No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11887 Of 2018
(arising out of SLP (C) No. 8249 of 2018)
K. LAKSHMINARAYANAN ...APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO.11888 Of 2018
(arising out of SLP (C) No. 8224 of 2018)
S. DHANALAKSHMI ...APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
Leave granted.
These two appeals have been filed against the common
2
judgment of Madras High Court dated 22.03.2018 by which the
writ petitions filed by the appellants questioning the
nominations made by the Central Government in exercise of
power under Section 3(3) of the Government of Union
Territories Act, 1963 (hereinafter referred to as “Act,
1963”), to the Legislative Assembly of Union Territory of
Puducherry has been dismissed.
2.The background facts leading to filing of the writ
petitions giving rise to these appeals are as follows:
2.1Part VIII of the Constitution of India dealing with
the Union Territories was amended by Constitution
(Fourteenth Amendment) Act, 1962 by inserting
Article 239A, which provides for “creation of local
Legislatures or Council of Ministers or both for
certain Union Territories.” Article 239A provided
that Parliament, may by law, create for the Union
Territory of Pondicherry, a body, whether elected or
partly nominated and partly elected, to function as
a Legislature for the Union Territory, or a Council
of Ministers, or both with such constitution, powers
and functions, in each case, as may be specified in
the law. After the above Constitutional amendment
3
inserting Article 239A, the Parliament enacted
Government of Union Territories Act, 1963 to provide
for Legislative Assembly and Council of Ministers
for certain Union Territories and for certain other
matters.
2.2At the time of commencement of Act, 1963, there were
large number of Union Territories, which were to be
governed by the Act, 1963. Gradually, several Union
Territories were upgraded to the status of a State
and as on date, the definition of Union Territories
under Section 2(h) defines “Union Territory” as the
Union Territory of Puducherry. Section 3 of the
Act, 1963 provides for Legislative Assemblies for
Union territories and their composition. According
to Section 3(2), the total number of seats in the
Legislative Assembly of the Union territory to be
filled by persons chosen by direct election shall be
thirty and as per Section 3(3), the Central
Government may nominate not more than three persons,
not being persons in the service of Government, to
be members of the Legislative Assembly of the Union
territory.
2.3Election for filling thirty seats in the Legislative
4
Assembly of Puducherry was held in the year 2016.
Indian National Congress, who bagged fifteen out of
thirty seats with support of DMK and one independent
candidate has formed the Government in Puducherry.
Writ Petition (C) No. 16275 of 2017 as K.
Lakshminarayanan Vs. Union of India & Anr. was filed
in the Madras High Court praying for a writ of
mandamus forbearing the respondents from in any
manner nominating or filling up the nominated seats
of Members for the Puducherry Legislative Assembly
except with the consultation and choice of the
elected Council of Ministers. The writ petition was
filed on 27.06.2017. The Government of India,
Ministry of Home Affairs had issued a notification
on 23.06.2017 nominating Shri V. Saminathan, Shri
K.G. Shankar and Shri S. Selvaganabathy as members
of the Legislative Assembly of the Union Territory
of Puducherry. An application for amendment was
filed in the writ petition praying for quashing the
notification dated 23.06.2017. Another Writ
Petition (C) No. 18788 of 2017 – S. Dhanalakshmi Vs.
Union of India & Ors. was filed in the Madras High
Court praying for following reliefs:
5
“Writ of Certiorarified Mandamus calling for
the records on the file of the third
respondent relating to the impugned
Notification bearing Ref. No.
F.No.U11012/1/2014UTL dated 23062017 and
quash the same and consequently direct the
respondents 1 to 3 to nominate the members to
the Puducherry Legislative Assembly only with
the consultation and choice of the elected
Council of Ministers and pass such further or
other orders and thus render justice”.
2.4On 13.11.2017, the Secretary of Puducherry
Legislative Assembly communicated the decision of
the Speaker of the Legislative Assembly that the
nominated members could not be recognised as members
of the Assembly, having been appointed in
contravention of the Constitution and the Act, 1963.
The communication dated 13.11.2017 was challenged by
three nominated members by filing three separate
writ petitions being Writ Petition Nos. 29591, 29592
and 29593 of 2017. All the writ petitions, i.e.
Writ Petition No. 16275 of 2017, Writ Petition No.
18788 of 2017 and Writ Petitions No. 29591, 29592
and 29593 of 2017 were heard and decided by Division
Bench of Madras High Court vide its judgment dated
22.03.2018. The Writ Petition Nos. 16275 of 2017
and 18788 of 2017 challenging the notification dated
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23.06.2017 has been dismissed, whereas the Writ
Petition Nos. 29591, 29592 and 29593 have been
allowed. Two separate but concurring judgments have
been delivered by Division Bench of Madras High
Court. Operative portion of the judgment delivered
by Justice M. Sundar, with which judgment, Chief
Justice expressed absolute agreement, was to the
following effect:
“W.P. No. 16275 of 2017 filed by the Whip and
W.P. No. 18788 of 2017 filed by PIL
petitioner are dismissed. Writ petitions,
being W.P. Nos. 29591 to 29593 of 2017 filed
by nominated MLAs are allowed. Considering
the nature of the matter and in the light of
the trajectory this litigation has taken,
there shall be no order as to costs.
Consequently, connected miscellaneous
petitions are closed.”
2.5Against the aforesaid Division Bench judgment of
Madras High Court dated 22.03.2018, only two appeals
have been filed, one by K. Lakshminarayanan and
other by S. Dhanalakshmi challenging the judgment of
Division Bench by which Writ Petition No. 16275 of
2017 has been dismissed and another appeal has been
filed against the judgment of Division Bench in Writ
Petition No. 18788 of 2017 by which writ petition
was dismissed. In so far as judgment of Division
7
Bench in Writ Petitions Nos. 29591, 29592 and 29593
of 2017 filed by three nominated MLAs, by which
their writ petitions were allowed quashing the
decision of the Speaker dated 23.11.2017, no appeals
have been filed.
3.We have heard Shri Kapil Sibal and Shri Salman Khurshid,
learned senior counsel appearing for the appellants. We have
heard Shri K.K. Venugopal, learned Attorney General for the
Union of India. Shri Ranjit Kumar, learned senior counsel has
been heard for the respondents.
4.Shri Kapil Sibal challenging the nominations made by the
Central Government has raised various submissions. Shri Sibal
submits that the Government of Puducherry has vital interest
in the constitution of the Assembly, since it enjoys the
confidence of Legislative Assembly and accountable to the
people. The Government of Puducherry cannot be a stranger in
the nominations made to the Assembly. He submits that
nominations of the members of the Assembly must emanate from
the Government of Puducherry and should have concurrence of
the Government. It was open for the Central Government to
adopt any fair procedure for nominating the members. The
nominees could have been originated from Government of
8
Puducherry. The President could have asked the names from the
Government of Puducherry. He submits that let this Court
decide on a valid procedure, which is to be adopted while
making nominations by Central Government in the Legislative
Assembly of Puducherry. He further submits that there has
been at least six occasions when elected Government of
Puducherry was consulted before nominating the members in the
Legislative Assembly by the Central Government. In the year
2001, when Lieutenant Governor without consulting the
Government of Puducherry forwarded the names for nomination to
the Assembly, objection was raised by the Government of
Puducherry and the proposed list of nominated members was
referred back to the Lieutenant Governor for lack of
consultation with the elected Government. He submits that
earlier incidents when the Government of Puducherry was
consulted before nomination has taken shape of a
constitutional convention, which is nothing but a
constitutional law to be followed by all concerned. He
submits that while making nominations vide notification dated
23.06.2017, the above constitutional convention has not been
followed, which renders the nomination illegal and
unsustainable. He further submits that in the counter
affidavit filed by the Union of India before the High Court,
9
it was stated that Lieutenant Governor has not sent any
nominations to the Central Government and Central Government
on its own has made nominations under Section 3(3) of the Act,
1963. Shri Kapil Sibal submits that the expression “Central
Government” as occurring in Section 3(3) of the Act, 1963 has
not been correctly understood by the High Court. He submits
that according to the definition given under Section 3(8) of
the General Clauses Act, 1897, the Central Government means
the President and include in relation to the administration of
a Union Territory, the administrator thereof. It is submitted
that the President has framed Rules of Business of the
Government of Puducherry, 1963, Rule 4 of which Rules is
relevant for the present case. It is submitted that as per
the Business Rules, it is the administrator, who was required
to make nominations that too after consultation of Council of
Ministers. Shri Sibal refers to Rule 4(2) and Rule 48 of the
Business Rules to buttress his submission. It is submitted
that the nomination to Legislative Assembly is fully covered
by expression “remaining business of the Government” as
occurring in Rule 4(2). Therefore, Rule 4(2) read with
Chapter IV of the Rules of Business, cover the entire gamut of
executive power exercisable by the President under Article 239
of the Constitution. Since Section 3(3) of the Act, 1963
10
refers to “Central Government”, thereby indicating exercise of
power in terms of Article 239 of the Constitution, Rule 4(2)
read with Chapter IV of the Rules of Business of the
Government of Puducherry would apply. Therefore, the power to
nominate members under Section 3(3) of the Act, 1963 has to
necessarily involve the administrator acting in accordance
with Chapter IV.
5.Shri Sibal further submits that in event interpretation
is accepted that the Government of Puducherry has no role to
play in the nominations of members to Legislative Assembly, it
is deestablishing cooperative federalism. It is submitted
that federalism has been recognised as a basic feature of the
Constitution and it is Government, which is democratically
formed and reflect the will of the people and responsible to
the Legislature, who has to initiate and concur in the members
to be nominated in the Legislative Assembly. In the
representative democracy, the Government is not a stranger to
the process of nomination. One more submission which has been
pressed by Shri Sibal is that even though nominated members
may have right to vote in the proceedings of Assembly there
are two exceptions to such right of vote, i.e., (i) voting on
budget, and (ii) voting on noconfidence motion against the
Government. He submits that nominated members shall have no
11
right to vote in above two subjects. Shri Kapil Sibal has
further very candidly in his submission, stated that he is not
pursuing the challenge to Section 3(3) of the Act, 1963 nor he
is carrying further the submission made before the High Court
on the ground of eligibility of members, who have been
nominated in the Legislative Assembly. Shri Sibal has placed
reliance on various judgments of this Court, which shall be
referred to while considering the submissions in detail.
6.Shri K. K. Venugopal, learned Attorney General replying
the submissions of Shri Sibal submits that the Union Territory
is a Territory of a Union in which Central Government can
nominate unless the Constitution or law provides for any
consultation of Government of Puducherry. According to
Article 239, it is the President, who has to administer Union
Territory. Lieutenant Governor, who is an administrator
appointed by the President to administer the Union Territory
of Puducherry, govern the Union Territory as per instructions
and directions of the President. Neither Lieutenant Governor
nor Legislative Assembly can assert themselves in governing
the Union Territory. The Act, 1963 is a law framed by
Parliament in exercise of power under Article 239A of the
constitution. The powers and functions of the Legislative
Assembly are such as specified in the Act, 1963. The
12
provision empowering nominations in the Legislative Assembly
by the Central Government in no manner affect the principle of
federalism or cooperative federalism. The Act, 1963 or any
Constitutional provision does not provide for any consultation
of Government of Puducherry for making nomination in the
Legislative Assembly by the Central Government. There are
large number of Constitutional provisions, which provide for
consultation, whereas no Constitutional provision provide for
consultation of Government of Puducherry in making nomination
by Central Government nor any such right of consultation, is
decipherable from the Act, 1963. Reading consultation in
nomination shall upset the Constitutional balance. Appellants
want to read the word “consultation” in Section 3(3) of Act,
1963, which has been consciously withheld. When the
provisions of Act, 1963 indicate a primacy of Central
Government, the submission that nomination should be made with
the concurrence of Government of Puducherry is wholly
unfounded. The Union Territory of Puducherry is wholly
subservient to the President.
7.Shri K.K. Venugopal further submits that Council of
Ministers of Government of Puducherry is a Agency devised by
President of India. Section 50 of Act, 1963 gives absolute
power to the President to issue any direction to the
13
Administrator and his Council of Ministers. It is submitted
that there is no kind of any limit in the extent of power as
envisaged under Section 50. Shri Venugopal referred to various
other statutes where provisions envisaged for issuing
directions by Central Government or other authorities. He
submits that in various statutory provisions, directions are
hedged by several conditions and in some of the statutes
consultation is also envisaged.
8.Shri Ranjit Kumar, learned senior counsel appearing for
nominated MLAs submits that the Constitution itself provides
that Legislative Assembly of Union Territory of Puducherry
shall be partly elected and partly nominated and Parliament
enacted Act, 1963, for both the elected and nonelected
members. He further submits that Section 14 of the Act, 1963
which deals with disqualification of members, does not
contemplate that if nomination is made without consultation of
Legislative Assembly, the members will be disqualified. Hence,
nonconsultation with Council of Ministers of Legislative
Assembly cannot be treated to be as any disqualification.
9.Shri Ranjit Kumar further submits that Section 33
provides that the Legislative Assembly of the Union territory
may make rules for regulating and conducting its business.
14
Similarly, Section 46 provides that the President shall make
the rules for allocation of business to the Ministers and for
the more convenient transaction of business. He submits that
in both the rules framed under Act, 1963 as well as Section
36, there is no rule providing consultation of the Council of
Ministers or Chief Minister before making any nomination in
the Legislative Assembly by the Central Government.
10.He further submits that Legislative Assembly has no power
to make any law to regulate nomination to be made in the
Assembly. It is only the Parliament who is empowered to make
law under Article 239A regulating constitution of the
Legislative Assembly. When the legislative power is not there
with the Union Territory of Puducherry, no executive power can
be exercised by the Legislative Assembly of the Puducherry. He
further submits that power of nomination which shall flow from
law making power unless Article 239A and legislative power
will be coextensive with the executive power.
11.Shri Kapil Sibal in his rejoinder submission replying the
submissions of learned Attorney General as well as Shri Ranjit
Kumar, submits that the appellants are questioning the
procedure adopted by Central Government for nomination. He
further reiterates that Central Government under Section 3(3)
15
of Act, 1963 is to mean the President who in turn delegated
his power to its Administrator, thus, nomination has to
emanate from Administrator who is to Act on the advise of the
Council of Ministers. He submits that the Rules of Business
framed by the President are Rules of Business both under
Article 239 as well as under Section 44 and under Section 46
of the Act, 1963, hence, the Rules of Business relate to
entire executive functions of the Government of Puducherry.
12.Learned counsel for the parties in support of their
respective submissions have relied on various judgments of
this Court which shall be referred to while considering the
submission in detail.
13.From the submissions raised by the learned for the
parties and the materials on record following are the main
issues which arise for consideration in these appeals:
(1)Whether the expression “Central Government” as
occurring in Section 3(3) of the 1963 Act means the
Administrator, hence, it is the Administrator who has to
exercise the power of nomination that too on the aid and
advise of the Council of Ministers of the Union Territory
of Puducherry?
(2)Whether the nomination in the Legislative Assembly of
the Puducherry is the business of the Government which has
16
to be transacted in accordance with Rule 4 subRule (2)
read with Rule 48 of the Rules of Business of the
Government of Puducherry, 1963. As per which Rule the
Administrator was required to consult either Council of
Ministers or Chief Minister before discharging his
functions under Rule 4(2)?
(3)Whether nomination by Central Government in the
Legislative Assembly without concurrence of Government of
Union Territory of Puducherry violates principles of
Federalism and cooperative Federalism?
(4)Whether there is a constitutional convention to
consult the Government of Puducherry before making any
nomination by the Central Government on the strength of
the fact that on six earlier occasions when the
nominations were made, the Central Government has
consulted the Government of Puducherry before making
nominations?
(5)Whether the Central Government while exercising its
power of nomination under Section 3(3) of 1963 Act is
obliged to consult the Council of Ministers/Chief Minister
of Government of Union Territory of Puducherry and the
nomination by Central Government can only be made with the
concurrence of the Government of Puducherry?
17
(6)Whether recommendations made by the Madras High Court
in so far as recommendations made in paragraph 5(iv) of
the impugned judgment is concerned, are unsustainable and
not in accordance with law?
(7)Whether the nominated members in the Legislative
Assembly shall have no voting right in two matters, i.e.,
(i) budget and (ii) no confidence motion against the
Government?
Issue No.1
14.The submission made by Shri Sibal is that the expression
“Central Government” used under Section 3(3) of the Act, 1963
means the administrator. In consequence, he contends that the
power of nomination in the Legislative Assembly of Puducherry
is to be exercised by the administrator on the aid and advise
of the Council of Ministers of Union Territory of Puducherry.
The Act, 1963 does not define the expression “Central
Government”. The provision of General Clauses Act, 1897 had
to be looked into to find out the definition of the expression
“Central Government”. Section 3(8) of the General Clauses
Act, 1897 defines the expression “Central Government”. The
18
relevant portion of Section 3(8) is as follows:
“3(8) “Central Government” shall,
(a)…………
(b)in relation to anything done or to be done
after the commencement of the Constitution, mean the
President; and shall include,
(i) ……………
(ii)……………
(iii)in relation to the administration of a
Union territory, the administrator thereof
acting within scope of the authority given to
him under article 239 of the Constitution;
15.In Section 3(8)(b) Central Government has been defined as
to “mean the President”. The next phrase used after the
semicolon is “and shall include”. The definition of Central
Government given in Section 3(8) is a restrictive and
exhaustive definition. When the definition uses the word
“mean the President”, the clear intention is that Central
Government is the President, the next phrase “and shall
include in relation to the administration of a Union
territory, the administrator thereof acting within the scope
of the authority given to him under article 239 of the
Constitution” has been added with a purpose and object.
Article 239 of the Constitution provide that save as otherwise
provided by Parliament by law, every Union territory shall be
19
administered by the President acting, to such extent as he
thinks fit, through an administrator to be appointed by him
with such designation as he may specify. As per definition of
Section 3(8)(b)(iii) administrator shall include in the
definition of Central Government when in relation to the
administration of a Union territory, the administrator thereof
acting within the scope of the authority given to him under
article 239 of the Constitution. Thus, the administrator will
be Central Government when he acts within the scope of the
authority given to him under article 239. Under Article 239,
Rules of Business have been framed as noticed above, which has
been brought on record as Annexure P1 to Civil Appeal of K.
Lakshminarayanan. Executive functions of the administrator as
contemplated by Rule 4(2) read with Rule 48 shall include a
variety of the executive functions, which he is authorised to
discharge. The executive functions may include: (i) the
business of executive functions in relation to the subjects on
which Legislative Assembly of the Union Territory of
Puducherry is entitled to make law; (ii) the executive
functions entrusted to the Government of Puducherry, to be
exercised in the name of the administrator,
entrusted/delegated under any Parliamentary law; (iii)
functions to be discharged by administrator under any special
20
or general order issued by the President of India; (iv)
functions to be discharged by administrator under the
instructions issued by the Central Government from time to
time. A perusal of the Rules of Business, which have been
framed under Article 239 as well as Section 46 of the Act,
1963 does not expressly indicate that in so far as power of
nomination to be exercised by the Central government under
Section 3(3), the administrator or Government of Puducherry
has been authorised or delegated any function in the above
regard. No order of the President or Central Government has
been brought on the record on the basis of which it can be
concluded that with regard to right of a nomination to be
exercised by the Central Government under Section 3(3) of Act,
1963, any function has been delegated, authorised or
instructed to the administrator. The definition of Central
Government given under Section 3(8)(b)(iii), which means the
President cannot be given a go bye to rely on the next
expression “shall include” the administrator. The context of
subject has to be looked into while finding out as to whether
in context of Section 3(3), the Central government shall mean
the President or the administrator.
16.This Court had occasion to interpret the definition
clause in Jagir Singh and Others Vs. State of Bihar and
21
Others, (1976) 2 SCC 942 . In the above case, the Court was
considering the definition of expression “owner” as defined
in Bihar Taxation on Passengers and Goods (Carried by Public
Service Motor Vehicles) Act, 1961. In para 11 of the
judgment, the definition has been extracted, which is to the
following effect:
“11. The expression “owner” is defined in the Bihar
Act in Section 2(d) thereof as follows:
“ ‘Owner’ means the owner of a public
service motor vehicle in respect of which a
permit has been granted by a Regional or State
Transport Authority under the provisions of
the Motor Vehicles Act, 1939 and includes the
holder of a permit under the said Act in
respect of a public service motor vehicle or
any person for the time being in charge of
such vehicle or responsible for the management
of the place of business of such owner.”
17.The definition of owner in the Bihar Act also used two
expression, first ‘Owner’ means the owner of a public service
motor vehicle and second it includes the holder of a permit
under the said Act in respect of a public service motor
vehicle or any person for the time being in charge of such
vehicle or responsible for the management of the place of
business of such owner. The provisions of Maharashtra Tax on
Goods (Carried by Road) Act, 1962 and other Acts were also
under consideration. In Maharashtra Act, the “operator” means
22
any person whose name is entered in the permit as the permit
holder or any person having the possession or control of such
vehicle. It was contended before the Court that words “or any
person for the time being in charge of such vehicle” in the
definition of “owner” indicate that the transport or booking
agencies which would take the public service motor vehicle on
hire would be owners within the definition of the word without
being permit holders in respect of these public service motor
vehicles. The contention to read definition in particular
manner was rejected by this Court. In paragraph Nos. 19 and
21, following has been held:
“19. The definition of “owner” repels the
interpretation submitted by the petitioners that the
definition means not only the owner who is the permit
holder but also a booking agency which may be in
charge of the vehicle without being a permit holder.
The entire accent in the definition of owner is on
the holder of a permit in respect of the public
service motor vehicle. It is the permit which
entitles the holder to ply the vehicle. It is because
the vehicle is being plied that the passengers and
consignors of goods carried by that vehicle become
liable to pay not only fare and freight to the owner
but also tax thereon to the owner. The words “or any
person for the time being in charge of such vehicle
or responsible for the management of the place of
business of such owner” indicate that the permit
holder will include any person who is in charge of
such vehicle of the permit holder or any person who
is responsible for the management of the place of
business of such owner. The owner cannot escape the
liability by stating that any person is for the time
being in charge of such vehicles, and, therefore,
such person is the owner and not the permit holder.
23
21. The definition of the term “owner” is exhaustive
and intended to extend the meaning of the term by
including within its sweep bailee of a public carrier
vehicle or any manager acting on behalf of the owner.
The intention of the legislature to extend the
meaning of the term by the definition given by it
will be frustrated if what is intended to be
inclusive is interpreted to exclude the actual
owner.”
18.It is further relevant to notice that definition clause
in Section 3 of the General Clauses Act, 1897 begins with the
expression “In this Act, and in all Central Acts and
Regulations made after the commencement of this Act, unless
there is anything repugnant in the subject or context”. Thus,
all definitions given under Section 3 are subject “unless
there is anything repugnant in the subject or context”. Thus,
the subject or context has to be looked into to apply the
definition given in Section 3(8)(b). This Court in Jagir
Singh (supra) has also held that while interpreting the
definition clause, the context, the collocation and the object
of words relating to such matter has to be kept in mind while
interpreting the meaning intended to be conveyed by the use of
the word under a circumstance. In paragraph No. 20 following
has been laid down:
“20. The general rule of construction is not only to
look at the words but to look at the context, the
collocation and the object of such words relating to
such matter and interpret the meaning according to
24
what would appear to be the meaning intended to be
conveyed by the use of the words under the
circumstances. Sometimes definition clauses create
qualification by expressions like “unless the context
otherwise requires”; or “unless the contrary
intention appears”; or “if not inconsistent with the
context or subjectmatter”. “Parliament would
legislate to little purpose,” said Lord Macnaghten in
Netherseal Co. v. Bourne (1889) 14 AC 228 , “if the
objects of its care might supplement or undo the work
of legislation by making a definition clause of their
own. People cannot escape from the obligation of a
statute by putting a private interpretation on its
language.” The courts will always examine the real
nature of the transaction by which it is sought to
evade the tax.”
19.Another judgment of this Court in Black Diamond Beverages
and Another Vs. Commercial Tax Officer, Central Section,
Assessment Wing, Calcutta and Others, (1998) 1 SCC 458 is also
relevant in the present context. In the above case, this
Court had occasion to consider the definition of “Sale price”
as occurring in Section 2(d) of West Bengal Sales Tax Act,
1954. The definition has been quoted in paragraph No.5 of the
judgment, which is to the following effect:
“5. The 1954 Act generally provides for levy of a
singlepoint tax at the first stage on commodities
notified under Section 25 of that Act. On the other
hand, the 1941 Act is a general statute providing for
multipoint levy of sales tax on commodities not
covered by the 1954 Act. Subclause ( d) of Section 2
of the 1954 Act reads as follows:
“2. (d) ‘saleprice’ used in relation to a
dealer means the amount of the money
consideration for the sale of notified
commodities manufactured, made or processed by
25
him in West Bengal, or brought by him into
West Bengal from any place outside West
Bengal, for the purpose of sale in West
Bengal, less any sum allowed as cash discount
according to trade practice, but includes any
sum charged for containers or other materials
for the packaging of notified commodities;”
20.The above definition also contain two expression means
and includes. The first part of the definition defines the
meaning of the word ‘saleprice’ as the amount of the money
consideration for the sale. This Court held that
interpretation of the first part of the definition in no way
control or affect the other part of the definition and include
other part. In paragraph Nos. 7 and 8, following has been
laid down:
“7. It is clear that the definition of “sale price”
in Section 2(d) uses the words “means” and
“includes”. The first part of the definition defines
the meaning of the word “sale price” and must, in our
view, be given its ordinary, popular or natural
meaning. The interpretation thereof is in no way
controlled or affected by the second part which
“includes” certain other things in the definition.
This is a wellsettled principle of construction.
Craies on Statute Law (7th Edn., 1.214) says:
“An interpretation clause which extends the
meaning of a word does not take away its
ordinary meaning…. Lord Selborne said in
Robinson v. BartonEccles Local Board AC at p.
801:
‘An interpretation clause of this kind
is not meant to prevent the word
26
receiving its ordinary, popular, and
natural sense whenever that would be
properly applicable, but to enable the
word as used in the Act … to be
applied to something to which it would
not ordinarily be applicable.’ ”
(emphasis supplied)
Therefore, the inclusive part of the definition
cannot prevent the main provision from receiving its
natural meaning.
8. In view of the above principle of construction,
the first part of the definition of sale price in
Section 2(d) of the 1954 Act must be given its own
meaning and the respondent’s counsel is therefore
right in urging that the first part of Section 2( d)
which is similar to the first part of Section 2( p) in
the Rajasthan Sales Tax Act, 1954, must be given the
same meaning given to similar words in Hindustan
Sugar Mills v. State of Rajasthan, (1978) 4 SCC 271 .
What the said meaning is we shall consider
separately. If, therefore, by virtue of Hindustan
Sugar Mills case the first part is to be interpreted
as bringing within its natural meaning the “freight
charges” then the contention for the appellants that
like “packaging charges” these “freight charges” must
have also been specifically included in Section 2( d)
cannot be accepted.”
21.Thus, it is clear that the definition of Central
Government, which means the President is not controlled by the
second expression “and shall include the administrator”. The
ordinary or popular meaning of the word “the President”
occurring in Section 3(8)(b) has to be given and the second
part of the definition shall not in any way control or affect
the first part of the definition as observed above. In the
27
definition of Central Government, an administrator shall be
read when he has been authorised or delegated a particular
function under the circumstances as indicated above. No
statutory rules or any delegation has been referred to or
brought on record under which the administrator is entitled or
authorised to make nomination in the Legislative Assembly of
the Union Territory of Puducherry. Thus, in the present case,
the definition of Central Government, as occurring in Section
3(3) of the Act, 1963 has to be read as to mean the President
and not the administrator. The issue is answered accordingly.
Issue No.2
22.Relying on Rule 4(2) of the Rules of Business of the
Government of Puducherry, 1963 (hereinafter referred to as
“Rules of Business”) read with Rule 48 it is contended that
business of Government in the nominations in the Legislative
Assembly is covered by Rule 4(2), hence, Administrator is
required to consult Council of Ministers or the Chief Minister
before taking any decision. The Rules of Business have been
framed by the President in exercise of the powers conferred by
Article 239 and the proviso to Article 309 of the
Constitution, Section 46 of the Act, 1963 and all other powers
28
enabling the President in this regard. In the Rules of
Business, Rule 2(f) means: “the Government of Puducherry”.
Rule 3 provides that the business of the Government shall be
transacted in accordance with these Rules. Rule 4 on which
reliance has been placed by Kapil Sibal is to the following
effect:
“4. (1) The business of the Government in relation to
matters with respect to which the Council is required
under section 44 of the Act to aid and advise the
Administrator in the exercise of his functions shall
be transacted and disposed in accordance with the
provisions of Chapter III.
(2) The remaining business of the Government shall be
transacted and disposed of in accordance with the
provisions of Chapter IV.
(3) Notwithstanding anything contained in subrule
(1) and subrule (2), prior reference in respect of
the matters specified in chapter V shall be made to
the Central Government in accordance with the
provisions of that Chapter.”
23.Rule 4(1) refers to the business of the Government in
relation to matters with respect to which the Council is
required under Section 44 of the Act to aid and advise the
Administrator in exercise of his functions. Section 44(1) of
the Act, 1963 is as follows:
“44. Council of Ministers. (1) There shall be a
―
Council of Ministers in each Union territory with the
Chief Minister at the head to aid and advise the
Administrator in the exercise of his functions in
relation to matters with respect to which the
Legislative Assembly of the Union territory has power
to make laws except in so far as he is required by or
29
under this Act to act in his discretion or by or
under any law to exercise any judicial or
quasijudicial functions:
Provided that, in case of difference of opinion
between the Administrator and his Ministers on any
matter, the Administrator shall refer it to the
President for decision and act according to the
decision given thereon by the President, and pending
such decision it shall be competent for the
Administrator in any case where the matter is in his
opinion so urgent that it is necessary for him to
take immediate action, to take such action or to give
such direction in the matter as he deems necessary.
a[ x x x x]
b[ x x x x]”
24.Section 44(1) relates to functions “in relation to
matters with respect to which the Legislative Assembly of the
Union Territory has power to make laws. There may be other
functions of the Government of Puducherry which do not pertain
to functions in relation to matters with respect to which
Legislative Assembly of Puducherry has power to make laws. For
example, under any Parliamentary law with respect to which
Legislative Assembly of Union Territory has no power to make
laws, any power delegated to the State Government is
authorised or delegated under the Parliamentary laws to
exercise any function.
25.Rule 4(2) obviously refers to “the remaining business of
the Government”, which is not covered by Rule 4(1). Rule 48 of
the Rules of Business refers to sub(2) of Rule 4. Rule 48 is
as follows:
30
“48. In regard to any matter referred to in subrule
(2) of rule 4 and in respect of which no specific
provisions has been made in the foregoing rules in
this Chapter, the Administrator may, if he deems fit
either consult his Council or the Chief Minister,
before exercising his powers or discharging his
functions in respect of that matter.”
26.As per Rule 48 with regard to matters referred to in
subrule (2) of Rule 4, the Administrator may, if he deems
fit, either consult his Council or the Chief Minister, before
exercising of his powers or discharging his functions in
respect of that matter. But the question which needs to be
answered for the present case is as to whether the nomination
of a member in the Legislative Assembly of Puducherry is
covered by expression “remaining business of the Government”.
The Government has been defined in Rule 2(f) as “the
Government of Puducherry”. The Government occurring in Rule
4(2) cannot be stretched to be Central Government. When
Section 3(3) of Act, 1963 empowers the Central Government to
nominate not more than three persons to the Legislative
Assembly of the Union Territory, it is the business of the
Central Government to make nominations as per Parliamentary
law.
27.The business of the Government as occurring in Rule 4 has
to be business which under any law is to be performed by the
31
Government of Puducherry. Article 239A of the Constitution
provides that Parliament may by law create a body, whether
elected or partly nominated and partly elected, to function as
a Legislature for the Union Territory or Council of Ministers
or both with such Constitution, powers and functions, in each
case, as may be specified in the law .
28.The expression 'law' used in Article 239A(1) is a
Parliamentary law. When the Constitution expressly provides
that it is the Parliament which may provide by law,
constitution of Legislature for the Union Territory, it is the
Parliament alone which can provide for constitution of
Legislative Assembly for Union Territory under the Act, 1963.
Section 3 does provide for constitution of Legislative
Assembly for Union Territory with thirty members to be elected
members and three members to be nominated by the Central
Government. When the Parliamentary law as envisaged by
Article 239A provides for the constitution of Legislative
Assembly of the Union Territory which also includes
nomination, the said constitution which also includes
nomination can not be the business of the Government of
Puducherry. The nominations of the members to the Legislative
Assembly of Puducherry thus can never be covered by expression
'remaining business of the Government' as occurring in Rule
32
4(2). When Rule 4(2) itself is not attracted in reference to
the nomination in the Legislative Assembly, there is no
occasion of applicability of Rule 48 that is consultation with
the Council of Ministers or the Chief Minister by the
Administrator. We, thus, do not find any substance in the
submission of Shri Kapil Sibal that nomination in the
Legislative Assembly in the Puducherry is the business of the
Government of Puducherry and is to be exercised in accordance
with Rule 4(2) read with Rule 48. The nomination in the
Legislative Assembly in the Puducherry is to be made by the
Central Government by virtue of Article 239A read with Section
3(3) of the Act, 1963.
29.Article 77 of the Constitution deals with “conduct of
business of the Government of India”. Article 77 subclause
(3) provides that “The President shall make rules for the more
convenient transaction of the business of the Government of
India, and for the allocation among Ministers of the said
business”. In exercise of the power under Article 77(3) the
President has made Government of India (Allocation of
Business) Rules, 1961 and the Government of India (Transaction
of Business) Rules, 1961. Rule 2 and Rule 3 subrule (1) of
Allocation of Business Rules which are relevant for this case
are to the following effect:
33
"2.Allocation of Business – The business of the
Government of India shall be transacted in the
Ministries, Departments, Secretaries and Officers
specified in the First Schedule to these rules (all
of which are hereinafter referred to as
“departments”).
3.Distribution of Subjects
(1)The distribution of subjects among the
departments shall be as specified in the Second
Schedule to these Rules and shall include all
attached and subordinate offices or other
organisations including Public Sector
Undertakings concerned with their subjects
and Subrules (2), (3) and (4) of this Rule.
xxx xxx xxx xxx
xxx xxx xxx xxx
xxx xxx xxx xxx
xxx xxx xxx xxx.”
30.The Second Schedule includes “Ministry of Home Affairs
(Grih Mantralaya), which has several departments from A to E.
B is “Department of States (Rajya Vibhag). Under heading (III)
Union Territories have been mentioned. Under Para 7 subclause
(b) Union of Territory of Pondicherry is mentioned. Relevant
extract of Second Schedule under the Ministry of Home Affairs,
Department of States is as follows:
"(III) Union Territories
7. Union of Territories with legislature:
(a) xxx xxx xxx xxx
(b) Union Territory of Pondicherry:
All matters falling within the purview of the
34
Central Government in terms of provisions contained
in Part VIII of the Constitution in so far as these
relate to the Union Territory of Pondicherry and the
Government of Union Territories Act, 1963 except all
such matters as have been under these rules
specifically been assigned to any other Ministry or
Department of the Government of India.”
31.Para 7(b) expressly provides that all matters falling
within the purview of the Central Government in terms of
provisions contained in Part VIII of the Constitution in so
far as these relate to the Union Territory of Puducherry and
the Government of Union Territories Act, 1963 are assigned to
the Department of States. Thus, under the Act, 1963 all
matters falling within the purview of the Central Government
including power of nomination given to the Central Government
under Section 3(3) are assigned under the Allocation of
Business Rules by the President of India to Ministry of Home
Affairs, Department of States. Thus, power under Section 3(3)
of Act, 1963 has to be transacted in the Ministry of Home
Affairs, Department of States. For Transaction of Business,
the President has framed Government of India (Transaction of
Business) Rules, 1961. Rule 3 of (Transaction of Business)
Rules, 1961 which is relevant is as follows:
"3.Disposal of Business by Ministries. Subject
to the provisions of these Rules in regard to
consultation with other departments and submission of
cases to the Prime Minister, the Cabinet and its
Committees and the President, all business allotted
to a department under the Government of India
35
(Allocation of Business) Rules, 1961, shall be
disposed of by, or under the general or special
directions of, the Ministerincharge.”
32.Thus, as per Transaction of Business Rules, the matter of
nomination in the Legislative Assembly of Puducherry not being
a matter in regard to consultation with other departments and
submission of the cases to the Prime Minister, the Cabinet and
its Committees and the President, the above business is to be
disposed of by or under the general or special orders or the
directions of the Ministerincharge that is Home Minister.
33.In view of the foregoing discussion, we are of the clear
opinion that nomination in the Legislative Assembly of
Puducherry is not the Business of the Government of
Puducherry. It is a business of Central Government as per
Section 3(3) of Act, 1963 which is to be carried out in
accordance with the Government of India (Allocation of
Business) Rules, 1961 and Government of India (Transaction of
Business) Rules, 1961. The issue is answered accordingly.
Issue No. 3
Whether Principles of Federalism or Cooperative Federalism has
been violated in the present case?
34.The Constitution of India is a written Constitution,
which came into being after long deliberations by the men of
eminence representing the aspirations and culture of our
36
ancient nation. Before Constitution makers, various
Constitutions of the world were there to be looked into,
incorporated and relied on. Our Constitution makers have
taken best part of the Constitution of different countries
including USA, Australia, Germany, Canada and Others. When
the draft Constitution was being debated in the Constituent
Assembly, one of the relevant issue to be deliberated,
pondered upon and decided was the nature of Indian
Constitution. Whether Constitution should be one, which is
being followed in Federal countries like USA or it should be a
Unitary Constitution, was deliberated and pondered. Dr. B.R.
Ambedkar, Chairman of the Drafting Committee after noticing
the characteristics of Unitary Constitution and Federal
Constitution categorically stated that draft Constitution is a
Federal Constitution. In the deliberation of 04.11.1948, Vol.
VII Page 33, following was said by Dr. B.R. Ambedkar;
“Two principal forms of the Constitution are known to
history one is called Unitary and the other
Federal. The two essential characteristics of a
Unitary Constitution are:(1) the supremacy of the
Central Polity and (2) the absence of subsidiary
Sovereign polities. Contrariwise, a Federal
Constitution is marked: (1) by the existence of a
Central polity and subsidiary polities side by side,
and (2) by each being sovereign in the field assigned
to it. In other words. Federation means the
establishment of a Dual Polity. The Draft
Constitution is, Federal Constitution inasmuch as it
establishes what may be called a Dual Polity. This
Dual Polity under the proposed Constitution will
consist of the Union at the Centre and the States at
37
the periphery each endowed with sovereign powers to
be exercised in the field assigned to them
respectively by the Constitution………..”
35.Dr. Ambedkar further said that there are marked
differences with the American Federation. He said that all
federal systems including the American are placed in a tight
mould of federalism. It cannot change its form and shape no
matter what are the circumstances. Our draft Constitution can
be both Unitary as well as Federal according to time and
circumstances. Dealing with the essential characteristics of
the Federal Constitution, Dr. Ambedkar Said:
“…………………. A Federal Constitution cannot but be a
written Constitution and a written Constitution must
necessarily be a rigid Constitution. A Federal
Constitution means division of Sovereignty by no less
a sanction than that of the law of the Constitution
between the Federal Government and the States, with
two necessary consequences (1) that any invasion by
the Federal Government in the field assigned to the
States and vice versa is a breach of the Constitution
and (2) such breach is a justiciable matter to be
determined by the Judiciary only………………….”
36.It is also relevant to notice that before the Constituent
Assembly, complaint was raised by the members that there is
too much of centralisation in the Union. Replying the above
complaint, Dr. Ambedkar clarified that legislative and
executive authority, is partitioned between the Centre and the
States.
37.Dr. Ambedkar in deliberations dated 25.11.1949, Vol. XI
38
Page 976 said:
“There is only one point of constitutional import to
which I propose to make a reference. A serious
complaint is made on the ground that there is too
much of centralization and that the States have been
reduced to Municipalities. It is clear that this view
is not only an exaggeration, but is also founded on a
misunderstanding of what exactly the Constitution
contrives to do. As to the relation between the
Centre and the States, it is necessary to bear in
mind the fundamental principle on which it rests. The
basic principle of Federalism is that the Legislative
and Executive authority is partitioned between the
Centre and the States not by any law to be made by
the Centre but by the Constitution itself. This is
what Constitution does. The States under our
Constitution are in no way dependent upon the Centre
for their legislative or executive authority. The
Centre and the States are coequal in this matter. It
is difficult to see how such a Constitution can be
called centralism. It may be that the Constitution
assigns to the Centre too large field for the
operation of its legislative and executive authority
than is to be found in any other federal
Constitution. It may be that the residuary powers are
given to the Centre and not to the States. But these
features do not form the essence of federalism. The
chief mark of federalism as I said lies in the
partition of the legislative and executive authority
between the Centre and the Units by the Constitution.
This is the principle embodied in our constitution.
There can be no mistake about it.
38.The nature and character of the Constitution came for
consideration before this Court in several Constitution
Benches, where this Court noted the fundamental feature of the
Constitution of India. A sevenJudge Constitution Bench of
this Court in Special Reference No.1 of 1964, AIR 1965 SC 745
held that essential characteristics of federalism is the
39
distribution of executive, legislative and judicial
authorities among bodies, which are independent of each other.
In paragraph 39, following has been laid down:
“39. Our legislatures have undoubtedly plenary
powers, but these powers are controlled by the basic
concepts of the written Constitution itself and can
be exercised within the legislative fields allotted
to their jurisdiction by the three Lists under the
Seventh Schedule; but beyond the Lists, the
legislatures cannot travel. They can no doubt
exercise their plenary legislative authority and
discharge their legislative functions by virtue of
the powers conferred on them by the relevant
provisions of the Constitution; but the basis of the
power is the Constitution itself. Besides, the
legislative supremacy of our legislatures including
the Parliament is normally controlled by the
provisions contained in Part III of the Constitution.
If the legislatures step beyond the legislative
fields assigned to them, or acting within their
respective fields, they trespass on the fundamental
rights of the citizens in a manner not justified by
the relevant articles dealing with the said
fundamental rights, their legislative actions are
liable to be struck down by courts in India.
Therefore, it is necessary to remember that though
our legislatures have plenary powers, they function
within the limits prescribed by the material and
relevant provisions of the Constitution.”
39. In the landmark judgment of this Court in Kesavananda
Bharati v. State of Kerala, (1973) 4 SCC 225 a new dimension
was given to the constitutional principles. This Court by
majority judgment declared that the basic feature of the
Constitution could not be amended by a constitutional
amendment. Sikri, C.J. while delivering the majority judgment
had held that federal character of the Constitution is one of
40
the basic structures of the Constitution.
40.Shelat and Grover, JJ. while delivering concurring
opinion had also stated that our Constitution has all
essential elements of federal structure. In para 486 following
was stated: (Kesavananda Bharati case, SCC pp. 40809)
“486. The Constitution has all the essential elements
of a federal structure as was the case in the
Government of India Act, 1935, the essence of
federalism being the distribution of powers between
the federation or the Union and the States or the
provinces. All the legislatures have plenary powers
but these are controlled by the basic concepts of the
Constitution itself and they function within the
limits laid down in it (Per Gajendragadkar, C.J. in
Special Reference No. 1 of 196435). All the
functionaries, be they legislators, members of the
executive or the judiciary take oath of allegiance to
the Constitution and derive their authority and
jurisdiction from its provisions. The Constitution
has entrusted to the judicature in this country the
task of construing the provisions of the Constitution
and of safeguarding the fundamental rights (SCR at p.
446). It is a written and controlled Constitution.”
41.Again a sevenJudge Bench in State of Rajasthan v. Union
of India, (1977) 3 SCC 592 had an occasion to consider the
nature of the Indian Constitution. M.H. Beg, C.J., while
delivering majority decision, in para 57 states: (SCC p. 622)
“57. The two conditions Dicey postulated for the
existence of federalism were: firstly, ‘a body of
countries such as the Cantons of Switzerland, the
Colonies of America, or the Provinces of Canada, so
closely connected by locality, by history, by race,
or the like, as to be capable of bearing, in the eyes
of their inhabitants, an impress of common
nationality’; and, secondly, absolutely essential to
the founding of a federal system is the ‘existence of
a very peculiar state of sentiment among the
41
inhabitants of the countries’. He pointed out that,
without the desire to unite there could be no basis
for federalism. But, if the desire to unite goes to
the extent of forming an integrated whole in all
substantial matters of Government, it produces a
unitary rather than a federal Constitution. Hence, he
said, a federal State “is a political contrivance
intended to reconcile national unity with the
maintenance of State rights”. The degree to which the
State rights are separately preserved and safeguarded
gives the extent to which expression is given to one
of the two contradictory urges so that there is a
union without a unity in matters of Government. In a
sense, therefore, the Indian union is federal. But,
the extent of federalism in it is largely watered
down by the needs of progress and development of a
country which has to be nationally integrated,
politically and economically coordinated, and
socially, intellectually and spiritually uplifted. In
such a system, the States cannot stand in the way of
legitimate and comprehensively planned development of
the country in the manner directed by the Central
Government.”
42.Further in para 60 referring to Dr Ambedkar following was
stated: (State of Rajasthan case , SCC p. 623)
“60. Although Dr Ambedkar thought that our
Constitution is federal “inasmuch as it establishes
what may be called a Dual Polity”, he also said, in
the Constituent Assembly, that our
Constitutionmakers had avoided the “tight mould of
federalism” in which the American Constitution was
forged. Dr Ambedkar, one of the principal architects
of our Constitution, considered our Constitution to
be ‘both unitary as well as federal according to the
requirements of time and circumstances’.”
43.A nineJudge Bench had occasion to elaborately consider
the nature of the Constitution of India in S.R. Bommai v.
Union of India, (1994) 3 SCC 1, Ahmadi, J. referring to
42
federal character of the Constitution in para 14 following was
stated: (SCC pp. 6869)
“14. In order to understand whether our Constitution
is truly federal, it is essential to know the true
concept of federalism. Dicey calls it a political
contrivance for a body of States which desire Union
but not unity. Federalism is, therefore, a concept
which unites separate States into a Union without
sacrificing their own fundamental political
integrity. Separate States, therefore, desire to
unite so that all the member States may share in
formulation of the basic policies applicable to all
and participate in the execution of decisions made in
pursuance of such basic policies. Thus the essence of
a federation is the existence of the Union and the
States and the distribution of powers between them.
Federalism, therefore, essentially implies
demarcation of powers in a federal compact.”
Ahmadi, J. further stated that 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.
44.B.P. Jeevan Reddy, J. held that the Founding Fathers
wished to establish a strong Centre. In the light of the past
history of this SubContinent, this was probably a natural and
necessary decision. In paras 275 and 276 following was stated:
(S.R. Bommai case, SCC pp. 21517)
“275. A review of the provisions of the Constitution
shows unmistakably that while creating a federation,
the Founding Fathers wished to establish a strong
Centre. In the light of the past history of this
subcontinent, this was probably a natural and
necessary decision. In a land as varied as India is,
a strong Centre is perhaps a necessity. This bias
towards Centre is reflected in the distribution of
legislative heads between the Centre and States. All
43
the more important heads of legislation are placed in
List I. Even among the legislative heads mentioned in
List II, several of them, e.g., Entries 2, 13, 17,
23, 24, 26, 27, 32, 33, 50, 57 and 63 are either
limited by or made subject to certain entries in List
I to some or the other extent. Even in the Concurrent
List (List III), the parliamentary enactment is given
the primacy, irrespective of the fact whether such
enactment is earlier or later in point of time to a
State enactment on the same subjectmatter. Residuary
powers are with the Centre. By the 42nd Amendment,
quite a few of the entries in List II were omitted
and/or transferred to other lists. Above all, Article
3 empowers Parliament to form new States out of
existing States either by merger or division as also
to increase, diminish or alter the boundaries of the
States. …
276. The fact that under the scheme of our
Constitution, greater power is conferred upon the
Centre vis
àvis the States does not mean that States
are mere appendages of the Centre. Within the sphere
allotted to them, States are supreme. The Centre
cannot tamper with their powers. More particularly,
the courts should not adopt an approach, an
interpretation, which has the effect of or tends to
have the effect of whittling down the powers reserved
to the States. It is a matter of common knowledge
that over the last several decades, the trend the
world over is towards strengthening of Central
Governments — be it the result of advances in
technological/scientific fields or otherwise, and
that even in USA the Centre has become far more
powerful notwithstanding the obvious bias in that
Constitution in favour of the States. All this must
put the court on guard against any conscious
whittling down of the powers of the States. Let it be
said that the federalism in the Indian Constitution
is not a matter of administrative convenience, but
one of principle — the outcome of our own historical
process and a recognition of the ground realities.
This aspect has been dealt with elaborately by Shri
M.C. Setalvad in his Tagore Law Lectures “Union and
State Relations under the Indian Constitution”
(Eastern Law House, Calcutta, 1974). The nature of
the Indian federation with reference to its
44
historical background, the distribution of
legislative powers, financial and administrative
relations, powers of taxation, provisions relating to
trade, commerce and industry, have all been dealt
with analytically. It is not possible — nor is it
necessary — for the present purposes to refer to
them. It is enough to note that our Constitution has
certainly a bias towards Centre vis
àvis the States
[Automobile Transport (Rajasthan) Ltd. v. State of
Rajasthan3, SCR p. 540]. It is equally necessary to
emphasise that courts should be careful not to upset
the delicatelycrafted constitutional scheme by a
process of interpretation.”
45.A Constitution Bench in Kuldip Nayar v. Union of India,
(2006) 7 SCC 1, held that India is not a federal State in the
traditional sense of the term and it is not a true federation
formed by agreement between various States and it has been
described as quasifederation and similar other concepts.
46.A nineJudge Constitution Bench in Jindal Stainless
Limited and Another Vs. State of Haryana and Others, (2017) 12
SCC 1 had occasion to consider the nature of federalism in the
Indian Constitution while considering the relations between
Union and States in reference to part XIII of the
Constitution. Dr. T.S. Thakur, Chief Justice of India, as he
then was, speaking for the Court noticed the nature of
federalism as ingrained in the Constitution. Constitution
Bench held that even though our Constitution may not be
strictly federal in its character but the significant features
of federal Constitution are found in the Indian Constitution.
45
In Paragraph 32, Constitution Bench laid down as follows:
“32. Whether or not the Constitution provides a
federal structure for the governance of the country
has been the subjectmatter of a long line of
decisions of this Court, reference to all of which
may be unnecessary but the legal position appears to
be fairly well settled that the Constitution provides
for a quasifederal character with a strong bias
towards the Centre. The pronouncements recognised the
proposition that even when the Constitution may not
be strictly federal in its character as the United
States of America, where sovereign States came
together to constitute a federal Union, where each
State enjoins a privilege of having a Constitution of
its own, the significant features of a federal
Constitution are found in the Indian Constitution
which makes it a quasifederal Constitution, if not
truly federal in character and in stricto sensu
federal. The two decisions which stand out in the
long line of pronouncements of this Court on the
subject may, at this stage, be briefly mentioned. The
first of these cases is the celebrated decision of
this Court in Kesavananda Bharati case15, wherein a
thirteenJudge Bench of this Court, Sikri, C.J. (as
his Lordship then was), being one of them talks about
whether the Constitution of India was federal in
character and if so whether federal character of the
Constitution formed the basic feature of the
Constitution. Sikri, C.J. summed up the basic feature
of the Constitution in the following words: (SCC p.
366, paras 29294)
“292. … The true position is that every
provision of the Constitution can be amended
provided in the result the basic foundation
and structure of the Constitution remains the
same. The basic structure may be said to
consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of
Government;
(3) Secular character of the Constitution;
46
(4) Separation of powers between the
legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
293. The above structure is built on the basic
foundation i.e. the dignity and freedom of the
individual. This is of supreme importance.
This cannot by any form of amendment be
destroyed.
294. The above foundation and the above basic
features are easily discernible not only from
the Preamble but the whole scheme of the
Constitution, which I have already discussed.”
To the same effect are the views expressed by
Shelat and Grover, JJ. who declared that the federal
character of the Constitution is a part of its basic
structure.”
47.In Jindal Stainless Ltd. (supra), one of us (Ashok
Bhushan,J) has also expressed views on the form of the Indian
Constitution, which was the same as expressed by majority
opinion. In Paragraph 944, following was held:
“944. The law declared by this Court as noted above
clearly indicates that the Indian Constitution is
basically federal in form and has marked traditional
characteristics of a federal system, namely,
supremacy of the Constitution, division of power
between the Union and the States and existence of an
independent judiciary. Federalism is one of the basic
features of the Indian Constitution. However, the
history of Constitution including the debates in the
Constituent Assembly indicate that the distribution
of powers was given shape with creating a strong
Centre with the object of unity and integrity of
India. The States are sovereign in the allotted
fields. The Indian Constitution cannot be put in
traditional mould of federalism. The traditional
concept of federalism has been adopted with necessary
modification in the framework of the Constitution to
suit the country’s necessity and requirement. The sum
47
total of above discussion is that federalism in the
Constitution is limited and controlled by the
Constitution and the exercise of powers of both the
States and the Centre are controlled by express
provisions of the Constitution.”
48.A recent Constitution Bench judgment, which needs to be
noticed is a judgment of this Court in State (NCT of Delhi)
Vs. Union of India & Another, (2018) 8 SCC 501 . Chief Justice
Dipak Misra, as he then was, speaking for the Constitution
Bench elaborately considered the concept of federal
Constitution and laid down following in Paragraph Nos. 95, 96
and 108:
“95. In common parlance, federalism is a type of
governance in which the political power is divided
into various units. These units are the Centre/Union,
States and Municipalities. Traditional jurists like
Prof. K.C. Wheare lay emphasis on the independent
functioning of different governing units and, thus,
define “federalism” as a method of dividing powers so
that the general/Central and regional governments are
each within a sphere coordinate and independent. As
per Prof. Wheare:
“the systems of Government embody
predominantly on division of powers between
Centre and regional authority each of which in
its own sphere is coordinating with the other
independent as of them, and if so, is that
Government federal?”
96. However, modern jurists lay emphasis on the idea
of interdependence and define federalism as a form of
Government in which there is division of powers
between one general/central and several regional
authorities, each within its sphere interdependent
and coordinate with each other.
108. From the foregoing discussion, it is clear as
day that both the concepts, namely, democracy i.e.
48
rule by the people 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 our constitutional federalism.”
49.Constitution Bench also noticed the concept of
cooperative federalism and referring to an earlier judgment of
this Court in State of Rajasthan Vs. Union of India, (1977) 3
SCC 592 laid down following in paragraph No. 121 and 122:
“121. In State of Rajasthan v. Union of India, the
Court took cognizance of the concept of cooperative
federalism as perceived by G. Austin and A.H. Birch
when it observed: (SCC p. 622, para 58)
“58. 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.’”
49
122. 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 the Union of India
and the 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.”
50.The concept of Collaborative federalism was also noticed
in paragraph Nos. 110 and 111 in the following words:
“110. 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.
111. 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.”
51.Another concept which was noticed and elaborated was the
concept of Pragmatic federalism. Following was laid down in
Paragraph 123:
“123. In this context, we may also deal with an
ancillary issue, namely, pragmatic federalism. To
50
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, 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.”
52.It has been laid down by this Court in the above cases,
which is clear from above precedents that Indian Constitution
has adopted federal structure. Although, it is not in the
strict mould of federalism as understood in theory. That is
why, different Constitution Benches of this Court have termed
the Indian Constitution as a quasifederal but the essential
51
characteristics of the federal system are ingrained in the
Constitution and reflect in different Constitutional
provisions which are (i) the distribution of legislative and
executive power between the Union and the States, (ii) the
distribution of such legislative and executive power is by the
Constitution itself, and (iii) an independent judiciary to
interpret the Constitutional provisions and lay down validly
in case of any dispute or doubt.
53.The concepts of cooperative federalism, collaborative
federalism and pragmatic federalism as has been noticed by the
Constitution Bench in State (NCT Of Delhi) (supra) essentially
engraft the same concept, i.e. faithful discharge of the
functions, both Union and States have to follow Constitutional
principles and not to encroach in the field reserved to other
by the Constitution.
54.The principle of federalism as adopted in the
constitution of India are well settled as noticed above. The
submission, which needs to be answered in the present case is
as to whether the federal principles as ingrained in the
Constitution are in any manner sacrificed in the present case,
i.e., by nominations made by Central Government without
concurrence of the Government of Union Territory of
Puducherry. Article 239A by which creation of local
52
Legislatures or Council of Ministers or both for certain Union
Territories was provided by the Constitution (Fourteenth
Amendment) Act, 1962 empowering the Parliament by law, to
create for the Union Territory of Puducherry, a body, whether
elected or partly nominated and partly elected, to function as
a Legislature for the Union Territory, or a Council of
Ministers, or both with such constitution, powers and
functions, in each case, as may be specified in the law . The
Constitution, thus, by Article 239A has empowered the
Parliament to create Legislature for the Union Territory by
law with such constitution, powers and functions as may be
specified in the law. Thus, it is the Constitution itself,
which is empowering Parliament to provide by law for
Constitution of Union Territory. Further, the Legislature as
a body contemplated by Article 239A is a body, whether elected
or partly nominated and partly elected. Thus, the
Constitution provision itself contemplate creation of
Legislature whether elected or partly nominated and partly
elected. When the Constitution itself empowers the Parliament
to frame law to create a body, which may be partly nominated
and partly elected and Section 3 of the Act, 1963, which
provide for thirty seats to be filled up by persons chosen by
direct election and three seats by nominations made by the
53
Central Government, we fail to see that how the law made by
Parliament or nominations made by Central Government breaches
the principles of federalism. The Constitution of Legislative
body for Union Territory being entrusted to the Parliament by
Constitution and there being no indication in the
Constitutional provision or provisions of the Act, 1963 that
said nomination has to be made with concurrence of Government
of Union Territory of Puducherry, we fail to see any substance
in the argument of Shri Kapil Sibal that by nominations made
by Central Government, federal principles or principle of
cooperative federalism has been violated. The concept of
federalism itself envisages distribution of power between
Union and States. It is further to be noticed that Union
Territories are not States. These Union Territories,
ordinarily, belong to the Union (i.e. the Central Government)
and therefore they are called 'Union Territories'. That is why
they are governed under the administrative control of the
President of India. That is the clear purport behind Article
239. However, to a limited extent, the power of the Union is
diluted with respect to Puducherry vide Article 239A. At the
same time, this constitutional provision, i.e. Article 239A.
With regard to the Union Territory of Puducherry itself
envisages the constitution of Legislative Council partly by
54
nomination and partly by election. Further, specific authority
to nominate in the Legislative Council has been conferred by
law i.e. under Section 3 to the Central Government. Thus no
breach of federal principles are made out and the submission
on the basis of breach of federal principles in nomination by
the Central Government is unfounded.
Issue No.4 and 5
55.Both the issues being interdependent are being taken
together. The expression “Constitutional convention” has been
coined by Professor A.V. Dicey . In 1885, in his introduction
to the study of the “Law of the Constitution”, in Chapter
dealing with nature of conventions of Constitution, Professor
Dicey States:
“…………The conventions of the constitution are in
short rules intended to regulate the exercise of the
whole of the remaining discretionary powers of the
Crown, whether these powers are exercised by the King
himself or by the Ministry…………………..”
56.Elaborating further Prof. Dicey States:
“……………………The result follows, that the conventions of
the constitution, looked at as a whole, are customs,
or understandings, as to the mode in which the
several members of the sovereign legislative body,
which, as it will be remembered, is the "Queen in
Parliament,” should each exercise their
discretionary authority, whether it be termed the
prerogative of the Crown or the privileges of
Parliament. Since, however, by far the most numerous
and important of our constitutional understandings
refer at bottom to the exercise of the prerogative,
it will conduce to brevity and clearness if we treat
the conventions of the constitution, as rules or
customs determining the mode in which the
discretionary power of the executive, or in technical
55
language the prerogative, ought (i.e. is expected by
the nation) to be employed.”
57.Professor Dicey in his treatment of conventions of the
Constitution has held that conventions of the Constitution
constitutes customs, practices, maxims, and precepts which are
not enforced or recognised by the Courts, make up a body not
of laws, but of constitutional or political ethics. The
Dicey’s statement that Constitutional conventions are not a
body of laws but constitutional or political ethics was
subject to debate and discussion. Sir Ivor Jennings in his
treatise “The Law and the Constitution” noticed the
distinction between laws and conventions as made by Professor
Dicey, but opined that distinction appears to be plain and
unambiguous, it is by no means free from difficulty.
58. Professor Dicey’s statement that the convention is not a
binding rule was departed with by Sir Kenneth Wheare in
“Modern Constitutions” , who wrote:
“By convention is meant a binding rule, a rule of
behaviour accepted as obligatory by those concerned
in the working of the constitution.”
59.Sir Ivor Jennings in his treatise has elaborately dealt
the conventions of the Constitution while explaining the
purpose of the convention, he states:
“The short explanation of the constitutional
conventions is that they provide the flesh which
clothes the dry bones of the law; they make the legal
56
constitution work; they keep it in touch with the
growth of ideas. A constitution does not work itself;
it has to be worked by men…………………..”
60.How the conventions are to be established was also
explained by Sir Ivor Jennings in following words:
“It is clear, in the first place, that mere practice
is insufficient. The fact that an authority has
always behaved in a certain way is no warrant for
saying that it ought to behave in that way. But if
the authority itself and those connected with it
believe that they ought to do so, then the convention
does exist. This is the ordinary rule applied to
customary law. Practice alone is not enough. It
must be normative………………….”
61.Further, he states that:
“………………………….For neither precedents nor dicta are
conclusive. Something more must be added. As in the
creation of law, the creation of a convention must be
due to the reason of the thing because it accords
with the prevailing political philosophy. It helps
to make the democratic system operate; it enables the
machinery of State to run more smoothly; and if it
were not there friction would result. Thus, if a
convention continues because it is desirable in the
circumstances of the constitution, it must be created
for the same reason…………………….”
62.The test to find out as to whether a practice or
precedent has become convention, Sir Ivor Jennings lays down
following tests:
“……………..We have to ask ourselves three questions:
first, what are the precedents; secondly, did the
actors in the precedents believe that they were bound
by a rule; and thirdly, is there a reason for the
rule? A single precedent with a good reason may be
enough to establish the rule. A whole string of
precedents without such a reason will be of no avail,
unless it is perfectly certain that the persons
concerned regarded them as bound by it. And then, as
57
we have seen, the convention may be broken with
impunity.”
63.The above three tests laid down by Sir Ivor Jennings has
been approved by a Constitution Bench of this Court in Supreme
Court AdvocatesOnRecord Association and Others Vs. Union of
India, (1993) 4 SCC 441 (Para 346). The Constituent Assembly
while drafting the Constitution of India was well aware of the
British convention. Initially on 17.07.1947 Hon'ble Sardar
Vallabhbhai Patel while moving Clause 14 stated that the
Governor shall be generally guided by the conventions of
responsible, Government as set out in Schedule. A Schedule was
contemplated to be framed according to the traditions of
responsible Government. It is useful to notice what was said
by Hon'ble Sardar Vallabhbhai Patel:
"The Hon'ble Sardar Vallabhbhai Patel : Sir, I move
that:
“In the appointment of his ministers; and his
relations with them, the Governor shall be generally
guided by the conventions of responsible, Government
as set out in Schedule.....; but the validity of
anything done by the Governor shall not be called in
question on the ground that it was done otherwise
than in accordance with these conventions.”
Now a Schedule according to the traditions of
responsible Government will be framed and put in.
This also is a noncontroversial thing and I move
the proposition for the acceptance of the House.”
64.Although Schedule IIIA was contemplated codifying
58
convention but at the later stage it was decided to drop
codifying the convenient. The reasons for not codifying the
convention was elaborated by Shri. T.T. Krishnamachari in
Constituent Assembly debate on 11.10.1949. Schedule IIIA which
was contemplated to be inserted by way of amendment was not
moved. Similarly, Schedule IV which was to describe relations
of the President and the Governor vizaviz the Ministers was
also moved to be deleted. On the questioning of deletion of
the Schedule, Dr. B.R. Ambedkar asked Shri Krishnamachari to
explain. Shri T.T. Krishnamachari while explaining stated
following:
"Shri T.T. Krishnamachari: ....Therefore, we have
decided to drop Schedule IIIB which we proposed as
an amendment and also Schedule IV which finds a
place in the Draft Constitution, because it is felt
to be entirely unnecessary and superfluous, to give
such direction in the Constitution which really
should arise out of conventions that grow up from
time to time, and the President and the Governors in
their respective spheres will be guided by those
conventions....”
65.The above debates in the Constituent Assembly clearly
indicate that Constitutional conventions were very much in the
contemplation during the debates in the Constituent Assembly.
Conventions were expected to grow from time to time and the
President and Governors in their respective spheres were to be
guided by those conventions.
59
66.The American jurisprudence also recognises convention
including the constitutional conventions. John Alexander
Jameson in 'A Treatise on Constitutional Conventions' while
explaining the constitutional convention states:
"as its name implies, constitutional; not simply as
having for its object the framing or amending of
Constitutions, but as being within, rather than
without, the pale of the fundamental law; as
ancillary and subservient and not hostile and
paramount to it. The species of Convention sustains
an official relation to the state, considered as a
political organization. It is charged with a
definite, and not a discretionary and
indeterminate, function.”
67.Leonid Sirota in his Article 'Towards a Jurisprudence of
Constitutional Conventions' defines constitutional convention,
as:
“those primary constitutional rules, limiting the
powers of the several organs of government in a
polity and governing the relations among them,
which are not found in constitutional or ordinary
statutes or the common law, and which reflect the
'constitutional theory' or political values of the
day.”
68.The constitutional conventions are born and recognised in
working of the Constitution. The purpose and object of
constitutional convention is to ensure that the legal
framework of the Constitution is operated in accordance with
constitutional values and constitutional morality. The
60
constitutional conventions always aims to achieve higher
values and objectives enshrined in the Constitution. The
conventions are not static but can change with the change in
constitutional values and constitutional interpretations. No
constitutional convention can be recognised or implemented
which runs contrary to the expressed constitutional provisions
or contrary to the underlined constitutional objectives and
aims which Constitution sought to achieve.
69.There have been several pronouncements by this Court
where the Constitutional conventions were referred to and
relied. In U.N.R. Rao vs. Smt. Indira Gandhi, (1971) 2 SCC 63,
this Court while interpreting Article 75(3) held that while
interpreting the Constitution the conventions prevalent at the
time when Constitution was formed, have to be kept in mind. In
interpreting Article 75(3), this Court took support from the
conventions followed in United Kingdom and other countries. In
paragraphs 3 and 11 following was held:
“3………It seems to us that a very narrow point
arises on the facts of the present case. The House
of the People was dissolved by the President on
December 27, 1970. The respondent was the Prime
Minister before the dissolution. Is there anything
in the Constitution, and in particular in Article
75(3), which renders her carrying on as Prime
Minister contrary to the Constitution? It was said
that we must interpret Article 75(3) according to
its own terms regardless of the conventions that
prevail in the United Kingdom. If the words of an
Article are clear, notwithstanding any relevant
61
convention, effect will no doubt be given to the
words. But it must be remembered that we are
interpreting a Constitution and not an Act of
Parliament, a Constitution which establishes a
Parliamentary system of Government with a Cabinet.
In trying to understand one may well keep in mind
the conventions prevalent at the time the
Constitution was framed.”
“11. We are grateful to the learned
AttorneyGeneral and the appellant for having
supplied to us compilations containing extracts from
various books on Constitutional Law and extracts
from the debates in the Constituent Assembly. We
need not burden this judgment with them. But on the
whole we receive assurance from the learned authors
and the speeches that the view we have taken is the
right one, and is in accordance with conventions
followed not only in the United Kingdom but in other
countries following a similar system of responsible
Government.”
70.The most elaborate consideration of Constitutional
convention was undertaken by the Constitution Bench of this
Court in Supreme Court Advocatesonrecord Association and
others vs. Union of India, (1993) 4 SCC 441, Justice Kuldip
Singh in his judgment has elaborately considered the
Constitutional convention. This Court held that conventions
are found in all established Constitutions and soon develop
even in the newest. In paragraphs 340 and 341 following was
laid down:
“340. The written Constitutions cannot provide
for every eventuality. Constitutional institutions
are often created by the provisions which are
generally worded. Such provisions are interpreted
62
with the help of conventions which grow with the
passage of time. Conventions are vital insofar as
they fill up the gaps in the Constitution itself,
help solve problems of interpretation, and allow
for the future development of the constitutional
framework. Whatever the nature of the Constitution,
a great deal may be left unsaid in legal rules
allowing enormous discretion to the constitutional
functionaries. Conventions regulate the exercise of
that discretion. A power which, juridically, is
conferred upon a person or body of persons may be
transferred, guided, or canalised by the operation
of the conventional rule. K.C. Wheare in his book
Modern Constitutions (1967 Edn.) elaborates such a
rule as under:
“What often happens is that powers granted in
a Constitution are indeed exercised but that,
while they are in law exercised by those to whom
they are granted, they are in practice exercised
by some other person or body of persons.
Convention, in short, transfers powers granted
in a Constitution from one person to another.”
341. The primary role of conventions is to
regulate the exercise of discretion — presumably to
guard against the irresponsible abuse of powers.
Colin R. Munro in his book Studies in
Constitutional Law (1987 Edn.) has summed up the
field of operation of the conventions in the
following words:
“Some of the most important conventions,
therefore, are, as Dicey said, concerned with
‘the discretionary powers of the Crown’ and how
they should be exercised. But it is not only in
connection with executive government and
legislatureexecutive relations that we find
such rules and practices in operation. They may
be found in other spheres of constitutional
activity too; for example, in relations between
the Houses of Parliament and in the workings of
each House, in the legislative process, in
judicial administration and judicial behaviour,
in the civil service, in local government, and
in the relations with other members of the
Commonwealth.””
63
71.This Court held that every act by a constitutional
authority is a 'precedent' in the sense of an example which
may or may not be followed in subsequent similar cases, but a
long series of precedents all pointing in the same direction
is very good evidence of a convention. On the requirements for
establishing the existence of a convention, this Court quoted
with approval the test laid down by Sir W. Ivor Jennings in
'The Law and the Constitution'. In paragraphs 345 and 346
following was laid down:
“345. Every act by a constitutional authority
is a ‘precedent’ in the sense of an example which
may or may not be followed in subsequent similar
cases, but a long series of precedents all pointing
in the same direction is very good evidence of a
convention.
346. The requirements for establishing the
existence of a convention have been succinctly laid
down by Sir W. Ivor Jennings in The Law and the
Constitution, Fifth Edn., (1959) as under:
“We have to ask ourselves three questions:
first, what are the precedents; secondly, did
the actors in the precedents believe that they
were bound by a rule; and thirdly, is there a
reason for the rule? A single precedent with a
good reason may be enough to establish the
rule. A whole string of precedents without such
a reason will be of no avail, unless it is
perfectly certain that the persons concerned
regarded them as bound by it.””
72.This Court after referring to several treatises on the
64
constitutional law held that the constitutional functionaries
have to follow the same as a binding precedent. In paragraphs
351 and 353 following was held:
“351. It is not necessary for us to delve into
this subject any more. We agree that a convention
while it is a convention is to be distinguished
from the law. But this does not mean that what was
formerly a convention cannot later become law. When
customary rules are recognised and enforced by
courts as law, there is no reason why a convention
cannot be crystallized into a law and become
enforceable. “Conventions can become law also by
judicial recognition” stated K.C. Wheare in Modern
Constitution (1966 Edn.). It is no doubt correct
that the existence of a particular convention is to
be established by evidence on the basis of
historical events and expert factual submissions.
But once it is established in the court of law that
a particular convention exists and the
constitutional functionaries are following the same
as a binding precedent then there is no
justification to deny such a convention the status
of law.
353. We are of the view that there is no
distinction between the “constitutional law” and an
established “constitutional convention” and both
are binding in the field of their operation. Once
it is established to the satisfaction of the Court
that a particular convention exists and is
operating then the convention becomes a part of the
“constitutional law” of the land and can be
enforced in the like manner.”
73.This Court in the above case has clearly held that
existence of a particular convention is to be established by
historical and factual evidence and for establishing the
existence of convention the test laid down by Sir Ivor
65
Jennings was also approved and applied in the following words
in paragraph 357:
“357. We now proceed to consider whether an
established constitutional convention can be read
in Articles 124(2) and 217(1) of the Constitution
of India to the effect that in the matter of
appointment of the Judges of the High Courts and
Supreme Court, the opinion of the judiciary
expressed through the Chief Justice of India is
primal and binding. For that purpose we adopt the
test for the existence of a convention, laid down
by Sir Ivor Jennings, based on three questions: ( a)
What are the precedents? ( b) Did the actors in the
precedents believe that they were bound by a rule?,
and (c) Is there a reason for the rule?”
74.We now proceed to apply the tests for establishing a
convention in the facts of the present case. The submission of
Shri Kapil Sibal, as noted above, is that on six prior
occasions members were nominated to the Puducherry Legislative
Assembly after consultation with elected Government of
Puducherry. He has referred to nominations made in the year
1985, 1990, 1996, 2006 and 2011. With regard to year 2001, it
has been submitted that when Lt. Governor unilaterally
forwarded the names of the members, upon objection from the
then Chief Minister, the proceedings were dropped and proposed
list was referred back to the Administrator for lack of
consultation.
75.Learned counsel appearing for the Union of India has
66
replied the aforesaid submission. In the short note submitted
on behalf of the Union of India, details regarding nominations
made on the earlier occasions have been explained. Learned
counsel for the Union of India has also produced the original
files of the Central Government relating to the aforesaid
nominations as was orally directed on 20.11.2018. It relates
to the nominations made on earlier occasions, original records
duly flagged has been submitted by the Union of India. The
details submitted by the Union of India are in the following
tabular form:
DETAILS REGARDING NOMINATIONS MADE ON EARLIER OCCASIONS
Centre Union
Territory
Remarks
1985CongressCongress File not traceable
1990CongressDMK On the recommendations of
LG
FLAG 1
FLAG 1A
1995CongressCongress CM directly recommended
names to the Home Minister
out of which only one name
was accepted. The other
names were taken from
request made by President,
Puducherry Pradesh
Congress Committee and
another recommendation/
order of PMO. However,
the said notifications
were cancelled by a later
notification.
FLAG 2
FLAG 2A
1997 DMK Out of 3 MLA’s, two on the
recommendation of LG and
one on the recommendation
of CM
FLAG 3
FLAG 3A
FLAG 3B
2001NDA Congress NO CM recommendation.
Persons recommended by LG
FLAG 4
FLAG 4A
67
were holding office of
profit and hence
nominations not done.
FLAG 4B
FLAG 4C
2005UPA Congress All 3 MLA’s nominated on
the recommendation of CM &
LG
FLAG 5
FLAG 5A
FLAG 5B
FLAG 5C
2007UPA Congress All 3 MLA’s nominated on
the recommendation of CM
and LG
FLAG 6
FLAG 6A
FLAG 6B
2011UPA NR
Congress
Recommendation sent by LG
& CM. However,
nominations not done.
FLAG 7
FLAG 7A
FLAG 7B
2014UPA NR
Congress
All 3 MLA’s nominated on
the recommendation of CM
and LG
FLAG 8
FLAG 8A
FLAG 8B
2017NDA Congress No recommendations
received either from LG or
CM
FLAG 8C
76.The above details indicate that in the year 1990, 1997,
2005, 2007 and 2014 nominations were made on the
recommendations of Chief Minister/LG. Original records fully
support the statement made in the above Chart. The position of
nomination is different in the year 1995, 2001 and 2011 which
needs to be specifically noted.
77.In the year 1995, Chief Minister of the Pondicherry
suggested three names for nominations whereas President,
Puducherry Pradesh Congress Committee also suggested three
different names. The Prime Minister had approved three names
which consists one name suggested by Chief Minister, one name
suggested by President, Puducherry Pradesh Congress Committee
68
and one name of its own. Notification was issued on
26.07.1995. A decision was subsequently taken to cancel the
notification by the Home Minister on 12.08.1995. No further
nominations were made in the said year.
78.Now we come to year 2001. In the year 2001, Lieutenant
Governor had forwarded names of 10 persons who had sought
nominations as members of the Legislative Assembly. The Chief
Minister, Pondicherry had sent representation that the Lt.
Governor did not consult him in the matter of proposing
nominations. The issue surfaced in the said year as to whether
the consultation of Chief Minister is necessary before
nomination by the Central Government. The Home Minister by his
order dated 08.08.2001 directed for obtaining legal advise.
The Joint Secretary and Legal Adviser submitted a note dated
21.09.2001 in which in paragraph 9 he opined:
"9.In the light of the above, we are of the view
that consultation with the Chief Minister of
Pondicherry is not necessary before the Central
Government nominates a person to be a member of its
Legislative Assembly under subsection (3) of
section 3 of the Act.”
No final nominations could be made in the year 2001, 2002 and
2003.
69
79.In the year 2011, although recommendations were sent by
the Lt. Governor and Chief Minister but no nominations were
made. After the nominations made in the year 2014, the
nominations have been made in the year 2017. A note dated
16.08.2016 was put up by Deputy Secretary that last nomination
was made vide notification dated 02.09.2014 with the approval
of Home Minister. The tenure of the Assembly got over and new
Assembly has been constituted, hence, new persons are to be
appointed as Nominated Members. A perusal of the original
records indicates that following four issues were outlined to
be referred to the Attorney General for his advice:
"Issue No.1:Whether the Central Govt. has got
absolute powers to appoint nominated
Members to the Legislative Assembly of
Puducherry?
Issue No.2:Whether recommendation of LG, Puducherry
is mandatory for consideration of names
for appointment of nominated Members to
Puducherry Legislative Assembly by the
Central Government ?
Issue No.3:If the reply to Issue 1 is in
affirmative, is there any role of the
Chief Minister/Council of Ministers to
aid/advise the L.G. in the matter of
making such recommendation, and if so,
whether such aid and advice is binding
upon the LG?
Issue No.4:Keeping in view that there is no laid
down procedure for such nomination,
whether any prescribed procedure is
70
required to be followed or any specific
condition to he imposed for making
nominations?”
80.The Attorney General on 15.11.2016 ordered the file “Be
put up before the S.G.”. In the records there is detailed
opinion given by the Solicitor General on 29.11.2016. The
Solicitor General with regard to Queries Nos.1,2,3 and 4 has
opined:
"5.In light of the aforementioned observations,
the Queries raised are answered accordingly:
i.Re:Query (I):Section 3(3) of the Government of
Union Territories Act, 1963 empowers Central
Government to nominate members of the
Legislative Assembly of Puducherry. Due to the
operation of the word “may” in the said
subsection (3), the said power is to be
exercised at the discretion of the Central
Government. Hence, the Central Government may,
or may not nominate three members to the
Legislative Assembly of Puducherry. However, it
is relevant to note the members nominated in
the manner envisaged in subsection (3) of
Section 3, must comply with the criteria of
qualification of members to the Legislative
Assembly enumerated in Section 4 of the
Government of Union Territories Act, 1963 and
will be disqualified from being members of the
Legislative Assembly if found within Section 14
of the Government of Union Territories Act,
1963.
ii.Re: Query (iii):The Central Government may in
71
its wisdom consult the Administrator of
Puducherry for consideration of names for
appointment of nominated members to the
Puducherry Legislative Assembly especially when
the Administrator is the nominee of the
President.
iii.Re: Query (iii): As stated in response to Query
(ii), the recommendation of Administrator is
not mandatory for consideration of names for
appointment of nominated members to the
Puducherry Legislative Assembly but he/she may
be consulted. Therefore, the role of Chief
Minister/Council of Minister to aid/advice the
L.G. in the matter of making such
recommendation does not arise.
iv.Re: Query (iv): There is no prescribed
procedure for the Central Government to
nominate three members to the Legislative
Assembly. In the absence of such procedure,
only the criteria for eligibility of a member
laid down in Section 4 supra and the criteria
for disqualification in Section 14 supra must
be followed.
I have nothing further to add.”
81.The file processed thereafter and Home Minister approved
nominations of three persons to the Legislative Assembly,
Puducherry on 20.06.2017. Draft notification was put up for
approval on 23.06.2016.
82.After having noticed the details of earlier nominations
from 1985 till 2017, now the question has to be answered as to
72
whether from the sequence of the events as noticed above a
Constitutional convention can be found established that
nominations to the Legislative Assembly has to emanate from
Chief Minister and can be made only with the concurrence of
Chief Minister. We have noticed the test formulated by Sir W.
Ivor Jennings, as approved by this Court in Supreme Court
Advocatesonrecord Association case for establishing the
existence of a convention. The relevant test, as noticed
above, is again reproduced for ready reference:
“We have to ask ourselves three questions:
first, what are the precedents; secondly, did the
actors in the precedents believe that they were
bound by a rule; and thirdly, is there a reason for
the rule? A single precedent with a good reason may
be enough to establish the rule. A whole string of
precedents without such a reason will be of no
avail, unless it is perfectly certain that the
persons concerned regarded them as bound by it.”
83.We will take up the three questions which are to be posed
for deciding the question. First is “what are the precedents”.
From the facts noticed above, although it is indicated that on
several occasions on the recommendations of the Chief
Minister/LG nominations were made by the Central Government,
one relevant fact cannot be lost sight that recommendations
made by CM/LG were readily accepted by the Central Government
when the Government of Puducherry and the Central Government
73
were of the same political party or were of allies. But the
instance of year 1995 indicates that the recommendations made
by Chief Minister were not followed and the nominations were
made taking one name from Chief Minister's recommendation, one
name from Puducherry Pradesh Congress Committee and one name
at the instance of the Central Government itself which
nominations, however, subsequently were cancelled. In the year
2001 recommendations made by Chief Minister and LG were not
accepted and no nominations were made. Similarly, in the year
2011 recommendations were made by Chief Minister and LG but no
nominations were made. The above facts does not indicate
uniform precedent in making nominations by the Central
Government.
84.Now, we come to the second test that is “did the actors
in the precedents believed that they were bound by the rules”.
The said test is not satisfied in the present case since more
than one occasion there is material on records that the
Central Government concluded that it is not bound by any rule
that recommendations made by Chief Minister is to be accepted
by the Central Government or recommendations of Chief Minister
is a condition precedent for exercising power under
subsection (3) of Section (3). No uniform procedure was
followed nor the Central Government was under the belief that
74
it is bound under the Rule to accept the recommendations made
by the Chief Minister. It is true that there is no inhibition
in the Central Government considering the recommendations sent
by Chief Minister or LG or ask for suitable names from Chief
Minister/LG or even suggests suitable names to the Chief
Minister/LG but the fact that the Central Government can
consider the recommendations or call for names is not akin to
saying that there was any precedent or rule that unless the
names are recommended by Chief Minister the Central
Government is incapacitated in exercising its powers under
subsection (3) of Section 3 of the Act, 1963. The instance
where the Central Government readily accepted recommendations
made by LG or Chief Minister which emanated from the
Government belonging to the same political party cannot be
said to be action of then Central Government by virtue of any
rule or convention rather the acts have to be treated as
convenient exercise of power. The Central Government can
receive input from any quarter including the Chief Minister or
LG for nomination.
85.We may also refer to a judgment of this Court in Consumer
Education and Research Society vs. Union of India and others,
(2009) 9 SCC 648. One of the questions which came for
75
consideration before this Court in the above case was
violation of constitutional convention. In paragraph 37(ii)
following question was noticed:
"37(ii) Whether of as many as fiftyfive offices
relating to statutory bodies/nonstatutory bodies,
without referring the proposal to the Joint
Committee would render the amendment a colourable
legislation which violated any “constitutional
convention” or Article 14 of the Constitution.”
86.One of the contentions raised in the above case for
assailing the Parliament (Prevention of Disqualification) Act,
1959 as amended by Act 31 of 2006 on the ground that for
exempting particular office from a list of the office of
profit, opinion of Joint Committee was not obtained on Act 31
of 2006. Repealing the contention following was held in
paragraph 79:
“79. This brings us to the last question. It is
not in serious dispute that ever since Bhargava
Committee submitted its report in November 1955,
whenever an office of profit had to be exempted the
matter used to be referred to a Joint Committee and
its opinion whether the office should be exempted
or not, was being taken and only when there was a
recommendation that a particular office should be
exempted, the Act was being amended to add that
office to the list of exemptions. However, this was
merely a parliamentary procedure and not a
constitutional convention. Once Parliament is
recognised as having the power to exempt from
disqualification and to do so with retrospective
effect, any alleged violation of any norm or
traditional procedure cannot denude the power of
Parliament to make a law. Nor can such law which is
76
otherwise valid be described as unconstitutional
merely because a procedure which was followed on a
few occasions was not followed for the particular
amendment.”
87.The above judgment although was considering law made by
the Parliament where in the present case we are concerned with
the exercise of statutory power of the Central Government
under subsection (3) of Section 3 of the Act, 1963. In
exercising the power under Section 3(3) no particular
statutory procedure having been prescribed except the exercise
of power as per Allocation of Business Rules and Transaction
of Business Rules, 1961 nominations made cannot be held to be
vitiated on the submission that a particular procedure which
was followed in some earlier cases was not followed.
88.We do not find any established practice or convention to
the fact that names for nominations to members of the
Legislative Assembly has to emanate from Chief Minister and
can be made by the Central Government only after concurrence
by Chief Minister. Both the issues are answered accordingly.
Issue No. 6
89.Shri Kapil Sibal submits that High Court in Paragraph No.
5 has made certain recommendations. He has taken exception to
77
the recommendation (iv), which is to the following effect:
“(iv) If the nominated MLA belongs to a political
party on the date of nomination, it should be made
clear that he shall become part of the legislature
party of that political party. If there is no
legislature party in the house on the date of
nomination, the nominated MLA/s shall constitute the
legislature party of that political party. This is
interalia owing to Explanation (b) to paragraph 2(1)
(b) of Tenth Schedule to COI using the term
'political party' and not 'legislature party'.”
90. We have perused the recommendations made in Paragraph No. 5
of the judgment of Justice M. Sundar. The recommendations
contained in paragraph No. 5 are nothing but recommendations to
the Parliament to frame legislation on various aspects as
enumerated in the recommendation. We have, in the foregoing
discussions, concluded that it is the Central Government, which
is under Section 3(3) empowered to nominate members in the
Legislative Assembly of Union Territory. The procedure and
manner of taking decision by Central Government has already been
regulated by Rules of Business framed by President in exercise
of power under Article 77 of the Constitution of India. The
Rules framed by President of India under Article 77(3) are
applicable to all executive actions of the Central Government
including Constitutional and Statutory functions. In a
Constitution Bench judgment of this Court in Samsher Singh Vs.
State of Punjab and Another, (1974) 2 SCC 831 following was laid
78
down in Paragraph No. 29:
“29. The executive power is generally described as
the residue which does not fall within the
legislative or judicial power. But executive power
may also partake of legislative or judicial actions.
All powers and functions of the President except his
legislative powers as for example in Article 123 viz.
ordinance making power and all powers and functions
of the Governor except his legislative power as for
example in Article 213 being ordinance making powers
are executive powers of the Union vested in the
President under Article 53(1) in one case and are
executive powers of the State vested in the Governor
under Article 154(1) in the other case. Clause (2) or
clause (3) of Article 77 is not limited in its
operation to the executive action of the Government
of India under clause (1) of Article 77. Similarly,
clause (2) or clause (3) of Article 166 is not
limited in its operation to the executive action of
the Government of the State under clause (1) of
Article 166. The expression “Business of the
Government of India” in clause (3) of Article 77, and
the expression “Business of the Government of the
State” in clause (3) of Article 166 includes all
executive business.”
91.There being already Rules of Business for carrying out
the functions by the Central Government as per Article 77(3)
of the Constitution of India, we fail to see any justification
for making recommendation in paragraph No. 5 of the impugned
judgment. Furthermore, the power is to be exercised by Central
Government and it is to be presumed that Central Government,
in exercise of its power, shall be guided by objective and
rational considerations. We, however, hasten to add that there
is no inhibition in Central government or the Legislature to
79
make Rules or a Statute for more convenient transaction of
business regarding nominations. Recommendations to the
Legislature and the high Constitution authorities are not made
in a routine manner and we are of the view that High Court
ought to have desisted for making any recommendations as
contained in paragraph No. 5. The qualifications and
disqualifications to become a member or continue to be a
member of a Legislative Assembly have already been provided in
the Act, 1963. The qualifications and disqualifications for
members of Legislative Assembly are provided in the Act, 1963
and other relevant Statutes, which are always to be kept in
mind, while exercising any Statutory functions by the Central
Government. We, thus, are of the view that not only
recommendation made in paragraph No. 5(iv) but all the
recommendations made in Paragraph No. 5 deserves to be set
aside. In result, all recommendations as made in Paragraph
No. 5 of the impugned judgment are set aside.
Issue No.7
92. One of the submissions, which has been pressed by Shri
Kapil Sibal is that even if the nominated members have right
to vote in the proceeding of Assembly, they have no right to
vote in two circumstances, i.e. budget and no confidence
80
motion against the Government. Article 239A which provides
for composition of Union Territory of Puducherry itself
contemplated that the Parliament, may by law, create a body,
(i) whether elected or; (ii) partly nominated and partly
elected, to function as a Legislature for the Union Territory
of Puducherry. Under Article 239, the Parliament has enacted
the law, i.e., the Government of Union Territory Act, 1963,
Section 3 of which provides that there shall be a Legislative
Assembly for each Union territory. The total number of seats
in the Legislative Assembly of the Union territory to be
filled by persons chosen by direct election shall be thirty
and the Central Government may nominate not more than three
persons, to be members of the Legislative Assembly of the
Union territory. Thus, the composition of Legislative
Assembly itself consists of both persons chosen by direct
election and persons nominated by the Central Government.
Both elected and nominated persons are part of Legislative
Assembly. The provisions of Act, 1963 refers to members of
the Legislative Assembly. Section 11 provides that every
member of the Legislative Assembly of the Union territory
shall, before taking his seat, make and subscribe before the
Administrator, or some person appointed in that behalf by him,
an oath or affirmation according to the form set out for the
81
purpose in the First Schedule. The expression “every member
of the Legislative Assembly of the Union territory” shall
include both elected and nominated members. It is further
clarified by First Schedule of the Act, 1963, which contains
the forms of oaths and affirmations, which expressly refers
both elected and nominated members.
93.Section 12 deals with the voting in the Assembly, which
is as follows:
12. Voting in Assembly, power of Assembly to act
notwithstanding vacancies and quorum.
(1) Save as otherwise provided in this Act, all
questions at any sitting of the Legislative Assembly
of the Union territory shall be determined by a
majority of votes of the members present and voting
other than the Speaker or person acting as such.
(2) The Speaker or person acting as such shall not
vote in the first instance but shall have and
exercise a casting vote in the case of an equality of
votes.
(3) The Legislative Assembly of the Union territory
shall have power to act notwithstanding any vacancy
in the membership thereof, and any proceedings in the
Legislative Assembly of the Union territory shall be
valid notwithstanding that it is discovered
subsequently that some person who was not entitled so
to do, sat or voted or otherwise took part in the
proceedings.
(4) The quorum to constitute a meeting of the
Legislative Assembly of the Union territory shall be
82
onethird of the total number of members of the
Assembly.
(5) If at any time during a meeting of the
Legislative Assembly of the Union territory there is
no quorum, it shall be the duty of the Speaker, or
person acting as such, either to adjourn the Assembly
or to suspend the meeting until there is a quorum .
94.Section 12(1) provides that all questions at any sitting
of the Legislative Assembly of the Union territory shall be
determined by a majority of votes of the members present and
voting other than the Speaker or person acting as such. When
the expression used is votes of members present, obviously the
members of the Assembly both elected and nominated person has
to be counted, we cannot while interpreting Section 12(1)
exclude the nominated members. Further Section 12(1) uses the
expression “all questions at any sitting of the Legislative
Assembly”, the expression “all questions” shall include all
matters, which are to be decided in any sitting of the
Legislative Assembly. The Statutory provision does not give
indication that nominated members have no right to vote on
budget and no confidence motion against the Government. To
accept the submission of Shri Sibal shall be adding words to
provision of Section 12, which are clear and express. Further,
subsection(1) provides that in the voting majority of the
83
votes of the members present and voting, the speaker shall not
be a person, who shall vote. When provision of subsection(1)
clearly provides no voting by Speaker, if intention of
Legislature was to exclude the votes of nominated members, the
said expression was bound to find included in the
subsection(1). The conclusion is inescapable that all
members including the nominated members are entitled to vote
in the sitting of the Legislative Assembly and the submission
of Shri Sibal that nominated members cannot exercise vote in
budget and no confidence motion has to be rejected. Other
provisions like subsection (4) of Section 12, which provides
for quorum to constitute a meeting of the Legislative Assembly
used the word “onethird of the total number of members of the
Assembly”, members of the Assembly obviously will include both
elected and nominated members. Thus, there is no basis for
submission raised by Shri Sibal that nominated members cannot
exercise their vote in budget and no confidence motion against
the Government. The issue is answered accordingly.
95.In view of the foregoing discussions, we uphold the
impugned judgment of the Madras High Court for the above
reasons except directions in paragraph 5 which are hereby
deleted. In the result, the appeals are dismissed subject to
the deletion of recommendations made in paragraph 5 of the
84
judgment. Parties shall bear their own costs.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
..........................J.
( S. ABDUL NAZEER )
NEW DELHI,
December 06 , 2018.
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