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Ideals / Principles of Representative Governance [Government of NCT of Delhi Vs. Union of India]

Constitution of India, 1950 – Arts. 239, 239A & 239AA - Government of National Capital Territory of Delhi Act, 1991 - Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 - Interpretation of - Ideals / Principles of Representative Governance - Constitutional morality - Constitutional objectivity - Constitutional Governance and the Conception of Legitimate Constitutional Trust - Collective Responsibility - Federal Functionalism and Democracy - Collaborative Federalism - Pragmatic Federalism - Concept of Federal Balance - Interpretation of the Constitution - Purposive interpretation - Constitutional Culture and Pragmatism - Interpretation of Article of the Constitution - Status of NCT of Delhi - Executive power of the Council of Ministers of Delhi - Essence of Article 239AA of the Constitution - Constitutional Renaissance.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

(Dipak Misra, CJI) (A.K. Sikri, J.) (A.M. Khanwilkar, J.) (Dr. D.Y. Chandrachud, J.) (Ashok Bhushan, J.)

July 04, 2018
CIVIL APPEAL NO. 2357 OF 2017
Government of NCT of Delhi … Appellant
Versus
Union of India & Another … Respondents
WITH
CONTEMPT PETITION (CIVIL) NO. 175 OF 2016 IN WRIT PETITION (CRIMINAL) NO. 539 OF 1986 CIVIL APPEAL NO. 2358 OF 2017 CIVIL APPEAL NO. 2359 OF 2017 CIVIL APPEAL NO. 2360 OF 2017 CIVIL APPEAL NO. 2361 OF 2017 CIVIL APPEAL NO. 2362 OF 2017 CIVIL APPEAL NO. 2363 OF 2017 CIVIL APPEAL NO. 2364 OF 2017 AND CRIMINAL APPEAL NO. 277 OF 2017
J U D G M E N T
Dipak Misra, CJI (for himself, A.K. Sikri and A.M. Khanwilkar, JJ.) 
CONTENTS
A. Prologue
B. Rivalised Submissions
B.1 Submissions on behalf of the appellant 
B.2 Submissions on behalf of the respondents
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 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 comes out as a device to bring to fore the popular will.


50. Bernard Manin in “The Principles of Representative Government”Bernard Manin, The Principles of Representative Government, Cambridge University Press, 1997 has deliberated on the postulate that the concept of representation has its origin around the Middle ages in the context of the 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.
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 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. 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 others(2000) 4 SCC 640 has observed:
"...Besides providing a quasi federal system in the country and 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 sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the execut ive, namely, the Council of Ministers is responsible. The legislature has been acknowledged to be a nerve center of the State activities. It is 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 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 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. 

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 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 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 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 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.
D. Constitutional morality
E. Constitutional objectivity
F. Constitutional governance and the conception of legitimate constitutional trust
G. Collective responsibility
H. Federal functionalism and democracy
I. Collaborative federalism
J. Pragmatic federalism
K. Concept of federal balance
L. Interpretation of the Constitution
M. Purposive interpretation
N. Constitutional culture and pragmatism
O. Interpretation of Articles 239 & 239A
P. Interpretation of Article 239AA of the Constitution
Q. Status of NCT of Delhi
R. Executive power of the Council of Ministers of Delhi
S. Essence of Article 239AA of the Constitution
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
U. Constitutional renaissance
V. The conclusions in seriatim

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