the
Council.”
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 227
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

These provisions of the Constitution institutionalise the relationship A
between the President and the Union Cabinet and re-affirm the position
of the President as the titular head of state. The President must act on
the aid and advise tendered by the Union Cabinet. The executive power
of the Union is co-extensive with the legislative power of Parliament. In
a cabinet form of government, it is the Council of Ministers which owes
B
collective responsibility to the House of the People. Collective
responsibility, as a constitutional doctrine, ensures accountability to the
sovereign will of the people who elect the members of the legislature.
Though all executive action is expressed to be taken in the name of the
President and orders and instruments made and executed in the name of
the President are authenticated in the manner prescribed by rules, the C
constitutional position of the President is of a titular head. The use of the
expression “in the exercise of his functions” in Article 74(1) is formalistic
in nature since the substance of executive power is vested in and
conferred upon the government constituted through the Council of
Ministers which owes collective responsibility to Parliament. The proviso
D
to Article 74(1) stipulates that while the President may require the Council
of Ministers to reconsider his advice, once that has been done, the
President is bound to act on the advice tendered after reconsideration.
51. The position of the President as a titular head of State is
evidenced in the constitutional provisions which define the relationship
between the President and Parliament. Under Article 111, a Bill is E
presented to the President for assent upon being passed by the Houses
of Parliament. Under the proviso to Article 111, the President is
empowered to return a Bill for reconsideration (if it is not a Money Bill).
Upon being reconsidered, if the Bill is passed again by the Houses of
Parliament (with or without amendment) the President shall, thereafter, F
not withhold assent.
52. In Part VI of the Constitution, the provisions which define the
role of the Governor in relation to the states indicate that the Governor is
also a titular head of government in each state. The executive power of
the State is vested in the Governor under Article 154. The Governor is G
appointed by the President under Article 155 and holds office during the
pleasure of the President under Article 156. The executive power of the
state is co-extensive with the legislative power, by virtue of Article 162.
However, in relation to matters on which both the legislature of a State
and Parliament can enact law, the executive power of the state is subject
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228 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to and limited by the conferment of executive power upon the Union by
the Constitution or by a law enacted by Parliament. In the States, Article
163 postulates a Council of Ministers with the Chief Ministers as its
head to aid and advice the Governor in the exercise of his functions,
except where the Governor is under the Constitution required to exercise
any of the functions in his own discretion. Where a question arises as to
B
whether the Governor is required to act in his discretion, Article 163(2)
makes the decision of the Governor final. While the Chief Minister is
appointed by the Governor under Article 164, other ministers are appointed
by the Governor on the advice of the Chief Minister and hold office
during the pleasure of the Governor. Article 164(2) incorporates the
C principle of collective responsibility of the Council of Ministers to the
legislative assembly of the State. Article 166 contains a provision dealing
with the conduct of the business of the government of the State which is
pari materia with Article 77. Similarly, Article 167 incorporates the duty
of the Chief Minister to communicate with and to furnish information on
the affairs of the state to the Governor, in terms similar to Article 78.
D
53. While assessing the status of the National Capital Territory
under Article 239AA, certain significant aspects need to be borne in
mind:
(i) Article 239AA is a result of the exercise of the constituent
E power under Article 368 of the Constitution. By and as a
result of Article 239AA, special provisions have been made
for the National Capital Territory of Delhi. These provisions
are not an emanation of an act of ordinary legislation;
(ii) For the NCT of Delhi, the exercise of the constituent power
F has resulted in a constitutionally entrenched status both for
the legislature and for the Council of Ministers. The legislative
assembly is elected by the process of direct election. The
legislative assembly has the power to enact law in respect of
matters in the State List of the Seventh Schedule (save for
the excepted matters in Entries 1, 2 and 18 and Entries 64, 65
G and 66 insofar as they relate to entries 1, 2 and 18). Yet,
while the legislative powers which have been conferred on
the legislative assembly extend to the State List (save for the
excepted entries) and the Concurrent List, Parliament has
been empowered to legislate both on matters falling within
H the State and the Concurrent lists. Parliament possesses
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 229
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

overriding legislative powers over matters falling in both the A
State and Concurrent lists for the NCT; and
(iii) Article 239AA(4) provides constitutional status to the Council
of Ministers and embodies the entrenched principle in a cabinet
form of government that a titular head of state acts on the aid
and advice tendered by his ministers, who owe collective B
responsibility to the legislature. In setting up a structure of
governance in which there is a legislature elected through
the process of direct election and an executive arm which is
collectively responsible to the legislature and which, in the
discharge of its functions, tenders aid and advise to Lieutenant
Governor on matters which are co-extensive with legislative C
power, the Constitution has incorporated the basic principles
of the cabinet form of government. The adoption of these
special features of the cabinet form of government in relation
to the NCT must weigh while interpreting Article 239AA.
54. At the same time, the constitutional scheme indicates several D
features in relation to the NCT which have resulted in the conferment of
a constitutional status which falls short of the trappings of full statehood.
They include the following :
(a) The position of the National Capital Territory is subsumed
under Part VIII which applies to Union territories. Delhi is E
and continues to be a Union territory governed by Part VIII;
(b) Every Union territory is, under Article 239(1), administered
by the President acting through an Administrator. The
Administrator appointed under Article 239(1) is designated
as the Lieutenant Governor for the NCT under Article F
239AA(1). Article 239 is the source of the constitutional power
to appoint the Lieutenant Governor for the NCT;
(c) The position that the application of Article 239 is not excluded
in relation to the NCT is made evident by Article 239AB. In
a situation in which the President is empowered to suspend G
the provisions of Article 239AA, where the administration of
the NCT cannot be carried on in accordance with Article
239AA, or of any law made in pursuance of that Article, the
President is empowered to make consequential provisions for
administering the territory in accordance with Article 239 as
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230 SUPREME COURT REPORTS [2018] 7 S.C.R.

A well as Article 239AA. Hence, the provisions of Article
239AA cannot be read disjunctive from Article 239(1);
(d) The administration of a Union territory by the President acting
through an Administrator is firstly subject to Parliamentary
law and secondly, to such extent as he thinks fit. Hence the
B nature of the administration of a Union territory, including
NCT is subject to these two provisions;
(e) The position of the NCT as distinguished with the constitutional
position of a State finds expression in the contrast between
Article 239AB and Article 356 on the other. Upon the exercise
C of the power under Article 356, the President “can assume to
himself” the functions of the government of the State and
declare that the powers of the legislature of the State shall be
exercisable by or under the authority of Parliament. In
contrast, Section 239AB empowers the President to suspend
the operation of Article 239AA or of any provision of law
D made under it and to thereupon make consequential provisions
for the administration of the NCT in accordance with Articles
239 and 239AA; and
(f) While emphasising the binding character of the aid and advise
tendered to the President, or as the case may be, the Governor,
E the constitutional position in relation to the Lieutenant
Governor contains a distinct variation. Article 74(1) embodies,
in relation to the President of India, the binding character of
the aid and advice tendered by the Council of Ministers by
specifying that the President shall, in the exercise of his
F functions, act in accordance with such advice. Upon the
President requiring the Council of Ministers to reconsider their
advice, the President is bound to act upon the advice which is
tendered after reconsideration. Similarly, in the case of
Governors in the states, Article 163(1) provides for a Council
of Ministers “to aid and advise the Governor in the exercise
G of his functions”, except where the Governor is required by
the Constitution to exercise his functions in his discretion.
Article 239AA(4) incorporates in its substantive segment the
constitutional principle of aid and advice which the Council
of Ministers tenders to the Lieutenant Governor in the exercise
H of his functions. But, in relation to the advice tendered by the
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 231
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Council of Ministers, the proviso to Article 239AA(4) has A
engrafted a special provision which does not have a corollary
in Article 163. While under Article 163(1), the Governor is
required to act upon the aid and advice tendered (save in
matters which the Constitution entrusts to the discretion of
the Governor), the proviso to Article 239AA(4) contemplates
B
an area where the binding character of the aid and advice
tendered to the Lieutenant Governor is lifted in the event of a
“difference of opinion.. on any matter”.
55. In resolving the area within which the Lieutenant Governor
can refer the difference of opinion with the Council of Ministers of the
NCT to the President, it would be necessary to balance on the one hand C
the constitutional principles of the cabinet form of government adopted
in Article 239AA, while on the other hand leaving open the latitude,
which has been created by the proviso to clause 4 considering the special
status of the NCT. The former consideration would need the court to
pursue a line of interpretation which does not detract from the fundamental D
principles of representative government. An elected government reflects
in a democracy, the aspirations of the people who vote to elect their
representatives. The elected representatives carry the responsibility of
giving expression to the political will of the electorate. In a democratic
form of government, real power must subsist in the elected arms of the
State. Ministers of government are elected representatives of the people. E
They are accountable to the people through their collective responsibility
to the legislature. As a collective entity, the Council of Ministers owes
responsibility to the legislature. The relationship between the Council of
Ministers and the titular head of State is governed by the over-arching
consideration that real power and substantive accountability is vested in F
the elected representatives of the people. The principle of aid and advice
is in a constitutional sense intended to strengthen the constitutional value
of representative government and of governance which is accountable
and responsive to the electorate. While bearing these fundamental
constitutional principles of a democracy in mind, a balance has to be
struck with the second of the above elements which recognises the special G
status of the NCT. The NCT represents the aspirations of the residents
of its territory. But it embodies, in its character as a capital city the
political symbolism underlying national governance. The circumstances
pertaining to the governance of the NCT may have a direct and
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232 SUPREME COURT REPORTS [2018] 7 S.C.R.

A immediate impact upon the collective welfare of the nation. This is the
rationale for the exclusion of the subjects of public order, police and land
from the legislative power and necessarily from the executive power of
the NCT. These considerations would necessarily require a careful
balance between the two principles. Each of the two principles must be
given adequate weight in producing a result which promotes the basic
B
constitutional values of participatory democracy, while at the same time
preserving fundamental concerns in the secure governance of the nation.

G Constitutional History of the NCT
C 56. Mr Gopal Subramanium, learned Senior Counsel, appearing
on behalf of the NCT, has submitted that the NCT occupies a unique
position in our constitutional jurisprudence. It has been contended by Mr
Subramanium that the NCT, though it remains a Union Territory, has
come to acquire various characteristics that were, prior to the 69th
D constitutional amendment, considered under the Constitution to be
characteristics solely of States. As a consequence, the learned Senior
Counsel has further contended, NCT has become a constitutional hybrid
with powers that were formerly only found in full-fledged States of the
Union and therefore enjoys far more powers than the government of
any other Union Territory. On the contrary, Mr Maninder Singh, the
E learned Additional Solicitor General has submitted that the NCT finds its
place as a Union Territory in Part II of Schedule I of the Constitution. It
has been contended on his behalf that the NCT has historically remained
a centrally administered territory with the status of a Union Territory in
the Constitution and that it continues to remain a Union Territory even
F after the 69th constitutional amendment.
57. In order to interpret the constitutional scheme envisaged for
the NCT, this Court must analyze the constitutional history and the
evolution of the structure of governance for the NCT as brought into
existence, by various enactments, from time to time.
G The Government of Part C States Act, 1951
58. The first Schedule to the Constitution originally contained Part
A, Part B and Part C States. After the adoption of the Constitution, The

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 233
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Government of Part C States Act, 1951 was enacted. Section 2(c) defined A
the expression Delhi thus:
“Section 2(c) “Delhi”, except where it occurs in the expression
“State of Delhi”, means such area in the State of Delhi as the
Central Government may by notification in the Official Gazette
specify.” B
Section 3 provided for the constitution of a legislative assembly for each
state governed by the law. It provided for the establishment of legislative
assemblies for the states of Ajmer, Bhopal, Coorg, Delhi, Himachal
Pradesh and Vindhya Pradesh. The Chief Commissioner was entrusted
with the power, under Section 8(2), to prorogue and dissolve the assembly. C
Section 12 conferred upon the Chief Commissioner the right to address
and send messages to the assembly. Section 21 of the Act defined the
extent of legislative power:
“Section 21- Extent of legislative power
“(1) Subject to the provisions of this Act, the Legislative Assembly D
of a State may make laws for the whole or any part of the State
with respect to any of the matters enumerated in the State List or
in the Concurrent List:
Provided that the Legislative Assembly of the State of Delhi shall
not have power to make laws with respect to any of the following E
matters, namely:-
(a) Public order;
(b) Police including railway police;
(c) The constitution and powers of municipal corporations and F
other local authorities, of improvement trusts and of water supply,
drainage, electricity, transport and other public utility authorities in
Delhi or in New Delhi;
(d) Lands and buildings vested in or in the possession of the Union
which are situated in Delhi or in New Delhi including all rights in G
or over such lands and buildings, the collection of rents therefrom
and the transfer and alienation thereof;
(e) Offences against laws with respect to any of the matters
mentioned in the foregoing clauses;
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234 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (f) Jurisdiction and powers of all courts, with respect to any of the
said matters; and
(g) Fees in respect of any of the said matters other than fees
taken in any court.”
However, sub Section 2 of Section 21 provided that sub section 1 will
B not derogate from the power conferred upon Parliament by the
Constitution to make laws with respect to any matter for a state. The
sanction of the Chief Commissioner was required under Section 23 for
certain legislative proposals, these being:
“(a) Constitution and organisation of the court of the Judicial
C Commissioner;
(b)Jurisdiction and powers of the court of the Judicial
Commissioner with respect to any of the matters in the State List
or in the Concurrent List;

D (c) State Public Service Commission.”
59. A Bill passed by the legislative assembly was, under Section
26, required to be presented to the Chief Commissioner. The Chief
Commissioner in turn was obligated to reserve the Bill for consideration
of the President. If the President directed the Chief Commissioner to
submit the Bill to the Assembly for reconsideration, the Assembly was
E
required to consider the suggestions and, if the Bill was passed, it had to
be presented again to the President for reconsideration.
60. Section 36 provided for a Council of Ministers:
“Council of Ministers
F (1) There shall be a Council of Ministers in each State with the
Chief Minister at the head to aid and advise the Chief
Commissioner in the exercise of his functions in relation to
matters, with respect to which the Legislative Assembly of
the State has power to make law except in so far as he is
G required by any law to exercise any judicial or quasi-judicial
functions:
Provided that, in case of difference of opinion between the
Chief Commissioner and his Ministers on any matter, the Chief
Commissioner shall refer it to the President for decision and
H act according to the decision given thereon by the President,
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 235
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

and pending such decision it shall be competent for the Chief A
Commissioner in any case where the matter is in his opinion
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:
Provided further that in the State of Delhi every decision B
taken by a Minister or by the Council in relation to any matter
concerning New Delhi shall be subject to the concurrence of
the Chief Commissioner, and nothing in this sub-section shall
be construed as preventing the Chief Commissioner in case
of any difference of opinion between him and his Ministers
from taking such action in respect of the administration of C
New Delhi as he in his discretion considers necessary.
(2) The Chief Commissioner shall, when he is present, preside at
meetings of the Council of Ministers, and, when the Chief
Commissioner is not present, the Chief Minister or, if he is
also not present, such other Minister as may be determined D
by the rules made under sub-section (1) of section 38 shall
preside over meetings of the Council.
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Chief Commissioner is required
by any law to exercise-any judicial or quasi-judicial functions, E
the decision of the Chief Commissioner thereon shall be final.
(4) If in the State of Delhi any question arises as to whether any
matter is or is not a matter concerning New Delhi, the decision
of the Chief Commissioner thereon shall be final:
F
Provided that in case of any difference of opinion between
the Chief Commissioner and his Ministers on such question,
it shall be referred for the decision of the President and his
decision shall be final.
(5) The question whether any, and if so what, advice was tendered
G
by Ministers to the Chief Commissioner shall not be inquired
into in any court.”
Section 36(1) incorporated the aid and advice principle. But where there
was a difference of opinion between the Chief Commissioner and his
ministers “on any matter”, the Chief Commissioner was required to refer
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236 SUPREME COURT REPORTS [2018] 7 S.C.R.

A it to the President and to act in accordance with the decision of the
President. Insofar as the State of Delhi was concerned, under the second
proviso every decision of a Minister or the Council of Ministers in relation
to New Delhi was subject to the concurrence of the Chief Commissioner.
In the event there was a difference of opinion, the Chief Commissioner
had the authority to take such action for the administration of New Delhi
B
“as he in his discretion considers necessary”. The Chief Commissioner
would also preside over the meetings of the Council of Ministers. If a
question arose as to whether any matter concerned New Delhi, the
decision of the Chief Commissioner was to be final and if there was a
difference of opinion, it was to be referred to the President for his
C decision.
61. Section 36 assumes significance in the context of the present
controversy, because its provisions must be distinguished from the position
which was adopted when the sixty ninth amendment was introduced in
Article 239AA into the Constitution. Four features of Section 36 stand
D out : first, the requirement of the concurrence of the Chief Commissioner
to every decision concerning New Delhi; second, empowerment of the
Chief Commissioner, in the event of a difference of opinion to act in his
discretion for the administration of New Delhi; third, the mandate of the
Chief Commissioner being required to preside over meetings of the Council
of Ministers; and fourth, the requirement of referring any difference of
E opinion on whether a matter concerned New Delhi to the President
whose decision would be final. Article 239AA has made a departure in
critical matters from the position as it obtained under Section 36. First,
(unlike the second proviso to Section 36(1)), Article 239AA(4) does not
mandate that every decision of the Council of Ministers should be subject
F to the concurrence of the Lieutenant Governor; second, the provision (in
the second proviso to Section 36(1)) empowering the Chief Commissioner
to act in his discretion on the administration of New Delhi is absent in
Article 239AA(4) except where the Lieutenant Governor on a reference
of a difference of opinion to the President has to deal with an emergent
situation; and third, neither in Article 239AA nor in the GNCTD Act
G (and for that matter in the Transaction of Business Rules) has it been
provided that the Lieutenant Governor would preside over meetings of
the Council of Ministers. Section 36 of the erstwhile Act of 1951 created
a hierarchical structure which placed the Chief Commissioner as an
authority superior to the Council of Ministers in the exercise of its
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 237
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

executive power. Every decision of the Council of Ministers concerning A
New Delhi was subject to the concurrence of the Chief Commissioner.
The absence of such a provision in Article 239AA cannot be regarded
as a matter of no constitutional significance. Historically the constituent
body had before it a model which was created by the parliamentary
enactment of 1951 but advisedly did not choose to engraft it into the
B
provisions of Article 239AA when the sixty ninth amendment was
adopted.
62. The provisions of the Constitution relating to Part A, Part B
and Part C States were abrogated with the adoption of the seventh
amendment75 in 1956. Section 130 of the States Reorganization Act 1956
repealed the 1951 Act. The result has been explained in the Statement C
of Objects and Reasons for the 1956 Act.
“… The main features of the reorganization proposed are the
abolition of the existing constitutional distinction between Part A,
Part B and Part C States, the establishment of two categories for
the component units of the Union to be called the States and the D
abolition of the institution of the Raj Pramukh consequent on the
disappearance of the Part B States…”.
Consequent upon the seventh amendment to the Constitution, the
expression “the Union territories specified in the First Schedule” was
inserted into the Constitution. Delhi came to be described as a Union E
territory upon being included as an entry in the First Schedule. By virtue
of Section 12 of the 1956 Act, as from the appointed day, in the First
Schedule to the Constitution for Part A, Part B and Part C States, the
parts which followed were substituted. Delhi was described in serial
number 1 of Part C as “the territory which immediately before F
commencement of the Constitution was comprised in the Chief
Commissioner’s Province of Delhi”. Delhi became a Union Territory
governed by the Union government through an Administrator who was
appointed by the President.
63. Article 239A was introduced by the fourteenth amendment76 G
in 1962, as a result of which Parliament was authorized to create, for
certain Union territories, local legislatures and/ or a Council of Ministers.

75
The Constitution (Seventh Amendment) Act 1956
76
The Constitution (Fourteenth Amendment) Act 1962
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238 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The Government of Union Territories Act, 1963
64. On 10 May 1963, the Government of Union Territories Act
1963 was enacted. The Act of 1963 defined the expression Administrator
in Section 2(a) as :
“(a) “Administrator” means the administrator of the Union territory
B appointed by the President under article 239;”
Section 3 provided for a legislative assembly. Section 18 provided for
the extent of legislative power in the following terms:
“18. Extent of legislative power. (1) Subject to the provisions of
C this Act, the Legislative Assembly of the Union territory may make
laws for the whole or any part of the Union territory with respect
to any of the matters enumerated in the State List or the Concurrent
List in the Seventh Schedule to the Constitution in so far as any
such matter is applicable in relation to Union territories.

D (2) Nothing in sub-section (1) shall derogate from the powers
conferred on Parliament by the Constitution to make laws with
respect to any matter for the Union territory or any part thereof.”
Sub Section 1 of Section 18 was similar in language to Article
239AA(3)(a), without the exclusion of matters relating to Entries 1, 2
and 18 and Entries 64, 65 and 66. Sub Section 2 was similar in language
E
to Article 239AA(3)(b). Section 21 provided that if there was any
inconsistency between a law made by Parliament and a law made by
the legislative assembly, the law made by Parliament would prevail to
the extent of repugnancy (this provision is similar in nature to Article
239AA(3)(c). Section 44 contained the following provision for the Council
F of Ministers:
“44. Council of Ministers.
(1) There shall be a Council of Ministers in each Union territory
with the Chief Minister at the head to aid and advise the
Administrator in the exercise of his functions in relation to matters
G with respect to which the Legislative Assembly of the Union
territory has power to make laws except in so far as he is required
by or under this Act to act in his discretion or by or under any law
to exercise any judicial or quasi-judicial functions:
Provided that, in case of difference of opinion between the
H Administrator and his Ministers on any matter, the Administrator
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 239
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

shall refer it to the President for decision and act according to the A
decision given thereon by the President, and pending such decision
it shall be competent for the Administrator in any case where the
matter is in his opinion 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:
B
…
(3) If and in so far as any special responsibility of the Administrator
is involved under this Act, he shall, in the exercise of his functions,
act in his discretion.”
Section 44 (1) and Article 239AA are pari materia (with the difference C
that clause 4 of Article 239AA pegs the strength of the Council of Ministers
to not more than ten per cent of the total number of members of the
legislative assembly). At the same time, it must also be noted that sub
section 3 of Section 44 recognised the power of the Administrator, to act
in his discretion where “any special responsibility” of the Administrator D
was involved under the Act. This provision in sub section 3 of Section 44
was in addition to the reservation made in Section 44(1) in respect of
those matters where the administrator was under the Act, required to
act in his discretion or was to exercise judicial or quasi-judicial functions
under any law. The “special responsibility” provision of sub-section 3 of
Section 44 does not find a parallel in Article 239AA. E

The Delhi Administration Act, 1966
65. On 2 June 1966, Parliament enacted the Delhi Administration
Act 1966, “to provide for the administration of the Union territory of
Delhi”. The Act, in Section 3, constituted a Metropolitan Council, F
consisting of 56 persons to be directly elected. However, the Central
government was empowered to nominate five persons to the Metropolitan
Council. The tenure of the Metropolitan Council, unless it was sooner
dissolved, was to be five years. Under Section 22 the Metropolitan Council
could make recommendations, on certain matters, insofar as they related
to Delhi. Section 22 provided as follows: G
“(1)Subject to the provisions of this Act, the Metropolitan Council
shall have the right to discuss, and make recommendations
with respect to, the following matters in so far as they relate
to Delhi, namely: -
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240 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (a) proposals for undertaking legislation with respect to any of the
matters enumerated in the State List or the Concurrent List in
the Seventh Schedule to the Constitution in so far as any such
matter is applicable in relation to Union territories (hereafter
referred to as the State List and the Concurrent List);
B (b) proposals for extension to Delhi of any enactment in force in
a State relatable to any matter enumerated in the State List or
the Concurrent List;
(c) proposals for legislation referred to it by the Administrator
with respect to any of the matters enumerated in the State
C List or the Concurrent List;
(d) the estimated receipts and expenditure pertaining to Delhi to
be credited to and to be made from, the Consolidated Fund of
India; and notwithstanding anything contained in the Delhi
Development Act, 1957, the estimated receipts and expenditure
D of the Delhi Development Authority;
(e) matters of administration involving general policy and schemes
of development in so far as they relate to matters enumerated
in the State List or the Concurrent List;
(f) any other matter referred to it by the Administrator.
E
(2) The recommendations of the Metropolitan Council, after having
been duly considered by the Executive Council, shall, wherever
necessary, be forwarded by the Administrator to the Central
Government with the views, if any, expressed thereon by the
Executive Council.”
F
The recommendations of the Metropolitan Council after they were
considered by the Executive Council were to be forwarded to the Central
government. The function of the Executive Council was to “assist and
advise” the Administrator in the exercise of his functions in relation to
matters in the State List or Concurrent List. Conscious as Parliament
G was of the use of the expression “aid and advise” in Articles 74 and 163
of the Constitution; and in Section 36(1) of the Government of Part C
States Act 1951; Section 44 of the Government of Union Territories Act
1963, carefully adopted the expression “assist and advise” in Section 27.
Section 27 was in the following terms:
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 241
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

“(1) There shall be an Executive Council, consisting of not more A
than four members one of whom shall be designated as the
Chief Executive Councilor and others as the Executive
Councilors, to assist and advise the Administrator in the
exercise of his functions in relation to matters enumerated in
the State List or the Concurrent List, except in so far as he is
B
required by or under this Act to exercise his functions or any
of them in his discretion or by or under any law to exercise
any judicial or quasi-judicial functions:
Provided that, in case of difference of opinion between the
Administrator and the members of the Executive Council on
any matter, other than a matter in respect of which he is C
required by or under this Act to act in his discretion, the
Administrator shall refer it to the President for decision and
act according to the decision given thereon by the President,
and pending such decision, it shall be competent for the
Administrator in any case where the matter is in his opinion D
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:
Provided further that every decision taken by a member of
the Executive Council or by the Executive Council in relation E
to any matter concerning New Delhi shall be subject to the
concurrence of the Administrator, and nothing in this sub-
section shall be construed as preventing the Administrator in
case of any difference of opinion between him and the
members of the Executive Council from taking any action in
respect of the administration of New Delhi as he, in his F
discretion, considers necessary.
(2) The Administrator shall preside at every meeting of the
Executive Council, but if he is obliged to absent himself from
any meeting of the Council owing to illness or any other cause,
the Chief Executive Councilor shall preside at the meeting of G
the Council.
(3) The functions of the Administrator with respect to law and
order in Delhi including the organization and discipline of police
force, and with respect to such other matters as the President
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A may it from time to time specify in this behalf, shall be
exercised by him in his discretion.
(4) If any question arises as to whether any matter is or is not a
matter as respects which the Administrator is by or under
this Act required to act in his discretion, the decision of the
B Administrator thereon shall be final.
(5) If any question arises as, to whether any matter is or is not a
matter as respects which the Administrator is required by or
under any law to exercise any judicial or quasi-judicial
functions, the decision of the Administrator thereon shall be
C final.
(6) If any question arises as to whether any matter is or is not a
matter concerning New Delhi, the decision of the
Administrator thereon shall be final.
(7) The question whether any, and if so, what advice was tendered
D by any member of the Executive Council to the Administrator
shall not be enquired into in any court.”
Every decision of the Executive Council in relation to any matter
concerning New Delhi was subject to the concurrence of the
Administrator. A provision similar to the second proviso to Section 27(1)
E does not find a reference in Article 239AA. Moreover, under sub section
2 of Section 27, the Administrator was to preside at every meeting of the
Executive Council. The members of the Executive Council were, under
Section 28, appointed by the President and held office during the pleasure
of the President. A member of the Executive Council could not hold
F office beyond a period of six months if he was not a member of
Metropolitan Council.
66. The Act of 1966 continued to apply to the Union Territory of
Delhi until the adoption of the sixty ninth amendment to the Constitution
and the GNCTD Act 1991.
G The Balakrishnan Committee
67. On 14 December 1989 the Committee constituted by the
Ministry of Home Affairs for making recommendations on the
reorganization of the structure for the governance of Delhi submitted its

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 243
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

report. The report of the Committee, which was chaired by Mr S A
Balakrishnan (Adviser, Ministry of Home Affairs) observed that there is
a conflict of interest between the need to develop the national capital for
the nation as a whole and the desires of the local population for a greater
autonomy in the conduct of their own affairs. This conflict was described
in the report thus:
B
“..The main difficulty lies in reconciling the two conflicting
requirements, namely, the requirement of satisfying the democratic
aspirations over the citizens of the capital to govern themselves in
consonance with the spirit of their national Constitution and the
requirement that the national Government should have sufficient
control over the capital city and its administration for discharging C
its national and international responsibilities and commitments.”
The Committee considered the following five options:
“(1) The existing structure under the Delhi Administration Act,
1966 may be retained with such modifications as may be found D
necessary.
(2) The administration of Delhi may be the direct responsibility of
the Central Government except for municipal functions to be
left with the Municipal Corporation or other municipal bodies;
there is no need for any Legislative Assembly or Council of E
Ministers.
(3) Delhi may be made a full-fledged State of the Union.
(4) Delhi may be made a Union territory with a Legislative
Assembly and Council of Ministers.
F
(5) Delhi may be given a special status and dispensation under
the Constitution itself.”
The Committee indicated the reasons which had weighed with it in
rejecting the claim for full statehood to Delhi. Firstly, the Committee
noted that the conferment of full statehood would result in a constitutional
division of legislative power between the Union and the State and to that G
extent, the Union Executive would be denuded of executive powers in
relation to matters governed by the State list. In the view of the
Committee:

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

A “..This constitutional prohibition on the exercise of powers and
functions will make it virtually impossible for the Union to discharge
its special responsibilities in relation to the national capital as well
as to the nation itself. We have already indicated in an earlier
chapter the special features of the national capital and the need
for keeping it under the control of the Union Government. Such
B
control is vital in the national interests irrespective of whether the
subject matter is in the State field or Union field. If the
administration of the national capital is divided into rigid
compartments of State field and Union field, conflicts are likely to
arise in several vital matters, particularly if the two Governments
C are run by different political parties. Such conflicts may, at times,
prejudice the national interest. We have given careful thought to
the matter and we are of the considered opinion that any
arrangement for Delhi that involves constitutional division of
powers, functions and responsibilities between the Union and the
government of the national capital will be against the national
D
interest and should not be made.”
The Committee opined that “the national capital belongs to the nation
as a whole” and hence a demand for full statehood could not be
entertained. Consistent with its view, the Committee opined that Delhi
should have a Legislative Assembly and a Council of Ministers, while
E continuing to be a Union territory for the purposes of the Constitution.
The legislative powers conferred upon the Legislative Assembly were
to exclude certain specific subjects, having due regard to the special
responsibility of the Union in respect of Delhi. The Committee
recommended that the subjects of public order and police should be
F excluded from the purview of the Legislative Assembly. The report of
the Committee recommended that the Administrator for the Union
Territory should be expressly required to perform his functions on the
aid and advice of the Council of Ministers. The expression “aid and
advice”, the Committee noted, is a term of art based on the ---cabinet
form of government adopted by the Constitution. However, the principle
G of aid and advice would be subject to three modifications: (i) it would not
apply in respect of those matters where the Administrator exercises
judicial or quasi-judicial functions; (ii) the Administrator would act on aid
and advice in respect of matters where the legislative Assembly has the
power to make laws; and (iii) a special provision would be made to
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 245
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

resolve differences between the Administrator and his Council of A
Ministers on any matter concerning the administration of Delhi.
The Committee was of the following view:
“..by virtue of article 239 of the Constitution, the ultimate
responsibility for good administration of Delhi is vested in the
President acting through the Administrator. Because of this, the B
Administrator has to take a somewhat more active part in the
administration than the Governor of a State. It is, therefore,
necessary to reconcile between the need to retain the responsibility
of the Administrator to the Centre in this regard and the need for
enforce the collective responsibility of the Council of Ministers to C
the Legislature. The best way of doing this is to provide that in
case of difference of opinion which cannot be resolved between
the Administrator and his Council of Ministers, he should refer
the question to the President and the decision of the President
thereon will be final..”
D
The Committee considered whether the administration of Delhi should
be provided for under a law enacted by Parliament, as was the case
earlier. The Committee recommended a constitutional amendment in
preference to a statute governing the administration of the national capital
as a measure of stability and permanence:
E
“..any arrangement providing for the structure of government for
the national capital is of great importance and significance to the
nation and, as such, it is desirable that any such arrangement should
ensure a measure of stability and permanence: The fluid situation
which existed at the time when the Constitution came into force
and which was the ground relied upon at that time for making a F
flexible arrangement no longer exists. We, therefore, consider that
the time has come for making specific constitutional provisions
for the structure of government for the national capital at least in
regard to the core features thereof. If the provisions are
incorporated in the Constitution an amendment can be made only G
by a two-thirds majority in parliament which may not always be
available. To that extent a scheme incorporated in the Constitution
would be more permanent than one in a law of parliament. We
have no doubt that this will go a long way in assuring the people of
Delhi that the governmental structure will be stable and will not
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246 SUPREME COURT REPORTS [2018] 7 S.C.R.

A suffer by the play of political forces.”
The Committee thus recommended a constitutional amendment, with
the above core features, with parliamentary legislation supplementing
them in details.
68. The Statement of Objects and Reasons for the sixty ninth
B amendment to the Constitution explains its rationale in the following terms :
“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
C matters of concern to the common man. The Committee also
recommended that with a view to ensure stability and permanence,
the arrangements should be incorporated in the Constitution to
give the National Capital a special status among the Union
Territories.” (Emphasis supplied)
D The avowed object of the sixty ninth amendment was to ensure that
while Delhi would continue to be a Union territory, it would have a
legislative assembly and a Council of Ministers responsible to it. This
was to vest “appropriate powers” to deal with the matters of concern to
the common man. The object of the constitutional amendment was to
E attribute “stability and permanence” to the arrangements to govern the
Union territory and to confer “a special status among the Union
territories” to the national Capital. In other words, while the status of the
NCT would be of a Union territory, it nonetheless had a special status
within the class of Union Territories.

F 69. Having regard to this history and background, it would be
fundamentally inappropriate to assign to the NCT a status similar to
other Union territories. Article 239AA(4) is a special provision which
was adopted to establish a special constitutional arrangement for the
governance of the NCT, albeit within the rubric of Union territories. In
interpreting the provisions of Article 239AA, this Court cannot adopt a
G blinkered view, which ignores legislative and constitutional history. While
adopting some of the provisions of the Acts of 1963 and 1966, Parliament
in its constituent capacity omitted some of the other provisions of the
legislative enactments which preceded the sixty ninth amendment. The
relationship between the Council of Ministers and the Administrator of
the Union territory evolved as Delhi progressed from a Part C State
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 247
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

(before the Seventh Amendment) to a Union Territory governed by A
legislation. As a Union territory, the position of Delhi has evolved from
being administered by an Administrator under Article 239A following
the fourteenth amendment and from governance under the earlier
enactments of Parliament to its present-day status as a national capital
territory governed by a specific constitutional provision: Article 239AA.
B
We have noticed how, when Delhi was within the purview of the Part C
States Act, every decision of the Council of Ministers on any matter
concerning New Delhi was subject to the concurrence of the Chief
Commissioner and any difference of opinion was to be resolved by the
Chief Commissioner himself acting in his discretion to administer New
Delhi. Under the Act of 1963, besides matters which the Administrator C
was required to act in his discretion or where he was to exercise judicial
or quasi-judicial functions under law there were matters vested in the
Administrator in his “special responsibility” where he could act in his
discretion. Under the Act of 1966, the Executive Council was to “assistand
advice” the Administrator and each one of its decisions in relation to any
D
matter concerning New Delhi was subject to the concurrence of the
Administrator. The absence of similar provisions in Article 239AA cannot
be ignored while defining the nature of the relationship between the
Council of Ministers and the Lieutenant Governor and the authority of
the Lieutenant Governor.
H NCT : A Special Class among Union Territories? E

70. All Union territories are grouped together in Part VIII of the
Constitution. While bringing them under the rubric of one constitutional
pairing, there is an unmistakable distinction created between them by
the Constitution. Such a distinction originates in Article 239(1) itself.
While setting out the basic premise that “every Union territory shall be F
administered by the President”, Article 239(1) conditions it upon two
important qualifications. The first is provided by the language with which
Article 239(1) opens, which is: “save as otherwise provided by Parliament
by law”. The second qualification is that the President may exercise the
power of administering each Union territory “to such extent as he thinks G
fit” through an Administrator. The opening words essentially leave it to
Parliament to determine the nature and extent to which the administration
of a Union territory would be exercised through the President. The
President may exercise that power through the office of an Administrator
to such extent as he thinks fit. The expression “to such extent as he
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248 SUPREME COURT REPORTS [2018] 7 S.C.R.

A thinks fit” enunciates a constitutional discretion by which the limits of
the exercise by the President of the power of administration through an
Administrator are to be set. Both these qualifications have significant
constitutional implications because they leave open the nature and extent
of the administration of the Union territory by the President, through the
auspices of an Administrator, to the determination by Parliamentary
B
legislation.
71. The provisions of Article 239 result in significant consequences
for the position of Union territories. Article 239 does not elucidate the
nature or extent of administrative or regulatory control over the Union
territory. Article 239A (which presently applies to Puducherry), Article
C 239AA (which has special provisions for Delhi) and Article 240 leave no
manner of doubt that the relationship of the Union government with
every Union and the extent of Presidential control over the administration
is not intended to be uniform. These three Articles indicate that a
distinction has been made between the status of Union territories at
D least in terms of the exercise of legislative powers in relation to executive
functions.
72. This distinction would emerge from a close reading of the
provisions of Article 240 which governs :
(i) The Andaman and Nicobar Islands;
E
(ii) Lakshadweep;
(iii) Daman and Diu;
(iv) Dadar and Nagar Haveli; and
(v) Puducherry.
F
Clause 1 of Article 240 enables the President to make regulations for
“the peace, progress and good government” of the Union territories
mentioned above. Article 239A as we have noticed earlier, empowers
Parliament to create a local legislature or a Council of Ministers (or
both) for Puducherry. Once Parliament enacts legislation under clause 1
G of Article 239A, it would be incongruous to have a duality of governance
with the President making regulations for peace, progress and good
government as well. Hence, the proviso to Article 240(1) states that the
President shall not make any such regulation after the legislature for the
Union territory of Puducherry has first convened, when a Parliamentary
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 249
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

legislation under Article 239A creates a body to function as a legislature. A
However, when the legislature is dissolved or its functioning is eclipsed
pursuant to a Parliamentary legislation, the Presidential power to make
regulations for peace, progress and good government is revived.
Puducherry was therefore grouped together with the other Union
territories under Article 240(1) but in contemplation of a law made by
B
Parliament under Article 239A, a specific constitutional mandate allows
for the entrustment of legislative and executive functions to the extent
that they are transferred under the law to the local legislature or, as the
case may be, to the Council of Ministers. If Parliament were to enact no
law at all, the President would continue to retain the power to frame
regulations. Moreover, even upon the enactment of Parliamentary C
legislation, the Presidential power to frame regulations for Puducherry
is revived where the legislature stands dissolved or its functioning is
suspended.
73. Delhi presents a special constitutional status under Article
239AA. This is fortified when those provisions are read in contrast with D
Articles 239A and 240. Article 239AA does not incorporate the language
or scheme of Article 240(1), which enables the President to frame
regulations for peace, progress and good government of the Union
territories referred to in Article 240(1). This proviso to Article 240(1)
indicates that once a Parliamentary law has been framed, the President
shall not frame regulations for Puducherry. In the case of Delhi, Article E
239AA does not leave the constitution of a legislature or the Council of
Ministers to a law to be framed by Parliament in future. Article 239AA
mandates that there shall be a legislative assembly for the NCT and
there shall be a Council of Ministers, with the function of tendering aid
and advice to the Lieutenant Governor. The “there shall be” formulation F
is indicative of a constitutional mandate. Bringing into being a legislative
assembly and a Council of Ministers for the NCT was not relegated by
Parliament (in its constituent power) to its legislative wisdom at a future
date upon the enactment of enabling legislation. Clause 7(a) of Article
239AA enables Parliament by law to make provisions to give effect to
or to supplement the provisions contained in that Article. Parliament’s G
power is to enforce, implement and fortify Article 239AA and its defining
norms.
74. The above analysis would indicate that while Part VIII brings
together a common grouping of all Union territories, the Constitution
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250 SUPREME COURT REPORTS [2018] 7 S.C.R.

A evidently did not intend to use the same brush to paint the details of their
position, the institutions of governance (legislative or executive), the nature
of democratic participation or the extent of accountability of those
entrusted with governance to their elected representatives. Hence, in
defining the ambit of the constitutional powers entrusted to the Council
of Ministers for the NCT and their relationship with Lieutenant Governor
B
as a delegate of the President, the Court cannot be unmindful of the
constitutional importance which has to be assigned to representative
government. Representative government is a hallmark of a Constitution
which is wedded to democracy for it is through a democratic form of
governance that the aspirations of those who elect their representatives
C are met. Undoubtedly, governance of the NCT involves national
imperatives. They must also weigh in the balance. The proviso to clause
4 of Article 239AA is constitutional indicator of the national concerns
which were borne in mind when the constituent power was exercised to
establish the NCT as a political arm of governance by a special
constitutional provision. Those national imperatives have led to the carving
D
out of the areas of police, public order and land from the sphere of
legislative authority of the legislative assembly and their entrustment to
Parliament. Again, it is the sense of a national imperative which led to
the constituent power being so modulated in relation to the NCT as to
allow Parliamentary legislative authority over all entries in the State list,
E in addition to the Concurrent list. Parliament does not exercise legislative
authority in relation to State list entries as regards the states in India
unless a matter falls within the ambit of Articles 252 or 253. Parliamentary
legislative control over Union territories has been broadened precisely
as a manifestation of national imperatives or concerns. The executive
power of the Council of Ministers being co-extensive with legislative
F
power, this aspect has to be borne in mind. The true challenge is to
maintain that delicate balance in a federating Union, such as ours, which
ensures that national concerns are preserved in the interest of the unity
and integrity of the nation, while at the same time local aspirations
exercised through the democratic functioning of elected governments
G find expression in our polity.
75. The constitutional principle which emerges is that while Delhi
presents a special case, quite unlike the other Union territories, the
constitutional provisions governing it are an amalgam between national
concerns (reflected in control by the Union) and representative democracy
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 251
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

(expressed through the mandate of a Council of Ministers which owes A
collective responsibility to a directly elected legislature). There is no
gainsaying the fact that the control by the Union, is also control of the
President acting on the aid and advice of the Union Council of Ministers
which in turn owes collective responsibility to Parliament. Constitutional
statesmanship between the two levels of governance, the Centre and
B
the Union territory, ought to ensure that practical issues are resolved
with a sense of political maturity and administrative experience. This
Court has to step in only because skirmishes between the two have
raised constitutional issues of the proper distribution of executive control
over the National Capital Territory.
I The Government of National Capital Territory of Delhi C
Act, 1991
76. Parliament enacted the Government of National Capital
Territory of Delhi Act 199177 “to supplement the provisions of the
Constitution relating to the legislative assembly and a Council of Ministers
for the National Capital Territory of Delhi”. The legislation has been D
enacted in pursuance of the provisions of clause 7(a) of Article 239AA.
77. Some of the salient features of the law merit reference. The
law mandates direct election from territorial constituencies to the
legislative assembly78. The duration of the assembly is fixed at five
years79. The Lieutenant Governor has the right to address and to E
communicate messages to the assembly80. The law provides special
provisions for financial bills81. A recommendation of the Lieutenant
Governor, prior to the introduction of a Bill or amendment in the legislative
assembly is mandatory, where it incorporates a provision for any of the
following : F
“(a) the imposition, abolition, remission, alteration or regulation of
any tax ;
(b) the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government
of the Capital; G
77
Act 1 of 1992 (Referred hereinafter as the “GNCTD Act”
78
Section 3, GNCTD Act
79
Section 5, GNCTD Act
80
Section 9, GNCTD Act
81
Section 22, GNCTD Act
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252 SUPREME COURT REPORTS [2018] 7 S.C.R.

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

82
Section 22(1), GNCTD Act
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 253
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

(b) the President may, by order, direct to be reserved for his A
consideration; or
(c) relates to matters referred to in sub-section (5) of section 7 or
section 19 or section 34 or sub-section (3) of section 43.
Explanation :- For the purposes of this section and section 25, a
Bill shall be deemed to be a Money Bill if it contains only provisions B
dealing with all or any of the matters specified in sub-section (1)
of section 22 or any matter incidental to any of those matters and,
in either case, there is endorsed thereon the certificate of the
Speaker of the Legislative Assembly signed by him that it is a
Money Bill.”
C
As the above provisions indicate, the Lieutenant Governor can assent to
a Bill, withhold assent or reserve the Bill for consideration of the President.
Where the Bill is not a Money Bill, the Lieutenant Governor is permitted
to return it for reconsideration to the Assembly. Thereafter, if the Bill is
passed again by the Assembly, the Lieutenant Governor can either assent
to the Bill or reserve it for consideration of the President. The second D
proviso sets out three categories of Bills which the Lieutenant Governor
must reserve for the consideration of the President. Where the Bill has
been reserved for the consideration of the President, Section 25 stipulates
that the President may either assent or withhold assent to the Bill. The
President may, if it is not a Money Bill, direct the Lieutenant Governor to E
return the Bill to the assembly for reconsideration and if it is again passed,
the Bill has to be presented again to the President for consideration.
78. The power of the Lieutenant Governor is wider than the power
of the Governor of a State under Article 200 of the Constitution. Article
200 provides as follows:
F
“Article 200. When a Bill has been passed by the Legislative
Assembly of a State or, in the case of a State having a Legislative
Council, has been passed by both Houses of the Legislature of
the State, it shall be presented to the Governor and the Governor
shall declare either that he assents to the Bill or that he withholds
assent therefrom or that he reserves the Bill for the consideration G
of the President:
Provided that the Governor may, as soon as possible after the
presentation to him of the Bill for assent, return the Bill if it is not

H
254 SUPREME COURT REPORTS [2018] 7 S.C.R.

A a Money Bill together with a message requesting that the House
or Houses will reconsider the Bill or any specified provisions
thereof and, in particular, will consider the desirability of introducing
any such amendments as he may recommend in his message and,
Assent to Bills. When a Bill is so returned, the House or Houses
shall reconsider the Bill accordingly, and if the Bill is passed again
B
by the House or Houses with or without amendment and presented
to the Governor for assent, the Governor shall not withhold assent
therefrom: Provided further that the Governor shall not assent to,
but shall reserve for the consideration of the President, any Bill
which in the opinion of the Governor would, if it became law, so
C derogate from the powers of the High Court as to endanger the
position which that Court is by this Constitution designed to fill.”
Under Article 200, where the Governor has returned a Bill (not being a
Money Bill) to the legislative assembly of the State for reconsideration
and the Bill is passed by the legislature, the Governor is precluded from
D withholding assent. In contrast, Section 24 confers authority upon the
Lieutenant Governor, even if a Bill has been reconsidered and passed by
the legislative assembly of the NCT, to either assent to it or reserve it for
consideration of the President. Moreover, the second proviso to Section
24 widens the categories of Bills which the Lieutenant Governor must
necessarily reserve for the consideration of the President. Clause (a) of
E the second proviso corresponds to the second proviso to Article 200. In
addition, clause (b) of the second proviso to Section 24 empowers the
President to direct the Lieutenant Governor to reserve a Bill for his
consideration. Similarly, under clause (c), Bills relating to salaries payable
to the Speaker, Deputy Speaker and the members of the legislative
F assembly of NCT, the official language of the Capital and of the legislative
assembly and the salaries and the allowances of the Ministers, are matters
upon which the Lieutenant Governor has to reserve a Bill for the
consideration of the President. These provisions indicate a greater degree
of interface between the President and the Lieutenant Governor.
G 79. Section 27 provides for the laying of an annual financial
statement by the Lieutenant Governor before the legislative assembly
with the previous sanction of the President, containing the estimated
receipts and expenditure of the Capital for that year. Section 29 makes
a provision for appropriation Bills. Section 30 provides for supplementary,
additional or excess grants. Here again, a provision has been made for
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 255
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

the previous sanction of the President. Section 33 empowers the legislative A
assembly to make rules for regulating, subject to the Act, its procedure
and conduct of business. The Lieutenant Governor upon consulting the
Speaker of legislative assembly and with the approval of the President
may make rules for the timely completion of financial business; for
regulating the procedure of and the conduct of business in the legislative
B
assembly in relation to financial matters of Bills; for the appropriation of
moneys within the consolidated fund of the Capital; and for prohibiting
any discussion on matters where the Lieutenant Governor is to act in his
discretion. Under Section 34, the President has been empowered to direct
that the official language of the Union shall be adopted for such of the
official purposes of the Capital as may be specified, and that any other C
language shall also be adopted.
80. Part IV of the GNCTD Act has inter alia made provisions
for matters which lie in the discretion of the Lieutenant Governor, the
conduct of business, and the duty of the Chief Minister to communicate
with and share information with the Lieutenant Governor. Section 41 D
provides thus:
“Section 41. Matters in which Lieutenant Governor to act in his
discretion:-
(1) The Lieutenant Governor shall act in his discretion in a matter –
E
(i) which falls outside the purview of the powers conferred on
the Legislative Assembly but in respect of which powers or
functions are entrusted or delegated to him by the President
; or
(ii) in which he is required by or under any law to act in his F
discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is not a
matter as respects with the Lieutenant Governor is by or under
any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final.
G
(3) If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is by or
under any law required by any law to exercise any judicial or
quasi-judicial functions, the decision of the Lieutenant
Governor thereon shall be final.”
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256 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 81. The Lieutenant Governor acts in his discretion in two classes
of matters. The first consists of those which are outside the powers
conferred upon the legislative assembly but in respect of which the
President has delegated powers and functions to the Lieutenant Governor.
The second category consists of those matters where the Lieutenant
Governor is required to act in his discretion by or under any law or under
B
which he exercises judicial or quasi-judicial functions. Matters falling
within the ambit of Section 41 lie outside the realm of the aid and advice
mandate. Where a subject or matter lies outside the purview of the
legislative assembly, it necessarily lies outside the executive powers of
the government of the NCT. Such matters stand excepted from the
C ambit of the aid and advice which is tendered by the Council of Ministers
to the Lieutenant Governor.
82. Section 44 stipulates that the President may make rules for
the conduct of business:
“Section 44. Conduct of business:
D
(1) The President shall make rules -
(a) for the allocation of business to the Ministers in so far as it is
business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of
E Ministers; and
(b) for the more convenient transaction of business with the
Ministers, including the procedure to be adopted in the case
of a difference of opinion between the Lieutenant Governor
and the Council of Ministers or a Minister.
F (2) Save as otherwise provided in this Act, all executive action
of the Lieutenant Governor whether taken on the advice of
his Ministers or otherwise shall be expressed to be taken in
the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name
G of the Lieutenant Governor shall be authenticated in such
manner as may be specified in rules to be made by the
Lieutenant Governor and the validity of an order or instrument
which is so authenticated shall not be called in question on
the ground that it is not an order or instrument made or executed
by the Lieutenant Governor.”
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 257
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Under Section 44, the allocation of business amongst ministers in the A
government on matters where the Lieutenant Governor is to act on the
aid and advice of the Council of Ministers has to be prescribed by the
rules framed by the President. Similarly, rules for the convenient
transaction of business with Ministers and for the modalities to be followed
where there is a difference between the Lieutenant Governor and the
B
Council of Ministers or a Minister are framed by the President. All
executive action is under sub-section 2 expressed in the name of the
Lieutenant Governor. Sub-Section 3 provides for the authentication of
orders and instruments made and executed in the name of the Lieutenant
Governor.
83. Section 44 may be distinguished from the provisions of the C
Constitution in relation to the conduct of business of the Union government
(under Article 77) and the conduct of business of the States (under Article
166). Article 77 inter alia stipulates that all executive action of the Union
government shall be expressed in the name of the President and that
orders or instruments in the name of the President shall be authenticated D
in accordance with the rules framed by the President. The President is
empowered to make rules for the convenient transaction of business
and for allocation of that business among ministers. Article 166 is pari
materia (with the substitution of the Governor, for the President in relation
to a State). Unlike in the case of a State, where rules of business are
prescribed by the Governor, Section 44 requires that the rules in relation E
to the conduct of business in the NCT be framed by the President.
Moreover, there is no provision analogous to the proviso to Article
239AA(4) in relation to the affairs of a State under the Constitution.
Article 167 does not contain a provision for the procedure to be adopted
where there is a difference of opinion between the Governor and the F
Council of Ministers.
84. Section 45 provides for the duty of the Chief Minister to
communicate with and share information with the Lieutenant Governor:
“Section 45. Duties of Chief Minister as respects the furnishing
of information to the Lieutenant Governor, etc,- It shall be G
the duty of the Chief Minister –
(a) to communicate to the Lieutenant Governor all decisions of
the Council of Ministers relating to the administration of the
affairs of the Capital and proposals for legislation;
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258 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (b) to furnish such information relating to the administration of
the affairs of the Capital and proposals for legislation as
Lieutenant Governor may call for; and
(c) If the Lieutenant Governor so requires, to submit for the
consideration of the Council of Ministers any matter on which
B a decision has been taken by a Minister but which has not
been considered by the Council.”
Section 45 is similar in terms to Article 78 (in relation to the Prime Minister)
and Article 167 (in relation to a Chief Minister of a State). Articles 78
and 167 embody the fundamental duty of the elected head of government
C in a cabinet form of government to communicate with the titular head of
state and to furnish information in regard to the affairs of the state. The
duty to keep the head of State informed in relation to the affairs of State
arises because real decision making vests in the elected executive. Since
decisions are taken by the executive, the head of State is kept apprised
in reference to his constitutional position as titular head.
D
85. Section 46 provides for the Consolidated Fund of the Capital.
Section 47 provides for contingency funds. Section 47(A) provides that
the executive power of the Union extends to borrowing upon the security
of the Consolidated Fund of the Capital within the limits determined by
Parliamentary legislation.
E
86. Section 49 establishes the principle of the “general control” of
the President over the Lieutenant Governor and the Council of Ministers.
“Section 49. Relation of Lieutenant Governor and his Ministers to
President – Notwithstanding anything in this Act, the Lieutenant
F Governor and his Council of Ministers shall be under the general
control of, and comply with such particular directions, if any, as
may from time to time be given by the President.”
As an incident of control, the Lieutenant Governor and Council of
Ministers must comply with the particular directions issued by the
President. Such directions are obviously issued on the aid and advise of
G
the Union Council of Ministers.
Section 52 stipulates that all contracts relating to the administration of
the Capital are made in exercise of the executive power of the Union
and suits and proceedings in connection with the administration can be
instituted by or against the Union government.
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 259
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

87. This survey of the provisions of the GNCTD Act 1991 indicates A
that there is a significant interface between the President and the
Lieutenant Governor in matters relating to the administration of the
Capital. The Lieutenant Governor has been conferred with certain specific
powers by the provisions of the Act including, among them, requirements
of seeking the prior recommendation of the President to the introduction
B
of financial Bills. As we have seen, the Lieutenant Governor has been
subjected to a wider obligation to reserve Bills for the consideration of
the President and in regard to withholding of his assent to a Bill which
has been passed by the legislative assembly in comparison with the duties
of a Governor of a State. Matters such as the presentation of the annual
financial statement or supplementary, additional or excess grants C
require previous sanction of the President. The President has been
conferred with the power to issue directions in regard to the official
language of the National Capital Territory. The Lieutenant Governor
has been vested with the power to act in his own discretion in matters
which fall outside the ambit and power of the legislative assembly and
D
which have been delegated to him by the President as well as in regard
to those matters where he is required under law to exercise his own
discretion or to act in exercise of judicial or quasi judicial functions.
Rules for the conduct of business are framed by the President in relation
to the National Capital Territory, including for the allocation of business.
They would include the procedure to be followed where there is a E
difference of opinion between the Lieutenant Governor and the Council
of Ministers. Section 49, which has a non-obstante provision, subjects
the Lieutenant Governor and the Council of Ministers to the general
control of the President and to such directions as may be issued from
time to time.
F
J The Transaction of Business Rules, 1993
88. The Transaction of Business of the Government of National
Capital Territory of Delhi Rules, 1993 (“Transaction of Business Rules”)
have been formulated by the President in exercise of powers conferred
by Section 44 of the GNCTD Act 1991. Rule 4(1) embodies the principle G
of collective responsibility. According to the Rule 4(1):
“4. (1) The Council shall be collectively responsible for all the
execution orders issued by any Department in the name of the
Lieutenant Governor and contracts made in the name of the
President in connection with the administration of the Capital H
260 SUPREME COURT REPORTS [2018] 7 S.C.R.

A whether such orders or contracts are authorised by an individual
Minister in respect of a matter pertaining to the Department under
his charge or as a result or discussions at a meeting of the Council.”
89. Rule 7 stipulates that all proposals which are referred to in the
Schedule must be placed before the Council of Ministers in accordance
B with the provisions contained in Chapter 3. All such proposals after
consideration by the Minister-in-charge have to be submitted to the Chief
Minister. Rule 8 envisages orders of the Chief Minister either for
circulation of a proposal under Rule 9 or for placing it for consideration
of the Ministers. Rule 9 empowers the Chief Minister to circulate
proposals to the Ministers for opinion instead of placing them before the
C Council of Ministers. A proposal can be passed by circulation only if
there is unanimity of opinion among the Ministers.
90. The Transaction of Business Rules contain elaborate provisions
for the Lieutenant Governor to be kept informed right from the stage of
a proposal. Rule 9(2), stipulates that where a proposal is circulated, a
D memorandum explaining the proposal has to be prepared for circulation
among the Ministers and simultaneously a copy has to be forwarded to
the Lieutenant Governor. According to the Rule 9(2):
“If it is decided to circulate any proposal, the Department to which
it belongs, shall prepare a memorandum setting out in brief the
E facts of the proposal, the points for decision and the
recommendations of the Minister in charge and forward copies
thereof to the Secretary to the Council who shall arrange to
circulate the same among the Ministers and simultaneously send
a copy thereof to the Lieutenant Governor.”
F Under Rule 10(4), if the Chief Minister accepts the recommendations,
he is to return the proposal with his orders to the Secretary to the Council
of Ministers. Thereupon, Rule 10(5) stipulates that :
“On receipt of the proposal, the Secretary to the Council shall
communicate the decision to the Lieutenant Governor and pass
G on the proposal to the Secretary concerned who shall thereafter
take necessary steps to issue the orders unless a reference to the
Central Government is required in pursuance of the provisions of
Chapter V.”
Rule 10(5) requires that on receipt of a proposal, the Secretary to the
H Council is to communicate the decision to the Lieutenant Governor and
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 261
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

to share the proposal with the Secretary of the concerned department. A
The Secretary of the department concerned would proceed to issue
orders, unless a reference to the Central government is required under
Chapter V. Chapter V, as we shall note hereafter, deals with a situation
where there has been a difference of opinion between the Lieutenant
Governor and the Council of Ministers.
B
91. Proposals which are required to be placed before the Council
of Ministers are dealt with in Rule 11, which provides thus :
“When it has been decided to place a proposal before the Council,
the Department to which it belongs, shall, unless the Chief Minister
otherwise directs, prepare a memorandum indicating precisely the
salient facts of the proposal and the points for decision. Copies of C
the memorandum and such other documents, as are necessary to
enable the proposal to be disposed of shall be forwarded to the
Secretary to the Council who shall arrange to circulate the
memorandum to the Ministers and simultaneously send a copy
thereof to the Lieutenant Governor.” D
A memorandum explaining the proposal is placed by the department to
which the proposal belongs before the Secretary to the Council. The
latter circulates the memorandum to the Ministers and simultaneously
sends a copy to the Lieutenant Governor. Rule 13(3) requires that the
agenda, upon being approved by the Chief Minister, must be forwarded E
by the Secretary to the Council to the Lieutenant Governor, the Chief
Minister and other Ministers. A record of the decisions taken in the
meetings of the Council is prepared and, under Rule 13(7), the Secretary
to the Council is required to forward a copy to the Ministers and to the
Lieutenant Governor. Rule 14 provides thus:
“(1) The decision of the Council relating to each proposal shall be F
separately recorded and after approval by the Chief Minister, or
the Minister presiding , shall be placed with the records of the
proposal. After approval by the Chief Minister or the Minister
presiding , the decision of the Council as approved, shall be
forwarded by the Secretary to the Council to the Lieutenant G
Governor.
(2) Where a proposal has been approved by the Council and the
approved record of the decision has been communicated to the
Lieutenant Governor, the Minister concerned shall take necessary
action to give effect to the decision.” H
262 SUPREME COURT REPORTS [2018] 7 S.C.R.

A After a decision has been taken by the Council on a proposal and upon
the approval by the Chief Minister, the decision is forwarded to the
Lieutenant Governor. After the decision has been communicated to the
Lieutenant Governor, the Minister concerned is empowered to give effect
to the decision.
B 92. Rule 15 empowers the Minister in charge of a department to
dispose of proposals or matters in the department in accordance with
the Standing Orders. Copies of the Standing Orders have to be forwarded
to the Lieutenant Governor and to the Chief Minister. Under Rule 16,
the Minister can provide, by means of Standing Orders, for matters to
be brought to his personal notice. Copies of the Standing Orders have to
C be forwarded to the Lieutenant Governor and the Chief Minister. Rule
17 requires a weekly submission of statements containing particulars of
important proposals or matters disposed of in the department both to the
Lieutenant Governor and the Chief Minister.
93. Rule 19(5) confers authority upon the Lieutenant Governor to
D call for papers of a proposal or matter from any department. Rule 19(5)
is in the following terms:
“The Lieutenant Governor may call for papers relating to any
proposal or matter in any Department and such requisition shall
be complied with by the Secretary to the Department concerned,
E he shall simultaneously inform the Minister-in-charge of the
department of the action taken by him.”
Rule 22 provides for a class of matters which shall be brought to the
attention of the Lieutenant Governor and the Chief Minister:

F “Any matter which is likely to bring the Government of the Capital
into controversy with the Central Government or with any State
Government, shall, as soon as possible, be brought to the notice of
the Lieutenant Governor and the Chief Minister.”
Rule 23 provides for classes of proposals or matters which must be
submitted to the Lieutenant Governor before orders are issued. Rule 23
G
is in the following terms:
“The following classes of proposals or matters shall essentially be
submitted to the Lieutenant Governor through the Chief Secretary
and the Chief Minister before issuing any orders thereon, namely:
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 263
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

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

A Rule 25 casts a duty on the Chief Minister to furnish to the Lieutenant
Governor information on certain matters pertaining to the administration
of the Capital. According to Rule 25:
“The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such
B information relating to the administration of the Capital and
proposals for legislation as the Lieutenant Governor may call
for; and
(b) if the Lieutenant Governor so requires, submit for the
consideration of the Council any matter on which a decision
C has been taken by a Minister but which has not been
considered by the Council.”
Rule 45 of the Transaction of Business Rules deals with the disposal of
business relating to the executive functions of the Lieutenant Governor.
Under Rule 45:
D
“The Lieutenant Governor, may by standing orders in writing,
regulate the transaction and disposal of the business relating to
his executive functions:
Provided that the standing orders shall be consistent with the
provisions of this Chapter, Chapter V and the instructions issued
E
by the Central Government for time to time.
Provided further that the Lieutenant Governor shall in respect of
matters connected with ‘public order’, ‘police’ and ‘land’ exercise
his executive functions to the extent delegated to him by the
President in consultation with the Chief Minister, if it is so provided
F
under any order issued by the President under article 239 of the
Constitution. Provided further that ‘standing orders’ shall not be
inconsistent with the rules concerning transaction of business.”
The second proviso deals with the class of subjects (public order, police
and law) which stand carved out of the legislative powers of the Assembly
G and hence lie outside the executive powers of the NCT government. On
such matters, to the extent to which functions are delegated to the
Lieutenant Governor by the President, the Lieutenant Governor will
consult the Chief Minister if the President has so provided in an order
under Article 239.
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 265
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

Rule 46 makes provisions in regard to persons serving in connection A
with the administration of the National Capital Territory:
“(1)With respect to persons serving in connection with the
administration of the National Capital Territory, the Lieutenant
Governor shall, exercise such powers and perform such
functions as may be entrusted to him under the provisions of B
the rules and orders regulating the conditions of service of
such persons or by any other order of the President in
consultation with the Chief Minister, if it is so provided under
any order issued by the President under article 239 of the
Constitution.
C
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
Commission on all matters on which the Commission is
required to be consulted under clause(3) of article 320 of the
Constitution; and in every such case he shall not make any
order otherwise than in accordance with the advice of the D
Union Public Services Commission unless authorised to do
so by the Central Government.
(3) All correspondence with Union Public Service Commission
and the Central Government regarding recruitment and
conditions of service of persons serving in connection with E
the administration of National Capital Territory shall be
conducted by the Chief Secretary or Secretary of the
Department concerned under the direction of the Lieutenant
Governor.”
Under Rule 47, the Lieutenant Governor has to consult the Union F
government before exercising his powers or discharging his functions in
respect of any matter for which no specific provision is contained in the
Rules.
94. Chapter V of the Transaction of Business Rules sets out the
procedure to be followed by the Lieutenant Governor in making a G
reference to the Central government in the event of a difference of
opinion with the Council of Ministers. Rules 49, 50 and 51 provide as
follows:

H
266 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “49.In case of difference of opinion between the Lieutenant
Governor and a Minister in regard to any matter, the Lieutenant
Governor shall endeavour by discussion on the matter to settle
any point on which such difference of opinion has arisen.
Should the difference of opinion persist, the Lieutenant
Governor may direct that the matter be referred to the
B
Council.”
“50.In case of difference of opinion between the Lieutenant
Governor and the Council with regard to any matter, the
Lieutenant Governor shall refer it to the Central Government
for the decision of the President and shall act according to
C the decision of the President.”
“51.Where a case is referred to the Central Government in
pursuance of rule 50, it shall be competent for the Lieutenant
Governor to direct that action shall be suspended pending the
decision of the President on such case or in any case where
D the matter, in his opinion, is such that it is necessary that
immediate action should be taken to give such direction or
take such action in the matter as he deems necessary.”
Where a direction has been issued by the Lieutenant Governor under
Rule 51, the Minister concerned must take action to give effect to the
E direction.
95. Under Rule 53, an annual plan for each financial year is to be
prepared under the directions of the Lieutenant Governor which has to
be referred to the Central government for approval. The form of the
annual financial statement and the procedure for obtaining the approval
F of the President have to be prescribed by the Central government under
Rule 54.
96. Rule 55(1) provides for certain categories of legislative
proposals which must be referred to the Central government by the
Lieutenant Governor. Rule 55(2) enunciates those matters upon which
G the Lieutenant Governor shall make a prior reference to the Union
government in the Ministry of Home Affairs or through the appropriate
ministry. According to Rule 55:
“(1) The Lieutenant Governor shall refer to the Central Government
every legislative proposal, which
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 267
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

(a) if introduced in a Bill form and enacted by the Legislative A
Assembly, is required to be reserved for the consideration of
the President under the proviso to subclause (c) of clause (3)
of article 239 AA or, as the case may be, under the second
proviso to section 24 of the Act;
(b) attracts provisions of articles 286, 287, 288 and 304 of the B
Constitution as applicable to the Capital;
(c) relates to any matter which may ultimately necessitate
additional financial assistance from the Central Government
through substantive expenditure from the Consolidated Fund
of the Capital or abandonment of revenue or lowering of rate C
of any tax.
(2) Subject to any instructions which may from time to time be
issued by the Central Government, the Lieutenant Governor
shall make a prior reference to the Central Government in
the Ministry of Home Affairs or to the appropriate Ministry D
with a copy to the Ministry of Home Affairs in respect of the
following matters:-
(a) proposals affecting the relations of the Central Government
with any State Government, the Supreme Court of India or
any other High Court; E
(b) proposals for the appointment of Chief Secretary and
Commissioner of Police, Secretary (Home) and Secretary
(Lands);
(c) important cases which affect or are likely to affect the peace
and tranquillity of the National Capital Territory; and F
(d) cases which affect or are likely to affect the interests of any
minority community, Scheduled Castes or the backward
classes.”
Rule 56 stipulates that where a matter has been referred by the Lieutenant
Governor to the Central government under the Rules, further action shall G
not be taken except in accordance with the decision of the Central
government.
97. Analysing the Transaction of Business Rules, it becomes
evident that the Lieutenant Governor is required to be kept informed of
H
268 SUPREME COURT REPORTS [2018] 7 S.C.R.

A governmental business. The duty of the Council of Ministers, with the
Chief Minister at its head, to do so begins at the stage of a proposal.
When a proposal is circulated under the directions of the Chief Minister
to the Council of Ministers, a copy of the explanatory memorandum has
to be forwarded to the Lieutenant Governor. After the proposal has
been approved, the decision is communicated to the Lieutenant Governor.
B
The decision is forwarded to the Secretary of the department concerned
for issuing orders unless a reference to the Central government is
warranted under Chapter V. Where a proposal is placed before the
Council of Ministers, an explanatory memorandum has to be forwarded
to the Lieutenant Governor. Copies of the agenda, upon approval of the
C Chief Minister, are required to be submitted to the Lieutenant Governor.
A record of the decisions of the Council of Ministers is forwarded to the
Lieutenant Governor. After the decisions of the Council have been
approved by the Chief Minister, they are forwarded by the Secretary to
the Council to the Lieutenant Governor. Rule 14(2) stipulates that after
a proposal has been approved by the Council of Ministers and the approved
D
record of the decision has been communicated to the Lieutenant
Governor, the minister concerned “shall take necessary action to give
effect to the decision”. Communication of the approved record of the
decision to the Lieutenant Governor is mandatory and it is only thereafter
that the decision can be implemented. The Lieutenant Governor is
E empowered to call for papers relating to any proposal or matter in any
department under Rule 19(5). The power conferred upon the Lieutenant
Governor to do so is independent of and does not detract from the duty
of the Council of Ministers to keep him informed at every stage. Matters
which are likely to bring the government of the NCT into controversy
with the Central government or with any state government must be bought
F
to the notice of the Lieutenant Governor. As distinguished from Rule 14,
Rule 23 sets out those classes of proposals or matters which have to be
submitted to the Lieutenant Governor before orders are issued thereon.
Rule 14(2), as noted earlier, stipulates that upon being approved by the
Council, the record of the decision is communicated to the Lieutenant
G Governor upon which the minister will take necessary action to give
effect to the decision. However, Rule 23 elucidates specified situations
where proposals or matters must be essentially submitted to the Lieutenant
Governor before issuing orders thereon. These matters are considered
to be important enough to warrant a mandatory prior submission to the
Chief Minister as well as to the Lieutenant Governor before orders are
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 269
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

issued. These provisions in the Transaction of Business Rules ensure A
that the Lieutenant Governor is kept informed of the affairs and
administration of the National Capital Territory at every stage. The rules
leave no element of discretion in the Council of Ministers to not comply
with the obligation. The obligation to keep the Lieutenant Governor
informed at every stage brooks no exceptions.
B
98. The Transaction of Business Rules set out a careful defined
procedure to enable the Lieutenant Governor to counsel the Ministers.
This is to facilitate a further reflection or reconsideration in certain
situations. Rule 24 deals with one such situation where the Lieutenant
Governor is of the opinion “that any further action should be taken or
that action should be taken otherwise than in accordance with the orders C
passed by the minister in charge”. The Lieutenant Governor may in
either case require that the proposal or matter be placed before the
Council of Ministers for consideration. The duty of keeping the Lieutenant
Governor abreast of the administration of the affairs of the National
Capital Territory is amplified by Rule 25. Under the Rule, a duty has D
been cast on the Chief Minister to furnish to the Lieutenant Governor
information on the administration of the Capital and proposals for
legislation as the latter may summon. The Lieutenant Governor may
also require the submission to the Council of a matter on which the
Minister has taken a decision but it has not been placed before the Council.
E
99. Chapter IV enables the Lieutenant Governor to formulate
standing orders regulating the transaction and disposal of business relating
to his executive functions. The second proviso to Rule 45 specifically
deals with matters connected with public order, police and land. These
are subjects which lie outside the ambit of legislative powers of the
legislative assembly, since they fall under Entries 1, 2 and 18 of the State F
List. Since there is an absence of legislative power in relation to these
subjects, they lie outside the realm of matters covered by the aid and
advice of the Council of Ministers. On these excepted subjects, the
Lieutenant Governor has to exercise his executive function to the extent
to which there is a delegation by the President. The Lieutenant Governor G
has to consult the Chief Minister if it is so provided in an order of the
President under Article 239. Clearly, therefore, in regard to the excepted
matters, the exercise of the executive functions by the Lieutenant
Governor must be in accord with the delegation, if any, by the President.
The Lieutenant Governor can exercise only such executive functions, to
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270 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the extent to which a delegation has been made. The requirement of
consulting the Chief Minister would be subject to the contents of an
order issued by the President under Article 239.
100. As regards persons who are in the service connected to the
administration of the NCT, the Lieutenant Governor has been assigned
B under Rule 46 such powers and functions as are entrusted to him by the
Rules and orders regulating the conditions of service of such persons or
an order of the President made under Article 239. The Lieutenant
Governor is mandated to consult the Union Public Service Commission
on matters on which it is required to be consulted under Article 320(3).
The Lieutenant Governor has to act in accordance with the advice of
C the Commission unless authorized by the Central government.
101. The Transaction of Business Rules elaborately define the
modalities which the Lieutenant Governor must follow in the event of a
difference of opinion with the Council of Ministers. The proviso to Article
239AA(4), Section 44(1)(b) of the GNCTD Act and Chapter V of the
D Transaction of Business Rules provide a composite and holistic
perspective. They elucidate the modalities which must be followed when
there is a difference of opinion. Chapter V supplements and gives effect
to the proviso to Article 239AA(4). If a difference of opinion arises
between the Lieutenant Governor and a Minister on any matter, the first
E and primary endeavour must be to resolve it by discussion. Before the
matter escalates to the next stage all efforts have to be devoted to a
mutual resolution with the Minister. If the difference of opinion continues
to persist, the Lieutenant Governor is empowered to direct that the matter
in difference be referred to the Council of Ministers. It is when a
difference persists between the Lieutenant Governor and the Council of
F Ministers that a reference is contemplated by Rule 50 to the Central
government for a decision of the President. These provisions provide a
road map for the exercise of constitutional statesmanship. The differences
between the Lieutenant Governor and a Minister or the Council of
Ministers must in good faith be attempted to be resolved. Differences
G constitute the heart of democracy. Reason and dialogue are the essence
of a democratic government. The affairs of government do admit of
variations in perspective and opinion. The problems of governance are
complex. The institutional process of decision making must be mature
and tolerant. The theatrics which accompany the rough and tumble of
politics ought not to disrupt the necessity for institutional governance
H which is marked by constitutional sobriety and administrative wisdom.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 271
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

102. Settlement of a difference between a Minister and the A
Lieutenant Governor by discussion obviates a reference to the President
and provides a flexible and expeditious solution where there is a difference
of opinion. The first stage at which a resolution is attempted is between
the Lieutenant Governor and the Minister in question. If that does not
result in a satisfactory solution, the second stage involves the Council of
B
Ministers as a collective entity. It is when the dispute has failed to meet
a satisfactory resolution with the Council of Ministers that the Lieutenant
Governor is empowered to make a reference to the Central government.
The power of the Lieutenant Governor under Rule 55(2) stands
independent of the area of difference of opinion covered by Rules 49, 50
and 51. Rule 55(2) brings into focus certain specified areas where certain C
matters have to be referred to the Union government either in the Union
Ministry of the Home Affairs or in the appropriate ministry. The matters
covered by Rule 55(2) are considered to be important enough to warrant
a prior reference to the Central government.
103. The feature which stands out from the Transaction of D
Business Rules is that an obligation and duty has been cast upon the
elected government and its officers to duly keep the Lieutenant Governor
informed of proposals relating to governmental business. The duty to
keep the Lieutenant Governor informed is a necessary element of the
process and essential for the exercise of the constitutional authority which
has been vested in the Lieutenant Governor. It is only when the Lieutenant E
Governor is kept duly apprised of matters relating to the administration
of the National Capital Territory that a decision can be taken on whether
a reference should be made to the Union government under Chapter V.
If the Lieutenant Governor were to be kept in the dark, it would not be
possible for him as a constitutional authority to determine as to whether F
the matter is of such a nature as would warrant a reference to the
Central government. Sharing of information and the process of
communication ensures a dialogue which promotes harmony in
administration. The Rules are founded upon the need to maintain
constitutional comity rather than strife.
G
104. A significant aspect of the Rules is that on matters which fall
within the ambit of the executive functions of the government of NCT,
decision making is by the government comprised of the Council of
Ministers with the Chief Minister at its head. The role of the Lieutenant
Governor is evinced by the duty which is cast upon the government to
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272 SUPREME COURT REPORTS [2018] 7 S.C.R.

A keep him duly apprised on matters relating to the administration of the
Union territory. On matters of executive business which lie within the
constitutional functions assigned to the executive government of the NCT,
such a role is elaborated in the functions assigned to the Lieutenant
Governor under Rule 24. Rule 24 deals with an eventuality when the
Lieutenant Governor may be of the opinion that any further action should
B
be taken or that action should be taken otherwise than in accordance
with an order which has been passed by a Minister. In such a case, the
Lieutenant Governor does not take his own decision. He has to refer the
proposal or matter to the Council of Minister for consideration. Under
Rule 25, Lieutenant Governor may require the Council to consider a
C matter on which a decision has been taken by a Minister but which has
not been considered by the Council. Rule 23 enunciates matters which
have to be submitted to the Lieutenant Governor before issuing any
orders thereon. If the Lieutenant Governor disagrees with a decision or
proposal, recourse has to be taken to the procedure which has been
enunciated in Rules 49, 50 and 51. If there is a difference of opinion, the
D
Lieutenant Governor must refer it to the Union government after following
the procedure which has been laid down. After the decision of the President
has been communicated, the Lieutenant Governor must follow that
decision and implement it. In other words, the Lieutenant Governor has
not been conferred with the authority to take a decision independent of
E and at variance with the aid and advice which is tendered to him by the
Council of Ministers. If he differs with the aid and advice, the Lieutenant
Governor must refer the matter to the Union government (after attempts
at resolution with the Minister or Council of Ministers have not yielded a
solution). After a decision of the President on a matter in difference is
communicated, the Lieutenant Governor must abide by that decision.
F
This principle governs those areas which properly lie within the ambit
and purview of the executive functions assigned to the government of
the National Capital Territory. Matters under Section 41 which fall under
the discretion of the Lieutenant Governor stand at a different footing.
The Lieutenant Governor may be required to act in his discretion where
G a matter falls outside the powers conferred on the legislative assembly
but in respect of which powers or functions have been delegated to him
by the President. The Lieutenant Governor may also be required to act
in his discretion under a specific provision of law or where he exercises
judicial or quasi judicial functions. Matters pertaining to public order,
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 273
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

police and land lie outside the ambit of the legislative powers of the A
Assembly and hence are outside the executive functions of the
government of NCT. These are matters where the Lieutenant Governor
would act in the exercise of his functions at his discretion if and to the
extent to which there has been a delegation or entrustment by the
President to him under Article 239 of the Constitution. Hence, a distinction
B
exists between matters which lie within the domain of the legislative
powers of the Assembly and of the executive powers of the NCT
government, and those which lie outside. On the former, the Lieutenant
Governor must abide by the aid and advice tendered by the Council of
Ministers and, in the event of a difference of opinion, refer the matter to
the President for decision. In matters which lie outside the legislative C
powers of the legislative assembly, the Lieutenant Governor has to act
in accordance with the entrustment or delegation that has been made to
him by the President under Article 239.
105. Section 49 of the GNCTD Act confers an overriding power
of control upon the President and the power to issue directions. Upon D
the exercise of Presidential powers under Section 49, the Lieutenant
Governor would have to abide by the directions of the President.
K. Precedents
Literal Interpretation
E
106. The Learned Additional Solicitor General has relied on certain
decisions of this Court to support his submission that while interpreting
the Constitution, the Court must read its words in a strictly textual manner.
It is his contention that the provisions of Article 239AA, the GNCTD
Act and Transaction of Business Rules must be given plain and literal
interpretation. F
107. The first case relied by the Learned ASG is the decision in
Keshavan Madhava Menon v State of Bombay 83 (“Keshavan
Madhava Menon”). A Full Bench of the Bombay High Court had held
that assuming that the provisions of the Indian Press (Emergency Powers)
Act, 1931 were inconsistent with Article 19(1)(a) of the Constitution, G
proceedings which had been commenced and were pending at the date
of the commencement of the Constitution were not affected even if the
Act was inconsistent with the fundamental rights and had become void
under Article 13(1). The appeal against the judgment of the High Court
83
(1951) 2 SCR 228 H
274 SUPREME COURT REPORTS [2018] 7 S.C.R.

A was adjudicated by a seven-Judge Constitution Bench of this Court.
Justice S R Das, speaking for a majority of this Court held that:
“An argument founded on what is claimed to be the spirit of the
Constitution is always attractive, for it has a powerful appeal to
sentiment and emotion; but a court of law has to gather the spirit
B of the Constitution from the language of the Constitution. What
one may believe or think to be spirit of the Constitution cannot
prevail if the language of the Constitution does not support that
view. Article 372(2) gives power to the President to adapt and
modify existing laws by way of repeal or amendment. There is
nothing to prevent the President, in exercise of the powers
C conferred on him by that article, from repealing, say the whole or
any part of the Indian Press (Emergency Powers) Act, 1931. If
the President does so, then such repeal will at once attract Section
6 of the General Clauses Act. In such a situation all prosecutions
under the Indian Press (Emergency Powers) Act, 1931, which
D were pending at the date of its repeal by the President would be
saved and must be proceeded with notwithstanding the repeal of
that Act unless an express provision was otherwise made in the
repealing Act. It is therefore clear that the idea of the preservation
of past inchoate rights or liabilities and pending proceedings to
enforce the same is not foreign or abhorrent to the Constitution of
E India. We are, therefore, unable to accept the contention about
the spirit of the Constitution as invoked by the learned counsel in
aid of his plea that pending proceedings under a law which has
become void cannot be proceeded with. Further, if it is against the
spirit of the Constitution to continue the pending prosecutions under
F such a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such repressive
law before the Constitution of India came into force should continue
to rot in jail. It is, therefore, quite clear that the court should
construe the language of Article 13(1) according to the established
rules of interpretation and arrive at its true meaning uninfluenced
G by any assumed spirit of the Constitution.”
Applying the standard, the majority held that Article 13 of the Constitution
“is entirely prospective in operation and rendered inconsistent existing
laws ineffectual on and after the date of the commencement of the
Constitution”. The view of the majority was that there is no fundamental
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 275
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

108. The next judgment on which reliance has been placed by the
ASG is in Tej Kiran Jain v N Sanjiva Reddy84. A Bench of six judges
of this Court was considering an appeal from the judgment of a Full
Bench of the Delhi High Court rejecting a plaint claiming a decree for
damages for statements made on the floor of the Lok Sabha during a F
Calling Attention Motion. Such an action was clearly barred under Article
105(2) of the Constitution. This Court rejected the contention that the
immunity granted by Article 105(2) in respect of anything said or any
vote given in Parliament would apply only to words relevant to the business
of Parliament and not to something which was irrelevant. In that context, G
the Court held that:
“In our judgment it is not possible to read the provisions of the
article in the way suggested. The article means what it says in
language which could not be plainer. The article confers immunity
84
(1970) 2 SCC 272 H
276 SUPREME COURT REPORTS [2018] 7 S.C.R.

A inter alia in respect of “anything said …. In Parliament”. The
word ‘anything’ is of the widest import and is equivalent to
‘everything’. The only limitation arises from the words ‘in
Parliament’ which means during the sitting of Parliament and in
the course of the business of Parliament. We are concerned only
with speeches in Lok Sabha. Once it was proved that Parliament
B
was sitting and its business was transacted, anything said during
the course of that business was immune from proceedings in any
Court. This immunity is not only complete but is as it should be…”
109. The third decision is of a Constitution Bench in G
Narayanaswami v G Pannerselvam85 (“Narayanaswami”). In that
C case, Article 171 of the Constitution came up for interpretation and the
submission which was urged was that in order to be qualified to stand
for election to a graduate constituency of the Legislative Council of a
State, a person must also possess the qualification of being a graduate.
Repelling the contention, this Court held that it was not open to the Court
D to add to the qualifications prescribed by the Constitution:
“..The concept of such representation does not carry with it, as a
necessary consequence, the further notion that the representative
must also possess the very qualifications of those he represents…
the view contained in the Judgment under appeal, necessarily results
E in writing some words into or adding them to the relevant statutory
provisions to the effect that the candidates from graduates’
constituencies of Legislative Councils must also possess the
qualification of having graduated. This contravenes the rule of
“plain meaning” or “literal” construction which must ordinarily
prevail.”
F
110. In support of the above contention, reliance has also been
placed on two other Constitution Bench decisions of this Court in Kuldip
Nayar v Union of India86 (“Kuldip Nayar”) and Manoj Narula v
Union of India87 (“Manoj Narula”). In Kuldip Nayar, an amendment
made in the Representation of People Act, 1951 was challenged. By the
G said amendment, the requirement of “domicile” in the State concerned
for getting elected to the Council of States was deleted. It was contended
by the petitioner that removing the said requirement violated the principle
85
(1972) 3 SCC 717
86
(2006) 7 SCC 1
87
H (2014) 9 SCC 1
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 277
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

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

A sought to be urged on behalf of the Union of India that anything but the
literal meaning of the words used is irrelevant to the interpretation of the
Constitution. The judgment in Keshavan Madhava Menon held that
the Court has to gather the spirit of the Constitution from its language
and that the language of Article 13 had to be interpreted in accordance
with the established rules of interpretation “uninfluenced by any assumed
B
spirit of the Constitution”. These observations of the seven-judge Bench
are not intended to adopt a principle of interpretation which requires the
Court to ignore the basic values which the Constitution seeks to enhance,
while interpreting the words used in the text. The words contained in the
text of the Constitution have to be attributed a purposive interpretation
C which advances fundamental constitutional values. In Keshavan
Madhava Menon, the Court found the ‘spirit of the Constitution’ to be
perhaps too vague or amorphous (though it was not articulated specifically
thus). After the evolution of the basic structure doctrine post
Kesavananda, the interpretation of the Constitution must be guided by
those fundamental tenets which constitute the foundation and basic
D
features of the document. Where a provision of the Constitution is intended
to facilitate participatory governance, the interpretation which the Court
places must enhance the values of democracy and of republican form of
government which are part of the basic features.
112. The judgment in Tej Kiran Jain rejects the attempt to dilute
E the immunity conferred by Article 105 in respect of statements made on
the floor of the House. The judgment in Narayanaswami rejected the
attempt to read a qualification for being elected to the Legislative Council
which was not found in the text of Article 171. The Court in Manoj
Narula refused to read a disqualification into the words of Article 75 for
F being appointed as a Minister of the Union Cabinet. The Constitution of
India is an embodiment of multiple values. The Constitution preserves
national unity. Yet it also nurtures regional autonomy and decentralization.
As discussed in the beginning of this judgment, the approach of a
constitutional court must be to interpret the Constitution so as “to arbitrate
between contesting interpretations of the many core values on which
G our polity is believed to be based.”88 Each provision of the Constitution
must therefore be studied “as an expression of values” and has to be
interpreted “against the background of an overarching constitutional
88
Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University
Press (2008), at page 9
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 279
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

order”.89 Representative democracy underlines the essence of our A
Constitution. Collective responsibility of the Council of Ministers is the
most essential component of the Cabinet form of government as
envisaged under the Constitution. The trust reposed in the Council of
Ministers of the NCT is based on its constitutional status. These moral
values of the Constitution must therefore be upheld.
B
113. In Kuldip Nayar’s case, the Court had held that in order to
interpret the intention behind the enactment of a provision, “one needs to
look into the historical legislative developments”. Placing the structure
of governance in the NCT to a constitutional pedestal (while making
divergences from previous statutory schemes, as discussed earlier in
this judgment) provided a special status to the NCT, which this Court C
cannot ignore.
This Court must interpret the Constitution on the basis of the principles
elucidated in the beginning of this judgment.
Relationship between Centre and Union Territories D
114. The relationship between the Union government and a Union
territory has in varying contexts been the subject matter of decided cases.
In Satya Dev Bushahri v Padam Dev90 (“Satya Dev Bushahri”),
the election of the first respondent was questioned, among other grounds,
for the reason that he was interested in contracts with the government E
and was disqualified for being chosen to the legislative assembly of
Himachal Pradesh. The Election Tribunal rejected the contention holding
that Representation of the People Act, 1951 was not applicable to elections
in Part C States. The appellant contended that the contracts in which
the elected candidate had interest were in fact contracts with the Central
government, which disqualified him from becoming a member of the F
legislative assembly. It was urged that since the executive action of the
Central government is vested in the President, the President was also
the executive head of Part C States and a contract entered into with the
then state of Himachal Pradesh was in law a contract with the Central
government. Dealing with the submission, Justice T L Venkatarama Ayyar G
speaking for a Bench of three judges of this Court held thus :

89
Martin Loughlin, “The Silences of Constitutions”, International Journal of
Constitutional Law (2019, In Press) https://www.iura.uni-treiburg.de/de/institute/rphii/
freiburger vortraege/silences-of-constitutions-m-loughlin-manuskript.pdf
90
(1955) 1 SCR 549 H
280 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “9…The fallacy of this reasoning is obvious. The President who
is the executive head of the Part C States is not functioning as the
executive head of the Central Government, but as the head of the
State under powers specifically vested in him under Article 239.
The authority conferred under Article 239 to administer Part C
States has not the effect of converting those States into the Central
B
Government. Under Article 239, the President occupies in regard
to Part C States, a position analogous to that of a Governor in
Part A States and of a Rajpramukh in Part B States. Though the
Part C States are centrally administered under the provisions of
Article 239, they do not cease to be States and become merged
C with the Central Government.”
The Court consequently rejected the contention that a contract with a
Part C State should be construed as a contract with the Central
government. This decision was subject to a review. In the application
for review, reliance was sought to be placed on the provisions of Section
D 3(8)(b)(2) of the General Clauses Act which define the expression
“Central Government” as follows :
“3…Central Government’ shall in relation to anything done or to
be done after the commencement of the Constitution, mean the
President; and shall include in relation to the administration of a
E Part C State, the Chief Commissioner or Lieutenant-Governor or
Government of a neighbouring State or other authority acting within
the scope of the authority given to him or it under Article 239 or
Article 243 of the Constitution, as the case may be.”
On this basis, it was urged that a contract with the Chief Commissioner
F of Himachal Pradesh must be treated as a contract with the Central
government and in consequence the elected candidate was disqualified
under the relevant legislation. On the other hand, the elected candidate
relied upon the provisions of Section 3(60)(b) which read as follows:
“State Government” as respects anything done or to be done after
G the commencement of the Constitution, shall mean, in a Part A
State, the Governor, in a Part B State the Rajpramukh, and in a
Part C State the Central Government.”
This Court, in the course of the judgment in review, held that in view of
the provisions of Section 3(8), a contract with the Chief Commissioner
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 281
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in a Part C State is a contract with the Central government, which would A
be a disqualification for election to the legislative assembly under Section
17 of Government of Part C States Act 1951 read with Section 7(d) of
Representation of the People Act, 1951. In the view of the Court:
“4…We are unable to agree that Section 3(8) has the effect of
putting an end to the status of Part C States as independent units, B
distinct from the Union Government under the Constitution. It
merely recognises that those States are centrally administered
through the President under Article 239, and enacts that the
expression “Central Government “should include the Chief
Commissioner administering a Part C State under the authority
given to him under Article 239. Section 3(8) does not affect the C
status of Part C States as distinct entities having their own
Legislature and judiciary, as provided in Articles 239 and 240. Its
true scope will be clear if, adapting it, we substitute for the words
“Central Government” in Section 9 of Act 43 of 1951 the words
“the Chief Commissioner acting within the scope of the authority D
given to him under Article 239”. A contract with the Chief
Commissioner would, therefore, under Section 9 read with Section
3(8) of the General Clauses Act, be a contract with the Central
Government, and would operate as a disqualification for election
to either House of Parliament under Sections 7(d) and 9 of Act
43 of 1951, and it would be a disqualification under Section 17 of E
Act 49 of 1951, for election to the Legislative Assembly of the
State.”
115. The subsequent decision in Devji Vallabhbhai Tandel v
Administrator of Goa, Daman & Diu91 (“Tandel”) involved an order
of detention issued under the COFEPOSA92 by the Administrator of F
Goa, Daman and Diu. One of the grounds of challenge before the Bench
of three Judges of this Court was that an order of detention could be
made only by the Chief Minister in the name of the Administrator, and
not by the Administrator. Section 2(f) defined the expression “state
government”, in relation to a Union territory, to mean the Administrator. G
An order of detention could be issued under Section 3(1) by the Central
government or the state government or officers of a certain rank who
91
(1982) 2 SCC 222
92
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974
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A were duly empowered. Justice Baharul Islam speaking for this Court
noted that comparing the provisions of Articles 74 and 163, on the one
hand and Section 44 of the Government of Union Territories Act 1963,
there was a manifest difference between the position of the President
or Governor and the Administrator of a Union territory. In the view of
the Court:
B
“14…The Administrator even in matters where he is not required
to act in his discretion under the Act or where he is not exercising
any judicial or quasi-judicial function, is not bound to act according
to the advice of the Council of Ministers. This becomes manifest
from the proviso to Section 44(1). It transpires from the proviso
C that in the event of a difference of opinion between the
Administrator and his Ministers on any matter, the Administrator
shall refer the matter to the President for decision and act
according to the decision given thereon by the President. If the
President in a given situation agrees with what the Administrator
D opines contrary to the advice of the Council of Ministers, the
Administrator would be able to override the advice of the Council
of Ministers and on a reference to the President under the proviso,
obviously the President would act according to the advice of the
Council of Ministers given under Article 74. Virtually, therefore,
in the event of a difference of opinion between the Council of
E Ministers of the Union Territory and the Administrator, the right
to decide would vest in the Union Government and the Council of
Ministers of the Union Territory would be bound by the view taken
by the Union Government. Further, the Administrator enjoys still
some more power to act in derogation of the advice of the Council
F of Ministers.”
The Court adverted to the fact that when the Administrator makes a
reference to the President on a difference of opinion arising with the
Council of Ministers, he may “during the interregnum...completely
override the advice of the Council of Ministers and act according to his
G light”. This Court observed that neither the Governor nor the President
enjoys such a power:
“15…This basic functional difference in the powers and position
enjoyed by the Governor and the President on the one hand and
the Administrator on the other is so glaring that it is not possible to
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 283
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

hold on the analogy of the decision in Samsher Singh case is that A
the Administrator is purely a constitutional functionary bound to
act on the advice of the Council of Ministers and cannot act on
his own. Therefore, for this additional reason also the submission...
must be rejected.”
116. The learned Additional Solicitor General has placed reliance B
on the above observations to submit that since the proviso to Section 44
was “bodily lifted” (as he describes it) and placed in Article 239AA(4),
the construction placed by the Bench of three Judges in Tandel on the
ambit of the powers of the Administrator will govern the construction of
the proviso to Article 239AA. On the other hand, Mr Gopal Subramanium
urged that the above interpretation of the proviso to Section 44(1) of the C
1963 Act will not apply proprio vigore to Article 239AA. In his
submission, the constitutional amendment resulting in the introduction of
Article 239AA is a significant expression of people’s sovereignty and
the intention underlying it must receive a purposive interpretation. While
not detracting from the importance of the NCT, Mr Subramanium D
submitted that the area of control with the Administrator which is “an
exceptional residual power” must not set at naught a democratically
elected Cabinet form of government in the Union territory. We will return
to the proper construction to be placed upon the proviso. However, at
this stage we find it difficult to subscribe to the view that the content of
the constitutional provision engrafted in Article 239AA must be read on E
the same pedestal as the content of the statutory provision in Section 44
of the 1963 Act. The fact that the proviso to Article 239AA(4) is similar
in terms to the proviso to Section 44(1) of the 1963 Act may be one
aspect of relevance to the construction of the former. Yet, to our mind, in
construing a constitutional provision, the considerations which weigh with F
the Court would not be constricted by the principles underlying the
interpretation of the provisions of a statute. Ordinarily while construing
a statute, the Court would be guided by the plain and grammatical meaning
of the words used. The literal or golden rule of interpretation gives way
where its consequence would lead to an absurdity or perpetuate an evil
which the legislature had intended to avoid. The Court, even while G
interpreting a statute, may adopt a purposive interpretation. An
interpretation is purposive because it facilitates the object which the
legislature intended to achieve by enacting the law. Even a purposive
interpretation seeks to fulfil the aim and object of the legislature which
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284 SUPREME COURT REPORTS [2018] 7 S.C.R.

A enacted the law. While construing the provisions of the Constitution, the
Court cannot be oblivious either to the nature of the document which it
construes or to its task as an institution created by the Constitution to
interpret its provisions. Ordinary law is susceptible to alteration by
legislative majorities. Legislative amendments to statutory provisions are
often a response to the predicaments of the moment. The object of
B
elevating rights, duties and modes of governance into the protective terrain
of a constitutional document is to precisely elevate them to a status of
stability and permanence which we attribute to a constitutional provision.
Constitutional provisions are also subject to the amendatory process under
Article 368 so long as the basic features of the Constitution are not
C abridged. The restraints on the constituent power in the form of the
special majorities required for the passage of an amendment, the
requirement in certain cases of ratification by the state legislatures and
the substantive limits imposed by the basic structure doctrine make the
distinction between ordinary legislation and a constitutional amendment
evident. Interpretation of a constitutional text is therefore governed by
D
the precept that the Court is embarking upon the task of construing an
organic document which defines the basic compact for society. It is in
that sense that the Court will bear in mind that it is the Constitution
which the Court is expounding. These considerations must apply with
significant force when an amendment to the Constitution has (as in the
E present case) strengthened the basic structure by entrenching the principle
of democratic governance. Consequently, the line of thought which
requires us to read the proviso to Article 239AA(4) in terms of the proviso
to Section 44(1), and to follow the line of interpretation of the latter in
Tandel’s case is to place words above the heart and soul of the
Constitution. Tandel’s case did not have to go into the issues which
F
arise before us in relation to the exercise of constitutional powers. Tandel
does not explain what is the nature of the difference of opinion which
will warrant a reference to the President. The COFEPOSA, as we have
noticed, defined the expression “state government” in relation to a Union
territory to mean ‘the Administrator thereof’. The Court did not have to
G consider the effect of the proviso, in any event not in the context of a
constitutional provision. There are more fundamental issues which the
Court must resolve while interpreting the text of the Constitution which
lie beyond the mere question of whether the Administrator of Goa (as in
that case) was authorised to issue an order of detention. While construing
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 285
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

the text of Article 239AA, the endeavour of the Court must be to facilitate A
the strengthening of democratic institutions. Constitutional liberties survive
and democracies remain vibrant when the institutions of governance
created by the Constitution are capable of withstanding the challenges
of the times. As an expounder of constitutional principle, it is the foremost
duty of the Court to adopt an interpretation which gives expression to
B
democratic values. Truth, justice and freedom are cardinal values in the
democratic quest of achieving the dignity of citizens. The ability of citizens
to participate in the formation of governments and to expect accountable
and responsive government constitutes the backbone of a free society.
In interpreting constitutional text, history should remind us how fragile
liberty and democracy can be, unless citizens fiercely protect their C
foundations. We can ignore them only at our peril.
117. Another decision of this Court which must be adverted to is
in Goa Sampling Employees’ Association v General
Superintendence Co. of India Pvt. Ltd.93 (“Goa Sampling”). A
reference was made by the Central government of an industrial dispute D
for adjudication under the Industrial Disputes Act 1947. It was sought to
be urged that in relation to a Union Territory, the Central government is
the appropriate government. The Tribunal held that the workmen were
dock workers governed by an Act of Parliament and since they were
working in a major port, it was the Central government which was the
appropriate government. The Tribunal also held that even if the state E
government is the appropriate government, since Goa was then a Union
territory and its administration was carried on by an Administrator
appointed by the President under Article 239, the Central government
was the appropriate government. The High Court held that the industrial
dispute in which the workmen were involved did not concern a major F
port and hence the Central government was not the appropriate
government. Moreover, the High Court also held that the Central
government is not the state government for the Union territory of Goa
under the Act but it was the Administrator appointed under Article 239
who is the state government. The Administrator being the appropriate
government, the High Court held that the Central government had no G
jurisdiction to make the reference. It was the second limb of the finding
of the High Court which was considered by this Court in the course of
its judgment. In order to appreciate the controversy, it is necessary to
93
(1985) 1 SCC 206
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A consider the expressions “Central government” as defined in Section
3(8) of the General Clauses Act, 1897 which reads as follows:
“(8) ‘Central Government’ shall—
(a) * * *
B (b) in relation to anything done or to be done after the
commencement of the Constitution, mean the President; and shall
include,
(i)-(ii) * * *
(iii) in relation to the administration of a Union Territory, the
C Administrator thereof acting within the scope of the authority given
to him under Article 239 of the Constitution.”
The expression “state government” is defined in Section 3(60), insofar
as is material thus:
“ ‘State Government’,—
D
(a)-(b) * * *
(c) as respects anything done or to be done after the
commencement of the Constitution (Seventh Amendment) Act,
1956, shall mean, in a State, the Governor, and in a Union Territory,
E the Central Government;”
“Union territory” is defined in Section 3(62) to mean the Union territories
specified in the First Schedule to the Constitution and to include any
other territory comprised within the territory of India but not specified in
that Schedule.
F Dealing with the provisions of Section 44(1) of the 1963 Act, this Court
observed thus:
“12…According to the proviso in the event of a difference of
opinion between the Administrator and the Ministers on any matter,
the Administrator shall refer it to the President for decision given
G therein by the President etc. Thus the executive power of the
Administrator extends to all subjects covered by the legislative
power. But in the event of a difference of opinion the President
decides the point. When President decides the point, it is the Central
Government that decides the point.”
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 287
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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

94
(1962) 2 SCR 794
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A Constitution in 1956 and before the insertion of Articles 239A and 239B.
The position in law was set out as follows:
“17…On a conspectus of the relevant provisions of the Constitution
and the 1963 Act, it clearly transpires that the concept of State
Government is foreign to the administration of Union Territory
B and Article 239 provides that every Union Territory is to be
administered by the President. The President may act through an
Administrator appointed by him. Administrator is thus the delegate
of the President. His position is wholly different from that of a
Governor of a State. Administrator can differ with his Minister
and he must then obtain the orders of the President meaning
C thereby of the Central Government. Therefore, at any rate the
Administrator of Union Territory does not qualify for the
description of a State Government. Therefore, the Central
Government is the “appropriate Government”.”
The decision of the two judge Bench in Goa Sampling explains that
D under the General Clauses Act 1897, the expression “Central
government” will include the Administrator of a Union territory acting
within the scope of his authority under Article 239, in relation to the
administration of the Union territory. Similarly, the expression “state
government” means in relation to the Union territory, the Central
E government. The Central government was held to be the appropriate
government to make a reference under the Industrial Disputes Act, 1947.
The judgment in Goa Sampling dealt with the limited scope as to which
is the appropriate Government under the Industrial Disputes Act.
118. The issue as to whether the Lieutenant Governor of the NCT
F is competent to accord sanction for prosecution under the Prevention of
Terrorism Act and the Code of Criminal Procedure was considered by a
two judge Bench of this Court in State (NCT of Delhi) v Navjot
Sandhu95 (“Navjot Sandhu”). In that case, sanctions under both the
statutes were accorded “by order and in the name of the Lieutenant
Governor”. The sanction under Section 50 of the POTA was urged to
G be a nullity on the ground that in relation to the Union Territory only the
Central government was competent to accord it. Section 2(1)(h) of
POTA defined the expression “State” in relation to a Union territory, to
mean the Administrator thereof. Rejecting the challenge, this Court
held that under Article 239AA, the Administrator appointed under Article
H 95
(2005) 11 SCC 600
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 289
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

239 does not lose his status as such and it is only his designation which is A
merged into the new designation of Lieutenant Governor “in keeping
with the upgraded status of this particular Union territory”. The Lieutenant
Governor, who continues to be an Administrator, was held to derive
authority to grant sanction under Section 50 by reason of the legislative
fiction under Section 2(1)(h), the Administrator being deemed to be the
B
state government for the purpose of Section 50. Hence :
“..by virtue of specific statutory delegation in favour of the
Administrator who is constitutionally designated as the Lieutenant
Governor as well, the sanction accorded by the said authority is a
valid sanction under Section 50 of POTA..”
C
The decision in Navjot Sandhu turned upon a specific statutory delegation
in favour of the Administrator to grant sanction. It is hence of no
assistance to the present constitutional context.
Decision in NDMC
119. A nine-judge Bench of this Court in New Delhi Municipal D
Council v State of Punjab96 (“NDMC”) dealt with the issue as to
whether properties owned and occupied by various states in the NCT
are exempt from the levy of local taxes under Article 289(1) of the
Constitution. Allied to this was the question as to whether the states are
entitled to exemption from the levy of taxes imposed by Parliamentary E
legislation under Article 246(4) upon their properties situated within the
Union territories. Article 246(4) provides thus:
“Parliament has power to make laws with respect to any matter
for any part of the territory of India not included [in a State]
notwithstanding that such matter is a matter enumerated in the F
State List.”
Justice B P Jeevan Reddy spoke for the majority of five judges. The
minority view of four judges was rendered by Chief Justice Ahmadi.
120. The judgment of the majority notes that the States, put together,
do not exhaust the territory of India. Parliament has the power to make G
laws with respect to any matter for any part of territory of India not
included in a State. Since the Union territories are not included in the
territory of any State, Parliament was the only law making body. Dealing
with the provisions of Article 239 AA, the Court held :
96
(1997) 7 SCC 339 H
290 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “..In the year 1991, the Constitution did provide for a legislature
for the Union Territory of Delhi [National Capital Territory of
Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA)
but even here the legislature so created was not a full-fledged
legislature nor did it have the effect of – assuming that it could –
lift the National Capital Territory of Delhi from Union Territory
B
category to the category of States within the meaning of Chapter
I of Part XI of the Constitution. All this necessarily means that so
far as the Union Territories are concerned, there is no such thing
as List I, List II or List III. The only legislative body is Parliament
– or a legislative body created by it. Parliament can make any
C law in respect of the said territories – subject, of course, to
constitutional limitations other than those specified in Chapter I
of Part XI of the Constitution. Above all, the Union Territories are
not “States” as contemplated by Chapter I of Part XI; they are
the territories of the Union falling outside the territories of the
States. Once the Union Territory is a part of the Union and not
D
part of any State, it follows that any tax levied by its legislative
body is Union taxation. Admittedly, it cannot be called “State
taxation” – and under the constitutional scheme, there is no third
kind of taxation. Either it is Union taxation or State taxation..”
121. The judgment of the majority also holds that all Union territories
E are not situated alike. The first category consists of Union territories
which have no legislature at all. The second category has legislatures
created by a law enacted by Parliament under the Government of Union
Territories Act, 1963. The third category is Delhi which has “special
features” under Article 239 AA. Though the Union territory of Delhi “is
F in a class by itself”, it “is certainly not a State within the meaning
of Article 246 or part VI of the Constitution”. Various Union
territories- the Court observed - are in different stages of evolution.
However, the position remains that these Union territories, including the
NCT are yet Union territories and not a State.
G General Clauses Act
122. Article 367 (1) of the Constitution provides that:
“367(1) Unless the context otherwise requires, the General Clauses
Act, 1897, shall, subject to any adaptations and modifications that

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 291
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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 D
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 E
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 F
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 G
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
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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
B
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
C 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
D 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
E 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
F 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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 293
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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
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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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 295
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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
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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
C 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
D 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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& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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;
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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
E 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
F 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
G 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
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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
B
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 C
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
D
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 E
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
F
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 G
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
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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
B 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
C 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
D 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
E 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
F 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
G 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 C
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
D
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 E
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
F
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 G
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
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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
B
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
C 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
D 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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 303
& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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
B
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 C
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
D
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 E
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
F
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 G
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
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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
D
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
E 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
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& ANOTHER [DR. D. Y. CHANDRACHUD, J.]

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;
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306 SUPREME COURT REPORTS [2018] 7 S.C.R.

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

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
E 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
F 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
G 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.
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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
310 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
D 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
E 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 311
& ANOTHER [ASHOK BHUSHAN, J.]

“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
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312 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 313
& ANOTHER [ASHOK BHUSHAN, J.]

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 D
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 E
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 F
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
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314 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
F 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
G 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

H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 315
& ANOTHER [ASHOK BHUSHAN, J.]

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 E
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 F
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.
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316 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
E 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
F 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
G 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 317
& ANOTHER [ASHOK BHUSHAN, J.]

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
D
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 E
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.
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318 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 319
& ANOTHER [ASHOK BHUSHAN, J.]

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;
B
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 C
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 D
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 E
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
F
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
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320 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 321
& ANOTHER [ASHOK BHUSHAN, J.]

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

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
E 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
F 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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 323
& ANOTHER [ASHOK BHUSHAN, J.]

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
F 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
G 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
H capitals.”
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 325
& ANOTHER [ASHOK BHUSHAN, J.]

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 F
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, G
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
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326 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
C 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
D 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 327
& ANOTHER [ASHOK BHUSHAN, J.]

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 B
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 C
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 D
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
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328 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
D 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
E 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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 329
& ANOTHER [ASHOK BHUSHAN, J.]

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 C
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 D
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
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330 SUPREME COURT REPORTS [2018] 7 S.C.R.

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
B
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
C 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
E 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
F 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
G 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
H clauses and for all matters incidental or consequential thereto.
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 331
& ANOTHER [ASHOK BHUSHAN, J.]

(b) Any such law as is referred to in sub-clause (a) shall not A
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, B
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
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332 SUPREME COURT REPORTS [2018] 7 S.C.R.

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,
B 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
C 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
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 333
& ANOTHER [ASHOK BHUSHAN, J.]

article, from repealing, say the whole or any part of the Indian A
Press (Emergency Powers) Act, 1931. If the President does
so, then such repeal will at once attract Section 6 of the General
Clauses Act. In such a situation all prosecutions under the
Indian Press (Emergency Powers) Act, 1931, which were
pending at the date of its repeal by the President would be
B
saved and must be proceeded with notwithstanding the repeal
of that Act unless an express provision was otherwise made
in the repealing Act. It is therefore clear that the idea of the
preservation of past inchoate rights or liabilities and pending
proceedings to enforce the same is not foreign or abhorrent
to the Constitution of India. We are, therefore, unable to accept C
the contention about the spirit of the Constitution as invoked
by the learned counsel in aid of his plea that pending
proceedings under a law which has become void cannot be
proceeded with. Further, if it is against the spirit of the
Constitution to continue the pending prosecutions under such
D
a void law, surely it should be equally repugnant to that spirit
that men who have already been convicted under such
repressive law before the Constitution of India came into force
should continue to rot in jail. It is, therefore, quite clear that
the court should construe the language of Article 13(1)
according to the established rules of interpretation and arrive E
at its true meaning uninfluenced by any assumed spirit of the
Constitution.”
42. This Court in subsequent judgments have also propounded the
doctrine of literal interpretation and doctrine of purposive interpretation.
There cannot be denial to the fact that the Court has to respect the F
language used in the Constitution wherever possible, the language be
such interpreted as may best serve the purpose of the Constitution. A
Constitutional document should be construed with less rigidity and more
generosity than other acts. This Court in S.R. Chaudhuri Vs. State of
Punjab & Ors., (2001) 7 SCC 126 held that we must remember that a
Constitution is not just a document in solemn form, but a living framework G
for the Government of the people exhibiting a sufficient degree of cohesion
and its successful working depends upon the Democratic spirit underlying
it being respected in letter and in spirit.

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

A 43. Before a Constitution Bench of this Court in G. Narayanaswami
Vs. G. Paneerselvam and Others, (1972) 3 SCC 717, provisions of
Article 171 came up for interpretation, in the above case, in Paragraph 4
of the judgment, following principle was reiterated:-
“4. Authorities are certainly not wanting which indicate that
B courts should interpret in a broad and generous spirit the
document which contains the fundamental law of the land or
the basic principles of its Government. Nevertheless, the rule
of “plain meaning” or “literal” interpretation, described in
Maxwell’s Interpretation of Statutes as “the primary rule”,
could not be altogether abandoned today in interpreting any
C document. Indeed, we find Lord Evershed, M.R., saying: “The
length and detail of modern legislation, has undoubtedly
reinforced the claim of literal construction as the only safe
rule”. (See: Maxwell on Interpretation of Statutes, 12th Edn.,
p. 28.) It may be that the great mass of modern legislation, a
D large part of which consists of statutory rules, makes some
departure from the literal rule of interpretation more easily
justifiable today than it was in the past. But, the object of
interpretation and of “construction” (which may be broader
than “interpretation”) is to discover the intention of the law-
makers in every case (See: Crawford on Statutory
E Construction, 1940 Edn., para 157, pp. 240-42). This object
can, obviously, be best achieved by first looking at the
language used in the relevant provisions. Other methods of
extracting the meaning can be resorted to only if the language
used is contradictory, ambiguous, or leads really to absurd
F results. This is an elementary and basic rule of interpretation
as well as of construction processes which, from the point of
view of principles applied, coalesce and converge towards
the common purpose of both which is to get at the real sense
and meaning, so far as it may be reasonably possible to do
this, of what is found laid down. The provisions whose meaning
G is under consideration have, therefore to be examined before
applying any method of construction at all………………….”
44. In B.R. Kapur Vs. State of T.N. and Another, (2001) 7
SCC 231 Justice Pattanaik, delivering a concurring judgment, laid down
following in Paragraph 72:-
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 335
& ANOTHER [ASHOK BHUSHAN, J.]

“72. …………………………………A documentary constitution A
reflects the beliefs and political aspirations of those who had
framed it. One of the principles of constitutionalism is what it
had developed in the democratic traditions. A primary function
that is assigned to the written constitution is that of controlling
the organs of the Government. Constitutional law presupposes
B
the existence of a State and includes those laws which regulate
the structure and function of the principal organs of the
government and their relationship to each other and to the
citizens. Where there is a written constitution, emphasis is
placed on the rules which it contains and on the way in which
they have been interpreted by the highest court with C
constitutional jurisdiction. Where there is a written constitution
the legal structure of the Government may assume a wide
variety of forms. Within a federal constitution, the tasks of
the Government are divided into two classes, those entrusted
to the federal organs of the Government, and those entrusted
D
to the various States, regions or provinces which make up the
federation. But the constitutional limits bind both the federal
and State organs of the Government, which limits are
enforceable as a matter of law………………….”
45. Another Constitution Bench in Kuldip Nayar and Others
Vs. Union of India and Others, (2006) 7 SCC 1 after the above quoted E
passage of G. Narayanaswami (supra) stated following in Para 201:-
“201. Xxxxxxxxxxxxxxxxx
We endorse and reiterate the view taken in the abovequoted
paragraph of the judgment. It may be desirable to give a broad F
and generous construction to the constitutional provisions,
but while doing so the rule of “plain meaning” or “literal”
interpretation, which remains “the primary rule”, has also to
be kept in mind. In fact the rule of “literal construction” is
the safe rule unless the language used is contradictory,
ambiguous, or leads really to absurd results.” G
46. We may also notice the Constitution Bench Judgment in I.R.
Coelho Vs. State of T.N., (2007) 2 SCC 1, it laid down the principles of
construction in Paragraph 42, which is to the following effect:-

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

A “42. The controversy with regard to the distinction between
ordinary law and constitutional amendments is really
irrelevant. The distinction is valid and the decisions from
Indira Gandhi case (1975 Supp. SCC 1) up to Kuldip Nayar
v. Union of India [(2006) 7 SCC 1] case represents the correct
law. It has no application in testing the constitutional
B
amendment placing the Acts in the Ninth Schedule. There is
no manner of doubt that:
A) In Kesavananda Bharati [(1973) 4 SCC 225] case Sikri,
C.J. [para 475(h)], Shelat & Grover, JJ. [paras 607,
608(7)], Hegde & Mukherjea, JJ. [paras 742, 744(8)] and
C Jaganmohan Reddy, J. [paras 1211, 1212(4)] all clearly
held that the Acts placed in the Ninth Schedule and the
provisions thereof have to be subjected to the basic
structure test.
(B) Chandrachud, C.J. in Waman Rao case [(1980) 3 SCC
D 587] , followed the path laid down by 6 Judges in
Kesavananda Bharati without quoting from their
conclusions and without attempting to reconcile their views
with the subsequent development in the law regarding the
distinction between ordinary legislations and constitutional
E amendments.”
47. Learned counsel for the appellant submits that Federalism
being one of the basic structure of the Constitution, this Court may put
such interpretation on Article 239AA, which strengthens the federal
structure. It is further contended that Parliamentary democracy having
F been adopted by our Constitution, this Court may interpret Article 239AA
so that Constitutional design and Constitutional objectives be fulfilled. It
is submitted that judgments of this Court in Rustom Cavasjee Cooper
Vs. Union of India, (1970)1 SCC 248: AIR 1970 SC 564 and judgment
of this Court in Maneka Gandhi Vs. Union of India and Another,
(1978)1 SCC 248: AIR 1978 SC 597 reflect that principles of less
G textual and more purposive method of Constitutional interpretation which
has been adopted in these cases. Judgment of this Court in K.C. Vasanth
Kumar and Another Vs. State of Karnataka, 1985 Supp. SCC 714
has been relied, wherein this Court laid down following:-

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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 337
& ANOTHER [ASHOK BHUSHAN, J.]

“……………………….It is not enough to exhibit a Marshallian A
awareness that we are expounding a Constitution; we must
also remember that we are expounding a Constitution born in
the mid-twentieth century, but of an anti-imperialist struggle,
influenced by constitutional instruments, events and
revolutions elsewhere, in search of a better world, and wedded
B
to the idea of justice, economic, social and political to all.
Such a Constitution must be given a generous interpretation
so as to give all its citizens the full measure of justice promised
by it. The expositors of the Constitution are to concern
themselves less with mere words and arrangement of words
than with the philosophy and the pervading “spirit and sense” C
of the Constitution, so elaborately exposed for our guidance
in the Directive Principles of State Policy and other provisions
of the Constitution…………………………….”
48. Shri H.M. Seervai, in his “A Critical Commentary” on
Constitutional Law of India, on interpretation of the Constitution, states D
following in Paragraph 2.1 and 2.2:-
“2.1 A Court of Law must gather the spirit of the Constitution
from the language used, and what one may believe to be the
spirit of the Constitution cannot prevail if not supported by
the language, which therefore must be construed according E
to well-established rules of interpretation uninfluenced by an
assumed spirit of the Constitution. Where the Constitution has
not limited, either in terms or by necessary implication, the
general powers conferred upon the Legislature, the Court
cannot limit them upon any notion of the spirit of the
Constitution. F

2.2 Well established rules of interpretation require that the
meaning and intention of the framers of a Constitution – be it
a Parliament or a Constituent Assembly – must be ascertained
from the language of that Constitution itself; with the motives
of those who framed it, the Court has no concern. But, as G
Higgins J. observed – “in words that have not withered or
grown sterile with years”-:
“although we are to interpret the words of the constitution
on the same principles of interpretation as we apply to
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338 SUPREME COURT REPORTS [2018] 7 S.C.R.

A any ordinary law, these very principles of interpretation
compel us to take into account the nature and scope of the
Act we are interpreting, to remember that it is a Constitution,
a mechanism under which laws are to be made, and not a
mere Act which declares what the law is to be.”
B 49. Justice G.P. Singh in “Principles of Statutory Interpretation”,
14th Edition, while discussing interpretation of Constitution stated
following:-
“The Constitution is a living organic thing and must be
applied to meet the current needs and requirements, and is
C not bound to be interpreted by reference to the original
understanding of the constitutional economics as debated in
Parliament. Accordingly, the Supreme Court held that the
content and meaning of Article 149, which provides the duties
and powers of the CAG, will vary from age to age and, given
that spectrum is an important natural resource, CAG has the
D power to examine the accounts of telecom service providers
under Article 149.
It cannot, however, be said that the rule of literal construction
or the golden rule of construction has no application to
interpretation of the Constitution. So when the language is
E plain and specific and the literal construction produces no
difficulty to the constitutional scheme, the same has to be
resorted to. Similarly, where the Constitution has prescribed
a method for doing a thing and has left no ‘abeyance’ or
gap, if the court by a strained construction prescribes another
F method for doing that thing, the decision will become open to
serious objection and criticism.”
50. Aharon Barak (Former President, Supreme Court of Israel)
while dealing with Purposive Constitutional Interpretation expounded the
modern concept in following words:-
G “The purpose of the constitutional text is to provide a solid
foundation for national existence. It is to embody the basic
aspirations of the people. It is to guide future generations by
its basic choices. It is to control majorities and protect
individual dignity and liberty. All these purposes cannot be
fulfilled if the only guide to interpretation is the subjective
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 339
& ANOTHER [ASHOK BHUSHAN, J.]

purposes of the framers of the constitutional text. The A
constitution will not achieve its purposes if its vision is
restricted to the horizons of its founding fathers. Even if we
assume the broadest generalizations of subjective purpose,
this may not suffice. It may not provide a solid foundation for
modern national existence. It may be foreign to the basic
B
aspirations of modern people. It may not be consistent with
the dignity and liberty of the modern human being. A
constitution must be wiser than its creators”.
51. Almost same views have been expressed by Aharon Barak in
“Foreword: A Judge on Judging The Role of a Supreme Court in a
Democracy”, which are as under:- C

“The original intent of the framers at the time of drafting is
important. One cannot understand the present without
understanding the past. The framers’ intent lends historical
depth to understanding the text in a way that honors the past.
The intent of the constitutional authors, however, exists D
alongside the fundamental views and values of modern society
at the time of interpretation. The constitution is intended to
solve the problems of the contemporary person, to protect his
or her freedom. It must contend with his or her needs.
Therefore, in determining the constitution’s purpose through E
interpretation, one must also take into account the values and
principles that prevail at the time of interpretation, seeking
synthesis and harmony between past intention and present
principle.”
52. In this context, we may also profitably notice views of David F
Feldman expressed in “The Nature and Significance of Constitutional
Legislation” published in 2013(129) L.Q.R. 343-358. Few principles to
guide the interpretation of Constitution instruments were noted, which
are as follows:-
“Despite differences between constitutions, and between types G
of provision within each constitution, diverse jurisdictions
have shown considerable consistency in their selection of
principles to guide the interpretation of constitutional
instruments. First, constitutions are to be interpreted with the
aid of their preambles, which are usually treated as forming
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340 SUPREME COURT REPORTS [2018] 7 S.C.R.

A an integral part of them.63 Secondly, a democratic
constitution must be interpreted to “foster, develop and
enrich”, rather than undermine, democratic institutions.64
In particular, interpreters should give scope for a self-
governing entity to make its own decisions, including decisions
about the terms on which democratic institutions operate,
B
subject to limits imposed by the constitution.65 Thirdly,
constitutions are not to be interpreted with mechanical
literalness. Interpreters must take account of the context,
ultimate object, and textual setting of a provision, 66 bearing
in mind that “the question is not what may be supposed to
C have been intended [by the framers], but what has been said”.
67 Fourthly, according to at least some judges, constitutions
are not to be interpreted as permitting institutions, including
legislatures, to act in a way which “offends what I may call
the social conscience of a sovereign democratic republic”,
because law must be regarded by ordinary people as
D
“reasonable, just and fair”
Nevertheless, these principles must be qualified by the
recognition of differences between constitutions.”
53. Learned counsel for the appellant has also relied on the
E principles of Constitutional silence and Constitutional implications. It is
submitted that Constitutional silence and Constitutional implications have
also to be given due effect while interpreting Constitutional provisions.
Reliance has been placed on Constitutional Bench Judgment of this Court
in Manoj Narula Vs. Union of India, (2014) 9 SCC 1. Constitution
Bench in the above case while considering principles of Constitutional
F silence or abeyance laid down following in Paras 65-66:-
“65. The next principle that can be thought of is constitutional
silence or silence of the Constitution or constitutional
abeyance. The said principle is a progressive one and is applied
as a recognised advanced constitutional practice. It has been
G recognised by the Court to fill up the gaps in respect of certain
areas in the interest of justice and larger public interest.
Liberalisation of the concept of locus standi for the purpose
of development of public interest litigation to establish the
rights of the have-nots or to prevent damages and protect
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& ANOTHER [ASHOK BHUSHAN, J.]

environment is one such feature. Similarly, laying down A
guidelines as procedural safeguards in the matter of adoption
of Indian children by foreigners in Laxmi Kant Pandey v.
Union of India [(1987) 1 SCC 66] or issuance of guidelines
pertaining to arrest in D.K. Basu v. State of W.B. [(1997) 1
SCC 416] or directions issued in Vishaka v. State of Rajasthan
B
[(1997) 6 SCC 241] are some of the instances.
66. In this context, it is profitable to refer to the authority in
Bhanumati v. State of U.P. [(2010) 12 SCC 1] wherein this
Court was dealing with the constitutional validity of the U.P.
Panchayat Laws (Amendment) Act, 2007. One of the grounds
for challenge was that there is no concept of no-confidence C
motion in the detailed constitutional provision under Part IX
of the Constitution and, therefore, the incorporation of the
said provision in the statute militates against the principles of
Panchayati Raj institutions. That apart, reduction of one year
in place of two years in Sections 15 and 28 of the Amendment D
Act was sought to be struck down as the said provision diluted
the principle of stability and continuity which is the main
purpose behind the object and reason of the constitutional
amendment in Part IX of the Constitution. The Court, after
referring to Articles 243-A, 243-C(1), (5), 243-D(4), 243-D(6),
243-F(1), 243-G, 243-H, 243-I(2), 243-J, 243-K(2) and (4) E
of the Constitution and further taking note of the amendment,
came to hold that the statutory provision of no-confidence is
contrary to Part IX of the Constitution. In that context, it has
been held as follows: (Bhanumati case, SCC p. 17, paras 49-
50) F
“49. Apart from the aforesaid reasons, the arguments by
the appellants cannot be accepted in view of a very well-
known constitutional doctrine, namely, the constitutional
doctrine of silence. Michael Foley in his treatise on The
Silence of Constitutions (Routledge, London and New York) G
has argued that in a Constitution ‘abeyances are valuable,
therefore, not in spite of their obscurity but because of it.
They are significant for the attitudes and approaches to
the Constitution that they evoke, rather than the content
or substance of their strictures’. (p. 10)
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A 50. The learned author elaborated this concept further by
saying, “Despite the absence of any documentary or
material form, these abeyances are real and are an integral
part of any Constitution. What remains unwritten and
indeterminate can be just as much responsible for the
operational character and restraining quality of a
B
Constitution as its more tangible and codified components.’
(p. 82)”
54. It is further relevant to notice that although above well known
Constitutional doctrine was noticed but the Court held that express
Constitutional provisions cannot be ignored while considering such
C doctrine and principles. After what has been stated above about above
principles in Paras 65 and 66, following was held in Para 67:-
“67. The question that is to be posed here is whether taking
recourse to this doctrine for the purpose of advancing
constitutional culture, can a court read a disqualification to
D the already expressed disqualifications provided under the
Constitution and the 1951 Act. The answer has to be in the
inevitable negative, for there are express provisions stating
the disqualifications and second, it would tantamount to
crossing the boundaries of judicial review.”
E 55. Doctrine of Constitutional implications was also noticed by
Constitution Bench in Para 68 to the following effect:-
“68. The next principle that we intend to discuss is the
principle of constitutional implication. We are obliged to
discuss this principle as Mr Dwivedi, learned Amicus Curiae,
F has put immense emphasis on the words “on the advice of the
Prime Minister” occurring in Article 75(1) of the Constitution.
It is his submission that these words are of immense
significance and apposite meaning from the said words is
required to be deduced to the effect that the Prime Minister is
G not constitutionally allowed to advise the President to make a
person against whom charge has been framed for heinous or
serious offences or offences pertaining to corruption as
Minister in the Council of Ministers, regard being had to the
sacrosanctity of the office and the oath prescribed under the
Constitution. The learned Senior Counsel would submit that
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 343
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on many an occasion, this Court has expanded the horizon A
inherent in various articles by applying the doctrine of
implication based on the constitutional scheme and the
language employed in other provisions of the Constitution.”
56. There cannot be any dispute with regard to doctrine of silence
and doctrine of implications as noticed above. But while applying above B
said doctrines in interpreting a Constitutional provision, express provision
cannot be given a go-bye. The purpose and intent of Constitutional
provisions especially the express language used which reflect a particular
scheme has to give full effect to and express Constitutional scheme
cannot be disregarded on any such principles.
C
57. From the above discussions, it is apparent that Constitutional
interpretation has to be purposive taking into consideration the need of
time and Constitutional principles. The intent of Constitution framers
and object and purpose of Constitutional amendment always throw light
on the Constitutional provisions but for interpreting a particular
Constitutional provision, the Constitutional Scheme and the express D
language employed cannot be given a go-bye. The purpose and intent
of the Constitutional provisions have to be found from the very
Constitutional provisions which are up for interpretation. We, thus, while
interpreting Article 239AA have to keep in mind the purpose and object
for which Sixty Ninth Constitution (Amendment) Act, 1991 was brought E
into force. After noticing the above principles, we now proceed further
to examine the nature and content of the Constitutional provisions.
CONSTITUTIONAL SCHEME OF ARTICLE 239AA
58. To find out the Constitutional Scheme as delineated by Article
239AA, apart from looking into the express language of Article 239AA, F
we have also to look into the object and purpose of Constitutional
provision, on which sufficient light is thrown by the object and reasons
as contained in Sixty Ninth Constitutional Amendment as well as
Balakrishnan’s Report which was the basis of Sixty Ninth Constitutional
Amendment. We have already referred to some relevant parts of G
Balakrishnan’s report in preceding paragraph of this judgment.
59. The task before Balakrishnan Report in words of Balakrishnan
himself was to synchronise the two competing claims i.e. “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
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A 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, legitimate demand of the large population of the capital city for the
democratic right of participation in the Government at the city level is
B
too important to be ignored. We have endeavoured to design a
Governmental structure for Delhi which we hope, would reconcile these
two requirements”.
60. For administration of Delhi, there has been earlier a
Parliamentary Legislation. Legislative Assembly functioned in Delhi after
C the enforcement of the Constitution till 01.11.1956. Article 239A which
was inserted by Constitutional Fourteenth Amendment Act, 1962 had
already contemplated that Parliament may by law provide for Legislative
Assembly for a Union territory. While considering the salient features of
the proposed structure, following was stated in Para 6.7.2 of the Report:
D “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
E responsibilities between the union and the Delhi
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
F 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
G Assembly and Council of Ministers for Delhi it should continue
to be a Union territory for the purposes of the Constitution.”
61. The Report also highlighted the necessity of certain subjects
being kept out of jurisdiction of Legislative Assembly of Delhi which
were to be dealt with by the Union.
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62. At this juncture, it is also relevant to note the issue pertaining A
to admissibility of the Balakrishnan Report. The issue regarding
admissibility of Parliamentary Committee’s Report in proceeding under
Article 32/Article 136 of the Constitution of India was engaging attention
of the Constitution Bench when hearing in these matters were going on.
The Constitution Bench has delivered its judgment in Writ Petition (C)
B
No. 558 of 2012 Kalpana Mehta and others Vs. Union of India and
others on 09.05.2018. The Constitution Bench had held that
Parliamentary Committee Reports can be looked into and referred to by
this Court in exercise of its jurisdiction under Article 32/136. The Chief
Justice delivering his opinion(for himself and on behalf of Justice A.M.
Khanwilkar) in the conclusions recorded in Paragraph 149 in sub C
paragraph (iv) and (vii), has laid down:
“(iv) In a litigation before this Court either under Article 32 or
Article 136 of the Constitution of India can take on record the
report of the Parliamentary Standing Committee. However, the
Court while taking the report on record as a material can take aid D
of as long as there is no contest or the dispute on the content
because such a contest would invite the court to render a verdict
either accepting the report in toto or in part or rejecting it in entirety.
(vii) In a public interest litigation where the adversarial position is
absent, the Court can take aid of the said report in larger interest E
of the society to subserve the cause of welfare State and in any
furtherance to rights provided under the Constitution or any
statutory provision.“
63. Justice D.Y. Chandrachud (one of us) answering the
reference has held at Page 86: F
“(i) As a matter of principle, there is no reason why reliance
upon the report of a Parliamentary Standing Committee cannot
be placed in proceedings under Article 32 or Article 136 of
the Constitution;
(ii) Once the report of a Parliamentary Committee has been G
published, reference to it in the course of judicial proceedings
will not constitute a breach of parliamentary privilege. The
validity of the report is not called into question in the court.
No Member of Parliament or person can be made liable for
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346 SUPREME COURT REPORTS [2018] 7 S.C.R.

A what is stated in the course of the proceedings before a
Parliamentary Committee or for a vote tendered or given; and
(iii) However, when a matter before the court assumes a
contentious character, a finding of fact by the court must be
premised on the evidence adduced in the judicial proceeding.”
B 64. Myself (Justice Ashok Bhushan) delivering my concurring
opinion has also laid down following in Paragraph 151(ii,vii):
“(ii) The publication of the reports not being only permitted,
but also are being encouraged by the Parliament. The general
public are keenly interested in knowing about the
C parliamentary proceedings including parliamentary reports
which are steps towards the governance of the country. The
right to know about the reports only arises when they have
been published for use of the public in general.
(vii) Both the parties have not disputed that Parliamentary
D Reports can be used for the purposes of legislative history of
a Statute as well as for considering the statement made by a
minister. When there is no breach of privilege in considering
the Parliamentary materials and reports of the committee by
the Court for the above two purposes, we fail to see any valid
E reason for not accepting the submission of the petitioner that
Courts are not debarred from accepting the Parliamentary
materials and reports, on record, before it, provided the Court
does not proceed to permit the parties to question and impeach
the reports.”

F 65. Thus, it is now well settled that Parliamentary Committee
Report can be looked into to find out the intent and purpose of legislation,
in the present case, Sixty Ninth Constitutional Amendment.
66. The statement of object & reasons of Sixty Ninth Amendment
Act has also referred to the Balakrishnan’s Report. While referring to
the Balakrishnan’s Report, following has been noted:
G
“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
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 347
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debates in the Constituent Assembly as also the reports by A
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
B
of concern to the common man. The Committee also
recommended that with a view to ensure stability and
permanence the arrangements should be incorporated in the
Constitution to give the National Capital a special status
among the Union territories.”
67. The recommendation of the Committee that Delhi should C
continue to be Union territory providing with a Legislative Assembly and
Council of Ministers responsible to such Assembly was thus accepted
and to give effect the same Article 239AA was inserted in the
Constitution. There is no denying that one of the purposes for insertion
of Article 239AA is to permit a democratic and republican form of D
Government. The principle of cabinet responsibility was the
Constitutional intent which has to be kept in mind while interpreting the
Constitutional provisions.
68. There are many facets of Article 239AA which need elaborate
consideration. Different facets shall be separately dealt under following E
heads:
A LEGISLATIVE POWER OF PARLIAMENT AND THAT
OF GNCTD
B EXECUTIVE POWER OF UNINON (PRESIDENT/ LG)
AND THAT OF GNCTD F
C PROVISO TO ARTICLE 239AA
(i) AID AND ADVICE
(ii) IN MATTER
D WHETHER CONCURRENCE OF LG REQUIRED FOR G
EXCLUSIVE DECISION OF GNCTD
E COMMUNICATION OF DECISION OF COUNCIL OF
MINISTERS / MINISTER AND LG, ITS PURPOSE AND
OBJECT
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348 SUPREME COURT REPORTS [2018] 7 S.C.R.

A F ADMINISTARTIVE FUNCTION OF THE GNCTD AND
LG AS DELINEATED BY 1991 ACT AND THE
TRANSACTIONS OF BUSINESS RULEs, 1993.
A. LEGISLATIVE POWER OF PARLIAMENT AND
THAT OF GNCTD
B 69. Clause (3) of the 239AA deals with power to make laws for
the whole or any part of the National Territory of Delhi by the Legislative
Assembly as well as by Parliament. Clause (3) of Article 239 is extracted
for ready reference:
“(3) (a) Subject to the provisions of this Constitution, the
C 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 of List or in the
Concurrent List in so far as any such matter is applicable to
Union territories except matters with respect to Entries 1, 2,
D 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
to any matter for a Union territory or any part thereof.
E (c) If any provision of a law made by the Legislative Assembly
with respect to any matter is repugnant to any provision of a
law made by Parliament with respect to that matter, whether
passed before or after the law made by the Legislative
Assembly, or of an earlier law, other than a law made by the
F 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
G
has received his assent such law shall prevail in National
Capital Territory :
Provided further that nothing in this sub-clause shall prevent
Parliament from enacting at any time any law with respect to
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the same matter including a law adding to, amending, varying A
or repealing the law so made by the Legislative Assembly.”
70. The above provision makes it clear that Legislative Assembly
shall have power to make laws in respect of any of the matters
enumerated in the State List or in the Concurrent List in so far as any
such matter is applicable to Union territories except matters with respect B
to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of the
List.
71. The provision is very clear which empowers the Legislative
Assembly to make laws with respect to any of the matters enumerated
in the State List or in the Concurrent List except the excluded entries. C
One of the issue is that power to make laws in State List or in Concurrent
List is hedged by phrase “in so far as any such matter is applicable to
Union territories”.
72. A look of the Entries in List II and List III indicates that there
is no mention of Union Territory. A perusal of the List II and III indicates D
that although in various entries there is specific mention of word “State”
but there is no express reference of “Union Territory” in any of the
entries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42 and 43,
there is specific mention of word “State”. Similarly, in List III Entry 3, 4
and 43 there is mention of word “State”. The above phrase “in so far as
any such matter is applicable to Union Territory” is inconsequential. E
The reasons are two fold. On the commencement of the Constitution,
there was no concept of Union Territories and there were only Part A,
B, C and D States. After Seventh Constitutional Amendment, where
First Schedule as well as Article 2 of the Constitution were amended
which included mention of Union Territory both in Article 1 as well as in F
First Schedule. Thus, the above phrase was used to facilitate the
automatic conferment of powers to make laws for Delhi on all matters
including those relatable to the State List and Concurrent List except
where an entry indicates that its applicability to the Union Territory is
excluded by implication or any express Constitutional provision.
G
73. Thus, there is no difficulty in comprehending the Legislative
power of the NCTD as expressly spelled out in Article 239AA. Now,
we turn to find out Legislative power of the Parliament. Sub-clause (b)
of Clause (3) of the Article 239AA mentions “nothing in sub clause (a)
shall derogate from the powers of Parliament under this Constitution to
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350 SUPREME COURT REPORTS [2018] 7 S.C.R.

A make laws with respect to any matter for a Union Territory or any part
thereof.
74. It is relevant to note that sub clause (3) begins with the word
“subject to the provisions of this Constitution”. Article 246 thus, by Chapter
1st of the Part X1 of the Constitution dealing with the Legislative relations
B has to be looked into and to be read alongwith Article 239AA clause (3).
Article 246 provides as follows:
“246. Subject-matter of laws made by Parliament and by the
Legislatures of States.-
(1) Notwithstanding anything in clauses (2) and (3),
C Parliament has exclusive power to make laws with respect to
any of the matters enumerated in List I in the Seventh Schedule
(in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament and,
subject to clause (1), the Legislature of any State also, have
D power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any part
E thereof with respect to any of the matters enumerated in List
II in the Seventh Schedule (in this Constitution referred to as
the “State List”).
(4) Parliament has power to make laws with respect to any
matter for any part of the territory of India not included (in a
F State) notwithstanding that such matter is a matter enumerated
in the State List.”
75. Article 246 clause (4) expressly provides that Parliament has
power to make laws with respect to any matter for any part of the
territory of India not included in a State; notwithstanding that such matter
G is a matter enumerated in the State List.
76. The Union Territories are part of the India which are not
included in any State. Thus, Parliament will have power to make laws
for any matter with regard to Union territories. In clause (4) of Article
246 by Seventh Constitutional Amendment, in place of words “in Part A
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 351
& ANOTHER [ASHOK BHUSHAN, J.]

or Part B of the First Schedule” the words “in State” have been A
substituted. Thus, overriding power of the Parliament was provided with
regard to Part C and D States on enforcement of the Constitution which
Constitutional Scheme is continued after amendment made by Seventh
Constitutional Amendment.
77. The issue regarding constitutional scheme envisaged for Delhi B
consequent to insertion of Article 239AA of Sixty Ninth Constitution
Amendment came for consideration before a Nine Judge Bench of this
Court in NDMC Vs. State of Punjab (1997) 7 SCC 339. The issue in
the NDMC case was whether the property tax levied by NDMC On the
immovable properties of States situated within the Union Territory of
Delhi would be covered by the exemption provided in Article 289 of the C
Constitution of India. Delhi High Court had been pleased to hold that
the exemption under Article 289 would apply and the assessment and
demand notices of NDMC were quashed. The appeal came to be
decided by a Nine Judge Bench of this Court.
78. The majority opinion was delivery by Justice B.P. Jeevan D
Reddy. The majority held that States and Union territories are different
entities, which is clear from the scheme of Articles 245 and 246. Following
was laid down in Paragraphs 152, 155 and 160:-
……………152. On a consideration of rival contentions, we
are inclined to agree with the respondents-States. The States E
put together do not exhaust the territory of India. There are
certain territories which do not form part of any State and
yet are the territories of the Union. That the States and the
Union Territories are different entities, is evident from clause
(2) of Article 1 — indeed from the entire scheme of the F
Constitution. Article 245(1) says that while Parliament may
make laws for the whole or any part of the territory of India,
the legislature of a State may make laws for the whole or any
part of the State. Article 1(2) read with Article 245(1) shows
that so far as the Union Territories are concerned, the only
law-making body is Parliament. The legislature of a State G
cannot make any law for a Union Territory; it can make laws
only for that State. Clauses (1), (2) and (3) of Article 246
speak of division of legislative powers between Parliament
and State legislatures. This division is only between Parliament
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352 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and the State legislatures, i.e., between the Union and the
States. There is no division of legislative powers between the
Union and Union Territories. Similarly, there is no division of
powers between States and Union Territories. So far as the
Union Territories are concerned, it is clause (4) of Article
246 that is relevant. It says that Parliament has the power to
B
make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that
such matter is a matter enumerated in the State List. Now,
the Union Territory is not included in the territory of any State.
If so, Parliament is the only law-making body available for
C such Union Territories. It is equally relevant to mention that
the Constitution, as originally enacted, did not provide for a
legislature for any of the Part ‘C’ States (or, for that matter,
Part ‘D’ States). It is only by virtue of the Government of Part
‘C’ States Act, 1951 that some Part ‘C’ States including Delhi
got a legislature. This was put an end to by the States
D
Reorganisation Act, 1956. In 1962, the Constitution
Fourteenth (Amendment) Act did provide for creation/
constitution of legislatures for Union Territories (excluding,
of course, Delhi) but even here the Constitution did not itself
provide for legislatures for those Part ‘C’ States; it merely
E empowered Parliament to provide for the same by making a
law. In the year 1991, the Constitution did provide for a
legislature for the Union Territory of Delhi [National Capital
Territory of Delhi] by the Sixty-Ninth (Amendment) Act
(Article 239-AA) but even here the legislature so created was
not a full-fledged legislature nor did it have the effect of —
F
assuming that it could — lift the National Capital Territory of
Delhi from Union Territory category to the category of States
within the meaning of Chapter I of Part XI of the Constitution.
All this necessarily means that so far as the Union Territories
are concerned, there is no such thing as List I, List II or List
G III. The only legislative body is Parliament — or a legislative
body created by it. Parliament can make any law in respect
of the said territories — subject, of course, to constitutional
limitations other than those specified in Chapter I of Part XI
of the Constitution. Above all, the Union Territories are not
“States” as contemplated by Chapter I of Part XI; they are
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 353
& ANOTHER [ASHOK BHUSHAN, J.]

the territories of the Union falling outside the territories of A
the States. Once the Union Territory is a part of the Union
and not part of any State, it follows that any tax levied by its
legislative body is Union taxation. Admittedly, it cannot be
called “State taxation” — and under the constitutional scheme,
there is no third kind of taxation. Either it is Union taxation
B
or State taxation………………
……………… 155. In this connection, it is necessary to
remember that all the Union Territories are not situated alike.
There are certain Union Territories (i.e., Andaman and
Nicobar Islands and Chandigarh) for which there can be no
legislature at all — as on today. There is a second category C
of Union Territories covered by Article 239-A (which applied
to Himachal Pradesh, Manipur, Tripura, Goa, Daman and
Diu and Pondicherry — now, of course, only Pondicherry
survives in this category, the rest having acquired Statehood)
which have legislatures by courtesy of Parliament. Parliament D
can, by law, provide for constitution of legislatures for these
States and confer upon these legislatures such powers, as it
may think appropriate. Parliament had created legislatures
for these Union Territories under the “the Government of
Union Territories Act, 1963”, empowering them to make laws
with respect to matters in List II and List III, but subject to its E
overriding power. The third category is Delhi. It had no
legislature with effect from 1-11-1956 until one has been
created under and by virtue of the Constitution Sixty-Ninth
(Amendment) Act, 1991 which introduced Article 239-AA. We
have already dealt with the special features of Article 239- F
AA and need not repeat it. Indeed, a reference to Article 239-
B read with clause (8) of Article 239-AA shows how the Union
Territory of Delhi is in a class by itself but is certainly not a
State within the meaning of Article 246 or Part VI of the
Constitution. In sum, it is also a territory governed by clause
(4) of Article 246. As pointed out by the learned Attorney G
General, various Union Territories are in different stages of
evolution. Some have already acquired Statehood and some
may be on the way to it. The fact, however, remains that those
surviving as Union Territories are governed by Article 246(4)
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354 SUPREME COURT REPORTS [2018] 7 S.C.R.

A notwithstanding the differences in their respective set-ups —
and Delhi, now called the “National Capital Territory of
Delhi”, is yet a Union Territory……………”
……………160. It is then argued for the appellants that if the
above view is taken, it would lead to an inconsistency. The
B reasoning in this behalf runs thus: a law made by the
legislature of a Union Territory levying taxes on lands and
buildings would be “State taxation”, but if the same tax is
levied by a law made by Parliament, it is being characterised
as “Union taxation”; this is indeed a curious and inconsistent
position, say the learned counsel for the appellants. In our
C opinion, however, the very premise upon which this argument
is urged is incorrect. A tax levied under a law made by a
legislature of a Union Territory cannot be called “State
taxation” for the simple reason that Union Territory is not a
“State” within the meaning of Article 246 (or for that matter,
D Chapter I of Part XI) or Part VI or Articles 285 to
289……………”
79. After examining the Constitutional Scheme delineated by Article
239AA, another constitutional principle had been laid down by the
Constitution Bench that Union territories are governed by Article 246(4)
E notwithstanding their differences in respective set-ups and Delhi, now
called the “National Capital Territory of Delhi” is yet a Union Territory.
The Constitution Bench had also recognised that the Union territory of
Delhi is in a class by itself, certainly not a State. Legislative power of
the Parliament was held to cover Union Territories including Delhi.

F 80. The above clearly indicates that Parliament has power to make
laws for NCTD with respect to any of the matter enumerated in State
List or Concurrent List. The Legislative Assembly of NCT has legislative
power with respect to any of the matters enumerated in the State List
or in the Concurrent List excluding the excepted entries of State List.

G B. EXECUTIVE POWERS OF THE UNION (PRESIDENT
/LG) AND THAT OF THE GNCTD
81. Although there is no express provision in the Constitutional
Scheme conferring executive power to LG of the Union territory of
Delhi, as has been conferred on the Union under Article 73 and conferred
on the State under Article 154. Under the Constitutional Scheme
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 355
& ANOTHER [ASHOK BHUSHAN, J.]

executive power is co-extensive with the Legislative power. The A
Executive power is given to give effect to Legislative enactments. Policy
of legislation can be given effect to only by executive machinery. The
executive power has to be conceded to fulfill the constitutionally conferred
democratic mandate. Clause (4) of Article 239AA deals with the exercise
of executive power by the Council of Ministers with the Chief Minister
B
as the head to aid and advice the LG in exercise of the above functions.
The submission of the respondent is that executive power in relation to
all matters contained in List II and List III is vested in the President.
82. The Union and States can exercise Executive power on the
subjects on which they have power to legislate. This Court in Rai Sahib
Ram Jawaya Kapur and Others Vs. State of Punjab, AIR 1955 SC C
549 while considering the extent of the Executive power in Paragraph 7
held following:-
“7. Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding provision in
regard to the executive powers of a State is contained in Article D
162. The provisions of these articles are analogous to those
of Sections 8 and 49(2) respectively of the Government of
India Act, 1935 and lay down the rule of distribution of
executive powers between the Union and the States, following,
the same analogy as is provided in regard to the distribution E
of legislative powers between them. Article 162, with which
we are directly concerned in this case, lays down:
“Subject to the provisions of this Constitution, the executive
power of a State shall extend to the matters with respect to
which the legislature of the State has power to make laws: F
Provided that in any matter with respect to which the
legislature of a State and Parliament have power to make
laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by
this Constitution or by any law made by Parliament upon G
the Union or authorities thereof.”
Thus under this article the executive authority of the State
is exclusive in respect to matters enumerated in List II of
Seventh Schedule. The authority also extends to the
Concurrent List except as provided in the Constitution itself
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356 SUPREME COURT REPORTS [2018] 7 S.C.R.

A or in any law passed by Parliament. Similarly, Article 73
provides that the executive powers of the Union shall extend
to matters with respect to which Parliament has power to make
laws and to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of India by
virtue of any treaty or any agreement. The proviso engrafted
B
on clause (1) further lays down that although with regard to
the matters in the Concurrent List the executive authority shall
be ordinarily left to the State it would be open to Parliament
to provide that in exceptional cases the executive power of
the Union shall extend to these matters also. Neither of these
C articles contain any definition as to what the executive
function is and what activities would legitimately come within
its scope. They are concerned primarily with the distribution
of the executive power between the Union on the one hand
and the States on the other. They do not mean, as Mr Pathak
seems to suggest, that it is only when Parliament or the State
D
Legislature has legislated on certain items appertaining to
their respective lists, that the Union or the State executive, as
the case may be, can proceed to function in respect to them.
On the other hand, the language of Article 172 clearly
indicates that the powers of the State executive do extend to
E matters upon which the State Legislature is competent to
legislate and are not confined to matters over which legislation
has been passed already. The same principle underlies Article
73 of the Constitution. These provisions of the Constitution
therefore do not lend any support to Mr Pathak’s contention.”
F 83. The Constitution Bench has also in above case laid down that
in our Constitution; we have adopted the same system of Parliamentary
democracy as in England. In this regard, following was held in Para
Nos. 13 and 14:-
“13. The limits within which the executive Government can
G function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the executive
which our Constitution has set up. Our Constitution, though
federal in its structure, is modelled on the British
parliamentary system where the executive is deemed to have
the primary responsibility for the formulation of governmental
H
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 357
& ANOTHER [ASHOK BHUSHAN, J.]

policy and its transmission into law though the condition A
precedent to the exercise of this responsibility is its retaining
the confidence of the legislative branch of the State. The
executive function comprises both the determination of the
policy as well as carrying it into execution. This evidently
includes the initiation of legislation, the maintenance of order,
B
the promotion of social and economic welfare, the direction
of foreign policy, in fact the carrying on or supervision of
the general administration of the State.
14. In India, as in England, the executive has to act subject
to the control of the legislature; but in what way is this control
exercised by the legislature? Under Article 53(1) of our C
Constitution, the executive power of the Union is vested in
the President but under Article 75 there is to be a Council of
Ministers with the Prime Minister at the head to aid and advise
the President in the exercise of his functions. The President
has thus been made a formal or constitutional head of the D
executive and the real executive powers are vested in the
Ministers or the Cabinet. The same provisions obtain in regard
to the Government of States; the Governor or the Rajpramukh,
as the case may be, occupies the position of the head of the
executive in the State but it is virtually the Council of Ministers
in each State that carries on the executive Government. In E
the Indian Constitution, therefore, we have the same system
of parliamentary executive as in England and the Council of
Ministers consisting, as it does, of the members of the
legislature is, like the British Cabinet, “a hyphen which joins,
a buckle which fastens the legislative part of the State to the F
executive part”. The Cabinet enjoying, as it does, a majority
in the legislature concentrates in itself the virtual control of
both legislative and executive functions; and as the Ministers
constituting the Cabinet are presumably agreed on
fundamentals and act on the principle of collective
responsibility, the most important questions of policy are all G
formulated by them.”
84. The appellant relying on Article 73 of the Constitution had
submitted that Article 73 lays down the principle that while there may
exist under the Constitution concurrent legislative powers on two different
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358 SUPREME COURT REPORTS [2018] 7 S.C.R.

A federal units, there can never be any concurrent executive powers. It
was further submitted that the above principle equally applies to matters
listed in List II and List III of the Constitution of India for NCTD.
Referring to the Article 239AA(3)(b), it is contended that the said
provision confers power on Parliament to enact legislations in matters in
both state list and concurrent lists. Such power is also available under
B
Article 246. However, it does not follow from the above that the said
provision also confers executive powers in relation to matters in the
state list and concurrent list. It is further submitted that Parliament may
by law confer executive powers in relation to matters in the concurrent
list on the Union Government for States, it may also do so in relation to
C the NCTD. But, if such thing is not done, Union Government will, as a
general rule, have no executive powers in respect of matters under List
II (except the excluded Entries) and it is the GNCTD, which shall enjoy
exclusive executive powers. We are of the view that the above
interpretation as put up by the appellant on Constitutional provisions
cannot be accepted. The principle is well established that Executive
D
powers co-exist with the Legislative powers. Reference to Article 73
has been made in this context, which need to be noted. Article 73 provides
as follows:-
“73. (1) Subject to the provisions of this Constitution, the
executive power of the Union shall extend—
E
(a) to the matters with respect to which Parliament has power
to make laws; and
(b) to the exercise of such rights, authority and jurisdiction
as are exercisable by the Government of India by virtue of
F any treaty or agreement:
Provided that the executive power referred to in subclause
(a) shall not, save as expressly provided in this Constitution
or in any law made by Parliament, extend in any State to matters
with respect to which the Legislature of the State has also
G power to make laws.
(2) Until otherwise provided by Parliament, a State and any
officer or authority of a State may, notwithstanding anything
in this article, continue to exercise in matters with respect to
which Parliament has power to make laws for that State such
executive power or functions as the State or officer or
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 359
& ANOTHER [ASHOK BHUSHAN, J.]

authority thereof could exercise immediately before the A
commencement of this Constitution.”
85. The proviso to Article 73(1) provides that the executive power
referred to in subclause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in any State to
matters with respect to which the Legislature of the State has also power B
to make laws. Obviously, the proviso refers to the Concurrent List where
both Parliament and State has power to make laws. Executive power in
reference to Concurrent List has been deliberately excluded to avoid
any duplicacy in exercise of power by two authorities. The Article 73 as
it stood prior to Constitution Seventh Amendment Act, 1956 contained
the expression after the word State “specified in Part A or Part B of the C
First Schedule”. Thus, the executive power was excluded of the Union
only with regard to Part A and Part B States alone. Thus, when the
Constitution was enforced, executive power of Union in reference to
Part C States was not excluded with regard to Concurrent List also.
Part C States having been substituted as now by Union Territories by D
Constitution Seventh Amendment Act. the word “State” in Proviso to
Article 73 cannot be read to include Union Territory. Reading the word
Union Territory within the word “State” in proviso to Article 73(1) shall
not be in accordance with Scheme of Part VIII (Union Territories) of
the Constitution. Union Territories are administered by the President.
Exercise of executive power of the Union through President is an accepted E
principle with regard to Union Territories. The above interpretation is
also reinforced due to another reason. Under Article 239AA(4) proviso,
the Lieutenant Governor, in case of difference of opinion, can make a
reference to the President for decision and has to act according to the
decision given thereon. The President, thus, with regard to a particular F
executive action, which has been referred, has exclusive jurisdiction to
take a decision, which both Council of Ministers as well as Lieutenant
Governor has to follow. The provision does not indicate that power of
the President is confined only to executive actions which are mentioned
in List II. When the President as provided by the Constitutional Scheme,
is entitled to take executive decision on any matter irrespective of the G
fact whether such executive decision taken by the Council of Ministers
or Ministers related to matters covered by List II and List III, the
executive power to Union through President cannot be confined to List
II. Overriding power to the Union even on the executive matters has to
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360 SUPREME COURT REPORTS [2018] 7 S.C.R.

A be conceded to be there as per Constitutional scheme. It is another
matter that for exercise of executive powers by the Union through
President and by Council of Ministers, headed by Chief Minister of NCTD,
the Constitution itself indicates a scheme which advances the constitutional
objectives and provide a mechanism for exercise of executive powers,
which aspect shall be, however, further elaborated while considering
B
sub-clause(4) of Article 239AA. Legislative power of the Union is co-
extensive with its executive power in relation to NCT is further indicated
by the provisions of the Government of National Capital Territory of
Delhi Act, 1991. The insertion of Article 239AA by the Constitution 69 th
Amendment has been followed by enactment of the Government of
C National Capital Territory of Delhi Act, 1991 which Act was enacted by
the Parliament in exercise of power under Article 239AA(7)(a) of the
Constitution. Section 49 of the Act, 1991 provides as follows:
“49. Relation of Lieutenant Governor and his Ministers to
President.- Notwithstanding anything in this Act, the
D Lieutenant Governor and his Council of Ministers shall be
under the general control of, and comply with such particular
directions, if any, as may from time to time be given by the
President.”
86. Legislative power of the Union is exercised by the President
E as per the constitutional scheme and Section 49 itself indicates that
Parliament clearly envisaged Council of Ministers and the Lieutenant
Governor shall be under the general control of, and comply with such
particular directions issued by the President from time to time. The power
of the President to issue direction is not limited in any manner so as to
put any restriction on the executive power of the Union.
F
87. The President further is empowered under Section 44 of Act,
1991 to make rules for the allocation of business to the Ministers in so
far as it is business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of Ministers. As per
Article 239AA sub-clause (4) read with business rules, the manner and
G procedure of conduct of business including executive functions of
GNCTD has to be administered. Although the Union ordinarily does not
interfere with or meddle with the day to day functions of the GNCTD
which is in tune with the constitutional scheme as delineated by Article
239AA and to give meaning and purpose to the Cabinet form of
H Government brought in place in the National Capital of Territory. But as
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 361
& ANOTHER [ASHOK BHUSHAN, J.]

the overriding legislative power of the Parliament is conceded in the A
constitutional scheme, overriding executive power has also to be conceded
even though such power is not exercised by the Union in the day to day
functioning of the GNCTD. We thus conclude that executive power of
the Union is co-extensive on all subjects referable to List I and List II on
which Council of Ministers and the NCTD has also executive powers.
B
88. Learned counsel for the appellants have also referred to Article
239AB. One of the submissions raised by the appellants is that the
executive power can be exercised by Union or the Lieutenant Governor
only in the circumstances as mentioned in Article 239AB i.e. only when
constitutional machinery in National Capital Territory has failed and
National Capital Territory is unable to carry out the administration in C
accordance with the provisions of Article 239AB. Article 239AB was
also added by Constitution Sixty Ninth Amendment Act, which is as
follows:-
“239AB. Provision in case of failure of constitutional
machinery.- If the President, on receipt of a report from the D
Lieutenant 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
89. The provision of the Article 239AB is a special provision where
President may suspend the provision of Article 239AA or any of the
provision of any law made in pursuance of that article. The above
provision is akin to Article 356, the subject of both the provisions, i.e.,
Article 239AB and Article 356 is same, i.e., “provision in case of failure
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362 SUPREME COURT REPORTS [2018] 7 S.C.R.

A of constitutional machinery”. The power under Article 356/239AA is
conferred on Union in larger interest of State. The submission that
executive power can be exercised by the Union through President only
when power under Article 239AB is exercised, cannot be accepted.
The provision of Article 239AB is for entirely different purpose, and is
not a provision regarding exercise of general executive power by the
B
Union.
Article 239AA(4) Proviso
90. The interpretation of the proviso to sub-clause(4) is the main
bane of contention between the parties. There are two broad aspects
C which need detailed consideration. The first issue is the concept of the
words “aid and advice” as contained in sub-clause (4) of Article 239AA.
The appellants case is that the content and meaning of aid and advice is
same as has been used in Article 74 and Article 163 of the Constitution.
Article 163 Sub-clause(1) is extracted for ready reference:-
D 163.Council of Ministers to aid and advise Governor:- (1)
There shall be a council of Ministers with the Chief Minister as
the head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under this constitution
required to exercise his functions or any of them in his discretion.

E 91. The appellant’s have placed reliance on Constitution Bench
judgment of this Court in Shamsher Singh Vs. State of Punjab and
Another, (1974) 2 SCC 831. The Constitution Bench of this Court in
the above case had occasion to examine the phrase “aid and advice” as
used in Article 163 of the Constitution. This Court found that our
Constitution embodies generally the Parliamentary system of the
F Government of British model both for Union and the States. Both
President and Governor have to act on the basis of aid and advice
received from the Council of the Ministers except when they have to
exercise their function in their discretion. Paras 27, 28, 30, 32 and 33,
which are relevant are quoted as follows:-
G “27. Our Constitution embodies generally the Parliamentary
or Cabinet system of Government of the British model both
for the Union and the States. Under this system the President
is the constitutional or formal head of the Union and he
exercises his powers and functions conferred on him by or
under the Constitution on the aid and advice of his Council
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 363
& ANOTHER [ASHOK BHUSHAN, J.]

of Ministers. Article 103 is an exception to the aid and advice A
of the Council of Ministers because it specifically provides
that the President acts only according to the opinion of the
Election Commission. This is when any question arises as to
whether a Member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause
B
(1) of Article 102.
28. Under the Cabinet system of Government as embodied in
our Constitution the Governor is the constitutional or formal
head of the State and he exercises all his powers and functions
conferred on him by or under the Constitution on the aid and
advice of his Council of Ministers save in spheres where the C
Governor is required by or under the Constitution to exercise
his functions in his discretion.
30. In all cases in which the President or the Governor
exercises his functions conferred on him by or under the
Constitution with the aid and advice of his Council of D
Ministers he does so by making rules for convenient
transaction of the business of the Government of India or the
Government of the State respectively or by allocation among
his Ministers of the said business, in accordance with Articles
77(3) and 166(3) respectively. Wherever the Constitution E
requires the satisfaction of the President or the Governor for
the exercise of any power or function by the President or the
Governor, as the case may be, as for example in Articles 123,
213, 311(2) proviso (c), 317, 352(1), 356 and 360 the
satisfaction required by the Constitution is not the personal
satisfaction of the President or of the Governor but is the F
satisfaction of the President or of the Governor in the
constitutional sense under the Cabinet system of Government.
The reasons are these. It is the satisfaction of the Council of
Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions. G
Neither Article 77(3) nor Article 166(3) provides for any
delegation of power. Both Articles 77(3) and 166(3) provide
that the President under Article 77(3) and the Governor under
Article 166(3) shall make rules for the more convenient
transaction of the business of the Government and the
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364 SUPREME COURT REPORTS [2018] 7 S.C.R.

A allocation of business among the Ministers of the said
business. The Rules of Business and the allocation among
the Ministers of the said business all indicate that the decision
of any Minister or officer under the Rules of Business made
under these two articles viz. Article 77(3) in the case of the
President and Article 166(3) in the case of the Governor of
B
the State is the decision of the President or the Governor
respectively.
32. It is a fundamental principle of English Constitutional
law that Ministers must accept responsibility for every executive
act. In England the Sovereign never acts on his own
C responsibility. The power of the Sovereign is conditioned by
the practical rule that the Crown must find advisers to bear
responsibility for his action. Those advisers must have the
confidence of the House of Commons. This rule of English
Constitutional law is incorporated in our Constitution. The
D Indian Constitution envisages a Parliamentary and
responsible form of Government at the Centre and in the States
and not a Presidential form of Government. The powers of
the Governor as the constitutional head are not different.
33. This Court has consistently taken the view that the powers
E of the President and the powers of the Governor are similar
to the powers of the Crown under the British Parliamentary
system. (See Ram Jawaya Kapur v. State of Punjab, A.
Sanjeevi Naidu v. State of Madras4, U.N.R. Rao v. Indira
Gandhi5). In Ram Jawaya Kapur case Mukherjea, C.J.
speaking for the Court stated the legal position as follows.
F The Executive has the primary responsibility for the
formulation of governmental policy and its transmission into
law. The condition precedent to the exercise of this
responsibility is that the Executive retains the confidence of
the legislative branch of the State. The initiation of legislation,
G the maintenance of order, the promotion of social and
economic welfare, the direction of foreign policy, the carrying
on of the general administration of the State are all executive
functions. The Executive is to act subject to the control of the
Legislature. The executive power of the Union is vested in the
President. The President is the formal or constitutional head
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 365
& ANOTHER [ASHOK BHUSHAN, J.]

of the Executive. The real executive powers are vested in the A
Ministers of the Cabinet. There is a Council of Ministers with
the Prime Minister as the head to aid and advise the President
in the exercise of his functions.”
92. It is well settled that the Governor is to act on aid and advice
of the Council of Ministers and as contemplated under Article 163, B
according to the Constitutional scheme, Governor is not free to disregard
the aid and advice of the Council of Ministers except when he is required
to exercise his function in his discretion. There cannot be any dispute to
the proposition as laid down by this Court in Shamsher Singh (supra)
and followed thereafter in number of cases. Whether the “aid and advice”
as used in Article 239AA(4) has to be given the same meaning as is C
contained in Article 163 and Article 74 is the question to be answered.
The appellant’s case is that Constitution scheme as delineated in Article
239AA itself having accepted Westminster model of Governing system,
“aid and advice” of the Council of Ministers is binding on the LG and he
cannot act contrary to the aid and advice and is bound to follow the aid D
and advice. It is submitted that any other interpretation shall run contrary
to the very concept of Parliamentary democracy, which is basic feature
of the Constitution. There could have been no second opinion had the
proviso to sub-clause(4) of Article 239AA was not there. The aid and
advice as given by Council of Ministers as referred to in sub-clause(4)
has to be followed by the Lieutenant Governor unless he decides to E
exercise his power given in proviso of sub-clause(4) of Article 239AA.
The proviso is an exception to the power as given in sub-clause(4). A
case when falls within the proviso, the “aid and advice” of the Council
of Ministers as contemplated under sub-clause (4) is not to be adhered
to and a reference can be made by Lieutenant Governor. This is an F
express Constitution scheme, which is delineated by sub-clause(4) of
Article 239AA proviso. It is relevant to note that the scheme which is
reflected by sub-clause(4) of Article 239AA proviso is the same scheme
which is contained under Section 44 of the Government of Union
Territories Act, 1963. Section 44 of the Act is quoted below:-
G
“There shall be a Council of Ministers in each Union Territory
with the Chief Minister at the head to aid and advise the
Administrator in the exercise of his functions in relation to
matters with respect to which the Legislative Assembly of the
Union Territory has power to make laws except in so far as
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366 SUPREME COURT REPORTS [2018] 7 S.C.R.

A he is required by or under this Act to act in his discretion or
by or under any law to exercise any judicial or quasi-judicial
functions.
Provided that in case of difference of opinion between the
Administrator and his Ministers on any matter, the
B Administrator shall refer it to the President for decision and
act according to the decision given thereon by the President,
and pending such decision, it shall be competent for the
Administrator 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
C it deems necessary”.
93. Thus, with regard to Union Territories, the exception as carved
out in proviso was very much there since before. Thus, the scheme as
contained in proviso was well known scheme applicable in the Union
Territories. When there is an express exception when the aid and advice
D given by the Council of Ministers is not binding on the Lieutenant Governor
and he can refer it to the President and pending such decision in case of
urgency take his own decision, we are not persuaded to accept that aid
and advice is binding on the Governor under Article 163. The Legislative
Assembly of the NCTD being representing the views of elected members
E their opinion and decision has to be respected and in all cases, except
where Lieutenant Governor decides to make a reference.
94. Another issue which needs consideration is the meaning of
the word “any matter” as occurring in first sentence of the proviso to
sub-clause(4). Another issue which needs to be considered in this context
F is as to whether the operation of the proviso to sub-clause(4) is confined
to only few categories of cases as contended by appellant or the proviso
can be relied by Lieutenant Governor in all executive decisions taken by
Council of Ministers. According to appellants, the proviso operates in
the following areas, when 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;
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 367
& ANOTHER [ASHOK BHUSHAN, J.]

c. is contrary to the laws of the Parliament; A
d. falls within Rule 23 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; B
iv. any other matters of administrative importance which the
Chief Minister may consider necessary.
95. Thus, appellants contended that apart from above categories
mentioned above, proviso has no application in any other matter. We
C
are not able to read any such restriction in the proviso as contended by
the appellants. The proviso uses the phrase “any matter” in the first
sentence, i.e., “provided that in the case of difference of opinion between
the Lieutenant Governor and his Ministers on any matter……….” The
word “any matter” are words of wide import and the language of Article
239AA(4) does not admit any kind of restriction in operation of proviso. D
There is nothing in the provision of sub-clause (4) to read any restriction
or limitation on the phrase “any matter” occurring in proviso. The word
“any matter” has also been used in Article 239AA(3) while providing
for power to make laws. Sub-clause(3)(a) reads “subject to the provisions
of this Constitution, the Legislative Assembly shall have power to make
E
laws for the whole or any part of the National Capital Territory with
respect to any of the matters stated in the State List or in the Concurrent
List in so far as any such matter is applicable to Union
Territories……………”. Further, sub-clause(b) provides “Nothing in sub-
clause(a) shall derogate from the powers of Parliament under the
Constitution to make laws with respect to any matter for a Union Territory F
or any part thereof”. The use of word “any matter” in above two clauses
clearly indicate that it is not used in any limited or restricted manner
rather use of word “any matter” is used referring to the entire extent of
legislation. When the same phrase has been used in proviso to sub-
clause(4), we are of the view that similar interpretation has to be given
G
to the same word used in earlier part of the same Article.
96. In this context, we refer to Tej Kiran Jain and Others Vs.
N. Sanjiva Reddy and Others, (1970) 2 SCC 272. In the above case,
this Court had occasion to consider the word “any thing” as used in
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368 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Article 105(2) of the Constitution of India. This Court stated following in
Paragraph 8:-
“8. In our judgment it is not possible to read the provisions of
the article in the way suggested. The article means what it
says in language which could not be plainer. The article
B confers immunity inter alia in respect of “anything said ... in
Parliament”. The word “anything” is of the widest import and
is equivalent to “everything”. The only limitation arises from
the words “in Parliament” which means during the sitting of
Parliament and in the course of the business of Parliament.
We are concerned only with speeches in Lok Sabha. Once it
C was proved that Parliament was sitting and its business was
being transacted, anything said during the course of that
business was immune from proceedings in any Court this
immunity is not only complete but is as it should
be……………………….”
D 97. From the above discussions, it is thus clear that aid and advice
of the Council of Ministers is binding on the Lieutenant Governor except
when he decides to exercise his power given in proviso of sub-clause(4)
of Article 239AA. In the matters, where power under Proviso has not
been exercised, aid and advice of the Council of Ministers is binding on
E the Lieutenant Governor. We are of the view that proviso to sub-clause(4)
of Article 239AA cannot be given any other interpretation relying on any
principle of Parliamentary democracy or any system of Government or
any principle of Constitutional silence or implications.
98. The submission of the appellants that proviso to sub-clause(4)
F of Article 239AA envisages an extreme and unusual situation and is not
meant to be a norm, is substantially correct. The exercise of power
under Proviso cannot be a routine affair and it is only in cases where
Lieutenant Governor on due consideration of a particular decision of the
Council of Ministers/Ministers, decides to make a reference so that the
decision be not implemented. The overall exercise of administration of
G Union Territory is conferred on President, which is clear from the
provisions contained in Part VIII of the Constitution. Although, it was
contended by the appellant that Article 239 is not applicable with regard
to NCTD after Article 239AA has been inserted in the Constitution.
The above submission cannot be accepted on account of the express
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 369
& ANOTHER [ASHOK BHUSHAN, J.]

provisions which are mentioned under Article 239AA and Article 239AB A
itself. Article 239AA sub-clause(1) itself contemplates that administrator
appointed under Article 239 shall be designated as the Lieutenant
Governor. Thus the administrator appointed under Article 239 is
designated as LG. Article 239AB is also applicable to NCTD. Article
239AB in turn refers to Article 239. The provisions contained in Part
B
VIII of the Constitution have to be looked into in its entirety. Thus, all
the provisions of Part VIII has to be cumulatively read while finding out
the intention of the Constitution makers, which makes it clear that Article
239 is also applicable to the NCTD.
Whether concurrence of Lieutenant Governor is required
on executive decision of GNCTD. C

99. The constitutional provision of Article 239AA does not indicate
that the executive decisions of GNCTD have to be taken with the
concurrence of LG. The constitutional provisions inserted by 69th
Constitution Amendment are with the object to ensure stability and
permanence by providing Legislative Assembly and Council of Ministers D
by the constitutional provisions itself. With regard to executive decision
taken by the Council of Ministers/Ministers of GNCTD proviso gives
adequate safeguard empowering the LG to make a reference to the
President in the event there is difference of opinion between executive
decisions of the GNCTD and the LG, but the scheme does not suggest E
that the decisions by Council of Ministers/Ministers have to be taken
with the concurrence of the LG. The above conclusion is re-enforced by
looking into the 1991 Act as well as Rules framed by the President
under Section 44 of 1991 Act, namely, the Transaction of Business of
the Government of National Capital Territory of Delhi Rules, 1993. The
provisions of 1991 Act although provide for communication of proposal, F
agenda and decisions of the Council of Ministers/Ministers to LG but
there is no indication in any of the provisions that the concurrence of LG
is required with regard to the aforesaid decisions.
100. Earlier enactments governing the Delhi administration did
provide the word concurrence of LG for implementing decisions taken G
by GNCTD but the said scheme having been given a go-bye in the 1991
Act, there is no requirement of any concurrence of LG to the executive
decisions taken by the GNCTD.

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

A Communication to the LG, its purpose and object
101. The scheme of 1991 Act clearly delineates that LG has to be
informed of all proposals, agendas and decisions taken by the Council of
Minister/Ministers. Section 44 deals with the conduct of business which
is to the following effect:
B “44.Conduct of business :
(1) The President shall make rules :
(a) for the allocation of business to the Ministers in so far
as it is business with respect to which the Lieutenant
C Governor is required to act on the aid and advice of his
Council of Ministers; and
(b) for the more convenient transaction of business with
the ministers, including the procedure to be adopted in
the case of a difference of opinion between the
D Lieutenant Governor and the Council of Ministers or a
Minister.
(2) Save as otherwise provided in this Act, all executive action
of Lieutenant Governor whether taken on the advise of
his Ministers or otherwise shall be expressed to be taken
in the name of the Lieutenant Governor.
E
(3) Orders and other instruments made and executed in the
name of the Lieutenant Governor shall be authenticated
in such manner as may be specified in rules to be made
by the Lieutenant Governor and the validity of an order
or instrument which is so authenticated shall not be
F
called in question on the ground that it is not an order
or instrument made or executed by the Lieutenant
Governor.”
102. Under Section 45, Chief Minister is to furnish information to
the LG about all decisions of the Council of Ministers relating to the
G administration of the affairs of the Capital and the proposals for legislation
and to furnish such information as may be called for by the LG. Section
45 is as follows:
“45. Duties of Chief Minister as respects the furnishing of
information to the Lieutenant Governor, etc. :
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 371
& ANOTHER [ASHOK BHUSHAN, J.]

It shall be the duty of the Chief Minister – A
(a) to communicate to the Lieutenant Governor all decisions
of the Council of Ministers relating to the administration of
the affairs of the Capital and proposals for legislation;
(b) to furnish such information relating to the administration
of the affairs of the Capital and proposals for legislation as B
Lieutenant Governor may call for, and
(c) if the Lieutenant Governor so requires, to submit for the
consideration of the Council of Ministers any matter on which
a decision has been taken by a Minister but which has not
been considered by the Council.” C

103. Rules have been framed under Section 44 of 1991 Act,
namely, 1993 Rules, which throw considerable light over the actual
functioning of GNCTD and LG. Rule 9 sub-rule (2) provides that if it is
decided to circulate any proposal, the Department to which it belongs,
shall prepare a memorandum setting out in brief the facts of the proposal, D
the points for decision and the recommendations of the Minister in charge
and when the same is circulated to the Ministers, simultaneously a copy
thereof is to be sent to the LG. Rule 10 is as follows:
“10. (1) While directing that a proposal shall be circulated,
the Chief Minister may also direct, if the matter be of urgent E
nature, that the Ministers shall communicate their opinion to
the Secretary to the Council by a particular date, which shall
be specified in the memorandum referred to in rule 9.
(2) If any Minister fails to communicate his opinion to the
Secretary to the Council by the date so specified in the F
memorandum, it shall be assumed that he has accepted the
recommendations contained therein.
(3) If the Minister has accepted the recommendations
contained in the memorandum or the date by which he was
required to communicate his opinion has expired, the Secretary G
to the Council shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if
he has no observation to make, he shall return the proposal
with his orders thereon to the Secretary to the Council.
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372 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (5) On receipt of the proposal, the Secretary to the Council
shall communicate the decision to the Lieutenant Governor
and pass on the proposal to the Secretary concerned who
shall thereafter take necessary steps to issue the orders unless
a reference to the Central Government is required in
pursuance of the provisions of Chapter V.”
B
104. The above provision also indicates that after proposal is
accepted by the Chief Minister, the same shall be communicated to the
LG and only thereafter necessary step to issue the orders is to be taken
provided no reference is made to the Central Government by the LG
under Chapter V of the Rules.
C
105. Rule 13 sub-rule (3) provides that an agenda showing the
proposals to be discussed in a meeting of the Council has been approved
by the Chief Minister shall be sent to the LG. The agenda approved by
the Chief Minister shall be sent by the Secretary to the Council, to the
LG. Rule 13 sub-rule (3) is as follows:
D
“Rule 13(3) After an agenda showing the proposals to be
discussed in a meeting of the Council has been approved by
the Chief Minister, copies thereof, together with copies of such
memoranda as have not been circulated under rule 11, shall
be sent by the Secretary to the Council, to the Lieutenant
E Governor, the Chief Minister and other Ministers, so as to
reach them at least two days before the date of 7 such meeting.
The Chief Minister may, in case of urgency, curtail the said
period of two days.”
106. Rule 14 again provides that decisions taken by the Council
F on each proposal shall be communicated to the LG. Standing orders
issued by the Minister-in-charge for the disposal of proposals or matters
in his Department are also required to be communicated to LG, as required
by Rules 15 and 16.
107. Rule 19 sub-rule (5) empowers the LG to call for papers
relating to any proposal or matter in any Department and such requisition
G
shall be complied with by the Secretary to the Department concerned.
108. Rule 23 enumerates certain matters which are to be submitted
to LG before issuing any orders thereon. Rule 23 is as follows:
“23. The following classes of proposals or matters shall
H essentially be submitted to the Lieutenant Governor through
GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 373
& ANOTHER [ASHOK BHUSHAN, J.]

the Chief Secretary and the Chief Minister before issuing any A
orders thereon, namely:
(i) matters which affect or are likely to affect the peace
and tranquility of the capital;
(ii) matters which affect or are likely to affect the interest
of any minority community, Scheduled Castes and backward B
classes;
(iii) matters which affect the relations of the Government
with any State Government, the Supreme Court of India or
the High Court of Delhi;
C
(iv) proposals or matters required to be referred to the
Central Government under the Act or under Chapter V;
(v) matters pertaining to the Lieutenant Governor’s
Secretariat and personnel establishment and other matters
relating to his office; D
(va) matters on which Lieutenant Governor is required to
make order under any law or instrument in force;
(vi) petitions for mercy from persons under sentence for
death and other important cases in which it is proposed to
recommend any revision of a judicial sentence; E
(vii) matters relating to summoning, prorogation and
dissolution of the Legislative Assembly, removal of
disqualification of voters at elections to the Legislative
Assembly, Local Self Government Institutions and other matters
connected with those; and F
(viii) any other proposals or matters of administrative
importance which the Chief Minister may consider necessary.
109. Under Rule 24, the LG is empowered to require any order
passed by the Minister-in-charge to be placed before the Council for
consideration. G

110. Rule 25 obliges the Chief Minister to furnish to the LG such
information relating to the administration of the Capital and proposals
for legislation as the LG may call for.

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

A 111. Rule 49 deals with the difference of opinion between the LG
and Minister in regard to any matter, whereas Rule 50 deals with
difference of opinion between the LG and the Council with regard to
any matter. Rules 49 and 50 are as follows:
“49. In case of difference of opinion between the Lieutenant
B Governor and a Minister in regard to any matter, the Lieutenant
Governor shall endeavour by discussion on the matter to settle
any point on which such difference of opinion has arisen.
Should the difference of opinion persist, the Lieutenant
Governor may direct that the matter be referred to the Council
C 50. In case of difference of opinion between the Lieutenant
Governor and the Council with regard to any matter, the
Lieutenant Governor shall refer it to the Central Government
for the decision of the President and shall act according to
the decision of the President.”
D 112. Rule 49 enable and oblige the LG to discuss the matter when
there is some difference with decision of a Minister. The discussion to
sort out difference and to arrive at an acceptable course of action is
always welcome and is a measure employed in all organisational
functioning.

E 113. The scheme as delineated by 1991 Act and Rules 1993 clearly
indicates that LG has to be kept informed of all proposals, agendas of
meeting and decisions taken. The purpose of communication of all
decisions is to keep him posted with the administration of Delhi. The
communication of all decisions is necessary to enable him to go through
the proposals and decisions so as to enable him to exercise powers as
F conceded to him under 1991 Act and Rules 1993. Further, the power
given under proviso to 239AA(4) can be exercised only when LG is
informed and communicated of all decisions taken by GNCTD. The
communication of all decisions is necessary to enable the LG to perform
duties and obligations to oversee the administration of GNCTD and where
G he is of different opinion he can make a reference to the President. As
observed above the purpose of communication is not to obtain his
concurrence of the decision but purpose is to post him with the
administration so as to enable him to exercise his powers conceded to
him under proviso to Article 239AA sub-clause (4). We have already
observed that the powers given in proviso to sub-clause (4) is not to be
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 375
& ANOTHER [ASHOK BHUSHAN, J.]

exercised in a routine manner rather it is to be exercised by the LG on A
appropriate reasons to safeguard the interest of the Union Territory.
114. Learned Additional Solicitor General has submitted before
us that in the last few years there have been very few references by the
LG in exercise of powers under proviso to sub-clause (4) of Article
239AA. Rule 14 sub-rule (2) of 1993 Rules empowers the Minister B
concerned to take necessary action to give effect to the decision of the
Council after decision has been communicated to the LG. The purpose
of communication is to enable the LG to discharge obligation to oversee
and scrutinise the decision. Although, there is no indication in the 1993
Rules as to after communication of the decisions of the Council as to
what stage the decisions are to be implemented. As observed no C
concurrence is required on the decisions and communication is only for
the purpose of enabling the LG to formulate opinion as to whether there
is any such difference which may require reference. Only a reasonable
time gap is to elapse, which is sufficient to the LG to scrutinise the
decision. It is for the LG and the Council of Ministers to formulate an D
appropriate procedure for smooth running of the administration decisions
which can very well be implemented by the GNCTD immediately after
the decisions are communicated to LG and are “seen” by the LG. When
LG has seen a decision and does not decide to make a reference, the
decision has to be implemented by all means. We are, thus, of the view
that the 1991 Act and 1993 Rules cover the entire gamut, manner and E
procedure of executive decisions taken by the Council of Ministers/
Minister their communication, and implementation and the entire
administration is to be run accordingly.
115. The 1993 Rules provide that Chief Secretary and the Secretary
of the Department concerned are severally responsible for the careful F
observance of these Rules and when either of them considers that there
has been any material departure, he shall bring it to the notice of the
Minister-in-charge, Chief Minister and the LG. Rule 57 is as follows:
“57. The Chief Secretary and the Secretary of the Department
concerned are severally responsible for the careful observance G
of these rules and when either of them considers that there
has been any 20 material departure from these rules, he shall
personally bring it to the notice of the Minister-in-charge,
Chief Minister and the Lieutenant Governor.”
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376 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 116. The duty of observance of 1993 Rules and other statutory
provisions lay both on Council of Ministers, Chief Minister and LG. All
have to act in a manner so that the administration may run smoothly
without there being any bottleneck. The object and purpose of all
constitutional provisions, Parliamentary enactments and the Rules framed
by the President is to carry the administration in accordance with the
B
provisions in the interest of public in general so that rights guaranteed by
the Constitution to each and every person are realised. When the duty
is entrusted on persons holding high office, it is expected that they shall
conduct themselves, in faithful, discharge of their duties to ensure smooth
running of administration and protection of rights of all concerned.
C 117. I have perused the elaborate opinion of My Lord, the Chief
Justice with which I substantially agree, but looking to the importance of
the issues, I have penned my own views giving reasons for my conclusions.
118. I have also gone through the well researched and well
considered opinion of Brother Justice D.Y. Chandrachud. The view
D expressed by Justice Chandrachud are substantially the same as have
been expressed by me in this judgment.
119. In view of the foregoing discussions we arrive on the following
conclusions on the issues which have arisen before us:

E CONCLUSIONS
I. The interpretation of the Constitution has to be purposive taking
into consideration the need of time and Constitutional principles. The
intent of the Constitution framers, the object and reasons of a Constitutional
Amendment always throw light on the Constitutional provisions. For
F adopting the purposive interpretation of a particular provision the express
language employed cannot be given a complete go-bye.
II. The Parliament has power to make laws for NCTD in respect
of any of the matters enumerated in State List and Concurrent List. The
Legislative Assembly of NCTD has also legislative power with respect
to matters enumerated in the State List (except excepted entries) and in
G
the Concurrent List.
III. Executive power is co-extensive with the legislative power.
Legislative power is given to give effect to legislative enactments. The
Policy of legislation can be given effect to only by executive machinery.
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GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA 377
& ANOTHER [ASHOK BHUSHAN, J.]

IV. When the Constitution was enforced, executive power of Union A
in reference to Part C States with regard to Concurrent List was not
excluded. Part C States having been substituted by 7 th Constitution
Amendment as Union Territories. The word ‘State’ as occurring in proviso
to Article 73 after 7th Constitution Amendment cannot be read as including
Union Territory. Reading the word ‘Union Territory’ within the word
B
‘State’ in proviso to Article 73 shall not be in consonance with scheme
of Part VIII (Union Territories) of the Constitution.
V. Executive power of the Union is co-extensive on all subjects
referable to List II and III on which Legislative Assembly of NCTD has
also legislative powers.
C
VI. The “aid and advice” given by Council of Ministers as referred
to in sub-clause (4) of Article 239AA is binding on the LG unless he
decides to exercise his power given in proviso to sub-clause (4) of Article
239AA.
VII. The Legislative Assembly of NCTD being representing the D
views of elected representatives, their opinion and decisions have to be
respected in all cases except where LG decides to make a reference to
the President.
VIII. The power given in proviso to sub-clause (4) to LG is not to
be exercised in a routine manner rather it is to be exercised by the LG E
on valid reasons after due consideration, when it becomes necessary to
safeguard the interest of the Union Territory.
IX. For the Executive decisions taken by the Council of Ministers/
Ministers of GNCTD, proviso to sub-clause (4) gives adequate safeguard
empowering the LG to make a reference to the President in the event F
there is difference of opinion between decisions of the Ministers and the
LG, but the Constitutional Scheme does not suggest that the decisions by
the Council of Ministers/Ministers require any concurrence of the LG.
X. The scheme as delineated by 1991 Act and 1993 Rules clearly
indicates that LG has to be kept informed of all proposals, agendas and
G
decisions taken. The purpose of communication of all decisions is to
keep him posted with the administration of Delhi. The communication of
all decisions is necessary to enable him to go through so as to enable him
to exercise the powers as conceded to him under proviso to sub-clause

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

A (4) as well as under 1991 Act and 1993 Rules. The purpose of
communication is not to obtain concurrence of LG.
XI. From persons holding high office, it is expected that they shall
conduct themselves in faithful discharge of their duties so as to ensure
smooth running of administration so that rights of all can be protected.
B 120. We having answered the constitutional issues raised before
us in the above manner let these matters be now placed before the
appropriate Bench for hearing after obtaining orders from Hon’ble the
Chief Justice.

C Nidhi Jain Matter to be placed before appropriate
regular Bench.

D

E

F

G

H