Interpretation of the Constitution : Government of NCT of Delhi Vs. Union of India [SC JUDGMENT]
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
(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
D. Constitutional morality
E. Constitutional objectivity
F. Constitutional governance and the conception of legitimateconstitutional trust
G. Collectiveresponsibility
H. Federal functionalism and democracy
I. Collaborative federalism
J. Pragmatic federalism
K. Concept of federal balance
L. Interpretation of the Constitution:
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
D. Constitutional morality
E. Constitutional objectivity
F. Constitutional governance and the conception of legitimateconstitutional trust
G. Collectiveresponsibility
H. Federal functionalism and democracy
I. Collaborative federalism
J. Pragmatic federalism
K. Concept of federal balance
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 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 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 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.
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 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 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 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 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 provisions should be interpreted in
the light of contemporaneous needs, experiences and knowledge. In other words,
should it be historical interpretation or contemporaneous interpretation, Bodenheimer, Edgar, Jurisprudence,(Universal Law Publishing Co.Pvt. Ltd, Fourth Indian Reprint, 2004) p 405. The theory of historical perspective
found its votary in Chief Justice Taney who categorically stated in Dred Scott v
Sanford, 60 U.S. (19 How.) 393 (1857) that as long as the 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 Sutherland, 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.... Propagating a different
angle, Chief Justice Marshall in McCulloch v Maryland, 17 US (4Wheat) 316 (1819) 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
Court, State v Superior Court (1944) at 547 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 constitutional terms is to be
gleaned from their origin and the line of their growth, Gompers v US 233 (1914). Cardozo once stated:
“A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.” Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921
It
would be interesting to note that Justice Brandeis tried to draw a distinction
between interpretation and application of constitutional provisions, Burnett v Coronado Oil and Gas Co., 285 US (1932). 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 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 absolutism principle never allows for
restrictions to be read into the liberties which are not already mentioned in
the Constitution, 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).
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. Poudyal v. Union of India and others, AIR 1993 SC 1804:
“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 themselves is vital and the constitutional issues are not solved by 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 work, Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional Interpretation”, Harvard Law Review Association, 1987 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 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.” 100 HARV. L. REV. 1189, 1189-90 (1987).10
137.
Comparing the task of interpretation of statute to that of interpretation of
musical notes, Judge Hand in the case of Helvering v. Gregory, 69 F. 2d 809, 810-II (1934) stated:
“The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.”
138. Jerome N. Frank, Jerome N. Frank, “Words and Music: Some remarks on Statutory Interpretation,” Columbia Law Review 47 (1947): 1259-1367 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.”
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:
“Constitutional adjudication is like no other decisionmaking. 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 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 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
AdvocatesonRecord Association (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 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 own, suitable to its character””
142. Dickson, J., in Hunter v. Southam Inc, [1984] 2 SCR 145rendering 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 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 Charter of Rights, for the unremitting
protection of individual rights 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, 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 Canada also reiterated this view when
it held that the meaning of 'unreasonable' cannot be determined by 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 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 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”.
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 Canada, [1930] AC 124, 136 had observed that the Constitution must be approached as “a
living tree capable of growth and expansion within its natural limits”.
145. Professor PierreAndré Côté
in his book, 65 Pierre-Andre Cote, The Interpretation of
Legislation in Canada 2nd Ed (Cowansville.
Quebec:Les Editions Yvon Blais. Inc. 1992) has highlighted the action
based approach by stating that it must be kept in mind that the 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 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
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
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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