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
J. Pragmatic 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
J. Pragmatic federalism:
121. In this context, we may also deal with an ancillary issue, namely,
pragmatic federalism. To appreciate the said concept, we are required to
analyse the nature of federalism that is conceived under the Constitution. Be
it noted, the essential characteristics of federalism like duality of
governments, distribution of powers between the Union and the State Governments,
supremacy of the Constitution, existence of a written Constitution and most
importantly, authority of the Courts as final interpreters of the Constitution
are all present under our constitutional scheme. But at the same time, the Constitution
has certain features which can very well be perceived as deviations from the
federal character. We may, in brief, indicate some of these features to
underscore the fact that though our Constitution broadly has a federal
character, yet it still has certain striking unitary features too. Under Article
3 of the Constitution, the Parliament can alter or change the areas, boundaries
or names of the States. During emergency, the Union Parliament is empowered to
make laws in relation to matters under the State List, give directions to the
States and empower Union officers to execute matters in the State List. That
apart, in case of inconsistency between the Union and the State laws, the Union
Law shall prevail. Additionally, a Governor of a State is empowered to reserve the bill
passed by the State Legislature for consideration of the President and the
President is not bound to give his assent to such a bill. Further, a State
Legislature can be dissolved and President’s rule can be imposed in a State
either on the report of the Governor or otherwise when there is failure of the constitutional
machinery in the State.
122. We have referred to the
above aspects to lay stress on the 'quasifederal' nature of our Constitution
which has been so held by the Court in many a decision. We may state that these
theoretical concepts are to be viewed from the practical perspective. In S.R. Bommai’s case, while interpreting
Article 356, the Court observed:
“That is why the Constitution of India is differently described, more appropriately as 'quasifederal' because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.”
123. Thus, the need is to understand the thrust and implication of
a provision. To put it differently, the acceptance of 'pragmatic federalism' is
the need of the day. One aspect needs to be clarified. The acceptance of the
said principle should not be viewed as a simplistic phenomenon entrenched in
innocence. On the contrary, it would require disciplined wisdom on the part of
those who are required to make it meaningful. And, the meaning, in
essentiality, shall rest on pragmatic orientation.
124. The expression 'pragmatic
federalism' in the Indian context has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein he
observes:
“It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of Governmental powers of State and Central Governments, is overlaid by strongly 'unitary' features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government the executive power of appointing certain Constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Government in emergency situations, vide Articles 352 to 360 of the Constitution.”
125.
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.
126. 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.
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