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:
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:
108. The Constituent Assembly, while devising the federal character
of our Constitution, could have never envisaged that the Union Government and
the State Governments would work in tangent. It could never have been the
Constituent Assembly’s intention that under the garb of quasifederal tone of
our Constitution, the Union Government would affect the interest of the States.
Similarly, the States under our constitutional scheme were not carved as
separate islands each having a distinct vision which would unnecessarily open the
doors for a contrarian principle or gradually put a step to invite anarchism.
Rather, the vision enshrined in the Preamble to our Constitution, i.e., to
achieve the golden goals of justice, liberty, equality and fraternity, beckons
both the Union Government and the State Governments, alike. The ultimate aim is
to have a holistic structure.
109. The aforesaid idea, in
turn, calls for coordination amongst the Union and the State Governments. The
Union and the States need to embrace a collaborative/cooperative federal
architecture for achieving this coordination.
110. Corwin, an eminent thinker,
in the context of the United States, coined the term 'Collaborative Federalism'
and defined it as:
“...the National Government and the States are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government.”
Edward S. Corwin, The Passing of Dual Federalism, 36 VA.L.REV. 1, 4 (1950)
111.
The U.S. Supreme Court in Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 525 – 26 (1937) propounded that a State
Unemployment Statute had not been coerced by the adoption of the Social
Security Act and the United States and the State of Alabama are not alien
governments but they coexist within the same territory. Unemployment within it is their common concern. The U.S. Supreme Court further observed that the two statutes embody a
cooperative legislative effort by the State and National governments for
carrying out a public purpose common to both, which neither could fully achieve
without the cooperation of the other and the Constitution does not prohibit such
cooperation.
112. Geoffrey Sawer proposes that cooperative federalism is evidenced
by the following characteristics:‘each of the parties to the arrangement has a reasonable degree
of autonomy, can bargain about the terms of cooperation, and at least if driven
too hard, decline to cooperate’.
Geoffrey Sawer, Modern Federalism (Pitman Australia, 1976), 1.
113. Later, Cameron and Simeon
described "collaborative federalism," as:
“[T]he process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the governments and the territories acting collectively.”
Cameron, D. and Simeon, R. 2002. Intergovernmental relations in Canada: The emergence of collaborative federalism. Publius , 32(2):49– 98
Although the said
statement of law may not be strictly applicable, yet the need for cooperation to
sustain the federal structure has its own importance as an idea.
114. Thus, the Union and the
State Governments should always work in harmony avoiding constitutional
discord. In such a collaboration, the national vision as set out in the Preamble
to our Constitution gets realized. The methods and approach
for the governments of the Union and the States may sometimes be different but
the ultimate goal and objective always remain the same and the governments at
different levels should not lose sight of the ultimate objective. This constitutional
objective as enshrined in the Constitution should be the guiding star to them
to move on the path of harmonious coexistence and interdependence. They are the
basic tenets of collaborative federalism to sustain the strength of
constitutional functionalism in a Welfare State.
115. In a Welfare State, there
is a great necessity of collaborative federalism. Martin Painter, a leading
Australian proponent of collaborative federalism, lays more stress on negotiations
for achieving common goals amongst different levels of governments and, thus,
says:
“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.”
Martin Painter, Collaborative
federalism: Economic reform in Australia in the 1990s. Cambridge University
Press, 2009.
116. In
the Australian context, Prof. Nicholas Aroney in his book, Prof. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution, 2009 has said:
"Rather than displaying a strictly defined distribution of responsibility between two or more “coordinate” levels of government, federal systems tend in practice to resemble something more like a “marble cake”, in which governmental functions are shared between various governmental actors within the context of an evershifting set of parameters shaped by processes of negotiation, compromise and, at times, cooperation.”
117. Thus, the idea behind the concept of collaborative
federalism is negotiation and coordination so as to iron out the differences
which may arise between the Union and the State Governments in their respective
pursuits of development. The Union Government and the State Governments should endeavour
to address the common problems with the intention to arrive at a solution by
showing statesmanship, combined action and sincere cooperation. In
collaborative federalism, the Union and the State Governments should express
their readiness to achieve the common objective and work together for achieving
it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept
has to be borne in mind when both intend to rely on the constitutional
provision as the source of authority. We are absolutely unequivocal that 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. We may hasten to add
that this idea of collaborative federalism would be more clear when we
understand the very essence of the special status of NCT of Delhi and the power
conferred on the Chief Minister and the Council of Ministers on the one hand
and the Lieutenant Governor on the other by the Constitution.
118. The idea of
cooperative/collaborative federalism is also not new to India. M.P. Jain in his
book, M. P. Jain, Some aspects of Indian federalism, 1968 in a different manner,
sets forth the perception thus:
“Though the Constitution provides adequate powers to the Centre to fulfil its role, yet, in actual practice, the Centre can maintain its dynamism and initiative not through a show of its powers — which should be exercised only as a last resort in a demonstrable necessity — but on the cooperation of the States secured through the process of discussion, persuasion and compromises. All governments have to appreciate the essential point that they are not independent but interdependent, that they should act not at crosspurposes but in union for the maximisation of the common good.”
119. In State of Rajasthan and others v. Union of India, (1978) 1 SCR 1 the Court took
cognizance of the concept of cooperative federalism as perceived by G. Austin
and A.H Birch when it observed:
“Mr. Austin thought that our system, if it could be called federal, could be described as "cooperative federalism." This term was used by another author, Mr. A.H. Birch (see: Federalism, Finance and Social Legislation in Canada, Australia and the United States p. 305), to describe a system in which:
“...the practice of administrative cooperation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments and the fact that the general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions"... ”
120. We have dealt with
the conceptual essentiality of federal cooperation as that has an affirmative
role on the sustenance of constitutional philosophy. We may further add that
though the authorities referred to hereinabove pertain to Union of India and
State Governments in the constitutional sense of the term “State”, yet the
concept has applicability to the NCT of Delhi regard being had to its special
status and language employed in Article 239AA and other articles.
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