K. LAKSHMINARAYANAN versus UNION OF INDIA & ANR.

K. LAKSHMINARAYANAN

UNION OF INDIA & ANR.

(Civil Appeal No. 11887 of 2018)

DECEMBER 06, 2018

[A. K. SIKRI, ASHOK BHUSHAN ANDS. ABDUL NAZEER, JJ.]

Government of Union Territories Act, 1963:

s.3(3) – Nominations made by the Central Government inexercise of power u/s. 3(3) to the Legislative Assembly of UnionTerritory of Puducherry – Whether Central Government underobligation to consult the Council of Ministers/Chief Minister ofGovernment of Union Territory of Puducherry and the nominationby Central Government to be made only with the concurrence ofthe Government of Puducherry – Whether there is constitutionalconvention to consult the Government of Puducherry, on the strengthof the fact that on six earlier occasions when the nominations weremade, the Central Government has consulted the Government ofPuducherry before making nominations – Held: For nomination byCentral Government, concurrence of Council of Ministers/ChiefMinister of Government of Union Territory of Puducherry notrequired – There is no established practice or convention that namesfor nominations to members of the Legislative Assembly has toemanate from Chief Minister and can be made by CentralGovernment only after concurrence by Chief Minister – In exercisingthe power u/s. 3(3) no particular statutory procedure having beenprescribed except the exercise of power as per Allocation of BusinessRules and Transaction of Business Rules, 1961 – Nominations madecannot be held to be vitiated on the submission that particularprocedure which was followed in some earlier cases was notfollowed.

s.3(3) – Nomination of members of the Legislative Assemblyof Union territory by Central Government – Expression “CentralGovernment” in s.3(3) – Whether the expression “CentralGovernment” means an Administrator, who has to exercise the powerof nomination that too on the aid and advise of the Council of

CDE

AMinisters of the Union Territory of Puducherry – Held: Definitionof Central Government, as occurring in s.3(3) has to be read as tomean the President and not the administrator – Definition of CentralGovernment means the President is not controlled by the secondexpression “and shall include the administrator” – Ordinary orpopular meaning of the word “the President” occurring in s.3(8)(b)Bof the 1897 Act has to be given and the second part of the definitionshall not in any way control or affect the first part of the definition– In the definition of Central Government, an administrator shallbe read when he has been authorised or delegated aparticular function under the circumstances – General Clauses Act,C1897 – s. 3(8).

s.3(3) – Nomination in the Legislative Assembly of thePuducherry, whether business of the Government to be transactedin accordance with r.4(2) rw r.48 of the 1963 Rules – Held: It is notthe Business of the Government of Puducherry – It is business ofDCentral Government as per s.3(3), to be carried out in accordancewith the Government of India (Allocation of Business) Rules, 1961and 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 LegislativeEAssembly without concurrence of Government of Union Territoryof Puducherry – If violative of principles of Federalism and co-operative Federalism – Held:Art.239A with regard to the UnionTerritory of Puducherry itself envisages the constitution ofLegislative Council partly by nomination and partly by election –Specific authority to nominate in the Legislative Council has beenFconferred by law u/s. 3 to the Central Government – Thus, there isno breach of federal principles.s.3(3) – Recommendations made by the High Court in so faras recommendations made in paragraph 5(iv) of the impugnedjudgment – Sustainability of – Held: Recommendations containedGin paragraph No. 5 are nothing but recommendations to theParliament to frame legislation on various aspects as enumeratedin the recommendation – There being already Rules of Business forcarrying out the functions by the Central Government as per Article77(3) of the Constitution, there is no justification for makingHrecommendation in paragraph No. 5 of the impugned judgment –Thus, recommendations are set aside.

s. 12 – Nominated members in the Legislative Assembly – Rightto vote in the matter of budget and no-confidence motion againstthe Government – Held: Section 12(1) provides that all questions atany sitting of the Legislative Assembly of the Union territory shallbe determined by majority of votes of the members present andvoting other than the Speaker or person acting as such – When theexpression used is votes of members present, obviously the membersof the Assembly both elected and nominated person has to becounted, while interpreting s. 12(1) the nominated members cannotbe excluded – Thus, the statutory provision does not give indicationthat nominated members have no right to vote on budget and noconfidence motion against the Government.

Dismissing the appeals, the Court

HELD: 1.1 The Government of Union Territories Act, 1963does not define the expression “Central Government”. Theprovision of General Clauses Act, 1897 had to be looked into tofind out the definition of the expression “Central Government”.Section 3(8) of the 1897 Act defines the expression “CentralGovernment”. In Section 3(8)(b) Central Government has beendefined as to “mean the President”. The next phrase used afterthe semi-colon is “and shall include”. The definition of CentralGovernment given in Section 3(8) is restrictive and exhaustivedefinition. When the definition uses the word “mean thePresident”, the clear intention is that Central Government is thePresident, the next phrase “and shall include in relation to theadministration of Union territory, the administrator thereofacting within the scope of the authority given to him under Article239 of the Constitution” has been added with purpose and object.Article 239 of the Constitution provide that save as otherwiseprovided by Parliament by law, every Union territory shall beadministered by the President acting, to such extent as he thinksfit, through an administrator to be appointed by him with suchdesignation as he may specify. As per definition of Section3(8)(b)(iii) administrator shall include in the definition of CentralGovernment when in relation to the administration of Unionterritory, the administrator thereof acting within the scope of theauthority given to him under Article 239 of the Constitution. Thus,the administrator will be Central Government when he acts within

Athe scope of the authority given to him under Article 239. UnderArticle 239, Rules of Business have been framed. Executivefunctions of the administrator as contemplated by Rule 4(2) readwith Rule 48 shall include variety of the executive functions,which he is authorised to discharge. perusal of the Rules ofBusiness, which have been framed under Article 239 as well asBSection 46 of the Act, 1963 does not expressly indicate that in sofar as power of nomination to be exercised by the Centralgovernment under Section 3(3), the administrator or Governmentof Puducherry has been authorised or delegated any function. Noorder of the President or Central Government has been broughtCon the record on the basis of which it can be concluded that withregard to right of nomination to be exercised by the CentralGovernment under Section 3(3) of Act, 1963, any function hasbeen delegated, authorised or instructed to the administrator.The definition of Central Government given under Section3(8)(b)(iii), which mean the President cannot be given go byeDto rely on the next expression “shall include” the administrator.The context of subject has to be looked into while findingout as to whether in context of Section 3(3), the Centralgovernment shall mean the President or the administrator.[Para 15][711-B-E, G-H; 712-A-B]

1.2 The definition clause in Section 3 of the General ClausesAct, 1897 begins with the expression “In this Act, and in allCentral Acts and Regulations made after the commencement ofthis Act, unless there is anything repugnant in the subject orcontext”. Thus, the subject or context has to be looked into toFapply 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 thePresident is not controlled by the second expression “and shallinclude the administrator”. The ordinary or popular meaning ofGthe word “the President” occurring in Section 3(8)(b) of the 1897Act has to be given and the second part of the definition shall notin any way control or affect the first part of the definition. In thedefinition of Central Government, an administrator shall be readwhen he has been authorised or delegated particular functionunder the circumstances. No statutory rules or any delegationH

has been referred to or brought on record under which theadministrator is entitled or authorised to make nomination in theLegislative Assembly of the Union Territory of Puducherry.Thus, the definition of Central Government, as occurring inSection 3(3) has to be read as to mean the President and not theadministrator. [Para 21][717-C-E]

Jagir Singh and Others v. State of Bihar and Ors. (1976)2 SCC 942 : [1976] 2 SCR 809 ; Black DiamondBeverages and Anr v. Commercial Tax Officer, CentralSection, Assessment Wing, Calcutta and Others (1998)1 SCC 458 : [1997] 4 Suppl. SCR 133 – referred to.

2.1 The business of the Government as occurring in Rule4 of the Rules of Business of the Government of Puducherry,1963 has to be business which under any law is to be performedby the Government of Puducherry. Article 239A provides thatParliament may by law create body, whether elected or partlynominated and partly elected, to function as Legislature for theUnion Territory or Council of Ministers or both with suchConstitution, powers and functions, in each case, as may bespecified in the law. [Para 27][718-G-H]

2.2 The expression ‘law’ used in Article 239A(1) is aParliamentary law. When the Constitution expressly provides thatit is the Parliament which may provide by law, constitution ofLegislature for the Union Territory, it is the Parliament alonewhich can provide for constitution of Legislative Assembly forUnion Territory under the Act, 1963. Section 3 does provide forconstitution of Legislative Assembly for Union Territory withthirty members to be elected members and three members to benominated by the Central Government. When the Parliamentarylaw as envisaged by Article 239A provides for the constitution ofLegislative Assembly of the Union Territory which also includesnomination, the said constitution which also includes nominationcannot be the business of the Government of Puducherry. Thenominations of the members to the Legislative Assembly ofPuducherry thus can never be covered by expression ‘remainingbusiness of the Government’ as occurring in Rule 4(2). WhenRule 4(2) itself is not attracted in reference to the nomination in

Athe Legislative Assembly, there is no occasion of applicability ofRule 48 that is consultation with the Council of Ministers or theChief Minister by the Administrator. Thus, it cannot be said thatnomination in the Legislative Assembly in the Puducherry is thebusiness of the Government of Puducherry and is to be exercisedin accordance with Rule 4(2) read with Rule 48. The nominationBin the Legislative Assembly in the Puducherry is to be made bythe Central Government by virtue of Article 239A read withSection 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 AssemblyCof Puducherry not being matter in regard to consultation withother departments and submission of the cases to the PrimeMinister, the Cabinet and its Committees and the President, theabove business is to be disposed of by or under the general orspecial orders or the directions of the Minister-in-charge that isDHome Minister. The nomination in the Legislative Assembly ofPuducherry is not the Business of the Government of Puducherry.It is business of Central Government as per Section 3(3) ofAct, 1963 which is to be carried out in accordance with theGovernment of India (Allocation of Business) Rules, 1961 andGovernment of India (Transaction of Business) Rules, 1961.E[Paras 32-33][721-D-F]

3. The principle of federalism as adopted in the Constitutionof India are well settled. Article 239A by which creation of localLegislatures or Council of Ministers or both for certain UnionTerritories was provided by the Constitution (FourteenthFAmendment) Act, 1962 empowering the Parliament by law, tocreate for the Union Territory of Puducherry, body, whetherelected or partly nominated and partly elected, to function as aLegislature for the Union Territory, or Council of Ministers, orboth with such constitution, powers and functions, in each case,Gas may be specified in the law. The Constitution, thus, by Article239A has empowered the Parliament to create Legislature forthe Union Territory by law with such constitution, powers andfunctions as may be specified in the law. Thus, it is theConstitution itself, which is empowering Parliament to provide

by law for Constitution of Union Territory. Further, the Legislatureas body contemplated by Article 239A is body, whether electedor partly nominated and partly elected. Thus, the Constitutionprovision itself contemplate creation of Legislature whetherelected or partly nominated and partly elected. When theConstitution itself empowers the Parliament to frame law to createa body, which may be partly nominated and partly elected andSection 3 of the Act, 1963, which provide for thirty seats to befilled up by persons chosen by direct election and three seats bynominations made by the Central Government, it cannot be seenhow the law made by Parliament or nominations made by CentralGovernment breaches the principles of federalism. TheConstitution of Legislative body for Union Territory beingentrusted to the Parliament by Constitution and there being noindication in the Constitutional provision or provisions of the Act,1963 that said nomination has to be made with concurrence ofGovernment of Union Territory of Puducherry, it cannot be saidthat by nominations made by Central Government, federalprinciples or principle of cooperative federalism has been violated.The concept of federalism itself envisages distribution of powerbetween Union and States. It is further to be noticed that UnionTerritories are not States. These Union Territories, ordinarily,belong to the Union (i.e. the Central Government) and thereforethey are called ‘Union Territories’. That is why they are governedunder the administrative control of the President of India. Thatis the clear purport behind Article 239. However, to limitedextent, the power of the Union is diluted with respect toPuducherry vide Article 239A. At the same time, thisconstitutional provision, i.e. Article 239A, with regard to the UnionTerritory of Puducherry itself envisages the constitution ofLegislative Council partly by nomination and partly by election.Further, specific authority to nominate in the Legislative Councilhas been conferred by law i.e. under Section 3 to the CentralGovernment. Thus no breach of federal principles are made outand the submission on the basis of breach of federalprinciples in nomination by the Central Government is unfounded.[Para 54][734-B-H; 735-A-D]

CDE

ASpecial Reference No.1 of 1964 AIR 1965 SC 745 ;Kesavananda Bharati v. State of Kerala (1973) 4 SCC225 : [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) 7BSCC 1 : [2006] 5 Suppl. SCR 1 ; Jindal Stainless Limitedand Another v. State of Haryana and Others, (2017) 12SCC 1 : [2016] 1 SCR 1 ; State (NCT of Delhi) v. Unionof India & Another, (2018) 8 SCC 501 ; Supreme CourtAdvocates-On-Record Association and Others v. UnionCof India (1993) 4 SCC 441: [1993] 2 Suppl. SCR659 – referred to.

4.1 The constitutional conventions are born and recognisedin working of the Constitution. The purpose and object ofconstitutional convention is to ensure that the legal frameworkDof the Constitution is operated in accordance with constitutionalvalues and constitutional morality. The constitutional conventionsalways aims to achieve higher values and objectives enshrinedin the Constitution. The conventions are not static but can changewith the change in constitutional values and constitutionalinterpretations. No constitutional convention can be recognisedEor implemented which runs contrary to the expressedconstitutional provisions or contrary to the underlinedconstitutional objectives and aims which Constitution sought toachieve.[Para 68][739-D-E]4.2 As regards the test, ‘what are the precedents’, althoughFit is indicated that on several occasions on the recommendationsof the Chief Minister/LG nominations were made by the CentralGovernment, one relevant fact cannot be lost sight thatrecommendations made by CM/LG were readily accepted by theCentral Government when the Government of Puducherry andGthe Central Government were of the same political party or wereof allies. But the instance of year 1995 indicates that therecommendations made by Chief Minister were not followed andthe nominations were made taking one name from ChiefMinister’s recommendation, one name from Puducherry Pradesh

Congress Committee and one name at the instance of the CentralGovernment itself which nominations, however, subsequentlywere cancelled. In the year 2001 recommendations made by ChiefMinister and LG were not accepted and no nominations weremade. Similarly, in 2011 recommendations were made by ChiefMinister and LG but no nominations were made. The said factsdoes not indicate uniform precedent in making nominations bythe Central Government. [Para 83][748-C-E]

4.3 The second test that is “did the actors in the precedentsbelieved that they were bound by the rules”, is not satisfied sincemore than one occasion there is material on records that theCentral Government concluded that it is not bound by any rulethat recommendations made by Chief Minister is to be acceptedby the Central Government or recommendations of ChiefMinister is condition precedent for exercising power undersub-section (3) of Section (3). No uniform procedure was followednor the Central Government was under the belief that it is boundunder the Rule to accept the recommendations made by the ChiefMinister. It is true that there is no inhibition in the CentralGovernment considering the recommendations sent by ChiefMinister or LG or ask for suitable names from Chief Minister/LG or even suggests suitable names to the Chief Minister/LGbut the fact that the Central Government can consider therecommendations or call for names is not akin to saying that therewas any precedent or rule that unless the names arerecommended by Chief Minister the Central Government isincapacitated in exercising its powers under Section 3(3) of theAct, 1963. The instance where the Central Government readilyaccepted recommendations made by LG or Chief Minister whichemanated from the Government belonging to the same politicalparty cannot be said to be action of then Central Government byvirtue of any rule or convention rather the acts have to be treatedas convenient exercise of power. The Central Government canreceive input from any quarter including the Chief Minister orLG for nomination. [Para 84][748-F-H; 749-A-C]

A4.4 In the instant case, the concern is with the exercise ofstatutory power of the Central Government under sub-section(3) of Section 3 of the Act, 1963. In exercising the power underSection 3(3) no particular statutory procedure having beenprescribed except the exercise of power as per Allocation ofBusiness Rules and Transaction of Business Rules, 1961Bnominations made cannot be held to be vitiated on the submissionthat particular procedure which was followed in some earliercases was not followed. No established practice or convention isfound to the fact that names for nominations to members of theLegislative Assembly has to emanate from Chief Minister andCcan be made by the Central Government only after concurrenceby 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)D4 SCC 441 : [1993] 2 Suppl. SCR 659 ; ConsumerEducation and Research Society v. Union of India andothers, (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 arenothing but recommendations to the Parliament to framelegislation on various aspects as enumerated in therecommendation. It has been concluded that it is the CentralFGovernment, which is under Section 3(3) empowered to nominatemembers in the Legislative Assembly of Union Territory. Theprocedure and manner of taking decision by Central Governmenthas already been regulated by Rules of Business framed byPresident in exercise of power under Article 77 of theGConstitution. The Rules framed by President of India under Article77(3) are applicable to all executive actions of the CentralGovernment including Constitutional and Statutory functions.[Para 90][751-A-C]

5.2 There being already Rules of Business for carrying outthe functions by the Central Government as per Article 77(3) ofthe Constitution of India, there is no justification for makingrecommendation in paragraph No. 5 of the impugned judgment.Furthermore, the power is to be exercised by CentralGovernment and it is to be presumed that Central Government,in exercise of its power, shall be guided by objective and rationalconsiderations. However, there is no inhibition in Centralgovernment or the Legislature to make Rules or Statute formore convenient transaction of business regarding nominations.Recommendations to the Legislature and the high Constitutionauthorities are not made in routine manner and High Courtought to have desisted for making any recommendations ascontained in paragraph No. 5. The qualifications anddisqualifications to become member or continue to be memberof Legislative Assembly have already been provided in the Act,1963. The qualifications and disqualifications for members ofLegislative Assembly are provided in the Act, 1963 and otherrelevant Statutes, which are always to be kept in mind, whileexercising any Statutory functions by the Central Government.Thus, not only recommendation made in paragraph No. 5(iv) butall the recommendations made in Paragraph No. 5 are set aside.[Para 91][751-G-H; 752-A-D]

6.1 Article 239A which provides for composition of UnionTerritory of Puducherry itself contemplated that the Parliament,may by law, create body, (i) whether elected or; (ii) partlynominated and partly elected, to function as Legislature for theUnion Territory of Puducherry. Under Article 239, the Parliamenthas enacted the law, i.e., the Government of Union Territory Act,1963, Section 3 of which provides that there shall be LegislativeAssembly for each Union territory. The total number of seats inthe Legislative Assembly of the Union territory to be filled bypersons chosen by direct election shall be thirty and the CentralGovernment may nominate not more than three persons, to bemembers of the Legislative Assembly of the Union territory. Thus,the composition of Legislative Assembly itself consists of bothpersons chosen by direct election and persons nominated by theCentral Government. Both elected and nominated persons are

ABCDE

Apart of Legislative Assembly. The provisions of Act, 1963 refersto members of the Legislative Assembly. Section 11 providesthat every member of the Legislative Assembly of the Unionterritory shall, before taking his seat, make and subscribe beforethe Administrator, or some person appointed in that behalf byhim, an oath or affirmation according to the form set out for theBpurpose in the First Schedule. The expression “every memberof the Legislative Assembly of the Union territory” shall includeboth elected and nominated members. It is further clarified byFirst Schedule of the Act, 1963, which contains the forms of oathsand affirmations, which expressly refers both elected andCnominated members. [Para 92][752-F-H; 753-A-B]

6.2 Section 12(1) provides that all questions at any sittingof the Legislative Assembly of the Union territory shall bedetermined by majority of votes of the members present andvoting other than the Speaker or person acting as such. WhenDthe expression used is votes of members present, obviously themembers of the Assembly both elected and nominated personhas to be counted, while interpreting Section 12(1) the nominatedmembers cannot be excluded. Further Section 12(1) uses theexpression “all questions at any sitting of the LegislativeAssembly”, the expression “all questions” shall include allEmatters, which are to be decided in any sitting of the LegislativeAssembly. The Statutory provision does not give indication thatnominated members have no right to vote on budget and noconfidence motion against the Government. The words toprovision of Section 12 are clear and express. Further, sub-Fsection(1) provides that in the voting majority of the votes of themembers present and voting, the speaker shall not be person,who shall vote. When provision of sub-section(1) clearly providesno voting by Speaker, if intention of Legislature was to excludethe votes of nominated members, the said expression was bound

to find included in the sub-section(1). The conclusion isGinescapable that all members including the nominated membersare entitled to vote in the sitting of the Legislative Assembly.Other provisions like sub-section (4) of Section 12, which providesfor quorum to constitute meeting of the Legislative Assemblyused the word “one-third of the total number of members of theH

Assembly”, members of the Assembly obviously will include bothelected and nominated members. Thus, there is no basis forsubmission that nominated members cannot exercise their votein budget and no confidence motion against the Government. Theimpugned judgment of the High Court is upheld except thedirections in paragraph 5 which are deleted. [Paras 94, 95][754-A-G]

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11887of 2018.

From the Judgment and Order dated 22.03.2018 of the HighCourt of Madras in W.P. (C) No. 16275 of 2017.

With

Civil Appeal No. 11888 of 2018.

Kapil Sibal, Ranjit Kumar, Sr. Advs., Imtiaz Ahmed, Ms. NaghmaImtiaz, Antony R.Julian, Ms. Lubna Naaz, Vikramaditya Singh,M/S. Equity Lex Associates, Ms. Anusha Nagarajan, Mrs. PragyaGBaghel, Ms. Ranjeeta Rohatgi, Abhishek Thakaral, Raghav Tankha,Koshy John, Adit S. Pujari, M. Nizamuddin Pasha, M. Vaikunth, ThomasFranklin Ceasar, S. Gowthaman, Ms. Shradha Deshmukh, B. V. BalaramDas, V. G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj, Advs.for the appearing parties.

AThe Judgment of the Court was delivered byASHOK BHUSHAN, J.

1. Leave granted.

These two appeals have been filed against the common judgmentBof Madras High Court dated 22.03.2018 by which the writ petitions filedby the appellants questioning the nominations made by the CentralGovernment in exercise of power under Section 3(3) of the Governmentof Union Territories Act, 1963 (hereinafter referred to as “Act, 1963”),to the Legislative Assembly of Union Territory of Puducherry has beendismissed.C2. The background facts leading to filing of the writ petitions givingrise to these appeals are as follows:-

2.1Part VIII of the Constitution of India dealing with the UnionTerritories was amended by Constitution (FourteenthDAmendment) Act, 1962 by inserting Article 239A, whichprovides for “creation of local Legislatures or Council ofMinisters or both for certain Union Territories.” Article239A provided that Parliament, may by law, create for theUnion Territory of Pondicherry, body, whether elected orpartly nominated and partly elected, to function as aELegislature for the Union Territory, or Council of Ministers,or both with such constitution, powers and functions, in eachcase, as may be specified in the law. After the aboveConstitutional amendment inserting Article 239A, theParliament enacted Government of Union Territories Act,1963 to provide for Legislative Assembly and Council ofFMinisters for certain Union Territories and for certain othermatters.

2.2At the time of commencement of Act, 1963, there werelarge number of Union Territories, which were to begoverned by the Act, 1963. Gradually, several UnionGTerritories were upgraded to the status of State and ason date, the definition of Union Territories under Section2(h) defines “Union Territory” as the Union Territory ofPuducherry. Section 3 of the Act, 1963 provides forLegislative Assemblies for Union territories and theirHcomposition. According to Section 3(2), the total number

of seats in the Legislative Assembly of the Union territoryto be filled by persons chosen by direct election shall bethirty and as per Section 3(3), the Central Government maynominate not more than three persons, not being persons inthe service of Government, to be members of the LegislativeAssembly of the Union territory.

2.3Election for filling thirty seats in the Legislative Assemblyof Puducherry was held in the year 2016. Indian NationalCongress, who bagged fifteen out of thirty seats with supportof DMK and one independent candidate has formed theGovernment in Puducherry. Writ Petition (C) No. 16275of 2017 as K. Lakshminarayanan Vs. Union of India &Anr. was filed in the Madras High Court praying for writof mandamus forbearing the respondents from in anymanner nominating or filling up the nominated seats ofMembers for the Puducherry Legislative Assembly exceptwith the consultation and choice of the elected Council ofMinisters. The writ petition was filed on 27.06.2017. TheGovernment of India, Ministry of Home Affairs had issueda notification on 23.06.2017 nominating Shri V. Saminathan,Shri K.G. Shankar and Shri S. Selvaganabathy as membersof the Legislative Assembly of the Union Territory ofPuducherry. An application for amendment was filed in thewrit petition praying for quashing the notification dated23.06.2017. Another Writ Petition (C) No. 18788 of2017 – S. Dhanalakshmi Vs. Union of India & Ors. wasfiled in the Madras High Court praying for following reliefs:-

“Writ of Certiorarified Mandamus calling for the recordson the file of the third respondent relating to the impugnedNotification bearing Ref. No. F.No.U-11012/1/2014-UTL dated 23-06-2017 and quash the same andconsequently direct the respondents 1 to 3 to nominatethe members to the Puducherry Legislative Assemblyonly with the consultation and choice of the electedCouncil of Ministers and pass such further or otherorders and thus render justice”.

2.4On 13.11.2017, the Secretary of Puducherry LegislativeAssembly communicated the decision of the Speaker of

the Legislative Assembly that the nominated members couldnot be recognised as members of the Assembly, having beenappointed in contravention of the Constitution and the Act,1963. The communication dated 13.11.2017 was challengedby three nominated members by filing three separate writpetitions being Writ Petition Nos. 29591, 29592 and 29593of 2017. All the writ petitions, i.e. Writ Petition No. 16275of 2017, Writ Petition No. 18788 of 2017 and Writ PetitionsNo. 29591, 29592 and 29593 of 2017 were heard anddecided by Division Bench of Madras High Court vide itsjudgment dated 22.03.2018. The Writ Petition Nos. 16275of 2017 and 18788 of 2017 challenging the notification dated23.06.2017 has been dismissed, whereas the Writ PetitionNos. 29591, 29592 and 29593 have been allowed. Twoseparate but concurring judgments have been delivered byDivision Bench of Madras High Court. Operative portionof the judgment delivered by Justice M. Sundar, with whichjudgment, Chief Justice expressed absolute agreement, wasto 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 2017filed by nominated MLAs are allowed. Considering thenature of the matter and in the light of the trajectory thislitigation has taken, there shall be no order as to costs.Consequently, connected miscellaneous petitions areclosed.”

2.5Against the aforesaid Division Bench judgment of MadrasHigh Court dated 22.03.2018, only two appeals have beenfiled, one by K. Lakshminarayanan and other by S.Dhanalakshmi challenging the judgment of Division Benchby which Writ Petition No. 16275 of 2017 has beendismissed and another appeal has been filed against thejudgment of Division Bench in Writ Petition No. 18788 of2017 by which writ petition was dismissed. In so far asjudgment 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

decision of the Speaker dated 23.11.2017, no appeals havebeen filed.

3. We have heard Shri Kapil Sibal and Shri Salman Khurshid,learned senior counsel appearing for the appellants. We have heardShri K.K. Venugopal, learned Attorney General for the Union of India.Shri Ranjit Kumar, learned senior counsel has been heard for therespondents.

4. Shri Kapil Sibal challenging the nominations made by the CentralGovernment has raised various submissions. Shri Sibal submits that theGovernment of Puducherry has vital interest in the constitution of theAssembly, since it enjoys the confidence of Legislative Assembly andaccountable to the people. The Government of Puducherry cannot be astranger in the nominations made to the Assembly. He submits thatnominations of the members of the Assembly must emanate from theGovernment of Puducherry and should have concurrence of theGovernment. It was open for the Central Government to adopt any fairprocedure for nominating the members. The nominees could have beenoriginated from Government of Puducherry. The President could haveasked the names from the Government of Puducherry. He submits thatlet this Court decide on valid procedure, which is to be adopted whilemaking nominations by Central Government in the Legislative Assemblyof Puducherry. He further submits that there has been at least sixoccasions when elected Government of Puducherry was consulted beforenominating the members in the Legislative Assembly by the CentralGovernment. In the year 2001, when Lieutenant Governor withoutconsulting the Government of Puducherry forwarded the names fornomination to the Assembly, objection was raised by the Government ofPuducherry and the proposed list of nominated members was referredback to the Lieutenant Governor for lack of consultation with the electedGovernment. He submits that earlier incidents when the Government ofPuducherry was consulted before nomination has taken shape of aconstitutional convention, which is nothing but constitutional law to befollowed by all concerned. He submits that while making nominationsvide notification dated 23.06.2017, the above constitutional conventionhas not been followed, which renders the nomination illegal andunsustainable. He further submits that in the counter affidavit filed bythe Union of India before the High Court, it was stated that LieutenantGovernor has not sent any nominations to the Central Government and

ACentral Government on its own has made nominations under Section3(3) of the Act, 1963. Shri Kapil Sibal submits that the expression “CentralGovernment” as occurring in Section 3(3) of the Act, 1963 has not beencorrectly understood by the High Court. He submits that according tothe definition given under Section 3(8) of the General Clauses Act, 1897,the Central Government means the President and include in relation toBthe administration of Union Territory, the administrator thereof. It issubmitted that the President has framed Rules of Business of theGovernment of Puducherry, 1963, Rule 4 of which Rules is relevant forthe present case. It is submitted that as per the Business Rules, it is theadministrator, who was required to make nominations that too afterCconsultation of Council of Ministers. Shri Sibal refers to Rule 4(2) andRule 48 of the Business Rules to buttress his submission. It is submittedthat 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 PresidentDunder Article 239 of the Constitution. Since Section 3(3) of the Act,1963 refers to “Central Government”, thereby indicating exercise ofpower in terms of Article 239 of the Constitution, Rule 4(2) read withChapter IV of the Rules of Business of the Government of Puducherrywould apply. Therefore, the power to nominate members under SectionE3(3) of the Act, 1963 has to necessarily involve the administrator actingin accordance with Chapter IV.

5. Shri Sibal further submits that in event interpretation is acceptedthat the Government of Puducherry has no role to play in the nominationsof members to Legislative Assembly, it is de-establishing cooperativeFfederalism. It is submitted that federalism has been recognised as abasic feature of the Constitution and it is Government, which isdemocratically formed and reflect the will of the people and responsibleto the Legislature, who has to initiate and concur in the members to benominated in the Legislative Assembly. In the representative democracy,

the Government is not stranger to the process of nomination. OneGmore submission which has been pressed by Shri Sibal is that even thoughnominated members may have right to vote in the proceedings ofAssembly there are two exceptions to such right of vote, i.e., (i) votingon budget, and (ii) voting on no-confidence motion against theGovernment. He submits that nominated members shall have no right toHvote in above two subjects. Shri Kapil Sibal has further very candidly in

his submission, stated that he is not pursuing the challenge to Section3(3) of the Act, 1963 nor he is carrying further the submission madebefore the High Court on the ground of eligibility of members, who havebeen nominated in the Legislative Assembly. Shri Sibal has placed relianceon various judgments of this Court, which shall be referred to whileconsidering the submissions in detail.

6. Shri K. K. Venugopal, learned Attorney General replying thesubmissions of Shri Sibal submits that the Union Territory is Territoryof Union in which Central Government can nominate unless theConstitution or law provides for any consultation of Government ofPuducherry. According to Article 239, it is the President, who has toadminister Union Territory. Lieutenant Governor, who is an administratorappointed by the President to administer the Union Territory ofPuducherry, govern the Union Territory as per instructions and directionsof the President. Neither Lieutenant Governor nor Legislative Assemblycan assert themselves in governing the Union Territory. The Act, 1963is law framed by Parliament in exercise of power under Article 239Aof the constitution. The powers and functions of the Legislative Assemblyare such as specified in the Act, 1963. The provision empoweringnominations in the Legislative Assembly by the Central Government inno manner affect the principle of federalism or cooperative federalism.The Act, 1963 or any Constitutional provision does not provide for anyconsultation of Government of Puducherry for making nomination in theLegislative Assembly by the Central Government. There are largenumber of Constitutional provisions, which provide for consultation,whereas no Constitutional provision provide for consultation ofGovernment of Puducherry in making nomination by Central Governmentnor any such right of consultation, is decipherable from the Act, 1963.Reading consultation in nomination shall upset the Constitutional balance.Appellants want to read the word “consultation” in Section 3(3) of Act,1963, which has been consciously withheld. When the provisions ofAct, 1963 indicate primacy of Central Government, the submissionthat nomination should be made with the concurrence of Government ofPuducherry is wholly unfounded. The Union Territory of Puducherry iswholly subservient to the President.

7. Shri K.K. Venugopal further submits that Council of Ministersof Government of Puducherry is Agency devised by President of India.

ASection 50 of Act, 1963 gives absolute power to the President to issueany direction to the Administrator and his Council of Ministers. It issubmitted that there is no kind of any limit in the extent of power asenvisaged under Section 50. Shri Venugopal referred to various otherstatutes where provisions envisaged for issuing directions by CentralGovernment or other authorities. He submits that in various statutoryBprovisions, directions are hedged by several conditions and in some ofthe statutes consultation is also envisaged.

8. Shri Ranjit Kumar, learned senior counsel appearing fornominated MLAs submits that the Constitution itself provides thatLegislative Assembly of Union Territory of Puducherry shall be partlyCelected and partly nominated and Parliament enacted Act, 1963, for boththe elected and non-elected members. He further submits that Section14 of the Act, 1963 which deals with disqualification of members, doesnot contemplate that if nomination is made without consultation ofLegislative Assembly, the members will be disqualified. Hence, non-Dconsultation with Council of Ministers of Legislative Assembly cannotbe treated to be as any disqualification.

9. Shri Ranjit Kumar further submits that Section 33 provides thatthe Legislative Assembly of the Union territory may make rules forregulating and conducting its business. Similarly, Section 46 providesEthat the President shall make the rules for allocation of business to theMinisters and for the more convenient transaction of business. He submitsthat both in the rules framed under Act, 1963 as well as Section 36, thereis no rule providing consultation of the Council of Ministers or ChiefMinister before making any nomination in the Legislative Assembly bythe Central Government.

10. He further submits that Legislative Assembly has no power tomake any law to regulate nomination to be made in the Assembly. It isonly the Parliament who is empowered to make law under Article 239Aregulating constitution of the Legislative Assembly. When the legislativepower is not there with the Union Territory of Puducherry, no executiveGpower can be exercised by the Legislative Assembly of the Puducherry.He further submits that power of nomination which shall flow from lawmaking 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

submissions of learned Attorney General as well as Shri Ranjit Kumar,submits that the appellants are questioning the procedure adopted byCentral Government for nomination. He further reiterates that CentralGovernment under Section 3(3) of Act, 1963 is to mean the Presidentwho in turn delegated his power to its Administrator, thus, nominationhas to emanate from Administrator who is to Act on the advise of theCouncil of Ministers. He submits that the Rules of Business framed bythe President are Rules of Business both under Article 239 as well asunder Section 44 and under Section 46 of the Act, 1963, hence, theRules of Business relate to entire executive functions of the Governmentof Puducherry.

12. Learned counsel for the parties in support of their respectivesubmissions have relied on various judgments of this Court which shallbe referred to while considering the submission in detail.

13. From the submissions raised by the learned counsel for theparties and the materials on record following are the main issues whicharise for consideration in these appeals:

(1) Whether the expression “Central Government” as occurringin Section 3(3) of the 1963 Act means the Administrator, hence, itis the Administrator who has to exercise the power of nominationthat too on the aid and advise of the Council of Ministers of theUnion Territory of Puducherry?

(2) Whether the nomination in the Legislative Assembly of thePuducherry is the business of the Government which has to betransacted in accordance with Rule 4 sub-Rule (2) read with Rule48 of the Rules of Business of the Government of Puducherry,1963. As per which Rule the Administrator was required to consulteither Council of Ministers or Chief Minister before discharginghis functions under Rule 4(2)?

(3) Whether nomination by Central Government in the LegislativeAssembly without concurrence of Government of Union Territoryof Puducherry violates principles of Federalism and co-operativeFederalism?

(4) Whether there is constitutional convention to consult theGovernment of Puducherry before making any nomination by theCentral Government on the strength of the fact that on six earlieroccasions when the nominations were made, the Central

AGovernment has consulted the Government of Puducherry beforemaking nominations?

(5) Whether the Central Government while exercising its powerof nomination under Section 3(3) of 1963 Act is obliged to consultthe Council of Ministers/Chief Minister of Government of UnionBTerritory of Puducherry and the nomination by Central Governmentcan only be made with the concurrence of the Government ofPuducherry?

(6) Whether recommendations made by the Madras High Courtin so far as recommendations made in paragraph 5(iv) of theCimpugned judgment is concerned, are unsustainable and not inaccordance with law?

(7) Whether the nominated members in the Legislative Assemblyshall have no voting right in two matters, i.e., (i) budget and (ii)no- confidence motion against the Government?

DIssue No.1

14. The submission made by Shri Sibal is that the expression“Central Government” used under Section 3(3) of the Act, 1963 meansthe administrator. In consequence, he contends that the power ofnomination in the Legislative Assembly of Puducherry is to be exercisedEby the administrator on the aid and advise of the Council of Ministers ofUnion Territory of Puducherry. The Act, 1963 does not define theexpression “Central Government”. The provision of General ClausesAct, 1897 had to be looked into to find out the definition of the expression“Central Government”. Section 3(8) of the General Clauses Act, 1897defines the expression “Central Government”. The relevant portion ofFSection 3(8) is as follows:-

“3(8) “Central Government” shall,—

(a) …………

(b) in relation to anything done or to be done after theGcommencement of the Constitution, mean the President; and shallinclude,—

(i) ……………

(ii) ……………

(iii) in relation to the administration of Union territory, the

administrator thereof acting within scope of the authority givento 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 Section3(8) is restrictive and exhaustive definition. When the definition usesthe word “mean the President”, the clear intention is that CentralGovernment is the President, the next phrase “and shall include in relationto the administration of Union territory, the administrator thereof actingwithin the scope of the authority given to him under article 239 of theConstitution” has been added with purpose and object. Article 239 ofthe Constitution provide that save as otherwise provided by Parliamentby law, every Union territory shall be administered by the Presidentacting, to such extent as he thinks fit, through an administrator to beappointed by him with such designation as he may specify. As perdefinition of Section 3(8)(b)(iii) administrator shall include in the definitionof Central Government when in relation to the administration of Unionterritory, the administrator thereof acting within the scope of the authoritygiven to him under article 239 of the Constitution. Thus, the administratorwill be Central Government when he acts within the scope of the authoritygiven to him under article 239. Under Article 239, Rules of Businesshave been framed as noticed above, which has been brought on recordas Annexure P1 to Civil Appeal of K. Lakshminarayanan. Executivefunctions of the administrator as contemplated by Rule 4(2) read withRule 48 shall include variety of the executive functions, which he isauthorised to discharge. The executive functions may include: (i) thebusiness of executive functions in relation to the subjects on whichLegislative Assembly of the Union Territory of Puducherry is entitled tomake law; (ii) the executive functions entrusted to the Government ofPuducherry, to be exercised in the name of the administrator, entrusted/delegated under any Parliamentary law; (iii) functions to be dischargedby administrator under any special or general order issued by thePresident of India; (iv) functions to be discharged by administrator underthe instructions issued by the Central Government from time to time. Aperusal of the Rules of Business, which have been framed under Article239 as well as Section 46 of the Act, 1963 does not expressly indicatethat in so far as power of nomination to be exercised by the Centralgovernment under Section 3(3), the administrator or Government ofPuducherry has been authorised or delegated any function in the above

Aregard. No order of the President or Central Government has beenbrought on the record on the basis of which it can be concluded that withregard to right of nomination to be exercised by the Central Governmentunder Section 3(3) of Act, 1963, any function has been delegated,authorised or instructed to the administrator. The definition of CentralGovernment given under Section 3(8)(b)(iii), which means the PresidentBcannot be given go bye to rely on the next expression “shall include”the administrator. The context of subject has to be looked into whilefinding out as to whether in context of Section 3(3), the Centralgovernment shall mean the President or the administrator.16. This Court had occasion to interpret the definition clause inCJagir Singh and Others Vs. State of Bihar and Others, (1976) 2SCC 942. In the above case, the Court was considering the definitionof expression “owner” as defined in Bihar Taxation on Passengers andGoods (Carried by Public Service Motor Vehicles) Act, 1961. In para11 of the judgment, the definition has been extracted, which is to theDfollowing effect:-

“11. The expression “owner” is defined in the Bihar Act in Section2(d) thereof as follows:

“ ‘Owner’ means the owner of public service motor vehiclein respect of which permit has been granted by Regional orEState Transport Authority under the provisions of the MotorVehicles Act, 1939 and includes the holder of permit underthe said Act in respect of public service motor vehicle or anyperson for the time being in charge of such vehicle or responsiblefor the management of the place of business of such owner.”F17. The definition of owner in the Bihar Act also used twoexpression, first ‘Owner’ means the owner of public service motorvehicle and second it includes the holder of permit under the said Actin respect of public service motor vehicle or any person for the timebeing in charge of such vehicle or responsible for the management ofGthe place of business of such owner. The provisions of MaharashtraTax on Goods (Carried by Road) Act, 1962 and other Acts were alsounder consideration. In Maharashtra Act, the “operator” means anyperson whose name is entered in the permit as the permit holder or anyperson having the possession or control of such vehicle. It was contendedbefore the Court that words “or any person for the time being in chargeH

of such vehicle” in the definition of “owner” indicate that the transportor booking agencies which would take the public service motor vehicleon hire would be owners within the definition of the word without beingpermit holders in respect of these public service motor vehicles. Thecontention to read definition in particular manner was rejected by thisCourt. In paragraph Nos. 19 and 21, following has been held:-

“19. The definition of “owner” repels the interpretation submittedby the petitioners that the definition means not only the ownerwho is the permit holder but also booking agency which may bein charge of the vehicle without being permit holder. The entireaccent in the definition of owner is on the holder of permit inrespect of the public service motor vehicle. It is the permit whichentitles the holder to ply the vehicle. It is because the vehicle isbeing plied that the passengers and consignors of goods carriedby that vehicle become liable to pay not only fare and freight tothe owner but also tax thereon to the owner. The words “or anyperson for the time being in charge of such vehicle or responsiblefor the management of the place of business of such owner”indicate that the permit holder will include any person who is incharge of such vehicle of the permit holder or any person who isresponsible for the management of the place of business of suchowner. The owner cannot escape the liability by stating that anyperson is for the time being in charge of such vehicles, and,therefore, such person is the owner and not the permit holder.

21. The definition of the term “owner” is exhaustive and intendedto extend the meaning of the term by including within its sweepbailee of public carrier vehicle or any manager acting on behalfof the owner. The intention of the legislature to extend the meaningof the term by the definition given by it will be frustrated if what isintended to be inclusive is interpreted to exclude the actual owner.”

18. It is further relevant to notice that definition clause in Section3 of the General Clauses Act, 1897 begins with the expression “In thisAct, and in all Central Acts and Regulations made after thecommencement of this Act, unless there is anything repugnant in thesubject or context”. Thus, all definitions given under Section 3 are subject“unless there is anything repugnant in the subject or context”. Thus, thesubject or context has to be looked into to apply the definition given inSection 3(8)(b). This Court in Jagir Singh (supra) has also held that

Awhile interpreting the definition clause, the context, the collocation andthe object of words relating to such matter has to be kept in mind whileinterpreting the meaning intended to be conveyed by the use of the wordunder circumstance. In paragraph No. 20 following has been laiddown:-

B“20. The general rule of construction is not only to look at thewords but to look at the context, the collocation and the object ofsuch words relating to such matter and interpret the meaningaccording to what would appear to be the meaning intended to beconveyed by the use of the words under the circumstances.Sometimes definition clauses create qualification by expressionsClike “unless the context otherwise requires”; or “unless the contraryintention appears”; or “if not inconsistent with the context orsubject-matter”. “Parliament would legislate to little purpose,” saidLord Macnaghten in Netherseal Co. v. Bourne (1889) 14 AC228, “if the objects of its care might supplement or undo the workDof legislation by making definition clause of their own. Peoplecannot escape from the obligation of statute by putting privateinterpretation on its language.” The courts will always examinethe real nature of the transaction by which it is sought to evadethe tax.”

E19. Another judgment of this Court in Black Diamond Beveragesand Another Vs. Commercial Tax Officer, Central Section,Assessment Wing, Calcutta and Others, (1998) 1 SCC 458 is alsorelevant in the present context. In the above case, this Court had occasionto consider the definition of “Sale price” as occurring in Section 2(d) ofWest Bengal Sales Tax Act, 1954. The definition has been quoted inFparagraph No.5 of the judgment, which is to the following effect:-

“5. The 1954 Act generally provides for levy of single-point taxat the first stage on commodities notified under Section 25 of thatAct. On the other hand, the 1941 Act is general statute providingfor multipoint levy of sales tax on commodities not covered by theG1954 Act. Sub-clause (d) of Section 2 of the 1954 Act reads asfollows:

“2. (d) ‘sale-price’ used in relation to dealer means the amountof the money consideration for the sale of notified commoditiesmanufactured, made or processed by him in West Bengal, or

brought by him into West Bengal from any place outside WestBengal, for the purpose of sale in West Bengal, less any sumallowed as cash discount according to trade practice, butincludes any sum charged for containers or other materialsfor the packaging of notified commodities;”

20. The above definition also contain two expression means andincludes. 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 noway control or affect the other part of the definition and include otherpart. In paragraph Nos. 7 and 8, following has been laid down:-

“7. It is clear that the definition of “sale price” in Section 2(d)uses the words “means” and “includes”. The first part of thedefinition defines the meaning of the word “sale price” and must,in our view, be given its ordinary, popular or natural meaning. Theinterpretation thereof is in no way controlled or affected by thesecond part which “includes” certain other things in the definition.This is well-settled principle of construction. Craies on StatuteLaw (7th Edn., 1.214) says:

“An interpretation clause which extends the meaning of worddoes not take away its ordinary meaning…. Lord Selbornesaid in Robinson v. Barton-Eccles Local Board AC at p.801:

‘An interpretation clause of this kind is not meant to preventthe word receiving its ordinary, popular, and natural sensewhenever that would be properly applicable, but to enablethe word as used in the Act … to be applied to somethingto which it would not ordinarily be applicable.’ ”

(emphasis supplied)

Therefore, the inclusive part of the definition cannot prevent themain provision from receiving its natural meaning.

8. In view of the above principle of construction, the first part ofthe definition of sale price in Section 2(d) of the 1954 Act must begiven its own meaning and the respondent’s counsel is thereforeright in urging that the first part of Section 2(d) which is similar tothe first part of Section 2(p) in the Rajasthan Sales Tax Act, 1954,

Amust be given the same meaning given to similar words inHindustan Sugar Mills v. State of Rajasthan, (1978) 4 SCC271. What the said meaning is we shall consider separately. If,therefore, by virtue of Hindustan Sugar Mills case the first partis to be interpreted as bringing within its natural meaning the “freightcharges” then the contention for the appellants that like “packagingBcharges” these “freight charges” must have also been specificallyincluded 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 meaningCof the word “the President” occurring in Section 3(8)(b) has to be givenand the second part of the definition shall not in any way control oraffect the first part of the definition as observed above. In the definitionof Central Government, an administrator shall be read when he has beenauthorised or delegated particular function under the circumstances asDindicated above. No statutory rules or any delegation has been referredto or brought on record under which the administrator is entitled orauthorised to make nomination in the Legislative Assembly of the UnionTerritory of Puducherry. Thus, in the present case, the definition ofCentral Government, as occurring in Section 3(3) of the Act, 1963 has tobe read as to mean the President and not the administrator. The issue isEanswered accordingly.

Issue No.2

22. Relying on Rule 4(2) of the Rules of Business of theGovernment of Puducherry, 1963 (hereinafter referred to as “Rules ofFBusiness”) read with Rule 48 it is contended that business of Governmentin the nominations in the Legislative Assembly is covered by Rule 4(2),hence, Administrator is required to consult Council of Ministers or theChief Minister before taking any decision. The Rules of Business havebeen framed by the President in exercise of the powers conferred byArticle 239 and the proviso to Article 309 of the Constitution, Section 46Gof the Act, 1963 and all other powers enabling the President in this regard.In the Rules of Business, Rule 2(f) means: “the Government ofPuducherry”. Rule 3 provides that the business of the Government shallbe transacted in accordance with these Rules. Rule 4 on which reliancehas been placed by Kapil Sibal is to the following effect:

“4. (1) The business of the Government in relation to matters withrespect to which the Council is required under section 44 of theAct to aid and advise the Administrator in the exercise of hisfunctions shall be transacted and disposed in accordance with theprovisions of Chapter III.

(2) The remaining business of the Government shall be transactedand 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 inchapter V shall be made to the Central Government in accordancewith the provisions of that Chapter.”

23. Rule 4(1) refers to the business of the Government in relationto matters with respect to which the Council is required under Section44 of the Act to aid and advise the Administrator in exercise of hisfunctions. Section 44(1) of the Act, 1963 is as follows:

“44. Council of Ministers. (1) There shall be Council ofMinisters in each Union territory with the Chief Minister at thehead to aid and advise the Administrator in the exercise of hisfunctions in relation to matters with respect to which the LegislativeAssembly of the Union territory has power to make laws exceptin so far as he is required by or under this Act to act in his discretionor by or under any law to exercise any judicial or quasi-judicialfunctions:

Provided that, in case of difference of opinion between theAdministrator and his Ministers on any matter, the Administratorshall refer it to the President for decision and act according to thedecision given thereon by the President, and pending such decisionit shall be competent for the Administrator in any case where thematter is in his opinion so urgent that it is necessary for him totake immediate action, to take such action or to give such directionin the matter as he deems necessary.

a[ x x x x]

b[ x x x x]”

24. Section 44(1) relates to functions “in relation to matters withrespect to which the Legislative Assembly of the Union Territory haspower to make laws. There may be other functions of the Government

Aof Puducherry which do not pertain to functions in relation to matterswith respect to which Legislative Assembly of Puducherry has power tomake laws. For example, under any Parliamentary law with respect towhich Legislative Assembly of Union Territory has no power to makelaws, any power delegated to the State Government is authorised ordelegated under the Parliamentary laws to exercise any function.B

25. Rule 4(2) obviously refers to “the remaining business of theGovernment”, which is not covered by Rule 4(1). Rule 48 of the Rulesof 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 4Cand in respect of which no specific provisions has been made inthe foregoing rules in this Chapter, the Administrator may, if hedeems fit either consult his Council or the Chief Minister, beforeexercising his powers or discharging his functions in respect ofthat matter.”

D26. 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 hisCouncil or the Chief Minister, before exercising of his powers ordischarging his functions in respect of that matter. But the question whichneeds to be answered for the present case is as to whether the nominationof member in the Legislative Assembly of Puducherry is covered byEexpression “remaining business of the Government”. The Governmenthas been defined in Rule 2(f) as “the Government of Puducherry”. TheGovernment occurring in Rule 4(2) cannot be stretched to be CentralGovernment. When Section 3(3) of Act, 1963 empowers the CentralGovernment to nominate not more than three persons to the LegislativeFAssembly of the Union Territory, it is the business of the CentralGovernment to make nominations as per Parliamentary law.

27. The business of the Government as occurring in Rule 4 has tobe business which under any law is to be performed by the Governmentof Puducherry. Article 239A of the Constitution provides that ParliamentGmay by law create body, whether elected or partly nominated andpartly elected, to function as Legislature for the Union Territory orCouncil of Ministers or both with such Constitution, powers and functions,in each case, as may be specified in the law.

28. The expression ‘law’ used in Article 239A(1) is Parliamentarylaw. When the Constitution expressly provides that it is the Parliamentwhich may provide by law, constitution of Legislature for the UnionTerritory, it is the Parliament alone which can provide for constitution ofLegislative Assembly for Union Territory under the Act, 1963. Section 3does provide for constitution of Legislative Assembly for Union Territorywith thirty members to be elected members and three members to benominated by the Central Government. When the Parliamentary lawas envisaged by Article 239A provides for the constitution of LegislativeAssembly of the Union Territory which also includes nomination, thesaid constitution which also includes nomination can not be the businessof the Government of Puducherry. The nominations of the members tothe Legislative Assembly of Puducherry thus can never be covered byexpression ‘remaining business of the Government’ as occurring in Rule4(2). When Rule 4(2) itself is not attracted in reference to the nominationin the Legislative Assembly, there is no occasion of applicability of Rule48 that is consultation with the Council of Ministers or the Chief Ministerby the Administrator. We, thus, do not find any substance in the submissionof Shri Kapil Sibal that nomination in the Legislative Assembly in thePuducherry is the business of the Government of Puducherry and is tobe exercised in accordance with Rule 4(2) read with Rule 48. Thenomination in the Legislative Assembly in the Puducherry is to be madeby the Central Government by virtue of Article 239A read with Section3(3) of the Act, 1963.

29. Article 77 of the Constitution deals with “conduct of businessof the Government of India”. Article 77 sub-clause (3) provides that“The President shall make rules for the more convenient transaction ofthe business of the Government of India, and for the allocation amongMinisters of the said business”. In exercise of the power under Article77(3) the President has made Government of India (Allocation ofBusiness) Rules, 1961 and the Government of India (Transaction ofBusiness) Rules, 1961. Rule 2 and Rule 3 sub-rule (1) of Allocation ofBusiness Rules which are relevant for this case are to the followingeffect:“2. Allocation of Business – The business of the Government ofIndia shall be transacted in the Ministries, Departments, Secretariesand Officers specified in the First Schedule to these rules (all ofwhich are hereinafter referred to as “departments”).

A3. Distribution of Subjects -

(1)The distribution of subjects among the departments shall beas specified in the Second Schedule to these Rules and shallinclude all attached and subordinate offices or otherorganisations including Public Sector Undertakings concernedBwith their subjects and Sub-rules (2), (3) and (4) of this Rule.

30. The Second Schedule includes “Ministry of Home Affairs(Grih Mantralaya), which has several departments from to E. is“Department of States (Rajya Vibhag). Under heading (III) UnionTerritories have been mentioned. Under Para 7 sub-clause (b) Union ofDTerritory of Pondicherry is mentioned. Relevant extract of SecondSchedule under the Ministry of Home Affairs, Department of States isas follows:

“(III) Union Territories

7. Union of Territories with legislature:

(a) xxxxxxxxxxxx

(b) Union Territory of Pondicherry:

All matters falling within the purview of the Central Governmentin terms of provisions contained in Part VIII of the Constitution inFso far as these relate to the Union Territory of Pondicherry andthe Government of Union Territories Act, 1963 except all suchmatters as have been under these rules specifically been assignedto any other Ministry or Department of the Government of India.”

31. Para 7(b) expressly provides that all matters falling within theGpurview of the Central Government in terms of provisions contained inPart VIII of the Constitution in so far as these relate to the Union Territoryof Puducherry and the Government of Union Territories Act, 1963 areassigned to the Department of States. Thus, under the Act, 1963 allmatters falling within the purview of the Central Government includingpower of nomination given to the Central Government under SectionH

3(3) are assigned under the Allocation of Business Rules by the Presidentof India to Ministry of Home Affairs, Department of States. Thus, powerunder Section 3(3) of Act, 1963 has to be transacted in the Ministry ofHome Affairs, Department of States. For Transaction of Business, thePresident has framed Government of India (Transaction of Business)Rules, 1961. Rule 3 of (Transaction of Business) Rules, 1961 which isrelevant is as follows:

“3. Disposal of Business by Ministries. - Subject to the provisionsof these Rules in regard to consultation with other departmentsand submission of cases to the Prime Minister, the Cabinet and itsCommittees and the President, all business allotted to departmentunder the Government of India (Allocation of Business) Rules,1961, shall be disposed of by, or under the general or specialdirections of, the Minister-in-charge.”

32. Thus, as per Transaction of Business Rules, the matter ofnomination in the Legislative Assembly of Puducherry not being matterin regard to consultation with other departments and submission of thecases to the Prime Minister, the Cabinet and its Committees and thePresident, the above business is to be disposed of by or under the generalor special orders or the directions of the Minister-in-charge that is HomeMinister.

33. In view of the foregoing discussion, we are of the clear opinionthat nomination in the Legislative Assembly of Puducherry is not theBusiness of the Government of Puducherry. It is business of CentralGovernment as per Section 3(3) of Act, 1963 which is to be carried outin accordance with the Government of India (Allocation of Business)Rules, 1961 and Government of India (Transaction of Business) Rules,1961. The issue is answered accordingly.

Issue No. 3

Whether Principles of Federalism or CooperativeFederalism has been violated in the present case?

34. The Constitution of India is written Constitution, which cameinto being after long deliberations by the men of eminence representingthe aspirations and culture of our ancient nation. Before Constitutionmakers, various Constitutions of the world were there to be looked into,incorporated and relied on. Our Constitution makers have taken best

Apart of the Constitution of different countries including USA, Australia,Germany, Canada and Others. When the draft Constitution was beingdebated in the Constituent Assembly, one of the relevant issue to bedeliberated, pondered upon and decided was the nature of IndianConstitution. Whether Constitution should be one, which is being followedin Federal countries like USA or it should be Unitary Constitution, wasBdeliberated and pondered. Dr. B.R. Ambedkar, Chairman of the DraftingCommittee after noticing the characteristics of Unitary Constitution andFederal Constitution categorically stated that draft Constitution is aFederal Constitution. In the deliberation of 04.11.1948, Vol. VII Page33, 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 essentialcharacteristics of Unitary Constitution are:(1) the supremacy ofthe Central Polity and (2) the absence of subsidiary Sovereignpolities. Contrariwise, Federal Constitution is marked: (1) by theDexistence of Central polity and subsidiary polities side by side,and (2) by each being sovereign in the field assigned to it. In otherwords. Federation means the establishment of Dual Polity. TheDraft Constitution is, Federal Constitution inasmuch as it establisheswhat may be called Dual Polity. This Dual Polity under theproposed Constitution will consist of the Union at the Centre andEthe States at the periphery each endowed with sovereign powersto be exercised in the field assigned to them respectively by theConstitution………..”

35. Dr. Ambedkar further said that there are marked differenceswith the American Federation. He said that all federal systems includingFthe American are placed in tight mould of federalism. It cannot changeits form and shape no matter what are the circumstances. Our draftConstitution can be both Unitary as well as Federal according to timeand circumstances. Dealing with the essential characteristics of theFederal Constitution, Dr. Ambedkar Said:-G“…………………. Federal Constitution cannot but be writtenConstitution and written Constitution must necessarily be rigidConstitution. Federal Constitution means division of Sovereigntyby no less sanction than that of the law of the Constitutionbetween the Federal Government and the States, with twoHnecessary consequences (1) that any invasion by the Federal

Government in the field assigned to the States and vice versa is abreach of the Constitution and (2) such breach is justiciablematter 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 ofcentralisation in the Union. Replying the above complaint, Dr. Ambedkarclarified that legislative and executive authority, is partitioned betweenthe Centre and the States.

37. Dr. Ambedkar in deliberations dated 25.11.1949, Vol. XI Page976 said:-

“There is only one point of constitutional import to which I proposeto make reference. serious complaint is made on the groundthat there is too much of centralization and that the States havebeen reduced to Municipalities. It is clear that this view is not onlyan exaggeration, but is also founded on misunderstanding ofwhat exactly the Constitution contrives to do. As to the relationbetween the Centre and the States, it is necessary to bear in mindthe fundamental principle on which it rests. The basic principle ofFederalism is that the Legislative and Executive authority ispartitioned between the Centre and the States not by any law tobe made by the Centre but by the Constitution itself. This is whatConstitution does. The States under our Constitution are in noway dependent upon the Centre for their legislative or executiveauthority. The Centre and the States are co-equal in this matter. Itis difficult to see how such Constitution can be called centralism.It may be that the Constitution assigns to the Centre too large fieldfor the operation of its legislative and executive authority than isto be found in any other federal Constitution. It may be that theresiduary powers are given to the Centre and not to the States.But these features do not form the essence of federalism. Thechief mark of federalism as I said lies in the partition of thelegislative and executive authority between the Centre and theUnits by the Constitution. This is the principle embodied in ourconstitution. There can be no mistake about it.

38. The nature and character of the Constitution came forconsideration before this Court in several Constitution Benches, wherethis Court noted the fundamental feature of the Constitution of India. Aseven-Judge Constitution Bench of this Court in Special Reference

DEFG

ANo.1 of 1964, AIR 1965 SC 745 held that essential characteristics offederalism is the distribution of executive, legislative and judicial authoritiesamong bodies, which are independent of each other. In paragraph 39,following has been laid down:-

“39. Our legislatures have undoubtedly plenary powers, but theseBpowers are controlled by the basic concepts of the writtenConstitution itself and can be exercised within the legislative fieldsallotted to their jurisdiction by the three Lists under the SeventhSchedule; but beyond the Lists, the legislatures cannot travel. Theycan no doubt exercise their plenary legislative authority anddischarge their legislative functions by virtue of the powersCconferred on them by the relevant provisions of the Constitution;but the basis of the power is the Constitution itself. Besides, thelegislative supremacy of our legislatures including the Parliamentis normally controlled by the provisions contained in Part III ofthe Constitution. If the legislatures step beyond the legislative fieldsDassigned to them, or acting within their respective fields, theytrespass on the fundamental rights of the citizens in manner notjustified by the relevant articles dealing with the said fundamentalrights, their legislative actions are liable to be struck down bycourts in India. Therefore, it is necessary to remember that thoughour legislatures have plenary powers, they function within the limitsEprescribed by the material and relevant provisions of theConstitution.”39. In the landmark judgment of this Court in KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225 new dimension wasgiven to the constitutional principles. This Court by majority judgmentFdeclared that the basic feature of the Constitution could not be amendedby constitutional amendment. Sikri, C.J. while delivering the majorityjudgment had held that federal character of the Constitution is one of thebasic structures of the Constitution.

40. Shelat and Grover, JJ. while delivering concurring opinion hadGalso stated that our Constitution has all essential elements of federalstructure. In para 486 following was stated: (Kesavananda Bharati case,SCC pp. 408-09)

“486. The Constitution has all the essential elements of federalstructure as was the case in the Government of India Act, 1935,Hthe essence of federalism being the distribution of powers between

the federation or the Union and the States or the provinces. Allthe legislatures have plenary powers but these are controlled bythe basic concepts of the Constitution itself and they function withinthe limits laid down in it (Per Gajendragadkar, C.J. in SpecialReference No. 1 of 196435). All the functionaries, be theylegislators, members of the executive or the judiciary take oath ofallegiance to the Constitution and derive their authority andjurisdiction from its provisions. The Constitution has entrusted tothe judicature in this country the task of construing the provisionsof the Constitution and of safeguarding the fundamental rights(SCR at p. 446). It is written and controlled Constitution.”

41. Again seven-Judge Bench in State of Rajasthan v. Unionof India, (1977) 3 SCC 592 had an occasion to consider the nature ofthe 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 offederalism were: firstly, ‘a body of countries such as the Cantonsof Switzerland, the Colonies of America, or the Provinces ofCanada, so closely connected by locality, by history, by race, orthe like, as to be capable of bearing, in the eyes of their inhabitants,an impress of common nationality’; and, secondly, absolutelyessential to the founding of federal system is the ‘existence of avery peculiar state of sentiment among the inhabitants of thecountries’. He pointed out that, without the desire to unite therecould be no basis for federalism. But, if the desire to unite goes tothe extent of forming an integrated whole in all substantial mattersof Government, it produces unitary rather than federalConstitution. Hence, he said, federal State “is politicalcontrivance intended to reconcile national unity with themaintenance of State rights”. The degree to which the State rightsare separately preserved and safeguarded gives the extent to whichexpression is given to one of the two contradictory urges so thatthere is union without unity in matters of Government. In asense, therefore, the Indian union is federal. But, the extent offederalism in it is largely watered down by the needs of progressand development of country which has to be nationally integrated,politically and economically coordinated, and socially, intellectuallyand spiritually uplifted. In such system, the States cannot stand

Ain the way of legitimate and comprehensively planned developmentof the country in the manner directed by the Central Government.”42. Further in para 60 referring to Dr Ambedkar following wasstated: (State of Rajasthan case, SCC p. 623)

“60. Although Dr Ambedkar thought that our Constitution is federalB“inasmuch as it establishes what may be called Dual Polity”, healso said, in the Constituent Assembly, that our Constitution-makershad avoided the “tight mould of federalism” in which the AmericanConstitution was forged. Dr Ambedkar, one of the principalarchitects of our Constitution, considered our Constitution to beC‘both unitary as well as federal according to the requirements oftime and circumstances’.”

43. nine-Judge Bench had occasion to elaborately consider thenature of the Constitution of India in S.R. Bommai v. Union of India,(1994) 3 SCC 1, Ahmadi, J. referring to federal character of theDConstitution in para 14 following was stated: (SCC pp. 68-69)

“14. In order to understand whether our Constitution is trulyfederal, it is essential to know the true concept of federalism.Dicey calls it political contrivance for body of States whichdesire Union but not unity. Federalism is, therefore, conceptEwhich unites separate States into Union without sacrificing theirown fundamental political integrity. Separate States, therefore,desire to unite so that all the member States may share informulation of the basic policies applicable to all and participate inthe execution of decisions made in pursuance of such basic policies.Thus the essence of federation is the existence of the UnionFand the States and the distribution of powers between them.Federalism, therefore, essentially implies demarcation of powersin federal compact.”

Ahmadi, J. further stated that the Constitution of India is differentlydescribed, more appropriately as “quasi-federal” because it is mixtureGof the federal and unitary elements, leaning more towards the latter.

44. B.P. Jeevan Reddy, J. held that the Founding Fathers wishedto establish strong Centre. In the light of the past history of thisSub-Continent, this was probably natural and necessary decision.In paras 275 and 276 following was stated: (S.R. Bommai case, SCCHpp. 215-17)

“275. review of the provisions of the Constitution showsunmistakably that while creating federation, the Founding Fatherswished to establish strong Centre. In the light of the past historyof this sub-continent, this was probably natural and necessarydecision. In land as varied as India is, strong Centre is perhapsa necessity. This bias towards Centre is reflected in the distributionof legislative heads between the Centre and States. All the moreimportant heads of legislation are placed in List I. Even amongthe 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 eitherlimited by or made subject to certain entries in List I to some orthe other extent. Even in the Concurrent List (List III), theparliamentary enactment is given the primacy, irrespective of thefact whether such enactment is earlier or later in point of time toa State enactment on the same subject-matter. Residuary powersare with the Centre. By the 42nd Amendment, quite few of theentries in List II were omitted and/or transferred to other lists.Above all, Article 3 empowers Parliament to form new States outof 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, greaterpower is conferred upon the Centre vis-à-vis the States does notmean that States are mere appendages of the Centre. Within thesphere allotted to them, States are supreme. The Centre cannottamper with their powers. More particularly, the courts should notadopt an approach, an interpretation, which has the effect of ortends to have the effect of whittling down the powers reserved tothe States. It is matter of common knowledge that over the lastseveral decades, the trend the world over is towards strengtheningof Central Governments — be it the result of advances intechnological/scientific fields or otherwise, and that even in USAthe Centre has become far more powerful notwithstanding theobvious bias in that Constitution in favour of the States. All thismust put the court on guard against any conscious whittling downof the powers of the States. Let it be said that the federalism inthe Indian Constitution is not matter of administrativeconvenience, but one of principle — the outcome of our ownhistorical process and recognition of the ground realities. Thisaspect has been dealt with elaborately by Shri M.C. Setalvad in

Ahis Tagore Law Lectures “Union and State Relations under theIndian Constitution” (Eastern Law House, Calcutta, 1974). Thenature of the Indian federation with reference to its historicalbackground, the distribution of legislative powers, financial andadministrative relations, powers of taxation, provisions relating totrade, commerce and industry, have all been dealt with analytically.BIt is not possible — nor is it necessary — for the present purposesto refer to them. It is enough to note that our Constitution hascertainly bias towards Centre vis-à-vis the States [AutomobileTransport (Rajasthan) Ltd. v. State of Rajasthan3, SCR p. 540].It is equally necessary to emphasise that courts should be carefulCnot to upset the delicately-crafted constitutional scheme by aprocess of interpretation.”

45. Constitution Bench in Kuldip Nayar v. Union of India,(2006) 7 SCC 1, held that India is not federal State in the traditionalsense of the term and it is not true federation formed by agreementDbetween various States and it has been described as quasi-federationand similar other concepts.

46. nine-Judge Constitution Bench in Jindal Stainless Limitedand Another Vs. State of Haryana and Others, (2017) 12 SCC 1had occasion to consider the nature of federalism in the Indian ConstitutionEwhile considering the relations between Union and States in referenceto 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 federalismas ingrained in the Constitution. Constitution Bench held that even thoughour Constitution may not be strictly federal in its character but thesignificant features of federal Constitution are found in the IndianFConstitution. In Paragraph 32, Constitution Bench laid down as follows:-

“32. Whether or not the Constitution provides federal structurefor the governance of the country has been the subject-matter ofa long line of decisions of this Court, reference to all of whichmay be unnecessary but the legal position appears to be fairlywell settled that the Constitution provides for quasi-federalcharacter with strong bias towards the Centre. Thepronouncements recognised the proposition that even when theConstitution may not be strictly federal in its character as theUnited States of America, where sovereign States came togetherto constitute federal Union, where each State enjoins privilege

of having Constitution of its own, the significant features of afederal Constitution are found in the Indian Constitution whichmakes it quasi-federal Constitution, if not truly federal in characterand in stricto sensu federal. The two decisions which stand out inthe long line of pronouncements of this Court on the subject may,at this stage, be briefly mentioned. The first of these cases is thecelebrated decision of this Court in Kesavananda Bharati case15,wherein thirteen-Judge Bench of this Court, Sikri, C.J. (as hisLordship then was), being one of them talks about whether theConstitution of India was federal in character and if so whetherfederal character of the Constitution formed the basic feature ofthe Constitution. Sikri, C.J. summed up the basic feature of theConstitution in the following words: (SCC p. 366, paras 292-94)

“292. … The true position is that every provision of theConstitution can be amended provided in the result the basicfoundation and structure of the Constitution remains the same.The basic structure may be said to consist of the followingfeatures:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executiveand the judiciary;

(5) Federal character of the Constitution.

293. The above structure is built on the basic foundation i.e.the dignity and freedom of the individual. This is of supremeimportance. This cannot by any form of amendment bedestroyed.

294. The above foundation and the above basic features areeasily discernible not only from the Preamble but the wholescheme of the Constitution, which I have already discussed.”

To the same effect are the views expressed by Shelat andGrover, JJ. who declared that the federal character of theConstitution is part of its basic structure.”

A47. In Jindal Stainless Ltd. (supra), one of us (Ashok Bhushan,J)has also expressed views on the form of the Indian Constitution, whichwas the same as expressed by majority opinion. In Paragraph 944,following was held:-

“944. The law declared by this Court as noted above clearlyBindicates that the Indian Constitution is basically federal in formand has marked traditional characteristics of federal system,namely, supremacy of the Constitution, division of power betweenthe 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 theCConstituent Assembly indicate that the distribution of powers wasgiven shape with creating strong Centre with the object of unityand integrity of India. The States are sovereign in the allottedfields. The Indian Constitution cannot be put in traditional mouldof federalism. The traditional concept of federalism has beenDadopted with necessary modification in the framework of theConstitution to suit the country’s necessity and requirement. Thesum total of above discussion is that federalism in the Constitutionis limited and controlled by the Constitution and the exercise ofpowers of both the States and the Centre are controlled by expressprovisions of the Constitution.”E

48. recent Constitution Bench judgment, which needs to benoticed is judgment of this Court in State (NCT of Delhi) Vs. Unionof India & Another, (2018) 8 SCC 501. Chief Justice Dipak Misra,as he then was, speaking for the Constitution Bench elaboratelyconsidered the concept of federal Constitution and laid down followingFin Paragraph Nos. 95, 96 and 108:-

“95. In common parlance, federalism is type of governance inwhich the political power is divided into various units. These unitsare the Centre/Union, States and Municipalities. Traditional juristslike Prof. K.C. Wheare lay emphasis on the independentGfunctioning of different governing units and, thus, define“federalism” as method of dividing powers so that the general/Central and regional governments are each within spherecoordinate and independent. As per Prof. Wheare:

“the systems of Government embody predominantly on divisionof powers between Centre and regional authority each ofwhich in its own sphere is coordinating with the otherindependent as of them, and if so, is that Government federal?”

96. However, modern jurists lay emphasis on the idea ofinterdependence and define federalism as form of Governmentin which there is division of powers between one general/centraland several regional authorities, each within its sphereinterdependent and coordinate with each other.

108. From the foregoing discussion, it is clear as day that both theconcepts, namely, democracy i.e. rule by the people and federalismare firmly imbibed in our constitutional ethos. Whatever be thenature of federalism present in the Indian Constitution, whetherabsolutely federal or quasi-federal, the fact of the matter is thatfederalism is part of the basic structure of our Constitution asevery State is constituent unit which has an exclusive Legislatureand Executive elected and constituted by the same process as inthe case of the Union Government. The resultant effect is thatone can perceive the distinct aim to preserve and protect the unityand the territorial integrity of India. This is special feature of ourconstitutional federalism.”

49. Constitution Bench also noticed the concept of cooperativefederalism and referring to an earlier judgment of this Court in State ofRajasthan Vs. Union of India, (1977) 3 SCC 592 laid down followingin paragraph No. 121 and 122:-

“121. In State of Rajasthan v. Union of India, the Court tookcognizance of the concept of cooperative federalism as perceivedby G. Austin and A.H. Birch when it observed: (SCC p. 622, para58)

“58. Mr Austin thought that our system, if it could be calledfederal, could be described as “cooperative federalism”. Thisterm was used by another author, Mr A.H. Birch (seeFederalism, Finance and Social Legislation in Canada, Australiaand the United States, p. 305), to describe system in which:

‘… the practice of administrative cooperation betweengeneral and regional Governments, the partial dependenceof the regional Governments upon payments from the

general Governments and the fact that the generalgovernments, by the use of conditional grants, frequentlypromote developments in matters which are constitutionallyassigned to the regions.’”

122. We have dealt with the conceptual essentiality of federalBcooperation as that has an affirmative role on the sustenance ofconstitutional philosophy. We may further add that though theauthorities referred to hereinabove pertain to the Union of Indiaand the State Governments in the constitutional sense of the term“State”, yet the concept has applicability to the NCT of Delhiregard being had to its special status and language employed inCArticle 239-AA and other articles.”

50. The concept of Collaborative federalism was also noticed inparagraph Nos. 110 and 111 in the following words:-

“110. The Constituent Assembly, while devising the federalDcharacter of our Constitution, could have never envisaged thatthe Union Government and the State Governments would work intangent. It could never have been the Constituent Assembly’sintention that under the garb of quasi-federal tone of ourConstitution, the Union Government would affect the interest ofthe States. Similarly, the States under our constitutional schemeEwere not carved as separate islands each having distinct visionwhich would unnecessarily open the doors for contrarian principleor gradually put step to invite anarchism. Rather, the visionenshrined in the Preamble to our Constitution i.e. to achieve thegolden goals of justice, liberty, equality and fraternity, beckonsFboth the Union Government and the State Governments, alike.The ultimate aim is to have holistic structure.

111. The aforesaid idea, in turn, calls for coordination amongstthe Union and the State Governments. The Union and the Statesneed to embrace collaborative/cooperative federal architectureGfor achieving this coordination.”

51. Another concept which was noticed and elaborated was theconcept of Pragmatic federalism. Following was laid down in Paragraph123:-

“123. In this context, we may also deal with an ancillary issue,namely, pragmatic federalism. To appreciate the said concept,we are required to analyse the nature of federalism that isconceived under the Constitution. Be it noted, the essentialcharacteristics of federalism like duality of governments,distribution of powers between the Union and the StateGovernments, supremacy of the Constitution, existence of writtenConstitution and most importantly, authority of the courts as finalinterpreters of the Constitution are all present under ourconstitutional scheme. But at the same time, the Constitution hascertain features which can very well be perceived as deviationsfrom the federal character. We may, in brief, indicate some ofthese features to underscore the fact that though our Constitutionbroadly has federal character, yet it still has certain strikingunitary features too. Under Article 3 of the Constitution, Parliamentcan alter or change the areas, boundaries or names of the States.During emergency, the Union Parliament is empowered to makelaws in relation to matters under the State List, give directions tothe States and empower Union officers to execute matters in theState List. That apart, in case of inconsistency between the Unionand the State laws, the Union Law shall prevail. Additionally, aGovernor of State is empowered to reserve the Bill passed bythe State Legislature for consideration of the President and thePresident is not bound to give his assent to such Bill. Further, aState Legislature can be dissolved and President’s rule can beimposed in State either on the report of the Governor or otherwisewhen there is failure of the constitutional machinery in the State.”

52. It has been laid down by this Court in the above cases, whichis clear from above precedents that Indian Constitution has adoptedfederal structure. Although, it is not in the strict mould of federalism asunderstood in theory. That is why, different Constitution Benches of thisCourt have termed the Indian Constitution as quasi-federal but theessential characteristics of the federal system are ingrained in theConstitution and reflect in different Constitutional provisions which are(i) the distribution of legislative and executive power between the Unionand the States, (ii) the distribution of such legislative and executive poweris by the Constitution itself, and (iii) an independent judiciary to interpretthe Constitutional provisions and lay down validly in case of any disputeor doubt.

A53. The concepts of cooperative federalism, collaborativefederalism and pragmatic federalism as has been noticed by theConstitution Bench in State (NCT Of Delhi) (supra) essentially engraftthe same concept, i.e. faithful discharge of the functions, both Unionand States have to follow Constitutional principles and not to encroachin the field reserved to other by the Constitution.B

54. The principle of federalism as adopted in the constitution ofIndia are well settled as noticed above. The submission, which needs tobe answered in the present case is as to whether the federal principlesas ingrained in the Constitution are in any manner sacrificed in the presentcase, i.e., by nominations made by Central Government withoutCconcurrence of the Government of Union Territory of Puducherry. Article239A by which creation of local Legislatures or Council of Ministers orboth 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, body, whether electedDor partly nominated and partly elected, to function as Legislature forthe Union Territory, or Council of Ministers, or both with suchconstitution, powers and functions, in each case, as may be specified inthe law. The Constitution, thus, by Article 239A has empowered theParliament to create Legislature for the Union Territory by law withsuch constitution, powers and functionsas may be specified in the law.EThus, it is the Constitution itself, which is empowering Parliament toprovide by law for Constitution of Union Territory. Further, the Legislatureas body contemplated by Article 239A is body, whether elected orpartly nominated and partly elected. Thus, the Constitution provisionitself contemplate creation of Legislature whether elected or partlyFnominated and partly elected. When the Constitution itself empowersthe Parliament to frame law to create body, which may be partlynominated and partly elected and Section 3 of the Act, 1963, whichprovide for thirty seats to be filled up by persons chosen by direct electionand three seats by nominations made by the Central Government, wefail to see that how the law made by Parliament or nominations made byGCentral Government breaches the principles of federalism. TheConstitution of Legislative body for Union Territory being entrusted tothe Parliament by Constitution and there being no indication in theConstitutional provision or provisions of the Act, 1963 that said nominationhas to be made with concurrence of Government of Union Territory ofHPuducherry, we fail to see any substance in the argument of Shri Kapil

Sibal that by nominations made by Central Government, federal principlesor principle of cooperative federalism has been violated. The conceptof federalism itself envisages distribution of power between Union andStates. It is further to be noticed that Union Territories are not States.These Union Territories, ordinarily, belong to the Union (i.e. the CentralGovernment) and therefore they are called ‘Union Territories’. That iswhy they are governed under the administrative control of the Presidentof India. That is the clear purport behind Article 239. However, to alimited extent, the power of the Union is diluted with respect toPuducherry vide Article 239A. At the same time, this constitutionalprovision, i.e. Article 239A. With regard to the Union Territory ofPuducherry itself envisages the constitution of Legislative Council partlyby nomination and partly by election. Further, specific authority tonominate in the Legislative Council has been conferred by law i.e. underSection 3 to the Central Government. Thus no breach of federal principlesare made out and the submission on the basis of breach of federalprinciples in nomination by the Central Government is unfounded.

Issue No.4 and 5

55. Both the issues being interdependent are being taken together.The expression “Constitutional convention” has been coined by ProfessorA.V. Dicey. In 1885, in his introduction to the study of the “Law of theConstitution”, in Chapter dealing with nature of conventions ofConstitution, Professor Dicey States:-

“…………The conventions of the constitution are in short rulesintended to regulate the exercise of the whole of the remainingdiscretionary powers of the Crown, whether these powers areexercised by the King himself or by theMinistry…………………..”

56. Elaborating further Prof. Dicey States:-

“……………………The result follows, that the conventions ofthe constitution, looked at as whole, are customs, orunderstandings, as to the mode in which the several members ofthe sovereign legislative body, which, as it will be remembered, isthe “Queen in Parliament,” should each exercise their discretionaryauthority, whether it be termed the prerogative of the Crown orthe privileges of Parliament. Since, however, by far the mostnumerous and important of our constitutional understandings refer

ABC

Aat bottom to the exercise of the prerogative, it will conduce tobrevity and clearness if we treat the conventions of the constitution,as rules or customs determining the mode in which the discretionarypower of the executive, or in technical language the prerogative,ought (i.e. is expected by the nation) to be employed.”

B57. Professor Dicey in his treatment of conventions of theConstitution has held that conventions of the Constitution constitutescustoms, practices, maxims, and precepts which are not enforced orrecognised by the Courts, make up body not of laws, but of constitutionalor political ethics. The Dicey’s statement that Constitutional conventionsare not body of laws but constitutional or political ethics was subject toCdebate and discussion. Sir Ivor Jennings in his treatise “The Law andthe Constitution” noticed the distinction between laws and conventionsas made by Professor Dicey, but opined that distinction appears to beplain and unambiguous, it is by no means free from difficulty.

58. Professor Dicey’s statement that the convention is not bindingDrule was departed with by Sir Kenneth Wheare in “ModernConstitutions”, who wrote:-

“By convention is meant binding rule, rule of behaviour acceptedas obligatory by those concerned in the working of theconstitution.”E59. Sir Ivor Jennings in his treatise has elaborately dealt theconventions of the Constitution while explaining the purpose of theconvention, he states:-

“The short explanation of the constitutional conventions is thatthey provide the flesh which clothes the dry bones of the law;Fthey make the legal constitution work; they keep it in touch withthe growth of ideas. constitution does not work itself; it has tobe worked by men…………………..”

60. How the conventions are to be established was also explainedby 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 certain way isno warrant for saying that it ought to behave in that way. But ifthe authority itself and those connected with it believe that theyought to do so, then the convention does exist. This is the ordinary

rule applied to customary law. Practice alone is not enough. Itmust be normative………………….”

61. Further, he states that:-

“………………………….For neither precedents nor dicta areconclusive. Something more must be added. As in the creationof law, the creation of convention must be due to the reason ofthe thing because it accords with the prevailing political philosophy.It helps to make the democratic system operate; it enables themachinery of State to run more smoothly; and if it were not therefriction would result. Thus, if convention continues because it isdesirable in the circumstances of the constitution, it must be createdfor the same reason…………………….”

62. The test to find out as to whether practice or precedent hasbecome 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 precedentsbelieve that they were bound by rule; and thirdly, is there areason for the rule? single precedent with good reason maybe enough to establish the rule. whole string of precedentswithout such reason will be of no avail, unless it is perfectlycertain that the persons concerned regarded them as bound by it.And then, as we have seen, the convention may be broken withimpunity.”

63. The above three tests laid down by Sir Ivor Jennings has beenapproved by Constitution Bench of this Court in Supreme CourtAdvocates-On-Record Association and Others Vs. Union of India,(1993) 4 SCC 441 (Para 346). The Constituent Assembly while draftingthe Constitution of India was well aware of the British convention. Initiallyon 17.07.1947 Hon’ble Sardar Vallabhbhai Patel while moving Clause14 stated that the Governor shall be generally guided by the conventionsof responsible, Government as set out in Schedule. Schedule wascontemplated to be framed according to the traditions of responsibleGovernment. It is useful to notice what was said by Hon’ble SardarVallabhbhai 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

Aresponsible, Government as set out in Schedule.....; but the validityof anything done by the Governor shall not be called in questionon the ground that it was done otherwise than in accordance withthese conventions.”

Now Schedule according to the traditions of responsibleBGovernment will be framed and put in. This also is non-controversial thing and I move the proposition for the acceptanceof the House.”

64. Although Schedule IIIA was contemplated codifying conventionbut at the later stage it was decided to drop codifying the convenient.CThe 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 ofamendment was not moved. Similarly, Schedule IV which was to describerelations of the President and the Governor viz-a-viz the Ministers wasalso moved to be deleted. On the questioning of deletion of the Schedule,DDr. B.R. Ambedkar asked Shri Krishnamachari to explain.Shri T.T.Krishnamachari while explaining stated following:“Shri T.T. Krishnamachari: ....Therefore, we have decided todrop Schedule IIIB which we proposed as an amendment andalso Schedule IV which finds place in the Draft Constitution,Ebecause it is felt to be entirely unnecessary and superfluous, togive such direction in the Constitution which really should ariseout of conventions that grow up from time to time, and the Presidentand the Governors in their respective spheres will be guided bythose conventions....”

65. The above debates in the Constituent Assembly clearly indicatethat Constitutional conventions were very much in the contemplationduring the debates in the Constituent Assembly. Conventions wereexpected to grow from time to time and the President and Governors intheir respective spheres were to be guided by those conventions.

66. The American jurisprudence also recognises conventionincluding the constitutional conventions. John Alexander Jameson in ‘ATreatise on Constitutional Conventions’ while explaining theconstitutional convention states:

“as its name implies, constitutional; not simply as having for itsobject the framing or amending of Constitutions, but as being within,rather than without, the pale of the fundamental law; as ancillaryand subservient and not hostile and paramount to it. The speciesof Convention sustains an official relation to the state, consideredas political organization. It is charged with definite, and not adiscretionary and indeterminate, function.”

67. Leonid Sirota in his Article ‘Towards Jurisprudence ofConstitutional Conventions’ defines constitutional convention, as:

“those primary constitutional rules, limiting the powers of theseveral organs of government in polity and governing the relationsamong them, which are not found in constitutional or ordinarystatutes or the common law, and which reflect the ‘constitutionaltheory’ or political values of the day.”

68. The constitutional conventions are born and recognised inworking of the Constitution. The purpose and object of constitutionalconvention is to ensure that the legal framework of the Constitution isoperated in accordance with constitutional values and constitutionalmorality. The constitutional conventions always aims to achieve highervalues and objectives enshrined in the Constitution. The conventions arenot static but can change with the change in constitutional values andconstitutional interpretations. No constitutional convention can berecognised or implemented which runs contrary to the expressedconstitutional provisions or contrary to the underlined constitutionalobjectives and aims which Constitution sought to achieve.

69. There have been several pronouncements by this Court wherethe Constitutional conventions were referred to and relied. In U.N.R.Rao vs. Smt. Indira Gandhi, (1971) 2 SCC 63, this Court whileinterpreting Article 75(3) held that while interpreting the Constitution theconventions prevalent at the time when Constitution was formed, haveto be kept in mind. In interpreting Article 75(3), this Court took supportfrom the conventions followed in United Kingdom and other countries.In paragraphs 3 and 11 following was held:

“3………It seems to us that very narrow point arises onthe facts of the present case. The House of the People wasdissolved by the President on December 27, 1970. Therespondent was the Prime Minister before the dissolution. Is

there anything in the Constitution, and in particular in Article75(3), which renders her carrying on as Prime Ministercontrary to the Constitution? It was said that we must interpretArticle 75(3) according to its own terms regardless of theconventions that prevail in the United Kingdom. If the wordsof an Article are clear, notwithstanding any relevantconvention, effect will no doubt be given to the words. But itmust be remembered that we are interpreting Constitutionand not an Act of Parliament, Constitution which establishesa Parliamentary system of Government with Cabinet. Intrying to understand one may well keep in mind the conventionsprevalent at the time the Constitution was framed.”

“11. We are grateful to the learned Attorney-General andthe appellant for having supplied to us compilationscontaining extracts from various books on Constitutional Lawand extracts from the debates in the Constituent Assembly.We need not burden this judgment with them. But on the whole

we receive assurance from the learned authors and thespeeches that the view we have taken is the right one, and isin accordance with conventions followed not only in the UnitedKingdom but in other countries following similar system ofresponsible Government.”

70. The most elaborate consideration of Constitutional conventionwas undertaken by the Constitution Bench of this Court in SupremeCourt Advocates-on-record Association and others vs. Union ofIndia, (1993) 4 SCC 441, Justice Kuldip Singh in his judgment haselaborately considered the Constitutional convention. This Court heldthat conventions are found in all established Constitutions and soon developeven in the newest. In paragraphs 340 and 341 following was laid down:

“340. The written Constitutions cannot provide for everyeventuality. Constitutional institutions are often created bythe provisions which are generally worded. Such provisionsare interpreted with the help of conventions which grow withthe passage of time. Conventions are vital insofar as they fillup the gaps in the Constitution itself, help solve problems ofinterpretation, and allow for the future development of theconstitutional framework. Whatever the nature of theConstitution, great deal may be left unsaid in legal rules

allowing enormous discretion to the constitutionalfunctionaries. Conventions regulate the exercise of thatdiscretion. power which, juridically, is conferred upon aperson or body of persons may be transferred, guided, orcanalised by the operation of the conventional rule. K.C.Wheare in his book Modern Constitutions (1967 Edn.)elaborates such rule as under:

“What often happens is that powers granted in aConstitution are indeed exercised but that, while they arein law exercised by those to whom they are granted, theyare in practice exercised by some other person or body ofpersons. Convention, in short, transfers powers grantedin Constitution from one person to another.”

341. The primary role of conventions is to regulate theexercise of discretion — presumably to guard against theirresponsible abuse of powers. Colin R. Munro in his bookStudies in Constitutional Law (1987 Edn.) has summed up thefield of operation of the conventions in the following words:

“Some of the most important conventions, therefore, are,as Dicey said, concerned with ‘the discretionary powersof the Crown’ and how they should be exercised. But it isnot only in connection with executive government andlegislature-executive relations that we find such rules andpractices in operation. They may be found in other spheresof constitutional activity too; for example, in relationsbetween the Houses of Parliament and in the workings ofeach House, in the legislative process, in judicialadministration and judicial behaviour, in the civil service,in local government, and in the relations with othermembers of the Commonwealth.””

71. This Court held that every act by constitutional authority is a‘precedent’ in the sense of an example which may or may not be followedin subsequent similar cases, but long series of precedents all pointing inthe same direction is very good evidence of convention. On therequirements for establishing the existence of convention, this Courtquoted with approval the test laid down by Sir W. Ivor Jennings in ‘TheLaw and the Constitution’. In paragraphs 345 and 346 following waslaid down:

“345. Every act by constitutional authority is ‘precedent’in the sense of an example which may or may not be followedin subsequent similar cases, but long series of precedentsall pointing in the same direction is very good evidence of aconvention.

346. The requirements for establishing the existence of aconvention have been succinctly laid down by Sir W. IvorJennings in The Law and the Constitution, Fifth Edn., (1959)as under:

“We have to ask ourselves three questions: first, what arethe precedents; secondly, did the actors in the precedentsbelieve that they were bound by rule; and thirdly, is therea reason for the rule? single precedent with good reasonmay be enough to establish the rule. whole string ofprecedents without such reason will be of no avail, unlessit is perfectly certain that the persons concerned regardedthem as bound by it.””

72. This Court after referring to several treatises on theconstitutional law held that the constitutional functionaries have to followthe same as binding precedent. In paragraphs 351 and 353 followingwas held:

“351. It is not necessary for us to delve into this subjectany more. We agree that convention while it is conventionis to be distinguished from the law. But this does not meanthat what was formerly convention cannot later become law.When customary rules are recognised and enforced by courtsas law, there is no reason why convention cannot becrystallized into law and become enforceable. “Conventionscan become law also by judicial recognition” stated K.C.Wheare in Modern Constitution (1966 Edn.). It is no doubtcorrect that the existence of particular convention is to beestablished by evidence on the basis of historical events andexpert factual submissions. But once it is established in thecourt of law that particular convention exists and theconstitutional functionaries are following the same as abinding precedent then there is no justification to deny sucha convention the status of law.

353. We are of the view that there is no distinction betweenthe “constitutional law” and an established “constitutionalconvention” and both are binding in the field of theiroperation. Once it is established to the satisfaction of theCourt that particular convention exists and is operatingthen the convention becomes part of the “constitutionallaw” of the land and can be enforced in the like manner.”

73. This Court in the above case has clearly held that existence ofa particular convention is to be established by historical and factualevidence and for establishing the existence of convention the test laiddown by Sir Ivor Jennings was also approved and applied in the followingwords in paragraph 357:

“357. We now proceed to consider whether an establishedconstitutional convention can be read in Articles 124(2) and217(1) of the Constitution of India to the effect that in thematter of appointment of the Judges of the High Courts andSupreme Court, the opinion of the judiciary expressed throughthe Chief Justice of India is primal and binding. For thatpurpose we adopt the test for the existence of convention,laid down by Sir Ivor Jennings, based on three questions: (a)What are the precedents? (b) Did the actors in the precedentsbelieve that they were bound by rule?, and (c) Is there areason for the rule?”

74. We now proceed to apply the tests for establishing conventionin the facts of the present case. The submission of Shri Kapil Sibal, asnoted above, is that on six prior occasions members were nominated tothe Puducherry Legislative Assembly after consultation with electedGovernment of Puducherry. He has referred to nominations made in theyear 1985, 1990, 1996, 2006 and 2011. With regard to year 2001, it hasbeen submitted that when Lt. Governor unilaterally forwarded the namesof the members, upon objection from the then Chief Minister, theproceedings were dropped and proposed list was referred back to theAdministrator for lack of consultation.

75. Learned counsel appearing for the Union of India has repliedthe aforesaid submission. In the short note submitted on behalf of theUnion of India, details regarding nominations made on the earlier occasionshave been explained. Learned counsel for the Union of India has alsoproduced the original files of the Central Government relating to the

Aaforesaid nominations as was orally directed on 20.11.2018. It relates tothe nominations made on earlier occasions, original records duly flaggedhas been submitted by the Union of India. The details submitted by theUnion of India are in the following tabular form:

DETAILS REGARDING NOMINATIONS MADE ONBEARLIER OCCASIONS

CentreUnion RemarksTerritory1985CongressCongressFile not traceable1990 Congress DMK On the recommendations of LG FLAG 1 FLAG 1A1995 Congress Congress CM directly recommended names to FLAG 2 Cthe Home Minister out of which only FLAG 2Aone 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 Dcancelled by 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 Enot done. FLAG 4C 2005UPACongressAll 3 MLA’s nominated on the FLAG 5recommendation of CM & LG FLAG 5A FLAG 5B FLAG 5C 2007 UPA Congress All 3 MLA’s nominated on the FLAG 6 Frecommendation 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 G2017 NDA Congress No recommendations received either FLAG 8C from LG or CM76. The above details indicate that in the year 1990, 1997, 2005,2007 and 2014 nominations were made on the recommendations of ChiefMinister/LG. Original records fully support the statement made in theHabove Chart. The position of nomination is different in the year 1995,2001 and 2011 which needs to be specifically noted.

77. In the year 1995, Chief Minister of the Pondicherry suggestedthree names for nominations whereas President, Puducherry PradeshCongress Committee also suggested three different names. The PrimeMinister had approved three names which consists one name suggestedby Chief Minister, one name suggested by President, PuducherryPradesh Congress Committee and one name of its own. Notificationwas issued on 26.07.1995. decision was subsequently taken to cancelthe notification by the Home Minister on 12.08.1995. No furthernominations were made in the said year.

78. Now we come to year 2001. In the year 2001, LieutenantGovernor had forwarded names of 10 persons who had soughtnominations as members of the Legislative Assembly. The Chief Minister,Pondicherry had sent representation that the Lt. Governor did not consulthim in the matter of proposing nominations. The issue surfaced in thesaid year as to whether the consultation of Chief Minister is necessarybefore nomination by the Central Government. The Home Minister byhis order dated 08.08.2001 directed for obtaining legal advise. The JointSecretary and Legal Adviser submitted note dated 21.09.2001 in whichin paragraph 9 he opined:

“9. In the light of the above, we are of the view that consultationwith the Chief Minister of Pondicherry is not necessary beforethe Central Government nominates person to be member ofits Legislative Assembly under sub-section (3) of section 3 of theAct.”

No final nominations could be made in the year 2001, 2002 and2003.

79. In the year 2011, although recommendations were sent by theLt. Governor and Chief Minister but no nominations were made. Afterthe nominations made in the year 2014, the nominations have been madein the year 2017. note dated 16.08.2016 was put up by DeputySecretary that last nomination was made vide notification dated02.09.2014 with the approval of Home Minister. The tenure of theAssembly got over and new Assembly has been constituted, hence, newpersons are to be appointed as Nominated Members. perusal of theoriginal records indicates that following four issues were outlined to bereferred to the Attorney General for his advice:

A“Issue No.1:Whether the Central Govt. has got absolutepowers to appoint nominated Members to theLegislative Assembly of Puducherry?

Issue No.2:Whether recommendation of LG, Puducherry ismandatory for consideration of names forBappointment of nominated Members toPuducherry Legislative Assembly by the CentralGovernment ?

Issue No.3:If the reply to Issue 1 is in affirmative, is thereany role of the Chief Minister/Council of Ministersto aid/advise the L.G. in the matter of makingsuch recommendation, and if so, whether suchaid and advice is binding upon the LG?

Issue No.4:Keeping in view that there is no laid downprocedure for such nomination, whether anyprescribed procedure is required to be followedor any specific condition to he imposed for makingnominations?”

80. The Attorney General on 15.11.2016 ordered the file “Be putup before the S.G.”. In the records there is detailed opinion given by theESolicitor General on 29.11.2016. The Solicitor General with regard toQueries Nos.1,2,3 and 4 has opined:

“5. In light of the aforementioned observations, the Queries raisedare answered accordingly:

i.Re:Query (I):Section 3(3) of the Government of UnionFTerritories Act, 1963 empowers Central Government tonominate 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 theCentral Government. Hence, the Central Government may,or may not nominate three members to the LegislativeGAssembly of Puducherry. However, it is relevant to note themembers nominated in the manner envisaged in sub-section(3) of Section 3, must comply with the criteria of qualificationof members to the Legislative Assembly enumerated inSection 4 of the Government of Union Territories Act, 1963

and will be disqualified from being members of the LegislativeAssembly if found within Section 14 of the Government ofUnion Territories Act, 1963.

ii.Re: Query (iii):The Central Government may in its wisdomconsult the Administrator of Puducherry for consideration ofnames for appointment of nominated members to thePuducherry Legislative Assembly especially when theAdministrator is the nominee of the President.

iii.Re: Query (iii):As stated in response to Query (ii), therecommendation of Administrator is not mandatory forconsideration of names for appointment of nominatedmembers to the Puducherry Legislative Assembly but he/shemay be consulted. Therefore, the role of Chief MinisterCouncil of Minister to aid/advice the L.G. in the matter ofmaking such recommendation does not arise.

iv.Re: Query (iv):There is no prescribed procedure for theCentral Government to nominate three members to theLegislative Assembly. In the absence of such procedure, onlythe criteria for eligibility of member laid down in Section 4supra and the criteria for disqualification in Section 14 supramust be followed.

I have nothing further to add.”

81. The file processed thereafter and Home Minister approvednominations of three persons to the Legislative Assembly, Puducherryon 20.06.2017. Draft notification was put up for approval on 23.06.2016.

82. After having noticed the details of earlier nominations from1985 till 2017, now the question has to be answered as to whether fromthe sequence of the events as noticed above Constitutional conventioncan be found established that nominations to the Legislative Assemblyhas to emanate from Chief Minister and can be made only with theconcurrence of Chief Minister. We have noticed the test formulated bySir W. Ivor Jennings, as approved by this Court in Supreme CourtAdvocates-on-record Association case for establishing the existenceof convention. The relevant test, as noticed above, is again reproducedfor ready reference:

A“We have to ask ourselves three questions: first, what arethe precedents; secondly, did the actors in the precedentsbelieve that they were bound by rule; and thirdly, is there areason for the rule? single precedent with good reasonmay be enough to establish the rule. whole string ofprecedents without such reason will be of no avail, unless itBis perfectly certain that the persons concerned regarded themas bound by it.”

83. We will take up the three questions which are to be posed fordeciding the question. First is “what are the precedents”. From the factsnoticed above, although it is indicated that on several occasions on theCrecommendations of the Chief Minister/LG nominations were made bythe Central Government, one relevant fact cannot be lost sight thatrecommendations made by CM/LG were readily accepted by the CentralGovernment when the Government of Puducherry and the CentralGovernment were of the same political party or were of allies. But theDinstance of year 1995 indicates that the recommendations made byChief Minister were not followed and the nominations were made takingone name from Chief Minister’s recommendation, one name fromPuducherry Pradesh Congress Committee and one name at the instanceof the Central Government itself which nominations, however,subsequently were cancelled. In the year 2001 recommendations madeEby Chief Minister and LG were not accepted and no nominations weremade. Similarly, in the year 2011 recommendations were made by ChiefMinister and LG but no nominations were made. The above facts doesnot indicate uniform precedent in making nominations by the CentralGovernment.

84. Now, we come to the second test that is “did the actors in theprecedents believed that they were bound by the rules”. The said test isnot satisfied in the present case since more than one occasion there ismaterial on records that the Central Government concluded that it is notbound by any rule that recommendations made by Chief Minister is toGbe accepted by the Central Government or recommendations of ChiefMinister is condition precedent for exercising power under sub-section(3) of Section (3). No uniform procedure was followed nor the CentralGovernment was under the belief that it is bound under the Rule toaccept the recommendations made by the Chief Minister. It is true thatthere is no inhibition in the Central Government considering the

recommendations sent by Chief Minister or LG or ask for suitable namesfrom Chief Minister/LG or even suggests suitable names to the ChiefMinister/LG but the fact that the Central Government can consider therecommendations or call for names is not akin to saying that there wasany precedent or rule that unless the names are recommended by ChiefMinister the Central Government is incapacitated in exercising its powersunder sub-section (3) of Section 3 of the Act, 1963. The instance wherethe Central Government readily accepted recommendations made byLG or Chief Minister which emanated from the Government belongingto the same political party cannot be said to be action of then CentralGovernment by virtue of any rule or convention rather the acts have tobe treated as convenient exercise of power. The Central Governmentcan receive input from any quarter including the Chief Minister or LGfor nomination.

85. We may also refer to judgment of this Court in ConsumerEducation and Research Society vs. Union of India and others,(2009) 9 SCC 648. One of the questions which came for considerationbefore this Court in the above case was violation of constitutionalconvention. In paragraph 37(ii) following question was noticed:

“37(ii) Whether of as many as fifty-five offices relating to statutorybodies/non-statutory bodies, without referring the proposal to theJoint Committee would render the amendment colourablelegislation which violated any “constitutional convention” or Article14 of the Constitution.”

86. One of the contentions raised in the above case for assailingthe Parliament (Prevention of Disqualification) Act, 1959 as amendedby Act 31 of 2006 on the ground that for exempting particular officefrom list of the office of profit, opinion of Joint Committee was notobtained on Act 31 of 2006. Repealing the contention following was heldin paragraph 79:

“79. This brings us to the last question. It is not in seriousdispute that ever since Bhargava Committee submitted itsreport in November 1955, whenever an office of profit had tobe exempted the matter used to be referred to JointCommittee and its opinion whether the office should beexempted or not, was being taken and only when there was arecommendation that particular office should be exempted,

Athe Act was being amended to add that office to the list ofexemptions. However, this was merely parliamentaryprocedure and not constitutional convention. OnceParliament is recognised as having the power to exempt fromdisqualification and to do so with retrospective effect, anyalleged violation of any norm or traditional procedure cannotBdenude the power of Parliament to make law. Nor can suchlaw which is otherwise valid be described as unconstitutionalmerely because procedure which was followed on fewoccasions was not followed for the particular amendment.”

87. The above judgment although was considering law made byCthe Parliament where in the present case we are concerned with theexercise of statutory power of the Central Government under sub-section(3) of Section 3 of the Act, 1963. In exercising the power under Section3(3) no particular statutory procedure having been prescribed exceptthe exercise of power as per Allocation of Business Rules and TransactionDof Business Rules, 1961 nominations made cannot be held to be vitiatedon the submission that particular procedure which was followed insome earlier cases was not followed.

88. We do not find any established practice or convention to thefact that names for nominations to members of the Legislative AssemblyEhas to emanate from Chief Minister and can be made by the CentralGovernment only after concurrence by Chief Minister. Both the issuesare answered accordingly.

Issue No. 6

89. Shri Kapil Sibal submits that High Court in Paragraph No. 5Fhas made certain recommendations. He has taken exception to therecommendation (iv), which is to the following effect:-

“(iv) If the nominated MLA belongs to political party on thedate of nomination, it should be made clear that he shall becomepart of the legislature party of that political party. If there is noGlegislature party in the house on the date of nomination, thenominated MLA/s shall constitute the legislature party of thatpolitical party. This is inter-alia owing to Explanation (b) toparagraph 2(1)(b) of Tenth Schedule to COI using the term‘political party’ and not ‘legislature party’.”

90. We have perused the recommendations made in ParagraphNo. 5 of the judgment of Justice M. Sundar. The recommendationscontained in paragraph No. 5 are nothing but recommendations to theParliament to frame legislation on various aspects as enumerated in therecommendation. We have, in the foregoing discussions, concluded thatit is the Central Government, which is under Section 3(3) empowered tonominate members in the Legislative Assembly of Union Territory. Theprocedure and manner of taking decision by Central Government hasalready been regulated by Rules of Business framed by President inexercise of power under Article 77 of the Constitution of India. TheRules framed by President of India under Article 77(3) are applicable toall executive actions of the Central Government including Constitutionaland Statutory functions. In Constitution Bench judgment of this Courtin Samsher Singh Vs. State of Punjab and Another, (1974) 2 SCC831 following was laid down in Paragraph No. 29:-

“29. The executive power is generally described as the residuewhich does not fall within the legislative or judicial power. Butexecutive power may also partake of legislative or judicial actions.All powers and functions of the President except his legislativepowers as for example in Article 123 viz. ordinance making powerand all powers and functions of the Governor except his legislativepower as for example in Article 213 being ordinance making powersare executive powers of the Union vested in the President underArticle 53(1) in one case and are executive powers of the Statevested in the Governor under Article 154(1) in the other case.Clause (2) or clause (3) of Article 77 is not limited in its operationto the executive action of the Government of India under clause(1) of Article 77. Similarly, clause (2) or clause (3) of Article 166is not limited in its operation to the executive action of theGovernment of the State under clause (1) of Article 166. Theexpression “Business of the Government of India” in clause (3)of Article 77, and the expression “Business of the Government ofthe State” in clause (3) of Article 166 includes all executivebusiness.”

91. There being already Rules of Business for carrying out thefunctions by the Central Government as per Article 77(3) of theConstitution of India, we fail to see any justification for makingrecommendation in paragraph No. 5 of the impugned judgment.

AFurthermore, the power is to be exercised by Central Government and itis 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 theLegislature to make Rules or Statute for more convenient transactionof business regarding nominations. Recommendations to the LegislatureBand the high Constitution authorities are not made in routine mannerand we are of the view that High Court ought to have desisted for makingany recommendations as contained in paragraph No. 5. The qualificationsand disqualifications to become member or continue to be memberof Legislative Assembly have already been provided in the Act, 1963.CThe qualifications and disqualifications for members of LegislativeAssembly are provided in the Act, 1963 and other relevant Statutes,which are always to be kept in mind, while exercising any Statutoryfunctions by the Central Government. We, thus, are of the view tat notonly recommendation made in paragraph No. 5(iv) but all therecommendations made in Paragraph No. 5 deserves to be set aside. InDresult, all recommendations as made in Paragraph No. 5 of the impugnedjudgment are set aside.

Issue No.7

92. One of the submissions, which has been pressed by Shri KapilESibal is that even if the nominated members have right to vote in theproceeding of Assembly, they have no right to vote in two circumstances,i.e. budget and no confidence motion against the Government. Article239A which provides for composition of Union Territory of Puducherryitself contemplated that the Parliament, may by law, create body, (i)whether elected or; (ii) partly nominated and partly elected, to functionFas Legislature for the Union Territory of Puducherry. Under Article239, the Parliament has enacted the law, i.e., the Government of UnionTerritory Act, 1963, Section 3 of which provides that there shall be aLegislative Assembly for each Union territory. The total number ofseats in the Legislative Assembly of the Union territory to be filled byGpersons chosen by direct election shall be thirty and the CentralGovernment may nominate not more than three persons, to be membersof the Legislative Assembly of the Union territory. Thus, the compositionof Legislative Assembly itself consists of both persons chosen by directelection and persons nominated by the Central Government. Both electedand nominated persons are part of Legislative Assembly. The provisionsH

of Act, 1963 refers to members of the Legislative Assembly. Section 11provides that every member of the Legislative Assembly of the Unionterritory shall, before taking his seat, make and subscribe before theAdministrator, or some person appointed in that behalf by him, an oathor affirmation according to the form set out for the purpose in the FirstSchedule. The expression “every member of the Legislative Assemblyof the Union territory” shall include both elected and nominated members.It is further clarified by First Schedule of the Act, 1963, which containsthe forms of oaths and affirmations, which expressly refers both electedand nominated members.

93. Section 12 deals with the voting in the Assembly, which is asfollows:-

12. Voting in Assembly, power of Assembly to act notwithstandingvacancies and quorum.

(1) Save as otherwise provided in this Act, all questions at anysitting of the Legislative Assembly of the Union territory shall bedetermined by majority of votes of the members present andvoting other than the Speaker or person acting as such.

(2) The Speaker or person acting as such shall not vote in the firstinstance but shall have and exercise casting vote in the case ofan equality of votes.

(3) The Legislative Assembly of the Union territory shall havepower to act notwithstanding any vacancy in the membershipthereof, and any proceedings in the Legislative Assembly of theUnion territory shall be valid notwithstanding that it is discoveredsubsequently that some person who was not entitled so to do, sator voted or otherwise took part in the proceedings.

(4) The quorum to constitute meeting of the Legislative Assemblyof the Union territory shall be one-third of the total number ofmembers of the Assembly.

(5) If at any time during meeting of the Legislative Assemblyof the Union territory there is no quorum, it shall be the duty ofthe Speaker, or person acting as such, either to adjourn theAssembly or to suspend the meeting until there is quorum.

A94. Section 12(1) provides that all questions at any sitting of theLegislative Assembly of the Union territory shall be determined by amajority of votes of the members present and votingother than theSpeaker or person acting as such. When the expression used is votes ofmembers present, obviously the members of the Assembly both electedand nominated person has to be counted, we cannot while interpretingBSection 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, whichare to be decided in any sitting of the Legislative Assembly. The Statutoryprovision does not give indication that nominated members have no rightCto vote on budget and no confidence motion against the Government.To accept the submission of Shri Sibal shall be adding words to provisionof Section 12, which are clear and express. Further, sub-section(1)provides that in the voting majority of the votes of the members presentand voting, the speaker shall not be person, who shall vote. When

provision of sub-section(1) clearly provides no voting by Speaker, ifDintention 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 nominatedmembers are entitled to vote in the sitting of the Legislative Assemblyand the submission of Shri Sibal that nominated members cannot exerciseEvote in budget and no confidence motion has to be rejected. Otherprovisions like sub-section (4) of Section 12, which provides for quorumto constitute meeting of the Legislative Assembly used the word “one-third of the total number of members of the Assembly”, members of theAssembly obviously will include both elected and nominated members.Thus, there is no basis for submission raised by Shri Sibal that nominatedFmembers cannot exercise their vote in budget and no confidence motionagainst the Government. The issue is answered accordingly.

95. In view of the foregoing discussions, we uphold the impugnedjudgment of the Madras High Court for the above reasons exceptdirections in paragraph 5 which are hereby deleted. In the result, theGappeals are dismissed subject to the deletion of recommendations madein paragraph 5 of the judgment. Parties shall bear their own costs.

Nidhi Jain