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
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.)
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 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 Articles239 & 239A
P. Interpretation of Article 239AA of the Constitution
Q. Status of NCT of Delhi
R. Executive power of theCouncil 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
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 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 Articles239 & 239A
P. Interpretation of Article 239AA of the Constitution
Q. Status of NCT of Delhi
R. Executive power of theCouncil 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
237. Our attention, in the course of the proceedings, has also been
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:
"STATEMENT OF OBJECTS
AND REASONS
Under
the new article 239AA proposed to be inserted by the Constitution
(Seventyfourth Amendment) Bill, 1991, a Legislative Assembly and Council of
Ministers will be established for the 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 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 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.
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 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 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 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:
“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 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
quasijudicial functions.
(2) 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 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 any law to exercise any judicial
or quasijudicial functions, the 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 to him by the
President or where he is required by law to act in his discretion or to exercise
any judicial or quasijudicial 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 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. 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 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
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 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
(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 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 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 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, ‘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 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
(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 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."
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 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 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 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:
"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 timetotime be given by the President."
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 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 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 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 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 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 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 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 circulated, the
department to which it belongs shall prepare a memo setting out in brief its
facts, points for decision and recommendations of the Ministerincharge.
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.
252. Rule 10, which is relevant,
is reproduced below:“ 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.
(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 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 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 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 Council of Ministers on a proposal as per the preceding
subrules 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, 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 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 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 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 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 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 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 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.
(5) The
Chief Minister or in his absence any other Minister 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 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]
Rule 13, thus,
deals with the meeting of Council of Ministers and subrule (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:
“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 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 action to give affect to
the decision.”
[Underlining is ours]
Rule 14 deals with the decision of the
Council on different proposals. Subrule (1) of Rule 14 provides that once a
decision of the Council has been approved by the Chief Minister or the Minister
presiding, 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:
“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 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 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 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;
(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
(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.
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 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 has been taken by a Minister but which has not been considered by the
Council.
Subrule (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 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:
(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 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
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
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 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 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
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 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 coexistence which would
again be in tune with the concepts of collaborative federalism, pragmatic
federalism, 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 President and shall act according to the decision of the
President.
262. The approach of dialogue,
settlement by discussion and suppressing conflicts by harmonious coexistence 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 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 Sixtyninth 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 loop of the various proposals, agendas and
decisions taken by the Council 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 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 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 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 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.
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 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.
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 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 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. Olins, [1975] AC 373; Eastman Photographic
Materials Company v. ComptrollerGeneral of Patents, Designs and Trademarks, (1989) AC 571; Tikri Banda Dullewe
v. Padma Rukmani Dullewe, (1969) 2 AC 313; Black Clawson International
Ltd. v. Papierwerke WaldhofAschaffenburg, (1975) AC 591; R.S. Nayak v. A.R.
Antulay, (1984) 2 SCC 183; Shrimant Shamrao
Suryavanshi v. Pralhad Bhairoba Suryavanshi, (2002) 3 SCC 676 and TMA Pai Foundation
v. State of Karnataka, (2002) 8 SCC 481. He had laid 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 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 meaning thereby the legislation would be dissected and subjected 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 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 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, 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 instance case, as we have elaborately dealt with
the meaning to be conferred on the constitutional provision that calls for
interpretation, there is no necessity to be guided by the report of the
Committee.
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