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Reportable in the SUPREME COURT of INDIA CIVIL Reportable 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.) 2 CONTENTS A. Prologue…………………………………………… 3-22 B. Rivalised Submissions………………………… 22-23 B.1 Submissions on behalf of the appellant…………………………………… 23-34 B.2 Submissions on behalf of the respondents………………………………. 34-45 C. Ideals/principles of representative governance………………………………………… 45-50 D. Constitutional morality……………………… 50-54 E. Constitutional objectivity…………………… 54-57 F. Constitutional governance and the conception of legitimate constitutional trust…………………………………………………. 57-68 G. Collective responsibility………………………. 68-73 H. Federal functionalism and democracy……. 74-93 I. Collaborative federalism………………………. 93-100 J. Pragmatic federalism…………………………… 101-104 K. Concept of federal balance…………………… 104-108 L. Interpretation of the Constitution………… 108-120 M. Purposive interpretation……………………… 120-127 N. Constitutional culture and pragmatism…. 127-135 O. Interpretation of Articles 239 & 239A…. 135-140 P. Interpretation of Article 239AA of the 3 Constitution………………………………………. 140-145 Q. Status of NCT of Delhi…………………………. 146-160 R. Executive power of the Council of Ministers of Delhi……………………………….. 160-164 S. Essence of Article 239AA of the 164-188 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…………………………. 188-213 U. Constitutional renaissance………………….. 213-217 V. The conclusions in seriatim…………………. 217-231 A. Prologue: The present reference to the Constitution Bench has its own complexity as the centripodal issue in its invitation of the interpretation of Article 239AA of the Constitution invokes a host of concepts, namely, constitutional objectivity navigating through the core structure with the sense and sensibility of having a real test of constitutional structure; the culture of purposive interpretation because the Court is concerned with the sustenance of glory of constitutional democracy in a 4 Democratic Republic as envisioned in the Constitution; and understanding the idea of citizenry participation viewed with the lens of progressive perception inherent in the words of a great living document emphasizing on the democratic theme to achieve the requisite practical goal in the world of reality. We may call it as pragmatic interpretation of a constitutional provision, especially the one that has the effect potentiality to metamorphose a workable provision into an unnecessary and unwarranted piece of ambiguity. In such a situation, the necessity is to scan the anatomy of the provision and lift it to the pedestal of constitutional ethos with the aid of judicial creativity that breathes essentiality of life into the same. It is the hermeneutics of law that works. It is the requisite constitutional stimulus to sustain the fundamental conception of participative democracy so that the real pulse is felt and further the constitutional promise to the citizens is fulfilled. It gets rid of the unpleasant twitches and convulsions. To put it differently, the assurance by the insertion of Article 239AA by the Constitution (Sixty-ninth Amendment) Act, 1991 by 5 exercise of the constituent power is not to be renounced with any kind of rigid understanding of the provision. It is because the exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status. 2. The principal question is whether the inhabitants or voters of NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills “Prana” into the cells. Let it be made clear that any ingenious effort to scuttle the hope and aspiration that has ignited the idea of “march ahead” among the inhabitants by any kind of linguistic gymnastics will not commend acceptation. The appellant claims that the status of the voters of NCT Delhi after the Sixty-Ninth Amendment has moved from notional to real but the claim has been negatived by the Delhi High Court. Learned counsel for the appellant criticize the judgment and order of the High Court by contending, 6 apart from other aspects, that the language employed in the entire Chapter containing Article 239AA, unless appositely interpreted, shall denude the appellant, the National Capital Territory of Delhi, of its status. 3. The criticism is founded on the base that the Constitution of India, an organic and continuing document, has concretised their desire and enabled the people to have the right to participate as a collective in the decision making process that shall govern them and also pave the path of their welfare. The participation of the collective is the vital force for larger public interest and higher constitutional values spelt out in the Constitution and the silences therein and the same are to be protected. It is the assertion that the collective in a democracy speak through their elected representatives seeking mitigation of the grievances. 4. This Court, being the final arbiter of the Constitution, in such a situation, has to enter into the process of interpretation with the new tools such as constitutional pragmatism having due regard for sanctity of objectivity, realization of the purpose 7 in the truest sense by constantly reminding one and all about the sacrosanctity of democratic structure as envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of decentralization of power and, we must say, the ideas knock at the door to be invited. The compulsive invitation is the warrant to sustain the values of democracy in the prescribed framework of law. The aim is to see that in the ultimate eventuate, the rule of law prevails and the interpretative process allows the said idea its deserved space, for when the rule of law is conferred its due status in the sphere of democracy, it assumes significant credibility. 5. We would like to call such a method of understanding “confluence of the idea and spirit of the Constitution”, for it celebrates the grand idea behind the constitutional structure founded on the cherished values of democracy. 6. As we have used the words “spirit of the Constitution”, it becomes our obligation to clarify the concept pertaining to the same. The canon of constitutional interpretation that glorifies the democratic concepts lays emphasis not only on the 8 etymology of democracy but also embraces within its sweep a connotative expansion so that the intrinsic and innate facets are included. 7. A seven-Judge Bench of the Court in Keshvan Madhava Menon v. The State of Bombay1 observed:- “An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention 11951 SCR 228 9 about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” [Emphasis is ours] The aforesaid decision has to be understood in the context of the phraseology ‘spirit of the Constitution’. As we understand, the Court has not negatived the concept as an alien one. It has laid emphasis on the support from the language used. It has not accepted the assumed spirit of the Constitution. Needless to say, there cannot be assumptions. Every proposition should have a base and the Constitution of India to be an organic and living one has to be perceived with progressive dynamism and not stuck with inflexibility.
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