Executive Power of the Council of Ministers of Delhi [SC JUDGMENT]

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.) 

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 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 the Council of Ministers of Delhi:

197. We may note here that there is a serious contest with regard to the appreciation and interpretation of Article 239AA and Chapter VIII where it occurs. The learned counsel for the appellant would submit that the Government of NCT of Delhi has been conferred the executive power that coexists with its legislative power and the role of the Lieutenant Governor is controlled by the phrase ‘aid and advice’ of the Council of Ministers. The learned counsel for the respondents would submit with equal force that the Lieutenant Governor functions as the administrator of NCT of Delhi and the constitutional amendment has not diminished his administrative authority.

198. Analysing the provision, it is submitted by Dr. Dhawan and other senior counsel that the Government of Delhi is empowered under the Constitution to aid and advise the Lieutenant Governor in the exercise of its functions in relation to matters in respect of which the Delhi Legislative Assembly has the legislative power to make laws and the said aid and advice is binding on the Lieutenant Governor. Commenting on the proviso, it is earnestly canvassed that the words ‘difference on any matter’ has to be restricted to the field of any legislation or, at best, the difference in relation to the three excepted matters. For the said argument, inspiration has been drawn from Articles 73 and 163 of the Constitution. Elaborating the argument, it is contended that the reference of the matter to the President is made where there is doubt as to whether the aid and advice touches the realm of the excepted entries as stipulated under Article 239AA(3)(a) and nothing beyond. To buttress the point, heavy reliance has been laid on Ram Jawaya Kapur (supra) wherein the Court, while interpreting the provisions of Article 162 of the Constitution and delineating on the issue of the extent of the executive powers of the State, observed:

"7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down : 

"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws : 

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof." 

Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also.

Neither of these articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution..." 

[Underlining is ours] 

199. Drawing an analogy while interpreting the provisions of Article 239AA(3)(a) and Article 239AA(4) 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 and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. 

200. The 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. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words 'Part C States' were substituted by the words 'Union Territories', the word 'State' in the proviso to Article 73 cannot be read to mean Union Territory as such an interpretation would render the scheme and purpose of Part VIII (Union Territories) of the Constitution infructuous.

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

U. Constitutional renaissance

V. The conclusions in seriatim