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In the Supreme Court of India Civil/Criminal Appellate/Original Jurisdiction REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL/CRIMINAL APPELLATE/ORIGINAL JURISDICTION CIVIL APPEAL No. 2357 OF 2017 GOVT OF NCT OF DELHI .....APPELLANT Versus UNION OF INDIA ....RESPONDENT WITH CONTEMPT PETITION (C) No.175/2016 In WRIT PETITION (Crl.) No.539/1986, CIVIL APPEAL No.2360/2017, CIVIL APPEAL No.2359/2017, CIVIL APPEAL No.2363/2017, CIVIL APPEAL No.2362/2017, 1 CIVIL APPEAL No.2358/2017, CIVIL APPEAL No.2361/2017, CRIMINAL APPEAL No.277/2017, AND CIVIL APPEAL No.2364/2017 J U D G M E N T Dr D Y CHANDRACHUD, J INDEX A) Introduction B) Constitutional Morality C) Constitutional Interpretation D) Part VIII of The Constitution: The Union Territories E) Cabinet Form of Government - Collective Responsibility - Aid and Advice 2 F) The Nature of Executive Power G) Constitutional History of the NCT - The Government of Part C States Act, 1951 - The Government of Union Territories Act, 1963 - The Delhi Administration Act, 1966 - The Balakrishnan Committee H) NCT: A Special Class among Union Territories? I) The Government of National Capital Territory of Delhi Act, 1991 J) The Transaction of Business Rules, 1993 K) Precedents - Literal Interpretation - Relationship between Centre and Union Territories - Decision in NDMC - General Clauses Act - “Insofar as any such matter is applicable to Union territories” L) Construction of the proviso to Article 239AA(4) M) Conclusions 3 PART A A Introduction 1 A batch of petitions in the Delhi High Court addressed unresolved issues between the Lieutenant Governor of the National Capital Territory and its Council of Ministers headed by the Chief Minister. The judgment of the Delhi High Court, delivered on 4 August 2016, travelled to this Court. When the Civil Appeals were heard, a Bench consisting of Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in an order dated 15 February 2017 was of the opinion that the appeals should be heard by a Constitution Bench as substantial questions of law about the interpretation of Article 239AA of the Constitution are involved. 2 This batch of cases is about the status of Delhi, after the Sixty-ninth constitutional amendment1, but more is at stake. These cases involve vital questions about democratic governance and the role of institutions in fulfilling constitutional values. The Constitution guarantees to every individual the freedom to adopt a way of life in which liberty, dignity and autonomy form the core. The Constitution pursues a vision of fulfilling these values through a democratic polity. The disputes which led to these cases tell us how crucial institutions are to the realization of democracy. It is through them that the aspirations of a democratic way of life, based on the rule of law, are fulfilled. Liberty, dignity and autonomy are constraining influences on the power of the 1 The Constitution (Sixty Ninth Amendment) Act, 1991 4 PART A state. Fundamental human freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern. In a society such as ours, which is marked by a plurality of cultures, a diversity of tradition, an intricate web of social identity and a clatter of ideologies, institutional governance to be robust must accommodate each one of them. Criticism and dissent form the heart of democratic functioning. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision making positions within them. Hence, these cases are as much about interpreting the Constitution as they are about the role of institutions in the structure of democratic governance and the frailties of those who must answer the concerns of citizens. 3 In the first of a series of articles in the New York Times of 14 December 2017, David Brooks laments events which occurred in various parts of the world, casting a shadow on democracy. Liberal democracy seemed to triumph with the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa. 5 PART A Many of those aspirations are continuously under challenge. The foundation for addressing the aspirations of a democratic spring are reflected in Brooks’ article titled – ironically – “the Glory of Democracy”. Drawing from Thomas Mann’s “The Coming Victory of Democracy” (1938), he has this to say: “Democracy, Mann continues, is the only system built on respect for the infinite dignity of each individual man and woman, on each person’s moral striving for freedom, justice and truth. It would be a great error to think of and teach democracy as a procedural or political system, or as the principle of majority rule. It is a “spiritual and moral possession.” It is not just rules; it is a way of life. It encourages everybody to make the best of their capacities – holds that we have a moral responsibility to do so. It encourages the artist to seek beauty, the neighbour to seek community, the psychologist to seek perception, the scientist to seek truth. Monarchies produce great paintings, but democracy teaches citizens to put their art into action, to take their creative impulses and build a world around them. “Democracy is thought; but it is thought related to life and action.” Democratic citizens are not just dreaming; they are thinkers who sit on the town council. He quotes the philosopher Bergson’s dictum: “Act as men of thought, think as men of action.”2 While we have to interpret the Constitution in deciding this reference, it is well to remind ourselves that how citizens respond to their statesmen has a powerful role in giving meaning to the fine print of law. 2 David Brooks, “The Glory of Democracy”, The New York Times December 14, 2017), available at https://www.nytimes.com/2017/12/14/opinion/democracy-thomas-mann.html 6 PART B B Constitutional Morality 4 The Constitution was adopted in an atmosphere of expectation and idealism. The members of the Constituent Assembly had led the constitutional project with a commitment to the future of a nascent nation. “India’s founding fathers and mothers”, Granville Austin observes, “established in the Constitution both the nation’s ideals and the institutions and processes for achieving them”.3 These ideals were “national unity and integrity and a democratic and equitable society”4. The Constitution was designed “to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice”5. All this was to be achieved through a democratic spirit using constitutional and democratic institutions.6 5 Democracy is not limited to electing governments. It generates aspirations and inspires passions. Democracy is based on “the recognition that there is no natural source of authority that can exercise power over individuals”.7 When India attained independence, it faced a major dilemma. Democracy as an ideal had developed in the course of the nationalist struggle against colonial rule. Democratic political institutions were still to develop, at any rate fully: “Democracy emerged in India out of a confrontation with a power imposed from outside rather than an engagement with the contradictions inherent in Indian society … In the West, the democratic and industrial revolutions emerged together, 3 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), page xi 4 Ibid 5 Rajiv Bhagava (ed.), Politics and Ethics of the Indian Constitution, Oxford University Press (2008), at page 15 6 Granville Austin (Supra Note 3) 7 Pratap Bhanu Mehta, The Burden of Democracy, Penguin Books (2003), at pages 35-36 7 PART B reinforcing each other and slowly and steadily transforming the whole of society. The economic and social preconditions for the success of democracy grew along with, and sometimes in advance of, the political institutions of democracy. In India, the political argument for democracy was adopted by the leaders of the nationalist movement from their colonial rulers and adapted to their immediate objective which was freedom from colonial rule. The building of new political institutions took second place, and the creation of the economic and social conditions for the successful operation of those institutions, such as education, health care, and other social services, lagged well behind.”8 6 The framers of the Constitution were aware of the challenges which the newly instituted democracy could face. In his address to the Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”.9 To tackle these challenges, the Constitution envisaged the existence of a responsible and representative government. Provisions regarding administration of democracy were incorporated, in detail, into the Constitution by the members of the Constituent Assembly. Dr Ambedkar made an impassioned plea that the core values of Indian democracy, to be protected and sustained, ought to be guided by the presence of constitutional morality. 7 While moving the Draft Constitution in the Constituent Assembly on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote: “By constitutional
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