Judges: Dipak Misra, C.J.I., A.K. Sikri, A.M. Khanwilkar, Ashok Bhushan and Dr. D.Y. Chandrachud, JJ.

Facts:

Several writ petitions were filed in the Delhi High Court to address unresolved issues between the Lieutenant Governor (LG) of the National Capital Territory of Delhi (NCTD) and its Council of Ministers headed by the Chief Minister.

Delhi High Court, delivered its judgment on 4 August 2016, holding that since NCTD remains Union Territory, it was President who continues to administer it through the Central Government and his nominee, namely, Lieutenant Governor who enjoys overlapping powers. Against this judgment, appeals were filed before Supreme Court.

While hearing those appeals, a Bench consisting of Hon'ble Justice A K Sikri and Hon'ble Justice R K Agrawal, referred the matter to the Constitution Bench as substantial questions of law about the interpretation of Article 239AA of the Constitution were involved. This batch of cases is about the status of Delhi, after the Sixty-ninth Constitutional Amendment.

Issues:

(i) Whether NCT of Delhi should be treated like a Union Territory with the LG as its administrative head or as a Special State where the LG is bound by the advice of the Chief Minister?

Law:

Constitution of India - Article 239 - Talks about administration of Union territories.

Constitution of India - Article 239A - Talks about creation of local Legislatures or Council of Ministers or both for certain Union territories.

Constitution of India - Article 239AA - Special provisions with respect to Delhi.

Contentions:

Petitioners

(i) NCTD occupies a unique position in constitutional jurisprudence by virtue of insertion of Articles 239AA and 239AB vide the Constitution (69th Amendment) Act, 1991.

(ii) 69th Amendment and Government of the National Capital Territory Act, 1991 (hereinafter, 'GNCT Act') aimed at giving the residents of the NCTD, proper participation in the governance of NCTD.

(iii) Article 239AA of Constitution intended to completely eradicate any hierarchical structure which functionally placed LG of Delhi in a position superior to that of the Council of Ministers, especially with respect to the exercise of executive power.

(iv) Pursuant to Article 239AA of Constitution, a cabinet system of Government on the Westminster style was introduced in Delhi and the LG was made a titular head alone in respect of matters that were assigned to Legislative Assembly and the Council of Ministers.

(v) By the replacement of 'assist and advise' with the term of art 'aid and advice', the 69th Constitutional Amendment consciously obviated a requirement for the LG's concurrence and allowed the Council of Ministers created thereunder to govern the NCTD.

(vi) Article 239AA of Constitution must be interpreted as furthering the basic structure of the Constitution.

(vii) Proviso to Article 239AA(4) of Constitution is not meant for the LG to have a different view on the merits of the aid and advice that has been tendered by the Council of Ministers and is only meant to deal with situations where the aid and advice of the Council of Ministers is transgressing beyond the areas constitutionally prescribed to them.

Respondent

(i) Article 239AA of Constitution should be read in a strictly textual manner.

(ii) Article 239 of Constitution is an integral/inseparable part of the constitutional scheme envisaged for all Union Territories as provided for under Part VIII of the Constitution, and is to be read with Article 239AA for NCT of Delhi. Article 239 applies to all Union Territories including NCT of Delhi when read with Article 239AA.

(iii) Even when Article 239AA(3)(a) of Constitution stipulates that Legislative Assembly of Delhi shall have the power to legislate in respect of subject matters provided in List II and List III of the VIIth Schedule of Constitution, it specifically restricts the legislative powers of Legislative Assembly of Delhi to those subject matters which are "applicable to Union Territories".

(iv) Article 246(4) of Constitution provides that in relation to all Union Territories including Delhi and any other territory which is not a State, Parliament has power to make laws on any matter i.e., all subject matters contained in all three Lists of the VIIth Schedule.

(v) Proviso to Article 239AA(4) of Constitution re-enforces and recognises the ultimate/eventual responsibility and continuing control of the Union in relation to the administration of the Union Territory of Delhi.

(vi) Constitutional mandate under proviso to Article 239AA(4) of Constitution is that the Union would have overarching control in relation to all matters for the National Capital. There is no vestige of any exclusive Executive Power in the Council of Ministers of NCT of Delhi. The vestige of the Executive Power continues to remain in the President.

(vii) There are very few instances in which LG has made reference to President and in actual working LG neither withhold the files nor there is any other hindrance in decisions taken by GNCTD.

Analysis:

NCT of Delhi - Whether can be accorded status of State under present constitutional scheme

(i) Status of NCT of Delhi is sui generis, a class apart, and the status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of LG.

(ii) With the insertion of Article 239AA of Constitution by virtue of the 69th Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. It intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, (public order, police and land) and a mandate upon the LG to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.

(iii) The meaning of 'aid and advise' employed in Article 239AA(4) of Constitution has to be construed to mean that the LG of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the LG does not exercise his power under the proviso to Article 239AA(4).

(iv) The LG has not been entrusted with any independent decision-making power. He has to either act on the 'aid and advice' of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.

(v) The interpretative dissection of Article 239AA(3)(a) of Constitution reveals that the Parliament has the power to make laws for the NCTD with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List, viz., public order, police and land.

(vi) As a natural corollary, the Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.

Principles of representative governance

(i) 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.

(ii) Constitution of India has embraced the representative model of governance at all levels, i.e., local, State and the Union. Thus perceived, the people are the sovereign since they exercise the power of adult franchise that ultimately builds the structure of representative democracy.

Constitutional morality

(i) Constitutional morality implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals.

(ii) Constitutional morality acts as a check against lapses on the part of the governmental agencies and colourable activities aimed at affecting the democratic nature of polity.

Constitutional objectivity

(i) Constitution, in its grandness, resolutely embraces the theory of "checks and balances". This theory in turn, gives birth to the principle of "constitutional objectivity".

(ii) Constitution expects the organs of the State adorned by high constitutional functionaries that while discharging their duties, they remain alive to the allegiance they bear to the Constitution. Neutrality as envisaged under the constitutional scheme should guide them in the performance of their duties and functions under the Constitution. This is the trust which the Constitution reposes in them.

(iii) The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution.

(iv) It is not only the decision itself but also the process adopted in such decision making which should be in tune with constitutional objectivity. Therefore, the decision making process should never by-pass the established norms and conventions which are time tested and should affirm to the idea of constitutionalism.

Constitutional governance and the conception of legitimate constitutional trust

(i) Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties.

(ii) The word 'governance' when qualified by the term 'constitutional' conveys a form of governance/ government which adheres to the concept of constitutionalism. The said form of governance is sanctioned by the Constitution itself, its functions are consistent with the Constitution and it operates under the aegis of the Constitution. The concept of constitutional governance is a natural consequent of the doctrine of constitutional sovereignty.

(ii) Constitution of India, is an organic document that requires all its functionaries to observe, apply and protect the constitutional values spelt out by it. When such functionaries exercise their power under the Constitution, the sustenance of the values that usher in the foundation of constitutional governance should remain as the principal motto. There has to be implicit institutional trust between such functionaries.

Collective responsibility

(i) Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. This principle of collective responsibility is of immense significance in the context of 'aid and advice'.

(ii) If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the LG, then the concept of collective responsibility would stand negated.

Federal functionalism and democracy

(ii) Democracy and federalism are firmly imbibed in our constitutional ethos. Whatever be the nature of federalism present in the Indian Constitution, whether absolutely federal or quasifederal, the fact of the matter is that federalism is a part of the basic structure of our Constitution as every State is a constituent unit which has an exclusive Legislature and Executive elected and constituted by the same process as in the case of the Union Government. The resultant effect is that one can perceive the distinct aim to preserve and protect the unity and the territorial integrity of India. This is a special feature of the constitutional federalism.

(ii) Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full-fledged effect to both these concepts.

Collaborative federalism

(i) The vision enshrined in the Preamble, i.e., to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike.

(ii) Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious coexistence and interdependence so as to avoid any possible constitutional discord.

(iii) The Union and the State Governments should always work in harmony avoiding constitutional discord. The idea behind the concept of collaborative federalism is negotiation and coordination so as to work out the differences which may arise between the Union and the State Governments in their respective pursuits of development.

(iv) In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. Both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments.

Pragmatic federalism

(i) The concept of pragmatic federalism is self explanatory. It is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability.

(ii) It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve with the changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind.

Concept of federal balance

(i) Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments.

(ii) The principle of federal balance which is entrenched in the Constitution is that the Centre and the States must act within their own spheres. Thus, the role of the Court in ensuring the federal balance, as mandated by the Constitution, assumes great importance. It is so as the Court is the final arbiter and defender of the Constitution.

Interpretation of the Constitution

(i) While interpreting the provisions of the Constitution, the Courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution.

(ii) 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.

Purposive interpretation

(i) The literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention.

(ii) The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.

Constitutional culture and pragmatism

(i) The definition of the term 'constitutional culture' is to be perceived as set of norms and practices that breathe life into the words of the great document. The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflects the object and purpose of the Constitution. In order to promote and nurture this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of "constitutional pragmatism".

(ii) Exposition of judicial sensibility to the functionalism of the Constitution is called constitutional pragmatism.

Interpretation of Articles 239 and 239A

(i) Article 239 was brought into existence by the Constitution (7th Amendment) Act, 1956. Article 239(1), by employing the words 'shall', makes it abundantly clear that every Union territory is mandatorily to be administered by the President through an administrator unless otherwise provided by Parliament in the form of a law.

(ii) Article 239(1) also stipulates that the said administrator shall be appointed by the President with such designation as he may specify. Clause (2) thereafter, being a non-obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an administrator of a Union Territory which is adjacent and/or contiguous to the State of which he is the Governor.

(iii) The Governor of a State who is so appointed as an administrator of an adjoining UT shall exercise his functions as an administrator of the said UT independently and autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor.

(iv) Article 239A was brought into force by the Constitution (14th Amendment) Act, 1962. The Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30th May, 1987, the applicability of Article 239A stands limited to UT of Puducherry. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and Chandigarh. However, Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239A.

Interpretation of Article 239AA

(i) Articles 239AA and 239AB of Constitution were inserted by the Constitution (69th Amendment) Act, 1991, which conceives of conferring special status on Delhi.

Status of NCT of Delhi

(i) As far as the LG of Delhi is concerned, as per Article 239AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers.

(ii) However, this is subject to the proviso contained in Article 239AA(4) which gives the power to the LG that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision.

(iii) This proviso to clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4) of Constitution.

Executive power of the Council of Ministers of Delhi

(i) Drawing an analogy while interpreting the provisions of Article 239AA(3)(a) and Article 239AA(4) of Constitution would reveal that the executive power of the Government of NCT of Delhi is conterminous with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List.

(ii) Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power.

(iii) Legislative power conferred upon the Delhi Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions.

Essence of Article 239AA of the Constitution

(i) The insertion of Articles 239AA and 239AB which specifically pertain to NCT of Delhi is reflective of the intention of the Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239A of Constitution is singularly applicable as on date.

(ii) The 69th amendment highlights the uniqueness attributed to Delhi with the aim that the residents of Delhi have a larger say in how Delhi is to be governed. The real purpose behind the Constitution (69th Amendment) Act, 1991, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution.

(iii) For paving the way to realize this real purpose, it is necessary to give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of the Constitution are reinforced in NCT of Delhi in their truest sense. The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi.

(iv) The stark difference in the language of Article 239A(1) and that of Article 239AA(2) is that while the former uses the word 'may' which makes it a mere directory provision with no obligatory force, the later by using the word 'shall', makes it mandatory for the Parliament to create by law a Legislative Assembly for the NCTD.

(v) Further, Article 239AA(2)(a) of Constitution declares very categorically that the members of the Legislative Assembly of the NCT of Delhi shall be chosen by direct election from the territorial constituencies in the NCT of Delhi.

(vi) There is no provision in the context of the Legislative Assembly of the NCT of Delhi as per which members can be nominated to the Legislative Assembly. This was a deliberate design by the Parliament. This difference is highlighted to underscore and emphasize the intention of the Parliament, while inserting Article 239AA, to treat the Legislative Assembly of the NCT of Delhi as a set of elected representatives of the voters of the NCT of Delhi and to treat the government of the NCT of Delhi as a representative form of government.

(vii) It is evident from Article 239AA(3) that the Parliament has the power to make laws for the NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List, except matters with respect to entries which have been explicitly excluded from Article 239AA(3)(a).

(viii) Article 239AA(4) stipulates a Westminster style cabinet system of government for the NCT of Delhi where there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the LG in the exercise of his functions in relation to matters with respect to which the Delhi Legislative Assembly has power to enact laws, except in matters in respect of which the LG is required to act in his discretion.

(ix) The proviso to clause (4) stipulates that in case of a difference of opinion on any matter between the LG and his Ministers, the LG shall refer it to the President for a binding decision.

(x) Further, pending such decision by the President, in any case where the matter, in the opinion of the LG, is so urgent that it is necessary for him to take immediate action, the proviso makes him competent to take such action and issue such directions as he deems necessary.

(xi) A conjoint reading of Article 239AA(3)(a) and Article 239AA(4) reveals that the executive power of the Government of NCT of Delhi is co-extensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List.

(xii) Article 239AA(3)(a) reserves the Parliament's legislative power on all matters in the State list and Concurrent list, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters.

(xiii) On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have co-extensive executive powers.

(xiv) Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is co-extensive with the Parliament's legislative power.

(xv) Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if it is said that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers.

(xvi) Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239AA(3)(a).

(xvii) Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution.

(xviii) The words 'any matter' occurring in the proviso to Article 239AA(4) does not necessarily need to be construed to mean 'every matter'. The word 'any' occurring in a statute or constitutional provision is not to be mechanically read to mean 'every' and the context in which the word has been used must be given due weightage so as to deduce the real intention and purpose in which the word has been used.

(xix) The power of the LG under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the LG keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government.

(xx) The LG need not, in a mechanical manner, refer every decision of his Ministers to the President. There has to be some valid grounds for the LG to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism.

(xxi) As per the 1991 Act and Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apart, there is no provision for concurrence. He has the authority to differ. But it cannot be difference for the sake of difference. It cannot be mechanical or in a routine matter.

(xxii) The difference of opinion should never be based on the perception of "right to differ" and similarly the term "on any matter" should not be put on such a platform as to conceive that as one can differ, it should be a norm on each occasion. The difference must meet the concept of constitutional trust reposed in the authority and there has to be objective assessment of the decision that is sent for communication and further the rationale of difference of opinion should be demonstrable and it should contain sound reason.

(xxiii) At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State.

Government of NCTD Act, 1991 and the Transaction of Business of the Government of NCTD Rules, 1993

(i) 1991 Act was brought into existence for supplementing the constitutional provision and also to take care of incidental matters that are germane to Article 239AA of Constitution.

(ii) Section 41 of the 1991 Act shows that the LG 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 quasi-judicial functions.

(iii) LG 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 Article 239AA(3)(a).

(iv) Section 42 of the 1991 Act deals with the aid and advice tendered by the Council of Ministers to the LG. The 'aid and advice' given by the Council of Ministers is binding on the LG so long as the LG does not exercise the power conferred upon him by the proviso to Article 239AA(4) of Constitution and refer the matter to the President in exercise of that power for his ultimate binding decision.

(v) 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 LG and the Council of Ministers.

(vi) In exercise of the powers conferred under the provision, the President has framed the Transaction of Business of the Government of NCTD Rules, 1993. The 1991 Act and the TBR, 1993, when read together, reflect the scheme of governance for the NCT of Delhi.

(vii) Section 45 of the 1991 Act is identical and analogous to Article 167 of Constitution which makes it obligatory for the Chief Minister of the NCT of Delhi to communicate to the LG all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation.

(viii) The real purpose of such communication is not to obtain concurrence of the LG 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 LG 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 LG to exercise the power conferred upon him by the proviso to Article 239AA(4) of Constitution.

(ix) The Transaction of Business Rules, 1993 stipulates the procedure to be followed by the LG in case of difference between him and his Ministers. The LG and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the LG must work harmoniously with his Ministers and must not seek to resist them every step of the way.

(x) The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AAA of Constitution.

(i) A conjoint reading of the 1991 Act and the TBR, 1993 formulated in pursuance of Section 44 of the 1991 Act divulges that the LG of Delhi is not a titular head, rather he enjoys the power of that of an administrator appointed by the President under Article 239AA of Constitution.

(xi) 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 LG as the nominee and appointee of the President on the other, who are required to function in harmony within the constitutional parameters.

(xii) In the said scheme of things, the LG should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator.

Constitutional renaissance

(i) Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its spirit and silence with a sense of reawakening to the vision of the great living document is, in fact, constitutional renaissance.

(ii) The goal is to avoid any disharmony and anarchy. Sustenance of constitutionally conferred trust, recognition and acceptance of the principle of constitutional governance, adherence to the principles and norms and the constitutional conduct having regard to the elevated guiding precepts stated in the Preamble will tantamount to realization of the feeling of constitutional renaissance

Conclusions:

(i) Status of NCT of Delhi is sui generis, a class apart, and the status of the LG of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of LG.

(ii) Article 239AA of Constitution envisaged a representative form of Government for the NCT of Delhi. It intends to provide for the NCT, a directly elected Legislative Assembly having legislative powers over matters falling within the State List and the Concurrent List, barring those excepted and a mandate upon the LG to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.

(iii) LG has not been entrusted with any independent decision-making power. He has to either act on the 'aid and advice' of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.

(iv) Article 239AA(3)(a) of Constitution reveals that the Parliament has the power to make laws for the NCTD with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List, viz., public order, police and land.

(v) Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded.

(vi) GNCTD Act, 1991 had been enacted by Parliament in pursuance of the legislative authority conferred upon it by Article 239AA(7a) of Constitution. The President had made the Transaction of Business Rules for the NCT as contemplated in the GNCTD Act, 1991.

(vii) Section 41 of the GNCTD Act indicates that in matters which lie outside the legislative powers entrusted to the legislative assembly and where there had been an entrustment or delegation of functions by the President to the LG under Article 239 of Constitution and on matters where the LG exercises his own discretion by or under any law, he was not subject to the aid and advice of the Council of Ministers.

(viii) Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i).

(ix) Under the TBR, 1993 the LG must be kept duly apprised on all matters pertaining to the administration of the affairs of the NCT. The duty to keep the LG duly informed and apprised of the affairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD Act, 1991 and the TBR, 1993.

(x) Neither Article 239AA of Constitution nor the provisions of the Act and Rules require the concurrence of the LG to a decision which had been taken by the Council of Ministers. Rule 14 of the TBR, 1993 indicates that the duty is to inform and not seek the prior concurrence of the LG.

(xi) However, in specified areas which fall under Rule 23 it has been mandated that the LG has to be apprised even before a decision is implemented.

Important Precedents:

(i) NDMC v. State of Punjab MANU/SC/0760/1997

(ii) Shamsher Singh v. State of Punjab and Anr. MANU/SC/0073/1974