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

- **Citation:** [2018] 7 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-07-04
- **Case number:** Civil Appeal No. 2357 of 2017
- **Bench:** Dipak Misra, A. K. Sikri, A. M. Khanwilkar, Dr. D. Y. Chandrachud, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/government-of-nct-of-delhi-v-union-of-india-another-33680
- **Pages:** 378

## Headnote

Constitution of India:
Art. 239AA and 239AB - Special provisions with respect to
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
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
- 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
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
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.
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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
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
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.
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
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
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,
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 constitu

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[2018] 7 S.C.R. 1
 1
GOVERNMENT OF NCT OF DELHI
v.
UNION OF INDIA & ANOTHER
(Civil Appeal No. 2357 of 2017)
JULY 04, 2018
[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
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
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
- 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
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
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.
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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
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
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.
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
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
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,
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
constitutional trust - Held: Concept of constitutional governance
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has two features, the principles of fiduciary nature of public power
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
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
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
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.
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.
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
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.
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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
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
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
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'.
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
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:
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
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due weightage in order to come up with a solution harmonious with
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
- 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.
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
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
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
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
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
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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
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;
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
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
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.
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
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
as lawmakers. Therefore, representative form of governance
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comes out as a device to bring to fore the popular will. The
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
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
[2000] 2 SCR 299 : 2000 (4) SCC 640 - referred to.
The Principles of Representative Government by
Bernard Manin, Cambridge University Press, 1997
- referred to.
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
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
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
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
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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]
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.
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
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
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
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
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
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the constitutional impulse. In order to realize the 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.
When one is expressing an idea of generosity, he may not be
meeting the standard of justness. There may be an element of
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]
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:
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,
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]
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
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
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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
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]
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:
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
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
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.
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]
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Kalpana Mehta and others v. Union of India and others
(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 :
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
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
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
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
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
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]
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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.
"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:
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
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
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
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] [98A-B, D-E, 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 quasifederal, 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
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and constituted by the same process as in the case of the Union
Government. The resultant effect is that one can perceive the
distinct aim to preserve and protect the unity and the territorial
integrity of India. This is a special feature of the constitutional
federalism. [Para 106] [107-F-G]
7.3 Our Constitution contemplates a meaningful
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 fullfledged effect to both these concepts. 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. [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
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.
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
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
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.
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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
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 coexistence and interdependence so as to avoid any possible
constitutional discord. [Paras 108, 277(viii)] [108-E; 179-A-B]
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
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
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
in their respective pursuits of development. The Union
Government and the State Governments should endeavour to
address the common problems with the intention to arrive at a
solution by showing statesmanship, combined action and sincere
cooperation. In collaborative federalism, the Union and the State
Governments should express their readiness to achieve the
common objective and work together for achieving it. In a
functional Constitution, the authorities should exhibit sincere
concern to avoid any conflict. This concept has to be borne in
mind when both intend to rely on the constitutional provision as
the source of authority. Both the Centre and the States must work
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within their spheres and not think of any encroachment. But in
the context of exercise of authority within their spheres, there
should be perception of mature statesmanship so that the
constitutionally bestowed responsibilities are shared by them.
Such an approach requires continuous and seamless interaction
between the Union and the State Governments. [Para 117] [110E-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]
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.
Carmichael v. S. Coal & Coke Co. 301 U.S. 495, 52526 (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
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
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
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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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
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
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
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:
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
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
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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principle of federal balance which is entrenched in the Constitution
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]
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:
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
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
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
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
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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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
of India [1993] 2 Suppl. SCR 659 : (1993) 4 SCC 441referred 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
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
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
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
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:
12.