Supreme Court of India
K. LAKSHMINARAYANANversusUNION OF INDIA & ANR.
- Citation
- 2018 INSC 1161
- Decided
- 6 December 2018
- Disposal
- Leave granted
- Bench
- A K SIKRI
Holding
The power to nominate members of the Puducherry Legislative Assembly under Section 3(3) of the 1963 Act vests exclusively with the Central Government (the President), does not require consultation or concurrence of the Union Territory’s Council of Ministers, no constitutional convention mandates such consultation, and nominated members possess full voting rights including on budget and confidence motions.
Summary
The petitioners challenged the nomination of three members to the Puducherry Legislative Assembly by the Central Government under Section 3(3) of the Government of Union Territories Act, 1963, arguing that the Central Government must consult the Union Territory’s Council of Ministers or Chief Minister, that a constitutional convention required such consultation, and that nominated members should not vote on budget or confidence motions. The Supreme Court examined the meaning of "Central Government" in the statute, the applicability of the Rules of Business of Puducherry, and whether any federal or cooperative‑federal principle was breached. It held that "Central Government" means the President, not the Administrator, and that the power to nominate rests solely with the Central Government without any requirement of consultation or concurrence. No established constitutional convention was found, and the nominations are not a business of the Puducherry Government. The Court also clarified that nominated members enjoy full voting rights, including on budget and confidence matters, and set aside the High Court’s recommendations. The appeals were dismissed.
Issues considered
- Whether the expression "Central Government" in Section 3(3) of the Government of Union Territories Act, 1963, means the President or includes the Administrator, and whether nomination must be on the aid and advice of the Council of Ministers/Chief Minister of Puducherry.
- Whether the nomination to the Legislative Assembly is a business of the Government of Puducherry and must be transacted in accordance with Rule 4(2) and Rule 48 of the Rules of Business, 1963.
- Whether making nominations without the concurrence of the Union Territory’s Government violates the principles of federalism or cooperative federalism.
- Whether a constitutional convention exists obligating the Central Government to consult the Government of Puducherry before making nominations, based on past practice.
- Whether the Central Government is statutorily obliged to consult the Council of Ministers/Chief Minister of Puducherry for nominations.
- Whether the recommendations made by the Madras High Court in paragraph 5(iv) are legally sustainable.
- Whether nominated members have voting rights on the budget and on no‑confidence motions.
Legislation cited
- Allocation of Business Rules, 1961
- General Clauses Act, 1897s. 3(8)
- Government of Union Territories Act, 1963s. 11, s. 12, s. 14, s. 3(3), s. 33, s. 46, s. 50
- Transaction of Business Rules, 1961
Subjects
NominationUnion TerritoryPuducherryCentral GovernmentConstitutional conventionFederalismCo‑operative federalismVoting rightsGovernment of Union Territories Act, 1963General Clauses Act, 1897Rules of BusinessArticle 239A
Judgment
[2018] 14 S.C.R. 689 689
K. LAKSHMINARAYANAN A
v.
UNION OF INDIA & ANR.
(Civil Appeal No. 11887 of 2018)
DECEMBER 06, 2018 B
[A. K. SIKRI, ASHOK BHUSHAN AND
S. ABDUL NAZEER, JJ.]
Government of Union Territories Act, 1963:
s.3(3) – Nominations made by the Central Government in
C
exercise of power u/s. 3(3) to the Legislative Assembly of Union
Territory of Puducherry – Whether Central Government under
obligation to consult the Council of Ministers/Chief Minister of
Government of Union Territory of Puducherry and the nomination
by Central Government to be made only with the concurrence of
the Government of Puducherry – Whether there is a constitutional D
convention to consult the Government of Puducherry, 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 – Held: For nomination by
Central Government, concurrence of Council of Ministers/Chief
E
Minister of Government of Union Territory of Puducherry not
required – There is no established practice or convention that names
for nominations to members of the Legislative Assembly has to
emanate from Chief Minister and can be made by Central
Government only after concurrence by Chief Minister – In exercising
the power u/s. 3(3) no particular statutory procedure having been F
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.
G
s.3(3) – Nomination of members of the Legislative Assembly
of Union territory by Central Government – Expression “Central
Government” in s.3(3) – Whether the expression “Central
Government” means an Administrator, who has to exercise the power
of nomination that too on the aid and advise of the Council of
H
689
690 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Ministers of the Union Territory of Puducherry – Held: Definition
of Central Government, as occurring in s.3(3) has to be read as to
mean the President and not the administrator – Definition of Central
Government means the President is not controlled by the second
expression “and shall include the administrator” – Ordinary or
popular meaning of the word “the President” occurring in s.3(8)(b)
B
of the 1897 Act 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
– In the definition of Central Government, an administrator shall
be read when he has been authorised or delegated a
particular function under the circumstances – General Clauses Act,
C 1897 – s. 3(8).
s.3(3) – Nomination in the Legislative Assembly of the
Puducherry, whether a business of the Government to be transacted
in accordance with r.4(2) rw r.48 of the 1963 Rules – Held: It is not
the Business of the Government of Puducherry – It is a business of
D Central Government as per s.3(3), 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 –
Rules of Business of the Government of Puducherry, 1963.
s.3(3) – Nomination by Central Government in the Legislative
E Assembly without concurrence of Government of Union Territory
of Puducherry – If violative of principles of Federalism and co-
operative Federalism – Held:Art.239A with regard to the Union
Territory of Puducherry itself envisages the constitution of
Legislative Council partly by nomination and partly by election –
Specific authority to nominate in the Legislative Council has been
F conferred by law u/s. 3 to the Central Government – Thus, there is
no breach of federal principles.
s.3(3) – Recommendations made by the High Court in so far
as recommendations made in paragraph 5(iv) of the impugned
judgment – Sustainability of – Held: Recommendations contained
G in paragraph No. 5 are nothing but recommendations to the
Parliament to frame legislation on various aspects as enumerated
in the recommendation – There being already Rules of Business for
carrying out the functions by the Central Government as per Article
77(3) of the Constitution, there is no justification for making
H recommendation in paragraph No. 5 of the impugned judgment –
Thus, recommendations are set aside.
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 691
s. 12 – Nominated members in the Legislative Assembly – Right A
to vote in the matter of budget and no-confidence motion against
the Government – Held: 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
B
expression used is votes of members present, obviously the members
of the Assembly both elected and nominated person has to be
counted, while interpreting s. 12(1) the nominated members cannot
be excluded – Thus, the statutory provision does not give indication
that nominated members have no right to vote on budget and no
confidence motion against the Government. C
Dismissing the appeals, the Court
HELD: 1.1 The Government of Union Territories 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”. D
Section 3(8) of the 1897 Act defines the expression “Central
Government”. In Section 3(8)(b) Central Government has been
defined as to “mean the President”. The next phrase used after
the semi-colon is “and shall include”. The definition of Central
Government given in Section 3(8) is a restrictive and exhaustive E
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. F
Article 239 of the Constitution provide that save as otherwise
provided by Parliament by law, every Union territory shall be
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 G
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
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692 SUPREME COURT REPORTS [2018] 14 S.C.R.
A the scope of the authority given to him under Article 239. Under
Article 239, Rules of Business have been framed. 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. A perusal of the Rules of
Business, which have been framed under Article 239 as well as
B
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. No
order of the President or Central Government has been brought
C 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 mean the President cannot be given a go bye
D
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.
[Para 15][711-B-E, G-H; 712-A-B]
E 1.2 The 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, the subject or context has to be looked into to
F apply the definition given in Section 3(8)(b) of the 1897 Act.
[Para 18][713-G-H]
1.3 The definition of Central Government means the
President is not controlled by the second expression “and shall
include the administrator”. The ordinary or popular meaning of
G the word “the President” occurring in Section 3(8)(b) of the 1897
Act 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. In the
definition of Central Government, an administrator shall be read
when he has been authorised or delegated a particular function
under the circumstances. No statutory rules or any delegation
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 693
has been referred to or brought on record under which the A
administrator is entitled or authorised to make nomination in the
Legislative Assembly of the Union Territory of Puducherry.
Thus, the definition of Central Government, as occurring in
Section 3(3) has to be read as to mean the President and not the
administrator. [Para 21][717-C-E]
B
Jagir Singh and Others v. State of Bihar and Ors. (1976)
2 SCC 942 : [1976] 2 SCR 809 ; Black Diamond
Beverages and Anr v. Commercial Tax Officer, Central
Section, Assessment Wing, Calcutta and Others (1998)
1 SCC 458 : [1997] 4 Suppl. SCR 133 – referred to.
C
2.1 The business of the Government as occurring in Rule
4 of the Rules of Business of the Government of Puducherry,
1963 has to be business which under any law is to be performed
by the Government of Puducherry. Article 239A provides that
Parliament may by law create a body, whether elected or partly
nominated and partly elected, to function as a Legislature for the D
Union Territory or Council of Ministers or both with such
Constitution, powers and functions, in each case, as may be
specified in the law. [Para 27][718-G-H]
2.2 The expression ‘law’ used in Article 239A(1) is a
Parliamentary law. When the Constitution expressly provides that E
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 F
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
cannot be the business of the Government of Puducherry. The G
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 4(2). When
Rule 4(2) itself is not attracted in reference to the nomination in
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694 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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. Thus, it cannot be said 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
B
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.[Para 28][719-A-E]
2.3 As per Government of India (Transaction of Business)
Rules, 1961 the matter of nomination in the Legislative Assembly
C 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 Minister-in-charge that is
D Home Minister. The 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.
E [Paras 32-33][721-D-F]
3. The principle of federalism as adopted in the Constitution
of India are well settled. Article 239A by which creation of local
Legislatures or Council of Ministers or both for certain Union
Territories was provided by the Constitution (Fourteenth
F 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,
G 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 695
by law for Constitution of Union Territory. Further, the Legislature A
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
B
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 Central Government, it cannot be seen
how the law made by Parliament or nominations made by Central
Government breaches the principles of federalism. The C
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, it cannot be said
D
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 E
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
F
constitutional provision, i.e. Article 239A, with regard to the Union
Territory of Puducherry itself envisages the constitution of
Legislative Council partly by 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 G
and the submission on the basis of breach of federal
principles in nomination by the Central Government is unfounded.
[Para 54][734-B-H; 735-A-D]
H
696 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Special Reference No.1 of 1964 AIR 1965 SC 745 ;
Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1 ; State of Rajasthan v.
Union of India, (1977) 3 SCC 592 : [1978] 1 SCR 1 ;
S.R. Bommai v. Union of India, (1994) 3 SCC 1 : [1994]
2 SCR 644 ; Kuldip Nayar v. Union of India, (2006) 7
B
SCC 1 : [2006] 5 Suppl. SCR 1 ; Jindal Stainless Limited
and Another v. State of Haryana and Others, (2017) 12
SCC 1 : [2016] 1 SCR 1 ; State (NCT of Delhi) v. Union
of India & Another, (2018) 8 SCC 501 ; Supreme Court
Advocates-On-Record Association and Others v. Union
C of India (1993) 4 SCC 441: [1993] 2 Suppl. SCR
659 – referred to.
4.1 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
D of the Constitution is operated in accordance with constitutional
values and constitutional morality. The 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
E or implemented which runs contrary to the expressed
constitutional provisions or contrary to the underlined
constitutional objectives and aims which Constitution sought to
achieve.[Para 68][739-D-E]
4.2 As regards the test, ‘what are the precedents’, although
F 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
G the Central Government 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 697
Congress Committee and one name at the instance of the Central A
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 2011 recommendations were made by Chief
Minister and LG but no nominations were made. The said facts
B
does not indicate uniform precedent in making nominations by
the Central Government. [Para 83][748-C-E]
4.3 The second test that is “did the actors in the precedents
believed that they were bound by the rules”, is not satisfied since
more than one occasion there is material on records that the
Central Government concluded that it is not bound by any rule C
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
sub-section (3) of Section (3). No uniform procedure was followed
nor the Central Government was under the belief that it is bound D
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 E
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 Section 3(3) of the
Act, 1963. The instance where the Central Government readily F
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 G
LG for nomination. [Para 84][748-F-H; 749-A-C]
H
698 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 4.4 In the instant case, the concern is with the exercise of
statutory power of the Central Government under sub-section
(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
B
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. No established practice or convention is
found to the fact that names for nominations to members of the
Legislative Assembly has to emanate from Chief Minister and
C can be made by the Central Government only after concurrence
by Chief Minister. [Para 87-88][750-C-E]
U.N.R. Rao v. Smt. Indira Gandhi (1971) 2 SCC 63 :
[1971] Suppl. SCR 46 ; Supreme Court Advocates-On-
Record Association and Others v. Union of India (1993)
D 4 SCC 441 : [1993] 2 Suppl. SCR 659 ; Consumer
Education and Research Society v. Union of India and
others, (2009) 9 SCC 648 : [2009] 13 SCR 664 –
referred to.
“Law of the Constitution” by Professor A.V. Dicey;
E “Modern Constitutions” by Sir Kenneth Wheare –
referred to.
5.1 The recommendations contained in paragraph No. 5 are
nothing but recommendations to the Parliament to frame
legislation on various aspects as enumerated in the
F recommendation. It has been 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
G Constitution. 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.
[Para 90][751-A-C]
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 699
5.2 There being already Rules of Business for carrying out A
the functions by the Central Government as per Article 77(3) of
the Constitution of India, there is no 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,
B
in exercise of its power, shall be guided by objective and rational
considerations. However, there is no inhibition in Central
government or the Legislature to 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 High Court C
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
D
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.
Thus, not only recommendation made in paragraph No. 5(iv) but
all the recommendations made in Paragraph No. 5 are set aside.
[Para 91][751-G-H; 752-A-D] E
6.1 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 F
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 G
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
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700 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C nominated members. [Para 92][752-F-H; 753-A-B]
6.2 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
D the expression used is votes of members present, obviously the
members of the Assembly both elected and nominated person
has to be counted, while interpreting Section 12(1) the nominated
members cannot be excluded. Further Section 12(1) uses the
expression “all questions at any sitting of the Legislative
Assembly”, the expression “all questions” shall include all
E 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. The words to
provision of Section 12 are clear and express. Further, sub-
F section(1) provides that in the voting majority of the votes of the
members present and voting, the speaker shall not be a person,
who shall vote. When provision of sub-section(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 sub-section(1). The conclusion is
G inescapable that all members including the nominated members
are entitled to vote in the sitting of the Legislative Assembly.
Other provisions like sub-section (4) of Section 12, which provides
for quorum to constitute a meeting of the Legislative Assembly
used the word “one-third of the total number of members of the
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 701
Assembly”, members of the Assembly obviously will include both A
elected and nominated members. Thus, there is no basis for
submission that nominated members cannot exercise their vote
in budget and no confidence motion against the Government. The
impugned judgment of the High Court is upheld except the
directions in paragraph 5 which are deleted. [Paras 94, 95]
B
[754-A-G]
Case Law Reference
[1976] 2 SCR 809 referred to Para 16
[1997] 4 Suppl. SCR 133 referred to Para 19
[1973] Suppl. SCR 1 referred to Para 39 C
[1978] 1 SCR 1 referred to Para 41
[1994] 2 SCR 644 referred to Para 43
[2006] 5 Suppl. SCR 1 referred to Para 45
[2016] 1 SCR 1 referred to Para 46 D
(2018) 8 SCC 501 referred to Para 48
[1993] 2 Suppl. SCR 659 referred to Para 63
[1971] Suppl. SCR 46 referred to Para 69
[2009] 13 SCR 664 referred to Para 85 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11887
of 2018.
From the Judgment and Order dated 22.03.2018 of the High
Court of Madras in W.P. (C) No. 16275 of 2017.
F
With
Civil Appeal No. 11888 of 2018.
Kapil Sibal, Ranjit Kumar, Sr. Advs., Imtiaz Ahmed, Ms. Naghma
Imtiaz, Antony R.Julian, Ms. Lubna Naaz, Vikramaditya Singh,
M/S. Equity Lex Associates, Ms. Anusha Nagarajan, Mrs. Pragya G
Baghel, Ms. Ranjeeta Rohatgi, Abhishek Thakaral, Raghav Tankha,
Koshy John, Adit S. Pujari, M. Nizamuddin Pasha, M. Vaikunth, Thomas
Franklin Ceasar, S. Gowthaman, Ms. Shradha Deshmukh, B. V. Balaram
Das, V. G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, Advs.
for the appearing parties.
H
702 SUPREME COURT REPORTS [2018] 14 S.C.R.
A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
These two appeals have been filed against the common judgment
B 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.
C
2. The background facts leading to filing of the writ petitions giving
rise to these appeals are as follows:-
2.1 Part VIII of the Constitution of India dealing with the Union
Territories was amended by Constitution (Fourteenth
D 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
E 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 inserting Article 239A, the
Parliament enacted Government of Union Territories Act,
F 1963 to provide for Legislative Assembly and Council of
Ministers for certain Union Territories and for certain other
matters.
2.2 At 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
G
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
H composition. According to Section 3(2), the total number
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 703
[ASHOK BHUSHAN, J.]
of seats in the Legislative Assembly of the Union territory A
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.
B
2.3 Election for filling thirty seats in the Legislative 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 & C
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 D
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 E
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:-
“Writ of Certiorarified Mandamus calling for the records F
on the file of the third respondent relating to the impugned
Notification bearing Ref. No. F.No.U-11012/1/2014-
UTL dated 23-06-2017 and quash the same and
consequently direct the respondents 1 to 3 to nominate
the members to the Puducherry Legislative Assembly G
only with the consultation and choice of the elected
Council of Ministers and pass such further or other
orders and thus render justice”.
2.4 On 13.11.2017, the Secretary of Puducherry Legislative
Assembly communicated the decision of the Speaker of H
704 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C of 2017 and 18788 of 2017 challenging the notification dated
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
D
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
E 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.”
F 2.5 Against 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
G 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 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 705
[ASHOK BHUSHAN, J.]
decision of the Speaker dated 23.11.2017, no appeals have A
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 B
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 C
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 D
originated from Government of 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 E
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 F
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 G
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, it was stated that Lieutenant
Governor has not sent any nominations to the Central Government and
H
706 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C 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
D
under Article 239 of the Constitution. Since Section 3(3) of the Act,
1963 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
E 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 de-establishing cooperative
F 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
G 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 no-confidence motion against the
Government. He submits that nominated members shall have no right to
H vote in above two subjects. Shri Kapil Sibal has further very candidly in
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 707
[ASHOK BHUSHAN, J.]
his submission, stated that he is not pursuing the challenge to Section A
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.
B
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 C
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 D
of the constitution. The powers and functions of the Legislative Assembly
are such as specified in the Act, 1963. The 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 E
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. F
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 G
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.
H
708 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Section 50 of Act, 1963 gives absolute power to the President to issue
any direction to the 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
B
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
C elected and partly nominated and Parliament enacted Act, 1963, for both
the elected and non-elected 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, non-
D consultation 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. Similarly, Section 46 provides
E 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 both in 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.
F
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
G 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 co-
extensive with the executive power.
11. Shri Kapil Sibal in his rejoinder submission replying the
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 709
[ASHOK BHUSHAN, J.]
submissions of learned Attorney General as well as Shri Ranjit Kumar, A
submits that the appellants are questioning the procedure adopted by
Central Government for nomination. He further reiterates that Central
Government under Section 3(3) 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
B
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 C
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 counsel for the
parties and the materials on record following are the main issues which
arise for consideration in these appeals: D
(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? E
(2) Whether the nomination in the Legislative Assembly of the
Puducherry is the business of the Government which has to be
transacted in accordance with Rule 4 sub-Rule (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 F
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 co-operative G
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 H
710 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B Territory of Puducherry and the nomination by Central Government
can only be made with the concurrence of the Government of
Puducherry?
(6) Whether recommendations made by the Madras High Court
in so far as recommendations made in paragraph 5(iv) of the
C 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?
D 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
E 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
F defines the expression “Central Government”. The 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
G commencement of the Constitution, mean the President; and shall
include,—
(i) ……………
(ii) ……………
H (iii) in relation to the administration of a Union territory, the
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 711
[ASHOK BHUSHAN, J.]
administrator thereof acting within scope of the authority given A
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 semi-colon is
“and shall include”. The definition of Central Government given in Section
3(8) is a restrictive and exhaustive definition. When the definition uses B
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 C
by law, every Union territory shall be 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 D
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 E
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 F
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 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 G
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 H
712 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C Jagir Singh and Others Vs. State of Bihar and 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
D 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
E 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.”
F 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
G 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 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 713
[ASHOK BHUSHAN, J.]
of such vehicle” in the definition of “owner” indicate that the transport A
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:-
B
“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 C
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 D
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, E
therefore, such person is the owner and not the permit holder.
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 F
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 G
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 H
714 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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:-
B “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 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
C like “unless the context otherwise requires”; or “unless the contrary
intention appears”; or “if not inconsistent with the context or
subject-matter”. “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
D 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.”
E 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
F paragraph No.5 of the judgment, which is to the following effect:-
“5. The 1954 Act generally provides for levy of a single-point 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
G 1954 Act. Sub-clause (d) of Section 2 of the 1954 Act reads as
follows:
“2. (d) ‘sale-price’ used in relation to a dealer means the amount
of the money consideration for the sale of notified commodities
manufactured, made or processed by him in West Bengal, or
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 715
[ASHOK BHUSHAN, J.]
brought by him into West Bengal from any place outside West A
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 B
includes. The first part of the definition defines the meaning of the word
‘sale-price’ 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:-
C
“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. D
This is a well-settled 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. Barton-Eccles Local Board AC at p. E
801:
‘An interpretation clause of this kind is not meant to prevent
the word 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 F
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.
G
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,
H
716 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C 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 definition
of Central Government, an administrator shall be read when he has been
authorised or delegated a particular function under the circumstances as
D 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
E 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
F 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
G of the Act, 1963 and all other powers 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:
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 717
[ASHOK BHUSHAN, J.]
“4. (1) The business of the Government in relation to matters with A
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 B
and disposed of in accordance with the provisions of Chapter IV.
(3) Notwithstanding anything contained in sub-rule (1) and sub-
rule (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.” C
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 D
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 under this Act to act in his discretion E
or by or under any law to exercise any judicial or quasi-judicial
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 F
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.
G
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 H
718 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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.
B
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:
“48. In regard to any matter referred to in sub-rule (2) of rule 4
C 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.”
D 26. As per Rule 48 with regard to matters referred to in sub-rule
(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
E 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
F 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 Government
of Puducherry. Article 239A of the Constitution provides that Parliament
G 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.
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 719
[ASHOK BHUSHAN, J.]
28. The expression ‘law’ used in Article 239A(1) is a Parliamentary A
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
B
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 C
the Legislative Assembly of Puducherry thus can never be covered by
expression ‘remaining business of the Government’ as occurring in Rule
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
D
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 E
3(3) of the Act, 1963.
29. Article 77 of the Constitution deals with “conduct of business
of the Government of India”. Article 77 sub-clause (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 F
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 sub-rule (1) of Allocation of
Business Rules which are relevant for this case are to the following
effect: G
“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”).
H
720 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B with their subjects and Sub-rules (2), (3) and (4) of this Rule.
xxx xxx xxx xxx
xxx xxx xxx xxx
xxx xxx xxx xxx
C 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 sub-clause (b) Union of
D 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:
E
(a) xxx xxx xxx xxx
(b) Union Territory of Pondicherry:
All matters falling within the purview of the Central Government
in terms of provisions contained in Part VIII of the Constitution in
F 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
G 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 721
[ASHOK BHUSHAN, J.]
3(3) are assigned under the Allocation of Business Rules by the President A
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
B
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 (Allocation of Business) Rules, C
1961, shall be disposed of by, or under the general or special
directions of, the Minister-in-charge.”
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 D
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 Minister-in-charge that is Home
Minister.
33. In view of the foregoing discussion, we are of the clear opinion E
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, F
1961. The issue is answered accordingly.
Issue No. 3
Whether Principles of Federalism or Cooperative
Federalism has been violated in the present case?
G
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 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
H
722 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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;-
C “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
D 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
E the States at 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
F 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:-
G “…………………. 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
H necessary consequences (1) that any invasion by the Federal
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 723
[ASHOK BHUSHAN, J.]
Government in the field assigned to the States and vice versa is a 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 B
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 Page
976 said:-
“There is only one point of constitutional import to which I propose C
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 D
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 E
way dependent upon the Centre for their legislative or executive
authority. The Centre and the States are co-equal 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 F
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 G
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
seven-Judge Constitution Bench of this Court in Special Reference H
724 SUPREME COURT REPORTS [2018] 14 S.C.R.
A No.1 of 1964, AIR 1965 SC 745 held that essential characteristics of
federalism is the 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
B 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
C 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
D 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
E 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
F 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 the
basic structures of the Constitution.
40. Shelat and Grover, JJ. while delivering concurring opinion had
G also stated that our Constitution has all essential elements of federal
structure. In para 486 following was stated: (Kesavananda Bharati case,
SCC pp. 408-09)
“486. The Constitution has all the essential elements of a federal
structure as was the case in the Government of India Act, 1935,
H the essence of federalism being the distribution of powers between
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 725
[ASHOK BHUSHAN, J.]
the federation or the Union and the States or the provinces. All A
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
B
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 seven-Judge Bench in State of Rajasthan v. Union C
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 D
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 E
very peculiar state of sentiment among the 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 F
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 G
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
H
726 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B “inasmuch as it establishes what may be called a Dual Polity”, he
also said, in the Constituent Assembly, that our Constitution-makers
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
C ‘both unitary as well as federal according to the requirements of
time and circumstances’.”
43. A nine-Judge 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 federal character of the
D Constitution in para 14 following was stated: (SCC pp. 68-69)
“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
E 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
F 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 “quasi-federal” because it is a mixture
G 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
Sub-Continent, this was probably a natural and necessary decision.
In paras 275 and 276 following was stated: (S.R. Bommai case, SCC
H pp. 215-17)
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 727
[ASHOK BHUSHAN, J.]
“275. A review of the provisions of the Constitution shows A
unmistakably that while creating a federation, the Founding Fathers
wished to establish a strong Centre. In the light of the past history
of this sub-continent, 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
B
of legislative heads between the Centre and States. All 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 C
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 subject-matter. 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.
D
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-à-vis the States does not
mean that States are mere appendages of the Centre. Within the E
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 F
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 G
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 H
728 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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 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.
B
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-à-vis the States [Automobile
Transport (Rajasthan) Ltd. v. State of Rajasthan3, SCR p. 540].
It is equally necessary to emphasise that courts should be careful
C not to upset the delicately-crafted 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
D between various States and it has been described as quasi-federation
and similar other concepts.
46. A nine-Judge 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
E 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
F Constitution. 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 subject-matter 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
G well settled that the Constitution provides for a quasi-federal
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
H to constitute a federal Union, where each State enjoins a privilege
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 729
[ASHOK BHUSHAN, J.]
of having a Constitution of its own, the significant features of a A
federal Constitution are found in the Indian Constitution which
makes it a quasi-federal 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
B
celebrated decision of this Court in Kesavananda Bharati case15,
wherein a thirteen-Judge 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 C
Constitution in the following words: (SCC p. 366, paras 292-94)
“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 D
features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution; E
(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.
F
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.” G
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.”
H
730 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B 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
C 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
D adopted with necessary modification in the framework of the
Constitution to suit the country’s necessity and requirement. The
sum 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.”
E
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
F 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
G 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:
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 731
[ASHOK BHUSHAN, J.]
“the systems of Government embody predominantly on division A
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 B
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. rule by the people and federalism C
are firmly imbibed in our constitutional ethos. Whatever be the
nature of federalism present in the Indian Constitution, whether
absolutely federal or quasi-federal, 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 D
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 E
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 F
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 G
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 H
732 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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.’”
122. We have dealt with the conceptual essentiality of federal
B 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
C Article 239-AA 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
D 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 quasi-federal tone of our
Constitution, the Union Government would affect the interest of
the States. Similarly, the States under our constitutional scheme
E 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
F 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
G 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:-
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 733
[ASHOK BHUSHAN, J.]
“123. In this context, we may also deal with an ancillary issue, A
namely, pragmatic federalism. To appreciate the said concept,
we are required to analyse the nature of federalism that is
conceived under the Constitution. Be it noted, the essential
characteristics of federalism like duality of governments,
distribution of powers between the Union and the State
B
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 C
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
D
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 E
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 F
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 quasi-federal but the
essential characteristics of the federal system are ingrained in the
Constitution and reflect in different Constitutional provisions which are G
(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. H
734 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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.
B
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
C concurrence of the Government of Union Territory of Puducherry. Article
239A by which creation of local 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
D 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.
E 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
F 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 Central Government, we
fail to see that how the law made by Parliament or nominations made by
G 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
H Puducherry, we fail to see any substance in the argument of Shri Kapil
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 735
[ASHOK BHUSHAN, J.]
Sibal that by nominations made by Central Government, federal principles A
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
B
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 C
by 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.
D
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 E
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 F
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 G
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
H
736 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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 language the prerogative,
ought (i.e. is expected by the nation) to be employed.”
B 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
C 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
D 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.”
E
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
F they provide the flesh which clothes the dry bones of the law;
they make the legal 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:-
G
“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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 737
[ASHOK BHUSHAN, J.]
rule applied to customary law. Practice alone is not enough. It A
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 B
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
C
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 D
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 we have seen, the convention may be broken with E
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
Advocates-On-Record Association and Others Vs. Union of India,
(1993) 4 SCC 441 (Para 346). The Constituent Assembly while drafting F
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 G
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 H
738 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B Government will be framed and put in. This also is a non-
controversial thing and I move the proposition for the acceptance
of the House.”
64. Although Schedule IIIA was contemplated codifying convention
but at the later stage it was decided to drop codifying the convenient.
C 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 viz-a-viz the Ministers was
also moved to be deleted. On the questioning of deletion of the Schedule,
D 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,
E 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....”
F 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.
G 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:
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 739
[ASHOK BHUSHAN, J.]
“as its name implies, constitutional; not simply as having for its A
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
B
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 C
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 D
convention is to ensure that the legal framework of the Constitution is
operated in accordance with constitutional values and constitutional
morality. The 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 E
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. F
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. G
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
H
740 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C prevalent at the time the Constitution was framed.”
“11. We are grateful to the learned Attorney-General 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.
D 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.”
E
70. The most elaborate consideration of Constitutional convention
was undertaken by the Constitution Bench of this Court in Supreme
Court Advocates-on-record 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
F 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
G are interpreted 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
H Constitution, a great deal may be left unsaid in legal rules
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 741
[ASHOK BHUSHAN, J.]
allowing enormous discretion to the constitutional A
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.)
B
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 C
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 D
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 E
legislature-executive 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 F
administration and judicial behaviour, in the civil service,
in local government, and in the relations with other
members of the Commonwealth.””
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 G
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: H
742 SUPREME COURT REPORTS [2018] 14 S.C.R.
A “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.
B 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
C 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
D them as bound by it.””
72. This Court after referring to several treatises on the
constitutional law held that the constitutional functionaries have to follow
the same as a binding precedent. In paragraphs 351 and 353 following
was held:
E
“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
F 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
G 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.
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 743
[ASHOK BHUSHAN, J.]
353. We are of the view that there is no distinction between A
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
B
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 Jennings was also approved and applied in the following
words in paragraph 357: C
“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 D
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 E
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 F
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. G
75. Learned counsel appearing for the Union of India has 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 H
744 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B EARLIER OCCASIONS
Centre Union Remarks
Territory
1985 Congress Congress File not traceable
1990 Congress DMK On the recommendations of LG FLAG 1
FLAG 1A
1995 Congress Congress CM directly recommended names to FLAG 2
C the Home Minister out of which only FLAG 2A
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
D cancelled by a later notification.
1997 DMK Out of 3 MLA’s, two on the FLAG 3
recommendation of LG and one on the FLAG 3A
recommendation of CM FLAG 3B
2001 NDA Congress NO CM recommendation. Persons FLAG 4
recommended by LG were holding FLAG 4A
office of profit and hence nominations FLAG 4B
E not done. FLAG 4C
2005 UPA Congress All 3 MLA’s nominated on the FLAG 5
recommendation of CM & LG FLAG 5A
FLAG 5B
FLAG 5C
2007 UPA Congress All 3 MLA’s nominated on the FLAG 6
F recommendation of CM and LG FLAG 6A
FLAG 6B
2011 UPA NR Congress Recommendation sent by LG & CM. FLAG 7
However, nominations not done. FLAG 7A
FLAG 7B
2014 UPA NR Congress All 3 MLA’s nominated on the FLAG 8
recommendation of CM and LG FLAG 8A
FLAG 8B
G 2017 NDA Congress No recommendations received either FLAG 8C
from LG or CM
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
H above Chart. The position of nomination is different in the year 1995,
2001 and 2011 which needs to be specifically noted.
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 745
[ASHOK BHUSHAN, J.]
77. In the year 1995, Chief Minister of the Pondicherry suggested A
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 and one name of its own. Notification
B
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, C
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 D
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 E
its Legislative Assembly under sub-section (3) of section 3 of the
Act.”
No final nominations could be made in the year 2001, 2002 and
2003.
79. In the year 2011, although recommendations were sent by the F
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 G
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:
H
746 SUPREME COURT REPORTS [2018] 14 S.C.R.
A “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
B 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
C 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
D prescribed procedure is 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
E 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
F 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 sub-section
(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
G
Assembly of Puducherry. However, it is relevant to note the
members nominated in the manner envisaged in sub-section
(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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 747
[ASHOK BHUSHAN, J.]
and will be disqualified from being members of the Legislative A
Assembly if found within Section 14 of the Government of
Union Territories Act, 1963.
ii. Re: Query (iii): The Central Government may in its wisdom
consult the Administrator of Puducherry for consideration of
names for appointment of nominated members to the B
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 C
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 D
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.
E
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 F
1985 till 2017, now the question has to be answered as to 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
G
Sir W. Ivor Jennings, as approved by this Court in Supreme Court
Advocates-on-record Association case for establishing the existence
of a convention. The relevant test, as noticed above, is again reproduced
for ready reference:
H
748 SUPREME COURT REPORTS [2018] 14 S.C.R.
A “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
B
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
C 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 were of the same political party or were of allies. But the
D 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
E 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.
F 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
G be accepted by the Central Government or recommendations of Chief
Minister is a condition precedent for exercising power under sub-section
(3) of Section (3). No uniform procedure was followed nor the Central
Government was under the belief that 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 749
[ASHOK BHUSHAN, J.]
recommendations sent by Chief Minister or LG or ask for suitable names A
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
B
under sub-section (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 C
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 consideration D
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 fifty-five offices relating to statutory
bodies/non-statutory bodies, without referring the proposal to the
Joint Committee would render the amendment a colourable E
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 F
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 G
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,
H
750 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
denude the power of Parliament to make a law. Nor can such
law which is 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
C the Parliament where in the present case we are concerned with the
exercise of statutory power of the Central Government under sub-section
(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
D 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
E 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
F has made certain recommendations. He has taken exception to 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
G 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 inter-alia owing to Explanation (b) to
paragraph 2(1)(b) of Tenth Schedule to COI using the term
‘political party’ and not ‘legislature party’.”
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 751
[ASHOK BHUSHAN, J.]
90. We have perused the recommendations made in Paragraph A
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
B
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 C
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 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 D
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 E
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 F
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.” G
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.
H
752 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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 make Rules or a Statute for more convenient transaction
of business regarding nominations. Recommendations to the Legislature
B
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.
C 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 tat not
only recommendation made in paragraph No. 5(iv) but all the
recommendations made in Paragraph No. 5 deserves to be set aside. In
D
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
E 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 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
F 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
G 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
H
K. LAKSHMINARAYANAN v. UNION OF INDIA & ANR. 753
[ASHOK BHUSHAN, J.]
of Act, 1963 refers to members of the Legislative Assembly. Section 11 A
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 purpose in the First
Schedule. The expression “every member of the Legislative Assembly
B
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:- C
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 D
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. E
(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 F
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 one-third of the total number of
members of the Assembly.
(5) If at any time during a meeting of the Legislative Assembly G
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.
H
754 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 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
B
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
C 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, sub-section(1)
provides that in the voting majority of the votes of the members present
and voting, the speaker shall not be a person, who shall vote. When
provision of sub-section(1) clearly provides no voting by Speaker, if
D
intention of Legislature was to exclude the votes of nominated members,
the said expression was bound to find included in the sub-section(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
E vote in budget and no confidence motion has to be rejected. Other
provisions like sub-section (4) of Section 12, which provides for quorum
to constitute a meeting of the Legislative Assembly used the word “one-
third 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
F
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
G appeals are dismissed subject to the deletion of recommendations made
in paragraph 5 of the judgment. Parties shall bear their own costs.
Nidhi Jain Appeals dismissed.
H
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