Reserved on : 10th November, 2017
Date of decision : 5th December, 2017

M/S ATV PROJECTS (INDIA) LTD …Petitioner

Through: Mr. Ramji Srinivasan, Senior Advocate with Mr. Kuljeet Rawal, Mr. Saurabh Malhotra, Mr. Sohil Yadav & Mr. Tushar Bhardwaj, Advocates.

versus

UNION OF INDIA & ORS. …Respondents

Through: Mr. Kirtiman Singh, Mr. Prateek Dhanda, Mr. Waize Ali Noor & Mr. Momin Khan, Advocates for R-1.
Mr. D.R. Jain, Senior Standing Counsel alongwith Mrs. Sapna Jain Advocate for R-3.
Mr. Rohit Bhagat, Advocate for Mr. Saurabh Chadda, Advocate for R-5.

CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA HON’BLE MS. JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh J.,

The petitioner ATV Projects (India) Pvt. Ltd. has filed the present writ petition challenging the constitutional validity of Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (hereinafter ‘Repeal Act’).

2. This Court had the occasion to deal with a similar challenge to various provisions of the Insolvency and Bankruptcy Code, 2016 (hereinafter ‘the Code’) as also Sections 4(b) and 5(1)(d) of the Repeal Act in W.P.(C) No.9674/2017, Ashapura Minechem Ltd.

v. Union of India and Ors (hereinafter ‘Ashapura’). Vide order dated 1st November, 2017, the challenge to Section 4(b) of the Repeal Act has been rejected by this Court in Ashapura (supra).

3. The findings in the said judgment are equally applicable to the present petition and it is held accordingly.

4. In addition Mr. Ramji Srinivasan, learned Senior Counsel for the petitioner has urged some further submissions which are being dealt with in the present order.

Brief Background

5. The petitioner claims to be a leading turnkey projects executing company, manufacturing a full range of industrial equipment for sugar and other industries. It ran a highly profitable business till 1994-95, when it suffered severe losses due to various reasons.

6. The petitioner filed a reference with the Board for Industrial & Financial Reconstruction (hereinafter ‘BIFR’) in 1998 and was declared a ‘sick company’ on 21st April, 1999. IDBI was appointed as the operating agency for the purposes of formulating the scheme.

7. According to the petitioner, it has settled and paid the restructured amounts of all of its 28 secured lenders, and had obtained no dues certificate from 27 secured lenders. A Draft Rehabilitation Scheme (hereinafter ‘DRS’) was also circulated by BIFR on 14th September, 2015. The DRS was pending before the BIFR, due to objections from the income tax authorities and some other authorities. On 30th November, 2016 all objections by other authorities were resolved by the BIFR. However, due to the reasons recorded in the BIFR’s order dated 30th November, 2016, some further directions were issued and the scheme was not sanctioned.

8. With effect from 1st December, 2017, i.e., one day later, the Repeal Act was enforced, vide Notification dated 25th November, 2016. Due to the said notification, proceedings before the BIFR stood abated and the petitioner could only approach the National Company Law Tribunal (hereinafter ‘NCLT’) within a period of 180 days.

Background of Insolvency and Bankruptcy Code, 2016

9. The Code was enacted in 2016 as Act 31 of 2016 and received Presidential assent on 28th May, 2016. The Repeal Act, 2003 had enacted Sections 4(b) and 5(1)(d). Though the Act was enacted, it was not notified till 25th November, 2016. Thereafter, with the incorporation of Section 4(b) as part of the Eighth Schedule of the Code and notification of the same with effect from 1st November 2016, the amended Section 4(b) of the Repeal Act came into operation with effect from 1st December 2016.

10. Section 4(b) was originally enacted with two provisos and thereafter, vide notification dated 24th May, 2017, two further provisos were added to Section 4(b). Section 4(b) and the notification titled the ‘Removal of Difficulty Order, 2017 (hereinafter `RDO 2017′) are extracted herein below:

“AFTER AMENDMENT OF SICA (REPEAL) ACT, 2003, W.E.F. 1ST NOVEMBER, 2016:

4. Consequential provisions – On the dissolution of the Appellate Authority and the Board –

(a) XXXX

(b) on such date as my be notified by the Central Government in this behalf, any appeal preferred to the Appellate Authority or any reference made or inquiry pending to or before the Board or any proceeding of whatever nature pending before the Appellate Authority or the Board under Sick Industrial Companies (special provisions) Act, 1985 (1 of 1986) shall stand abated:

Provided that a company in respect of which such appeal or reference or inquiry stands abated under this clause may make reference to the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016 within one hundred and eighty days from the commencement of the Insolvency and Bankruptcy Code, 2016 in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016.

Provided further that no fees shall be payable for making such reference under Insolvency and Bankruptcy Code, 2016 by a company whose appeal or reference or inquiry stands abated under this clause]”

THE REMOVAL OF DIFFICULTY ORDER, 2017:

S.O. 1683(E).- Whereas, the Insolvency and Bankruptcy Code, 2016 (31 of 2016 (hereinafter referred to as the said Code) received the assent of the President on 28th May, 2016 and was published in the official Gazette on the same date;

And, whereas, section 252 of the said Code amended the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1of 2004) in the manner specified in the Eighth Schedule to the said Code;

And, whereas, the un-amended second proviso to clause (b) of section 4 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 provides that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the repealed enactment i.e., the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) shall be deemed to be a scheme under implementation under section 424D of the Companies Act, 1956, (1 of 1956) and shall be dealt with in accordance with the provisions contained in Part VIA of the Companies Act, 1956;

And, whereas, section 424D of the Companies Act, 1956 provided for review or monitoring of schemes that are sanctioned or are under implementation;

And, whereas the Companies Act, 1956 has been repealed are re-enacted as the Companies Act, 2013 (18 of 2013) which, inter alia, provides for scheme of revival and rehabilitation, sanction of scheme, scheme to be binding and for the implementation of scheme under section 261 to 264 of the Companies Act, 2013;

And, whereas, sections 253 to 269 of the Companies Act, 2013 have been omitted by Eleventh Schedule to the Insolvency and Bankruptcy Code, 2016;

And, whereas, clause (b) of section 4 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 has been substituted by the Eighth Schedule to the Code, which provides that any appeal preferred to the Appellate Authority or any reference made or inquiry pending to or before the Board or any proceeding of whatever nature pending before the Appellate Authority or the Board under the Sick Industrial Companies (Special Provisions) Act, 1985 shall stand abated. Further, it was provided that a company in respect of which such appeal or reference or inquiry stands abated under this clause may make a reference to the NCLT under the Code within one hundred and eighty days from the date of commencement of the Code;

And, whereas, difficulties have arisen regarding review or monitoring of the schemes sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) in view of the repeal of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 and omission of sections 253 to 269 of the Companies Act, 2013;

Now, therefore, in exercise of the powers conferred by the sub-section (1) of the section 242 of the insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby makes the following Order to remove the above said difficulties, namely:-

1. Short title and commencement. – (1) This Order may be called the Insolvency and Bankruptcy Code (Removal of Difficulties) Order, 2017.

2. In the Insolvency and Bankruptcy Code, 2016, in the Eighth Schedule, relating to amendment to the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, in section 4, in clause (b), after the second

proviso, the following provisos shall be inserted, namely:-

“Provided also that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall be deemed to be an approved resolution plan under sub-section (1) of section 31 of the Insolvency and Bankruptcy Code, 2016 and the same shall be dealt with, in accordance with the provisions of Part II of the said code:

Provided also that in case, the statutory period within which an appeal was allowed under the Sick Industrial Companies (Special Provisions) Act, 1985 against an order of the Board had not expired as on the date of notification of this Act, an appeal against any such deemed approved resolution plan may be preferred by any person before National Company Law Appellate Tribunal within ninety days from the date of publication of this order.”
Thus, section 4(b), as it finally stands today has four provisos.

Petitioner’s submissions

11. The grievance of the petitioner is that its scheme, which was pending before BIFR, was at a very advanced stage and was almost on the verge of acceptance, a day prior to the notification of the Repeal Act. The petitioner had taken several steps throughout the lengthy process and had under gone several rounds of proceedings before the BIFR and the Appellate Authority for Industrial & Financial Reconstruction (AAIFR), as also in writ petitions, prior to the matter reaching the final stage for approval of the scheme.

However, unfortunately, on 30th November, 2016 the scheme was not approved by BIFR, which resulted in the scheme remaining pending and hence abating upon notification of the Repeal Act.

12. The petitioner vehemently urges that the abatement of proceedings, as the scheme was not sanctioned, would result in severe injustice to the petitioner. The petitioner further urges that its scheme should not be treated as being different from those cases where the schemes were sanctioned or appeals were pending. In any event, the petitioner urges that it had a right to challenge the order dated 30th November, 2016 of the BIFR, by way of an appeal, and that right could not have been taken away. According to the petitioner, the right to appeal is a vested right and would be governed by the law prevalent on the date when the right accrued, in this case i.e., on 30th November, 2016. The petitioner, thus, urges that Section 4(b) is illegal and unconstitutional and violative of Articles 14 & 19 of the Constitution of India.

13. The petitioner further urges that the classification between cases where schemes were pending and schemes that were sanctioned is not based on any intelligible differentia and does not satisfy the object sought to be achieved.

14. The petitioner also places reliance upon an order dated 12th September, 2017 passed by a co-ordinate Bench of this Court in
W.P. (C) 1621/2017, Twenty First Century Steels Limited v. Union of India (hereinafter ‘Twenty First Century Steels’) to submit that in the said case the Government had issued an office memorandum dated 9th August, 2017 to give benefit to such persons whose appeals were pending before the AAIFR. Thus, according to the petitioner a similar remedy should be made available to it.

Findings in Ashapura Minechem Ltd. v. Union of India and Ors

15. This Court, in Ashapura (supra), has held that the object with which the Code was enacted was to completely reform the existing insolvency regime. The Code has been enacted to replace SICA. It is the clear and categorical intention of the Legislature under Section 4(b) that all proceedings under SICA pending before the AAIFR or BIFR as on 1st December, 2016 would abate. This principle was applied uniformly without any exceptions. Section 5(1)(d) only provides an exception to such class of cases where the BIFR had already passed an order for sanctioning the scheme. Thus, schemes which were sanctioned prior to 1st December, 2016 would be protected. The saving clause thus only applies to schemes already sanctioned by the BIFR and none else. All other persons whose proceedings were still pending could only avail of the remedy of approaching the NCLT under the Code.

16. In Ashapura (supra), this Court has also held that the differentiation between sick companies where draft schemes have been approved, which are treated as `deemed approved resolution plans’ under the Code, and such cases where draft schemes have not been approved, and are thus fully covered by the Code, does not fall foul of Article 14. This Court has further held that sick companies whose schemes have been sanctioned form a separate and distinct class and the differentiation made is a valid, germane and realistic classification. It has been further held in Ashapura (supra) that the fixing of the cut-off date as 1st December, 2016 cannot be held to be arbitrary, inasmuch as, for a legislation of this nature there would be a cut-off date and the date on which Eighth Schedule is incorporated into the Code is a valid cut-off date. Whenever a legislation is either repealed or a new enactment is brought into place, a cut-off date has to be prescribed. The mere fixing of the cut-off date does not make the same illegal or arbitrary. While reiterating the findings in Ashapura (supra), we examine the additional submissions made by the Petitioner in the present case.

Analysis and Findings

17. The main plank of the Petitioner’s submissions is that the right to appeal is a vested right and cannot be taken away. The Petitioner relies on the following authorities to buttress its case.

1. Hoosein Kasam Dada (India) Ltd. v. State of M.P., 1953 SCR 987 (hereinafter ‘Hoosein Kasam Dada’)

2. Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 (hereinafter ‘Garikapati Veeraya’)

3. Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659 (hereinafter ‘Shiv Shakti Coop. Housing Society’)

18. The case law cited by the Petitioner provide the answer to the question raised. In Hoosein Kasam Dada (supra), the Supreme Court was dealing with a case where the Central Provinces and Berar Sales Tax Act, 1947 was amended to the effect that unless the payment of the tax determined in the assessment was made, no appeal would be entertained. This was in contradiction to the earlier provisions, wherein the appellant could admit to what was due and pay only that part of the amount. Thus, by the amendment, the condition of compulsory pre-deposit of the entire amount was imposed which was not a requirement as per the earlier provision. The Supreme Court, in the said context held that the appellant cannot be burdened with higher pre-deposit conditions and that the provision of appeal which applies is the one which was in existence on the date when the proceedings were initiated and not the date when the appeal was filed. Moreover, in the said case, the amendment did not expressly or by implication intend for the new amended provision to apply to all new appeals arising from pending cases. But even in the said judgment, the Supreme Court clearly relies upon the observations of the Privy Council that a legislation cannot be held to act retrospectively, unless a clear intention to this effect is manifested. The Supreme Court holds as under:-

“Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.”

(emphasis supplied) Thus, if there is a manifest intention in the legislation, the same would have to be given effect to.

19. Similar is the view expressed in Nogendra Nath Bose v. Mon Mohan Singha Roy AIR 1931 Cal 100, which also held that a right to appeal cannot be taken away in the absence of a express enactment. Moreover, as held in British Bank of India Vs. CIT [2004] (1) Mh.L.J.297, there is no inherent right of appeal and it has to be specifically conferred by the statute.

20. A Constitution Bench of the Supreme Court in Garikapati Veeraya (supra) summarized the legal position as under:-

“From the decisions cited above the following principles clearly emerge :

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there to till the rest of the carrier of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit of proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.” (Emphasis supplied)

21. Thus, the clear ratio of all these decisions is that if there is a manifest intention, either by express words or necessary implication, the right of appeal can be taken away and the right does not remain. The right to appeal is a statutory right and can be expressly or impliedly taken away. These decisions do not hold that if proceedings are pending, a vested right exists. In this case, we are not concerned with the right or pendency of an appeal, but repeal of an enactment and its substitution by another, with the express stipulation that proceedings under the repealed enactment would abate.

22. The Repeal Act and Code expressly and specifically state that the proceedings under SICA would not survive and would abate. This is the explicit provision incorporated by means of the amendment to Section 4(b). The legislature clearly provides a remedy to all persons/classes of persons whose proceedings were pending and it is up to them to avail the same in accordance with the prevalent law. In the instant case, a perusal of the Code and the Repeal Act clearly shows that there is one broad classification which has been made by the Legislature, namely cases in which schemes are sanctioned and those cases in which the schemes or proceedings are still pending. In the latter class of cases, the legislature provides the remedy of approaching the NCLT within a period of 180 days from the date when the Code comes into effect. Such proceedings would then be dealt with “in accordance with the provisions of Insolvency and Bankruptcy Act, 2016.”

23. During the course of submissions, Mr. Srinivasan repeatedly urged that the petitioner’s case, having been dealt with in accordance with the SICA and having reached an extremely advanced stage, to relegate it to the NCLT, to be treated in accordance with the Code, results in severe injustice. The legal position on this issue has been settled by the Supreme Court in State of Rajasthan Vs. Mangilal Pindwal AIR 1996 SC 2181 wherein the Court quoted with approval the following passage on `Craies on Statute Law’

““When an Act of Parliament is repealed,” said Lord Tenterden in Surtees v. Ellison,” it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule.” Tindal C.J. stated the exception more widely. He said : “The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.”

It is the clear view of this Court that once a law is repealed and a new legislation has been put in its place, it is not open for anyone to contend that it should be continued to be governed by the old enactment, except where actions under the existing laws had concluded. The applicability of the repealed legislation is only to the extent as provided in the Savings clause and nothing more.

24. Mr. Srinivasan further urged that several exceptions have been created in favour of parties whose schemes have been sanctioned, parties who could have preferred appeals against an approved scheme (deemed approved resolution plan) and thus, creation of an exception for cases like that of the Petitioner would not be irregular or improper. In fact, as per the Petitioner, creation of such exceptions itself, proves that the abatement is not cast in stone.

25. Though at first blush this submission of the Petitioner may sound appealing, a deeper examination would reveal that even the 4th proviso of Section 4(b) does not create a new class. In fact it deals with cases where schemes have been sanctioned and appeals contesting the sanction have not been filed. It is only those cases where schemes have been sanctioned and appeals have not yet been filed that a party can approach the NCLAT. The reasons are not far to seek, inasmuch as the 3rd and 4th proviso read together make it evident that a scheme sanctioned by the BIFR, or under the implementation by the BIFR would be an `approved resolution plan’ under Section 31(1) of the Code. It is only when a party who is aggrieved by the said resolution plan, whose time limit for filing the appeal had not expired, that can approach the NCLAT.

26. Thus, under the newly enacted Section 4(b) there are only two classes of persons, namely (i) those persons in whose cases schemes were sanctioned and (ii) those persons in whose cases the schemes were pending. In the former, there are two sub-classes namely;

– schemes which were required to be implemented, where the NCLT could be approached and

– schemes where appeals were yet to be filed by the party aggrieved, where the NCLAT could be approached.

In the latter class of cases, there is only one remedy i.e. to approach the NCLAT within a period of 90 days. To this, there could be no quarrel. The broad classification of cases where schemes are sanctioned and not sanctioned is intelligible as both would be governed by the Code including the implementation, supervision and appeals arising therefrom. Thus, there is no discrimination whatsoever.

27. The second proposition that the Petitioner has a ‘legitimate expectation’ does not have any legal basis, inasmuch as the right of the Petitioner to approach the appropriate forum has not been taken away. The Petitioner was provided with the remedy to approach the NCLT within a period of 180 days. In law, there could not be a legitimate expectation to be governed by the repealed enactment when the manifest intention of the Legislature is to completely replace the said enactment with a new insolvency regime. By operation of law, the forum which the Petitioner can approach has been changed and a remedy was thus available to the Petitioner. On a query as to why the Petitioner chose not to approach the NCLT, the response was that the Petitioner wanted to be governed by the repealed Act, i.e., SICA and not in accordance with the Code as provided for under Section 4(b). Such a submission lacks any legal basis and is liable to be rejected.

28. Insofar as Twenty First Century Steels (supra) is concerned, the same is an order recording the submissions of the parties and neither party has placed before us any document to show that any new remedy not contemplated under the Code was in fact provided to the Petitioner therein. In the absence of the same, the said order does not assist the Petitioner in any manner.

29. In these circumstances, the validity of Section 4(b) is upheld and the writ petition is dismissed. Like in Ashapura (supra), this Court holds that the Petitioner, if it is so advised, may avail of the remedy provided under the Code. As the time period of 180 days has already lapsed, if the Petitioner approaches the NCLT, the request for condonation of delay, if any, be considered if permissible in law.

30. The writ petition is dismissed with no order as to costs.

PRATHIBA M. SINGH, J
SANJIV KHANNA, J

DECEMBER 05, 2017

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5172 OF 2017
(Arising out of SLP (Civil) No. 2370 of 2015)
Kinnari Mullick and Another …. Appellants
Versus
Ghanshyam Das Damani …. Respondent
J U D G M E N T

A.M.KHANWILKAR, J.
1. This appeal raises a short question as to whether Section 34 (4) of the Arbitration and Conciliation Act, 1996 (for short “the Act”) empowers the Court to relegate the parties before the Arbitral Tribunal after having set aside the arbitral award in question and moreso suo moto in absence of any application made in that behalf by the parties to the arbitration proceedings?

2. The Appellants, being joint owners of premises No.4 Wood Street, Kolkata, known as 4C, Dr. Martin Luther King Sarani, Kolkata, entered into two development agreements with the Respondent for a construction of a multi storied building. On completion of construction of the building sometime in 2003, the Appellants entered into a further agreement with the Respondent in terms of which the Respondent, for better enjoyment of the property, distributed the owner’s allocation. In terms of the said agreement, the Respondent fully sold and transferred his share of the premises to various prospective buyers with proportionate area of the land to them as well as in common areas. According to the Appellants, the Respondent is not in possession of any portion of the suit premises. The Appellants have also executed and registered the conveyance along with the proportionate right in common areas and land of the said premises to various transferees, save and except two flats. The said agreement contained an Arbitration clause which reads thus:
“21. That all disputes and/or differences between the parties herein shall be referred to arbitration in terms of the provisions of the Arbitration & Conciliation Act, 1996.”

3. The Respondent asserted that he was entitled to execution and registration of conveyance in respect of 50% built up area on the ground floor of such premises. That claim was rejected by the Appellants. The Respondent, through his advocate’s letter dated 21.11.2009 addressed to the Appellants, inter alia informed them about the appointment of one Siddhartha Sankar Mandal, Advocate as arbitrator and further, that the said arbitrator would send intimation to the Appellants about the date, time and venue in respect of the arbitration proceedings to be held by him. The said letter, however, did not specify that Siddhartha Sankar Mandal was appointed as Sole Arbitrator nor did it call upon the Appellants to appoint their nominee arbitrator. The Appellants then received communication through Siddhartha Sankar Mandal dated 01.11.2009 stating that he has been appointed as arbitrator to arbitrate the dispute between the Appellants and the Respondent and that he would enter upon the reference on 10.11.2009. By this letter, the Appellants were called upon to remain present so as to hold a meeting as scheduled. According to the Appellants, the letter did not even provide for 30 days’ time between the date of meeting and the receipt of the communication by the Appellants. Nevertheless, the arbitrator proceeded with the arbitration proceedings and held meetings. The Appellants did not file their statement of defence. Instead, they filed an application on 10.05.2010 before the arbitrator under Section 16 of the Act, inter alia challenging the composition of the Arbitral Tribunal and also raising the issue of jurisdiction to proceed with the arbitration as a Sole Arbitrator. The arbitrator, however, rejected the said application on 27.08.2010 by an interim award.

4. The Appellants then filed their counter statement in November 2010 to the statement of claim in the said arbitral proceedings without prejudice to their contention that, the Arbitral Tribunal has not been properly constituted and that the arbitrator had no jurisdiction to adjudicate the alleged dispute referred to him. The Appellants were also advised to file an application under Section 14 before the High Court, alleging bias on the part of the arbitrator and for a declaration that the arbitrator had become incompetent to perform his functions. The learned Single Judge of the High Court at Calcutta vide judgment dated 17.09.2012 disposed of the said application by reserving the right of the Appellants to raise all grounds mentioned in the application regarding the competence of the Arbitral Tribunal at the time of challenging the award under Section 34 of the Act, if such occasion arose.

5. The Appellants then received a copy of the purported award dated 18.06.2013 passed by the Arbitral Tribunal. The arbitrator allowed the claim of the Respondent and directed the Appellants to execute and register appropriate deed and/or deeds as proposed by the Respondent vide its Advocate’s letter dated 29.06.2009; and further directed that conveyance and/or conveyances was/were to be executed and registered by the Appellants, costs and expenses thereof were to be borne by the Respondent within a period of 30 days from the date of the award irrespective of any intervening holiday and/or holidays. The said award, however, did not contain any reason for allowing the claim of the Respondent.

6. Being dissatisfied with the interim award dated 27.08.2010 and final award dated 18.06.2013 passed by the Arbitral Tribunal, the Appellants filed an application under Section 34 of the Act, for setting aside of the said awards. The learned Single Judge was pleased to allow the said application on the finding that the impugned award did not disclose any reason in support thereof. The impugned award was accordingly set aside and the parties were left to pursue their remedies in accordance with law. The relevant portion of the decision of the learned Single Judge reads thus: “Since the present award is completely lacking in reasons and is littered with the unacceptable expressions like “I feel that the claim is justified”, “I find no basis” and the like which cannot be supplement for reasons that the statute demands, A.P. No.1074 of 2013 is allowed by setting aside the award dated June 18, 2013. The parties are left free to pursue their remedies in accordance with law.”

7. Against the aforementioned decision the Respondent preferred an appeal before the Division Bench of the High Court at Calcutta. The Appellants also filed a cross objection in respect of the adverse findings recorded by the learned Single Judge against them. The cross objection bearing APO No.223 of 2014 and APOT No.318 of 2014, were heard and decided together by the Division Bench vide impugned judgment dated 13.08.2014. The Division Bench affirmed the findings and conclusion recorded by the learned Single Judge that the award did not contain any reason whatsoever and thus rejected the appeal preferred by the Respondent, in the following words:
“We have considered the rival contentions. Section 31 is clear that would require the Tribunal to assign reason. The award would suffer from such lacunae. We would not be in a position to agree with Mr. Sharma when he would contend, it was reasoned, but reasons might have been insufficient. The learned Judge observed, “The award does not indicate a line or sentence of reasons and notwithstanding the petitioners herein, having pulled out of the reference and not urging their counter-statement or any defence to the claim, it was still incumbent on the arbitrator to indicate the grounds on which the respondents were entitled to succeed”. We fully endorse what his Lordship would say as quoted (supra). Hence, the appeal fails on such count.”
While considering the cross objection filed by the Appellants, the Division Bench negatived the ground urged before it about the inappropriate and illegal constitution of the Arbitral Tribunal. As a result, the cross objection filed by the Appellants was also rejected. Having decided as above, the Division Bench suo moto decided to relegate the parties before the Arbitral Tribunal by sending the award back with a direction to assign reasons in support of its award. It will be useful to reproduce the observations of the Division Bench in this regard. The same reads thus:
“On the cross-objection we would, however, agree with Mr. Sharma when he would draw our attention to Section 13. The learned Judge, in our view, rightly rejected the contention of the respondents. The challenge procedure as spelt out in Section 13 would refer to constitution of the Tribunal as well. Section 4 would clearly provide, if a party knowing his right does not take any step that would debar him to object at a later stage as if he shall be deemed to have waived his right to object. Section 34 would empower the Court to remit the award to the Arbitrator, at a stage when the award was under challenge, to eliminate the ground for setting aside of the arbitral award. Applying such provision we send the award back to the Arbitrator with a direction, he must assign reason to support his award. However, we wish to give the Arbitrator a free hand. If he feels, further hearing to be given to the parties, he may do so and upon hearing, he may publish his award in accordance with law adhering to the norms and procedures laid-down under the said Act 1996 without being influenced by the award that the learned Judge already set aside. The appeal is dismissed without any order as to costs.”
(emphasis supplied)

8. Aggrieved by the highlighted operative part of the direction issued by the Division Bench to send back the award to the Arbitral Tribunal for assigning reasons in support of the award, the Appellants have approached this Court by way of present appeal.

9. Indeed, the Appellants have also challenged the approach of the Division Bench and of the learned Single Judge in rejecting the contention of the Appellants about the jurisdiction of the Arbitral Tribunal. According to the Appellants, that objection could be raised by the Appellants and ought to be answered in their favour, keeping in mind, the decision of this Court in BSNL Vs. Motorola India Pvt. Ltd.1 . It is contended that the Appellants could raise the plea, that the Arbitral Tribunal did not have jurisdiction. Further, the Appellants had submitted the submission of defence without prejudice and thus the participation of the Appellants in the proceedings before the Arbitral Tribunal would not come in the way of the Appellants to raise that contention. The Appellants have also relied on the decisions of this Court in the case of Konkan Railway Corporation Limited Vs. Rani Construction Private Limited2 and GAIL Vs. Keti Construction (I) Ltd.3 . However, it may not be necessary for us to examine this argument if we were to accept the challenge set up by the Appellants to the concluding part of the impugned judgment of the Division Bench of having relegated the parties before the Arbitral Tribunal with a direction to assign reasons in support of the impugned award. As regards this contention, the Appellants have relied on the dictum in the case of MMTC Vs. Vicnivass Agency4 of the High Court of Madras, Raitani Engineering Works Pvt. Ltd. Vs. The Union of India and Others5 decided by the Gauhati High Court dated 28.05.2015, Bhaskar Industrial Development Limited Vs. South Western Railway6 decided by the High Court of Karnataka, Dharwad Bench and lastly in McDermott International Inc. Vs. Burn Standard Ltd.7

10. The Respondent, on the other hand, submits that ample power is bestowed upon the Court to relegate the parties to the award under challenge back to the Arbitral Tribunal to eliminate the ground for setting aside of the arbitral award, in terms of Section 34 of the Act. It is submitted that no jurisdictional error has been committed by the Division Bench in exercising that power for sending the award back to the Arbitral Tribunal with a direction to assign reasons in support of the award. It is submitted that the dismissal of the appeal preferred by the Respondent against the judgment of the learned Single Judge will not come in the way of the Respondent muchless to participate in the proceedings before the Arbitral Tribunal as has been remitted by the Division Bench for the limited purpose of assigning reasons in support of the award. It is submitted that no interference is warranted with the concluding part of the judgment of the Division Bench which intends to facilitate rectification of the deficiencies in the award already pronounced by the Arbitral Tribunal.

11. We have heard the learned counsel for the parties. At the outset, we may note that, if the plea taken by the Appellants in relation to the concluding part of the impugned judgment – of sending the award back to the Arbitral Tribunal for recording reasons – was to be accepted, we may not be required to dilate on any other argument. Inasmuch as the learned Single Judge allowed the application under Section 34 of the Act for setting aside of the award preferred by the Appellants; and the Division Bench has already affirmed the conclusion recorded by the learned Single Judge while dismissing the appeal preferred by the Respondent. Thus, the award has been set aside on that count. The Respondent has not challenged that part of the impugned judgment and has allowed it to become final.

12. In this backdrop, the question which arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law? For that, we may advert to Section 34(4) of the Act which is the repository of power invested in the Court. The same reads thus:
“Section 34…………. (4). On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.”

13. On a bare reading of this provision, it is amply clear that the Court can defer the hearing of the application filed under Section 34 for setting aside the award on a written request made by a party to the arbitration proceedings to facilitate the Arbitral Tribunal by resuming the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. The quintessence for exercising power under this provision is that the arbitral award has not been set aside. Further, the challenge to the said award has been set up under Section 34 about the deficiencies in the arbitral award which may be curable by allowing the Arbitral Tribunal to take such measures which can eliminate the grounds for setting aside the arbitral award. No power has been invested by the Parliament in the Court to remand the matter to the Arbitral Tribunal except to adjourn the proceedings for the limited purpose mentioned in sub-section 4 of Section 34. This legal position has been expounded in the case of McDermott International Inc. (supra). In paragraph 8 of the said decision, the Court observed thus:
“8…..parliament has not conferred any power of remand to the Court to remit the matter to the arbitral tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-section (4) of Section 34 of the Act is to give an opportunity to the arbitral tribunal to resume the arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award.”
(emphasis supplied)

14. In any case, the limited discretion available to the Court under Section 34(4) can be exercised only upon a written application made in that behalf by a party to the arbitration proceedings. It is crystal clear that the Court cannot exercise this limited power of deferring the proceedings before it suo moto. Moreover, before formally setting aside the award, if the party to the arbitration proceedings fails to request the Court to defer the proceedings pending before it, then it is not open to the party to move an application under Section 34(4) of the Act. For, consequent to disposal of the main proceedings under Section 34 of the Act by the Court, it would become functus officio. In other words, the limited remedy available under Section 34(4) is required to be invoked by the party to the arbitral proceedings before the award is set aside by the Court.

15. In the present case, the learned Single Judge had set aside the award vide judgment dated 07.03.2014. Indeed, the Respondent carried the matter in appeal before the Division Bench. Even if we were to assume for the sake of argument, without expressing any opinion either way on the correctness of this assumption, that the appeal was in continuum of the application under Section 34 for setting aside of the award and therefore, the Division Bench could be requested by the party to the arbitral proceedings to exercise its discretion under Section 34(4) of the Act, the fact remains that no formal written application was filed by the Respondent before the Division Bench for that purpose. In other words, the Respondent did not make such a request before the learned Single Judge in the first instance and also failed to do so before the Division Bench rejected the appeal of the Respondent.

16. In the case of MMTC (supra), the Madras High Court, while dealing with the purport of Section 34(4) of the Act in paragraph 22 (C) of the reported judgment, observed thus:
“(C)……On the other hand, Section 34(4) of the new Act, does not prescribe any condition precedent on the substance of the matter but prescribes three procedural conditions namely that there should be an application under Section 34(1) of the new Act and that a request should emanate from a party and the Court considers it appropriate to invoke the power under Section 34(4) of the new Act.”
Again, in paragraph 22 (e) (IV) of the reported judgment, it observed thus:
“But under the 1996 Act, the Court has only two sets of powers after the award is pronounced viz.,
(i) to set aside the award under Section 34(2); or
(ii) to adjourn the proceedings to enable the arbitral tribunal to resume the proceedings or take such other action as in the opinion of the tribunal will eliminate the grounds for setting aside the arbitral award.”
In the case of Raitani Engineering Works Pvt. Ltd. (supra), the Gauhati High Court, placing reliance on the decision in MMTC (supra) in paragraph 8 of its decision, observed thus:
“But unfortunately in the present case, the award given by the arbitration panel on 13.07.2012 was quashed in its entirety and the appeal under Section 34 is no more pending before the Court. Therefore, invoking the powers conferred under sub-section (4) of Section 34 of the Arbitration Act to facilitate the arbitration panel to take rectificatory steps is not an option in this matter. Moreover neither of the contesting party in this dispute have applied for an additional award and therefore it may not be appropriate to direct the arbitration panel to re-decide on the six un-decided claims of the contractor.”
The Division Bench of the High Court of Karnataka in the case of Bhaskar Industrial Development Limited (Supra) has expounded that the power of the Court under Section 34 of the Act is not to remand the matter to the Arbitral Tribunal after setting aside the arbitral award.

17. A priori, it must follow that the Division Bench committed manifest error in issuing direction in the concluding part of the impugned judgment, as reproduced hereinbefore in paragraph No.7. Such direction could not have been issued in the fact situation of the present case. The impugned direction suffers from the vice of jurisdictional error and thus cannot be sustained. We have no option but to quash and set aside the same.

18. As the Respondent has not challenged the decision of the Division Bench, we are left with the situation where the award has been set aside, and as observed by the learned Single Judge, with liberty to the parties to pursue their remedies in accordance with law.

19. Accordingly, we allow this appeal to the extent indicated above with no order as to costs.

…..……………………………..J.
(Dipak Misra)
.…..…………………………..J.
(A.M.Khanwilkar)
.…..…………………………..J.
(Mohan M. Shantanagoudar)

New Delhi,
Dated: April 20, 2017

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 5172 of 2017
KINNARI MULLICK AND ANR. Appellant(s)
VERSUS
GHANSHYAM DAS DAMANI Respondent(s)

Date: 20/04/2017 This Appeal was called on for judgment today.
For Appellant(s) Mr. Shekhar Kumar, AOR
For Respondent(s) Mr. M.C. Dhingra, AOR

Hon’ble Mr. Justice A.M. Khanwilkar pronounced the judgment of the Bench consisting of Hon’ble Mr. Justice Dipak Misra, His Lordship and Hon’ble Mr. Justice Mohan M. Shantanagoudar.
The appeal is allowed to the extent indicated in the signed reportable judgment with no order as to costs.
(Gulshan Kumar Arora)
Court Master

(H.S. Parasher)
Court Master

(Signed reportable judgment is placed on the file)

FOOTNOTE:
1 (2009) 2 SCC 337
2 (2002) 2 SCC 388
3 (2007) 5 SCC 38
4 (2009) 1 MLJ 199
5 Arbitration Petition No.13 of 2015 [2015 (2) GLD 615 (Gau)]
6 MFA No.103528 of 2015
7 (2006) 11 SCC 181

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1. The petitioner has filed the present petition, inter alia, praying that respondent no.1 to be directed to remove the protesting students inside and outside the Administrative Block so that the functioning of the university can be restored.

2. It is the petitioner’s case that the protesting students have made it impossible for the administrative authorities to function as the Administrative Block has been repeatedly cordoned off by protestors.

3. Permitting the police authorities to enter the University Campus is not an action that should be readily resorted to and insofar as possible, the presence of police on the campus must be avoided. However, this cannot be done at the cost of maintaining order in the University.

4. It is important for the students to have an environment in which they can freely exchange their thoughts, give vent to their feelings and express themselves unreservedly, including entering their protest. The spirit of the students must be nurtured and not curtailed. However, it is also necessary to ensure that the functioning of the petitioner university does not come to a standstill. And, the university cannot be permitted to be reduced to a battleground between the authorities and the students.

5. Considering the present situation, it is directed that no protest of any sort shall be undertaken by the students within 100 meters radius of the Administrative Block. The University authorities shall earmark an area where the students can congregate freely to protest.

6. Ms. Monika Arora learned counsel appearing for the petitioner has drawn the attention of this Court to a map of the university campus (Annexure P-5) which indicates that on the left-hand top of the site, there is an open area, which this Court is informed is known as Sabarmati Lawns. The said area would be open for the students to congregate without any unwarranted interference from the authorities. As long as the protest or congregation is peaceful, there will be no occasion for the authorities to invite the police authorities on the campus.

7. In order to ensure that the above directions are carried out, the petitioner is permitted to put CCTV cameras in front of the Administrative Block, which shall have a clear view of the parking in front as well as Administrative Block. CCTVs may also be put on the main gates of the campus. However, at this stage, the petitioner would avoid putting CCTV cameras in other areas which may be considered by the students as an intrusion on their privacy and free movement as that may vitiate the environment of the University.

8. Needless to state that in the event, the aforesaid orders are not complied with, the petitioner would be at liberty to request the police authorities for assistance to maintain law and order in the campus. The police authorities shall act only on the evidence of obstruction to ingress/ egress to the Administrative Building, being provided by the Authorities, which may be in the form of CCTV footage.

9. No further orders are required to be passed in these proceedings at this stage. The petition and the pending applications are, accordingly, disposed of with liberty to the parties to apply in the event any further orders are required.

VIBHU BAKHRU, J

AUGUST 09, 2017

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11158 OF 2017
(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
Amardeep Singh …Appellant
Versus
Harveen Kaur …Respondent
J U D G M E N T

ADARSH KUMAR GOEL, J.
1. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing a decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.
2. The factual matrix giving rise to this appeal is that marriage between the parties took place on 16th January 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28th April 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The respondent-wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8th May 2017 statements of the parties were recorded. The appellant-husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honored, towards part payment of permanent alimony. Custody of the children is to be with the appellant. They have sought a waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their reunion. Any delay will affect the chances of their resettlement. The parties have moved this Court on the ground that only this Court can relax the six months period as per decisions of this Court.
3. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar1 wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.
The text of Section 13B is as follows:
“13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”
4. There is a conflict of decisions of this Court on the question of whether the exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In Manish Goel versus Rohini Goel2, a Bench of two judges of this Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed :
“14. Generally, no court has the competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]
15. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12)
“12. … An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
(emphasis supplied)
The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P. Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.”
5. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony3. This view was reiterated in Poonam versus Sumit Tanwar4.
6. In Neeti Malviya versus Rakesh Malviya5, this Court observed that there was conflict of decisions in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was referred to bench of three-Judges. However, since the matter became infructuous on account of grant of divorce in the meanwhile7.
7. Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the Constitution has been exercised by this Court in number of cases8 even after the said judgment.
8. We find that in Anjana Kishore (supra), this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 in the facts and circumstances of the case. In Anil Kumar Jain versus Maya Jain9 , one of the parties withdrew the consent. This Court held that marriage had irretrievably broken down and though the civil courts and the High Court could not exercise power contrary to the statutory provisions, this Court under Article 142 could exercise such power in the interests of justice. Accordingly the decree for divorce was granted.
9. After considering the above decisions, we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.
10. However, we find that the question whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised. This Court observed :
“23. The learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.”
11. Accordingly, vide order dated 18th August, 2017, we passed the following order :
“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to waive the same having regard to the interest of justice in an individual case.
Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus”.
12. Accordingly, learned amicus curiae has assisted the Court. We record our gratitude for the valuable assistance rendered by learned amicus who has been ably assisted by S/Shri Abhishek Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.
13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini10 , Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11 , Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13 . Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.
15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.
16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.
17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9 th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:
“The study of numerous cases on this topic does not lead to the formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage, Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’
“ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”
18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of a child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
23. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order. The appeal is disposed of accordingly.

…………………………………..J.
(ADARSH KUMAR GOEL)
…………………………………..J.
(UDAY UMESH LALIT)

NEW DELHI;
SEPTEMBER 12, 2017.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 11158/2017
AMARDEEP SINGH …Appellant(s)
VERSUS
HARVEEN KAUR …Respondent(s)

Date: 12-09-2017 This appeal was called on for the pronouncement of judgment today.
For Appellant(s) Mr. T. R. B. Sivakumar, AOR
For Respondent(s)
Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice Uday Umesh Lalit.
The appeal is disposed of in terms of the signed reportable judgment.
(SWETA DHYANI)
SENIOR PERSONAL

(PARVEEN KUMARI PASRICHA)
ASSISTANT BRANCH OFFICER

(Signed reportable judgment is placed on the file)

Footnote
1 (2016) 13 SCC 383
2 (2010) 4 SCC 393
3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995)
2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734
4 (2010) 4 SCC 460
5 (2010) 6 SCC 413
6 (2002) 10 SCC 194
7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007
8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v. Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383
9 (2009) 10 SCC 415
10 AIR 1986 AP 167 (DB)
11 AIR 1994 Kar 12 (DB)
12 AIR 1990 Del 146
13 AIR 2005 MP 106 (DB)
14 AIR 2010 Ker 157
15 (2005) 4 SCC 480

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Government of NCT of Delhi … Appellant

Versus

Union of India & Another … Respondents

WITH
CONTEMPT PETITION (CIVIL) NO. 175 OF 2016
IN
WRIT PETITION (CRIMINAL) NO. 539 OF 1986
CIVIL APPEAL NO. 2358 OF 2017
CIVIL APPEAL NO. 2359 OF 2017
CIVIL APPEAL NO. 2360 OF 2017
CIVIL APPEAL NO. 2361 OF 2017
CIVIL APPEAL NO. 2362 OF 2017
CIVIL APPEAL NO. 2363 OF 2017
CIVIL APPEAL NO. 2364 OF 2017
AND
CRIMINAL APPEAL NO. 277 OF 2017

JUDGMENT

Dipak Misra, CJI (for himself, A.K. Sikri and A.M. Khanwilkar, JJ.)

A. Prologue:
The present reference to the Constitution Bench has its own complexity as the centripodal issue in its invitation of the interpretation of Article 239AA of the Constitution invokes a host of concepts, namely, constitutional objectivity navigating through the core structure with the sense and sensibility of having a real test of constitutional structure; the culture of purposive interpretation because the Court is concerned with the sustenance of glory of constitutional democracy in a Democratic Republic as envisioned in the Constitution; and understanding the idea of citizenry participation viewed with the lens of progressive perception inherent in the words of a great living document emphasizing on the democratic theme to achieve the requisite practical goal in the world of reality. We may call it as pragmatic interpretation of a constitutional provision, especially the one that has the effect potentiality to metamorphose a workable provision into an unnecessary and unwarranted piece of ambiguity. In such a situation, the necessity is to scan the anatomy of the provision and lift it to the pedestal of constitutional ethos with the aid of judicial creativity that breathes essentiality of life into the same. It is the hermeneutics of law that works. It is the requisite constitutional stimulus to sustain the fundamental conception of participative democracy so that the real pulse is felt and further the constitutional promise to the citizens is fulfilled. It gets rid of the unpleasant twitches and convulsions. To put it differently, the assurance by the insertion of Article 239AA by the Constitution (Sixtyninth Amendment) Act, 1991 by exercise of the constituent power is not to be renounced with any kind of rigid understanding of the provision. It is because the exercise of constituent power is meant to confer democratic, societal and political powers on the citizens who reside within the National Capital Territory of Delhi that has been granted a special status.

2. The principal question is whether the inhabitants or voters of NCT of Delhi remain where they were prior to the special status conferred on the Union Territory or the amended constitutional provision that has transformed Delhi instills “Prana” into the cells. Let it be made clear that any ingenious effort to scuttle the hope and aspiration that has ignited the idea of “march ahead” among the inhabitants by any kind of linguistic gymnastics will not commend acceptation. The appellant claims that the status of the voters of NCT Delhi after the SixtyNinth Amendment has moved from notional to real but the claim has been negatived by the Delhi High Court. Learned counsel for the appellant criticize the judgment and order of the High Court by contending, apart from other aspects, that the language employed in the entire Chapter containing Article 239AA, unless appositely interpreted, shall denude the appellant, the National Capital Territory of Delhi, of its status.

3. The criticism is founded on the base that the Constitution of India, an organic and continuing document, has concretised their desire and enabled the people to have the right to participate as a collective in the decision making process that shall govern them and also pave the path of their welfare. The participation of the collective is the vital force for larger public interest and higher constitutional values spelt out in the Constitution and the silences therein and the same are to be protected. It is the assertion that the collective in a democracy speak through their elected representatives seeking mitigation of the grievances.

4. This Court, being the final arbiter of the Constitution, in such a situation, has to enter into the process of interpretation with the new tools such as constitutional pragmatism having due regard for sanctity of objectivity, realization of the purpose in the truest sense by constantly reminding one and all about the sacrosanctity of democratic structure as envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of decentralization of power and, we must say, the ideas knock at the door to be invited. The compulsive invitation is the warrant to sustain the values of democracy in the prescribed framework of law. The aim is to see that in the ultimate eventuate, the rule of law prevails and the interpretative process allows the said idea its deserved space, for when the rule of law is conferred its due status in the sphere of democracy, it assumes significant credibility.

5. We would like to call such a method of understanding “confluence of the idea and spirit of the Constitution”, for it celebrates the grand idea behind the constitutional structure founded on the cherished values of democracy.

6. As we have used the words “spirit of the Constitution”, it becomes our obligation to clarify the concept pertaining to the same. The canon of constitutional interpretation that glorifies the democratic concepts lays emphasis not only on the etymology of democracy but also embraces within its sweep a connotative expansion so that the intrinsic and innate facets are included.

7. A sevenJudge Bench of the Court in Keshvan Madhava Menon v. The State of Bombay1 observed:
“ An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.”
[Emphasis is ours]

The aforesaid decision has to be understood in the context of the phraseology ‘spirit of the Constitution’. As we understand, the Court has not negatived the concept as an alien one. It has laid emphasis on the support from the language used. It has not accepted the assumed spirit of the Constitution. Needless to say, there cannot be assumptions. Every proposition should have a base and the Constitution of India to be an organic and living one has to be perceived with progressive dynamism and not stuck with inflexibility. Flexibility has to be allowed room and that is what we find in later authorities.

8. In Madhav Rao Jivaji Rao Scindia and others v. Union of India and another2, Hegde, J, in his concurring opinion, emphasized on the spirit of the Constitution. The learned Judge, while not accepting the exercise of power for collateral reasons, stated:­ “Exercise of power for collateral reasons has been considered by this Court in several decisions as a fraud on that power — see Balaji v. State of Mysore. Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar Constitution. If the Constitution or any of its provisions have ceased to serve the needs of the people, ways must be found to change them but it is impermissible to by­pass the Constitution or its provisions. Every contravention of the letter or the spirit of the Constitution is bound to have chain reaction. For that reason also the impugned orders must be held to be ultra vires Article 366(22).” [underlining is ours]

9. In State of Kerala and another v. N.M. Thomas and others3, Krishna Iyer, J., in his concurring opinion, opined thus:­ “106. Law, including constitutional law, can no longer “go it alone” but must be illumined in the interpretative process by sociology and allied fields of knowledge. Indeed, the term “constitutional law” symbolises an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law, thinking as lawyers think. So much so, a wider perspective is needed to resolve issues of constitutional law. Maybe, one cannot agree with the view of an eminent jurist and former Chief Justice of India:

“The judiciary as a whole is not interested in the policy underlying a legislative measure.”

Moreover, the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy. Its provisions can be comprehended only by a spacious, social­science approach, not by pedantic, traditional legalism. Here we are called upon to delimit the amplitude and decode the implications of Article 16(1) in the context of certain special concessions relating to employment, under the Kerala State (the appellant), given to scheduled castes and scheduled tribes (for short, hereinafter referred to as harijans) whose social lot and economic indigence are an Indian reality recognized by many articles of the Constitution. An overview of the decided cases suggests the need to reinterpret the dynamic import of the “equality clauses” and, to stress again, beyond reasonable doubt that the paramount law, which is organic and regulates our nation’s growing life, must take in its sweep “ethics, economics, politics and sociology”. Equally pertinent to the issue mooted before us is the lament of Friedmann:

“It would be tragic if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society.”

The main assumptions which Friedmann makes are:
“First, the law is, in Holmes’ phrase, not a ‘brooding omnipotence in the sky’, but a flexible instrument of social order, dependent on the political values of the society which it purports to regulate . . . .”

107. Naturally surges the interrogation, what are the challenges of changing values to which the guarantee of equality must respond and how? To pose the problem with particular reference to our case, does the impugned rule violate the constitutional creed of equal opportunity in Article 16 by resort to a suspect classification or revivify it by making the less equal more equal by a legitimate differentiation? Chief Justice Marshall’s classic statement in McCulloch v. Maryland followed by Justice Brennan in Katzenbach v. Morgan remains a beacon light:

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional”.” [Emphasis is added]

10. In Supreme Court Advocates­on­Record Association and another v. Union of India4, this Court observed that a fortiori any construction of the constitutional provisions which conflicts with the constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, being an alien concept.

11. We have referred to the aforesaid precedents to state that the spirit of the Constitution has its own signification. In the context of the case at hand, the democratic nature of our Constitution and the paradigm of representative participation are undoubtedly comprised in the “spirit of the Constitution”. While interpreting the provisions of the Constitution, the safe and most sound approach is to read the words of the Constitution in the light of the avowed purpose and spirit of the Constitution so that it does not result in an illogical outcome which could have never been the intention of the Constituent Assembly or of the Parliament while exercising its constituent power. Therefore, a constitutional court, while adhering to the language employed in the provision, should not abandon the concept of the intention, spirit, the holistic approach and the constitutional legitimate expectation which combinedly project a magnificent facet of purposive interpretation. The Court should pose a question to itself whether a straight, literal and textual approach would annihilate the sense of the great living document which is required to be the laser beam to illumine. If the answer is in the affirmative, then the constitutional courts should protect the sense and spirit of the Constitution taking aid of purposive interpretation as that is the solemn duty of the constitutional courts as the final arbiters of the Constitution. It is a constitutional summon for performance of duty. The stress has to be on changing society, relevant political values, absence of any constitutional prohibition and legitimacy of the end to be achieved by appropriate means. We shall refer to the aspect of purposive interpretation regard being had to the context and other factors that gain primacy to be adverted to at a subsequent stage.

12. Having prefaced thus, we shall now proceed to state the controversy in brief since in this batch of appeals which has been referred to the Constitution Bench, we are required to advert to the issue that essentially pertains to the powers conferred on the Legislative Assembly of the National Capital Territory of Delhi and the executive power exercised by the elected Government of NCT of Delhi. The facts involved and the controversy raised in each individual appeal need not be dwelled upon, for we only intend to answer the constitutional issue.

13. The primordial adjudication, as is presently the requisite, commands our focus on the interpretation of Article 239AA of the Constitution of India. The said interpretation, be it noted, is not to be done in an exclusive compartment but in the context in which it has been introduced and also keeping in view the conceptual structure of the other relevant articles of the Constitution. Before we delve into the various facets of Article 239AA and other provisions of the Constitution which have been pressed into service by the learned counsel appearing for the appellant and the learned Additional Solicitor General, we think it appropriate to narrate a brief history of Delhi.

14. On 12.12.1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separate from Punjab and annexed to Delhi headed by a Commissioner and it came to be known as the Chief Commissioner’s province. In 1912, the Delhi Laws Act, 1912 came into force with effect from 01.10.1912 making certain laws prevalent in Punjab to be applicable to Delhi. The Delhi Laws Act, 1915 empowered the Chief Commissioner, Delhi to determine application of laws by issuing appropriate notification in the Gazette of India. The Government of India Act, 1919 and the Government of India Act, 1935 retained Delhi as a centrally administered territory. On coming into force of the Constitution of India on 26.01.1950, Delhi became a Part C State. In the year 1951, the Government of Part C States Act, 1951 was enacted providing, inter alia, for a Legislative Assembly in Delhi. Section 21(1) of the 1951 Act empowered the Legislative Assembly to make laws on all matters of List II of the Seventh Schedule of the Constitution except (i) public order; (ii) police (including railway police); (iii) constitution and powers of municipal corporations and local authorities, etc.­public utility authorities; (iv) lands & buildings vested in/in possession of the Union situated in Delhi or New Delhi; (v) offences against laws about subjects mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to the above matters and court fee thereon.

15. On 19.10.1956, the Constitution of India (Seventh Amendment) Act, 1956 was passed to implement the provisions of the States Re­organization Act, 1956 which did away with Part A, B, C and D States and only two categories, namely, States and Union Territories remained and Delhi became a Union Territory to be administered by an administrator appointed by the President. The Legislative Assembly of Delhi and the Council stood abolished. In the year 1953, the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies and Council of Ministers for various Union Territories but the provisions of the said Act were not made applicable to Delhi. The Delhi Administration Act, 1966 was enacted to provide for limited representative Government for Delhi through a Metropolitan Council comprising of 56 elected members and five nominated members. In the same year, on 20.08.1966, the Ministry of Home Affairs issued S.O. No. 2524 that provided, inter alia, that the Lieutenant Governor/Administrator/Chief Commissioner shall be subject to the control of the President of India and exercise such powers and discharge the functions of a State Government under the Commission of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The relevant portion of the Balakrishnan Committee report reads as follows:­

“6.5.5 In paragraphs 6.5.2 and 6.5.3 we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced that most of the arguments against making Delhi a State of the Union are very substantial, sound and valid and deserve acceptance. This was also the view expressed before us by some of the eminent and knowledgeable persons whom we interviewed. As these arguments are self­evident we find it unnecessary to go into them in detail except those relating to constitutional and financial aspects covered by them.

6.5.6 The important argument from the Constitutional angle is based on the federal type of our Constitution under which there is a constitutional division of powers and functions between the Union and the State. If Delhi becomes a full­ fledged State, there will be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to make any law except in the special and emergency situations provided for under the Constitution and to that extent the Union Executive cannot exercise executive powers or functions. The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the national capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the national capital and the need for keeping it under the control of the Union Government. Such control is vital in the national interest irrespective of whether the subject matter is in the State field or Union field. If the administration of the natural capital is divided into rigid compartments of State of field and Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments are run by different political parties. Such conflicts may, at times, prejudice the national interest……
x x x
6.5.9 We are also impressed with the argument that Delhi as the national capital belongs to the nation as a whole and any constituent State of the Union of which Delhi will become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day­to­day matters, however vital some of, them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities.
x x x

LT. GOVERNOR AND COUNCIL OF MINISTERS

6.7.19 As a necessary corollary to the establishment of a responsible Government for Delhi the structure of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lt. Governor may be continued and recognized in the Constitution itself. …

x x x

6.7.21 The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “to aid and advice” is a well understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications of this general rule will have to be adopted:

(i) Firstly, the requirement of acting on the aid and advice of the council of Ministers cannot apply to the exercise by the Administrator of any judicial or quasi­judicial functions. The reason is obvious because in respect of such functions there is no question of acting on the advice of another person.

(ii) Secondly, the requirement is only in relation to matters in respect of which the Legislative Assembly has the powers to make laws. This power will be subject to the restrictions already dealt with earlier in the Report. Accordingly, the Council of Ministers will not have jurisdiction to deal with matters excluded from the purview of the Legislative Assembly.

(iii) Thirdly, there is need for a special provision to resolve differences between the Administrator and his Council of Ministers on any matter concerning the administration of Delhi. Normally, the general principle applicable to the system of responsible Government under the Constitution is that the Head of the Administration should act as a mere Constitutional figurehead and will have to accept the advice of the Council of Ministers except when the matter is left to his discretion. However, by virtue of Article 239 of the Constitution, the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator. Because of this the Administrator has to take a somewhat more active part in the administration than the Governor of a State. It is, therefore, necessary to reconcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need to enforce the collective responsibility of the Council of Ministers to the Legislature. The best way of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council of Ministers, he should refer the question to the President and the decision of the President thereon will be final. In cases of urgency, if immediate action is necessary, the Administrator may direct action to be taken pending such decision of the President. A provision of this kind was made for this very reason not only in the 1951 Act, but also in the 1963 Act relating to the Union territories as well as in the 1978 Bill.”

16. As the chronology would show, after due deliberation, the Parliament, in exercise of its constituent power, amended the Constitution by the Constitution (Sixty­ninth Amendment) Act in the year 1991 and inserted Articles 239AA and 239AB in the Constitution to which we shall refer at an appropriate stage when we dwell upon the interpretative process.

B. Rivalised Submissions:
17. Now, we may note the rivalised submissions at the Bar. We have heard Mr. P. Chidambaram, Mr. Gopal Subramaniam, Dr. Rajiv Dhawan, Ms. Indira Jaising and Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the Government of NCT of Delhi. Mr. Maninder Singh, learned Additional Solicitor General of India, has advanced arguments on behalf of the Union of India and the Lieutenant Governor of Delhi.

18. A common written submission has been filed on behalf of the Government of NCT of Delhi and Mr. Maninder Singh, learned Additional Solicitor General of India, has filed written submissions on behalf of both the Union of India and the Lieutenant Governor of NCT of Delhi.

19. An application for intervention being I.A. No. 10556 of 2017 was filed by the applicant, Reliance Industries Ltd. We have heard Dr. A.M. Singhvi, learned senior counsel on behalf of the said intervenor. Another application for intervention was filed by The Kapila and Nirmal Hingorani Foundation and we have heard Mr. Aman Hingorani, learned counsel on behalf of the said Foundation.

B.1 Submissions on behalf of the appellant:
20. It is submitted by learned senior counsel appearing on behalf of the appellant that the NCTD occupies a unique position in the constitutional scheme by virtue of the insertion of Articles 239AA and 239AB and the consequent enactment of the 1991 Act that has shaped the NCTD into a constitutional hybrid and has led Delhi to acquire certain special characteristics solely attributed to full­fledged States under the Constitution. As per the appellant, the Government of NCT of Delhi enjoys far more power than the administrative set ups of other Union Territories especially after the constitutional amendment and coming into force of the 1991 Act.

21. After expansively referring to the constitutional history of the NCTD, it is urged on behalf of the appellant that the insertion of Article 239AA was intended to eradicate the hierarchical structure which functionally placed the Lieutenant Governor of Delhi in a superior position to that of the Council of Ministers, especially with respect to the executive powers and the Lieutenant Governor has to be treated as a titular head alone in respect of matters that have been assigned to the Legislative Assembly and the Council of Ministers.

22. The appellant has alluded to the nine­Judge Bench decision in New Delhi Municipal Corporation v. State of Punjab5 to contend that the Union Territory of Delhi is a class by itself different from all other Union Territories which our Constitution envisages, and the larger Bench had no occasion to decide in what shape and form the NCTD is different from other Union Territories, for the said issue did not arise therein. Nevertheless, the majority opinion clearly rules as regards Delhi’s unique constitutional status unlike other Union Territories by virtue of the constitutionally created Legislative Assembly, Council of Ministers and Westminster style cabinet system of government that have been brought by the Sixty­ninth Amendment and the 1991 Act.

23. It is further submitted by the appellant that the Sixty­ Ninth Amendment to the Constitution and the consequent 1991 Act were passed with the aim to give the citizens of NCT of Delhi a larger say in the governance of NCTD. Democracy being one of the facets of the basic structure of the Constitution, the Sixty­ninth amendment was aimed at furthering democracy in Delhi and hence, Article 239AA should be interpreted in the backdrop of the fact that Delhi has been conferred special status among various UTs and in such a way that democracy in its true sense is established in Delhi.

24. It is submitted that constitutional jurisprudence in the Indian context has undergone a sea change after the decisions in R.C. Cooper v. U.O.I6 and Maneka Gandhi v. U.O.I7. Learned counsel for the appellant submit that this Court should adopt a more purposive and an organic method of interpretation as adopted by this Court in a catena of cases including the recent one in Justice K.S. Puttaswamy (Retd.) and another v. U.O.I. and others8 wherein the majority observed that the decisions of this Court prior to R.C. Cooper (supra) and Maneka Gandhi (supra) must be understood in their historical context.

25. Article 239AA has deliberately excluded the words “assist and advice” as were used in the 1963 and 1966 Acts, rather the said Article employs the expression “aid and advice” and, therefore, it consciously obviates the requirement of the Lieutenant Governor’s concurrence on every matter. Thus, it is the proponement of the appellant that Article 239AA of the Constitution which has conferred a Westminster style cabinet system of government for the NCT of Delhi makes the Lieutenant Governor bound by the ‘aid and advice’ of the Council of Ministers. To buttress its argument, the appellant has referred to the judgments in Rai Sahib Ram Jawaya Kapur and Ors. v. State of Punjab9 and Shamsher Singh v. State of Punjab10 which, as per the appellant, though arose in the context of the State of Punjab, decided that since our Constitution has conferred a Westminster style cabinet system for the Government of State of Punjab, an executive Government established under the aegis of the Constitution should be able to exercise all executive powers necessary to fulfill the needs that the situation warrants and consequently, the Governor has to act in accordance with the aid and advice tendered by the Council of Ministers with the Chief Minister as its head.

26. It is further argued that GNCTD has the sole power to take executive actions on all matters on which the Delhi Legislature is competent to pass laws irrespective of whether or not the Legislature has actually passed a law on the subject. Emphasis is laid on the principle of collective responsibility to a democratically elected legislative body and, on that basis, it is proponed that the Lieutenant Governor of Delhi is bound by the aid and advice of the Council of Ministers of Delhi. It is put forth that such an interpretation can alone meet the purpose of constitutionally mandated governance in Delhi post insertion of Article 239AA in the Constitution.

27. It is the stand of the appellant that the extent of executive powers of the Government of NCT of Delhi can be understood by appositely juxtaposed reading of Article 239AA(3) with Article 239AA(4) which stipulates that the Government of NCT of Delhi has exclusive executive powers in relation to matters which fall within the purview of Delhi Assembly’s legislative competence. Article 239AA(3) gives the Delhi Legislative Assembly the legislative powers over all except three subjects in the State List and all subjects in the Concurrent List and as a natural corollary, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects in respect of which the Delhi Legislative Assembly has the legislative power to legislate.

28. It is asserted by the counsel for the appellant that Article 239AA preserves the Parliament’s legislative powers over all subjects in the State and the Concurrent Lists, but no such executive power is reserved for the Union. The appellant contends that there is conscious difference between the language of Article 239AA(3) which gives overriding legislative powers to the Parliament and that of Article 239AA(4) which refrains from doing the likewise in the context of executive powers. The Centre’s executive power stems from Article 73 and would normally be co­extensive with the Parliament’s legislative powers, but this is explicitly subject to other provisions of the Constitution which has to include Article 239AA. Thus, Article 239AA has, in the case of Delhi, whittled down the executive power of the Centre to only the three reserved subjects falling outside the purview of the executive power of the Council of Ministers of Delhi.

29. The appellant has argued that though Article 73 of the Constitution lays down the principle that there may exist under the Constitution concurrent legislative powers between the Parliament and the State Legislative Assemblies, yet there can never be concurrent executive powers between the Central and the State Governments as such a situation would result in chaos in the absence of any responsibility/accountability for executive actions. This principle, as per the appellant, must apply equally in relation to matters contained in List II and List III of the Seventh Schedule and the effect of Article 239AA(3) is that all matters on which the Delhi Legislative Assembly has power to legislate are effectively equivalent to matters of the Concurrent List.

30. Article 239AB would become redundant if it is to be accepted that the Constitution allows the Union Government to override all executive actions/decisions of the GNCTD in the ordinary course of things, as in such a situation, it would never be necessary to invoke the special provision in the form of Article 239AB for the Union Government to take over the administration of Delhi. Further, Article 239AB stipulates that if the administration of Delhi is not carried out in accordance with Article 239AA, the President may suspend the operation of any part or whole of Article 239AA. This, as per the appellant, clearly shows that when an elected government is in place, the administration of Delhi has to be carried out in accordance with Article 239AA.

31. After quoting Dr. Ambedkar on federalism in the Constituent Assembly Debates dated 25.11.1949, the appellant has contended that Article 239AA is an example of the hallmark of federalism in our Constitution which reserves legislative primacy of the Parliament in certain limited areas but there is no such corresponding provision in the Constitution which reserves the executive powers of the Central Government vis­a­vis GNCTD.

32. It is contended on behalf of the appellant that there is necessity for uniform and consistent interpretation of the phrase ‘aid and advice’ used in different articles of the Constitution such as Article 74, Article 163 and Article 239AA in the context of the functions of the President, the Governor and the Lieutenant Governor respectively. It is urged that the provisions of the Constitution being on a higher pedestal than ordinary statutory provisions require to be interpreted in a different manner and in view of the same, Article 239AA(4) deserves to be interpreted in a manner as other provisions of the Constitution and, hence, there is warrant for interpreting the phrase ‘aid and advice’ in a broad sense so that such ‘aid and advice’ is binding on the nominee of the President, i.e., the Lieutenant Governor. It would be an anathema to the constitutional philosophy to surmise that just because the Constitution permits a difference of opinion between the Lieutenant Governor and the Council of Ministers, the ‘aid and advice’ tendered by the Council of Ministers is not binding upon the Lieutenant Governor.

33. The appellant has further submitted that under Article 239AA(4), the Government of NCT of Delhi and the Council of Ministers of the NCT of Delhi have exclusive power over all matters in relation to subjects under List II (excluding Entries 1, 2 and 18 thereof and Entries 34, 65 and 66 in so far as they apply to Entries 1, 2 and 18 thereof) and List III of the Seventh Schedule. According to the appellant, the substantive part of Article 239AA(4) itself lays down the exception to it, i.e., when the Lieutenant Governor is to act in his discretion under the law and not as per the advice of the Council of Ministers. The proviso to Article 239AA(4), as per the appellant, comes into play where the ‘aid and advice’ of the Council of Ministers transgresses the areas constitutionally prescribed to it and the proviso does not allow the Lieutenant Governor to have a different view on the merits of the ‘aid and advice’ that has been tendered by the Council of Ministers. According to the appellant, the proviso to Article 239AA(4) operates only in exceptional situations and is not a general norm. Any attempt to expand the scope of the proviso beyond exceptional matters is not tenable as it would have the effect of rendering the main part of Article 239AA(4) otiose. To rely upon the proviso to Article 239AA(4) to say that the ‘aid and advice’ of the Council of Ministers is not binding upon the Lieutenant Governor in areas in which the Delhi Legislative Assembly has competence to legislate would defeat the purpose for which institutions necessary to operationalize democracy in Delhi were created. It is submitted by the appellant that the 1991 Act as well as the Rules themselves cannot be used to interpret the constitutional provisions inasmuch as they only reflect the scheme of governance.

B.2 Submissions on behalf of the respondents:
34. The submissions put forth by Mr. Maninder Singh, learned Additional Solicitor General of India, appearing on behalf of the respondents, Union of India and Lieutenant Governor of Delhi, revolve around the argument that although the insertion of Article 239AA envisages the constitution of a Legislative Assembly for the National Capital Territory of Delhi, yet the President shall remain its Executive head, acting through the Lieutenant Governor, and that the powers of the Parliament in respect of the Union Territories shall not be derogated in any manner by the insertion of the said Article 239AA.

35. The respondents submit that the constitutional scheme envisaged for the Union Territories has been dealt with in New Delhi Municipal Corporation (supra) case and although the Court in this case had contemplated three categories of Union Territories, yet it had arrived at the conclusion that those surviving as Union Territories and not having acquired Statehood shall remain so and Delhi, now referred to as “National Capital Territory of Delhi”, is still a Union Territory. The respondents further submit that once it has been determined that Delhi continues to be a Union Territory, its governance shall be regulated by the provision of Article 239 which stipulates that all Union Territories shall be governed by the President of India and neither a plain textual reading nor a contextual reading of Article 239AA stipulates any vertically divided exclusive jurisdiction with the Legislative Assembly or the Council of Ministers.

36. The respondents, thereafter, in their submissions, after citing several authorities, have sought to impress upon this Court that Article 239AA be given its literal and true interpretation as there exists no ambiguity attracting the requirement of purposive interpretation. The respondents have also submitted that since it was on the recommendations made by the Balakrishnan Committee, which had been accepted in toto, that the Sixty­ninth amendment and the 1991 Act came into force, the Court should consider the report of the Committee and the reasons provided therein in order to ascertain the true intention of the exercise of the constituent power of the Parliament for bringing about the said amendment as well as the GNCTD Act.

37. It is also asserted by the respondents that Article 239 is an integral part of the Constitution and the foundation stone of Part VIII and that Article 239AA shall be read conjointly with Article 239 which provides that the ultimate administration with respect to Delhi shall remain with the President acting through its administrator.

38. The respondents also contend that although Article 239AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article when it employs the phrase “in so far as any such matter is applicable to Union Territories….” and also by specifically excluding from the legislative power of the Assembly certain entries as delineated in Article 239AA(3)(a). This restriction, as per the respondents, limits the power of the Legislative Assembly to legislate and this restriction has to be understood in the context of conferment of special status.

39. To reiterate the position that the President remains the Executive head for all Union Territories, Mr. Singh has drawn the attention of the Court to Articles 53 and 73 read with Article 246(4) of the Constitution. It is further urged that nowhere in the Constitution, including Articles 239A or 239AA, it has been stipulated that the executive power of a Union Territory shall vest in the Council of Ministers/Legislative Assembly. It has been argued that the contention of the appellant that on the creation of Legislative Assembly, there was an automatic investiture of executive power on the said Assembly is flawed as the constitutional scheme does not envisage any conferment of automatic power on the Council of Ministers. Further, as the submission is structured, Article 239AA(4) employs the phrase “Lieutenant Governor and his Ministers” which implies that it is the “Lieutenant Governor” and not the “Council of Ministers” who is responsible for the administration of the Union Territory. That apart, the provisions of Articles 298, 299 and 239AB of the Constitution and Section 52 of the 1991 Act also reiterate the position that the Constitution does not stipulate any automatic conferral of executive power and the same is echoed in the Balakrishnan Committee Report.

40. The respondents contend that the contention of the principle laid down in the judgment of Ram Jawaya Kapur (supra), that wherever there is existence of legislative power there is co­extensive existence of executive power, is with respect to only the Union and the States and is not applicable to Union Territories as the same would be against the constitutional mandate as laid down in its various provisions.

41. The respondents, to further advance their arguments, have pointed out the distinction between Articles 239AB and 356 of the Constitution and have submitted that Article 356 envisages that the President shall assume to himself the functions of the State Government and the powers vested in the Governor in case of failure of “constitutional machinery” but in the case of Union Territories, this clause would become inapplicable as the executive power of a Union Territory remains vested with the President. The respondents would further submit that Article 239AB does not stipulate any “assumption of powers” by the President but merely provides for suspension of operation of Article 239AA in the NCT of Delhi in case the President is satisfied that it is necessary to do so for the proper administration of NCT of Delhi.

42. The respondents, in their submissions, also point out that a close reading of Article 239 with Article 239AA along with Section 44 of the GNCTD Act, 1991 would reveal that the expression “Executive action of the Lt. Governor” and not the “Executive action of NCT of Delhi” has been stipulated in the said provisions. The said intention can also be seen from the fact that the phrase Lieutenant Governor “with the Ministers” has been used in Section 44(1)(b) and further Article 239AA(4) also engages the phrase “his functions”. This leads to the implication that the extent of contribution/participation to be made by the Council of Ministers is only to render aid and advice to the Lieutenant Governor.

43. It has been further submitted on behalf of the respondents that the aid and advice rendered by the Council of Ministers is not binding upon the Lieutenant Governor and he is empowered to form an opinion that differs from the opinion of the Council of Ministers. In such a situation, the proviso to Article 239AA(4) comes into play which provides that in case of such difference of opinion, the decision of the President shall be final. Learned Additional Solicitor General has stressed that this is in recognition of the fact that the ultimate responsibility in relation to the administration of the Union Territories lies with the Union and there is clear demarcation of difference as regards the manner of governance between States and Union Territories whereby in case of the former, the Governor is bound by the advice tendered by the Council of Ministers.

44. The respondents further point out that a combined reading of Article 239AA(4) and Section 41(2) of the 1991 Act would suggest that when the question arises if a matter is one where the Lieutenant Governor shall exercise his discretion, the decision of the Lieutenant Governor shall be final. Article 239AA(4) and the proviso thereto is not an exception and, hence, should not be given a restrictive meaning and the phrase “any matter” has been deliberately kept of the widest import. To bring home the point, reliance has been placed on the dictum laid down in Tej Kiran Jain and others v. N. Sanjiva Reddy and others11 where the word “anything” has been said to mean “everything”. Therefore, the phrase “any matter” has to be interpreted to mean “every matter”. The said interpretation, as per the respondents, would be in accord with the objective of the Constitution that the Union shall retain the ultimate authority to legislate on any matter with respect to the National Capital Territory of Delhi.

45. The respondents also submit that Article 239AA does not contemplate a new scheme and it is similar to that envisaged under Article 239A which pertains to the administration and governance of the Union Territory of Puducherry. A comparison of the scheme provided under Article 239, Article 239A read with the 1963 Act for Puducherry on one hand and Article 239, Article 239AA read with the 1991 Act for Delhi on the other hand would reveal that both the schemes are similar to the extent that the intention is to retain the continuing control of the President and the Parliament for the executive and legislative functioning of the Union Territories.

46. The respondents contend that Article 239AA, and in particular, clause 4 of the said provision, is not the first of its kind and a similar provision in the form of Section 44 existed in the Government of Union Territories Act, 1963 and that the issue of interpretation of this Section had come up before this Court in several cases wherein it has been laid down that the “State Government” with respect to Union Territory would mean “Central Government” in terms of Section 3(60) of the General Clauses Act. Hence, when a similar provision such as Article 239AA(4) has already been given a certain interpretation by this Court, then merely because of the fact that special provisions have been placed in the Constitution for the NCT of Delhi, which is not so in the case of other Union Territories, it shall not bar the Courts from adopting an interpretation of Article 239AA which is similar to Section 44 of the 1963 Act.

47. The respondents finally submit that as per the constitutional mandate, the ultimate responsibility with respect to all matters governing the NCT of Delhi fall within the domain of the Union Government. To bolster the said stand, the respondents have placed reliance upon relevant portions of the Balakrishnan Committee Report and also various other provisions of the Constitution of India and the 1991 Act. Further, the respondents argue that to devolve exclusive legislative or exclusive executive power on the Legislative Assembly or Council of Ministers of the NCT of Delhi would result in elevating a Union Territory to the status of a State, a demand which has been rejected by the Constitution makers on several instances. That apart, it would be impermissible under any interpretation of the constitutional text and also contrary to the constitutional mandate.

48. Before we dwell upon the submissions, we are of the considered view that we should state certain principles and analyse certain constitutional concepts. Frankly speaking, we feel the necessity as we are really concerned with the interpretation of a constitutional provision having regard to its operational perspective in a democracy. We have said so in the prelude. We do not think and we are not persuaded to think that the present controversy can rest on either of the extremes propagated before us. We are convinced that a holistic approach has to be adopted from a constitutional vision which is bound to encapsulate crystalline realism.

C. Ideals/principles of representative governance:
49. Representative Governance in a Republican form of democracy is a kind of democratic setup wherein the people of a nation elect and choose their law making representatives. The representatives so elected are entrusted by the citizens with the task of framing policies which are reflective of the will of the electorate. The main purpose of a Representative Government is to represent the public will, perception and the popular sentiment into policies. The representatives, thus, act on behalf of the people at large and remain accountable to the people for their activities as lawmakers. Therefore, representative form of governance comes out as a device to bring to fore the popular will.

50. Bernard Manin in “The Principles of Representative Government”12 has deliberated on the postulate that the concept of representation has its origin around the Middle ages in the context of the church and in the context of cities in their relation to the king or the emperor. The idea, as Manin says, was to send out delegates having power to connect to those who appointed them in the first place and there lies the kernel of the concept of representation. This technique then got transferred and used for other purposes.

51. Thomas Jefferson, in the United States Declaration of Independence (1776), highlights on the stipulation that governments derive their just powers from the consent of the governed. This idea, simply put, reflects the concept of 12 Bernard Manin, The Principles of Representative Government, Cambridge University Press, 1997 representative governance. The cogent factors for constituting the representative form of government are that all citizens are regarded as equal and the vote of all citizens, which is the source of governing power, is assigned equal weight. In this sense, the views of all citizens carry the same strength and no one can impose his/her views on others.

52. The Constitution of India has embraced the representative model of governance at all levels, i.e., local, State and the Union. Acknowledging the representative form of governance adopted by our Constitution and the elected representatives being the instruments for conveying the popular will of the people, the Court in State of Bihar and another v. Bal Mukund Sah and others13 has observed:­
“…Besides providing a quasi federal system in the country and envisaging the scheme for distribution of legislative powers between the State and the center, it emphasizes the establishment of the rule of law. The form of Government envisaged under a parliamentary system of democracy is a representative democracy in which the people of the country are entitled to exercise their sovereignty through the legislature which is to be elected on the basis of adult franchise and to which the executive, namely, the Counci l of Ministers is responsible. The legislature has been acknowledged to be a nerve center of the State activities. It is through parliament that elected representatives of the people ventilate people’s grievances. [Emphasis is ours]

53. Thus perceived, the people are the sovereign since they exercise the power of adult franchise that ultimately builds the structure of representative democracy. That apart, every constituent of the sovereign is entitled to air his/her grievances through their elected representatives. The twin idea establishes the cornerstone of the precept of accountability to the public because there rests the origin of power and responsibility.

54. A representative form of government should not become a government by elites where the representatives so elected do nothing to give effect to the will of the sovereign. The elected representatives must not have an ulterior motive for representing their constituents and they should not misuse the popular mandate awarded to them by covertly transforming it into ‘own rule’. The inherent value of public accountability can never be brushed aside.

55. Another ideal for representative governance is accessibility and approachability. Since responsiveness to the needs and demands of the people is the basic parameter for evaluating the effectiveness of representative governance, it is necessary that elected representatives develop a sense of belonging with their constituents. The sense of belonging has its limitation also. If the desire of the constituent is rational and draws strength from legal paradigms, it deserves to be given due acceptance but if the aspiration blows from some illogical or unacceptable proposition, the same should not be allowed any space. It is because in a representative form of government, aspirations and desires are canvassed and propounded on the bedrock of constitutional principles. Hence, we may say that inherent constitutional aspirations should draw inspiration from the Constitution. There can never be sacrifice of constitutional conscience.

56. Be it remembered, when elected representatives and constitutional functionaries enter their office, they take oath to bear allegiance to the Constitution and uphold the Constitution. Thus, it is expected of them not only to remain alive to the provisions of the Constitution but also to concepts like constitutionalism, constitutional objectivity and constitutional trust, etc. The support expressed by the sovereign in the form of votes cannot become an excuse to perform actions which fall foul to the Constitution or are ultra vires. Though the elected representatives are expected to act as instruments of transforming popular will into policies and laws, yet they must do so within the contours of the Constitution. They must display constitutional objectivity as a standard of representative governance, for that is ingrained in the conceptual democratic majority which neither tolerates ideological fragmentation nor encourages any kind of utopian fantasy. It lays stress on realizable constitutional ideologies.

D. Constitutional morality:
57. Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed. The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution.

58. In this context, the observations made by Dr. B.R. Ambedkar are of great significance:­ “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top­dressing on an Indian soil, which is essentially undemocratic.”14

59. Constitutional morality is that fulcrum which acts as an essential check upon the high functionaries and citizens alike, as experience has shown that unbridled power without any checks and balances would result in a despotic and tyrannical situation which is antithetical to the very idea of democracy. The following passage from Manoj Narula v. Union of India15 can aptly be quoted to throw some light on the idea:­

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.16”

60. In the said case, it has been further observed:­
“Regard being had to the aforesaid concept, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of constitutional values would include reverence for the constitutional structure. It is always profitable to remember the famous line of Laurence H. Tribe that a Constitution is “written in blood, rather than ink”17.”

61. Constitutional morality acts as a check against lapses on the part of the governmental agencies and colourable activities aimed at affecting the democratic nature of polity. In Krishnamoorthy v. Sivakumar and others18, it has been explained thus:­

“Democracy, which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.”

Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity.

E. Constitutional objectivity:
62. Our Constitution, in its grandness, resolutely embraces the theory of “checks and balances”. This concept of checks and balances, in turn, gives birth to the principle of “constitutional objectivity”. The Constitution expects the organs of the State adorned by high constitutional functionaries that while discharging their duties, they remain alive to the allegiance they bear to the Constitution. Neutrality as envisaged under the constitutional scheme should guide them in the performance of their duties and functions under the Constitution. This is the trust which the Constitution reposes in them.

63. The founding fathers of our Constitution had a vision for our Nation whose ultimate aim was to make right the upheaval that existed before setting up of the Constituent Assembly. The concept of constitutional objectivity is, by itself, inherent in this vision and it is incumbent upon the organs of the State to make comprehensive efforts towards realization of this vision. But, at the same time, they must remain true to the Constitution by upholding the trust which the Constitution places in them and thereby exhibit constitutional objectivity in its truest sense. In Indra Sawhney v. Union of India and others19, the Court observed:­

“…Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.”

The aforesaid passage tells us in an illuminating manner how the Court is expected to proceed on the path of judicial creativity in consonance with constitutional objectivity having a keen sense of pragmatism.

64. It can be said without inviting any controversy that the concept of constitutional objectivity has to be equally followed by the Executive and the Legislature as it is the Constitution from which they derive their power and, in turn, the Constitution expects them to be just and reasonable in the exercise of such power. The decisions taken by constitutional functionaries, in the discharge of their duties, must be based on normative acceptability. Such decisions, thus, have to be in accord with the principles of constitutional objectivity which, as a lighthouse, will guide the authorities to take a constitutionally right decision. This action, needless to say, would be in the spirit of the Constitution. It may be further noted here that it is not only the decision itself but also the process adopted in such decision making which should be in tune with constitutional objectivity. A decision by a constitutional functionary may, in the ultimate analysis, withstand scrutiny but unless the process adopted for arriving at such a decision is in tandem with the idea of constitutional objectivity, it invites criticism. Therefore, the decision making process should never by­pass the established norms and conventions which are time tested and should affirm to the idea of constitutionalism.

F. Constitutional governance and the conception of legitimate constitutional trust:
65. The concept of constitutional governance in a body polity like ours, where the Constitution is the supreme fundamental law, is neither hypothetical nor an abstraction but is real, concrete and grounded. The word ‘governance’ encapsulates the idea of an administration, a governing body or organization whereas the word ‘constitutional’ means something sanctioned by or consistent with or operating under the fundamental organic law, i.e., the Constitution. Thus, the word ‘governance’when qualified by the term ‘constitutional’ conveys a form of governance/government which adheres to the concept of constitutionalism. The said form of governance is sanctioned by the Constitution itself, its functions are consistent with the Constitution and it operates under the aegis of the Constitution.

66. According to Encyclopedia Britannica, “Constitutional Government” means:­
“…the existence of a constitution—which may be a legal instrument or merely a set of fixed norms
or principles generally accepted as the fundamental law of the polity—that effectively controls
the exercise of political power. The essence of constitutionalism is the control of power by its
distribution among several state organs or offices in such a way that they are each subjected to
reciprocal controls and forced to cooperate in formulating the will of the state….”

67. It is axiomatic that the Constitution of India is the suprema lex, i.e., the paramount law of the land. All the three wings of the State, i.e., the legislature, the judiciary and the executive derive their power and authority from the Constitution. It is the Constitution which endows the requisite amount of oxygen and other necessary supplies which, in turn, enable these organs to work for the betterment of the nation and the body polity. In the context of the supremacy of the Constitution, the Court in Kalpana Mehta and others v. Union of India and others20 has laid down:­

“The Constitution of India is the supreme fundamental law and all laws have to be in consonance or in accord with the Constitution. The constitutional provisions postulate the conditions for the functioning of the legislature and the executive and prescribe that the Supreme Court is the final interpreter of the Constitution. All statutory laws are required to conform to the fundamental law, that is, the Constitution. The functionaries of the three wings, namely, the legislature, the executive and the judiciary, as has been stated in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another21. derive their authority and jurisdiction from the Constitution. The Parliament has the exclusive authority to make laws and that is how the supremacy of the Parliament in the field of legislation is understood. There is a distinction between parliamentary supremacy in the field of legislation and constitutional supremacy. The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various articles and sometimes are decipherable from the constitutional silence. Its inherent dynamism makes it organic and, therefore, the concept of —constitutional sovereignty is sacrosanct. It is extremely sacred and, as stated earlier, the authorities get their powers from the Constitution. It is —the source. Sometimes, the constitutional sovereignty is described as the supremacy of the Constitution. [Emphasis is ours]

68. Thus, the concept of constitutional governance is a natural consequent of the doctrine of constitutional sovereignty. The writings of Locke and Montesquieu also throw light on the concept of constitutional governance. Locke lays stress on the fiduciary nature of public power and argues that sovereignty lies with the people. Montesquieu, on the other hand, in his postulate of constitutional governance, has laid more stress on the system of “checks and balances” and “separation of powers” between the executive, legislature and the judiciary. According to the ideas of Montesquieu, it can be said that constitutional governance involves the denial of absolute power to any one organ of the State and a system of checks and balances is the basic foundation of constitutional governance. In constitutional form of Government, power is distributed amongst the three organs of the State in such a way that the constitutional goal as set out in the Preamble of our Constitution is realised.

69. The postulates laid by Locke and Montesquieu are inherent in our constitutional scheme and have also been recognized by the Court. Therefore, it can safely be said that the nomenclature of constitutional governance has at its very base a Constitution which is the supreme law of the land and the conception, in its width, embraces two more ideas, i.e., fiduciary nature of public power and the system of checks and balances.

70. We may hasten to add that the Court, while interpreting various provisions of the Constitution on different occasions, has always been alive to the concept of constitutional governance. In B.R. Kapur v. State of T.N. and another22, the majority, while dealing with the issue of a writ of quo warranto, ruled that if a non­legislator could be sworn in as the Chief Minister under Article 164 of the Constitution, then he or she must satisfy the qualification of membership of a legislator as provided under Article 173. Recently, in Manoj Narula (supra), while interpreting Article 75(1) of the Constitution, the Court observed:­

“…In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.”[Emphasis is ours]

71. The provisions of the Constitution need not expressly stipulate the concepts of constitutionalism, constitutional governance or constitutional trust and morality, rather these norms and values are inherent in various articles of the Constitution and sometimes are decipherable from the constitutional silences as has been held in Kalpana Mehta (supra).

72. Having discussed about the concept of constitutional governance, in the obtaining situation, we may allude to the conception of legitimate constitutional trust. In this regard, the speech of Dr. Ambedkar reflects his concern:­

“I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

73. In Re: Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission23, the Court discussed the role of the members of Public Service Commissions and, treating them as constitutional trustees, observed that the credibility of the institution of Public Service Commission is founded upon the faith of the common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the Members of the Commission act subjectively and not objectively. In Subhash Sharma and others and Firdauz Taleyarkhan v. Union of India and another24, in the context of appointment of Judges, it has been stated that it “is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.”

74. The framers of the Constitution also did recognize that the adoption of the Constitution would not ipso facto, like a magic wand, instill in the countrymen the values of constitutionalism. The founding fathers expected that constitutional functionaries who derive their authority from the Constitution shall always remain sincerely obeisant to the Constitution. The Court in Manoj Narula (supra), while highlighting the responsibility conferred on the Prime Minister under the Constitution, discussed the doctrine of constitutional trust and, in that context, reproduced what Edmund Burke had said centuries ago:­ “All persons possessing any portion of power ought to be strongly and awfully impressed with the idea that they act in trust: and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society.”

75. Thereafter, the Court went on to state:­
“This Court, in re Art. 143, Constitution of India and Delhi Laws Act (1912)25, opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that accordingly, the Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. Though it was stated in the context of exercise of legislative power, yet the same has signification in the present context, for in a representative democracy, the doctrine of constitutional trust has to be envisaged in every high constitutional functionary.”

76. The Court further observed:­
“… we shall proceed to deal with the doctrine of “constitutional trust”. The issue of constitutional trust arises in the context of the debate in the Constituent Assembly that had taken place pertaining to the recommendation for appointment of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr. B.R. Ambedkar had replied: ­

“His last proposition is that no person who is convicted may be appointed a Minister of the State. Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the Legislature and the public at large watching the actions of the Ministers and the actions of the Legislature to see that no such infamous thing is done by either of them? I think this is a case which may eminently be left to the good­ sense of the Prime Minister and to the good sense of the Legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.”
And again:­

“98. From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The use of the words “on the advice of the Prime Minister” cannot be allowed to operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur case. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The Framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.
x x x x x

100. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less.”

77. The Constitution of India, as stated earlier, is an organic document that requires all its functionaries to observe, apply and protect the constitutional values spelt out by it. These values constitute the constitutional morality. This makes the Constitution of India a political document that organizes the governance of Indian society through specific functionaries for requisite ends in an appropriate manner. The constitutional culture stands on the fulcrum of these values. The element of trust is an imperative between constitutional functionaries so that Governments can work in accordance with constitutional norms. It may be stated with definiteness that when such functionaries exercise their power under the Constitution, the sustenance of the values that usher in the foundation of constitutional governance should remain as the principal motto. There has to be implicit institutional trust between such functionaries. We shall elaborate the functional aspect of this principle when we scan the language employed under Article 239AA and other adjunct articles to decipher the true purpose of the said provision from the perspective of the workability of the Constitution in the sphere of governance.

G. Collective responsibility:
78. In the Constituent Assembly Debates, Dr. B.R. Ambedkar spoke thus on collective responsibility:­ “I want to tell my friend Prof. K.T. Shah that his amendment would be absolutely fatal to the other principle which we want to enact, namely collective responsibility. All Members of the House are very keen that the Cabinet should work on the basis of collective responsibility and all agree that is a very sound principle. But I do not know how many Members of the House realise what exactly is the machinery by which collective responsibility is enforced. Obviously, there cannot be a statutory remedy. Supposing a Minister differed from other Members of the Cabinet and gave expression to his views which were opposed to the views of the Cabinet, it would be hardly possible for the law to come in and to prosecute him for having committed a breach of what might be called collective responsibility. Obviously, there cannot be a legal sanction for collective responsibility. The only sanction through which collective responsibility can be enforced is through the Prime Minister. In my judgment collective responsibility is enforced by the enforcement of two principles. One principle is that no person shall be nominated to the Cabinet except on the advice of the Prime Minister. Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realise our ideal of collective responsibility. I do not see any other means or any other way of giving effect to that principle.

Supposing you have no Prime Minister; what would really happen? What would happen is this, that every Minister will be subject to the control or influence of the President. It would be perfectly possible for the President who is no ad idem with a particular Cabinet, to deal with each Minister separately singly, influence them and thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine. Before collective responsibility was introduced in the British Parliament you remember how the English King used to disrupt the British Cabinet. He had what was called a Party of King’s Friends both in the Cabinet as well as in Parliament. That sort of thing was put a stop to by collective responsibility. As I said, collective responsibility can be achieved only through the instrumentality of the Prime Minister. Therefore, the Prime Minister is really the keystone of the arch of the Cabinet and unless and until we create that office and endow that office with statutory authority to nominate and dismiss Ministers there can be no collective responsibility.”

79. In State of Karnataka v. Union of India and another26, the Court, after reproducing a few passages from Sir Ivor Jennings and Mr. Joseph Chamberlain, observed:­ “…The following discussion on the subject in “Representative and Responsible Government” by A. H. Birch will be found useful in this connection:­ “Ministerial accountability to Parliament has two aspects : the collective responsibility of Ministers for the policies of the Government and their individual responsibility for the work of their departments. Both forms of responsibility are embodied in conventions which cannot be legally enforced. Both conventions were developed during the nineteenth century, and in both cases the practice was established before the doctrine was announced (page 131).””

80. In “Government and Law” by T. C. Hartley and J.A.G. Griffith27, the position in regard to the collective responsibility of Ministers to the Legislature is tersely stated as under:­ “Ministers are said to be collectively responsible. This is often elevated by writers to the level of a ‘doctrine’ but is in truth little more than a political practice which is commonplace and inevitable. Ordinarily, Ministers form the governmental team, all being appointed by the Prime Minister from one political party. A Cabinet Minister deals with his own area of policy and does not normally have much to do with the area of other Ministers. Certainly no Cabinet Minister would be likely to make public statements which impinged on the work of another Minister’s department. On a few important issues, policy is determined by the Cabinet after discussion. Collective responsibility means that Cabinet decisions bind all Cabinet Ministers, even if they argued in the opposite direction in Cabinet. But this is to say no more than a Cabinet Minister who finds himself in a minority must either accept the majority view or resign. The team must not be weakened by some of its members making clear in public that they disapprove of the Government’s policy. And obviously what is true for Cabinet Ministers is even more true for other Ministers. If they do not like what the team is doing, they must either keep quiet or leave.”

81. Speaking on collective responsibility, the Court in the case of R.K. Jain v. Union of India and 27 Hartley T.C. and Griffith J.A.G., Government and Law; an introduction to the working of the Constitution in Britain 2nd edition, 1981 London; Weidenfeld and Nicholson others28 has opined that each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government. Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered. Despite persistence of disagreement, it is a decision, though some members like less than others. Both practical politics and good government require that those who like it less must still publicly support it. If such support is too great a strain on a Minister’s conscience or incompatible with his/her perceptions of commitment and he/she finds it difficult to support the decision, it would be open to him/her to resign. So, the price of acceptance of Cabinet office is the assumption of responsibility to support Cabinet decisions and, therefore, the burden of that responsibility is shared by all. 82. In Common Cause, A Registered Society v. Union of India and others29, the Court, explaining the concept of collective responsibility, stated:­ “30. The concept of “collective responsibility” is essentially a political concept. The country is governed by the party in power on the basis of the policies adopted and laid down by it in the Cabinet Meeting. “Collecting Responsibility” has two meanings : The first meaning which can legitimately be ascribed to it is that all members of a Govt, are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.”

83. The principle of collective responsibility is of immense significance in the context of ‘aid and advice’ of the Council of Ministers. The submission of the learned counsel of the appellant is that when after due deliberation between the Chief Minister and the Council of Ministers a decision is taken, but the same is not given effect to because of interdiction of the Lieutenant Governor, the value of collective responsibility that eventually gets transformed into a Cabinet decision stands absolutely denuded. It is emphatically submitted that if the collective responsibility of the Council of Ministers is not given the expected weightage, there will be corrosion of the essential feature of representative government.

H. Federal functionalism and democracy:
84. Democracy is a form of government where the people rule. Aristotle viewed democracy as a form of government in which the supreme powers are in the hands of freemen and where people form a majority in an elected sovereign government to exercise some role in decision making. Thomas Jefferson defined democracy as a “government by its citizens in mass, acting directly and personally, according to rules established by the majority”. Abraham Lincoln defined democracy as “a government of the people, by the people, and for the people”. The Black’s Law Dictionary defines democracy as:­ “That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people.”30

85. The Preamble to our Constitution, at the outset, proclaims that India is a sovereign democratic republic. The citizens of India are the sovereign and participate in the process of governance by exercising their virtuous right to vote under the system of universal adult suffrage. The citizens elect their representatives and send them to the Parliament and State Legislatures for enacting laws and shaping policies at the Union and State level respectively which are reflective of the popular will of the collective.

86. The parliamentary form of democracy as envisaged by the Constitution has at its very base the power bestowed upon people to vote and make the legislature accountable for their functioning to the people. If the legislature fails to transform the popular will of the people into policies and laws, the people in a democracy like ours have the power to elect new representatives by exercise of their vote. The political equality makes people aware of their right in unison and there is a consistent endeavour to achieve the same.

87. In this context, we may turn to a passage from Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others31 wherein Krishna Iyer, J. quoted with approval the statement of Sir Winston Churchill which is to the following effect:­ “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper ­ no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

88. Thus, democratic set up has its limbs firmly entrenched in the ability of the people to elect their representatives and the faith that the representatives so elected will best represent their interest. Though this right to vote is not a fundamental right, yet it is a right that lies at the heart of democratic form of government. The right to vote is the most cherished value of democracy as it inculcates in the people a sense of belonging. In Raghbir Singh Gill v. S. Gurcharan Singh Tohra32, the learned Judges, after referring to Mohinder Singh Gill’s case, stated that nothing can diminish the overwhelming importance of the cross or preference indicated by the dumb sealed lip voter. That is his right and the trust reposed by the Constitution in him is that he will act as a responsible citizen in choosing his representatives for governing the country.

89. The aforesaid situation warrants for reciprocative functionalism by thought, action and conduct. It requires the elected representatives to uphold the faith which the collective have reposed in them. Any undue interference amounts to betrayal of the faith of the collective in fulfilment of their aspirations of democratic self­governance. In Kesavananda Bharati (supra), it has been observed that the two basic postulates of democracy are faith in human reason and faith in human nature and that there is no higher faith than faith in democratic process. The Court further stated that democracy on adult suffrage is a great experiment with its roots in the faith in the common man. P. Jaganmohan Reddy, J., in his opinion, stated that the republican and democratic form of government is a part of the basic structure of the Constitution and the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India and the democratic character of our polity. Further, he stated that the framers of the Constitution adopted a sovereign democratic republic to secure for the citizens of India the objectives of justice, liberty and equality as set out in the Preamble to our Constitution.

90. Dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain33 ruled that ‘democracy’ as an essential feature of the Constitution is unassailable. The said principle has been reiterated in T.N. Seshan, CEC of India v. Union of India and others.34 and Kuldip Nayar v. Union of India others.35. When it is conceived that democracy is a part of the basic structure of the Constitution, the essential value of democracy has to be condignly understood and that is why we have referred to certain precedents. The correctness or fallacy of the interpretation of Articles 239 to 239AB would depend upon our appreciation of democratic form of government in a mature body polity.

91. The Court in Manoj Narula (supra), while delineating the concept of democracy, stated that democracy has been best defined as the Government of the People, by the People and for the People, which expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. Further, it is stated that democracy in India is a product of rule of law which aspires to establish an egalitarian social order and that it is not only a political philosophy but also an embodiment of constitutional philosophy. Democracy being a cherished constitutional value needs to be protected, preserved and sustained and for that purpose, instilment of certain norms in the marrows of the collective is absolutely necessitous. In the said case, the Court, while emphasizing that good governance is a sine qua non for a healthy democracy, stated thus:­

“In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as primary one and any other interest secondary. The maxim Salus Populi Suprema Lex, has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for Fundamental Rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not an Utopian conception or an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependant upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation.”[Emphasis supplied]

92. Now, we shall proceed to discuss the concept of federalism in the context of the Constitution of India. Encyclopedia Britannica defines federalism as:­
“Federalism, mode of political organization that unites separate states or other polities within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity. Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. The political principles that animate federal systems emphasize the primacy of bargaining and negotiated coordination among several power centres; they stress the virtues of dispersed power centres as a means for safeguarding individual and local liberties.”

93. In common parlance, federalism is a type of governance in which the political power is divided into various units. These units are the Centre/Union, States and Municipalities. Traditional jurists like Prof. K.C. Wheare lay emphasis on the independent functioning of different governing units and, thus, define federalism as a method of dividing powers so that the general/central and regional governments are each within a sphere co­ordinate and independent. As per Prof. Wheare “the systems of Government embody predominantly on division of powers between Centre and regional authority each of which in its own sphere is coordinating with the other independent as of them, and if so is that Government federal?”36

94. However, modern jurists lay emphasis on the idea of interdependence and define federalism as a form of government in which there is division of powers between one general/central and several regional authorities, each within its sphere interdependent and co­ordinate with each other.

95. The framers of our Constitution, during debates in the Constituent Assembly on the draft Constitution, held elaborate discussions on whether to adopt a unitary system of government or federal system of government. During the Constituent Assembly debates, Shri T.T. Krishnamachari said:­

“…Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back.”

“I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are ‘must not be completely circumscribed’, which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere.”

96. In this context, Dr. B.R. Ambedkar, speaking on the floor of the Constituent Assembly, said:­
“There is only one point of Constitutional import to which I propose to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co­equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution.”

97. The Court in In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964)37 observed that the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other. Further, the Court stated that the supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution, the Court stated, is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers and, thus, the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours.

98. Gajendragadkar, C.J., in the said case, observed that our Constitution has all the essential elements of a federal structure as was the case in the Government of India Act 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces. In State of Karnataka v. Union of India (supra), Untwalia, J. (speaking for Justice Singhal, Justice Jaswant Singh and for himself) observed that the Constitution is not of a federal character where separate, independent and sovereign States could be said to have joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of this reason that sometimes it has been characterized as quasi­federal in nature.

99. In Shamsher Singh (supra), this Court held that our founding fathers accepted the parliamentary system of quasi­ federalism while rejecting the substance of Presidential style of Executive. Dr. Ambedkar stated on the floor of the Constituent Assembly that the Constitution is “both unitary as well as federal according to the requirement of time and circumstances”. He further stated that the Centre would work for the common good and for the general interest of the country as a whole while the States would work for the local interest. He also refuted the plea for exclusive autonomy of the States.

100. In S.R. Bommai v. Union of India38, the Court considered the nature of federalism under the Constitution of India. A.M. Ahmadi, J. (as the learned Judge then was) observed:­
“In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member­States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact.”

101. P.B. Sawant, J. (on behalf of himself and Kuldip Singh, J.) opined that the States are constitutionally recognised units and not mere convenient administrative divisions as both the Union and the States have sprung from the provisions of the Constitution. After quoting extensively from H.M. Seervai’s commentary ­ Constitutional Law of India, he expressed thus:­

“99. The above discussion thus shows that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule.

100. For our purpose, further it is really not necessary to determine whether, in spite of the provisions of the Constitution referred to above, our Constitution is federal, quasi­federal or unitary in nature. It is not the theoretical label given to the Constitution but the practical implications of the provisions of the Constitution which are of importance to decide the question that arises in the present context, viz., whether the powers under Article 356(1) can be exercised by the President arbitrarily and unmindful of its consequences to the governance in the State concerned. So long as the States are not mere administrative units but in their own right constitutional potentates with the same paraphernalia as the Union, and with independent Legislature and the Executive constituted by the same process as the Union, whatever the bias in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labeled unitary or quasi­federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1).”

102. K. Ramaswami, J., in paragraphs 247 and 248 of his separate judgment, observed:­
“247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with itsboundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi­federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio­economic and political justice to the people, to preserve and elongate the constitutional goals including secularism. 248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.”

103. B.P. Jeevan Reddy, J., writing a separate opinion (for himself and on behalf of S.C. Agrawal, J.), concluded in paragraph 276 thus:­
“276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis­a­vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central Governments be it the result of advances in technological/scientific fields or otherwise, and that even In USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. This aspect has been dealt with elaborately by Shri M.C. Setalvad in his Tagore Law Lectures “Union and State relations under the Indian Constitution”(Eastern Law House, Calcutta, 1974). The nature of the Indian federation with reference to its historical background, the distribution of legislative powers, financial and administrative relations, powers of taxation, provisions relating to trade, commerce and industry, have all been dealt with analytically. It is not possible nor is it necessary for the present purposes to refer to them. It is enough to note that our Constitution has certainly a bias towards Centre vis­a­vis the States…”

104. In ITC Ltd. v. Agricultural Produce Market Committee39, the Court observed that the Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves federalism while also upholding the central supremacy as contemplated by some of its articles.

105. In Kuldip Nayar (supra), the Court, while dealing with the question of state domicile for elections to the Rajya Sabha, opined that it is true that the federal principle is dominant in our Constitution and the said principle is one of its basic features but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. Some of the provisions that can be referred to in this context include the power of the Union to deal with extraordinary situations such as during emergency and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority; the power of the Parliament to provide for the creation and regulation of All India Services common to the Union and the States in case there is a resolution of the Council of States supported by not less than two­thirds majority; the existence of only one citizenship, namely, the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States.

106. From the foregoing discussion, it is clear as day that both the concepts, namely, democracy, i.e., rule by the people and federalism are firmly imbibed in our constitutional ethos. Whatever be the nature of federalism present in the Indian Constitution, whether absolutely federal or quasi­federal, the fact of the matter is that federalism is a part of the basic structure of our Constitution as every State is a constituent unit which has an exclusive Legislature and Executive elected and constituted by the same process as in the case of the Union Government. The resultant effect is that one can perceive the distinct aim to preserve and protect the unity and the territorial integrity of India. This is a special feature of our constitutional federalism.

107. It is self­evident that there is a meaningful orchestration between the concepts of federalism and nature of democracy present in our Constitution. It would not be a fallacious metaphor if we say that just as in a fusion reaction two or more atomic nuclei come together to form a bigger and heavier nucleus, the founding fathers of our Constitution envisaged a fusion of federalism and democracy in the quest for achieving an egalitarian social order, a classical unity in a contemporaneous diversity. The vision of diversity in unity and the perception of plurality in eventual cohesiveness is embedded in the final outcome of the desire to achieve the accomplished goal through constitutional process. The meeting of the diversity in unity without losing identity is a remarkable synthesis that the Constitution conceives without even permitting the slightest contrivance or adroitness.

I. Collaborative federalism:
108. The Constituent Assembly, while devising the federal character of our Constitution, could have never envisaged that the Union Government and the State Governments would work in tangent. It could never have been the Constituent Assembly’s intention that under the garb of quasi­federal tone of our Constitution, the Union Government would affect the interest of the States. Similarly, the States under our constitutional scheme were not carved as separate islands each having a distinct vision which would unnecessarily open the doors for a contrarian principle or gradually put a step to invite anarchism. Rather, the vision enshrined in the Preamble to our Constitution, i.e., to achieve the golden goals of justice, liberty, equality and fraternity, beckons both the Union Government and the State Governments, alike. The ultimate aim is to have a holistic structure.

109. The aforesaid idea, in turn, calls for coordination amongst the Union and the State Governments. The Union and the States need to embrace a collaborative/cooperative federal architecture for achieving this coordination.

110. Corwin, an eminent thinker, in the context of the United States, coined the term ‘Collaborative Federalism’ and defined it as:­
“…the National Government and the States are mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government.”40

111. The U.S. Supreme Court in Carmichael v. S. Coal & Coke Co.41 propounded that a State Unemployment Statute had not been coerced by the adoption of the Social Security Act and the United States and the State of Alabama are not alien governments but they coexist within the same territory. Unemployment within it is their common concern. The U.S. Supreme Court further observed that the two statutes embody a cooperative legislative effort by the State and National governments for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other and the Constitution does not prohibit such cooperation.

112. Geoffrey Sawer proposes that cooperative federalism is evidenced by the following characteristics: ‘each of the parties to the arrangement has a reasonable degree of autonomy, can bargain about the terms of cooperation, and at least if driven too hard, decline to cooperate’42.

113. Later, Cameron and Simeon described “collaborative federalism,” as:­ “[T]he process by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behavior through the exercise of its spending power, but by some or all of the governments and the territories acting collectively.”43 Although the said statement of law may not be strictly applicable, yet the need for co­operation to sustain the federal structure has its own importance as an idea.

114. Thus, the Union and the State Governments should always work in harmony avoiding constitutional discord. In such a collaboration, the national vision as set out in the Preamble to our Constitution gets realized. The methods and approach for the governments of the Union and the States may sometimes be different but the ultimate goal and objective always remain the same and the governments at different levels should not lose sight of the ultimate objective. This constitutional objective as enshrined in the Constitution should be the guiding star to them to move on the path of harmonious co­existence and interdependence. They are the basic tenets of collaborative federalism to sustain the strength of constitutional functionalism in a Welfare State.

115. In a Welfare State, there is a great necessity of collaborative federalism. Martin Painter, a leading Australian proponent of collaborative federalism, lays more stress on negotiations for achieving common goals amongst different levels of governments and, thus, says:­

“The practical exigencies in fulfilling constitutionally sanctioned functions should bring all governments from different levels together as equal partners based on negotiated cooperation for achieving the common aims and resolving the outstanding problems.”

116. In the Australian context, Prof. Nicholas Aroney in his book45 has said:­ “Rather than displaying a strictly defined distribution of responsibility between two or more “co­ordinate” levels of government, federal systems tend in practice to resemble something more like a “marble cake”, in which governmental functions are shared between various governmental actors within the context of an ever­shifting set of parameters shaped by processes of negotiation, compromise and, at times, cooperation.”

117. Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. We may hasten to add that this idea of collaborative federalism would be more clear when we understand the very essence of the special status of NCT of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution.

118. The idea of cooperative/collaborative federalism is also not new to India. M.P. Jain in his book46, in a different manner, sets forth the perception thus:­

“Though the Constitution provides adequate powers to the Centre to fulfil its role, yet, in actual practice, the Centre can maintain its dynamism and initiative not through a show of its powers — which should be exercised only as a last resort in a demonstrable necessity — but on the cooperation of the States secured through the process of discussion, persuasion and compromises. All governments have to appreciate the essential point that they are not independent but interdependent, that they should act not at cross­ purposes but in union for the maximisation of the common good.”

119. In State of Rajasthan and others v. Union of India47, the Court took cognizance of the concept of cooperative federalism as perceived by G. Austin and A.H Birch when it observed:­ “Mr. Austin thought that our system, if it could be called federal, could be described as “cooperative federalism.” This term was used by another author, Mr. A.H. Birch (see: Federalism, Finance and Social Legislation in Canada, Australia and the United States p. 305), to describe a system in which: “…the practice of administrative cooperation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments and the fact that the general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions”… ”

120. We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities referred to hereinabove pertain to Union of India and State Governments in the constitutional sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being had to its special status and language employed in Article 239AA and other articles.

J. Pragmatic federalism:
121. In this context, we may also deal with an ancillary issue, namely, pragmatic federalism. To appreciate the said concept, we are required to analyse the nature of federalism that is conceived under the Constitution. Be it noted, the essential characteristics of federalism like duality of governments, distribution of powers between the Union and the State Governments, supremacy of the Constitution, existence of a written Constitution and most importantly, authority of the Courts as final interpreters of the Constitution are all present under our constitutional scheme. But at the same time, the Constitution has certain features which can very well be perceived as deviations from the federal character. We may, in brief, indicate some of these features to underscore the fact that though our Constitution broadly has a federal character, yet it still has certain striking unitary features too. Under Article 3 of the Constitution, the Parliament can alter or change the areas, boundaries or names of the States. During emergency, the Union Parliament is empowered to make laws in relation to matters under the State List, give directions to the States and empower Union officers to execute matters in the State List. That apart, in case of inconsistency between the Union and the State laws, the Union Law shall prevail. Additionally, a Governor of a State is empowered to reserve the bill passed by the State Legislature for consideration of the President and the President is not bound to give his assent to such a bill. Further, a State Legislature can be dissolved and President’s rule can be imposed in a State either on the report of the Governor or otherwise when there is failure of the constitutional machinery in the State.

122. We have referred to the above aspects to lay stress on the ‘quasi­federal’ nature of our
Constitution which has been so held by the Court in many a decision. We may state that these
theoretical concepts are to be viewed from the practical
perspective. In S.R. Bommai’s case, while interpreting Article 356, the Court observed:­
“That is why the Constitution of India is differently described, more appropriately as
‘quasi­federal’ because it is a mixture of the federal and unitary elements, leaning more towards
the latter but then what is there in a name, what is important to bear in mind is the thrust and
implications of the various provisions of the Constitution bearing on the controversy in regard to
scope and ambit of the Presidential power under Article 356 and related provisions.”

123. Thus, the need is to understand the thrust and implication of a provision. To put it differently, the acceptance of ‘pragmatic federalism’ is the need of the day. One aspect needs to be clarified. The acceptance of the said principle should not be viewed as a simplistic phenomenon entrenched in innocence. On the contrary, it would require disciplined wisdom on the part of those who are required to make it meaningful. And, the meaning, in essentiality, shall rest on pragmatic orientation.

124. The expression ‘pragmatic federalism’ in the Indian context has been used by Justice A.M. Ahmadi in S.R. Bommai (supra) wherein he observes:­

“It would thus seem that the Indian Constitution has, in it, not only features of a pragmatic federalism which, while distributing legislative powers and indicating the spheres of Governmental powers of State and Central Governments, is overlaid by strongly ‘unitary’ features, particularly exhibited by lodging in Parliament the residuary legislative powers, and in the Central Government the executive power of appointing certain Constitutional functionaries including High Court and Supreme Court Judges and issuing appropriate directions to the State Governments and even displacing the State Legislatures and the Government in emergency situations, vide Articles 352 to 360 of the Constitution.”

125. The concept of pragmatic federalism is self explanatory. It is a form of federalism which incorporates the traits and attributes of sensibility and realism. Pragmatic federalism, for achieving the constitutional goals, leans on the principle of permissible practicability.

126. It is useful to state that pragmatic federalism has the inbuilt ability to constantly evolve with the changing needs and situations. It is this dynamic nature of pragmatic federalism which makes it apt for a body polity like ours to adopt. The foremost object of the said concept is to come up with innovative solutions to problems that emerge in a federal setup of any kind.

K. Concept of federal balance:
127. Another complementary concept in this context, we think, is “federal balance”. Federalism in contradistinction to centralism is a concept which envisions a form of Government where there is a distribution of powers between the States and the Centre. It has been advocated by the patrons of the federal theory that the States must enjoy freedom and independence as much as possible and at the very least be on an equal footing with the Centre. The Indian Constitution prescribes a federal structure which provides for division of powers between the States and the Centre, but with a slight tilt towards the Centre. This unique quasi­federal structure is inherent in the various provisions of the Constitution as it was felt by the framers of our Constitution keeping in mind the needs of independent India and that is why, the residuary powers in most, if not all, matters have remained with the Centre. This, however, is not unconditional as the Constitution has provided for a federal balance between the powers of the Centre and the States so that there is no unwarranted or uncalled for interference by the Centre which would entail encroachment by the Centre into the powers of the States. The need is for federal balance which requires mutual respect and deference to actualize the workability of a constitutional provision.

128. Sawer’s ‘federal principles’ reiterate this concept of federal balance when he states:­ “power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local interest.”

129. The interest of the States inherent in a federal form of government gains more importance in a democratic form of government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular State/region to the governance of the Union, that too, with respect to matters which can be best legislated at the State level goes against the very basic tenet of a democracy. The principle of federal balance which is entrenched in our Constitution has been reiterated on several instances holding that the Centre and the States must act within their own spheres. In In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964) (supra), the Constitution Bench observed:­ “…the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other’. The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers.”[Underlining is ours]

130. In UCO Bank v. Dipak Debbarma48, the Court has made several observations on the federal character of our Constitution and the need to maintain the federal balance which has been envisaged in our Constitution to prevent any usurpation of power either by the Centre or the States. We reproduce the same with profit:­ “The federal structure under the constitutional scheme can also work to nullify an incidental encroachment made by the Parliamentary legislation on a subject of a State legislation where the dominant legislation is the State legislation. An attempt to keep the aforesaid constitutional balance intact and give a limited operation to the doctrine of federal supremacy can be discerned in the concurring judgment of Ruma Pal, J. in ITC Ltd. vs. Agricultural Produce Market Committee and Ors., wherein after quoting the observations of this Court in the case of S.R. Bomai v. Union of India (para 276), the learned Judge has gone to observe as follows (para 94 of the report): “276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis­a­vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.””

131. Thus, the role of the Court in ensuring the federal balance, as mandated by the Constitution, assumes great importance. It is so as the Court is the final arbiter and defender of the Constitution.

L. Interpretation of the Constitution:
132. We have already said that both the parties have projected their view in extremes. The issue deserves to be adjudged regard being had to the language employed in the various articles in Chapter VIII, the context and various constitutional concepts. If the construction sought to be placed by the appellant is accepted, such an acceptation would confer a status on NCT of Delhi which the Parliament in exercise of its constituent power has not conceived. The respondents, per contra, highlight that by the constitutional amendment, introduction of the 1991 Act and the Rules of Business, the Lieutenant Governor functions as the administrator in the truest sense as the contemporaneous documents leading to the amendment would show. They would submit that though Delhi has been conferred a special status, yet that does not bring any new incarnation. The submission, as we perceive, destroys the fundamental marrows of the conception, namely, special status. It, in fact, adorns the Lieutenant Governor with certain attributes and seeks to convey that NCT of Delhi remains where it was. The approach in extremes is to be adjudged and the adjudication, as it seems to us, would depend upon the concepts we have already adumbrated and further we have to carefully analyse the principles of the interpretation of the Constitution.

133. The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document.

134. In this regard, we think it appropriate to have a bird’s eye view as to how the American jurists and academicians have contextually perceived the science of constitutional interpretation. The most important aspect of modern constitutional theory is its interpretation. Constitutional law is a fundamental law of governance of a politically organised society and it provides for an independent judicial system which has the onerous responsibility of decisional process in the sphere of application of the constitutional norms. The resultant consequences do have a vital impact on the well­ being of the people. The principles of constitutional interpretation, thus, occupy a prime place in the method of adjudication. In bringing about constitutional order through interpretation, the judiciary is often confronted with two propositions ― whether the provisions of the Constitution should be interpreted as it was understood at the time of framing of the Constitution unmindful of the circumstances at the time when it was subsequently interpreted or whether the constitutional provisions should be interpreted in the light of contemporaneous needs, experiences and knowledge. In other words, should it be historical interpretation or contemporaneous interpretation.49 The theory of historical perspective found its votary in Chief Justice Taney who categorically stated in Dred Scott v Sanford50 that as long as the Constitution continues to exist in the present form, it speaks not only in the same words but also with the same meaning and intent with which it spoke when it came from the hands of the framers. Similar observations have been made by Justice Sutherland51. Propagating a different angle, Chief Justice Marshall in McCulloch v Maryland52 has observed that the American Constitution is intended to serve for ages to come and it should be adopted to various crises of human affairs. Justice Hughes in State v. Superior Court53 observed that the constitutional provisions should be interpreted to meet and cover the changing conditions of social life and economic life. Justice Holmes observed that the meaning of the constitutional terms is to be gleaned from their origin and the line of their growth.54 Cardozo once stated:­ “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”55 It would be interesting to note that Justice Brandeis tried to draw a distinction between interpretation and application of constitutional provisions56. The Constitution makers in their wisdom must have reasonably envisaged the future needs and attempted at durable framework of the Constitution. They must not have made the Constitution so rigid as to affect the future. There is a difference between modification and subversion of the provisions of the Constitution through interpretation. The view is that there is sufficient elasticity but fundamental changes are not envisaged by interpretation. Thus, there is a possibility of reading into the provisions certain regulations or amplifications which are not directly dealt with. There is yet another angle that the libertarian’s absolutism principle never allows for restrictions to be read into the liberties which are not already mentioned in the Constitution.57

135. Our Constitution, to repeat at the cost of repetition, is an organic and living document. It contains words that potentially do have many a concept. It is evident from the 56Burnett v Coronado Oil and Gas Co., 285 US (1932) 57 The activist libertarians like Justice Black and Douglas never allowed reading such restrictions. See American Communication Association v Douds 339 US (1950) and dissenting in Poulos v New Hamshire, 345 US(1953) following passage from R.C. Poudyal v. Union of India and others58:­ “In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details””.”

136. Professor Richard H. Fallon has, in his celebrated work59, identified five different strands of interpretative considerations which shall be taken into account by judges while interpreting the Constitution. They read thus:­ “Arguments from the plain, necessary, or meaning of the constitutional text; arguments about the intent of the framers; arguments of constitutional theory that reason from the hypothesized purposes that best explain either particular constitutional provisions or the constitutional text as a whole; arguments based on judicial precedent; and value arguments that assert claims about justice and social policy.”60

137. Comparing the task of interpretation of statute to that of interpretation of musical notes, Judge Hand in the case of Helvering v. Gregory61 stated:­ “The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.”

138. Jerome N. Frank62, highlighting the corresponding duty of the public in allowing discretion to the Judges, has observed:­ “a “wise composer” expects a performer to transcend literal meaning in interpreting his score; a wise public should allow a judge to do the same.”

139. The room for discretion while interpreting constitutional provisions allows freedom to the Judges to come up with a formula which is in consonance with the constitutional precepts while simultaneously resolving the conflict in issue. The following observations made in S.R. Bommai’s case, throw light on the aforesaid perception:­

“Constitutional adjudication is like no other decision­making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.”

140. It is imperative that judges must remain alive to the idea that the Constitution was never intended to be a rigid and inflexible document and the concepts contained therein are to evolve over time as per the needs and demands of the situation. Although the rules of statutory interpretation can serve as a guide, yet the constitutional courts should not, for the sake of strict compliance to these principles, forget that when the controversy in question arises out of a constitutional provision, their primary responsibility is to work out a solution.

141. In Supreme Court Advocates­on­Record Association (supra), this Court, acknowledging the sui generis nature of the Constitution, observed thus:­ “The constitutional provisions cannot be cut down by technical construction rather it has to be given liberal and meaningful interpretation. The ordinary rules and presumptions, brought in aid to interpret the statutes, cannot be made applicable while interpreting the provisions of the Constitution. In Minister of Home Affairs v. Fisher (1979) 3 AER 21 dealing with Bermudian Constitution, Lord Wilberforce reiterated that a Constitution is a document “sui generis, calling for principles of interpretation of its own, suitable to its character””

142. Dickson, J., in Hunter v. Southam Inc63, rendering the judgment of the Supreme Court of Canada, expounded the principle pertaining to constitutional interpretation thus:­ “The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts ‘not to read the provisions of the Constitution like a last will and testament lest it become one’.”

143. The Supreme Court of Canada also reiterated this view when it held that the meaning of ‘unreasonable’ cannot be determined by recourse to a dictionary or, for that matter, by reference to the rules of statutory construction. The Court pointed out that the task of expounding a Constitution is crucially different from that of construing a statute, for a statute defines present rights and obligations and is easily enacted and as easily repealed whereas a Constitution is drafted with an eye to the future and its function is to provide a continuing framework for the legitimate exercise of governmental power. Further, the Court observed that once enacted, constitutional provisions cannot easily be repealed or amended and hence, it must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers and the judiciary, being the guardian of the Constitution, must bear these considerations in mind while interpreting it. The Court further stated that the judges must take heed to the warning of Professor Paul Freund when he said that the role of the judges is “not to read the provisions of the Constitution like a last will and testament, lest it becomes one”.

144. This idea had pervaded the legal system way back in 1930 when the Privy Council through Lord Sankey LC in Edwards v Attorney General for Canada64 had observed that the Constitution must be approached as “a living tree capable of growth and expansion within its natural limits”.

145. Professor Pierre­André Côté in his book65 has highlighted the action based approach by stating that it must be kept in mind that the end goal of the process of legal interpretation is resolution of conflicts and issues. It would be apt to reproduce his words:­ “Legal interpretation goes beyond the mere quest for historical truth. The judge, in particular, does not interpret a statute solely for the intellectual pleasure of reviving the thoughts that prevailed at the time the enactment was drafted. He interprets it with an eye to action: the application of the statute. Legal interpretation is thus often an “interpretive operation’’, that is, one linked to the resolution of concrete issues.”

M. Purposive interpretation:
146. Having stated the principles relating to constitutional interpretation we, as presently advised, think it apt to devote some space to purposive interpretation in the context, for we shall refer to the said facet for understanding the core controversy. It needs no special emphasis that the reference to some precedents has to be in juxtaposition with other concepts and principles. As it can be gathered from the discussion as well as the authorities cited above, the literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention. The Judicial Committee in Attorney General of Trinidad and Tobago v. Whiteman66 has observed:­ “The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit…”

147. In S.R. Chaudhuri v. State of Punjab and others67, a three­Judge Bench has opined that constitutional provisions are required to be understood and interpreted with an object­ oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The Court, while holding that the Constituent Assembly debates can be taken aid of, observed the following:­ “The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve.” (Emphasis is ours)

148. The Court further highlighted that the Constitution is not just a document in solemn form but a living framework for the government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit.

149. We have duly noted in the earlier part of the judgment that the judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation. That is the obligation cast on the judges. In Ashok Kumar Gupta and another v. State of U.P. and others68, the Court observed that while interpreting the Constitution, it must be borne in mind that words of width are both a framework of concepts and means to the goals in the Preamble and concepts may keep changing to expand and elongate the rights. The Court further held that constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance of the line of their growth and, therefore, the judges should adopt purposive interpretation of the dynamic concepts of the Constitution and the Act with its interpretative armoury to articulate the felt necessities of the time. Finally, the Court pointed out:­ “To construe law one must enter into its spirit, its setting and history.”

150. In Indian Medical Association v. Union of India and others69, referring to the pronouncement in M. Nagaraj v. Union of India70, the Court said:­ “In M. Nagaraj, Kapadia J., (as he then was) speaking for the Court, recognized that one of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the constitution endures for ages to come. Eloquently, it was stated that the “Constitution is not an ephemeral legal document embodying a set of rules for the passing hour”.” (Emphasis is ours)

151. The emphasis on context while interpreting constitutional provisions has burgeoned this shift from the literal rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in Regina (Quintavalle) v. Secretary of State for Health71 ruled:­ “The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) LR 2 AC 743 at p. 763 (HL). In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context. …”
[Emphasis is supplied]

152. Emphasizing on the importance of determining the purpose and object of a provision, Learned Hand, J. in Cabell v. Markham72 enunciated:­
“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

153. The components of purposive interpretation have been elucidated by Former President of the Supreme Court of Israel, Aharon Barak, who states:­ “Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.”73

154. As per the observations made by Aharon Barak, judges interpret a Constitution according to its purpose which comprises of the objectives, values and principles that the constitutional text is designed to actualize. Categorizing this purpose into objective and subjective purpose, he states74:­ “Subjective component is the goals, values, and principles that the constituent assembly sought to achieve through it, at the time it enacted the constitution. It is the original intent of the founding fathers. Purposive interpretation translates such intent into a presumption about the subjective purpose, that is, that the ultimate purpose of the text is to achieve the (abstract) intent of its authors. There is also, however, the objective purpose of the text ­ the goals, values, and principles that the constitutional text is designed to achieve in a modern democracy at the time of interpretation. Purposive interpretation translates this purpose into the presumption that the ultimate purpose of the constitution is its objective purpose.” [Emphasis supplied]

155. It is also apt to reproduce the observations made by him in the context of the ever changing nature of the Constitution:­ “A constitution is at the top of a normative pyramid. It is designed to guide human behavior for a long period of time. It is not easily amendable. It uses many open ended expressions. It is designed to shape the character of the state for the long term. It lays the foundation for the state’s social values and aspirations. In giving expression to this constitutional uniqueness, a judge interpreting a constitution must accord significant weight to its objective purpose and derivative presumptions. Constitutional provisions should be interpreted according to society’s basic normative positions at the time of interpretation.”

156. He has further pointed out that both the subjective as well as the objective purposes have their own significance in the interpretation of constitutional provisions:­
“The intent of the constitutional founders (abstract subjective intent” remains important. We need the past to understand the present. Subjective purpose confers historical depth, honoring the past and its importance. In purposive interpretation, it takes the form of presumption of purpose that applies immediately, throughout the process of interpreting a constitution. It is not, however, decisive. Its weight is substantial immediately following the founding, but as time elapses, its influence diminishes. It cannot freeze the future development of the constitutional provision. Although the roots of the constitutional provision are in the past, its purpose is determined by the needs of the present, in order to solve problems in the future. In a clash between subjective and objective purposes, the objective purpose of a constitution prevails. It prevails even when it is possible to prove subjective purpose through reliable, certain, and clear evidence. Subjective purpose remains relevant, however, in resolving contradictions between conflicting objective purposes.”75

N. Constitutional culture and pragmatism:
157. “Constitutional culture” is inherent in the concepts where words are transformed into concrete consequences. It is an interlocking system of practices, institutional arrangements, norms and habits of thought that determine what questions we ask, what arguments we credit, how we process disputes and how we resolve those disputes.76 158. The aforestated definition of the term ‘constitutional culture’ is to be perceived as set of norms and practices that breathe life into the words of the great document. It is the conceptual normative spirit that transforms the Constitution into a dynamic document. It is the constitutional culture that constantly enables the words to keep in stride with the rapid and swift changes occurring in the society.

159. The responsibility of fostering a constitutional culture falls on the shoulders of the State and the populace. The allegiance to promoting a constitutional culture stems from the crying need of the sovereign to ensure that the democratic nature of our society remains undaunted and the fundamental tenets of the Constitution rest on strong platform. 160. The following observations made by the Court in R.C. Poudyal (supra) throw light on this duty cast upon the functionaries and the citizens:­
“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals.”

161. The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution. 162. History reveals that in order to promote and nurture this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of “constitutional pragmatism”.

163. In this context, we may have some perspective from the American approach. The perception is that language is a social and contextual enterprise; those who live in a different society and use language differently cannot reconstruct the original meaning. Justice Brennan observed:­ “We current Justices read the Constitution in the only way that we can: as Twentieth­Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.”77

164. In Supreme Court Advocates­on­Record­Association and others v. Union of India78, the Court, while emphasizing on the aspect of constitutional culture that governs the functioning of any constitutional body, has observed:­

“The functioning of any constitutional body is only disciplined by appropriate legislation. Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one.”

165. Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches:­ “The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non­ arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.
xxx xxx xxx
It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.”

166. In The State of Karnataka and another v. Shri Ranganatha Reddy and another79, the Court had laid stress on the obligation and the responsibility of the judiciary not to limit itself to the confines of rigid principles or textualism and rather adopt an interpretative process which takes into consideration the constitutional goals and constitutional culture:­

“When cryptic phrases expressive of constitutional culture and aspirational future, fundamental to the governance of the nation, call for interpretative insight, do we merely rest content to consult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty? Is the meaning of meanings an artless art?” And again, “There is a touch of swadeshi about a country’s jurisprudence and so our legal notions must bear the stamp of Indian Developmental amplitude linked to constitutional goals.”

167. Laying emphasis on the need for constitutional pragmatism, the Court in Indra Sawhney (supra) noted the observations made by Lord Rockill in his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject “Law Lords, Reactionaries or Reformers?” which read as follows:­ “Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves “this case requires a policy decision ­ what is the right policy decision?” The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.”” [Emphasis is ours]

168. The Court also observed:­
“Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to the issues under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner. Since this is a constitutional issue it cannot be resolved by clinches founded on fictional mythological stories or misdirected philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary.”
[Emphasis is supplied]

169. Earlier, in Union of India v. Sankalchand Himatlal Sheth and another80, the Court had observed that:­
“…in a dynamic democracy, with goals of transformation set up by the Constitution, the Judge, committee to uphold the founding faiths and fighting creeds of the nation so set forth, has to act heedless of executive hubris, socio­economic pressures and die­hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution. Perfection baffles even the framers of a Constitution, but while on statutory construction of an organic document regulating and coordinating the relations among instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic, holistic recipe for the behavioral needs and norms of life in the raw­of individuals, instrumentalities and the play of power and freedom”

170. The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while engaging oneself with the process of interpretation of a constitutional provision. O. Interpretation of Articles 239 and 239A:

171. To settle the controversy at hand, it is imperative that we dig deep and perform a meticulous analysis of Articles 239, 239A, 239AA and 239AB all of which fall in Part VIII of the Constitution bearing the heading, ‘The Union Territories’. For this purpose, let us reproduce the aforesaid Articles one by one and carry out the indispensable and crucial task of interpreting them. 172. Article 239 provides for the administration of Union Territories. It reads as follows:­ “239. Administration of Union Territories.—(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.” (Emphasis is ours)

173. The said Article was brought into existence by the Constitution (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing the words ‘shall’, makes it abundantly clear that every Union territory is mandatorily to be administered by the President through an administrator unless otherwise provided by Parliament in the form of a law. Further, clause (1) of Article 239 also stipulates that the said administrator shall be appointed by the President with such designation as he may specify.

174. Clause (2) thereafter, being a non­obstante clause, lays down that irrespective of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an administrator of a Union Territory which is adjacent and/or contiguous to the State of which he is the Governor. The Governor of a State who is so appointed as an administrator of an adjoining UT shall exercise his functions as an administrator of the said UT independently and autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor.

175. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:­ “The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers.”

176. Again, the Court, while interpreting Article 239 in Union of India and others v. Surinder S81, observed:­ “The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of Clause (2) of Article 239 (amended), the President can appoint the Governor of a State as an Administrator of an adjoining Union territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it clear that prior to 1.11.1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President through an Administrator appointed by him with such designation as he may specify. In terms of Clause 2 of Article 239 (amended), the President is empowered to appoint the Governor of State as the Administrator to an adjoining Union Territory and once appointed, the Governor, in his capacity as Administrator, has to act independently of the Council of Ministers of the State of which he is the Governor.”

177. Now, let us proceed to scan Article 239A of the Constitution which deals with the creation of local legislatures or Council of Ministers or both for certain Union Territories. It reads as follows:­
“239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.
—(1) Parliament may by law create for the Union territory of Puducherry—
(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or
(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.”

178. The aforesaid Article was brought into force by the Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971, under Article 239A, the Parliament had the power to create by law legislatures and/or Council of Ministers for the then Union territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter, on 25th January, 1971, Himachal Pradesh acquired statehood and consequently, Himachal Pradesh was omitted from Article 239A. Subsequently, on 21st January 1972, Tripura and Manipur were granted statehood as a consequence of which both Manipur and Tripura were omitted from Article 239A.

179. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30th May 1987, both Goa and Daman and Diu were omitted from Article 239A. The Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30th May, 1987, the applicability of Article 239A stands limited to UT of Puducherry.

180. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadar and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239A.

P. Interpretation of Article 239AA of the Constitution
181. We shall now advert to the interpretation of Articles 239AA and 239AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation and a thorough analysis to unearth and discover the true intention of the Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution (Sixty­ninth Amendment) Act, 1991. The said articles read as follows:­ “239AA. Special provisions with respect to Delhi. —(1) As from the date of commencement of the Constitution (Sixty­ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor. (2) (a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament. (c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament. (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub­clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub­ clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:

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

(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.
(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub­clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.
(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be. 239AB. Provision in case of failure of constitutional machinery.—If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.”[Emphasis supplied]

182. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus:­ “The question of re­organisation of the Administrative set­up in the Union territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24­12­1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set­up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national Capitals of other countries with a federal set­up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories. 2. The Bill seeks to give effect to the above proposals.” The aforesaid, as we perceive, really conceives of conferring special status on Delhi. This fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239AA and other articles that are pertinent to understand the said provision.

Q. Status of NCT of Delhi:
183. The first proposition that has been built centering around the conferment of special status on NCT of Delhi is that it is a State for all purposes except the bar created pertaining to certain legislative matters. The bedrock has been structured by placing heavy reliance on the purpose of the constitutional amendment, the constitutional assurance to the inhabitants of Delhi and the language employed in sub­article 3(a) of Article 239AA of the Constitution. We have already referred to the historical background and also the report submitted by the Balakrishnan Committee.

184. Mr. Maninder Singh, learned Additional Solicitor General, would contend that the aid and assistance of the Committee Report can be taken into consideration to interpret the constitutional provisions and also the statutory provisions of the 1991 Act. He has referred to certain authorities for the said purpose. We shall refer to the said authorities at a later stage. First, we think it seemly to advert to the issue whether the NCT of Delhi can be called a State in the sense in which the Constitution expects one to understand. The said maze has to be cleared first. 185. We may now focus on the decision in Shamsher Singh (supra). The issue centered around the role and the constitutional status of the President. In that context, it has been held that the President and the Governor act on the aid and advice of the Council of Ministers and the Constitution does not stipulate that the President or the Governor shall act personally without or against the aid and advice of the Council of Ministers. Further, the Court held that the Governor can act on his own accord in matters where he is required to act in his own discretion as specified in the Constitution and even while exercising the said discretion, the Governor is required to act in harmony with the Council of Ministers. We may hasten to add that the President of India, as has been held in the said case, has a distinguished role on certain occasions. We may, in this context, reproduce below certain passages from the opinion of Krishna Iyer, J.:­

“The omnipotence of the President and of the Governor at State level — is euphemistically inscribed in the pages of our Fundamental Law with the obvious intent that even where express conferment of power or functions is written into the articles, such business has to be disposed of decisively by the Ministry answerable to the Legislature and through it vicariously to the people, thus vindicating our democracy instead of surrendering it to a single summit soul whose deification is incompatible with the basics of our political architecture — lest national elections become but Dead Sea fruits, legislative organs become labels full of sound and fury signifying nothing and the Council of Ministers put in a quandary of responsibility to the House of the People and submission to the personal decision of the head of State. A Parliamentary­style Republic like ours could not have conceptualised its self­ liquidation by this process. On the contrary, democratic capital­formation to strengthen the people’s rights can be achieved only through invigoration of the mechanism of Cabinet­House­ Elections.

We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well­known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith’s statement regarding royal assent holds good for the President and Governor in India:

“Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless­ be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course — a highly improbable contingency — or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to. prudence would suggest the giving of assent.”
[Emphasis supplied]

186. That apart, A.N. Ray, C.J., in Shamsher Singh (supra), has stated thus:­ “Article 163(1) states that there shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of Was functions, except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that ought or ought not to have acted in his discretion. Extracting the words “in his discretion” in relation to exercise of functions, the appellants contend that the Council of Ministers may aid and advise the Governor in Executive functions but the Governor individually and personally in his discretion will exercise the constitutional functions of appointment and removal of officers in State Judicial Service and other State Services. It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article 163 that the aid and advice is except in so far as he is required to exercise his functions or any of them in his discretion. It is necessary to find out as to why the words, in his discretion’ are used in relation to some powers of the Governor and not in the case of the President. Article 143 in the Draft Constitution became Article 163 in the Constitution. The draft constitution in Article 144(6) said that the functions of the Governor under Article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. Draft Article 144(6) was totally omitted when Article 144 became Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and (c) of clause (2) of the Article shall be exercised by him in his discretion. Draft Article 153(3) was totally omitted when it became Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor “may in his discretion return the Bill together with a message requesting that the House will reconsider the Bill”. Those words that “the Governor may in his discretion” were omitted when it became Article 200. The Governor under Article 200 may return the Bill with a message requesting that the House will reconsider the Bill. Draft Article 188 dealt with provisions in case of grave emergencies, clauses (1) and (4) in Draft Article 188 used to words “in his discretion in relation to exercise of power by the Governor. Draft Article 188 was totally omitted Draft Article 285(1) and (2) dealing with composition and staff of Public Service Commission used the expression “in his discretion” in relation to exercise of power by the Governor in regard to appointment of the Chairman and Members and making of regulation. The words “in his discretion” in relation to exercise of power by the Governor were omitted when it became Article 316. In Paragraph 15 (3) of the Sixth Schedule dealing with annulment or suspension of acts or suspension of acts and resolutions of District and Regional Councils it was said that the functions of the Governor under the Paragraph shall be exercised by him in his discretion. Subparagraph 3 of Paragraph 15 of the Sixth Schedule was omitted at the time of enactment of the Constitution. It is, therefore, understood in the background of these illustrative draft articles as to why Article 143 in the Draft Constitution which became Article 163 in our Constitution used the expression “in his discretion” in regard to some powers of the Governor.”[Emphasis supplied]

187. Thereafter, A.N. Ray, C.J. discussed the provisions of the Constitution as well as a couple of paragraphs of the Sixth Schedule wherein the words “in his discretion” are used in relation to certain powers of the Governor to highlight the fact that a Governor can act in his discretion only when the provisions of the Constitution so permit.

188. In this context, we may refer with profit to the authority in Devji Vallabhbhai Tandel and others v. Administrator of Goa, Daman and Diu and another82. In the said case, the issue that arose for consideration was whether the role and functions of the Administrator stipulated under the Union Territories Act, 1963 is similar to those of a Governor of a State and as such, whether the Administrator has to act on the “aid and advice” of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi­judicial functions, is not bound to act according to the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say:­ “It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would not according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers. The second limb of the proviso to Section 44(1) enables the Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can refer the matter to the President but during the interregnum where the matter is in his opinion so urgent that it is necessary for him to take immediate action, he has the power to take such action or to give such directions in the matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor nor the President enjoys any such power. This basic functional difference in the powers and position enjoyed by the Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision in Shamsher Singh’s case that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own.”
[Emphasis supplied]

189. Be it noted, Devji Valabhbhai Tandel (supra) depicts a pre Sixty­ninth amendment scenario. On that foundation, it is submitted by the learned counsel for the appellant to buttress the submission that after the amendment, the status of NCT of Delhi is that of State and the role of the Lieutenant Governor is equivalent to that of the Governor of State who is bound by the aid and advice of the Council of Ministers.

190. Now, let us allude to the post Sixty­ninth amendment nine­Judge Bench decision in New Delhi Municipal Corporation (supra) wherein B.P. Jeevan Reddy, J., speaking for the majority after taking note of the rivalised submissions pertaining to “Union Taxation”, referred to the decisions in Sea Customs Act, Re83 and came to hold thus:­

“152. … In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital Territory of Delhi] by the Sixty­Ninth (Amendment) Act (Article 239­AA) but even here the legislature so created was not a full­ fledged legislature nor did it have the effect of — assuming that it could — lift the National Capital Territory of Delhi from Union Territory category to the category of States within the meaning of Chapter I of Part XI of the Constitution. All this necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament — or a legislative body created by it. Parliament can make any law in respect of the said territories — subject, of course, to constitutional limitations other than those specified in Chapter I of Part XI of the Constitution.”
And again:­

“155. … it is necessary to remember that all the Union Territories are not situated alike. There are certain Union territories (i.e., Andaman and Nicobar Islands and Chandigarh) for which there can be no legislature at all­as on today. There is a second category of Union Territories covered by Article 239­ A (which applied to Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry ­ now, of course, only Pondicherry survives in this category, the rest having acquired Statehood) which have legislatures by courtesy of Parliament. The Parliament can, by law, provide for Constitution of legislatures for these States and confer upon these legislatures such powers, as it may think appropriate. The Parliament had created legislatures for these Union territories under the “The Government of India Territories Act, 1963″, empowering them to make laws with respect to matters in List­II and List­Ill, but subject to its over­ riding power. The third category is Delhi. It had no legislature with effect from November 1, 1956 until one has been created under and by virtue of the Constitution Sixty­Ninth (Amendment) Act, 1991 which introduced Article 239­AA. We have already dealt with the special features of Article 239­AA and need not repeat it. Indeed, a reference to Article 239­B read with Clause (8) of Article 239­AA shows how the Union Territory of Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part­VI of the Constitution. In sum, it is also a territory governed by Clause (4) of Article 246. …”
[Emphasis supplied]

191. Thus, New Delhi Municipal Corporation (supra) makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as the NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part­ VI of the Constitution. Though the NCT of Delhi partakes a unique position after the Sixty­ Ninth Amendment, yet in sum and substance, it remains a Union Territory which is governed by Article 246(4) of the Constitution and to which the Parliament, in the exercise of its constituent power, has given the appellation of the ‘National Capital Territory of Delhi’.

192. For ascertaining the binding nature of aid and advice upon the President and the Governor on one hand and upon the Lieutenant Governor of Delhi on the other, let us conduct a comparative analysis of the language employed in Articles 74 and 163 on one hand and Article 239AA on the other. For this purpose, we may reproduce Articles 74 and 163 which read thus:­

“74. Council of Ministers to aid and advise President
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

163. Council of Ministers to aid and advise Governor’s
(1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.”

193. It is vivid from Article 74 that the President is always bound by the aid and advice of the Union Council of Ministers except a few well known situations which are guided by constitutional conventions. The Constitution, however, does not lay down any express provision which allows the President to act as per his discretion.

194. The Governor of a State, as per Article 163, is bound by the aid and advice of his Council of Ministers in the exercise of his functions except where he is, by or under the Constitution, required to exercise his functions or any of them in his discretion. Thus, the Governor may act in his discretion only if he is so permitted by an express provision of the Constitution.

195. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in Clause (4) of Article 239AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4).

196. In the light of the aforesaid analysis and the ruling of the nine­Judge Bench in New Delhi Municipal Corporation (supra), it is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.

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

198. Analysing the provision, it is submitted by Dr. Dhawan and other senior counsel that the Government of Delhi is empowered under the Constitution to aid and advise the Lieutenant Governor in the exercise of its functions in relation to matters in respect of which the Delhi Legislative Assembly has the legislative power to make laws and the said aid and advice is binding on the Lieutenant Governor. Commenting on the proviso, it is earnestly canvassed that the words ‘difference on any matter’ has to be restricted to the field of any legislation or, at best, the difference in relation to the three excepted matters. For the said argument, inspiration has been drawn from Articles 73 and 163 of the Constitution. Elaborating the argument, it is contended that the reference of the matter to the President is made where there is doubt as to whether the aid and advice touches the realm of the excepted entries as stipulated under Article 239AA(3)(a) and nothing beyond. To buttress the point, heavy reliance has been laid on Ram Jawaya Kapur (supra) wherein the Court, while interpreting the provisions of Article 162 of the Constitution and delineating on the issue of the extent of the executive powers of the State, observed:­ “7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down :

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

Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution…”
[Underlining is ours]

199. Drawing an analogy while interpreting the provisions of Article 239AA(3)(a) and Article 239AA(4) would reveal that the executive power of the Government of NCT of Delhi is conterminous with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power.

200. The legislative power conferred upon the Delhi Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words ‘Part C States’were substituted by the words ‘Union Territories’, the word ‘State’ in the proviso to Article 73 cannot be read to mean Union Territory as such an interpretation would render the scheme and purpose of Part VIII (Union Territories) of the Constitution infructuous.

S. Essence of Article 239AA of the Constitution:
201. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239AA. Both the Statement of Objects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as an enacting history and corpus of public knowledge relative to the introduction of Articles 239AA and 239AB and would be handy external aids for construing Article 239AA and unearthing the real intention of the Parliament while exercising its constituent power.

202. At the outset, we must declare that the insertion of Articles 239AA and 239AB which specifically pertain to NCT of Delhi is reflective of the intention of the Parliament to accord Delhi a sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239A is singularly applicable as on date. The same has been authoritatively held by the majority judgment in the New Delhi Municipal Corporation case to the effect that the NCT of Delhi is a class by itself.

203. The Legislative Assembly, Council of Ministers and the Westminster style cabinet system of government brought by the Sixty­ninth amendment highlight the uniqueness attributed to Delhi with the aim that the residents of Delhi have a larger say in how Delhi is to be governed. The real purpose behind the Constitution (Sixty­ninth Amendment) Act, 1991, as we perceive, is to establish a democratic setup and representative form of government wherein the majority has a right to embody their opinion in laws and policies pertaining to the NCT of Delhi subject to the limitations imposed by the Constitution. For paving the way to realize this real purpose, it is necessary that we give a purposive interpretation to Article 239AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense.

204. The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has power to legislate for the NCT of Delhi.

205. Further, the Statement of Objects and Reasons for the Constitution (Seventy­fourth Amendment) Bill, 1991 which was enacted as the Constitution (Sixty­ninth Amendment) Act, 1991 also lends support to our view as it clearly stipulates that in order to confer a special status upon the National Capital, arrangements should be incorporated in the Constitution itself.

206. We may presently carefully peruse each clause of Article 239AA for construing the meaning. A cursory reading of clause (1) of Article 239AA shows that on 1st February, 1992, the Union Territory of Delhi was renamed as the National Capital Territory of Delhi and it was to be administered by a Lieutenant Governor from the date of coming into force of the Sixty­ninth Amendment Act.

207. Sub­clause (a) of clause (2) specifies that the National Capital Territory of Delhi shall have a Legislative Assembly, the seats of which shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory of Delhi. Sub­clause (b) of clause (2) stipulates that the total number of seats in the Legislative Assembly of the National Capital Territory of Delhi so established under sub­ clause (a), the number of seats reserved for Scheduled Castes in the said Legislative Assembly, the division of the National Capital Territory of Delhi into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the said Legislative Assembly shall be regulated by law made by Parliament. Thereafter, sub­clause (c) of clause (2) simply provides that the provisions of Articles 324 to 327 and 329 which pertain to elections and fall under Part XV of the Constitution shall also apply to the National Capital Territory of Delhi, its Legislative Assembly and the members thereof in the same manner as the said provisions apply to the States. Further, sub­clause (c) provides that the phrase “appropriate legislature” in Articles 326 and 329 shall, in the context of the National Capital Territory of Delhi, mean the Parliament.

208. We must note here the stark difference in the language of Article 239A clause (1) and that of Article 239AA clause (2). Article 239A clause (1) uses the word ‘may’ which makes it a mere directory provision with no obligatory force. Article 239A gives discretion to the Parliament to create by law for the Union Territory of Puducherry a Council of Ministers and/or a body which may either be wholly elected or partly elected and partly nominated to perform the functions of a Legislature for the Union Territory of Puducherry. 209. On the other hand, Article 239AA clause (2), by using the word ‘shall’, makes it mandatory for the Parliament to create by law a Legislative Assembly for the National Capital Territory of Delhi. Further, sub­clause (a) of clause (2) declares very categorically that the members of the Legislative Assembly of the National Capital Territory of Delhi shall be chosen by direct election from the territorial constituencies in the National Capital Territory of Delhi. Unlike Article 239A clause (1) wherein the body created by the Parliament by law to perform the functions of a Legislature for the Union Territory of Puducherry may either be wholly elected or partly elected and partly nominated, there is no such provision in the context of the Legislative Assembly of the NCT of Delhi as per which members can be nominated to the Legislative Assembly. This was a deliberate design by the Parliament.

210. We have highlighted this difference to underscore and emphasize the intention of the Parliament, while inserting Article 239AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of the NCT of Delhi and to treat the government of the NCT of Delhi as a representative form of government.

211. The Legislative Assembly is wholly comprised of elected representatives who are chosen by direct elections and are sent to Delhi’s Legislative Assembly by the voters of Delhi. None of the members of Delhi’s Legislative Assembly are nominated. The elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man.

212. Sub­clause (a) of clause (3) of Article 239AA establishes the power of the Delhi Legislative Assembly to enact laws for the NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent list except in so far as matters with respect to and which relate to entries 1, 2 and 18 of the State List.

213. Sub­clause (b) of clause (3) lays down that the Parliament has the powers to make laws with respect to any matter for a Union Territory including the NCT of Delhi or any part thereof and sub­clause (a) shall not derogate such powers of the Parliament. Sub­clause (c) of clause (3) gives the Parliament the overriding power to the effect that where any provision of any law made by the Legislative Assembly of Delhi is repugnant to any provision of law made by the Parliament, then the law made by the Parliament shall prevail and the law made by the Delhi Legislative Assembly shall be void to the extent of repugnancy.

214. Thus, it is evident from clause (3) of Article 239AA that the Parliament has the power to make laws for the NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239AA(3)(a).

215. Now, it is essential to analyse clause (4) of Article 239AA, the most important provision for determination of the controversy at hand. Clause (4) stipulates a Westminster style cabinet system of government for the NCT of Delhi where there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to maters with respect to which the Delhi Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is required to act in his discretion.

216. The proviso to clause (4) stipulates that in case of a difference of opinion on any matter between the Lieutenant Governor and his Ministers, the Lieutenant Governor shall refer it to the President for a binding decision. Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor, is so urgent that it is necessary for him to take immediate action, the proviso makes him competent to take such action and issue such directions as he deems necessary.

217. A conjoint reading of Article 239AA (3) (a) and Article 239AA(4) reveals that the executive power of the Government of NCT of Delhi is co­extensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power.

218. Article 239AA(3)(a) reserves the Parliament’s legislative power on all matters in the State list and Concurrent list, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have co­extensive executive powers. Such a view is in consonance with the observation in the case of Ram Jawaya Kapur (supra) which has been discussed elaborately in the earlier part of the judgment.

219. Article 239AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is co­extensive with the Parliament’s legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239 AA (3) (a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving the NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution.

220. Another important aspect is the interpretation of the phrase ‘aid and advise’ in Article 239AA(4). While so interpreting, the authorities in Shamsher Singh (supra) and Devji Ballabhbhai Tandel (supra) have to be kept in mind. Krishna Iyer, J., in Shamsher Singh (supra), has categorically held that the President and the Governor, being custodians of all executive powers, shall act only upon and in accordance with the aid and advice of their Ministers save in a few well known exceptional situations. Devji Ballabhbhai Tandel (supra), on the other hand, has observed that there is a functional difference in the powers and the position enjoyed by the President and Governor on one hand and the Administrator on the other hand. It has also been observed that it is not possible to hold to the view laid down in Shamsher Singh (supra) in the context of Governor and President to mean that the Administrator is also purely a constitutional functionary who is bound to act on the ‘aid and advice’ of the Council of Ministers and cannot act on his own.

221. It is necessary to note with immediacy that Devji Ballabhbhai Tandel (supra) represents a pre―Sixty­ninth Amendment view and that too in the context of a Union Territory which does not have a unique position as the NCT of Delhi does. Presently, the scheme of Article 239AA(4) is different. It requires the Lieutenant Governor to act as per the ‘aid and advice’ of the Council of Ministers with respect to all matters for which the Legislative Assembly of Delhi has the power to enact laws except what has been stated in the proviso which requires a thoughtful interpretation.

222. The language employed in the proviso has to be understood keeping in view the concepts which we have elaborately adumbrated hereinbefore. As noted earlier, the submission of the learned counsel for the appellant is that the Lieutenant Governor can only exercise the power or take refuge to the proviso to Article 239AA(4) where the said ‘aid and advice’ of the Council of Ministers transgresses the area constitutionally prescribed to them by virtue of Article 239AA(3)(a).

223. We may note here that a narrow or restricted meaning in respect of the words, namely, “on any matter” as is suggested by the appellant, takes away the basic concept of interpretative process, for the said expression does not remotely convey that it is confined to the excepted legislative fields. Similarly, a broad or unrestricted interpretation of the term to include every difference would obstruct the idealistic smooth stream of governance. Therefore, the Court has the duty to place such a meaning or interpretation on the phrase that is workable and the need is to establish the norm of fine constitutional balance.

224. The counsel for the respondents has sought to impress upon this Court that the term “any”occurring in the proviso to clause (4) of Article 239AA should be given widest import in order to include everything within its ambit and for the said purpose, reliance has been placed upon Tej Kiran (supra). It has been highlighted in the earlier part of this judgment that while interpreting a constitutional provision and construing the meaning of specific word(s) occurring in a constitutional provision, the Court must read the same in the context in which the word(s) occurs by referring to the annexing words of the said provision and also bearing in mind the concepts that we have adverted to. As regards the importance of context while deciphering the true meaning and importation of a term, Austin has made the following observations:­

“When I see the word “any” in a statute, I immediately know it’s unlikely to mean “anything” in the universe. Any” will have a limitation on it, depending on the context. When my wife says, “there isn’t any butter.” I understand that she’s talking about what is in our refrigerator, not worldwide. We look at context over and over, in life and in law.”84

225. In this context, the observations made in the case of Small v. United States85 are relevant to be noted:­
“The question before us is whether the statutory reference “convicted in any court” includes a conviction entered in a foreign court. The word “any” considered alone cannot answer this question. In ordinary life, a speaker who says, “I’ll see any film,” may or may not mean to include films shown in another city. In law a legislature that uses the statutory phrase “‘any person'” may or may not mean to include “‘persons'” outside “the jurisdiction of the state.”

226. Further, words of wide import must be construed by placing reliance upon the intention with which the said words have been used. Elucidating the importance of intention, Marshall, C.J. of the Supreme Court of U.S. in the case of United States v. Palmer86 observed:­

84 J.L Austin, How to do things with words , The William James Lectures delivered at Harvard University, 1955 “The words “any person or persons” are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power who in a foreign ship may commit murder or robbery on the high seas? The 8th section also commences with the words “any person or persons.” But these words must be limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law”.”

227. At home, it has also been acknowledged that the word ‘any’ can have different meanings depending on the context in which it has been used and the Courts must not mechanically interpret it to mean ‘everything’. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others87, this Court has observed:­ “The word “any” has the following meaning:­ Some; one out of many; an indefinite number. One indiscriminately of whatever kind or quantity.” Word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.”It is often synonymous with “either”, “every” or “all”. Its generality may be restricted by context; (Black’s Law Dictionary; Fifth Edition).”

228. In Kihoto Hollohan v. Zachillhu and others88, the Court has stated:­ “…the words “any direction” would cost it its constitutionality’ does not commend to us. But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.”

229. In A.V.S. Narasimha Rao and Ors. v. The State of Andhra Pradesh and another89, while interpreting the expressions “any law” and “any requirement”, the Court has refused to give a wide import to the said phrases. The observations in that regard read thus:­ “The words ‘any requirement’ cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words ‘any law’ and any requirement’. These words are obviously controlled by the words ‘residence within the State or Union territory’ which words mean what they say, neither more nor less. It follows, therefore, that Section 3 of the Public Employment (Requirement as to Residence) Act, 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution.”

230. To lend support to this view, we can refer to the observations made by Lindley LJ in Warburton v. Huddersfield Industrial Society90 wherein he has stated:­ “I cannot myself avoid coming to the conclusion that ‘any lawful purpose’ in sub­s (7) means any lawful purpose which is consistent with the rules. It cannot mean anything inconsistent with the rules…can it mean ‘any lawful purpose’ under the sun’, or is it ‘any lawful purpose of the society? If you look at the context, that which precedes and that which follows, I do not think ‘anybody, certainly (I do not think any lawyer would construe any lawful purpose, in the wide way in which Mr Cohen invites us to construe it.”

231. That apart, the Court in Workmen of Dimakuchi Tea Estate v. The Management of Dimakuchi Tea Estate91 held:­ “A little careful consideration will show, however, that the expression “any person” occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all. the subject matter of dispute must relate to (i) employment or non­employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employer­ employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act.”

232. From the foregoing discussion, it is clear that the words ‘any matter’ occurring in the proviso to Article 239AA(4) does not necessarily need to be construed to mean ‘every matter’. As highlighted in the authorities referred to hereinabove, the word ‘any’ occurring in a statute or constitutional provision is not to be mechanically read to mean ‘every’ and the context in which the word has been used must be given due weightage so as to deduce the real intention and purpose in which the word has been used.

233. It has to be clearly understood that though ‘any’ may not mean ‘every’, yet how it should be understood is extremely significant. Let us elaborate. The power given to the Lieutenant Governor under the proviso to Article 239AA(4) contains the rule of exception and should not be treated as a general norm. The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There has to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of the NCT of Delhi and the principle of constitutionalism. As per the 1991 Act and Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apart, there is no provision for concurrence. He has the authority to differ. But it cannot be difference for the sake of difference. It cannot be mechanical or in a routine matter. The power has been conferred to guide, discuss and see that the administration runs for the welfare of the people and also NCT of Delhi that has been given a special status. Therefore, the word ‘any’ has to be understood treating as a guidance meant for the constitutional authority. He must bear in mind the constitutional objectivity, the needed advice and the realities.

234. The proviso to Article 239AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional. We feel, it is necessary in the context to read the words of the provision in the spirit of citizenry participation in the governance of a democratic polity that is republican in character. We may hasten to add that when we say so, it should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And we call it constitutional pragmatism.

235. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.

236. Interpretation cannot ignore the conscience of the Constitution. That apart, when we take a broader view, we are also alive to the consequence of such an interpretation. If the expressions “in case of difference” and “on any matter” are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set up, although different from States as understood under the Constitution, will lose its purpose in simple semantics. The essence and purpose should not be lost in grammar like the philosophy of geometry cannot be allowed to lose its universal metaphysics in the methods of drawing. And that is why, we deliberated upon many a concept. Thus, the Administrator, as per the Rules of Business, has to be apprised of each decision taken by a Minister or Council of Ministers, but that does not mean that the Lieutenant Governor should raise an issue in every matter. The difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The difference of opinion should never be based on the perception of “right to differ” and similarly the term “on any matter” should not be put on such a platform as to conceive that as one can differ, it should be a norm on each occasion. The difference must meet the concept of constitutional trust reposed in the authority and there has to be objective assessment of the decision that is sent for communication and further the rationale of difference of opinion should be demonstrable and it should contain sound reason. There should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and a visionary. The constitutional amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State. T. The Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993

237. Our attention, in the course of the proceedings, has also been drawn to the Government of National Capital Territory of Delhi Act, 1991 (for brevity, “the 1991 Act’) which came into force with effect from 2nd January, 1992. The 1991 Act was enacted by the Parliament by virtue of the power conferred upon it by clause (7)(a) of Article 239AA. We think it appropriate to refer to the Statement of Objects and Reasons of the said enactment. It is as follows:­ “STATEMENT OF OBJECTS AND REASONS Under the new article 239­AA proposed to be inserted by the Constitution (Seventy­fourth Amendment) Bill, 1991, a Legislative Assembly and Council of Ministers will be established for the National Territory. Clause (7) (a) of the said article provides that Parliament may by law make provisions for giving effect to or supplementing the provisions contained in that article and for all that matters incidental or consequential thereto.

2. In pursuance of the said clause, this bill seeks necessary provisions in respect of the legislative Assembly and its functioning including the provisions relating to the Speaker, Deputy Speaker, qualifications or disqualifications for membership, duration, summoning, prorogation or dissolution of the House privileges, legislative procedures, procedure in financial matters, adders by the Lieutenant Governor to the Legislative Assembly, constitution of Consolidated Fund for the National Capital Territory, Contingency Fund. etc. These are on the; lines of the provisions made in respect of a legislative Assembly of a State with suitable modifications.

3. Under the bill the delimitation of constituencies will be made by the Election Commission in accordance with the Procedure set out therein. Having regard to the special conditions prevailing in Delhi, it has been provided that in respect of the frost constitution of the Assembly, such delimitation will be on the basis of provisional figures of population in relation to 1991 census, if final figures of population in relation to 1991 census, if final figures have not been published by them.

4. The Bill seeks to give effect to the above proposals.”

238. From the aforesaid, it is clear as crystal that the 1991 Act was conceived to be brought into existence for supplementing the constitutional provision and also to take care of incidental matters that are germane to Article 239AA.

239. Upon scanning the anatomy of the 1991 Act, we find that the Act contains fifty six Sections and is divided into five Parts, each dealing with different fields. Now, we may refer to some of the provisions contained in Part IV of the 1991 Act titled ‘Certain Provisions relating to Lieutenant Governor and Ministers’ which are relevant to the case at hand. Section 41 deals with matters in which the Lieutenant Governor may act in his discretion and reads thus:­

“Section 41­ Matters in which Lieutenant Governor to act in his discretion.­(l) The Lieutenant Governor shall act in his discretion in a matter­ (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi­judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi­ judicial functions, the decision of the Lieutenant Governor thereon shall be final.”

240. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi­judicial functions and, therefore, it is clear that the Lieutenant Governor cannot exercise his discretion in each and every matter and by and large, his discretionary powers are limited to the three matters over which the legislative power of the Delhi Legislative Assembly stand excluded by clause (3)(a) of Article 239AA.

241. Section 42 deals with the aid and advice tendered by the Council of Ministers to the Lieutenant Governor and reads as under:­
“Section 42 Advice by Ministers:­The question whether any. and if so what, advice was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court.”

242. The wordings and phraseology of Section 42 of the 1991 Act is identical to that of clause (2) of Article 74 of the Constitution which also is an indication that the expression ‘aid and advice’should receive a uniform interpretation subject to other constitutional provisions in the form of the proviso to clause (4) of Article 239AA of the Constitution of India. In other words, the ‘aid and advice’ given by the Council of Ministers is binding on the Lieutenant Governor so long as the Lieutenant Governor does not exercise the power conferred upon him by the proviso to clause (4) of Article 239AA and refer the matter to the President in exercise of that power for his ultimate binding decision.

243. Section 44 that deals with the conduct of business in the NCT of Delhi reads thus:­
“Section 44 Conduct of business.­­(1) the President shall make rules ­ (a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and (b) for the more convenient transaction of business with the Ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. (2) Save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor. (3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.”

244. Section 44 of the 1991 Act has made it mandatory for the President to frame rules for the allocation of business to the Ministers and also the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers.

245. In exercise of the powers conferred under the aforesaid provision, the President has framed the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (for brevity, ‘TBR, 1993’). The 1991 Act and the TBR, 1993, when read together, reflect the scheme of governance for the NCT of Delhi. We will scrutinize and analyze the relevant rules from the TBR, 1993 after analyzing the other relevant provisions of the 1991 Act.

246. Now, Section 45 deals with the duties of the Chief Minister of Delhi regarding furnishing of information to the Lieutenant Governor and reads as below:­ “Section 45. Duties of Chief Minister as respect the furnishing of information to the Lieutenant Governor, etc. ­ It shall be the duty of the Chief Minister ­ (a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation; (b) To furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for; and (c) If the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

247. Again, Section 45 of the 1991 Act is identical and analogous to Article 167 of the Constitution which makes it obligatory for the Chief Minister of the NCT of Delhi to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation. Having said that, the real purpose of such communication is not to obtain concurrence of the Lieutenant Governor on all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and on proposals for legislation, but in actuality, the objective is to have the Lieutenant Governor in synergy, to keep him in the loop and to make him aware of all decisions of the Council of Ministers relating to the administration of the affairs of the NCT of Delhi and proposals for legislation so as to enable the Lieutenant Governor to exercise the power conferred upon him by the proviso to clause (4) of Article 239AA.

248. Another important provision is Section 49 of the 1991 Act which falls under Part V of the Act titled ‘Miscellaneous and Transitional Provisions” and stipulates the relation of the Lieutenant Governor and his Ministers to the President. Section 49 reads thus:­ “Section 49. Relation of Lieutenant Governor and his Ministers to President: Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time­to­time be given by the President.”

249. Section 49 of the 1991 Act discloses that the set up in the NCT of Delhi is one where the Council of Ministers headed by the Chief Minister on one hand and the Lieutenant Governor on the other are a team, a pair on a bicycle built for two with the President as its rider who retains the general control. Needless to say, the President, while exercising this general control, acts as per the aid and advice of the Union Council of Ministers.

250. Let us, in the obtaining situation, refer to the various rules in TBR, 1993 which are necessary for dealing with the present case and for discerning the real intention of the Parliament for inserting Articles 239AA and 239AB. Rule 4 of the TBR, 1993 very categorically underscores the collective responsibility of the Council of Ministers:­ “Rule 4( 1 ) The Council shall be collectively responsible for all the execution orders issued by any Department in the name of the Lieutenant Governor and contracts made in the name of the President in connection with the administration of the Capital whether such orders or contracts are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council.”

251. Chapter III of the TBR, 1993 deals with ‘Disposal of Business allocated among Ministers’. Rule 9 falling under Chapter III provides for circulation of proposals amongst the Council of Ministers and reads as under:­

“Rule 9(1) The Chief Minister may direct that any proposal submitted to him under rule 8 may. instead of being placed for discussion in a meeting of the Council, be circulated to the Ministers for opinion, and if all the Ministers are unanimous and the Chief Minister is of the opinion that discussions in a meeting of the Council is not required, the proposal shall be treated as finally approved by the Council. In case. Ministers are not unanimous or if the Chief Minister is of the opinion that discussions in a meeting is required, the proposal shall be discussed in a meeting of the Council.
(2) If it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to the Secretary to the Council who shall arrange to circulate the same among the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.”
[Emphasis supplied]

Rule 9(2) stipulates that if it is decided that a proposal is to be circulated, the department to which it belongs shall prepare a memo setting out in brief its facts, points for decision and recommendations of the Minister­in­charge. The said memo has to be forwarded to the Secretary to the Council who shall circulate the same amongst the Ministers and at the same time send its copy to the Lieutenant Governor.

252. Rule 10, which is relevant, is reproduced below:­

“Rule 10. (1) While directing that a proposal shall be circulated, the Chief Minister may also direct, if the matter be of urgent nature, that the Ministers shall communicate their opinion to the Secretary to the Council by a particular date, which shall be specified in the memorandum referred to in rule 9.
(2) If any Minister fails to communicate his opinion to the Secretary to the Council by the date so specified in the memorandum, it shall be assumed that he has accepted the recommendations contained therein.
(3) If the Minister has accepted the recommendations contained in the memorandum or the date by which he was required to communicate his opinion has expired, the Secretary to the Council shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if he has no observation to make, he shall return the proposal with his orders thereon to the Secretary to the Council.
(5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V.
[Underlining is ours]

Rule 10(5) stipulates that when a decision has been taken by the Council of Ministers on a proposal as per the preceding sub­rules of Rule 10, then the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned for taking necessary steps to issue the orders unless the Lieutenant Governor decides to refer the decision to the Central Government in pursuance of the provisions of Chapter V of the TBR, 1993. 253. Rule 11 of the TBR, 1993 states thus:­

“Rule 11. When it has been decided to place a proposal before the Council, the Department to which it belongs, shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal and the points for decision. Copies of the memorandum and such other documents, as are necessary to enable the proposal to be disposed of shall be forwarded to the Secretary to the Council who shall arrange to circulate the memorandum to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.”
[Emphasis added]

Basically, Rule 11 of the TBR, 1993 deals with the procedure to be adopted for placing a proposal before the Council of Ministers. The said rule stipulates that the proposal shall be forwarded to the Secretary to the Council who shall arrange to circulate a memorandum indicating the salient facts of the proposal and the points for decision to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.

254. The procedure is further detailed in Rule 13 which stipulates as under:­
“Rule 13 (1) The council shall meet at such place and time as the Chief Minister may direct.
(2) Except with the permission of the Chief Minister, no case shall be placed on the agenda of a meeting unless papers relating thereto have been circulated as required under rule 11.
(3) After an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chief Minister, copies thereof, together with copies of such memoranda as have not been circulated under rule 11, shall be sent by the Secretary to the Council, to the Lieutenant Governor, the Chief Minister and other Ministers, so as to reach them at least two days before the date of such meeting. The Chief Minister may, in case of urgency, curtail the said period of two days.
(4) If any Minister is on tour, the agenda shall be forwarded to the Secretary in the Department concerned who, if he considers that the discussion on any proposal should await the return of the Minister may request the Secretary to the Council to take the orders of the Chief Minister for a postponement of the discussion on the proposal until the return of the said Minister.
(5) The Chief Minister or in his absence any other Minister nominated by the Chief Minister shall preside at the meeting of the Council.
(6) If the Chief Minister so directs, the Secretary of the Department concerned may be required to attend the meeting of the Council.
(7) The Secretary to the Council shall attend all the meetings of the Council and shall prepare a record of the decisions. He shall forward a copy of such record to Ministers and the Lieutenant Governor.”
[Emphasis supplied]

Rule 13, thus, deals with the meeting of Council of Ministers and sub­rule (3) of Rule 13 stipulates that the agenda of the proposals to be discussed in the meeting of the Council shall be sent by the Secretary to the Lieutenant Governor amongst others.

255. Again, Rule 14 states as below:­

“Rule 14 (1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding, shall be placed with the records of the proposal. After approval by the Chief Minister or the Minister presiding, the decision of the Council as approved, shall be forwarded by the Secretary to the Council to the Lieutenant Governor.
(2) Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister concerned shall take necessary action to give affect to the decision.”
[Underlining is ours]

Rule 14 deals with the decision of the Council on different proposals. Sub­rule (1) of Rule 14 provides that once a decision of the Council has been approved by the Chief Minister or the Minister presiding, the said approved decision shall be forwarded by the Secretary to the Council to the Lieutenant Governor.

256. Rule 23, elaborating on the classes of proposals or matters, enumerates as under:­

“Rule (23) The following classes of proposals or matters shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, namely:
(i) matters which affect or are likely to affect the peace and tranquility of the capital;
(ii) matters which affect or are likely to affect the interest of any minority community. Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the High Court of Delhi;
(iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V;
(v) matters pertaining to the Lieutenant Governor’s Secretariat and personnel establishment and other matters relating to his office;
(vi) matters on which Lieutenant Governor is required to make order under any law or instrument in force;
(vii) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence;
(viii) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those: and
(ix) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.”

Rule 23 lays down a list of proposals or matters which are essential to be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders.

257. Rule 25 of the TBR, 1993 states thus:­
“Rule 25. The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for: and
(b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
Sub­rule (a) of Rule 25 requires the Chief Minister to furnish to the Lieutenant Governor information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for.

258. Further, Rule 42 prescribes the procedure after a Bill is passed by the Legislative Assembly. It reads as under:­

“Rule 42. (1) When a Bill has been passed by the Legislative Assembly it shall be examined in the Department concerned and the Law Department and shall be presented to the Lieutenant Governor with:­
(a)A report of the Secretary of the Department concerned as to the reason, if any, why the Lieutenant Governor’s assent should not be given: and
(b)A report of the Law Secretary as to the reasons, if any, why the Lieutenant Governor’s assent should not be given or the Bill should not be reserved for consideration of the President.”

Rule 42 basically stipulates that when a bill has been passed by the Legislative Assembly of Delhi, the same shall be presented to the Lieutenant Governor along with a report of the Secretary of the department concerned and a report of the Law Secretary.

259. It is also pertinent to refer to Rules 49 and 50 falling under Chapter V titled ‘Referring to Central Government’ which read as follows:­

“CHAPTER­V
Referring to the Central Government
Rule 48 (Omitted)

Rule 49 In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour bv discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council.

Rule 50 In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.”

260. Rule 49 stipulates the procedure to be adopted in case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter. In such a scenario, as per Rule 49, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. If such an approach and attempt to settle a point of difference by discussion turns out to be futile and the difference of opinion persists, then the Lieutenant Governor may direct the matter to be referred to the Council. Rule 49 shows that settlement can be achieved by way of discussion. It further highlights how, by discussion and dialogue, a conflict can be avoided by adopting an ideology of harmonious co­existence which would again be in tune with the concepts of collaborative federalism, pragmatic federalism, federal balance and constitutional objectivity.

261. Rule 50, on the other hand, provides the procedure to the effect that in case of difference of opinion between the Council and the Lieutenant Governor with regard to any matter, the Lieutenant Governor is required to refer it to the Central Government for the decision of the President and shall act according to the decision of the President.

262. The approach of dialogue, settlement by discussion and suppressing conflicts by harmonious co­existence as delineated by Rule 49 should also be adopted in case of difference of opinion between the Lieutenant Governor on one hand and the Council on the other. Such an approach would not only result in acceptance of the role of the Lieutenant Governor but also help the NCT of Delhi to cherish the fruits of a responsive government as intended by the Sixty­ninth Constitutional Amendment.

263. We have referred to the relevant rules of TBR, 1993 which require that the Lieutenant Governor has to be apprised and kept in the loop of the various proposals, agendas and decisions taken by the Council of Ministers. However, a careful perusal of these rules nowhere suggests that the communication to the Lieutenant Governor is to obtain his concurrence or permission. The TBR, 1993 simply reflect the scheme envisaged for the governance of NCT of Delhi wherein just as an administrator in other UTs has to be apprised, likewise the Lieutenant Governor in Delhi is also to be informed and notified about the business being conducted.

264. The idea behind the aforesaid rules is just to keep the Lieutenant Governor notified of the proposals, agendas and decisions so that he is acquainted with the business carried out by the Council of Ministers. The said view is evident from the various rules which employ the words ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor and ’cause to be furnished to the Lieutenant Governor’.

265. Thus, the irresistible conclusion is that the Council is only required to communicate and inform its various proposals, agendas and decisions to the Lieutenant Governor so as to keep him apprised and to enable him to scrutinize the said proposals, agendas and decisions in order to exercise his powers as bestowed upon him under clause (4) of Article 239AA of the 1991 Act read with Rule 50 of the TBR, 1993.

266. It has to be clearly stated that requiring prior concurrence of the Lieutenant Governor would absolutely negate the ideals of representative governance and democracy conceived for the NCT of Delhi by Article 239AA of the Constitution. Any view to the contrary would not be in consonance with the intention of the Parliament to treat Delhi Government as a representative form of government.

267. The said interpretation is also in tune with our constitutional spirit which ensures that the voice of the citizens does not go unrecognized while making laws and this is only possible if the agency enacting and enforcing the laws comprises of the elected representatives chosen by the free will of the citizens. It is a well recognized principle of a true democracy that the power shall not remain vested in a single person and it is absolutely essential that the ultimate say in all matters shall vest with the representative Government who are responsible to give effect to the wishes of the citizens and effectively address their concerns.

268. A conjoint reading of the 1991 Act and the TBR, 1993 formulated in pursuance of Section 44 of the 1991 Act divulges that the Lieutenant Governor of Delhi is not a titular head, rather he enjoys the power of that of an administrator appointed by the President under Article 239AA. At the cost of repetition, we may reiterate that the constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the Lieutenant Governor as the nominee and appointee of the President on the other, who are required to function in harmony within the constitutional parameters. In the said scheme of things, the Lieutenant Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi, rather he should act as a facilitator.

269. We had earlier stated that Mr. Maninder Singh, learned Additional Solicitor General, had urged that the report of the Balakrishnan Committee should be taken aid of to interpret the constitutional provision and for the said purpose, he had placed reliance on Maumsell v. Olins92, Eastman Photographic Materials Company v. Comptroller­General of Patents, Designs and Trademarks93, Tikri Banda Dullewe v. Padma Rukmani Dullewe94, Black Clawson International Ltd. v. Papierwerke Waldhof­ Aschaffenburg95, R.S. Nayak v. A.R. Antulay96, Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi97 and TMA Pai Foundation v. State of Karnataka98. He had laid emphasis on paragraph 34 of the judgment in A.R. Antulay (supra). The relevant part of the said paragraph reads as follows:­

“34. …the basic purpose underlying all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament in enacting the legislation. Legislation is enacted to achieve a certain object. The object may be to remedy a mischief or to create some rights, obligations or impose duties. Before undertaking the exercise of enacting a statute, Parliament can be taken to be aware of the constitutional principle of judicial review meaning thereby the legislation would be dissected and subjected to microscopic examination. More often an expert committee or a joint parliamentary committee examines the provisions of the proposed legislation. But language being an inadequate vehicle of thought comprising intention, the eyes scanning the statute would be presented with varied meanings. If the basic purpose underlying construction of a legislation is to ascertain the real intention of the Parliament, why should the aids which Parliament availed of such as report of a special committee preceding the enactment, existing state of law, the environment necessitating enactment of legislation, and the object sought to be achieved, be denied to court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the Court of a substantial and illuminating aid to construction. Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of joint parliamentary committee, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction.”

270. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute. However, in the instance case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee.

U. Constitutional renaissance:
271. Before we proceed to record our conclusions, we think it apposite to reflect on a concept that illumines the basic tenet of constitutional governance having requisite veneration for constitutional philosophy and its applicability in the present context.

272. Though ordinarily the term ‘renaissance’ is used in the context of renewed activity especially pertaining to art and literature, yet the said word is not alien to the fundamental meaning of life in a solid civilized society that is well cultivated in culture. And, life, as history witnesses, gets entrenched in elevated civilization when there is fair, appropriate, just and societal interest oriented governance. In such a situation, no citizen feels like a subject and instead has the satisfaction that he is a constituent of the sovereign. When the citizens feel that there is participatory governance in accordance with the constitutionally envisaged one, there is prevalence of constitutional governance.

273. This prevalence is the recognition and acceptance of constitutional expectation from the functionaries created by it. It is to remain in a constant awakening as regards the text, context, perspective, purpose and the rule of law. Adherence to rationality, reverence for expected pragmatic approach on the bedrock of the constitutional text, context and vision and constant reflection on the valid exercise of the power vested tantamounts to resurgent constitutionalism. It may be understood in a different manner. Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its spirit and silence with a sense of reawakening to the vision of the great living document is, in fact, constitutional renaissance.

274. Let us come to the present context and elaborate the concept. The said concept garners strength when there is rational difference by the Lieutenant Governor on a constitutional prism, any statutory warrant, executive disharmony between the Centre and NCT of Delhi on real justifiable grounds, when an executive decision runs counter to the legislative competence and the decision of the Council of Ministers defeats the national interest. These are only a few illustrations. The Constitution does not state the nature of the difference. It leaves it to the wisdom of the Council of Ministers who have the collective responsibility and the Lieutenant Governor. That is the constitutional trust which expects the functionaries under the Constitution to be guided by constitutional morality, objective pragmatism and the balance that is required to sustain proper administration. The idea of obstinance is not a principle of welfare administration. The constitutional principles do not countenance a nomadic perception. They actually expect governance for the betterment of society, healthy relationship and mutual respect having an open mind for acceptance.

275. The goal is to avoid any disharmony and anarchy. Sustenance of constitutionally conferred trust, recognition and acceptance of the principle of constitutional governance, adherence to the principles and norms which we have discussed earlier and the constitutional conduct having regard to the elevated guiding precepts stated in the Preamble will tantamount to realization of the feeling of constitutional renaissance. When we say renaissance, we do not mean revival of any classical note with a sense of nostalgia but true blossoming of the constitutional ideals, realization and acceptance of constitutional responsibility within the boundaries of expression and silences and sincerely accepting the summon to be obeisant to the constitutional conscience with a sense of reawakening to the constitutional vision.

276. That is why, the 1991 Act and the TBR, 1993 conceive of discussion, deliberation and dialogue. The exercise of entitlement to differ has to be based on principle and supported by cogent reasons. But, the primary effort has to be to arrive at a solution. That is the constitutional conduct of a constitutional functionary.

V. The conclusions in seriatim:

277. In view of our aforesaid analysis, we record our conclusions in seriatim:­
(i) While interpreting the provisions of the Constitution, the safe and most sound approach for the Constitutional Courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The Courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution.
(ii) In a democratic republic, the collective who are the sovereign elect their law making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies.
(iii) Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. In order to realize our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few.
(iv) All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution.
(v) The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties.
(vi) Ours is a parliamentary form of government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of ‘aid and advice’. If a well deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated.
(vii) Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full­fledged effect to both these concepts.
(viii) The constitutional vision beckons both the Central and the State Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious co­existence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation.
(ix) The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain.
(x) There is no dearth of authorities with regard to the method and approach to be embraced by Constitutional Courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some emphasize that a mixed balance resulting in a unique methodology shall serve as the best tool. In spite of diverse views on the said concept, what must be kept primarily in mind is that the Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the framers of the Constitution or the Parliament.
(xi) In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the Constitutional Courts, with the vision to realize the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set up cannot be allowed to lose its purpose in simple semantics.
(xii) In the light of the ruling of the nine­Judge Bench in New Delhi Municipal Corporation (supra), it is clear as noon day that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme. The status of NCT of Delhi is sui generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor.
(xiii) With the insertion of Article 239AA by virtue of the Sixty­ninth Amendment, the Parliament envisaged a representative form of Government for the NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.
(xiv) The interpretative dissection of Article 239AA(3) (a) reveals that the Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.
(xv) A conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of NCTD is co­extensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament.
(xvi) As a natural corollary, the Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.
(xvii) The meaning of ‘aid and advise’ employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision­making power. He has to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.
(xviii) The words “any matter” employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.
(xix) The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.
(xx) The Transaction of Business Rules, 1993 stipulates the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the TBR, 1993 suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them every step of the way. The need for harmonious resolution by discussion is recognized especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239AAA.

(xxi) The scheme that has been conceptualized by the insertion of Articles 239AA and 239AB read with the provisions of the GNCTD Act, 1991 and the corresponding TBR, 1993 indicates that the Lieutenant Governor, being the Administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology “send a copy thereof to the Lieutenant Governor”, “forwarded to the Lieutenant Governor”, “submitted to the Lieutenant Governor” and “cause to be furnished to the Lieutenant Governor” employed in the said rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof.
(xxii) The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionized. They should feel that they are serving the constitutional norms, values and concepts.

(xxiii) Fulfillment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a “rational anarchist”, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realization of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.

278. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench.

………………………………..CJI (Dipak Misra)
………………………………….J. (A.K. Sikri)
…………………………………..J. (A.M. Khanwilkar)

New Delhi; July 04, 2018

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL No. 2357 OF 2017

GOVT OF NCT OF DELHI …..APPELLANT
Versus
UNION OF INDIA ….RESPONDENT

WITH

CONTEMPT PETITION (C) No.175/2016
In
WRIT PETITION (Crl.) No.539/1986,
CIVIL APPEAL No.2360/2017,
CIVIL APPEAL No.2359/2017,
CIVIL APPEAL No.2363/2017,
CIVIL APPEAL No.2362/2017,
CIVIL APPEAL No.2358/2017,
CIVIL APPEAL No.2361/2017,
CRIMINAL APPEAL No.277/2017,
AND
CIVIL APPEAL No.2364/2017

JUDGMENT

Dr D Y CHANDRACHUD, J
INDEX

A) Introduction

B) Constitutional Morality

C) Constitutional Interpretation

D) Part VIII of The Constitution: The Union Territories

E) Cabinet Form of Government

– Collective Responsibility

– Aid and Advice

F) The Nature of Executive Power

G) Constitutional History of the NCT

– The Government of Part C States Act, 1951

– The Government of Union Territories Act, 1963

– The Delhi Administration Act, 1966

– The Balakrishnan Committee

H) NCT: A Special Class among Union Territories?

I) The Government of National Capital Territory of Delhi Act, 1991

J) The Transaction of Business Rules, 1993

K) Precedents

– Literal Interpretation

– Relationship between Centre and Union Territories

– Decision in NDMC

– General Clauses Act

– “Insofar as any such matter is applicable to Union territories”

L) Construction of the proviso to Article 239AA(4)

M) Conclusions

A Introduction
1 A batch of petitions in the Delhi High Court addressed unresolved issues between the Lieutenant Governor of the National Capital Territory and its Council of Ministers headed by the Chief Minister. The judgment of the Delhi High Court, delivered on 4 August 2016, travelled to this Court. When the Civil Appeals were heard, a Bench consisting of Hon’ble Mr Justice A K Sikri and Hon’ble Mr Justice R K Agrawal, in an order dated 15 February 2017 was of the opinion that the appeals should be heard by a Constitution Bench as substantial questions of law about the interpretation of Article 239AA of the Constitution are involved.

2 This batch of cases is about the status of Delhi, after the Sixty-ninth constitutional amendment1, but more is at stake. These cases involve vital questions about democratic governance and the role of institutions in fulfilling constitutional values. The Constitution guarantees to every individual the freedom to adopt a way of life in which liberty, dignity and autonomy form the core. The Constitution pursues a vision of fulfilling these values through a democratic polity. The disputes which led to these cases tell us how crucial institutions are to the realization of democracy. It is through them that the aspirations of a democratic way of life, based on the rule of law, are fulfilled. Liberty, dignity and autonomy are constraining influences on the power of the state. Fundamental human freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern. In a society such as ours, which is marked by a plurality of cultures, a diversity of tradition, an intricate web of social identity and a clatter of ideologies, institutional governance to be robust must accommodate each one of them. Criticism and dissent form the heart of democratic functioning. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision making positions within them. Hence, these cases are as much about interpreting the Constitution as they are about the role of institutions in the structure of democratic governance and the frailties of those who must answer the concerns of citizens.

3 In the first of a series of articles in the New York Times of 14 December 2017, David Brooks laments events which occurred in various parts of the world, casting a shadow on democracy. Liberal democracy seemed to triumph with the fall of the Berlin wall in 1989 and the dismantling of apartheid in South Africa. Many of those aspirations are continuously under challenge. The foundation for addressing the aspirations of a democratic spring are reflected in Brooks’ article titled – ironically – “the Glory of Democracy”. Drawing from Thomas Mann’s “The Coming Victory of Democracy” (1938), he has this to say:

“Democracy, Mann continues, is the only system built on respect for the infinite dignity of each individual man and woman, on each person’s moral striving for freedom, justice and truth. It would be a great error to think of and teach democracy as a procedural or political system, or as the principle of majority rule.

It is a “spiritual and moral possession.” It is not just rules; it is a way of life. It encourages everybody to make the best of their capacities – holds that we have a moral responsibility to do so. It encourages the artist to seek beauty, the neighbour to seek community, the psychologist to seek perception, the scientist to seek truth.

Monarchies produce great paintings, but democracy teaches citizens to put their art into action, to take their creative impulses and build a world around them. “Democracy is thought; but it is thought related to life and action.” Democratic citizens are not just dreaming; they are thinkers who sit on the town council. He quotes the philosopher Bergson’s dictum: “Act as men of thought, think as men of action.”2

While we have to interpret the Constitution in deciding this reference, it is well to remind ourselves that how citizens respond to their statesmen has a powerful role in giving meaning to the fine print of law.

B Constitutional Morality
4 The Constitution was adopted in an atmosphere of expectation and idealism. The members of the Constituent Assembly had led the constitutional project with a commitment to the future of a nascent nation. “India’s founding fathers and mothers”, Granville Austin observes, “established in the Constitution both the nation’s ideals and the institutions and processes for achieving them”.3 These ideals were “national unity and integrity and a democratic and equitable society”4. The Constitution was designed “to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice”5. All this was to be achieved through a democratic spirit using constitutional and democratic institutions.6

5 Democracy is not limited to electing governments. It generates aspirations and inspires passions. Democracy is based on “the recognition that there is no natural source of authority that can exercise power over individuals”.7 When India attained independence, it faced a major dilemma. Democracy as an ideal had developed in the course of the nationalist struggle against colonial rule. Democratic political institutions were still to develop, at any rate fully: “Democracy emerged in India out of a confrontation with a power imposed from outside rather than an engagement with the contradictions inherent in Indian society … In the West, the democratic and industrial revolutions emerged together, reinforcing each other and slowly and steadily transforming the whole of society. The economic and social preconditions for the success of democracy grew along with, and sometimes in advance of, the political institutions of democracy. In India, the political argument for democracy was adopted by the leaders of the nationalist movement from their colonial rulers and adapted to their immediate objective which was freedom from colonial rule. The building of new political institutions took second place, and the creation of the economic and social conditions for the successful operation of those institutions, such as education, health care, and other social services, lagged well behind.”8

6 The framers of the Constitution were aware of the challenges which the newly instituted democracy could face. In his address to the Constituent Assembly, Dr Ambedkar stated: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”.9 To tackle these challenges, the Constitution envisaged the existence of a responsible and representative government. Provisions regarding administration of democracy were incorporated, in detail, into the Constitution by the members of the Constituent Assembly. Dr Ambedkar made an impassioned plea that the core values of Indian democracy, to be protected and sustained, ought to be guided by the presence of constitutional morality.

7 While moving the Draft Constitution in the Constituent Assembly on November 4, 194810, Dr Ambedkar quoted the Greek historian, Grote:
“By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.”

Dr Ambedkar made it clear that constitutional morality was to be cultivated and learned. Constitutional morality was not a “natural sentiment” and its diffusion could not be presumed. While highlighting that the diffusion of constitutional morality is indispensable for “the peaceful working of the democratic constitution”, Dr Ambedkar observed that the form of the Constitution had to be in harmony with the form of its administration:

“One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.” (emphasis added)

8 If the moral values of our Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values. In order to truly understand what constitutional morality reflects, it is necessary to answer “what it is that the Constitution is trying to say” and to identify “the broadest possible range… to fix the meaning of the text”11. Bhargava’s work titled “Politics and Ethics of the Indian Constitution”12 focuses on the necessity to identify the moral values of the Constitution:
“There is… a pressing need to excavate the moral values embedded in the Constitution, to bring out their connections, and to identify the coherent or not-so-coherent ethical worldviews within it. It is not implausible to believe that these values are simply out there, holding their breath and waiting to be discovered. The Constitution is a socially constructed object, and therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It is high time we identified these interpretations and debated their moral adequacy.”13

9 Constitutional morality does not mean only allegiance to the substantive provisions and principles of the Constitution. It signifies a constitutional culture which each individual in a democracy must imbibe. Pratap Bhanu Mehta identifies certain features of constitutional morality- chief amongst them being liberal values- which governed the making of India’s Constitution and created expectations from the polity:
“The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.”14 (Emphasis supplied)

One of the essential features of constitutional morality, thus, is the ability and commitment to arrive at decisions on important issues consensually. It requires that “despite all differences we are part of a common deliberative enterprise.”15 It envisages partnership and coordination between various institutions created by the Constitution. Mehta has underlined the importance of constitutional partnerships by referring to the working of the Constituent Assembly:

“The ability to work with difference was augmented by another quality that is rarer still: the ability to acknowledge true value. This may be attributed to the sheer intellectualism of so many of the members. Their collective philosophical depth, historical knowledge, legal and forensic acumen and sheer command over language is enviable. It ensured that the grounds of discussion remained intellectual. Also remarkable was their ability to acknowledge greatness in others. It was this quality that allowed Nehru and Patel, despite deep differences in outlook and temperament, to acknowledge each other. Their statesmanship was to not let their differences produce a debilitating polarization, one that could have wrecked India. They combined loyalty and frankness.”16

10 Constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices. Frohnen and Carey formulate the demands of the concept thus:
“Constitutional moralities… can be understood as anticipated norms of behavior or even duties primarily on the part of individuals within our constitutional institutions. We use the term morality and refer to constitutional morality with regard to these norms or duties principally because of the purpose they serve; they can be viewed as imposing an obligation on individuals and institutions to ensure that the constitutional system operates in a coherent way, consistent with its basic principles and objectives.”17

11 Another major feature of constitutional morality is that it provides in a Constitution the basic rules which prevent institutions from turning tyrannical. It warns against the fallibility of individuals in a democracy, checks state power and the tyranny of the majority. Constitutional morality balances popular morality and acts as a threshold against an upsurge in mob rule: “It is important not to forget that human beings are fallible, that they sometimes forget what is good for them in the long run, and that they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a framework of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They make some dimensions of the political process beyond the challenge of ordinary politics.”18

12 No explanation of constitutional morality will be complete without understanding the uniquely revolutionary character of the Constitution itself. Granville Austin has referred to the Indian Constitution as a “social revolutionary” document, the provisions of which are aimed at furthering the goals of social revolution.19 Austin described the main features of the Indian Constitution as follows:

“It was to be a modernizing force. Social revolution and democracy were to be the strands of the seamless web most closely related. Democracy, representative government, personal liberty, equality before law, were revolutionary for the society. Social-economic equitableness as expressed in the Directive Principles of State Policy was equally revolutionary. So were the Constitution’s articles allowing abolishing untouchability and those allowing for compensatory discrimination in education and employment for disadvantaged citizens.”20 (Emphasis supplied)

The core of the commitment to social revolution, Austin stated, lies in the Fundamental Rights and in the Directive Principles of State Policy, which are the “conscience of the Constitution” and connect India’s future, present, and past.21 Constitutional morality requires the existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain.

13 Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self-renewal”22. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly. Andre Beteille in “Democracy and its Institutions” (2012) speaks of the significance of constitutional morality:

“To be effective, constitutional laws have to rest on a substratum of constitutional morality… In the absence of constitutional morality, the operation of a Constitution, no matter how carefully written, tends to become arbitrary, erratic, and capricious. It is not possible in a democratic order to insulate completely the domain of law from that of politics. A Constitution such as ours is expected to provide guidance on what should be regulated by the impersonal rule of law and what may be settled by the competition for power among parties, among factions, and among political leaders. It is here that the significance of constitutional morality lies. Without some infusion of constitutional morality among legislators, judges, lawyers, ministers, civil servants, writers, and public intellectuals, the Constitution becomes a plaything of power brokers.”23

14 Constitutional morality underscores the ethics of politics in a country. It gives politics the identity to succeed. In his last address to the Constituent Assembly on November 25, 1949, Dr Ambedkar discussed the importance of the role of the people and political parties in a constitutional democracy:
“I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”24

He also invoked John Stuart Mill to caution the nascent Indian democracy of the perils of personifying institutions or laying down liberty “at the feet of even a great man, or to trust him with power which enables him to subvert their institutions”. In Dr Ambedkar’s words: “[I]n India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship.”25

Institution building is thus a facet of constitutional morality. It envisages an institutional basis for political behaviour. It involves that the political parties and the political process address issues affecting the public at large. Constitutional morality reduces the gap between representation and legitimacy.26 Justice Dipak Misra (as the learned Chief Justice then was) held in Manoj Narula v Union of India27 that:
“The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints”.

It is only when political conflicts are regulated through negotiations and accommodation that the enforcement of constitutional principles can be achieved.

15 Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past from tearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes:
“Of necessity, constitutions are unfinished. What is explicit in the text rests on implicit understandings; what is stated rests on what is unstated.”28

16 Constitutional morality provides a principled understanding for unfolding the work of governance. It is a compass to hold in troubled waters. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. Our expectations may be well ahead of reality. But a sense of constitutional morality, drawn from the values of that document, enables us to hold to account our institutions and those who preside over their destinies. Constitutional interpretation, therefore, must flow from constitutional morality.

C Constitutional Interpretation
17 The primary task before the Court here, as in other constitutional cases, is to interpret the Constitution. This reflects a truism. For, while deciding what the Constitution means, we must understand what it says. First and foremost, in understanding the text of the Constitution, it must be borne in mind that the Constitution is not merely a legal document. The Constitution embodies a political vision of a plural democratic polity. This political vision combines with the values which the founding fathers infused to provide a just social compact in which individual aspirations for dignity and liberty would be achieved. Hence, any interpretation of the Constitution must be unabashed in accepting the importance of the Constitution as a political document which incorporates a blue print for democratic governance. The values which the Constitution as a political document incorporates, provide the foundation for understanding its text. It is in that sense that successive generations of judges have reminded themselves that it is, after all, a Constitution that we are expounding. The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. Constitutional history embodies events which predate the adoption of the Constitution. Constitutional history also incorporates our experiences in the unfolding of the Constitution over the past sixty eight years while confronting complex social and political problems. Words in a constitutional text have linkages with the provisions in which they appear. It is well to remember that each provision is linked to other segments of the document. It is only when they are placed in the wide canvas of constitutional values that a true understanding of the text can emerge. The principle that the text has to be deduced from context reflects the limitations in understanding the Constitution only as a legal document. To perceive the Constitution as a purely legal document would be an injustice to the aspirations of those who adopted it and a disservice to the experience of our society in grappling with its intractable problems. Justice HR Khanna in Kesavananda Bharati v State of Kerala29 (“Kesavananda”) held thus:

“A Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document… A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful.”

18 The second value which must be borne in mind is that the Constitution recognises the aspirations of popular sovereignty. As its Preamble tells us, the document was adopted by “We the People of India”. The Preamble sets forth at the outset the creation of a “sovereign… democratic, republic”. It is through the expression of the sovereignty of the people and on the cornerstone of a democratic and republican form of government that the Constitution seeks to achieve justice, liberty, equality and fraternity. The width of our constitutional aspirations finds abundant reflection in the plurality and diversity of the elements which it comprehends within justice, liberty, equality and fraternity. Justice incorporates its social, economic, and political manifestations. Liberty incorporates freedom of thought, expression, belief, faith and worship. Equality is defined in its substantive sense to include equality of status and opportunity. Fraternity seeks to assure dignity to the individual while, at the same time, ensuring the unity and integrity of the nation.

19 There are four abiding principles which are essential to understanding the content of the Constitution. The first is that as a political document, the Constitution is an expression of the sovereignty of the people. The second is that the Constitution seeks to achieve its vision of a political and social ordering on the basis of democracy. A democratic form of government recognises that sovereignty resides within the people. Popular sovereignty can exist when democracy is meaningful. The third principle is that the Constitution adopts a republican form of government in which the powers of sovereignty are vested in the people and are exercised directly or through their elected representatives. The fourth, which is not the least in importance, is the secular ideology of the Constitution. For, it is on the foundation of a secular order that freedom, liberty, dignity and equality to every citizen is achieved.

20 These principles, it is well to remind ourselves, are not just political exhortations. They constitute the essence and substance of the Constitution and provide the foundation for the fine print of governance. It is through the expression of popular sovereignty that the Constitution has provided an assurance for the enforcement of equality and of equal protection of the law. The four founding principles constitute the means of achieving accountability and amenability to the rule of law. The democratic method of governing the country is a value which is intrinsic to the Constitution. Democracy as a way of life is also instrumental in achieving fundamental freedoms which the Constitution assures to each individual. Each of the four principles has an inseparable connect. They provide the basis on which the Constitution has distributed legislative and executive power between the Union and the states. They provide the foundation for ensuring basic human freedoms in the realisation of dignity, liberty and autonomy. They embody the architecture for the governance of the nation. In many respects, the complexity of our Constitution is a reflection of the intricate cultural and social structures within Indian society. The Constitution has attempted to bring about an equilibrium in which a diversity of tradition, plurality of opinion and variations of culture can co-exist in one nation. To ignore the infinite variety which underlies our constitutional culture is to risk its cohesion. The integrity of the nation is founded on accepting and valuing co-existence. Constitutional doctrine must be evolved keeping in mind these principles.

21 Unlike many other constitutional texts in the democratic world, the Indian Constitution has lived through a multitude of amendments. In Puttaswamy30, this Court had held:
“The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future.”

The exercise of the amendatory power cannot be construed as a reflection of the deficiency of its original text, as much as it is a reflection of the felt need to create new institutions of governance, recognize new rights and to impose restraints upon the assertion of majoritarian power. Over time, the Constitution was amended to provide constitutional status to local self-governing bodies, such as the Panchayats in Part IX, the municipalities in Part IXA and co- operative societies in Part IXB. These structures of governance have been constitutionally entrenched to enhance participatory and representative democracy. In other amendments, new rights have been expressly recognized such as the right to free and compulsory education for children between the ages of six and fourteen in Article 21A. As the nation gained sobering experiences about the excess of political power during the Emergency, the constituent power responded by introducing limitations (through the Forty Fourth Amendment) on the exercise of the emergency powers under Article 352 and by circumscribing the power to override elected governments in the states under Article 356.

22 The basic structure doctrine was evolved by judicial interpretation in Kesavananda to ensure that the fundamentals of constitutional governance are not effaced by the exercise of the constituent power to amend the Constitution. The postulate of the doctrine is that there are values which are so fundamental and intrinsic to the democratic way of life, a republican form of government and to the preservation of basic human freedoms, that these must lie outside the power of legislative majorities to override by the exercise of constituent powers. The doctrine was a warning to “a fledgling democracy of the perils of brute majoritarianism”31. The basic structure doctrine and the power of judicial review have ensured (in the course of the previous thirty four years) the preservation of basic constitutional safeguards and the continuance of constitutional institutions accountable to the sovereignty of the people. The basic structure doctrine imposes a restraint on the exercise of the constituent power. Equally, it is necessary to remember that the exercise of the constituent power may in certain cases be regarded as enhancing the basic structure. The constituent power enhances the basic structure when it recognizes new sets of human freedoms, sets up new structures of representative governance in the constitutional text or imposes restraints on the power of the state to override popularly elected institutions. Secularism, which is inherent in the entire constitutional framework and flows from fundamental rights guaranteed in Part III, is a part of the basic structure of the Constitution.32 Secularism is based on the foundations of constitutional morality and reflects the idea of our democracy. The insertion of the word “Secular” into the Preamble of the Constitution, by the 42nd amendment, did not redefine the Constitution’s identity. The amendment formally recognized the bedrock of the constitutional scheme. The amendment solidified the basic structure of the Constitution.

23 Democracy has been held, by a Constitution Bench of this Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic structure of our Constitution. The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating a democratic form of governance to a constitutional status for the National Capital Territory. In interpreting such exercises of the constituent power which fortify the basic structure, the meaning of the constitutional text must be guided by the intent underlying such exercises of the constituent power. A nine-judge Bench of this Court in I.R. Coelho v State of Tamil Nadu34 had held thus:

“The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law. The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making.” (emphasis supplied)

It is in this background that it would be necessary to turn to the provisions of Part VIII of the Constitution.

D Part VIII of The Constitution: The Union Territories
24 Part VIII of the Indian Constitution, prior to 1956, dealt with Part C of the First Schedule. Part VIII was amended by the Seventh Amendment to the Constitution in 1956. Simultaneously, the First Schedule was amended by the Seventh Amendment (together with Article 1). In place of the Part A, B and C States, the Constitution now provides a division of the territory of the nation between the States and the Union Territories. While clause 1 of Article 1 stipulates that India is a Union of States, clause 2 incorporates the States and the Union Territories of the First Schedule. The territory of India, as Clause 3 of Article 1 provides, comprises of :
(i) The territories of the States;

(ii) The Union territories; and

(iii) Territories which may be acquired.

25 Article 239 provides thus:

“239. (1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.”
Clause 1 of Article 239 has several elements, which are significant to understanding its content:
(i) Clause 1, as its opening words indicate, is subject to Parliament providing “otherwise… by law”;
(ii) Every Union territory is administered by the President;
(iii) Administration of a Union territory by the President is to such extent as the President “thinks fit”;
(iv) Administration by the President is through the office of an Administrator; and
(v) The Administrator is appointed by the President with a designation as he will specify.

Article 239A, which was inserted by the fourteenth amendment to the Constitution in 1962, provides as follows:
“239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.—
(1) Parliament may by law create for the Union territory of Puducherry—
(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or
(b) a Council of Ministers,

or both with such constitution, powers and functions, in each case, as may be specified in the law.

(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.”
Article 239A applies to the Union territory of Puducherry (Goa, Daman and Diu were excluded with effect from 1987 by the Goa, Daman and Diu Reorganisation Act, 1987).

26 Article 239A is enabling. It enables Parliament to enact a law for the Union territory so as to create a legislature or a Council of Ministers or both. In creating a legislature, Parliament is left free to determine whether the legislative body should be entirely elected or should consist of a certain number of nominated legislators. Parliament, in its legislative power, may decide either to create a legislature or a Council of Ministers. Whether to do so, in the first place, is left to its discretion. Whether one or both of such bodies should be created is also left to the legislative authority of Parliament. If it decides to enact a law, Parliament is empowered to specify the constitutional powers and functions of the legislature and of the Council of Ministers. While the Constitution provides an enabling provision, the setting up of a legislature, the creation of a Council of Ministers and the ambit of their authority are to be governed by an ordinary law to be enacted by Parliament. Such a law, clause 2 clarifies, would not constitute an amendment of the Constitution under Article 368 even if it were to contain provisions which amend or have the effect of amending the Constitution. Creating democratic institutions for governing Union territories under Article 239A was left to the legislative will of Parliament.

27 In contrast to the provisions of Article 239A is the text which the Constitution has laid down to govern Delhi. The marginal note to Article 239AA provides that the Article makes “special provisions with respect to Delhi”. Article 239AA provides thus:

“239AA. Special provisions with respect to Delhi.—
(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.
(2) (a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void : Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory :

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.

(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion : Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.

(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.

(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.

(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Puducherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be.”

Article 239AA is a product of the exercise of the constituent power, tracing its origins to the sixty ninth amendment which was brought into force on 1 February 1992. Under clause 1, with the commencement of the Constitution (Sixty Ninth Amendment) Act 1991, the Union Territory of Delhi is called the National Capital Territory of Delhi. Its Administrator, who is appointed under Article 239, is designated as the Lieutenant Governor. The administrator appointed by the President under Article 239(1) is designated as the Lieutenant Governor for the National Capital Territory. The source of the power to appoint the Lieutenant Governor is traceable to Article 239(1).

28 Clause 2 of Article 239AA contains a constitutional mandate that there shall be a legislative assembly for the NCT. This is unlike Article 239A which left it to the discretion of Parliament to create a legislature by enacting a law for the Union territories governed by that provision. Article 239AA imprints the legislative assembly for the NCT with a constitutional status. Its representative character is reflected in the mandate that the members of the legislative assembly shall be “chosen by direct election from territorial constituencies” in the NCT. The necessity of direct election underlines the rule of participatory democracy and of the members of the legislative assembly being representatives of the people residing in the territorial constituencies comprised in the NCT. Parliament has been assigned the role of regulating through a law, the number of seats in the legislative assembly, reservation for the scheduled castes, defining the division of the NCT into territorial constituencies and of elucidating the functioning of the assembly in all matters. The importance which the Constitution ascribes to the status of the legislative assembly is evinced by the adoption of the provisions of Articles 324 to 327 and 329 in relation to the NCT as they apply in the case of the legislative assembly of a state. These articles (which are contained in Part XV of the Constitution) ascribe constitutional status to the Election Commission of India and assign to it the task of superintending, directing and controlling the conduct of all elections. Article 325 is a guarantee against discrimination based on religion, race, caste or sex. Article 326 embodies the principle of adult suffrage. Article 327 empowers Parliament to enact a law in regard to the elections to the legislatures. Article 329 imposes a restraint on interference by courts in electoral matters. The Constitution has considered the institutional existence of a legislative assembly for Delhi to be a matter of such importance as to be elevated to a constitutional requirement in clause 2 of Article 239AA and to warrant the guarantee of free and fair elections which is enforced through the constitutionally entrenched position of the Election Commission of India.

29 Clause 3 of Article 239 AA defines the legislative powers of the legislative assembly for the NCT. Sub clause (a) empowers the legislative assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent lists to the Seventh Schedule of the Constitution. The ability of the legislative assembly is circumscribed “insofar as any such matter is applicable to Union territories”. The legislative assembly can hence enact legislation in regard to the entries in the State and Concurrent lists to the extent to which they apply to a Union territory. Of equal significance is the exception which has been carved out : Entries 1, 2 and 18 of the State List (and Entries 64, 65 and 66 insofar as they relate to Entries 1,2 and 18) lie outside the legislative powers of the legislative assembly of NCT. Entries 1, 2, and 18 of the State List are thus:

“1. Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power).
2. Police (including railway and village police) subject to the provisions of entry 2A of List I. 18.Land, this is to say, rights in o over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; and improvement and agricultural loans; colonization.”

The subjects of public order, police and land do not lie within the domain of the legislative assembly. Entries 64, 65 and 66 provide thus :

“64.Offences against laws with respect to any of the matters in this List.

65.Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
66.Fees in respect of any of the matters in this List, but not including fees taken in any court.”
The legislative assembly is disabled from enacting laws governing the above entries (which deal with offences against laws referable to the State List, jurisdiction of courts and fees) insofar as they relate to public order, the police and land. This is a constitutional indication of the fact that the NCT has been considered to be of specific importance from the perspective of the nation to exclude three important areas which have a vital bearing on its status as a national Capital. Apart from the exclusions, the over-arching importance of the regulatory power of Parliament is underlined by the conferment upon Parliament of legislative power over State as well as Concurrent List subjects in the Seventh Schedule. Unlike state legislative assemblies which wield legislative power exclusively over the State List, under the provisions of Article 246(3), the legislative assembly for NCT does not possess exclusive legislative competence over State List subjects. By a constitutional fiction, as if it were, Parliament has legislative power over Concurrent as well as State List subjects in the Seventh Schedule. Sub clause (c) of clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the legislative assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in future to override or modify the law enacted by the legislative assembly. Hence, the provisions of clause 2 and clause 3 of Article 239AA indicate that while conferring a constitutional status upon the legislative assembly of NCT, the Constitution has circumscribed the ambit of its legislative Powers firstly, by carving out certain subjects from its competence (vesting them in Parliament) and secondly, by enabling Parliament to enact law on matters falling both in the State and Concurrent lists. Moreover, in the subjects which have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament.

E Cabinet Form of Government
30 Before deliberating upon the nature and extent of the executive power of the NCT, it is necessary to discuss the essential features of the cabinet form of government, which are of paramount importance in the current context.

Collective Responsibility
31 Collective responsibility is a cornerstone of the Westminster model. Initially developed35 as a constitutional convention in Britain between 1780 and 1832, it began to appear36 in text-books in the 1860s and 1870s. In 1867, Walter Bagehot, in his classic work titled “The English Constitution”, called the “House of Commons” as “a real choosing body”, which decides the path that the nation would follow.37 The consequence of such a systemic expectation in the British Parliamentary system, Bagehot declared, was that the public can, “through Parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes”38. The responsibility of Ministers was set as their liability “to have all their public acts discussed in Parliament”39. The Cabinet was defined as “a collective body bound together by a common responsibility”.40 Later, Lord Salisbury formulated this common responsibility thus:

“[F]or all that passes in a Cabinet, each Member of it who does not resign is absolutely and irretrievably responsible, and that he has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by one of his Colleagues… It is only on the principle that absolute responsibility is undertaken by every Member of a Cabinet who, after a decision is arrived at, remains a Member of it, that the joint responsibility of Ministers to Parliament can be upheld, and one of the most essential conditions of Parliamentary responsibility established.”41 (Emphasis supplied)

Ministers were liable to lose their offices, if they failed to retain the confidence of the House of Commons or the Parliament.
In the 1880s, Dicey, “Law of the Constitution”, propounded that:

“[It] is now well-established law that the Crown can act only through Ministers and according to certain prescribed forms which absolutely require the co-operation of some Minister, such as a Secretary of State or the Lord Chancellor, who thereby becomes not only morally but legally responsible for the legality of the act in which he takes part. Hence, indirectly but surely, the action of every servant of the Crown, and therefore, in effect of the Crown itself, is brought under the supremacy of the land. Behind parliamentary responsibility lies legal liability, and the acts of Ministers no less than the acts of subordinate officials are made subject to the rule of law.”42

This fixed the responsibility of the Cabinet for the “general conduct of affairs”43 of the government.

32 In the twentieth century, Sir Ivor Jennings conceptualized collective responsibility of a Cabinet Government, thus:
“A Government that cannot make up its mind on a fundamental issue ought not to be the Government and will be so regarded in the constituencies. Its fall may be regarded as imminent.”44

The conduct of the cabinet determines the fate of the government.
33 Collective responsibility of Ministers to the Parliament is comprehended in two aspects: (i) collective responsibility of Ministers for the policies of the government; and (ii) individual responsibility of Ministers for the work of their governments.45 The idea behind this bifurcation, as explained by Birch, is to hold a government “continuously accountable for its actions, so that it always faces the possibility that a major mistake may result in a withdrawal of Parliamentary support.”46 In the British system, collective responsibility work on basis of certain precepts which define and regulate the existence of government. Geoffrey Marshall (1989) identifies three strands within the principle47:

i) The confidence principle: a government can only remain in office for so long as it retains the confidence of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote;
ii) The unanimity principle: all members of the government speak and vote together in Parliament, save in situations where the Prime Minister and the Cabinet themselves make an exception such as a free vote or an ‘agreement to differ’; and
iii) The confidentiality principle: unanimity, as a universally applicable situation, is a constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion within the Cabinet and the Government.

34 A study conducted by the London School of Economics and Political Science in 2007 examined the individual and collective performance of Ministers between 1945-1997. The findings of the study revealed that though the principle acted “as a form of protection for an individual Minister when policies pursued in his department are deemed to have failed”, it also induced a cost for being a member of the government. All the Ministers of the government, as a consequence of the principle of solidarity, were perceived as jointly sharing the responsibility of policy failure.48 The doctrine of collective responsibility has evolved as one of the indispensable features of the parliamentary system of government and reflects the political engagement between government and Parliament. In a parliamentary democracy, the nuances of the doctrine are political.49 To maintain the notion of “collegiality and coherence”, the ministers work as a team. In the Australian context, Wanna (2012) postulates that collective responsibility thereby acts as an under-flowing current necessary for the survival of a government:

“To survive as a government, ministries must show they can maintain the confidence of the house, put up a credible front to their political opponents and the media, and as a working ministry find ways to deal with the business of state, much of which will involve making collective decisions and imposing collegial executive authority.”50

35 Granville Austin observes that the framers of India’s Constitution conceived that the democratic values of the Constitution would be achieved in “the institutions of direct, responsible government”51. The members of the Constituent Assembly borrowed the Parliamentary-Cabinet form of government from British constitutional theory and adopted it into our Constitution.52 Though the Constituent Assembly did not adopt British constitutional conventions in the written form, collective responsibility of the Cabinet was specifically incorporated into India’s constitutional framework.53

There is a direct relationship between the principle of collective responsibility and government accountability. This relationship is conceptualized in “The Oxford Companion to Politics in India”: “[A]ccountability can be defined in terms of outcomes rather than processes of government… It also includes the criterion of responsiveness to changes in circumstances that alter citizen needs and abilities… In other words, accountability refers to the extent to which actual policies and their implementation coincide with a normative ideal in terms of what they ought to be… In this broad sense, accountability amounts to evaluating the nature of governance itself, in outcome- oriented terms.”54

The Oxford Handbook of the Indian Constitution55 (2016) adverts to several facets of collective responsibility:
“Collective responsibility has several facets. First, ministers act as a common unit; cabinet decisions are binding on all ministers. Disagreements, if any, may be aired in private. Ministers, however, speak in one voice and stand by one another in Parliament and in public. Those that cannot reconcile themselves with particular government policies, or are unwilling to defend them in public, must resign. Conversely, decisions of particular ministers, unless overruled, are decisions of the government.”

The principle has also been considered as a political component which political parties in power invoke to maintain party discipline.56 Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by the subordinate officers of their respective departments:

“Governing is a complex affair; hundreds of officials in dozens of departments make many decisions on a daily basis… These officials are also part of the executive, and ministers are responsible for those that serve in their departments… Ordinarily, ministers busy themselves with policy issues; matters of implementation are usually left to officials over whom ministers command little or no oversight. Yet, when they act, subordinates notionally do so on behalf of ministers. Ministers, therefore, cannot seek refuge in ignorance. Nor can they absolve themselves by pointing to their officers. Both inside and outside Parliament, they are accountable for their departmental shortcomings.”57

36 Collective responsibility, as a principle and practice, has been given effect authoritatively in several judgments of this Court. The Constitution Bench of this Court, in Rai Sahib Ram Jawaya Kapur v The State of Punjab58, examined the functions of the executive. The Court held that the President is “a formal or constitutional head of the executive” and that the “real executive powers” are vested in the Ministers or the Cabinet:

“Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State… In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part”. The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.” (Emphasis supplied)

The relationship between the responsibility of the Cabinet and individual Ministers was dealt with in a Constitution Bench decision in A Sanjeevi Naidu v State of Madras59:
“The cabinet is responsible, to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility.”

In Samsher Singh v State of Punjab60, Chief Justice AN Ray (speaking for the majority) opined that Ministers must accept responsibility for every executive act:
“In England, the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the Constitutional head are not different.”

A seven-judge Bench decision of this Court in State of Karnataka v Union of India61 explained the substance of a government’s collective responsibility. All the Ministers are treated as one entity. A government could stay in office only so long as it commands the support and confidence of a majority of the Members of the Legislature. The government is politically responsible for the decisions and policies of each of the Ministers and of his department. The sanction against any government action was held to be embodied in the principle of collective responsibility, which is enforced by the “pressure of public opinion” and expressed specifically in terms of withdrawal of political support:

“The object of collective responsibility is to make the whole body of persons holding Ministerial office collectively, or, if one may so put it, “vicariously” responsible for such acts of the others is are referable to their collective volition so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.”

The decision in Common Cause, A Registered Society v Union of India62 delivered by a three-judge Bench held that the concept of collective responsibility is essentially a “political concept” and that the country is governed by the party in power on the basis of the policies endorsed by its Cabinet. The Court held that the concept of collective responsibility has two meanings:
“The first meaning which can legitimately be ascribed to it is that all members of a Govt. are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet. The other meaning is that Ministers, who had an opportunity to speak for or against the policies in the Cabinet are thereby personally and morally responsible for its success and failure.”

The decision in Subramanian Swamy v Manmohan Singh63 theorises that collective responsibility may be enforced only politically, thereby making its legal implications unclear. In this case, a Minister was charged with committing grave irregularities in the grant of telecom licenses. The appellant had provided documents to the Prime Minister’s Office (PMO) for the grant of sanction to prosecute under the Prevention of Corruption Act, 1988. This Court held:

“In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise Respondent No. 1 [Prime Minister] about seriousness of allegations made by the Appellant… By the very nature of the office held by him, Respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to Respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if Respondent No. 1 had been apprised of the true factual and legal position regarding the representation made by the Appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.”

The decision implied that “individual ministerial decisions… do not always generate collective legal responsibilities”64.

37 Collective responsibility represents a seminal principle for modern parliamentary democracies.65
Collective responsibility of the Council of Ministers ensures accountability to the legislature and
to the electorate. Collective responsibility governs the democratic process, as it makes a
government liable for every act it does. It envisages that a government works effectively to ensure
and fulfil the interests of the public. It purports to ensure transparency in government decisions.
Collective responsibility rests on the foundations of constitutional morality, which reflects
constitutional ethics.

Aid and Advice
38 Collective responsibility under our Constitution is based on a “slightly modified version”66 of the British cabinet system. There is a direct relationship between collective responsibility and the form of government envisaged by the Constitution. The President was designated as the titular head of government. The founding fathers and mothers of the Constitution adopted the convention which made the President generally bound by the advice of the Council of Ministers. This was explained by Dr B R Ambedkar, while introducing the Draft Constitution on 4th November 1948.
“Under the Draft Constitution the President occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the Nation but does not rule the Nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device on a seal by which the nation’s decisions are made known… The President of the Indian Union will be generally bound by the advice of his Ministers. He can do nothing contrary to their advice nor can he do anything without their advice. The President of the United States can dismiss any Secretary at any time. The President of the Indian Union has no power to do so long as his Ministers command a majority in Parliament…
A democratic executive must satisfy two conditions – (1) It must be a stable executive and (2) it must be a responsible executive. Unfortunately it has not been possible so far to devise a system which can ensure both in equal degree…
In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses… The daily assessment of responsibility which is not available under the American system is it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.”67 (Emphasis supplied)

Shri Alladi Krishnaswami Ayyar agreed with Dr Ambedkar:

“…that the Council of Ministers shall be collectively responsible to the House of the People. If a President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of violation of the Constitution and he will be even liable to impeachment. Therefore it is merely a euphemistic way of saying that the President shall be guided by the advice of his Ministers in the exercise of his functions. This Council of Ministers will be collectively responsible to the House of the People, and the House of the People must meet all situations in regard to the budget, in regard to legislation, in regard to every matter connected with the administration of the country. Therefore, if the Council of Ministers is to discharge their responsibility, it will be the duty of the President to see that the Constitution is obeyed…”68(Emphasis supplied)

As the Chairman of the Constituent Assembly, Dr Rajendra Prasad expected the convention to be developed into a healthy practice in independent India: “We have had to reconcile the position of an elected President with an elected Legislature and, in doing so, we have adopted more or less the position of the British Monarch for the President… [H]is position is that of a Constitutional President.

Then we come to the Ministers. They are of course responsible to the Legislature and tender advice to the President who is bound to act according to that advice. Although there are no specific provisions, so far as I know, in the Constitution itself making it binding on the President to accept the advice of his Ministers, it is hoped that the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and, the President, not so much on account of the written word in the Constitution, but as the result of this very healthy convention, will become a Constitutional President in all matters.”69 (Emphasis supplied)

The Constitution makers envisaged and adopted a limited role for the President as the nominal head of the Indian State and imposed sanctions on his or her constitutional authority by making them bound by the decisions of the Council of Ministers generally. A similar role was adopted for the Governor in the States.

39 After the Constitution had come into force, this Court gave judicial sanction to the convention. In U.N.R. Rao v Smt. Indira Gandhi70, the Constitution Bench held:
“It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word “shall” should be read as “may”. Article 52 is mandatory. In other words there shall be a President of India…. The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers’ nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61… Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called “Responsible Government”.”

In Samsher Singh v State of Punjab71, while dealing with the question whether the Governor as the Constitutional or the formal head of the State can exercise powers and functions of appointment and removal of members of the subordinate judicial service personally, Chief Justice AN Ray delivered the majority judgment, holding that:

“The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.”

The Court summed up the position of law as follows:

“[W]e hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally… Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers.”

Justice Krishna Iyer, on behalf of himself and Justice PN Bhagwati, delivered a concurring opinion.

40 The convention that the President shall be bound by the aid and advice tendered by the Council of Ministers was explicitly made a part of the Constitution by the forty-second constitutional amendment. By the amendment, Article 74(1) was amended to ensure that the President shall, in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers. Article 74(1) reads thus:

“There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.”

The Forty-fourth Constitution Amendment added another proviso to Article 74

(1) so that the “President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration”. Therefore, the position which emerges is that where it has not been expressly provided, the executive head shall be bound by the advice tendered by the Council of Ministers. This constitutional scheme, after the forty-second and forty-fourth amendments, has been judicially reaffirmed. Authoring the judgment of the Constitution Bench in PU Myllai Hlychho v State of Mizoram72, Justice KG Balakrishnan (as he then was) held that the “satisfaction” of the Governor required by the Constitution for the exercise of any power or function is not the personal satisfaction of the Governor but a satisfaction in the constitutional sense under the Cabinet system of Government, i.e. on the aid and advice of the Council of Ministers. Justice Madan B Lokur, while delivering the concurring opinion in the five-judge Constitution Bench decision in Nabam Rebia and Bamang Felix v Deputy Speaker, Arunachal Pradesh Legislative Assembly73, opined that the absence of the expression “his individual judgment” makes it apparent that the Governor would always be bound by the aid and advice of the Council of Ministers, except in matters where he/she is permitted under the Constitution to act “in his discretion”.

41 Collective responsibility and aid and advice are mutually reinforcing principles. Each of them and both in conjunction affirm and enhance the democratic values on which the Cabinet form of government is founded. Collective responsibility ensures that government speaks as one political entity which owes allegiance to the elected representatives of the people. By ensuring that government is responsible in its decision making to the legislature, the principle of collective responsibility fosters a responsive and accountable government. Modern government, with its attendant complexities, comprises of several components and constituent elements. They include Ministers who are also elected as members of the legislature and unelected public officials who work on issues of daily governance. Discussion and dialogue are accepting of dissent. In a system of constitutional governance, collective decision making must allow room for differences. A synthesis can emerge in government, when political maturity and administrative wisdom combine in arriving at acceptable solutions to the problems of governance. Collective responsibility allows for and acknowledges differences in perception and ideology. Yet, what the doctrine does is to place a decision taken by a constituent part of the government as a decision of the government. All Ministers are bound by a decision taken by one of them or their departments. In terms of its accountability to the legislature, government is treated as one decision making unit so that the politics of decision making and administrative divergences do not dilute from the responsibility which government owes as a political unit to the legislature. This is crucial to ensuring that government is responsive to the aspirations of the people in whom political sovereignty resides.

42 In Kihoto Hollohan v Zachillhu74, Chief Justice Venkatachaliah speaking for this Court had held thus:
“Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not often the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy.”

43 The doctrine of aid and advice enhances the commitment to the same democratic values which form the basis of collective responsibility. The mandate that a titular head of government must act on the aid and advice of the Council of Ministers ensures that the form of democratic governance (decision making in the name of a titular head) is subservient to its substance, which mandates that the real authority to take decisions must reside in the elected arm of the government. The doctrine of aid and advice enhances accountability and responsive government – besides representative government – by ensuring that the real authority to take decisions resides in the Council of Ministers, which owes ultimate responsibility to the people, through a legislature to whom the Council is responsible. Collective responsibility and the aid and advice doctrine must not be construed as disjunctive but together constitute integral parts of the discourse in ensuring the strength of and commitment to democracy.

F The Nature of Executive Power
44 While the legislative power in relation to the NCT is defined in clauses 2 and 3, its executive power forms the subject matter of clause 4 of Article 239AA. Clause 4 institutionalises the position of the Council of Ministers with a Chief Minister as its head. The constitutional role which is ascribed to the Council of Ministers is to aid and advise the Lieutenant Governor “in the exercise of his functions in relation to matters with respect to which the legislative assembly has power to make laws”. There are three salient features of the executive power which is vested in the Council of Ministers. Firstly, the executive power is co-extensive with the legislative power of the legislative assembly. The executive power extends to all subjects upon which the assembly can legislate. The executive power of the Council of Ministers does not extend to matters on which the legislative assembly cannot legislate. What is beyond the legislative competence of the Assembly is ultra vires the executive powers of the Council of Ministers. Secondly, the delineation of the executive power in clause 4 defines, at the same time, the relationship between the Council of Ministers (headed by the Chief Minister) and the Lieutenant Governor. The Council of Ministers aids and advises the Lieutenant Governor; the corollary being that the Lieutenant Governor has to act on the basis of the aid and advise tendered by the Council. Thirdly, the exception to the aid and advice principle in the substantive part of clause 4 is in respect of those matters in which the Lieutenant Governor is required to act in its discretion “by or under any law”. In other words, save and except in regard to areas which are reserved for the exercise of his discretion, the Lieutenant Governor must act on the aid and advice tendered to him by the Council of Ministers.

45 The proviso to clause 4 forms the bone of contention. The proviso envisages a situation where the Lieutenant Governor has a difference of opinion with the Council of Ministers “on any matter”. In such a case, the proviso entails the course of action which the Lieutenant Governor must follow. The Lieutenant Governor is under a constitutional mandate to refer the difference of opinion to the President for decision. As a consequence, the Lieutenant Governor must necessarily act according to the decision “given thereon” by the President. Pending a decision by the President, the Lieutenant Governor is empowered to take action or to issue directions where the matter is of such an emergent nature as to require immediate action. The heart of the matter turns upon interpreting the expression “difference of opinion” and the words “on any matter”. Clause 4 does not specify what kind of a difference of opinion would warrant a reference to the President. Nor for that matter, does it explain the nature of the matter on which a difference of opinion is contemplated. Before we interpret the ambit of the proviso to clause 4, one facet is clear. Where a difference of opinion has arisen, warranting a reference to the President, the proviso leaves the course of action to be followed by the Lieutenant Governor beyond doubt. In a situation where the conditions under the proviso exist, the Lieutenant Governor has to refer the matter to the President and must abide by the decision of the President. Reading the substantive part of clause 4 and the proviso, it is thus evident that the Lieutenant Governor has two courses of action to follow. Primarily, under the substantive part of clause 4, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers (the only exception being where under a provision of law, he has to act according to his own discretion). However, the embargo upon the Lieutenant Governor acting otherwise than on the aid and advice of the Council of Ministers is lifted only to enable him to refer a difference of opinion on any matter for a decision by the President. In other words, the Lieutenant Governor must either abide by the aid and advice tendered by the Council of Ministers or, in the event of a difference of opinion, reserve it for a decision by the President and thereupon be bound to act in accordance with the decision which has been rendered by the President. Pending the decision by the President, the proviso enables the Lieutenant Governor to attend to a situation requiring immediate action.

46 Before elucidating the nature and ambit of the relationship between the

(i) Council of Ministers and the Lieutenant Governor; and (ii) the Lieutenant Governor and the President, it would be necessary to advert to some of the other provisions of Article 239AA which have a bearing on those relationships. The Lieutenant Governor, as we have noted earlier, is appointed by the President under Article 239(1) read with Article 239AA(1). The Chief Minister is appointed by the President, while the other ministers are appointed by the President on the advice of the Chief Minister. They hold office during the pleasure of the President (clause 5). The concept of collective responsibility of the Council of Ministers to the legislative assembly is expressly embodied in clause 6. A comparative analysis of the provisions of the Constitution relating to the Council of Ministers in the Union and the States indicates that in the case of the NCT, Article 239AA has engrafted the fundamental precept of the collective responsibility of an elected government in a cabinet form of government to the elected legislature. Creating an executive power in government which is co-extensive with the legislative power of the elected legislature and the collective responsibility of the Council of Ministers to the legislature are intrinsic to the cabinet form of government.

47 Parliament has, by clause 7 of Article 239AA, been empowered to make provisions to implement and to supplement the other provisions of that Article. Any law enacted by Parliament to do so would not amount to a constitutional amendment within the meaning of Article 368 even if it amends or has the effect of amending any provision of the Constitution.

48 Article 239AB enunciates the course of action which the President is empowered to follow where there has been a failure of constitutional machinery in the NCT. Article 239AB provides as follows: “239AB. Provision in case of failure of constitutional machinery.—If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.”

Under Article 239AB, the President is empowered to suspend the operation of (i) any provision of Article 239AA; and of (ii) any provisions of law made in pursuance of that Article and to make provisions to administer the NCT, in accordance with Articles 239 and 239AA where, upon a report from the Lieutenant Governor, the President is satisfied that: (a) A situation has arisen where the administration of the NCT cannot be carried on in accordance with Article 239AA or a law made in pursuance of it; or (b) For the proper administration of the NCT.

Article 239B as already noted confers power upon the administrator of Puducherry to promulgate ordinances during the recess of the legislature. This power is also conferred upon the Lieutenant Governor of the NCT by clause 8 of Article 239AA. Under Article 241, Parliament is empowered to constitute a High Court for a Union territory.

49 In understanding the nature of the executive power in relation to the NCT of Delhi and the relationship between the Council of Ministers and the Lieutenant Governor on one hand, and the Lieutenant Governor and the President on the other, it is necessary to draw a comparison with the provisions of the Constitution governing the Union and the States. Part V of the Constitution (consisting of Articles 52 to 151) deals with the Union; Part VI (comprising of Articles 152 to 237) deals with the States and Part VIII (comprising of Articles 239 to 241) deals with the Union territories. Parts V and VI contain similar elucidations with some important variations. Both Part V and Part VI deal with the executive, the legislative power of the President, and the judiciary. Part V covers the Union judiciary, while Part VI over the High Courts and the subordinate courts in the States.

50 Article 52 provides for the President. Article 53 stipulates that the executive power of the Union shall be vested in the President and shall be exercised by him directly or through subordinate officers in accordance with the Constitution. Under Article 73, the executive power of the Union extends (a) to matters with respect to which Parliament has power to make laws; and (b) to the exercise of rights, authority and jurisdiction exercisable by the Union government under a treaty or agreement. Article 73 provides thus:

“73. Extent of executive power of the Union.—

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.”

The proviso to Article 73(1) stipulates that except as may be expressly provided by Constitution or in any law which has been enacted by Parliament, the executive power of the Union under sub clause (a) of clause 1 does not extend in a State to matters with respect to which the legislature of the State has also power to make laws. The effect of the proviso is that the executive power of the Union does not extend to matters in the Concurrent List, since these are matters on which State legislatures also have the power to make laws. Article 74(1) provides for a Council of Ministers with the Prime Minister as the head. The function of the Council of Ministers is “to aid and advice the President”. The President is, in the exercise of his functions, under a mandate to “act in accordance with such advice”. Article 74 provides as follows:

“74. Council of Ministers to aid and advise President.—

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

Article 77 provides for the conduct of the business of the Union government:

“77. Conduct of business of the Government of India.—

(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.”

By and under Article 77(1) the executive action of the Union government is expressed to be taken in the name of the President. Under clause 2, orders and instruments made and executed in the name of the President are to be authenticated in such a manner as may be specified in the rules made by the President. Clause 3 enables the President to make rules for the transaction of the business of the government and for the allocation of governmental business among ministers. Article 78 embodies the basic duty of the head of the elected government in a Cabinet form of government to communicate with and to furnish information to the President. Article 78 provides as follows :

“78. Duties of Prime Minister as respects the furnishing of information to the President, etc.—

It shall be the duty of the Prime Minister—

(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

These provisions of the Constitution institutionalise the relationship between the President and the Union Cabinet and re-affirm the position of the President as the titular head of state. The President must act on the aid and advise tendered by the Union Cabinet. The executive power of the Union is co-extensive with the legislative power of Parliament. In a cabinet form of government, it is the Council of Ministers which owes collective responsibility to the House of the People. Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature. Though all executive action is expressed to be taken in the name of the President and orders and instruments made and executed in the name of the President are authenticated in the manner prescribed by rules, the constitutional position of the President is of a titular head. The use of the expression “in the exercise of his functions” in Article 74(1) is formalistic in nature since the substance of executive power is vested in and conferred upon the government constituted through the Council of Ministers which owes collective responsibility to Parliament. The proviso to Article 74(1) stipulates that while the President may require the Council of Ministers to reconsider his advice, once that has been done, the President is bound to act on the advice tendered after reconsideration.

51 The position of the President as a titular head of State is evidenced in the constitutional provisions which define the relationship between the President and Parliament. Under Article 111, a Bill is presented to the President for assent upon being passed by the Houses of Parliament. Under the proviso to Article 111, the President is empowered to return a Bill for reconsideration (if it is not a Money Bill). Upon being reconsidered, if the Bill is passed again by the Houses of Parliament (with or without amendment) the President shall, thereafter, not withhold assent.

52 In Part VI of the Constitution, the provisions which define the role of the Governor in relation to the states indicate that the Governor is also a titular head of government in each state. The executive power of the State is vested in the Governor under Article 154. The Governor is appointed by the President under Article 155 and holds office during the pleasure of the President under Article

156. The executive power of the state is co-extensive with the legislative power, by virtue of Article 162. However, in relation to matters on which both the legislature of a State and Parliament can enact law, the executive power of the state is subject to and limited by the conferment of executive power upon the Union by the Constitution or by a law enacted by Parliament. In the States, Article 163 postulates a Council of Ministers with the Chief Ministers as its head to aid and advice the Governor in the exercise of his functions, except where the Governor is under the Constitution required to exercise any of the functions in his own discretion. Where a question arises as to whether the Governor is required to act in his discretion, Article 163(2) makes the decision of the Governor final. While the Chief Minister is appointed by the Governor under Article 164, other ministers are appointed by the Governor on the advice of the Chief Minister and hold office during the pleasure of the Governor. Article 164(2) incorporates the principle of collective responsibility of the Council of Ministers to the legislative assembly of the State. Article 166 contains a provision dealing with the conduct of the business of the government of the State which is pari materia with Article 77. Similarly, Article 167 incorporates the duty of the Chief Minister to communicate with and to furnish information on the affairs of the state to the Governor, in terms similar to Article 78.

53 While assessing the status of the National Capital Territory under Article 239AA, certain significant aspects need to be borne in mind:
(i) Article 239AA is a result of the exercise of the constituent power under Article 368 of the Constitution. By and as a result of Article 239AA, special provisions have been made for the National Capital Territory of Delhi. These provisions are not an emanation of an act of ordinary legislation;

(ii) For the NCT of Delhi, the exercise of the constituent power has resulted in a constitutionally entrenched status both for the legislature and for the Council of Ministers. The legislative assembly is elected by the process of direct election. The legislative assembly has the power to enact law in respect of matters in the State List of the Seventh Schedule (save for the excepted matters in Entries 1, 2 and 18 and Entries 64, 65 and 66 insofar as they relate to entries 1, 2 and 18). Yet, while the legislative powers which have been conferred on the legislative assembly extend to the State List (save for the excepted entries) and the Concurrent List, Parliament has been empowered to legislate both on matters falling within the State and the Concurrent lists. Parliament possesses overriding legislative powers over matters falling in both the State and Concurrent lists for the NCT; and
(iii) Article 239AA(4) provides constitutional status to the Council of Ministers and embodies the entrenched principle in a cabinet form of government that a titular head of state acts on the aid and advice tendered by his ministers, who owe collective responsibility to the legislature. In setting up a structure of governance in which there is a legislature elected through the process of direct election and an executive arm which is collectively responsible to the legislature and which, in the discharge of its functions, tenders aid and advise to Lieutenant Governor on matters which are co-extensive with legislative power, the Constitution has incorporated the basic principles of the cabinet form of government. The adoption of these special features of the cabinet form of government in relation to the NCT must weigh while interpreting Article 239AA.

54 At the same time, the constitutional scheme indicates several features in relation to the NCT which have resulted in the conferment of a constitutional status which falls short of the trappings of full statehood. They include the following :

(a) The position of the National Capital Territory is subsumed under Part VIII which applies to Union territories. Delhi is and continues to be a Union territory governed by Part VIII;
(b) Every Union territory is, under Article 239(1), administered by the President acting through an Administrator. The Administrator appointed under Article 239(1) is designated as the Lieutenant Governor for the NCT under Article 239AA(1). Article 239 is the source of the constitutional power to appoint the Lieutenant Governor for the NCT;
(c) The position that the application of Article 239 is not excluded in relation to the NCT is made evident by Article 239AB. In a situation in which the President is empowered to suspend the provisions of Article 239AA, where the administration of the NCT cannot be carried on in accordance with Article 239AA, or of any law made in pursuance of that Article, the President is empowered to make consequential provisions for administering the territory in accordance with Article 239 as well as Article 239AA. Hence, the provisions of Article 239AA cannot be read disjunctive from Article 239(1);
(d) The administration of a Union territory by the President acting through an Administrator is firstly subject to Parliamentary law and secondly, to such extent as he thinks fit. Hence the nature of the administration of a Union territory, including NCT is subject to these two provisions;
(e) The position of the NCT as distinguished with the constitutional position of a State finds expression in the contrast between Article 239AB and Article 356 on the other. Upon the exercise of the power under Article 356, the President “can assume to himself” the functions of the government of the State and declare that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament. In contrast, Section 239AB empowers the President to suspend the operation of Article 239AA or of any provision of law made under it and to thereupon make consequential provisions for the administration of the NCT in accordance with Articles 239 and 239AA; and
(f) While emphasising the binding character of the aid and advise tendered to the President, or as the case may be, the Governor, the constitutional position in relation to the Lieutenant Governor contains a distinct variation. Article 74(1) embodies, in relation to the President of India, the binding character of the aid and advice tendered by the Council of Ministers by specifying that the President shall, in the exercise of his functions, act in accordance with such advice. Upon the President requiring the Council of Ministers to reconsider their advice, the President is bound to act upon the advice which is tendered after reconsideration. Similarly, in the case of Governors in the states, Article 163(1) provides for a Council of Ministers “to aid and advise the Governor in the exercise of his functions”, except where the Governor is required by the Constitution to exercise his functions in his discretion. Article 239AA(4) incorporates in its substantive segment the constitutional principle of aid and advice which the Council of Ministers tenders to the Lieutenant Governor in the exercise of his functions. But, in relation to the advice tendered by the Council of Ministers, the proviso to Article 239AA(4) has engrafted a special provision which does not have a corollary in Article 163. While under Article 163(1), the Governor is required to act upon the aid and advice tendered (save in matters which the Constitution entrusts to the discretion of the Governor), the proviso to Article 239AA(4) contemplates an area where the binding character of the aid and advice tendered to the Lieutenant Governor is lifted in the event of a “difference of opinion.. on any matter”.

55 In resolving the area within which the Lieutenant Governor can refer the difference of opinion with the Council of Ministers of the NCT to the President, it would be necessary to balance on the one hand the constitutional principles of the cabinet form of government adopted in Article 239AA, while on the other hand leaving open the latitude, which has been created by the proviso to clause 4 considering the special status of the NCT. The former consideration would need the court to pursue a line of interpretation which does not detract from the fundamental principles of representative government. An elected government reflects in a democracy, the aspirations of the people who vote to elect their representatives. The elected representatives carry the responsibility of giving expression to the political will of the electorate. In a democratic form of government, real power must subsist in the elected arms of the State. Ministers of government are elected representatives of the people. They are accountable to the people through their collective responsibility to the legislature. As a collective entity, the Council of Ministers owes responsibility to the legislature. The relationship between the Council of Ministers and the titular head of State is governed by the over-arching consideration that real power and substantive accountability is vested in the elected representatives of the people. The principle of aid and advice is in a constitutional sense intended to strengthen the constitutional value of representative government and of governance which is accountable and responsive to the electorate. While bearing these fundamental constitutional principles of a democracy in mind, a balance has to be struck with the second of the above elements which recognises the special status of the NCT. The NCT represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation. This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the NCT. These considerations would necessarily require a careful balance between the two principles. Each of the two principles must be given adequate weight in producing a result which promotes the basic constitutional values of participatory democracy, while at the same time preserving fundamental concerns in the secure governance of the nation.

G Constitutional History of the NCT
56 Mr Gopal Subramanium, learned Senior Counsel, appearing on behalf of the NCT, has submitted that the NCT occupies a unique position in our constitutional jurisprudence. It has been contended by Mr Subramanium that the NCT, though it remains a Union Territory, has come to acquire various characteristics that were, prior to the 69th constitutional amendment, considered under the Constitution to be characteristics solely of States. As a consequence, the learned Senior Counsel has further contended, NCT has become a constitutional hybrid with powers that were formerly only found in full-fledged States of the Union and therefore enjoys far more powers than the government of any other Union Territory. On the contrary, Mr Maninder Singh, the learned Additional Solicitor General has submitted that the NCT finds its place as a Union Territory in Part II of Schedule I of the Constitution. It has been contended on his behalf that the NCT has historically remained a centrally administered territory with the status of a Union Territory in the Constitution and that it continues to remain a Union Territory even after the 69th constitutional amendment.

57 In order to interpret the constitutional scheme envisaged for the NCT, this Court must analyze the constitutional history and the evolution of the structure of governance for the NCT as brought into existence, by various enactments, from time to time.

The Government of Part C States Act, 1951

58 The first Schedule to the Constitution originally contained Part A, Part B and Part C States. After the adoption of the Constitution, The Government of Part C States Act, 1951 was enacted. Section 2(c) defined the expression Delhi thus:
“Section 2(c) “Delhi”, except where it occurs in the expression “State of Delhi”, means such area in the State of Delhi as the Central Government may by notification in the Official Gazette specify.”

Section 3 provided for the constitution of a legislative assembly for each state governed by the law. It provided for the establishment of legislative assemblies for the states of Ajmer, Bhopal, Coorg, Delhi, Himachal Pradesh and Vindhya Pradesh. The Chief Commissioner was entrusted with the power, under Section 8(2), to prorogue and dissolve the assembly. Section 12 conferred upon the Chief Commissioner the right to address and send messages to the assembly. Section 21 of the Act defined the extent of legislative power:

“Section 21- Extent of legislative power

“(1) Subject to the provisions of this Act, the Legislative Assembly of a State may make laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List:

Provided that the Legislative Assembly of the State of Delhi shall not have power to make laws with respect to any of the following matters, namely:-

(a) Public order;

(b) Police including railway police;

(c) The constitution and powers of municipal corporations and other local authorities, of improvement trusts and of water supply, drainage, electricity, transport and other public utility authorities in Delhi or in New Delhi;

(d) Lands and buildings vested in or in the possession of the Union which are situated in Delhi or in New Delhi including all rights in or over such lands and buildings, the collection of rents therefrom and the transfer and alienation thereof;

(e) Offences against laws with respect to any of the matters mentioned in the foregoing clauses;

(f) Jurisdiction and powers of all courts, with respect to any of the said matters; and

(g) Fees in respect of any of the said matters other than fees taken in any court.”

However, sub Section 2 of Section 21 provided that sub section 1 will not derogate from the power conferred upon Parliament by the Constitution to make laws with respect to any matter for a state. The sanction of the Chief Commissioner was required under Section 23 for certain legislative proposals, these being:

“(a) Constitution and organisation of the court of the Judicial Commissioner;

(b)Jurisdiction and powers of the court of the Judicial Commissioner with respect to any of the matters in the State List or in the Concurrent List;

(c) State Public Service Commission.”

59 A Bill passed by the legislative assembly was, under Section 26, required to be presented to the Chief Commissioner. The Chief Commissioner in turn was obligated to reserve the Bill for consideration of the President. If the President directed the Chief Commissioner to submit the Bill to the Assembly for reconsideration, the Assembly was required to consider the suggestions and, if the Bill was passed, it had to be presented again to the President for reconsideration.

60 Section 36 provided for a Council of Ministers:

“Council of Ministers

(1) There shall be a Council of Ministers in each State with the Chief Minister at the head to aid and advise the Chief Commissioner in the exercise of his functions in relation to matters, with respect to which the Legislative Assembly of the State has power to make law except in so far as he is required by any law to exercise any judicial or quasi-judicial functions:

Provided that, in case of difference of opinion between the Chief Commissioner and his Ministers on any matter, the Chief Commissioner shall refer it to the President for decision and act according to the decision given thereon by the President, and pending such decision it shall be competent for the Chief Commissioner in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary: Provided further that in the State of Delhi every decision taken by a Minister or by the Council in relation to any matter concerning New Delhi shall be subject to the concurrence of the Chief Commissioner, and nothing in this sub-section shall be construed as preventing the Chief Commissioner in case of any difference of opinion between him and his Ministers from taking such action in respect of the administration of New Delhi as he in his discretion considers necessary.

(2) The Chief Commissioner shall, when he is present, preside at meetings of the Council of Ministers, and, when the Chief Commissioner is not present, the Chief Minister or, if he is also not present, such other Minister as may be determined by the rules made under sub-section (1) of section 38 shall preside over meetings of the Council.

(3) If any question arises as to whether any matter is or is not a matter as respects which the Chief Commissioner is required by any law to exercise-any judicial or quasi- judicial functions, the decision of the Chief Commissioner thereon shall be final.

(4) If in the State of Delhi any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Chief Commissioner thereon shall be final:

Provided that in case of any difference of opinion between the Chief Commissioner and his Ministers on such question, it shall be referred for the decision of the President and his decision shall be final.

(5) The question whether any, and if so what, advice was tendered by Ministers to the Chief Commissioner shall not be inquired into in any court.”

Section 36(1) incorporated the aid and advice principle. But where there was a difference of opinion between the Chief Commissioner and his ministers “on any matter”, the Chief Commissioner was required to refer it to the President and to act in accordance with the decision of the President. Insofar as the State of Delhi was concerned, under the second proviso every decision of a Minister or the Council of Ministers in relation to New Delhi was subject to the concurrence of the Chief Commissioner. In the event there was a difference of opinion, the Chief Commissioner had the authority to take such action for the administration of New Delhi “as he in his discretion considers necessary”. The Chief Commissioner would also preside over the meetings of the Council of Ministers. If a question arose as to whether any matter concerned New Delhi, the decision of the Chief Commissioner was to be final and if there was a difference of opinion, it was to be referred to the President for his decision.

61 Section 36 assumes significance in the context of the present controversy, because its provisions must be distinguished from the position which was adopted when the sixty ninth amendment was introduced in Article 239AA into the Constitution. Four features of Section 36 stand out : first, the requirement of the concurrence of the Chief Commissioner to every decision concerning New Delhi; second, empowerment of the Chief Commissioner, in the event of a difference of opinion to act in his discretion for the administration of New Delhi; third, the mandate of the Chief Commissioner being required to preside over meetings of the Council of Ministers; and fourth, the requirement of referring any difference of opinion on whether a matter concerned New Delhi to the President whose decision would be final. Article 239AA has made a departure in critical matters from the position as it obtained under Section 36. First, (unlike the second proviso to Section 36(1)), Article 239AA(4) does not mandate that every decision of the Council of Ministers should be subject to the concurrence of the Lieutenant Governor; second, the provision (in the second proviso to Section 36(1)) empowering the Chief Commissioner to act in his discretion on the administration of New Delhi is absent in Article 239AA(4) except where the Lieutenant Governor on a reference of a difference of opinion to the President has to deal with an emergent situation; and third, neither in Article 239AA nor in the GNCTD Act (and for that matter in the Transaction of Business Rules) has it been provided that the Lieutenant Governor would preside over meetings of the Council of Ministers. Section 36 of the erstwhile Act of 1951 created a hierarchical structure which placed the Chief Commissioner as an authority superior to the Council of Ministers in the exercise of its executive power. Every decision of the Council of Ministers concerning New Delhi was subject to the concurrence of the Chief Commissioner. The absence of such a provision in Article 239AA cannot be regarded as a matter of no constitutional significance. Historically the constituent body had before it a model which was created by the parliamentary enactment of 1951 but advisedly did not choose to engraft it into the provisions of Article 239AA when the sixty ninth amendment was adopted.

62 The provisions of the Constitution relating to Part A, Part B and Part C States were abrogated with the adoption of the seventh amendment75 in 1956. Section 130 of the States Reorganization Act 1956 repealed the 1951 Act. The result has been explained in the Statement of Objects and Reasons for the 1956 Act.

“… The main features of the reorganization proposed are the abolition of the existing constitutional distinction between Part A, Part B and Part C States, the establishment of two categories for the component units of the Union to be called the States and the abolition of the institution of the Raj Pramukh consequent on the disappearance of the Part B States…”.

Consequent upon the seventh amendment to the Constitution, the expression “the Union territories specified in the First Schedule” was inserted into the Constitution. Delhi came to be described as a Union territory upon being included as an entry in the First Schedule. By virtue of Section 12 of the 1956 Act, as from the appointed day, in the First Schedule to the Constitution for Part A, Part B and Part C States, the parts which followed were substituted. Delhi was described in serial number 1 of Part C as “the territory which immediately before commencement of the Constitution was comprised in the Chief Commissioner’s Province of Delhi”. Delhi became a Union Territory governed by the Union government through an Administrator who was appointed by the President.

63 Article 239A was introduced by the fourteenth amendment76 in 1962, as a result of which Parliament was authorized to create, for certain Union territories, local legislatures and/ or a Council of Ministers.

The Government of Union Territories Act, 1963
64 On 10 May 1963, the Government of Union Territories Act 1963 was enacted. The Act of 1963 defined the expression Administrator in Section 2(a) as :
“(a) “Administrator” means the administrator of the Union territory appointed by the President under article 239;” Section 3 provided for a legislative assembly. Section 18 provided for the extent of legislative power in the following terms:
“18. Extent of legislative power. (1) Subject to the provisions of this Act, the Legislative Assembly of the Union territory may make laws for the whole or any part of the Union territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to Union territories.
(2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union territory or any part thereof.”

Sub Section 1 of Section 18 was similar in language to Article 239AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub Section 2 was similar in language to Article 239AA(3)(b). Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the legislative assembly, the law made by Parliament would prevail to the extent of repugnancy (this provision is similar in nature to Article 239AA(3)(c). Section 44 contained the following provision for the Council of Ministers: “44. Council of Ministers.

(1) There shall be a Council of Ministers in each Union territory with the Chief Minister at the head to aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union territory has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions:

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

(3) If and in so far as any special responsibility of the Administrator is involved under this Act, he shall, in the exercise of his functions, act in his discretion.”

Section 44 (1) and Article 239AA are pari materia (with the difference that clause 4 of Article 239AA pegs the strength of the Council of Ministers to not more than ten per cent of the total number of members of the legislative assembly). At the same time, it must also be noted that sub section 3 of Section 44 recognised the power of the Administrator, to act in his discretion where “any special responsibility” of the Administrator was involved under the Act. This provision in sub section 3 of Section 44 was in addition to the reservation made in Section 44(1) in respect of those matters where the administrator was under the Act, required to act in his discretion or was to exercise judicial or quasi- judicial functions under any law. The “special responsibility” provision of sub- section 3 of Section 44 does not find a parallel in Article 239AA.

The Delhi Administration Act, 1966

directly elected. However, the Central government was empowered to nominate five persons to the Metropolitan Council. The tenure of the Metropolitan Council, unless it was sooner dissolved, was to be five years. Under Section 22 the Metropolitan Council could make recommendations, on certain matters, insofar as they related to Delhi. Section 22 provided as follows:
“(1) Subject to the provisions of this Act, the Metropolitan Council shall have the right to discuss, and make recommendations with respect to, the following matters in so far as they relate to Delhi, namely: –
(a) proposals for undertaking legislation with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution in so far as any such matter is applicable in relation to Union territories (hereafter referred to as the State List and the Concurrent List);
(b) proposals for extension to Delhi of any enactment in force in a State relatable to any matter enumerated in the State List or the Concurrent List;
(c) proposals for legislation referred to it by the Administrator with respect to any of the matters enumerated in the State List or the Concurrent List;
(d) the estimated receipts and expenditure pertaining to Delhi to be credited to and to be made from, the Consolidated Fund of India; and notwithstanding anything contained in the Delhi Development Act, 1957, the estimated receipts and expenditure of the Delhi Development Authority;
(e) matters of administration involving general policy and schemes of development in so far as they relate to matters enumerated in the State List or the Concurrent List;
(f) any other matter referred to it by the Administrator.
(2) The recommendations of the Metropolitan Council, after having been duly considered by the Executive Council, shall, wherever necessary, be forwarded by the Administrator to the Central Government with the views, if any, expressed thereon by the Executive Council.”

The recommendations of the Metropolitan Council after they were considered by the Executive Council were to be forwarded to the Central government. The function of the Executive Council was to “assist and advise” the Administrator in the exercise of his functions in relation to matters in the State List or Concurrent List. Conscious as Parliament was of the use of the expression “aid and advise” in Articles 74 and 163 of the Constitution; and in Section 36(1) of the Government of Part C States Act 1951; Section 44 of the Government of Union Territories Act 1963, carefully adopted the expression “assist and advise” in Section 27. Section 27 was in the following terms: “(1) There shall be an Executive Council, consisting of not more than four members one of whom shall be designated as the Chief Executive Councilor and others as the Executive Councilors, to assist and advise the Administrator in the exercise of his functions in relation to matters enumerated in the State List or the Concurrent List, except in so far as he is required by or under this Act to exercise his functions or any of them in his discretion or by or under any law to exercise any judicial or quasi-judicial functions:

Provided that, in case of difference of opinion between the Administrator and the members of the Executive Council on any matter, other than a matter in respect of which he is required by or under this Act to act in his discretion, the Administrator shall refer it to the President for decision and act according to the decision given thereon by the President, and pending such decision, it shall be competent for the Administrator in any case where the matter is in his opinion so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary:

Provided further that every decision taken by a member of the Executive Council or by the Executive Council in relation to any matter concerning New Delhi shall be subject to the concurrence of the Administrator, and nothing in this sub-section shall be construed as preventing the Administrator in case of any difference of opinion between him and the members of the Executive Council from taking any action in respect of the administration of New Delhi as he, in his discretion, considers necessary.

(2) The Administrator shall preside at every meeting of the Executive Council, but if he is obliged to absent himself from any meeting of the Council owing to illness or any other cause, the Chief Executive Councilor shall preside at the meeting of the Council.

(3) The functions of the Administrator with respect to law and order in Delhi including the organization and discipline of police force, and with respect to such other matters as the President may it from time to time specify in this behalf, shall be exercised by him in his discretion.

(4) If any question arises as to whether any matter is or is not a matter as respects which the Administrator is by or under this Act required to act in his discretion, the decision of the Administrator thereon shall be final.

(5) If any question arises as, to whether any matter is or is not a matter as respects which the Administrator is required by or under any law to exercise any judicial or quasi-judicial functions, the decision of the Administrator thereon shall be final.

(6) If any question arises as to whether any matter is or is not a matter concerning New Delhi, the decision of the Administrator thereon shall be final.

(7) The question whether any, and if so, what advice was tendered by any member of the Executive Council to the Administrator shall not be enquired into in any court.”

Every decision of the Executive Council in relation to any matter concerning New Delhi was subject to the concurrence of the Administrator. A provision similar to the second proviso to Section 27(1) does not find a reference in Article 239AA. Moreover, under sub section 2 of Section 27, the Administrator was to preside at every meeting of the Executive Council. The members of the Executive Council were, under Section 28, appointed by the President and held office during the pleasure of the President. A member of the Executive Council could not hold office beyond a period of six months if he was not a member of Metropolitan Council.

66 The Act of 1966 continued to apply to the Union Territory of Delhi until the adoption of the sixty ninth amendment to the Constitution and the GNCTD Act 1991.

The Balakrishnan Committee

67 On 14 December 1989 the Committee constituted by the Ministry of Home Affairs for making recommendations on the reorganization of the structure for the governance of Delhi submitted its report. The report of the Committee, which was chaired by Mr S Balakrishnan (Adviser, Ministry of Home Affairs) observed that there is a conflict of interest between the need to develop the national capital for the nation as a whole and the desires of the local population for a greater autonomy in the conduct of their own affairs. This conflict was described in the report thus:

“..The main difficulty lies in reconciling the two conflicting requirements, namely, the requirement of satisfying the democratic aspirations over the citizens of the capital to govern themselves in consonance with the spirit of their national Constitution and the requirement that the national Government should have sufficient control over the capital city and its administration for discharging its national and international responsibilities and commitments.”

The Committee considered the following five options:

“(1) The existing structure under the Delhi Administration Act, 1966 may be retained with such modifications as may be found necessary.
(2) The administration of Delhi may be the direct responsibility of the Central Government except for municipal functions to be left with the Municipal Corporation or other municipal bodies; there is no need for any Legislative Assembly or Council of Ministers.
(3) Delhi may be made a full-fledged State of the Union.
(4) Delhi may be made a Union territory with a Legislative Assembly and Council of Ministers.
(5) Delhi may be given a special status and dispensation under the Constitution itself.”

The Committee indicated the reasons which had weighed with it in rejecting the claim for full statehood to Delhi. Firstly, the Committee noted that the conferment of full statehood would result in a constitutional division of legislative power between the Union and the State and to that extent, the Union Executive would be denuded of executive powers in relation to matters governed by the State list. In the view of the Committee:

“..This constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the national capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the national capital and the need for keeping it under the control of the Union Government. Such control is vital in the national interests irrespective of whether the subject matter is in the State field or Union field. If the administration of the national capital is divided into rigid compartments of State field and Union field, conflicts are likely to arise in several vital matters, particularly if the two Governments are run by different political parties. Such conflicts may, at times, prejudice the national interest. We have given careful thought to the matter and we are of the considered opinion that any arrangement for Delhi that involves constitutional division of powers, functions and responsibilities between the Union and the government of the national capital will be against the national interest and should not be made.”

The Committee opined that “the national capital belongs to the nation as a whole” and hence a demand for full statehood could not be entertained. Consistent with its view, the Committee opined that Delhi should have a Legislative Assembly and a Council of Ministers, while continuing to be a Union territory for the purposes of the Constitution. The legislative powers conferred upon the Legislative Assembly were to exclude certain specific subjects, having due regard to the special responsibility of the Union in respect of Delhi. The Committee recommended that the subjects of public order and police should be excluded from the purview of the Legislative Assembly. The report of the Committee recommended that the Administrator for the Union Territory should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression “aid and advice”, the Committee noted, is a term of art based on the cabinet form of government adopted by the Constitution. However, the principle of aid and advice would be subject to three modifications: (i) it would not apply in respect of those matters where the Administrator exercises judicial or quasi-judicial functions; (ii) the Administrator would act on aid and advice in respect of matters where the legislative Assembly has the power to make laws; and (iii) a special provision would be made to resolve differences between the Administrator and his Council of Ministers on any matter concerning the administration of Delhi.

The Committee was of the following view:

“..by virtue of article 239 of the Constitution, the ultimate responsibility for good administration of Delhi is vested in the President acting through the Administrator. Because of this, the Administrator has to take a somewhat more active part in the administration than the Governor of a State. It is, therefore, necessary to reconcile between the need to retain the responsibility of the Administrator to the Centre in this regard and the need for enforce the collective responsibility of the Council of Ministers to the Legislature. The best way of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council of Ministers, he should refer the question to the President and the decision of the President thereon will be final..”

The Committee considered whether the administration of Delhi should be provided for under a law enacted by Parliament, as was the case earlier. The Committee recommended a constitutional amendment in preference to a statute governing the administration of the national capital as a measure of stability and permanence:

“..any arrangement providing for the structure of government for the national capital is of great importance and significance to the nation and, as such, it is desirable that any such arrangement should ensure a measure of stability and permanence: The fluid situation which existed at the time when the Constitution came into force and which was the ground relied upon at that time for making a flexible arrangement no longer exists. We, therefore, consider that the time has come for making specific constitutional provisions for the structure of government for the national capital at least in regard to the core features thereof. If the provisions are incorporated in the Constitution an amendment can be made only by a two-thirds majority in parliament which may not always be available. To that extent a scheme incorporated in the Constitution would be more permanent than one in a law of parliament. We have no doubt that this will go a long way in assuring the people of Delhi that the governmental structure will be stable and will not suffer by the play of political forces.”

The Committee thus recommended a constitutional amendment, with the above core features, with parliamentary legislation supplementing them in details.

68 The Statement of Objects and Reasons for the sixty ninth amendment to the Constitution explains its rationale in the following terms :

“After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories.” (Emphasis supplied)

The avowed object of the sixty ninth amendment was to ensure that while Delhi would continue to be a Union territory, it would have a legislative assembly and a Council of Ministers responsible to it. This was to vest “appropriate powers” to deal with the matters of concern to the common man. The object of the constitutional amendment was to attribute “stability and permanence” to the arrangements to govern the Union territory and to confer “a special status among the Union territories” to the national Capital. In other words, while the status of the NCT would be of a Union territory, it nonetheless had a special status within the class of Union Territories.

69 Having regard to this history and background, it would be fundamentally inappropriate to assign to the NCT a status similar to other Union territories.

Article 239AA(4) is a special provision which was adopted to establish a special constitutional arrangement for the governance of the NCT, albeit within the rubric of Union territories. In interpreting the provisions of Article 239AA, this Court cannot adopt a blinkered view, which ignores legislative and constitutional history. While adopting some of the provisions of the Acts of 1963 and 1966, Parliament in its constituent capacity omitted some of the other provisions of the legislative enactments which preceded the sixty ninth amendment. The relationship between the Council of Ministers and the Administrator of the Union territory evolved as Delhi progressed from a Part C State (before the Seventh Amendment) to a Union Territory governed by legislation. As a Union territory, the position of Delhi has evolved from being administered by an Administrator under Article 239A following the fourteenth amendment and from governance under the earlier enactments of Parliament to its present-day status as a national capital territory governed by a specific constitutional provision: Article 239AA. We have noticed how, when Delhi was within the purview of the Part C States Act, every decision of the Council of Ministers on any matter concerning New Delhi was subject to the concurrence of the Chief Commissioner and any difference of opinion was to be resolved by the Chief Commissioner himself acting in his discretion to administer New Delhi. Under the Act of 1963, besides matters which the Administrator was required to act in his discretion or where he was to exercise judicial or quasi-judicial functions under law there were matters vested in the Administrator in his “special responsibility” where he could act in his discretion. Under the Act of 1966, the Executive Council was to “assist and advice” the Administrator and each one of its decisions in relation to any matter concerning New Delhi was subject to the concurrence of the Administrator. The absence of similar provisions in Article 239AA cannot be ignored while defining the nature of the relationship between the Council of Ministers and the Lieutenant Governor and the authority of the Lieutenant Governor.

H NCT : A Special Class among Union Territories?

70 All Union territories are grouped together in Part VIII of the Constitution. While bringing them under the rubric of one constitutional pairing, there is an unmistakable distinction created between them by the Constitution. Such a distinction originates in Article 239(1) itself. While setting out the basic premise that “every Union territory shall be administered by the President”, Article 239(1) conditions it upon two important qualifications. The first is provided by the language with which Article 239(1) opens, which is: “save as otherwise provided by Parliament by law”. The second qualification is that the President may exercise the power of administering each Union territory “to such extent as he thinks fit” through an Administrator. The opening words essentially leave it to Parliament to determine the nature and extent to which the administration of a Union territory would be exercised through the President. The President may exercise that power through the office of an Administrator to such extent as he thinks fit. The expression “to such extent as he thinks fit” enunciates a constitutional discretion by which the limits of the exercise by the President of the power of administration through an Administrator are to be set. Both these qualifications have significant constitutional implications because they leave open the nature and extent of the administration of the Union territory by the President, through the auspices of an Administrator, to the determination by Parliamentary legislation.

71 The provisions of Article 239 result in significant consequences for the position of Union territories. Article 239 does not elucidate the nature or extent of administrative or regulatory control over the Union territory. Article 239A (which presently applies to Puducherry), Article 239AA (which has special provisions for Delhi) and Article 240 leave no manner of doubt that the relationship of the Union government with every Union and the extent of Presidential control over the administration is not intended to be uniform. These three Articles indicate that a distinction has been made between the status of Union territories at least in terms of the exercise of legislative powers in relation to executive functions.

72 This distinction would emerge from a close reading of the provisions of Article 240 which governs :
(i) The Andaman and Nicobar Islands;
(ii) Lakshadweep;
(iii) Daman and Diu;
(iv) Dadar and Nagar Haveli; and
(v) Puducherry.
Clause 1 of Article 240 enables the President to make regulations for “the peace, progress and good government” of the Union territories mentioned above. Article 239A as we have noticed earlier, empowers Parliament to create a local legislature or a Council of Ministers (or both) for Puducherry. Once Parliament enacts legislation under clause 1 of Article 239A, it would be incongruous to have a duality of governance with the President making regulations for peace, progress and good government as well. Hence, the proviso to Article 240(1) states that the President shall not make any such regulation after the legislature for the Union territory of Puducherry has first convened, when a Parliamentary legislation under Article 239A creates a body to function as a legislature. However, when the legislature is dissolved or its functioning is eclipsed pursuant to a Parliamentary legislation, the Presidential power to make regulations for peace, progress and good government is revived. Puducherry was therefore grouped together with the other Union territories under Article 240(1) but in contemplation of a law made by Parliament under Article 239A, a specific constitutional mandate allows for the entrustment of legislative and executive functions to the extent that they are transferred under the law to the local legislature or, as the case may be, to the Council of Ministers. If Parliament were to enact no law at all, the President would continue to retain the power to frame regulations. Moreover, even upon the enactment of Parliamentary legislation, the Presidential power to frame regulations for Puducherry is revived where the legislature stands dissolved or its functioning is suspended.

73 Delhi presents a special constitutional status under Article 239AA. This is fortified when those provisions are read in contrast with Articles 239A and 240. Article 239AA does not incorporate the language or scheme of Article 240(1), which enables the President to frame regulations for peace, progress and good government of the Union territories referred to in Article 240(1). This proviso to Article 240(1) indicates that once a Parliamentary law has been framed, the President shall not frame regulations for Puducherry. In the case of Delhi, Article 239AA does not leave the constitution of a legislature or the Council of Ministers to a law to be framed by Parliament in future. Article 239AA mandates that there shall be a legislative assembly for the NCT and there shall be a Council of Ministers, with the function of tendering aid and advice to the Lieutenant Governor. The “there shall be” formulation is indicative of a constitutional mandate. Bringing into being a legislative assembly and a Council of Ministers for the NCT was not relegated by Parliament (in its constituent power) to its legislative wisdom at a future date upon the enactment of enabling legislation. Clause 7(a) of Article 239AA enables Parliament by law to make provisions to give effect to or to supplement the provisions contained in that Article. Parliament’s power is to enforce, implement and fortify Article 239AA and its defining norms.

74 The above analysis would indicate that while Part VIII brings together a common grouping of all Union territories, the Constitution evidently did not intend to use the same brush to paint the details of their position, the institutions of governance (legislative or executive), the nature of democratic participation or the extent of accountability of those entrusted with governance to their elected representatives. Hence, in defining the ambit of the constitutional powers entrusted to the Council of Ministers for the NCT and their relationship with Lieutenant Governor as a delegate of the President, the Court cannot be unmindful of the constitutional importance which has to be assigned to representative government. Representative government is a hallmark of a Constitution which is wedded to democracy for it is through a democratic form of governance that the aspirations of those who elect their representatives are met. Undoubtedly, governance of the NCT involves national imperatives. They must also weigh in the balance. The proviso to clause 4 of Article 239AA is constitutional indicator of the national concerns which were borne in mind when the constituent power was exercised to establish the NCT as a political arm of governance by a special constitutional provision. Those national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of the legislative assembly and their entrustment to Parliament. Again, it is the sense of a national imperative which led to the constituent power being so modulated in relation to the NCT as to allow Parliamentary legislative authority over all entries in the State list, in addition to the Concurrent list. Parliament does not exercise legislative authority in relation to State list entries as regards the states in India unless a matter falls within the ambit of Articles 252 or 253. Parliamentary legislative control over Union territories has been broadened precisely as a manifestation of national imperatives or concerns. The executive power of the Council of Ministers being co-extensive with legislative power, this aspect has to be borne in mind. The true challenge is to maintain that delicate balance in a federating Union, such as ours, which ensures that national concerns are preserved in the interest of the unity and integrity of the nation, while at the same time local aspirations exercised through the democratic functioning of elected governments find expression in our polity.

75 The constitutional principle which emerges is that while Delhi presents a special case, quite unlike the other Union territories, the constitutional provisions governing it are an amalgam between national concerns (reflected in control by the Union) and representative democracy (expressed through the mandate of a Council of Ministers which owes collective responsibility to a directly elected legislature). There is no gainsaying the fact that the control by the Union, is also control of the President acting on the aid and advice of the Union Council of Ministers which in turn owes collective responsibility to Parliament. Constitutional statesmanship between the two levels of governance, the Centre and the Union territory, ought to ensure that practical issues are resolved with a sense of political maturity and administrative experience. This Court has to step in only because skirmishes between the two have raised constitutional issues of the proper distribution of executive control over the National Capital Territory.

I The Government of National Capital Territory of Delhi Act, 1991
76 Parliament enacted the Government of National Capital Territory of Delhi Act 199177 “to supplement the provisions of the Constitution relating to the legislative assembly and a Council of Ministers for the National Capital Territory of Delhi”. The legislation has been enacted in pursuance of the provisions of clause 7(a) of Article 239AA.

77 Some of the salient features of the law merit reference. The law mandates direct election from territorial constituencies to the legislative assembly78. The duration of the assembly is fixed at five years79. The Lieutenant Governor has the right to address and to communicate messages to the assembly80. The law provides special provisions for financial bills81. A recommendation of the Lieutenant Governor, prior to the introduction of a Bill or amendment in the legislative assembly is mandatory, where it incorporates a provision for any of the following :

“(a) the imposition, abolition, remission, alteration or regulation of any tax ;
(b) the amendment of the law with respect to any financial obligations undertaken or to be
undertaken by the Government of the Capital;
(c) the appropriation of moneys out of the Consolidated Fund of the Capital;
(d) the declaring of any expenditure to be expenditure charged on the Consolidated fund of the Capital or the increasing of the amount of any such expenditure;”82

Similarly, if a Bill, when enacted into law, would involve an expenditure from the consolidated fund of the Capital, it requires the prior recommendation of the Lieutenant Governor before being passed by the legislative assembly. Assent of the Lieutenant Governor to Bills passed by the legislative assembly is mandated in the following terms:

“Section 24. Assent to Bills : – When a Bill has been passed by the Legislative Assembly, it shall be presented to the Lieutenant Governor and the Lieutenant Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President :

Provided that the Lieutenant Governor may, as soon as possible after the presentation of the Bill to him for assent, return the Bill if it is not a Money Bill together with a message requesting that the Assembly will consider the Bill or any specified provisions thereof, and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the Assembly will reconsider the Bill accordingly, and if the Bill is passed again with or without amendment and presented to the Lieutenant Governor for assent, the Lieutenant Governor shall declare either that he assents to the Bill or that he reserves the Bill for the consideration of the President:

Provided further that the Lieutenant Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which, –

(a) in the opinion of the Lieutenant Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is, by the Constitution, designed to fill; or
(b) the President may, by order, direct to be reserved for his consideration; or
(c) relates to matters referred to in sub-section (5) of section 7 or section 19 or section 34 or sub-section (3) of section 43.

Explanation :- For the purposes of this section and section 25, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the matters specified in sub-section (1) of section 22 or any matter incidental to any of those matters and, in either case, there is endorsed thereon the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.”

As the above provisions indicate, the Lieutenant Governor can assent to a Bill, withhold assent or reserve the Bill for consideration of the President. Where the Bill is not a Money Bill, the Lieutenant Governor is permitted to return it for reconsideration to the Assembly. Thereafter, if the Bill is passed again by the Assembly, the Lieutenant Governor can either assent to the Bill or reserve it for consideration of the President. The second proviso sets out three categories of Bills which the Lieutenant Governor must reserve for the consideration of the President. Where the Bill has been reserved for the consideration of the President, Section 25 stipulates that the President may either assent or withhold assent to the Bill. The President may, if it is not a Money Bill, direct the Lieutenant Governor to return the Bill to the assembly for reconsideration and if it is again passed, the Bill has to be presented again to the President for consideration.

78 The power of the Lieutenant Governor is wider than the power of the Governor of a State under Article 200 of the Constitution. Article 200 provides as follows:

“Article 200. When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, Assent to Bills. When a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

Under Article 200, where the Governor has returned a Bill (not being a Money Bill) to the legislative assembly of the State for reconsideration and the Bill is passed by the legislature, the Governor is precluded from withholding assent. In contrast, Section 24 confers authority upon the Lieutenant Governor, even if a Bill has been reconsidered and passed by the legislative assembly of the NCT, to either assent to it or reserve it for consideration of the President. Moreover, the second proviso to Section 24 widens the categories of Bills which the Lieutenant Governor must necessarily reserve for the consideration of the President. Clause (a) of the second proviso corresponds to the second proviso to Article 200. In addition, clause (b) of the second proviso to Section 24 empowers the President to direct the Lieutenant Governor to reserve a Bill for his consideration. Similarly, under clause (c), Bills relating to salaries payable to the Speaker, Deputy Speaker and the members of the legislative assembly of NCT, the official language of the Capital and of the legislative assembly and the salaries and the allowances of the Ministers, are matters upon which the Lieutenant Governor has to reserve a Bill for the consideration of the President. These provisions indicate a greater degree of interface between the President and the Lieutenant Governor.

79 Section 27 provides for the laying of an annual financial statement by the Lieutenant Governor before the legislative assembly with the previous sanction of the President, containing the estimated receipts and expenditure of the Capital for that year. Section 29 makes a provision for appropriation Bills. Section 30 provides for supplementary, additional or excess grants. Here again, a provision has been made for the previous sanction of the President. Section 33 empowers the legislative assembly to make rules for regulating, subject to the Act, its procedure and conduct of business. The Lieutenant Governor upon consulting the Speaker of legislative assembly and with the approval of the President may make rules for the timely completion of financial business; for regulating the procedure of and the conduct of business in the legislative assembly in relation to financial matters of Bills; for the appropriation of moneys within the consolidated fund of the Capital; and for prohibiting any discussion on matters where the Lieutenant Governor is to act in his discretion. Under Section 34, the President has been empowered to direct that the official language of the Union shall be adopted for such of the official purposes of the Capital as may be specified, and that any other language shall also be adopted.

80 Part IV of the GNCTD Act has inter alia made provisions for matters which lie in the discretion of the Lieutenant Governor, the conduct of business, and the duty of the Chief Minister to communicate with and share information with the Lieutenant Governor. Section 41 provides thus:

“Section 41. Matters in which Lieutenant Governor to act in his discretion:-
(1) The Lieutenant Governor shall act in his discretion in a matter –
(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President ; or
(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final.
(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.”

81 The Lieutenant Governor acts in his discretion in two classes of matters. The first consists of those which are outside the powers conferred upon the legislative assembly but in respect of which the President has delegated powers and functions to the Lieutenant Governor. The second category consists of those matters where the Lieutenant Governor is required to act in his discretion by or under any law or under which he exercises judicial or quasi-judicial functions. Matters falling within the ambit of Section 41 lie outside the realm of the aid and advice mandate. Where a subject or matter lies outside the purview of the legislative assembly, it necessarily lies outside the executive powers of the government of the NCT. Such matters stand excepted from the ambit of the aid and advice which is tendered by the Council of Ministers to the Lieutenant Governor.

82 Section 44 stipulates that the President may make rules for the conduct of business:
“Section 44. Conduct of business:
(1) The President shall make rules –
(a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and
(b) for the more convenient transaction of business with the Ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.”

Under Section 44, the allocation of business amongst ministers in the government on matters where the Lieutenant Governor is to act on the aid and advice of the Council of Ministers has to be prescribed by the rules framed by the President. Similarly, rules for the convenient transaction of business with Ministers and for the modalities to be followed where there is a difference between the Lieutenant Governor and the Council of Ministers or a Minister are framed by the President. All executive action is under sub-section 2 expressed in the name of the Lieutenant Governor. Sub-Section 3 provides for the authentication of orders and instruments made and executed in the name of the Lieutenant Governor.

83 Section 44 may be distinguished from the provisions of the Constitution in relation to the conduct of business of the Union government (under Article 77) and the conduct of business of the States (under Article 166). Article 77 inter alia stipulates that all executive action of the Union government shall be expressed in the name of the President and that orders or instruments in the name of the President shall be authenticated in accordance with the rules framed by the President. The President is empowered to make rules for the convenient transaction of business and for allocation of that business among ministers. Article 166 is pari materia (with the substitution of the Governor, for the President in relation to a State). Unlike in the case of a State, where rules of business are prescribed by the Governor, Section 44 requires that the rules in relation to the conduct of business in the NCT be framed by the President.

Moreover, there is no provision analogous to the proviso to Article 239AA(4) in relation to the affairs of a State under the Constitution. Article 167 does not contain a provision for the procedure to be adopted where there is a difference of opinion between the Governor and the Council of Ministers.

84 Section 45 provides for the duty of the Chief Minister to communicate with and share information with the Lieutenant Governor:
“Section 45. Duties of Chief Minister as respects the furnishing of information to the Lieutenant Governor, etc,- It shall be the duty of the Chief Minister –
(a) to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for; and
(c) If the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

Section 45 is similar in terms to Article 78 (in relation to the Prime Minister) and Article 167 (in relation to a Chief Minister of a State). Articles 78 and 167 embody the fundamental duty of the elected head of government in a cabinet form of government to communicate with the titular head of state and to furnish information in regard to the affairs of the state. The duty to keep the head of State informed in relation to the affairs of State arises because real decision making vests in the elected executive. Since decisions are taken by the executive, the head of State is kept apprised in reference to his constitutional position as titular head.

85 Section 46 provides for the Consolidated Fund of the Capital. Section 47 provides for contingency funds. Section 47(A) provides that the executive power of the Union extends to borrowing upon the security of the Consolidated Fund of the Capital within the limits determined by Parliamentary legislation.

86 Section 49 establishes the principle of the “general control” of the President over the Lieutenant Governor and the Council of Ministers.
“Section 49. Relation of Lieutenant Governor and his Ministers to President – Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

As an incident of control, the Lieutenant Governor and Council of Ministers must comply with the particular directions issued by the President. Such directions are obviously issued on the aid and advise of the Union Council of Ministers.

Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union government.

87 This survey of the provisions of the GNCTD Act 1991 indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the Capital. The Lieutenant Governor has been conferred with certain specific powers by the provisions of the Act including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. As we have seen, the Lieutenant Governor has been subjected to a wider obligation to reserve Bills for the consideration of the President and in regard to withholding of his assent to a Bill which has been passed by the legislative assembly in comparison with the duties of a Governor of a State. Matters such as the presentation of the annual financial statement or supplementary, additional or excess grants require previous sanction of the President. The President has been conferred with the power to issue directions in regard to the official language of the National Capital Territory. The Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the legislative assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi judicial functions. Rules for the conduct of business are framed by the President in relation to the National Capital Territory, including for the allocation of business. They would include the procedure to be followed where there is a difference of opinion between the Lieutenant Governor and the Council of Ministers. Section 49, which has a non-obstante provision, subjects the Lieutenant Governor and the Council of Ministers to the general control of the President and to such directions as may be issued from time to time.

J The Transaction of Business Rules, 1993
88 The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 (“Transaction of Business Rules”) have been formulated by the President in exercise of powers conferred by Section 44 of the GNCTD Act 1991. Rule 4(1) embodies the principle of collective responsibility. According to the Rule 4(1):

“4. (1) The Council shall be collectively responsible for all the execution orders issued by any Department in the name of the Lieutenant Governor and contracts made in the name of the President in connection with the administration of the Capital whether such orders or contracts are authorised by an individual Minister in respect of a matter pertaining to the Department under his charge or as a result or discussions at a meeting of the Council.”

89 Rule 7 stipulates that all proposals which are referred to in the Schedule must be placed before the Council of Ministers in accordance with the provisions contained in Chapter 3. All such proposals after consideration by the Minister-in-charge have to be submitted to the Chief Minister. Rule 8 envisages orders of the Chief Minister either for circulation of a proposal under Rule 9 or for placing it for consideration of the Ministers. Rule 9 empowers the Chief Minister to circulate proposals to the Ministers for opinion instead of placing them before the Council of Ministers. A proposal can be passed by circulation only if there is unanimity of opinion among the Ministers.

90 The Transaction of Business Rules contain elaborate provisions for the Lieutenant Governor to be kept informed right from the stage of a proposal. Rule 9(2), stipulates that where a proposal is circulated, a memorandum explaining the proposal has to be prepared for circulation among the Ministers and simultaneously a copy has to be forwarded to the Lieutenant Governor. According to the Rule 9(2):

“If it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the facts of the proposal, the points for decision and the recommendations of the Minister in charge and forward copies thereof to the Secretary to the Council who shall arrange to circulate the same among the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.”

Under Rule 10(4), if the Chief Minister accepts the recommendations, he is to return the proposal with his orders to the Secretary to the Council of Ministers. Thereupon, Rule 10(5) stipulates that :
“On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V.”

Rule 10(5) requires that on receipt of a proposal, the Secretary to the Council is to communicate the decision to the Lieutenant Governor and to share the proposal with the Secretary of the concerned department. The Secretary of the department concerned would proceed to issue orders, unless a reference to the Central government is required under Chapter V. Chapter V, as we shall note hereafter, deals with a situation where there has been a difference of opinion between the Lieutenant Governor and the Council of Ministers.

91 Proposals which are required to be placed before the Council of Ministers are dealt with in Rule 11, which provides thus :

“When it has been decided to place a proposal before the Council, the Department to which it belongs, shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating precisely the salient facts of the proposal and the points for decision. Copies of the memorandum and such other documents, as are necessary to enable the proposal to be disposed of shall be forwarded to the Secretary to the Council who shall arrange to circulate the memorandum to the Ministers and simultaneously send a copy thereof to the Lieutenant Governor.”

A memorandum explaining the proposal is placed by the department to which the proposal belongs before the Secretary to the Council. The latter circulates the memorandum to the Ministers and simultaneously sends a copy to the Lieutenant Governor. Rule 13(3) requires that the agenda, upon being approved by the Chief Minister, must be forwarded by the Secretary to the Council to the Lieutenant Governor, the Chief Minister and other Ministers. A record of the decisions taken in the meetings of the Council is prepared and, under Rule 13(7), the Secretary to the Council is required to forward a copy to the Ministers and to the Lieutenant Governor. Rule 14 provides thus: “(1) The decision of the Council relating to each proposal shall be separately recorded and after approval by the Chief Minister, or the Minister presiding , shall be placed with the records of the proposal. After approval by the Chief Minister or the Minister presiding , the decision of the Council as approved, shall be forwarded by the Secretary to the Council to the Lieutenant Governor.

(2) Where a proposal has been approved by the Council and the approved record of the decision has been communicated to the Lieutenant Governor, the Minister concerned shall take necessary action to give effect to the decision.”

After a decision has been taken by the Council on a proposal and upon the approval by the Chief Minister, the decision is forwarded to the Lieutenant Governor. After the decision has been communicated to the Lieutenant Governor, the Minister concerned is empowered to give effect to the decision.

92 Rule 15 empowers the Minister in charge of a department to dispose of proposals or matters in the department in accordance with the Standing Orders. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and to the Chief Minister. Under Rule 16, the Minister can provide, by means of Standing Orders, for matters to be brought to his personal notice. Copies of the Standing Orders have to be forwarded to the Lieutenant Governor and the Chief Minister. Rule 17 requires a weekly submission of statements containing particulars of important proposals or matters disposed of in the department both to the Lieutenant Governor and the Chief Minister.

93 Rule 19(5) confers authority upon the Lieutenant Governor to call for papers of a proposal or matter from any department. Rule 19(5) is in the following terms:
“The Lieutenant Governor may call for papers relating to any proposal or matter in any Department and such requisition shall be complied with by the Secretary to the Department concerned, he shall simultaneously inform the Minister-in- charge of the department of the action taken by him.”

Rule 22 provides for a class of matters which shall be brought to the attention of the Lieutenant Governor and the Chief Minister:

“Any matter which is likely to bring the Government of the Capital into controversy with the Central Government or with any State Government, shall, as soon as possible, be brought to the notice of the Lieutenant Governor and the Chief Minister.”

Rule 23 provides for classes of proposals or matters which must be submitted to the Lieutenant Governor before orders are issued. Rule 23 is in the following terms:
“The following classes of proposals or matters shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, namely:
(i) matters which affect or are likely to affect the peace and tranquillity of the capital;
(ii) matters which affect or are likely to affect the interest of any minority community, Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with any State Government , the Supreme Court of India or the High Court of Delhi;
(iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V;
(v) matters pertaining to the Lieutenant Governor’s Secretariat and personnel establishment and other matters relating to his office;
(vi) matters on which Lieutenant Governor is required to make order under any law or instrument in force;
(vii) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence;
(viii) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those; and
(ix) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.”

Rule 24 provides thus:

“Where the Lieutenant Governor is of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the Minister in-charge, he may require the proposal or matter to be placed before the Council for consideration: Provided that the notes, minutes or comments of the Lieutenant Governor in any such case shall not be brought on the Secretariat record unless the Lieutenant Governor so directs.”

Rule 25 casts a duty on the Chief Minister to furnish to the Lieutenant Governor information on certain matters pertaining to the administration of the Capital. According to Rule 25: “The Chief Minister shall:
(a) cause to be furnished to the Lieutenant Governor such information relating to the administration of the Capital and proposals for legislation as the Lieutenant Governor may call for; and
(b) if the Lieutenant Governor so requires, submit for the consideration of the Council any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

Rule 45 of the Transaction of Business Rules deals with the disposal of business relating to the executive functions of the Lieutenant Governor. Under Rule 45:

“The Lieutenant Governor, may by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions:

Provided that the standing orders shall be consistent with the provisions of this Chapter, Chapter V and the instructions issued by the Central Government for time to time.

Provided further that the Lieutenant Governor shall in respect of matters connected with ‘public order’, ‘police’ and ‘land’ exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. Provided further that ‘standing orders’ shall not be inconsistent with the rules concerning transaction of business.”

The second proviso deals with the class of subjects (public order, police and law) which stand carved out of the legislative powers of the Assembly and hence lie outside the executive powers of the NCT government. On such matters, to the extent to which functions are delegated to the Lieutenant Governor by the President, the Lieutenant Governor will consult the Chief Minister if the President has so provided in an order under Article 239. Rule 46 makes provisions in regard to persons serving in connection with the administration of the National Capital Territory:

“(1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution.

(2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause(3) of article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public Services Commission unless authorised to do so by the Central Government.

(3) All correspondence with Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor.”

Under Rule 47, the Lieutenant Governor has to consult the Union government before exercising his powers or discharging his functions in respect of any matter for which no specific provision is contained in the Rules.

94 Chapter V of the Transaction of Business Rules sets out the procedure to be followed by the Lieutenant Governor in making a reference to the Central government in the event of a difference of opinion with the Council of Ministers. Rules 49, 50 and 51 provide as follows:

“49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council.”

“50. In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.”

“51. Where a case is referred to the Central Government in pursuance of rule 50, it shall be competent for the Lieutenant Governor to direct that action shall be suspended pending the decision of the President on such case or in any case where the matter, in his opinion, is such that it is necessary that immediate action should be taken to give such direction or take such action in the matter as he deems necessary.”

Where a direction has been issued by the Lieutenant Governor under Rule 51, the Minister concerned must take action to give effect to the direction.

95 Under Rule 53, an annual plan for each financial year is to be prepared under the directions of the Lieutenant Governor which has to be referred to the Central government for approval. The form of the annual financial statement and the procedure for obtaining the approval of the President have to be prescribed by the Central government under Rule 54.

96 Rule 55(1) provides for certain categories of legislative proposals which must be referred to the Central government by the Lieutenant Governor. Rule 55(2) enunciates those matters upon which the Lieutenant Governor shall make a prior reference to the Union government in the Ministry of Home Affairs or through the appropriate ministry. According to Rule 55:
“(1) The Lieutenant Governor shall refer to the Central Government every legislative proposal, which
(a) if introduced in a Bill form and enacted by the Legislative Assembly, is required to be reserved for the consideration of the President under the proviso to subclause (c) of clause (3) of article 239 AA or, as the case may be, under the second proviso to section 24 of the Act;
(b) attracts provisions of articles 286, 287, 288 and 304 of the Constitution as applicable to the Capital;
(c) relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Capital or abandonment of revenue or lowering of rate of any tax.
(2) Subject to any instructions which may from time to time be issued by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters:-
(a) proposals affecting the relations of the Central Government with any State Government, the Supreme Court of India or any other High Court;
(b) proposals for the appointment of Chief Secretary and Commissioner of Police, Secretary (Home) and Secretary (Lands);
(c) important cases which affect or are likely to affect the peace and tranquillity of the National Capital Territory; and
(d) cases which affect or are likely to affect the interests of any minority community, Scheduled Castes or the backward classes.”

Rule 56 stipulates that where a matter has been referred by the Lieutenant Governor to the Central government under the Rules, further action shall not be taken except in accordance with the decision of the Central government.

97 Analysing the Transaction of Business Rules, it becomes evident that the Lieutenant Governor is required to be kept informed of governmental business.

The duty of the Council of Ministers, with the Chief Minister at its head, to do so begins at the stage of a proposal. When a proposal is circulated under the directions of the Chief Minister to the Council of Ministers, a copy of the explanatory memorandum has to be forwarded to the Lieutenant Governor. After the proposal has been approved, the decision is communicated to the Lieutenant Governor. The decision is forwarded to the Secretary of the department concerned for issuing orders unless a reference to the Central government is warranted under Chapter V. Where a proposal is placed before the Council of Ministers, an explanatory memorandum has to be forwarded to the Lieutenant Governor. Copies of the agenda, upon approval of the Chief Minister, are required to be submitted to the Lieutenant Governor. A record of the decisions of the Council of Ministers is forwarded to the Lieutenant Governor. After the decisions of the Council have been approved by the Chief Minister, they are forwarded by the Secretary to the Council to the Lieutenant Governor. Rule 14(2) stipulates that after a proposal has been approved by the Council of Ministers and the approved record of the decision has been communicated to the Lieutenant Governor, the minister concerned “shall take necessary action to give effect to the decision”. Communication of the approved record of the decision to the Lieutenant Governor is mandatory and it is only thereafter that the decision can be implemented. The Lieutenant Governor is empowered to call for papers relating to any proposal or matter in any department under Rule 19(5). The power conferred upon the Lieutenant Governor to do so is independent of and does not detract from the duty of the Council of Ministers to keep him informed at every stage. Matters which are likely to bring the government of the NCT into controversy with the Central government or with any state government must be bought to the notice of the Lieutenant Governor. As distinguished from Rule 14, Rule 23 sets out those classes of proposals or matters which have to be submitted to the Lieutenant Governor before orders are issued thereon. Rule 14(2), as noted earlier, stipulates that upon being approved by the Council, the record of the decision is communicated to the Lieutenant Governor upon which the minister will take necessary action to give effect to the decision. However, Rule 23 elucidates specified situations where proposals or matters must be essentially submitted to the Lieutenant Governor before issuing orders thereon. These matters are considered to be important enough to warrant a mandatory prior submission to the Chief Minister as well as to the Lieutenant Governor before orders are issued. These provisions in the Transaction of Business Rules ensure that the Lieutenant Governor is kept informed of the affairs and administration of the National Capital Territory at every stage. The rules leave no element of discretion in the Council of Ministers to not comply with the obligation. The obligation to keep the Lieutenant Governor informed at every stage brooks no exceptions.

98 The Transaction of Business Rules set out a careful defined procedure to enable the Lieutenant Governor to counsel the Ministers. This is to facilitate a further reflection or reconsideration in certain situations. Rule 24 deals with one such situation where the Lieutenant Governor is of the opinion “that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the minister in charge”. The Lieutenant Governor may in either case require that the proposal or matter be placed before the Council of Ministers for consideration. The duty of keeping the Lieutenant Governor abreast of the administration of the affairs of the National Capital Territory is amplified by Rule 25. Under the Rule, a duty has been cast on the Chief Minister to furnish to the Lieutenant Governor information on the administration of the Capital and proposals for legislation as the latter may summon. The Lieutenant Governor may also require the submission to the Council of a matter on which the Minister has taken a decision but it has not been placed before the Council.

99 Chapter IV enables the Lieutenant Governor to formulate standing orders regulating the transaction and disposal of business relating to his executive functions. The second proviso to Rule 45 specifically deals with matters connected with public order, police and land. These are subjects which lie outside the ambit of legislative powers of the legislative assembly, since they fall under Entries 1, 2 and 18 of the State List. Since there is an absence of legislative power in relation to these subjects, they lie outside the realm of matters covered by the aid and advice of the Council of Ministers. On these excepted subjects, the Lieutenant Governor has to exercise his executive function to the extent to which there is a delegation by the President. The Lieutenant Governor has to consult the Chief Minister if it is so provided in an order of the President under Article 239. Clearly, therefore, in regard to the excepted matters, the exercise of the executive functions by the Lieutenant Governor must be in accord with the delegation, if any, by the President. The Lieutenant Governor can exercise only such executive functions, to the extent to which a delegation has been made. The requirement of consulting the Chief Minister would be subject to the contents of an order issued by the President under Article 239.

100 As regards persons who are in the service connected to the administration of the NCT, the Lieutenant Governor has been assigned under Rule 46 such powers and functions as are entrusted to him by the Rules and orders regulating the conditions of service of such persons or an order of the President made under Article 239. The Lieutenant Governor is mandated to consult the Union Public Service Commission on matters on which it is required to be consulted under Article 320(3). The Lieutenant Governor has to act in accordance with the advice of the Commission unless authorized by the Central government.

101 The Transaction of Business Rules elaborately define the modalities which the Lieutenant Governor must follow in the event of a difference of opinion with the Council of Ministers. The proviso to Article 239AA(4), Section 44(1)(b) of the GNCTD Act and Chapter V of the Transaction of Business Rules provide a composite and holistic perspective. They elucidate the modalities which must be followed when there is a difference of opinion. Chapter V supplements and gives effect to the proviso to Article 239AA(4). If a difference of opinion arises between the Lieutenant Governor and a Minister on any matter, the first and primary endeavour must be to resolve it by discussion. Before the matter escalates to the next stage all efforts have to be devoted to a mutual resolution with the Minister. If the difference of opinion continues to persist, the Lieutenant Governor is empowered to direct that the matter in difference be referred to the Council of Ministers. It is when a difference persists between the Lieutenant Governor and the Council of Ministers that a reference is contemplated by Rule 50 to the Central government for a decision of the President. These provisions provide a road map for the exercise of constitutional statesmanship. The differences between the Lieutenant Governor and a Minister or the Council of Ministers must in good faith be attempted to be resolved. Differences constitute the heart of democracy. Reason and dialogue are the essence of a democratic government. The affairs of government do admit of variations in perspective and opinion. The problems of governance are complex. The institutional process of decision making must be mature and tolerant. The theatrics which accompany the rough and tumble of politics ought not to disrupt the necessity for institutional governance which is marked by constitutional sobriety and administrative wisdom.

102 Settlement of a difference between a Minister and the Lieutenant Governor by discussion obviates a reference to the President and provides a flexible and expeditious solution where there is a difference of opinion. The first stage at which a resolution is attempted is between the Lieutenant Governor and the Minister in question. If that does not result in a satisfactory solution, the second stage involves the Council of Ministers as a collective entity. It is when the dispute has failed to meet a satisfactory resolution with the Council of Ministers that the Lieutenant Governor is empowered to make a reference to the Central government. The power of the Lieutenant Governor under Rule 55(2) stands independent of the area of difference of opinion covered by Rules 49, 50 and 51. Rule 55(2) brings into focus certain specified areas where certain matters have to be referred to the Union government either in the Union Ministry of the Home Affairs or in the appropriate ministry. The matters covered by Rule 55(2) are considered to be important enough to warrant a prior reference to the Central government.

103 The feature which stands out from the Transaction of Business Rules is that an obligation and duty has been cast upon the elected government and its officers to duly keep the Lieutenant Governor informed of proposals relating to governmental business. The duty to keep the Lieutenant Governor informed is a necessary element of the process and essential for the exercise of the constitutional authority which has been vested in the Lieutenant Governor. It is only when the Lieutenant Governor is kept duly apprised of matters relating to the administration of the National Capital Territory that a decision can be taken on whether a reference should be made to the Union government under Chapter V. If the Lieutenant Governor were to be kept in the dark, it would not be possible for him as a constitutional authority to determine as to whether the matter is of such a nature as would warrant a reference to the Central government. Sharing of information and the process of communication ensures a dialogue which promotes harmony in administration. The Rules are founded upon the need to maintain constitutional comity rather than strife.

104 A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the government of NCT, decision making is by the government comprised of the Council of Ministers with the Chief Minister at its head. The role of the Lieutenant Governor is evinced by the duty which is cast upon the government to keep him duly apprised on matters relating to the administration of the Union territory. On matters of executive business which lie within the constitutional functions assigned to the executive government of the NCT, such a role is elaborated in the functions assigned to the Lieutenant Governor under Rule 24. Rule 24 deals with an eventuality when the Lieutenant Governor may be of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenant Governor does not take his own decision. He has to refer the proposal or matter to the Council of Minister for consideration. Under Rule 25, Lieutenant Governor may require the Council to consider a matter on which a decision has been taken by a Minister but which has not been considered by the Council. Rule 23 enunciates matters which have to be submitted to the Lieutenant Governor before issuing any orders thereon. If the Lieutenant Governor disagrees with a decision or proposal, recourse has to be taken to the procedure which has been enunciated in Rules 49, 50 and 51. If there is a difference of opinion, the Lieutenant Governor must refer it to the Union government after following the procedure which has been laid down. After the decision of the President has been communicated, the Lieutenant Governor must follow that decision and implement it. In other words, the Lieutenant Governor has not been conferred with the authority to take a decision independent of and at variance with the aid and advice which is tendered to him by the Council of Ministers. If he differs with the aid and advice, the Lieutenant Governor must refer the matter to the Union government (after attempts at resolution with the Minister or Council of Ministers have not yielded a solution). After a decision of the President on a matter in difference is communicated, the Lieutenant Governor must abide by that decision. This principle governs those areas which properly lie within the ambit and purview of the executive functions assigned to the government of the National Capital Territory. Matters under Section 41 which fall under the discretion of the Lieutenant Governor stand at a different footing. The Lieutenant Governor may be required to act in his discretion where a matter falls outside the powers conferred on the legislative assembly but in respect of which powers or functions have been delegated to him by the President. The Lieutenant Governor may also be required to act in his discretion under a specific provision of law or where he exercises judicial or quasi judicial functions. Matters pertaining to public order, police and land lie outside the ambit of the legislative powers of the Assembly and hence are outside the executive functions of the government of NCT. These are matters where the Lieutenant Governor would act in the exercise of his functions at his discretion if and to the extent to which there has been a delegation or entrustment by the President to him under Article 239 of the Constitution. Hence, a distinction exists between matters which lie within the domain of the legislative powers of the Assembly and of the executive powers of the NCT government, and those which lie outside. On the former, the Lieutenant Governor must abide by the aid and advice tendered by the Council of Ministers and, in the event of a difference of opinion, refer the matter to the President for decision. In matters which lie outside the legislative powers of the legislative assembly, the Lieutenant Governor has to act in accordance with the entrustment or delegation that has been made to him by the President under Article 239.

105 Section 49 of the GNCTD Act confers an overriding power of control upon the President and the power to issue directions. Upon the exercise of Presidential powers under Section 49, the Lieutenant Governor would have to abide by the directions of the President.

K Precedents
Literal Interpretation
106 The Learned Additional Solicitor General has relied on certain decisions of this Court to support his submission that while interpreting the Constitution, the Court must read its words in a strictly textual manner. It is his contention that the provisions of Article 239AA, the GNCTD Act and Transaction of Business Rules must be given plain and literal interpretation.

107 The first case relied by the Learned ASG is the decision in Keshavan Madhava Menon v State of Bombay83 (“Keshavan Madhava Menon”). A Full Bench of the Bombay High Court had held that assuming that the provisions of the Indian Press (Emergency Powers) Act, 1931 were inconsistent with Article 19(1)(a) of the Constitution, proceedings which had been commenced and were pending at the date of the commencement of the Constitution were not affected even if the Act was inconsistent with the fundamental rights and had become void under Article 13(1). The appeal against the judgment of the High Court was adjudicated by a seven-Judge Constitution Bench of this Court. Justice S R Das, speaking for a majority of this Court held that:

“An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is nothing to prevent the President, in exercise of the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.”

Applying the standard, the majority held that Article 13 of the Constitution “is entirely prospective in operation and rendered inconsistent existing laws ineffectual on and after the date of the commencement of the Constitution”. The view of the majority was that there is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. Justice Fazal Ali in his dissenting judgment, however, held that:

“..Evidently, the framers of the Constitution did not approve of the laws which are in conflict with the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in Article 13(1), it is difficult for me to understand. There can be no doubt that Article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied.”

108 The next judgment on which reliance has been placed by the ASG is in Tej Kiran Jain v N Sanjiva Reddy84. A Bench of six judges of this Court was considering an appeal from the judgment of a Full Bench of the Delhi High Court rejecting a plaint claiming a decree for damages for statements made on the floor of the Lok Sabha during a Calling Attention Motion. Such an action was clearly barred under Article 105(2) of the Constitution. This Court rejected the contention that the immunity granted by Article 105(2) in respect of anything said or any vote given in Parliament would apply only to words relevant to the business of Parliament and not to something which was irrelevant. In that context, the Court held that:

“In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of “anything said …. In Parliament”. The word ‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from the words ‘in Parliament’ which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity is not only complete but is as it should be…”

109 The third decision is of a Constitution Bench in G Narayanaswami v G Pannerselvam85 (“Narayanaswami”). In that case, Article 171 of the Constitution came up for interpretation and the submission which was urged was that in order to be qualified to stand for election to a graduate constituency of the Legislative Council of a State, a person must also possess the qualification of being a graduate. Repelling the contention, this Court held that it was not open to the Court to add to the qualifications prescribed by the Constitution:

“..The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents… the view contained in the Judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions to the effect that the candidates from graduates’ constituencies of Legislative Councils must also possess the qualification of having graduated. This contravenes the rule of “plain meaning” or “literal” construction which must ordinarily prevail.”

110 In support of the above contention, reliance has also been placed on two other Constitution Bench decisions of this Court in Kuldip Nayar v Union of India86 (“Kuldip Nayar”) and Manoj Narula v Union of India87 (“Manoj Narula”). In Kuldip Nayar, an amendment made in the Representation of People Act, 1951 was challenged. By the said amendment, the requirement of “domicile” in the State concerned for getting elected to the Council of States was deleted. It was contended by the petitioner that removing the said requirement violated the principle of federalism, a basic feature of the Constitution. The Court rejected the contention of the petitioner. While endorsing and reiterating the view taken in the judgment in Narayanaswami, the Court held:

“It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact the rule of “literal construction” is the safe rule unless the language used is contradictory, ambiguous, or leads really to absurd results… The “representative” of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them. There is absolutely no basis for the contention that a person who is an elector in the State concerned is more “representative” in character than one who is not. We do not find any contradiction, ambiguity, or absurdity in the provisions of the law as a result of the impugned amendment. Even while construing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, the rule of “plain meaning” or “literal” interpretation compels us not to accept the contentions of the petitioners.”

In Manoj Narula, a writ petition under Article 32 of the Constitution assailed the appointment of some of the original Respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes. The question before the Court was whether a categorical prohibition can be read to the words contained in Article 75(1) of the Constitution so that the Prime Minister is constitutionally prohibited to give advice to the President in respect of a person for becoming a Minister who is facing a criminal trial for a heinous and serious offence and charges have been framed against him by the trial Judge. The Constitution Bench held that it cannot re-write a constitutional provision:
“Reading such an implied limitation as a prohibition would tantamount to adding a disqualification at a particular stage of the trial in relation of a person. This is neither expressly stated nor is impliedly discernible from the provision.”

111 These judgments do not advance the proposition which is sought to be urged on behalf of the Union of India that anything but the literal meaning of the words used is irrelevant to the interpretation of the Constitution. The judgment in Keshavan Madhava Menon held that the Court has to gather the spirit of the Constitution from its language and that the language of Article 13 had to be interpreted in accordance with the established rules of interpretation “uninfluenced by any assumed spirit of the Constitution”. These observations of the seven-judge Bench are not intended to adopt a principle of interpretation which requires the Court to ignore the basic values which the Constitution seeks to enhance, while interpreting the words used in the text. The words contained in the text of the Constitution have to be attributed a purposive interpretation which advances fundamental constitutional values. In Keshavan Madhava Menon, the Court found the ‘spirit of the Constitution’ to be perhaps too vague or amorphous (though it was not articulated specifically thus). After the evolution of the basic structure doctrine post Kesavananda, the interpretation of the Constitution must be guided by those fundamental tenets which constitute the foundation and basic features of the document. Where a provision of the Constitution is intended to facilitate participatory governance, the interpretation which the Court places must enhance the values of democracy and of republican form of government which are part of the basic features.

112 The judgment in Tej Kiran Jain rejects the attempt to dilute the immunity conferred by Article 105 in respect of statements made on the floor of the House. The judgment in Narayanaswami rejected the attempt to read a qualification for being elected to the Legislative Council which was not found in the text of Article 171. The Court in Manoj Narula refused to read a disqualification into the words of Article 75 for being appointed as a Minister of the Union Cabinet. The Constitution of India is an embodiment of multiple values. The Constitution preserves national unity. Yet it also nurtures regional autonomy and decentralization. As discussed in the beginning of this judgment, the approach of a constitutional court must be to interpret the Constitution so as “to arbitrate between contesting interpretations of the many core values on which our polity is believed to be based.”88 Each provision of the Constitution must therefore be studied “as an expression of values” and has to be interpreted “against the background of an overarching constitutional order”.89 Representative democracy underlines the essence of our Constitution. Collective responsibility of the Council of Ministers is the most essential component of the Cabinet form of government as envisaged under the Constitution. The trust reposed in the Council of Ministers of the NCT is based on its constitutional status. These moral values of the Constitution must therefore be upheld.

113 In Kuldip Nayar’s case, the Court had held that in order to interpret the intention behind the enactment of a provision, “one needs to look into the historical legislative developments”. Placing the structure of governance in the NCT to a constitutional pedestal (while making divergences from previous statutory schemes, as discussed earlier in this judgment) provided a special status to the NCT, which this Court cannot ignore.

This Court must interpret the Constitution on the basis of the principles elucidated in the beginning of this judgment.

Relationship between Centre and Union Territories
114 The relationship between the Union government and a Union territory has in varying contexts been the subject matter of decided cases. In Satya Dev Bushahri v Padam Dev90 (“Satya Dev Bushahri”), the election of the first respondent was questioned, among other grounds, for the reason that he was interested in contracts with the government and was disqualified for being chosen to the legislative assembly of Himachal Pradesh. The Election Tribunal rejected the contention holding that Representation of the People Act, 1951 was not applicable to elections in Part C States. The appellant contended that the contracts in which the elected candidate had interest were in fact contracts with the Central government, which disqualified him from becoming a member of the legislative assembly. It was urged that since the executive action of the Central government is vested in the President, the President was also the executive head of Part C States and a contract entered into with the then state of Himachal Pradesh was in law a contract with the Central government. Dealing with the submission, Justice T L Venkatarama Ayyar speaking for a Bench of three judges of this Court held thus :

“9…The fallacy of this reasoning is obvious. The President who is the executive head of the Part C States is not functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under Article 239. The authority conferred under Article 239 to administer Part C States has not the effect of converting those States into the Central Government. Under Article 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged with the Central Government.”

The Court consequently rejected the contention that a contract with a Part C State should be construed as a contract with the Central government. This decision was subject to a review. In the application for review, reliance was sought to be placed on the provisions of Section 3(8)(b)(2) of the General Clauses Act which define the expression “Central Government” as follows :

“3…Central Government’ shall in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include in relation to the administration of a Part C State, the Chief Commissioner or Lieutenant- Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under Article 239 or Article 243 of the Constitution, as the case may be.”

On this basis, it was urged that a contract with the Chief Commissioner of Himachal Pradesh must be treated as a contract with the Central government and in consequence the elected candidate was disqualified under the relevant legislation. On the other hand, the elected candidate relied upon the provisions of Section 3(60)(b) which read as follows:

“State Government” as respects anything done or to be done after the commencement of the Constitution, shall mean, in a Part A State, the Governor, in a Part B State the Rajpramukh, and in a Part C State the Central Government.”

This Court, in the course of the judgment in review, held that in view of the provisions of Section 3(8), a contract with the Chief Commissioner in a Part C State is a contract with the Central government, which would be a disqualification for election to the legislative assembly under Section 17 of Government of Part C States Act 1951 read with Section 7(d) of Representation of the People Act, 1951. In the view of the Court:

“4…We are unable to agree that Section 3(8) has the effect of putting an end to the status of Part C States as independent units, distinct from the Union Government under the Constitution. It merely recognises that those States are centrally administered through the President under Article 239, and enacts that the expression “Central Government “should include the Chief Commissioner administering a Part C State under the authority given to him under Article 239. Section 3(8) does not affect the status of Part C States as distinct entities having their own Legislature and judiciary, as provided in Articles 239 and 240. Its true scope will be clear if, adapting it, we substitute for the words “Central Government” in Section 9 of Act 43 of 1951 the words “the Chief Commissioner acting within the scope of the authority given to him under Article 239”. A contract with the Chief Commissioner would, therefore, under Section 9 read with Section 3(8) of the General Clauses Act, be a contract with the Central Government, and would operate as a disqualification for election to either House of Parliament under Sections 7(d) and 9 of Act 43 of 1951, and it would be a disqualification under Section 17 of Act 49 of 1951, for election to the Legislative Assembly of the State.”

115 The subsequent decision in Devji Vallabhbhai Tandel v Administrator of Goa, Daman & Diu91 (“Tandel”) involved an order of detention issued under the COFEPOSA92 by the Administrator of Goa, Daman and Diu. One of the grounds of challenge before the Bench of three Judges of this Court was that an order of detention could be made only by the Chief Minister in the name of the Administrator, and not by the Administrator. Section 2(f) defined the expression “state government”, in relation to a Union territory, to mean the Administrator. An order of detention could be issued under Section 3(1) by the Central government or the state government or officers of a certain rank who were duly empowered. Justice Baharul Islam speaking for this Court noted that comparing the provisions of Articles 74 and 163, on the one hand and Section 44 of the Government of Union Territories Act 1963, there was a manifest difference between the position of the President or Governor and the Administrator of a Union territory. In the view of the Court: “14…The Administrator even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial function, is not bound to act according to the advice of the Council of Ministers.

This becomes manifest from the proviso to Section 44(1). It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would act according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union Territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union Territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers.”

The Court adverted to the fact that when the Administrator makes a reference to the President on a difference of opinion arising with the Council of Ministers, he may “during the interregnum…completely override the advice of the Council of Ministers and act according to his light”. This Court observed that neither the Governor nor the President enjoys such a power: “15…This basic functional difference in the powers and position enjoyed by the Governor and the President on the one hand and the Administrator on the other is so glaring that it is not possible to hold on the analogy of the decision in Samsher Singh case is that the Administrator is purely a constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own. Therefore, for this additional reason also the submission… must be rejected.”

116 The learned Additional Solicitor General has placed reliance on the above observations to submit that since the proviso to Section 44 was “bodily lifted” (as he describes it) and placed in Article 239AA(4), the construction placed by the Bench of three Judges in Tandel on the ambit of the powers of the Administrator will govern the construction of the proviso to Article 239AA. On the other hand, Mr Gopal Subramanium urged that the above interpretation of the proviso to Section 44(1) of the 1963 Act will not apply proprio vigore to Article 239AA. In his submission, the constitutional amendment resulting in the introduction of Article 239AA is a significant expression of people’s sovereignty and the intention underlying it must receive a purposive interpretation. While not detracting from the importance of the NCT, Mr Subramanium submitted that the area of control with the Administrator which is “an exceptional residual power” must not set at naught a democratically elected Cabinet form of government in the Union territory. We will return to the proper construction to be placed upon the proviso. However, at this stage we find it difficult to subscribe to the view that the content of the constitutional provision engrafted in Article 239AA must be read on the same pedestal as the content of the statutory provision in Section 44 of the 1963 Act. The fact that the proviso to Article 239AA(4) is similar in terms to the proviso to Section 44(1) of the 1963 Act may be one aspect of relevance to the construction of the former. Yet, to our mind, in construing a constitutional provision, the considerations which weigh with the Court would not be constricted by the principles underlying the interpretation of the provisions of a statute. Ordinarily while construing a statute, the Court would be guided by the plain and grammatical meaning of the words used. The literal or golden rule of interpretation gives way where its consequence would lead to an absurdity or perpetuate an evil which the legislature had intended to avoid. The Court, even while interpreting a statute, may adopt a purposive interpretation. An interpretation is purposive because it facilitates the object which the legislature intended to achieve by enacting the law. Even a purposive interpretation seeks to fulfil the aim and object of the legislature which enacted the law. While construing the provisions of the Constitution, the Court cannot be oblivious either to the nature of the document which it construes or to its task as an institution created by the Constitution to interpret its provisions. Ordinary law is susceptible to alteration by legislative majorities. Legislative amendments to statutory provisions are often a response to the predicaments of the moment. The object of elevating rights, duties and modes of governance into the protective terrain of a constitutional document is to precisely elevate them to a status of stability and permanence which we attribute to a constitutional provision. Constitutional provisions are also subject to the amendatory process under Article 368 so long as the basic features of the Constitution are not abridged. The restraints on the constituent power in the form of the special majorities required for the passage of an amendment, the requirement in certain cases of ratification by the state legislatures and the substantive limits imposed by the basic structure doctrine make the distinction between ordinary legislation and a constitutional amendment evident. Interpretation of a constitutional text is therefore governed by the precept that the Court is embarking upon the task of construing an organic document which defines the basic compact for society. It is in that sense that the Court will bear in mind that it is the Constitution which the Court is expounding. These considerations must apply with significant force when an amendment to the Constitution has (as in the present case) strengthened the basic structure by entrenching the principle of democratic governance. Consequently, the line of thought which requires us to read the proviso to Article 239AA(4) in terms of the proviso to Section 44(1), and to follow the line of interpretation of the latter in Tandel’s case is to place words above the heart and soul of the Constitution. Tandel’s case did not have to go into the issues which arise before us in relation to the exercise of constitutional powers. Tandel does not explain what is the nature of the difference of opinion which will warrant a reference to the President. The COFEPOSA, as we have noticed, defined the expression “state government” in relation to a Union territory to mean ‘the Administrator thereof’. The Court did not have to consider the effect of the proviso, in any event not in the context of a constitutional provision. There are more fundamental issues which the Court must resolve while interpreting the text of the Constitution which lie beyond the mere question of whether the Administrator of Goa (as in that case) was authorised to issue an order of detention. While construing the text of Article 239AA, the endeavour of the Court must be to facilitate the strengthening of democratic institutions. Constitutional liberties survive and democracies remain vibrant when the institutions of governance created by the Constitution are capable of withstanding the challenges of the times. As an expounder of constitutional principle, it is the foremost duty of the Court to adopt an interpretation which gives expression to democratic values. Truth, justice and freedom are cardinal values in the democratic quest of achieving the dignity of citizens. The ability of citizens to participate in the formation of governments and to expect accountable and responsive government constitutes the backbone of a free society. In interpreting constitutional text, history should remind us how fragile liberty and democracy can be, unless citizens fiercely protect their foundations. We can ignore them only at our peril.

117 Another decision of this Court which must be adverted to is in Goa Sampling Employees’ Association v General Superintendence Co. of India Pvt. Ltd.93 (“Goa Sampling”). A reference was made by the Central government of an industrial dispute for adjudication under the Industrial Disputes Act 1947. It was sought to be urged that in relation to a Union Territory, the Central government is the appropriate government. The Tribunal held that the workmen were dock workers governed by an Act of Parliament and since they were working in a major port, it was the Central government which was the appropriate government. The Tribunal also held that even if the state government is the appropriate government, since Goa was then a Union territory and its administration was carried on by an Administrator appointed by the President under Article 239, the Central government was the appropriate government. The High Court held that the industrial dispute in which the workmen were involved did not concern a major port and hence the Central government was not the appropriate government. Moreover, the High Court also held that the Central government is not the state government for the Union territory of Goa under the Act but it was the Administrator appointed under Article 239 who is the state government. The Administrator being the appropriate government, the High Court held that the Central government had no jurisdiction to make the reference. It was the second limb of the finding of the High Court which was considered by this Court in the course of its judgment. In order to appreciate the controversy, it is necessary to consider the expressions “Central government” as defined in Section 3(8) of the General Clauses Act, 1897 which reads as follows:
“(8) ‘Central Government’ shall—
(a) * * *
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the
President; and shall include,
(i)-(ii) * * *
(iii) in relation to the administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution.”

The expression “state government” is defined in Section 3(60), insofar as is material thus:
“ ‘State Government’,— (a)-(b) * * *
(c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government;”
“Union territory” is defined in Section 3(62) to mean the Union territories specified in the First Schedule to the Constitution and to include any other territory comprised within the territory of India but not specified in that Schedule.
Dealing with the provisions of Section 44(1) of the 1963 Act, this Court observed thus:
“12…According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision given therein by the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point.”

The Court noticed that the provisions of Part VI of the Constitution which deal with the States clearly indicate that a Union territory administration is not a state government. The Court observed that the Constitution makes a distinction between a State and its government (called the state government) on one hand and the Union territory and its administration on the other hand. This distinction, the Court observed, was carried in the definition contained in the General Clauses Act:

“14…Now if we recall the definition of three expressions “Central Government” [Section 3(8),] “State Government” [Section 3(60)] and “Union Territory” [Section 3(62-A)] in the General Clauses Act, it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression “Central Government” that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression “Central Government”. When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression “State Government” which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression “State Government” and the “Administration of a Union Territory” clearly emerges. Therefore, there is no room for doubt that the expression “Administration of a Union Territory”, Administrator howsoever having been described, would not be comprehended in the expression “State Government” as used in any enactment.”

The view of the High Court that the Administrator is the state government insofar as the Union territory is concerned under Section 3(60) was held to be in error. The decisions in Satya Dev Bushahari and in The State of Madhya Pradesh v Shri Moula Bux94 were distinguished since they were rendered prior to the amendment of Part VIII of the Constitution in 1956 and before the insertion of Articles 239A and 239B. The position in law was set out as follows:

“17…On a conspectus of the relevant provisions of the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the Administrator of Union Territory does not qualify for the description of a State Government. Therefore, the Central Government is the “appropriate Government”.”

The decision of the two judge Bench in Goa Sampling explains that under the General Clauses Act 1897, the expression “Central government” will include the Administrator of a Union territory acting within the scope of his authority under Article 239, in relation to the administration of the Union territory. Similarly, the expression “state government” means in relation to the Union territory, the Central government. The Central government was held to be the appropriate government to make a reference under the Industrial Disputes Act, 1947. The judgment in Goa Sampling dealt with the limited scope as to which is the appropriate Government under the Industrial Disputes Act.

118 The issue as to whether the Lieutenant Governor of the NCT is competent to accord sanction for prosecution under the Prevention of Terrorism Act and the Code of Criminal Procedure was considered by a two judge Bench of this Court in State (NCT of Delhi) v Navjot Sandhu95 (“Navjot Sandhu”). In that case, sanctions under both the statutes were accorded “by order and in the name of the Lieutenant Governor”. The sanction under Section 50 of the POTA was urged to be a nullity on the ground that in relation to the Union Territory only the Central government was competent to accord it. Section 2(1)(h) of POTA defined the expression “State” in relation to a Union territory, to mean the Administrator thereof. Rejecting the challenge, this Court held that under Article 239AA, the Administrator appointed under Article 239 does not lose his status as such and it is only his designation which is merged into the new designation of Lieutenant Governor “in keeping with the upgraded status of this particular Union territory”.

The Lieutenant Governor, who continues to be an Administrator, was held to derive authority to grant sanction under Section 50 by reason of the legislative fiction under Section 2(1)(h), the Administrator being deemed to be the state government for the purpose of Section 50. Hence :

“..by virtue of specific statutory delegation in favour of the Administrator who is constitutionally designated as the Lieutenant Governor as well, the sanction accorded by the said authority is a valid sanction under Section 50 of POTA..”

The decision in Navjot Sandhu turned upon a specific statutory delegation in favour of the
Administrator to grant sanction. It is hence of no assistance to the present constitutional
context.

Decision in NDMC
119 A nine-judge Bench of this Court in New Delhi Municipal Council v State of Punjab96 (“NDMC”) dealt with the issue as to whether properties owned and occupied by various states in the NCT are exempt from the levy of local taxes under Article 289(1) of the Constitution. Allied to this was the question as to whether the states are entitled to exemption from the levy of taxes imposed by Parliamentary legislation under Article 246(4) upon their properties situated within the Union territories. Article 246(4) provides thus:
“Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.”

Justice B P Jeevan Reddy spoke for the majority of five judges. The minority view of four judges was rendered by Chief Justice Ahmadi.

120 The judgment of the majority notes that the States, put together, do not exhaust the territory of India. Parliament has the power to make laws with respect to any matter for any part of territory of India not included in a State. Since the Union territories are not included in the territory of any State, Parliament was the only law making body. Dealing with the provisions of Article 239 AA, the Court held :

“..In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital Territory of Delhi] by the Sixty-Ninth (Amendment) Act (Article 239-AA) but even here the legislature so created was not a full-fledged legislature nor did it have the effect of – assuming that it could – lift the National Capital Territory of Delhi from Union Territory category to the category of States within the meaning of Chapter I of Part XI of the Constitution. All this necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament – or a legislative body created by it. Parliament can make any law in respect of the said territories – subject, of course, to constitutional limitations other than those specified in Chapter I of Part XI of the Constitution. Above all, the Union Territories are not “States” as contemplated by Chapter I of Part XI; they are the territories of the Union falling outside the territories of the States. Once the Union Territory is a part of the Union and not part of any State, it follows that any tax levied by its legislative body is Union taxation. Admittedly, it cannot be called “State taxation” – and under the constitutional scheme, there is no third kind of taxation. Either it is Union taxation or State taxation..”

121 The judgment of the majority also holds that all Union territories are not situated alike. The first category consists of Union territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has “special features” under Article 239 AA. Though the Union territory of Delhi “is in a class by itself”, it “is certainly not a State within the meaning of Article 246 or part VI of the Constitution”. Various Union territories- the Court observed – are in different stages of evolution. However, the position remains that these Union territories, including the NCT are yet Union territories and not a State.

General Clauses Act
122 Article 367 (1) of the Constitution provides that:

“367(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.”

123 As we have noticed, the inclusive definition of the expression ‘State’ in Section 3(58) of the General Clauses Act, 1897 provides that as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, the expression State shall mean the States specified in the First Schedule to the Constitution and shall include a Union territory. If this inclusive definition was made applicable for the purpose of construing Article 246(4), an anomaly would arise because Parliament would have no power to legislate in respect of the Union territories with respect to matters governed by the State list. Until a legislature which is empowered to legislate on matters in the State list is created under Article 239A for the Union territories, there would be no legislature with competence to legislate on those matters. The consequences which would result from reading the provisions of Section 3(58) of the General Clauses Act while interpreting Article 246(4) were noticed in a judgment of a Constitution Bench in TM Kanniyan v Income Tax Officer, Pondicherry97 (“Kanniyan”). The Constitution Bench held that such a construction would be repugnant to the context of Article 246 and hence, Parliament would have under Article 246(4) plenary powers to make laws for all Union Territories in respect of all matters. The decision in Kanniyan was followed in the judgment of the majority in the nine-judge bench decision in NDMC. Even the judgment of the minority noted that while certain Union territories have legislative assemblies of their own, “they are very much under the supervision of the Union Government and cannot be said to have an independent status”. Notably, the minority view also accepted the principle that the definition of the expression “State” in Section 3(58) of the General Clauses Act is inapplicable to Article 246(4).

124 A Constitution Bench of this Court in Management of Advance Insurance Co. Ltd. v Shri Gurudasmal98 (“Advance Insurance”) while construing Entry 80 of the Union list held that the definitions contained in the General Clauses Act may not always apply in relation to the expression “State” in the Constitution and much would depend upon the context. Entry 80 of the Union list provides as follows:

“80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State”

In that case, on a complaint by an Income Tax Officer of the commission of offences by the appellant under Sections 409, 477A and 120B of the Penal Code, a case was registered by the Superintendent of Police in the Special Police Establishment, New Delhi. The appellant filed a writ petition challenging the right of the Special Police Establishment to investigate the case in the State of Maharashtra but it was dismissed by the High Court. In appeal before this Court, it was urged that the Delhi Special Police Establishment constituted under the Act XV of 1946 was not constitutional and had no jurisdiction to investigate cases in other states. The submission was that Entry 80 speaks of a police force belonging to any state and not of a police force belonging to a Union territory. Chief Justice Hidayatullah speaking for a Constitution Bench held that Section 3(58) of the General Clauses Act (which defines State in respect of any period after the commencement of the seventh constitution amendment to include a Union territory) “furnishes a complete answer to the difficulty which is raised since Entry 80 must be read so as to include Union territory”. Hence, the members of a police force belonging to a Union territory could have their powers and jurisdiction extended to another state with the consent of that State. The Constitution Bench held that the definitions in the General Clauses Act “cannot always be read” in interpreting the constitutional text and “the definitions apply unless there is anything repugnant in the subject or context”.

The Constitution Bench held that:

“After the Seventh Amendment India is a Union of States (Article 1) and the territories thereof are specified in the First Schedule. Then there are Union Territories which are mentioned separately. There is thus a distinction between “States” and “Union Territories” which cannot be lost sight of. When the definition cannot be made applicable owing to the context or the subject, the word “State” refers to States in the First Schedule only. Such an occasion arose in I.M Kanniyan v Income-Tax Officer, Pondicherry and Another, and Bachawat, J., explained Article 246 by holding that the definition of “State” in two parts in the adapted Section 3(58) of the General Clauses Act was repugnant to the subject and context of Article 246. There is nothing in the subject or context of Entry 80 of the Union List which can be said to exclude the application of the definition in Section 3(58). Indeed the Part C States were expressly mentioned in Entry No. 39 of the Federal List of the Government of India Act, 1935 (after its amendment in 1947) and thus before the Seventh Amendment the definition of State (subject to the subject or context) included Part C States. Therefore, the definition of “State” in Section 3(58) in the General Clauses Act after the adaptation in 1956 applies and includes Union Territories in Entry 80 of the Union List”

The Constitution Bench in Advance Insurance did not find anything repugnant in the subject or context of Entry 80 of the Union list. Hence, Entry 80 was held to include Union territories.

125 In Union of India v Prem Kumar Jain99, a Bench of four judges of this Court dealt with an appeal from a decision of the Delhi High Court which had quashed a notification of the Union government and a scheme for the formation of a joint cadre of the Indian Administrative Service. The High Court had held the formation of a Delhi – Himachal Cadre of service to be ultra vires. The creation of a joint cadre for all Union territories on 1 January 1968 under Rule 3(1) of the IAS (Cadre) Rules 1954 was challenged as being contrary to Article 312 and the All India Services Act 1951, as it was not common to the Union and a State, a Union territory not being a State. The High Court held that Union territories not being States, the action was ultra vires. In appeal, this Court observed that it was not necessary for Parliament to make a law providing for the creation of a service common to the Union and the States under Article 312(1), in view of clause 2, which provided as follows :

“312 (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article”.

Section 3(1) of the All India Services Act had a provision for making rules for the regulation of recruitment and conditions of service of persons appointed to an All India Service “after consultation with the governments of the States concerned”. The issue was whether Union territories could be States for the purpose of such consultation. This Court held that the expression “State” having been defined in Section 3(58), from the commencement of the seventh amendment to the Constitution in 1956, and the President having substituted a new clause 58 in Section 3, there was nothing repugnant to the subject or context to make that definition inapplicable. The High Court was held to have been in error in holding that Union territories were not States for that purpose.

126 Whether the expression “State” in the Constitution would cover a Union territory is a matter to be deduced from the context. The Constitution in the First Schedule makes a clear distinction between States and Union territories. Hence, the inclusive definition of the expression “State” in Section 3(58) of the General Clauses Act cannot apply to the First Schedule. Similarly, in Article 246(4), which enables Parliament to make laws with respect to any matter for any part of the territory of India not included in a State, the definition in Section 3(58) would have no application, having due regard to the context. This was explained in the decision in Kanniyan. When there is something repugnant in the subject or context, the definition in Section 3(58) would have no application.

“Insofar as an y suc h matter is appli cable t o Union territo ries”
127 In the State list and the Concurrent list of the Seventh Schedule, there are numerous entries which use the expression “State”. These entries are illustratively catalogued below:

“List II
12. Libraries, museums and other similar institutions controlled or financed by the State.
26. Trade and commerce within the State subject to the provisions of entry 33 of List III.
37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament.
38. Salaries and allowances of members of the Legislature of the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof.
39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.
40. Salaries and allowances of Ministers for the State.
41. State public services; State Public Service Commission.
42. State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.
43. Public debt of the State.

LIST III
3. Preventive detention for reasons connected with the security of a State
4. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.
43. Recovery in a State of claims in respect of taxes and other public demands, including arrears of land-revenue and sums recoverable as such arrears, arising outside that State.” (Emphasis supplied)

128 Article 239AA(3)(a) permits the legislative assembly of the NCT to legislate on matters in the State list, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent list, “insofar as any such matter is applicable to Union territories”. In forming an understanding of these words of Article 239AA(3)(a), it has to be noticed that since the decision in Kanniyan right through to the nine-judge Bench decision in NDMC, it has been held that the expression “State” in Article 246 does not include a Union territory. The expression “insofar as any such matter is applicable to Union territories” cannot be construed to mean that the legislative assembly of NCT would have no power to legislate on any subject in the State or Concurrent lists, merely by the use of the expression “State” in that particular entry. This is not a correct reading of the above words of Article 239AA(3)(a). As we see below, that is not how Parliament has construed them as well.

129 Section 7(5) of the GNCTD Act provides that salaries of the Speaker and Deputy Speaker of the legislative assembly may be fixed by the legislative assembly by law. Section 19 provides that the members of the legislative assembly shall receive salaries and allowances as determined by the legislative assembly by law. Section 43(3) similarly provides that the salaries and allowances of ministers shall be determined by the legislative assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacted the above provisions unless legislative competence resided in the States on the above subject. The subjects pertaining to the salaries and allowances of members of the legislature of the state (including the Speaker and Deputy Speaker) and of the Ministers for the state are governed by Entry 38 and Entry 40 of the State list. The GNCTD Act recognises the legislative competence of the legislative assembly of NCT to enact legislation on these subjects. The use of the expression ‘State’ in these entries does not divest the jurisdiction of the legislative assembly. Nor are the words of Article 239AA(3)(a) exclusionary or disabling in nature.

130 The purpose of the above narration is to indicate that the expression ‘State’ is by itself not conclusive of whether a particular provision of the Constitution would apply to Union territories. Similarly, it can also be stated that the definition of the expression state in Section 3(58) of the General Clauses Act (which includes a Union territory) will not necessarily govern all references to ‘State’ in the Constitution. If there is something which is repugnant in the subject or context, the inclusive definition in Section 3(58) will not apply. This is made clear in the precedent emanating from this Court. In certain contexts, it has been held that the expression ‘State’ will not include Union territories while in other contexts the definition in Section 3(58) has been applied. Hence, the expression “insofar as any such matter is applicable to Union territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.

L Construction of the proviso to Article 239AA(4)

131 The vexed issue of interpretation relates to the proviso to Article 239AA(4). Undoubtedly, the National Capital Territory continues to be a Union territory. The Union government has a special interest in the administration of its affairs. This is exemplified by the provisions of Article 239 and Section 49 of the GNCTD Act. The proviso to Article 239AA(4) must be given an interpretation which is marked with a sense of fine constitutional balance. The balance which is drawn must preserve the vital interest of the Union government in the governance of the national capital while supporting the legitimacy, and constitutional status of the Council of Ministers which owes collective responsibility to the legislative assembly and which, in its capacity of the executive arm of government tenders aid and advice to the Lieutenant Governor under a cabinet form of governance.

132 Broadly speaking, three lines of reasoning emerge before the Court. The Court need not be constrained by having to choose one among them. It would be possible to draw from each, in arriving at a conclusion. The first line of interpretation would have the Court interpret the expression “difference of opinion between the Lieutenant Governor and his Council of Ministers on any of the matter” without reservation or qualification. This line of interpretation follows a purely literal or textual construction. Any difference of opinion would fulfil the proviso to clause 4. ‘Any matter’ would mean any matter without restriction. The Lieutenant Governor would be free to refer to the President just about any difference of opinion of any matter, where it has arisen with the Council of Ministers. This approach cautions the court against confining the proviso to specified categories or confining the areas where differences can arise.

133 The second line of interpretation is that the expression should be read and confined to specified categories. To test the validity of this approach, four categories may be delineated. The Lieutenant Governor may invoke the power under the proviso where:
(i) Executive decisions or acts of the Government of NCT will impede or prejudice the exercise of the executive power of the Union government;
(ii) The requirement of complying with laws enacted by Parliament or of the provisions of the Constitution arises;
(iii) The executive authority of the government of NCT is sought to be exercised in an area where it has no legislative competence (the ultra vires doctrine); and
(iv) A matter is located within Rule 23 of the Transaction of Business Rules.

134 There is a third line of interpretation, which has two facets. The first facet postulates at what stage, a reference to the President may be made in terms of the proviso. According to it, a reference can be made to the President only after the Lieutenant Governor has made an effort to resolve a difference with a Minister or with the Council of Ministers by seeking a resolution through dialogue and discussion. The Lieutenant Governor has to follow the provisions contained in the Transaction of Business Rules, which mandate that an attempt should be made to resolve differences within the institutional level of the NCT government before escalating matters to the President. The second facet relates to the substantive meaning of the expression ‘any matter’. ‘Any matter’ in this line of interpretation would not mean ‘every matter’ or every trifling matter but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union territory that it deserves to be escalated to the President. The third approach to interpretation proposes that both a procedural and substantive nuance must be adopted while interpreting the proviso, failing which the salutary constitutional purpose underlying Article 239AA will be defeated.

135 A close analysis of the three lines of interpretation would indicate that there is a kernel of substance in each of them, but there are pitfalls which must be guarded against. The functioning of institutions must establish a constitutional balance which facilitates cooperative governance. Governance in cooperation is both a hallmark and a necessity of our constitutional structure. Our Constitution distributes legislative and executive powers between political entities. Distribution of power between institutions which are the creation of the Constitution is a significant effort to ensure that the values of participation and representation which constitute the foundation of democracy permeate to all levels of governance. The federal structure for governance which is a part of the basic structure recognizes the importance of fulfilling regional aspirations as a means of strengthening unity. The Constitution has adopted some but may be not all elements of a federal polity and the Union government has an important role in the affairs of the nation. For the purpose of the present discourse, it is necessary to emphasise the value which the Constitution places on cooperative governance, within the federal structure.100 An illustration is to be found in Chapter II of Part XI which deals with the administrative relations between the Union and the States. Under Article 256, an obligation has been cast upon every state to ensure that its executive power is exercised to secure compliance with laws enacted by Parliament. The executive power of the Union extends to issuing directions to a State as are necessary, for that purpose. Article 257 contains a mandate that in exercising its executive power, a State shall not impede or prejudice the exercise of the executive power of the Union. The constitutional vision of cooperative governance is enhanced by the provision made in Article 258 under which the President may, with the consent of a State, entrust to it or to its officers, functions in relation to any matter to which the power of the Union extends. Similarly, even on matters on which a State legislature has no power to make laws, Parliament may confer powers and impose duties on the officers of the State. Article 261 provides that full faith and credit must be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. Without determining (it being unnecessary for the present discussion) the extent to which these provisions apply to a Union territory, the purpose of emphasising the principles which emerge from the chapter on administrative relations is to highlight the necessity for cooperative governance between different levels of government, in a Constitution, such as ours, which contains an elaborate distribution of power between political entities and institutions. The construction which the Court places on the proviso to Article 239AA(4) must facilitate mutual cooperation so that the affairs of state are carried out without dislocations occasioned by differences of perception. Differences between political arms of the state are natural to a democratic way of life. The strength inherent in differences is that the Constitution provides a platform for the robust expression of views, accommodates differences of ideology and acknowledges that the resilience, and not the weakness of the nation lies in the plurality of her cultures and the diversity of her opinions. The working of a democratic Constitution depends as much on the wisdom and statesmanship of those in charge of governing the affairs of the nation as much as it relies on the language of the Constitution defining their powers and duties.

136 The proviso to Article 239AA(4) must be operated and applied in a manner which facilitates and does not obstruct the governance of the NCT. If the expression ‘any matter’ were to be construed as ‘every matter’ or every trifling matter that would result in bringing to a standstill the administration of the affairs of the NCT. Every conceivable difference would be referred to the President. The elected representatives would be reduced to a cipher. The Union government would govern the day to day affairs. The forms of the Constitution would remain but the substance would be lost. Article 239AA has been introduced as a result of the exercise of the constituent power. The purpose of the exercise is to confer a special status on the National Capital Territory. The arrangements for administering the affairs of Delhi are constitutionally entrenched as a result of the Sixty-Ninth amendment. Whether there should be a Council of Ministers or a Legislature (or both) was not left to determination in an Act of Parliament. The Constitution mandates that both must exist in the NCT. The Constitution mandates direct elections to the Legislature. It obligates the existence of a Council of Ministers which owes collective responsibility to the Legislature. It demarcates the area of legislative and executive power. The Lieutenant Governor, as the substantive part of Article 239AA(4) stipulates, is to act on the aid and advice of the Council of Ministers. In adopting these provisions, the Constitution incorporates the essentials of the cabinet form of government. Was this to have no meaning? A constitutional court must be averse to accepting an interpretation which will reduce these aspirations of governance to a mere form, without the accompanying substance. The Court must take into consideration constitutional morality, which is a guiding spirit for all stakeholders in a democracy.

137 In discharging his constitutional role, the Lieutenant Governor has to be conscious of the fact that the Council of Ministers which tenders aid and advice is elected to serve the people and represents both the aspirations and responsibilities of democracy. Neither the Constitution nor the enabling legislation, which we have noticed earlier, contemplate that every decision of the executive government must receive the prior concurrence of the Lieutenant Governor before it can be implemented.

138 The interpretation of the proviso must be cognizant of the constitutional position that though Delhi has a special status, it continues to be a Union territory governed by Part VIII. There are take-aways from the first line of interpretation which have significance. Within the rubric of Union territories, as the nine-judge Bench decision in NDMC noticed, different Union territories are in varying stages of evolution. Some of the erstwhile Union territories such as Goa attained full statehood and ceased to be Union territories. Some may not have a legislature. Some may have a Legislature under an enactment of Parliament. Delhi has a special position in that both its Legislature as well as Council of Ministers have a constitutionally recognized status. The conferment of this status by a constitutional amendment enhances the position of its arms of governance within Union territories without conferring statehood. Delhi is administered by the President under Article 239 acting through an Administrator who is designated as a Lieutenant Governor under Article 239AA(1). The language of the opening words of Article 239(1) must be read in harmony with Article 239AA. In terms of the reach of its legislative powers, the legislative assembly for the NCT does not exercise exclusive jurisdiction over State List subjects. Parliament has legislative authority (in addition to the Union List), both in regard to the State and Concurrent Lists for NCT. Hence legislation by the legislative assembly, even on matters which fall within its legislative domain is subject to the overriding power of Parliament. The principle of repugnancy which Article 254 recognises between Union and State legislation on matters in the Concurrent List is extended by Article 239AA [3(b) and 3 (c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the legislative assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being co-extensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a cabinet form of government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive power, consistent with its status as a Union territory.

139 The exercise of the constituent power to introduce Article 239AA was cognizant of the necessity to protect national interests inherent in the governance of a national capital. A sense of permanence and stability was sought to be attributed to the arrangements made for governing Delhi by bringing in a constitutional amendment. Both in terms of the reach of the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that the governance of Delhi implicates a sense of national interest. When matters of national interest arise, they wold predicate a predominant role for institutions of national governance.

140 Consistent with the need to preserve national interest, it would not be appropriate to restrict the ambit of the proviso to Article 239AA(4) to situations where the action of the government is ultra vires the limits of its executive powers. This becomes evident on a construction of the provisions of Section 41(1)(i) and Section 44(1)(a) of the GNCTD Act. Sub-clause(i) of Section 41(1) enables the Lieutenant Governor to act in his discretion on a matter which falls outside the purview of the powers conferred on the legislative assembly but in respect of which powers or functions are entrusted or delegated to him by the President. Under Section 44(1)(a), Rules of Business are made on matters on which the Lieutenant Governor is required to act on the aid and advice of the Council of Ministers. Section 44(1)(a) covers business which is not a part of Section 41(1)(i). This is because matters which fall within Section 44(1)(i) are not governed by the principle of aid and advice.

141 There is much to be said for not laying down an exhaustive catalogue of situations to which the proviso applies. Governance involves complexities. In the very nature of things, it would not be possible for a Court delivering judgment in the context of the problems of the day to anticipate situations which may arise in future. It would be unsafe to confine a constitutional provision to stated categories which may affect the resilience of the Constitution to deal with unforeseen situations. Some of the illustrations which may warrant the exercise of the power under the proviso may shed light on the purpose of the proviso and the object which it seeks to achieve.

142 There are two constitutional perspectives: first, the operation of the proviso should preserve the national concerns underlying the conferment of such a power, and second, the exercise of the power under the proviso must not destroy the essential democratic values recognised in Article 239AA. Thus, it is necessary to lay down the steps which need to be adopted before recourse is taken to the proviso. The Transaction of Business Rules indicate in sufficiently elaborate terms that when there is a difference of opinion between the Lieutenant Governor and a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, to give clarity to the operating procedure for invoking the proviso. Moreover, once a reference is made to the President, the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted by emergent circumstances until the President has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Minister or, as the case may be, the Council of Ministers to resolve a matter of difference. The nature of the differences which may warrant a reference to the President cannot be exhaustively catalogued. But it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union government. The Lieutenant Governor may similarly consider it necessary to invoke the proviso to ensure compliance with the provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national capital. Financial concerns of the Union government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved. A situation of the nature indicated in Rule 23 of the Transaction of Business Rules may well justify recourse to the proviso. The touchstone for recourse to the proviso is that the difference of opinion is not a contrived difference. The matter on which a difference has arisen must be substantial and not trifling. In deciding whether to make a reference, the Lieutenant Governor must always bear in mind the latitude which a representative government possesses to take decisions in areas falling within its executive authority. The Lieutenant Governor must bear in mind that it is not he, but the Council of Ministers which takes substantive decisions and even when he invokes the proviso, the Lieutenant Governor has to abide by the decision of the President. The Lieutenant Governor must also be conscious of the fact that unrestrained recourse to the proviso would virtually transfer the administration of the affairs of the NCT from its government to the Centre. If the expression ‘any matter’ were to be read so broadly as to comprehend ‘every matter’, the operation of the proviso would transfer decision making away from the government of the NCT to the Centre. If the proviso were to be so read, it would result in a situation where the President would deal with a reference on every matter, leaving nothing but the husk to the administration of the Union territory. Article 239AB makes a provision where there is a failure of the constitutional machinery in the Union territory. The proviso to Article 239AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the legislative assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi as a national capital are not bypassed. If these fundamental precepts are borne in mind, the operation of the proviso should pose no difficulty and the intervention of the President could be invoked in appropriate cases where a matter fundamental to the governance to the Union territory is involved.

M Conclusions
143 After analysing the constitutional and statutory provisions and the precedents on this point, this Court reaches the following conclusions:

(1) The introduction of Article 239AA into the Constitution was the result of the exercise of the constituent power. The 69th amendment to the Constitution has important consequences for the special status of Delhi as the National Capital Territory, albeit under the rubric of a Union territory governed by Part VIII of the Constitution;

(2) The content of such a constitutional amendment cannot be confined or constrained by the content of legislations which governed Delhi in the past. The constitutional amendments sought to bring stability and permanence to the democratic governance of the NCT. An amendment which enhances the basic features of the Constitution must bear an interpretation which will fulfil its true character;

(3) The Administrator appointed by the President under Article 239(1) is designated, with reference to the NCT as its Lieutenant Governor. The substantive source of power to appoint the Lieutenant Governor arises from Article 239 of the Constitution;

(4) While Article 239(1) indicates that the administration of a Union territory is by the President, the opening words of the provision (“Save as otherwise provided by Parliament by law”) indicate that the nature and extent of the administration by the President is as indicated in the law framed by Parliament. Moreover, the subsequent words of the provision (“to such extent as he thinks fit”) support the same position;

(5) By adopting Article 239AA, Parliament as a constituent body, provided Delhi with a special status by creating constitutionally entrenched institutions of governance. Article 239AA mandates the existence of a legislative assembly and Council of Ministers to govern the affairs of the National Capital;

(6) The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government. These features emerge from the provisions of Article 239AA which:
(i) require direct election to the legislative assembly from territorial constituencies;
(ii) engage the constitutional functions of the Election Commission of India under Articles 324, 327 and 329;
(iii) confer law making authority on the legislative assembly in respect of matters governed by the State List (save for excepted matters) and the Concurrent List;
(iv) mandate the collective responsibility of the Council of Ministers to the legislative assembly; and
(v) provide (in the substantive part of Article 239AA(4)) that the Lieutenant Governor shall act on the aid and advise of the Council of Ministers headed by the Chief Minister.
In adopting these provisions through an amendment, the Constitution has recognized the importance of the cabinet form of government to govern the affairs of Delhi;
(7) The distribution of legislative power in Article 239AA is indicative of the predominant role assigned to Parliament as a legislative body. This emerges from:
(i) the position that Parliament is empowered to legislate on subjects falling in the State List as well as the Concurrent List; and
(ii) the carving out of the three subjects of public order, police and land (Entries 1, 2 and 18 of the State List) and of offences, jurisdiction of Courts and fees (Entries 64, 65 and 66 in so far as they relate to the previous entries), all of which are within the exclusive legislative domain of Parliament. Principles of repugnancy govern any inconsistency between laws enacted by the legislative assembly and those by Parliament and the laws of Parliament are to prevail unless a Presidential assent has been received.

(8) The executive power of the government of NCT is co-extensive with the legislative power. The principle of aid and advice under clause 4 of Article 239AA extends to areas where the Lieutenant Governor exercises functions in relation to matters where the legislative assembly has the power to make laws. In consequence, those matters on which the legislative assembly does not have the power to enact legislation are not governed by the principle of aid and advice. Similarly, the Lieutenant Governor is not subject to aid and advice on matters where he is required to exercise his own discretion by or under any law;

(9) The GNCTD Act, 1991 has been enacted by Parliament in pursuance of the legislative authority conferred upon it by clause 7(a) of Article 239AA. The President has made the Transaction of Business Rules for the NCT as contemplated in the GNCTD Act, 1991;

(10) Section 41 of the GNCTD Act indicates that:

(i) in matters which lie outside the legislative powers entrusted to the legislative assembly and where there has been an entrustment or delegation of functions by the President to the Lieutenant Governor under Article 239; and

(ii) on matters where the Lieutenant Governor exercises his own discretion by or under any law, he is not subject to the aid and advice of the Council of Ministers;

(11) Section 44 of the GNCTD Act indicates that aid and advice governs areas other than those specified in Section 44(1)(i);

(12) Under the Transaction of Business Rules, the Lieutenant Governor must be kept duly apprised on all matters pertaining to the administration of the affairs of the NCT. The Rules indicate the duty of the Council of Ministers to inform the Lieutenant Governor right from the stage of a proposal before it. The duty to keep the Lieutenant Governor duly informed and apprised of the affairs of the NCT facilitates the discharge of the constitutional responsibilities entrusted to him and the fulfilment of his duties under the GNCTD Act, 1991 and the Transaction of Business Rules;

(13) While the provisions contained in the Transaction of Business Rules require a scrupulous observance of the duty imposed on the Council of Ministers to inform the Lieutenant Governor on all matters relating to the administration of the NCT, neither the provisions of Article 239AA nor the provisions of the Act and Rules require the concurrence of the Lieutenant Governor to a decision which has been taken by the Council of Ministers. Rule 14 of the Transaction of Business Rules in fact indicates that the duty is to inform and not seek the prior concurrence of the Lieutenant Governor. However, in specified areas which fall under Rule 23; it has been mandated that the Lieutenant Governor has to be apprised even before a decision is implemented;

(14) As a result of the provisions of Article 367, the General Clauses Act, 1897 applies, subject to adaptations and modifications made under Article 372, to the interpretation of the Constitution. The definitions of the expressions ‘state’ (Section 3(58)) and ‘state government’ (Section 3(60)) and ‘union territory’ (Section 3(62A)) apply to the interpretation of the provisions of the Constitution unless there is something repugnant in the subject or context of a particular provision of the Constitution;

(15) Since the decision of this Court in Kanniyan (supra) and right through to the nine-judge Bench decision in NDMC (supra), it is a settled principle that the expression ‘state’ in Article 246(4) will not include a Union territory and that the definition contained in the General Clauses Act will not apply having regard to the subject and context of the provision. Decisions of this Court have applied the subject and context test to determine whether the expression ‘state’ in other provisions of the Constitution and in statutory provisions would include a Union territory;

(16) The use of the expression “State” in a particular provision is not dispositive of whether or not its application would stand excluded in relation to a Union territory. The outcome is essentially based on the subject and context in which the word has been used;

(17) While giving meaning and content to the proviso to Article 239AA (4), it is necessary to harmonise two significant precepts:
(i) The Constitution has adopted a cabinet form of government for the Union territory of Delhi by creating institutions for the exercise of legislative power and an executive arm represented by the Council of Ministers; and
(ii) Vital national interests are implicated in the governance of the National Capital Territory. The doctrines of aid and advice and of collective responsibility give effect to (i) above while the empowerment of the Lieutenant Governor to refer any matter on which there is a difference of opinion to the President is a reflection of (ii) above.

(18) While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression ‘any matter’ were to be read as ‘every matter’, it would lead to the President assuming administration of every aspect of the affairs of the Union territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi;

(19) Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President;

(20) In a cabinet form of government, the substantive power of decision making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advise of the Council of Ministers, this recognises that real decision-making authority in a democratic form of government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by the decision which is arrived at by the President. The Lieutenant Governor has, however, been authorised to take immediate action in the meantime where emergent circumstances so require. The provisions of Article 239AA(4) indicate that the Lieutenant Governor must either act on the basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi-judicial authority under any law or has been entrusted with powers by the President under Article 239 on matters which lie outside the competence of the Government of NCT); and

(21) The proviso to Article 239AA is in the nature of a protector to safeguard the interests of the Union on matters of national interest in relation to the affairs of the National Capital Territory. Every trivial difference does not fall under the proviso. The proviso will, among other things, encompass substantial issues of finance and policy which impact upon the status of the national capital or implicate vital interests of the Union. Given the complexities of administration, and the unforeseen situations which may occur in future, it would not be possible for the court in the exercise of judicial review to exhaustively indicate the circumstances warranting recourse to the proviso. In deciding as to whether the proviso should be invoked the Lieutenant Governor shall abide by the principles which have been indicated in the body of this judgment.

144 After the circulation of my judgment to my learned colleagues, I have had the benefit of receiving the judgments of the learned Chief Justice and brother Justice Ashok Bhushan. I believe that there is a broad coalescence of our views.

145 The reference shall stand answered in the above terms and the proceedings shall now be placed before the learned Chief Justice of India for appropriate directions in regard to the constitution of the Bench to decide the matters.

…..………………………………………J [Dr D Y CHANDRACHUD]

New Delhi; July 04, 2018.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2357 OF 2017

GOVERNMENT OF NCT OF DELHI … APPELLANT(S)
VERSUS
UNION OF INDIA … RESPONDENT(S)

WITH

Civil Appeal No.2358 of 2017,
Civil Appeal No.2359 of 2017,
Civil Appeal No.2360 of 2017,
Civil Appeal No.2361 of 2017,
Civil Appeal No.2362 of 2017,
Civil Appeal No.2363 of 2017,
Civil Appeal No.2364 of 2017,
Criminal Appeal NO.277 of 2017
and
Contempt Petition (C) No.175/2016 in W.P.(Crl.) No.539/1986.

JUDGMENT

ASHOK BHUSHAN, J.
These appeals have been filed questioning the Division Bench judgment of Delhi High Court dated 04.08.2016 deciding nine writ petitions by a common judgment, out of nine writ petitions, two writ petitions were filed by the Government of National Capital Territory of Delhi (hereinafter referred to as “GNCTD”) being Writ Petition (C) No.5888 of 2015 (GNCTD vs. UOI) impugning: “Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with “Services” and directing the ACB Police Station not to take cognizance of offences against officials of Central Government.”

and Writ Petition (Crl.) No.2099 of 2015 (GNCTD vs. Nitin Manawat) impugning:
“Order passed by the Lt. Governor, NCT of Delhi under Section 24 of Cr. P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court under PC Act.”

One writ petition filed by Union of India being Writ Petition (C) No.8867 of 2015 (UOI vs. GNCTD & Anr.) impugning:
“Notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence.”

2. Other six writ petitions were filed by individuals challenging various notifications issued by GNCTD. The petitioners in Writ Petition (C) No.7887 of 2015 and Writ Petition (C) No.8382 of 2015 had challenged the notification dated 11.08.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952. In Writ Petition (C) No.7934 of 2015 (Naresh Kumar vs. GNCTD & Ors.) impugned action was:
“Notification dated 04.08.2015 issued by the Revenue Department, GNCTD revising minimum rates of agricultural land (circle rules) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Undervaluation of Instrument)Rules without placing before the Lieutenant Governor for his views/concurrence.”

Writ Petition(C) No.8190 of 2015 (Sandeep Tiwari vs. GNCTD & Ors.) was filed questioning:
“Order passed by the Department of Power, GNCTD under Delhi Electricity Reforms Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 appointing the Nominee Directors on Board of Electricity Distribution Companies without placing before the Lieutenant Governor for his views/concurrence.”

3. The petitioner in Writ Petition (C)No.348 of 2016 (Ramakant Kumar vs. GNCTD) had also challenged notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 constituting the Commission of Inquiry.

4. The Division Bench of the High Court after considering the arguments of the parties recorded its conclusion in paragraph 304 of the judgment and its outcome in paragraph 305. Paragraphs 304 and 305 are extracted below:
“304. The conclusions in this batch of petitions may be summarized as under:­
(i) On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi.
(ii) Article 239 of the Constitution continues to be applicable to NCT of Delhi and insertion of Article 239AA has not diluted the application of Article 239 in any manner.
(iii) The contention of the Government of NCT of Delhi that the Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the Council of Ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution is without substance and cannot be accepted.
(iv) It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993.
(v) The matters connected with ‘Services’ fall outside the purview of the Legislative Assembly of NCT of Delhi. Therefore, the direction in the impugned Notification S.O.1368(E) dated 21.05.2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with ‘Services’exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional.
(vi) The direction in the impugned Notification S.O.1896(E) dated 23.07.2014 as reiterated in the Notification S.O.1368(E) dated 21.05.2015 that the Anti­Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws.
(vii) Notification No.F.5/DUV/Tpt./4/7/ 2015/ 9386­9393 dated 11.08.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry for inquiring into all aspects of the award of work related to grant of CNG Fitness Certificates in the Transport Department, Government of NCT of Delhi is illegal since the same was issued without seeking the views/concurrence of the Lt. Governor as provided under Rule 10 and Rule 23 read with Chapter V of Transaction of Business Rules, 1993.
(viii) For the same reasons, the Notification No. F.01/66/2015/DOV/15274­ 15281 dated 22.12.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry to inquire into the allegations regarding irregularities in the functioning of Delhi and District Cricket Association is also declared as illegal.
(ix) The appointment of Nominee Directors of Government of NCT of Delhi on Board of BSES Rajdhani Power Limited, BSES Yamuna Power Limited and Tata Power Delhi Distribution Limited by the Delhi Power Company Limited on the basis of the recommendations of the Chief Minister of Delhi without communicating the decision of the Chief Minister to the Lt. Governor of NCT of Delhi for his views is illegal.
(x) The proceedings of the Government of NCT of Delhi, Department of Power No.F.11(58) /2010/Power/1856 dated 12.06.2015 issuing policy directions to the Delhi Electricity Regulatory Commission regarding disruption in electricity supply to consumers and compensation payable in respect thereof are illegal and unconstitutional since such policy directions cannot be issued without communicating to the Lt. Governor of NCT of Delhi for his views.
(xi) The Notification No.F.1(1953)/Regn.Br./ Div.Com/HQ/2014/191 dated 04.08.2015 issued by the Government of NCT of Delhi, Revenue Department in exercise of the powers conferred by sub­section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and Rule 4 of the Delhi Stamp (Prevention of Under ­ Valuation of Instruments) Rules, 2007 revising the minimum rates for the purpose of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land is illegal since the said notification was issued without seeking the views/concurrence of the Lt. Governor of NCT of Delhi as required under the constitutional scheme.
(xii) Though the Lt. Governor of NCT of Delhi is competent to appoint the Special Public Prosecutor under Section 24(8) of Cr.P.C., such power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution.

305. In result, W.P.(C) No.5888/2015 is dismissed, W.P.(C) Nos.7887/2015, 7934/2015, 8190/2015, 8382/2015, 8867/2015, 9164/2015 and 348/2016 are allowed and W.P.(Crl.) No.2099/2015 is disposed of with directions.”

5. The Government of NCTD aggrieved by the judgment has filed appeals. The GNCTD in its appeals has prayed for setting aside the judgment of the High Court.

6. Union of India has filed two appeals, namely, C.A.No.2364 of 2017 questioning the judgment of Division Bench in Writ Petition(C) No.7934 of 2015 and Criminal Appeal No.277 of 2017 questioning the judgment in Writ Petition(Crl.) No.2099 of 2015.

7. These appeals raise important questions of law in respect of the powers exercisable by democratically elected Government of NCT in juxtaposition to the power of Lt. Governor of NCTD (hereinafter referred to as “LG”).

8. During the hearing of the appeals, a two Judge Bench of this Court opined that the appeals involve substantial questions of law as to the interpretation of Article 239AA of the Constitution of India. The Division Bench passed the following order for placing the matter before Chief Justice for constituting a Constitution Bench:
“During the hearing of these appeals our attention is drawn to the provisions of Article 145(3) of the Constitution of India. Having gone through the matters and the aforesaid provisions, we are of the opinion that these appeals need to be heard by a Constitution Bench as these matters involve substantial questions of law as to the interpretation of Article 239AA of the Constitution. The Registry shall accordingly place the papers before Hon’ble the Chief Justice of India for constituting an appropriate Constitution Bench.”

9. These appeals, thus, have been placed before this Constitution Bench. At the outset, it was agreed between the learned counsel for the parties that this Constitution Bench may only answer the constitutional questions and the individual appeals thereafter will be decided by appropriate regular Benches.

10. We have been benefited by erudite submissions made by learned senior counsel, Shri P. Chidambaram, Shri Gopal Subramanium, Dr. Rajiv Dhawan, Smt. Indira Jaising and Shri Shekhar Naphade. On behalf of Union of India, submissions have been advanced by Shri Maninder Singh, learned Additional Solicitor General for India. We have also heard other learned counsel appearing for the parties as well as learned counsel appearing for intervenor for whom Dr. A.M. Singhvi and Shri Arvind Datar, learned senior counsel have appeared. Shri Siddharth Luthra, learned senior counsel has appeared for respondent in C.A. NO.2360 of 2017.

11. A common written submission has been filed on behalf of Government of National Capital Territory of Delhi. Shri Maninder Singh, learned Additional Solicitor General has also filed the written submission on behalf of Union of India and Lt. Governor of NCTD.

The submissions
12. Learned senior counsel appearing for GNCTD has emphasised and highlighted various aspects of the different constitutional issues which have arisen for consideration in these appeals. Their submissions are referred hereafter as common submissions on behalf of GNCTD. It is submitted that NCTD occupies a unique position in constitutional jurisprudence by virtue of insertion of Articles 239AA and 239AB vide the Constitution (Sixty Ninth Amendment) Act, 1991. Though still a Union Territory, the NCTD has come to acquire various characteristics that were, prior to the 69th Amendment and the Government of the National Capital Territory Act, 1991 (hereinafter referred to as “1991 Act”), considered under the Constitution to be characteristics solely of States. As a consequence, the GNCTD also enjoys far more powers than the Government of any other Union Territory. The History of constitutional provisions and Parliamentary enactments with respect to the NCTD clearly establishes that 69th Amendment and 1991 Act were passed aiming for giving the residents of the NCTD proper participation an ever larger say in the governance of NCTD, truer and deeper form of democracy. Article 239AA intended to completely eradicate any hierarchical structure which functionally placed Lieutenant Governor of Delhi (hereinafter referred to as “LG”) in a position superior to that of the Council of Ministers, especially with respect to the exercise of executive power. Pursuant to Article 239AA, a cabinet system of Government on the Westminster style was introduced in Delhi and the LG was made a titular head alone in respect of matters that were assigned to Legislative Assembly and the Council of Ministers. By way of the express and deliberate exclusion of language similar to that of the 1963 Act and 1966 Act from the words of Article 239AA, and the replacement of “assist and advise” with the term of art “aid and advice”, the 69th Constitutional Amendment consciously obviated a requirement for the LG’s concurrence and allowed the Council of Ministers created thereunder to govern the NCTD. The provisions of Article 239AA must be interpreted as furthering the basic structure of the Constitution, a purposive interpretation has always been adopted by this Court. Learned counsel have also relied on “doctrine of constitutional silence and convention”.

13. It is contended that federalism being the basic structure of the Constitution. The interpretation of the constitutional provisions has to be done in a manner which may strengthen the federal structure as contemplated by the Constitution. The arguments of respondent that provisions of Article 239AA should be read in a strictly textual manner is not correct. Our constitutional jurisprudence has moved away by several decisions of this Court from a textual to more purposive and organic method of constitutional interpretation.

14. The 69th Constitutional Amendment installed a Westminster style of Government for NCTD. The constitutional head would be bound by the “aid and advice” of their Council of Ministers, this is irrespective of who is the constitutional head, whether President, State Governor or by logical end the LG. In the case of NCTD, the principle of collective responsibility to a democratic legislative body requires that the “aid and advice” of the Council of Ministers be binding on the LG in order to give due respect to the stated intention of the 69th Constitutional Amendment, i.e., the introduction of constitutionally mandated democratic governance in Delhi.

15. It is the petitioner’s case that the extent of the executive powers of the GNCTD can be understood by way of a combined reading of the provisions of Article 239AA(3) read with Article 239AA(4). The GNCTD possesses exclusive executive powers in relation to matters that fall within the purview of the Assembly’s Legislative competence. Neither the President nor the Central Government has any executive powers in Delhi with respect to these matters and the LG as the President’s delegate has no role or power in this regard. Article 239AA(3) gives the Delhi Legislative Assembly legislative powers over all but Entries 1, 2, 18 and Entries 64, 65 and 66 in so far as they relate to Entry 1, 2 and 18 of the State List, and all the subjects in the Concurrent List. The Council of Ministers’executive domain under Article 239AA(4) is the same. Moreover, Article 239AA reserves primacy of the Union Parliament and the Central Government only in limited area. This is clear from the provisions of Article 239AA(3)(b). The primacy of the legislative powers of Parliament is reserved by this provision but there is no corresponding provision in the Constitution which preserves the executive power of the Central Government vis­a­vis the Delhi Government in respect of the NCT. Thus, Article 239AA(3)(b) consciously preserves Parliament’s Legislative powers for Delhi, as they obtained for all Union Territories under Article 246. Also it consciously omits from giving the Centre coterminous executive powers, and Article 73 will only operate to give the Centre executive power in relation to the three reserved subjects of State List.

16. Dwelling on the interpretation of proviso to Article 239AA(4), it is submitted that proviso is not meant for the LG to have a different view on the merits of the aid and advice that has been tendered by the Council of Ministers and is only meant to deal with situations where the aid and advice of the Council of Ministers is transgressing beyond the areas constitutionally prescribed to them. It is submitted that the said proviso operates in the following areas, where the decision of the Council of Ministers of the NCTD:­

a. is outside the bounds of executive power under Article 239AA(4);
b. impedes or prejudices the lawful exercise of the executive power of the Union;
c. is contrary to the laws of the Parliament.
d. falls within Rule 23 of the Transaction of Business of Government of National Capital Territory of Delhi Rules, 1993 matters such as­
i. matters which affect the peace and tranquillity of the Capital;
ii. Interests of any minority community;
iii. Relationship with the higher judiciary;
iv. any other matters of administrative importance which the Chief Minister may consider necessary.

17. A holistic reading of Article 239AA(4) and the proviso reveals that the proviso exists because the norm is for the LG to be bound by the aid and advice of the Council of Ministers of the NCTD. This norm can only be departed from in the circumstances laid out above for the applicability of the proviso.

18. It is submitted that 1991 Act as well as the Rules themselves cannot be used to interpret the constitutional provisions rather they are reflecting the scheme of governance. The “services” lies within the Legislative and Executive domains of the Delhi Assembly and the GNCTD respectively.

19. Shri Maninder Singh, learned Additional Solicitor General for India replying to the submissions of learned counsel for the appellant contends that while interpreting the Constitution the Courts should give effect to plain and literal meaning of the constitutional provisions. There is neither any ambiguity nor any absurdity arising from the plain/literal interpretation of the provisions of 239AA. The constitutional provisions concerning the GNCTD have been inserted keeping in view the carefully envisaged scheme of governance for NCTD under the Constitution of India. The Constitution makers have deliberately used the widest possible words “any matter” in order to retain the powers of the Union in both the legislative and executive spheres in relation to all matters, keeping in view the unique features as well as special responsibilities of the Union, in each subject in relation to the National Capital. Any contention seeking a restrictive interpretation of the said provisions are impermissible in view of the law laid down by this Court. Any such contention would not only be contrary to the constitutional scheme envisaged for Delhi but would also be contrary to the intention of the Constitution makers in using the widest possible language for emphasising the responsibility and supremacy of the Union in the administration of the National Capital.

20. The contention on the basis of principles of constitutional silence or constitutional implication which run contrary to the constitutional scheme envisaged by express provisions has to be rejected. The Balakrishnan Committee Report which was foundation for 69th Constitutional Amendment throws light on the intention of the Constitution makers.

21. Article 239 is an integral/inseparable part of the constitutional scheme envisaged for all Union Territories as provided for under Part VIII of the Constitution, and is to be read with Article 239AA for NCT of Delhi. Article 239 applies to all Union Territories including NCT of Delhi when read with Article 239AA, the way it applies to Pondicherry when read with the provision of Article 239A.

22. Shri Maninder Singh during his submission has referred to various paragraphs of Balakrishnan Committee Report to bring home his point of view.

23. It is submitted that even when Article 239AA(3)(a) stipulates that Legislative Assembly of Delhi shall have the power to legislate in respect of subject matters provided in List II and List III of the VIIth Schedule of Constitution of India, it specifically restricts the legislative powers of Legislative Assembly of Delhi to those subject matters which are “applicable to Union Territories”. The Constitution envisages that List II and List III of the VIIth Schedule of the Constitution of India contain certain subject matters which are not applicable to Union Territories. The intention of the Constitution makers is that even when the subject matters contained in List II and List III of the VIIth Schedule become available to the Legislative Assembly of NCT of Delhi, the subject matters in the said Lists which are not applicable to Union Territories would not become available to the Legislative Assembly of NCT of Delhi and would be beyond its legislative powers.

24. Article 246(4) provides that in relation to all Union Territories including Delhi and any other territory which is not a State, Parliament has power to make laws on any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule. This independent separate provision once again recognises the ultimate/eventual responsibility of the Union in relation to the Union Territories on all subject matters.

25. Since the executive power of the Union under Article 73(1)(a), and which is vested in the President of India under Article 53 extends to all subject matters on which Parliament has power to make laws – in a Union Territory, the executive power of the Union extends to any matter i.e. all subject matters contained in all three Lists of the VIIth Schedule and remains vested in the President under Article 239 of the Constitution for administering Union Territories, including Union Territory of NCT Delhi.

26. It is submitted that the proviso to Article 239AA(4) re­enforces and recognises the ultimate/eventual responsibility and continuing control of the Union in relation to the administration of the Union Territory of Delhi. The Constitution makers have envisaged that owing to its responsibilities in relation to every subject, it may become necessary for the Union Government to take any decision with regard to any matter in relation to the administration of the National Capital Territory of Delhi. Such a need may also be arising in relation to day­to­day functioning of the National Capital.

27. It is further submitted that the Constitution makers have deliberately used the widest possible phrase of “any matter” in the proviso to Article 239AA(4). The Constitution Bench of this Court in the case of Tej Kiran Jain and Others Vs. N. Sanjiva Reddy and Others, (1970) 2 SCC 272 has clearly held that the word “any” used in relation to “anything” in the Constitution – would necessarily mean “everything”. The said principle would make it abundantly clear that the phrase “any matter” used in Article 239AA would necessarily and unexceptionally mean “every matter”. Further, only such an interpretation would ensure the intended objective and the necessity that if the need arises, the Union is not prevented from discharging its responsibilities in relation to the National Capital in relation to any matter.

28. It is further respectfully submitted that the proviso to Article 239AA(4) would not deserve to be interpreted as an “exception”. It is not an exception but the reiteration of a constitutional mandate. The constitutional mandate is that the Union would have overarching control in relation to all matters for the National Capital. There is no vestige of any exclusive Executive Power in the Council of Ministers of NCT of Delhi. The vestige of the Executive Power continues to remain in the President. The proviso is controlling the provision of Article 239AA(4), reiterating the overarching control of the Union, and is not an exception. The proviso indicates the constitutional mandate of supremacy of the Union. In the humble submission of the respondents, no restrictive interpretation of the proviso ought to be permitted and the clear Constitutional mandate contained in the proviso to Article 239AA(4) would deserve to be followed, especially in the case of the National Capital.

29. It is most respectfully reiterated that the unitary scheme of governance for Union Territories, especially for National Capital of Delhi, has been envisaged keeping in view the fact that the administration of Union Territories specially National Capital of Delhi is the responsibility of the President/Union. The Union Government is the responsible Government, accountable to the Parliament for the administration of the Union Territories. The National Capital belongs to people of the entire nation. Learned Additional Solicitor General has also referred to and relied on various provisions of 1991 Act and Transaction of Business Rules, 1993 with regard to administration of GNCTD.

30. Learned Additional Solicitor General in its submission also contended that there are very few instances in which LG has made reference to President and in actual working LG neither withhold the files nor there is any other hindrance in decisions taken by GNCTD. He submits that on various occasions without even communicating the decisions taken by the Council of Ministers/Ministers to the LG, the GNCTD starts implementing the decision which is not in accordance with the scheme of governance as delineated by Article 239AA. 1991 Act and Transaction of Business Rules, 1993.

31. Learned counsel for the parties in support of their respective submissions have placed reliance on a large number of judgments of this Court and Foreign Courts. Relevant decisions of this Court and other Courts shall be referred to while considering the respective submissions.

Importance of a National Capital

32. The word “Capital” is derived from Latin word “caput” meaning head and denotes a certain primacy status associated with the very idea of a Capital. Delhi is the National Capital of the country. For the purposes of this case it is not necessary to notice the early history of Delhi. During the British period Calcutta was a seat of both the Provincial Government of Bengal as well as the Central Government. The conflicts of authorities and jurisdiction between the Governor of Bengal and Governor­ General was brought into the notice of the Secretary of the State in London. Lord Hardinge in his dispatch of 25.08.2011 emphasised “that the Capital of a great Central Government should be separate and independent, and effect has been given to this principle in the United States of America, Canada and Australia”. A decision was taken to transfer Capital from Calcutta to Delhi which was announced on 12.12.1911. A Government Notification No.911 dated 17.09.1912 was issued under which the Governor­General­in­Council took under his authority the Territories comprising the Tehsil of Delhi and the Police Station of Mehrauli which were formerly included in the province of Punjab. The Notification provided for the administration of areas as a separate province under a Chief Commissioner. The Delhi Laws Act, 1911 and the Delhi Laws Act, 1915 made provisions for the continuance of the Laws in force in the Territories comprising the Chief Commissioner’s province of Delhi and for the extension of other enactments in force in any part of British India to Delhi by Governor­General­in­Council. In 1915, trans­Yamuna areas comprising 65 villages were separated from United Provinces of Agra and Oudh and added to the Chief Commissioner’s of Delhi. Administration of Delhi after Enforcement of the Constitution of India.

33. The Government of India Act, 1935 did not affect any material changes in the administrative set­up for Delhi and it continued as before to be a Chief Commissioner’s Province directly administered by the Governor­General “acting to such extent as he thinks fit through a Chief Commissioner”. On 31.07.1947, a Committee under the Chairmanship of Dr. B.Pattabhi Sitaramayya was established to study and report on the constitutional changes required in the administrative structure obtaining in the Chief Commissioner’s Provinces, including Delhi. The Committee recommended that Delhi, Ajmer, Bhopal, Bilaspur, Coorg, Himachal Pradesh including Cutch, Manipur, Tripura and such other provinces may be so designated as shall be the Lt.

Governor’s Province. The report was debated in Constituent Assembly when draft Articles 212 and 213 (which was adopted as 239­240) was debated. When the Constitution was enforced from 26th January, 1950 the scheme of the Constitution of India including Articles 1 to 4, Territory of India was divided into four categories Part ‘A’, Part ‘B’, Part ‘C’ and Part ‘D’ States. With regard to Part ‘A’ and Part ‘B’ States, the Constitution envisaged a vertical division of power between the Union and States wherein Part ‘C’ and ‘D’States, Constitution had provided structure under which Union Government retained the power in both the executive and legislative sphere. Pert ‘C’ States had also been termed as centrally administered areas which included Delhi. Parliament enacted the Government of Part C States Act, 1951, under which provision was made to aid and advice to Chief Commissioner. The States Re­organisation Commission was set up on 29.12.1953 which also took up subject of functioning of Part ‘C’ States. The State Re­organisation Commission made the following Report with regard to Delhi:

“584. It is hardly necessary to discuss in any detail the reasons why Delhi, if it is to continue as the Union Capital, cannot be made part of a full­fledged constituent unit of the Indian Union. Even under a unitary system of government, the normal practice is to place national capitals under a special dispensation. In France, for example, there is a greater degree of central control over Paris than over other municipalities. In England, the police administration of the metropolitan area is directly under the control of the Home Secretary, who does not exercise similar powers in respect of other municipal areas. Apart from reasons which are peculiar to each country or city, there are some general considerations necessitating special arrangements in respect of national capitals. Capital cities possess, or come to possess, some degree of political and social predominance. They are seats of national governments, with considerable property belonging to these governments. Foreign diplomatic missions and international agencies are located in these capitals. They also become centres of national culture and art. So far as federal capitals are concerned, there is also an additional consideration. Any constitutional division of powers, if it is applicable to units functioning in the seats of national governments, is bound to give rise to embarrassing situations. Practice in other countries, administrative necessity and the desirability of avoiding conflicting jurisdictions, all point to the need for effective control by national governments over federal capitals.”

34. On the basis of the recommendation of the State Re­ organisation Commission, 7th Amendment Act, 1956 was passed, under the Amendment Part ‘C’ States were renamed as Union Territory. Delhi a Part ‘C’ State became Union Territory and the Legislative Assembly and Council of Ministers ceased to act w.e.f. 01.11.1956. Subsequent to 7th Amendment, different schemes were enforced for administration of Delhi, Delhi Municipal Corporation Act, 1957 was passed by the Parliament providing for direct election of Councillors from all the constituencies to be elected by residents of Delhi. By Constitution 14th Amendment Act, 1962, Article 239A was inserted which was enabling provision for the Parliament to make law to create a Legislature or Council of Ministers or both for the Union Territories specified therein. The Union Territory of Delhi was not included in the list of Union Territories in Article 239A. The Parliament enacted the Government of Union Territories Act, 1963. The Delhi Administration Act, 1966 was passed by the Parliament to provide for an elected body of Delhi Metropolitan Council. A Committee was appointed by the Government of India to go into the various issues connected with the administration of Union Territory of Delhi. The Committee, after, studying for two years about all aspects of the matters had submitted its Report on 14.12.1989 to the Home Minister. The Report of the Committee is commonly known as Balakrishnan Committee Report. While submitting the Report S.Balakrishnan, in nutshell, in his letter dated 14.12.1989 addressed to Home Minister has outlined task given to the Committee in following words: “The task of designing a proper structure of Government for the national capital particularly for a country with a federal set up like ours, has always proved difficult because of two conflicting requirements. On the one hand, effective administration of the national capital is of vital importance to the national Government not only for ensuring a high degree of security and a high level of administrative efficiency but also for enabling the Central Government to discharge its national and international responsibilities; to ensure this, it must necessarily have a complete and comprehensive control over the affairs of the capital. On the other hand, the legitimate demand of the large population of the capital city for the democratic right of participation in the government at the city level is too important to be ignored. We have endeavoured to design a governmental structure for Delhi which we hope, would reconcile these two requirements.”

35. Balakrishnan Committee Report studied different aspects connected with the administration of Delhi, the Capital of this country. While studying “National Capital Administration in some countries”, in Chapter V, the Committee examined various models including United States of America, Canada, Japan and United Kingdom. After noticing the different aspects in paragraph 5.7.3 following has been observed: “5.7.3 It will be clear from the above that it has been recognised in many countries of the world that the national government should have the ultimate control and authority over the affairs of the national capital. At the same time, there is a noticeable trend in those countries to accept the principle of associating the people in the capital with sectors of administration affecting them, by means of a representative body. Because of the difficulty in securing a balance between these two considerations, the problem of evolving an appropriate governmental structure for the national capital has proved difficult in many countries particularly those with a federal type of government.”

36. Before the Committee, the arguments for giving Statehood to Delhi as well as arguments against the Statehood was noticed. The Committee after considering the rival arguments concluded following in paragraph 6.5.9 and 6.5.10:

“6.5.9 We are also impressed with the argument that Delhi as the national capital belongs to the nation as a whole and any constituent ‘State of the Union of which Delhi will become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority for Union intervention in day­to­day matters, however, vital some of them may be, will not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities. 6.5.10 In the light of the foregoing discussion our conclusion is that it will not be in the national interests and in the interests of Delhi itself, to restructure the set­up in Delhi as a full­fledged constituent State of the Union, this will have to be ruled out. We recommend accordingly.”

37. While discussing “salient features of proposed structure” following was stated in paragraphs 6.7.1 and 6.7.2:
“6.7.1 As a consequence of our recommendation in the preceding paragraph that Delhi should be provided with a Legislative Assembly and a Council of Ministers the further issues to be considered are:
(i) the extent of the powers and responsibilities to be conferred on or entrusted to these bodies, the special safeguards to ensure that the Union is not hampered in discharging its duties and responsibilities and the other salient features of the structure; and
(ii) the manner in which the proposed changes in the structure should be brought about, that is, whether they should be by amendments to the Constitution, or by a Parliamentary law or by a combination of both.
We will now take up the issue in item (i) above in the succeeding paragraphs. Item (ii) will be discussed in Chapter VII.
6.7.2 As we have already stated, any governmental set­up for Delhi should ensure that the Union is not fettered or hampered in any way in the discharge of its own special responsibilities in relation to the administration of the national capital, by a constitutional division of powers, functions and responsibilities between the Union and the Delhi Administration. The only way of ensuring this arrangement is to keep Delhi as a Union Territory for the purposes of the Constitution. Thereby, the provision in Article 246(4) of the Constitution will automatically ensure that Parliament has concurrent and overriding powers to make laws for Delhi on all matters, including those relateable to the State List. Correspondingly, the Union, Executive can exercise executive powers in respect of all such matters subject to the provisions of any Central law governing the matter. We, therefore, recommend that even after the creation of a Legislative Assembly and Council of Ministers for Delhi it should continue to be a Union Territory for the purposes of the Constitution.”

38. Various other recommendations were made by Balakrishnan Committee which led to Constitution 69th Amendment. Statement and Objects of Constitution 69th Amendment notices the object and purpose of constitutional amendment which are to the following effect:

“STATEMENT OF OBJECTS AND REASONS
The question of re­organisation of the Administrative set­up in the Union territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24­12­1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set­up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national Capitals of other countries with a federal set­up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories.
2. The Bill seeks to give effect to the above proposals.”

39. By 69th Amendment Act, Article 239AA and Article 239AB were added in Part VIII of the Constitution. Article 239AA and 239AB which Articles are taken up for consideration in these appeals are as follows:

“Article 239AA {Special provisions with respect to Delhi}

1. As from the date of commencement of the Constitution (Sixty ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article

239 shall be designated as the Lieutenant Governor.

2(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.

(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament.

3(a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.

(b) Nothing in sub­clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub­clause shall prevent Parliament form enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.

4. There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

5. The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

6. The Council of Ministers shall be collectively responsible to the Legislative Assembly.

7(a) Parliament may, by law, make provisions for giving effect to, or supplement the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub­clause
(a) shall not be deemed to be an amendment of this constitution for the purposes of article
368 notwithstanding that it contains any provision which amends or has the effect of amending this constitution.
8. The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Pondicherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) or article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be.

Article 239AB {Provision in case of failure of constitutional monarchy}

If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied ­

(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or

(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.”

The Principles of Constitutional Interpretation

40. Before we proceed to examine the scheme delineated by Article 239AA, it is necessary to have an overview on the principles which have been accepted for interpretation of a Constitution. Before we notice the accepted principles for constitutional interpretation, we want to notice prophetic words of Dr. B.R. Ambedkar where Dr. Ambedkar in closing debate on 25.11.1949 in the Constituent Assembly on the draft Constitution made following statement:

“…Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However, bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

41. After noticing the universal truth stated by Dr. B.R. Ambedkar as above, we now proceed to notice the principles of Constitutional interpretation. The general rule for interpreting a Constitution are the same as those for interpreting a general Statute. Article 367 of the Constitution provides that Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. This Court in Keshavan Madhava Menon Vs. State of Bombay, AIR 1951 SC 128 : (1951) SCR 228 held that court of law has to gather the spirit of the Constitution from the language of the Constitution. True meaning of the Constitution has to be arrived at uninfluenced by any assumed interpretation of the Constitution. In Para 13 of the judgment, following was held :­

“13. An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Con­ stitution cannot prevail if the language of the Constitution does not support that view. Article 372(2) gives power to the President to adapt and modify existing laws by way of re­ peal or amendment. There is nothing to prevent the President, in exercise of the powers con­ ferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act, 1931. If the President does so, then such repeal will at once attract Section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of its repeal by the Pres­ ident would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past in­ choate rights or liabilities and pending pro­ ceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the con­ tention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending pros­ ecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe the language of Ar­ ticle 13(1) according to the established rules of interpretation and arrive at its true mean­ ing uninfluenced by any assumed spirit of the Constitution.”

42. This Court in subsequent judgments have also pro­ pounded the doctrine of literal interpretation and doc­ trine of purposive interpretation. There cannot be de­ nial to the fact that the Court has to respect the lan­ guage used in the Constitution wherever possible, the language be such interpreted as may best serve the pur­ pose of the Constitution. A Constitutional document should be construed with less rigidity and more generos­ ity than other acts. This Court in S.R. Chaudhuri Vs. State of Punjab & Ors., (2001) 7 SCC 126 held that we must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the Democratic spirit underlying it being respected in letter and in spirit.

43. Before a Constitution Bench of this Court in G. Narayanaswami Vs. G. Paneerselvam and Others, (1972) 3 SCC 717, provisions of Article 171 came up for interpre­ tation, in the above case, in Paragraph 4 of the judg­ ment, following principle was reiterated:­

“4. Authorities are certainly not wanting which indicate that courts should interpret in a broad and generous spirit the document which contains the fundamental law of the land or the basic principles of its Government. Never­ theless, the rule of “plain meaning” or “lit­ eral” interpretation, described in Maxwell’s Interpretation of Statutes as “the primary rule”, could not be altogether abandoned today in interpreting any document. Indeed, we find Lord Evershed, M.R., saying: “The length and detail of modern legislation, has undoubtedly reinforced the claim of literal construction as the only safe rule”. (See: Maxwell on In­ terpretation of Statutes, 12th Edn., p. 28.) It may be that the great mass of modern legis­ lation, a large part of which consists of statutory rules, makes some departure from the literal rule of interpretation more easily justifiable today than it was in the past. But, the object of interpretation and of “con­ struction” (which may be broader than “inter­ pretation”) is to discover the intention of the law­makers in every case (See: Crawford on Statutory Construction, 1940 Edn., para 157, pp. 240­42). This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of inter­ pretation as well as of construction processes which, from the point of view of principles applied, coalesce and converge towards the common purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under consideration have, therefore to be examined before applying any method of con­ struction at all………………….”

44. In B.R. Kapur Vs. State of T.N. and Another, (2001)

7 SCC 231 Justice Pattanaik, delivering a concurring judgment, laid down following in Paragraph 72:­

“72. …………………………………A documentary constitution reflects the beliefs and political aspirations of those who had framed it. One of the princi­ ples of constitutionalism is what it had de­ veloped in the democratic traditions. A pri­ mary function that is assigned to the written constitution is that of controlling the organs of the Government. Constitutional law presup­ poses the existence of a State and includes those laws which regulate the structure and function of the principal organs of the gov­ ernment and their relationship to each other and to the citizens. Where there is a written constitution, emphasis is placed on the rules which it contains and on the way in which they have been interpreted by the highest court with constitutional jurisdiction. Where there is a written constitution the legal structure of the Government may assume a wide variety of forms. Within a federal constitution, the tasks of the Government are divided into two classes, those entrusted to the federal organs of the Government, and those entrusted to the various States, regions or provinces which make up the federation. But the constitutional limits bind both the federal and State organs of the Government, which limits are enforce­ able as a matter of law………………….”

45. Another Constitution Bench in Kuldip Nayar and Oth­ ers Vs. Union of India and Others, (2006) 7 SCC 1 after the above quoted passage of G. Narayanaswami (supra) stated following in Para 201:­ “201.
Xxxxxxxxxxxxxxxxx

We endorse and reiterate the view taken in the abovequoted paragraph of the judgment. It may be desirable to give a broad and gen­ erous construction to the constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact the rule of “literal construction” is the safe rule un­ less the language used is contradictory, am­ biguous, or leads really to absurd results.”

46. We may also notice the Constitution Bench Judgment in I.R. Coelho Vs. State of T.N., (2007) 2 SCC 1, it laid down the principles of construction in Paragraph 42, which is to the following effect:­

“42. The controversy with regard to the dis­ tinction between ordinary law and constitu­ tional amendments is really irrelevant. The distinction is valid and the decisions from Indira Gandhi case (1975 Supp. SCC 1) up to Kuldip Nayar v. Union of India [(2006) 7 SCC 1] case represents the correct law. It has no application in testing the constitutional amendment placing the Acts in the Ninth Schedule. There is no manner of doubt that:

A) In Kesavananda Bharati [(1973) 4 SCC 225] case Sikri, C.J. [para 475(h)], Shelat & Grover, JJ. [paras 607, 608(7)], Hegde & Mukherjea, JJ. [paras 742, 744(8)] and Jaganmohan Reddy, J. [paras 1211, 1212(4)] all clearly held that the Acts placed in the Ninth Schedule and the provisions thereof have to be subjected to the basic structure test.
(B) Chandrachud, C.J. in Waman Rao case [(1980) 3 SCC 587], followed the path laid down by 6 Judges in Kesa­ vananda Bharati without quoting from their conclusions and without at­ tempting to reconcile their views with the subsequent development in the law regarding the distinction be­ tween ordinary legislations and con­ stitutional amendments.”

47. Learned counsel for the appellant submits that Fed­ eralism being one of the basic structure of the Constitu­ tion, this Court may put such interpretation on Article 239AA, which strengthens the federal structure. It is further contended that Parliamentary democracy having been adopted by our Constitution, this Court may inter­ pret Article 239AA so that Constitutional design and Con­ stitutional objectives be fulfilled. It is submitted that judgments of this Court in Rustom Cavasjee Cooper Vs. Union of India, (1970)1 SCC 248: AIR 1970 SC 564 and judgment of this Court in Maneka Gandhi Vs. Union of In­ dia and Another, (1978)1 SCC 248: AIR 1978 SC 597 reflect that principles of less textual and more purposive method of Constitutional interpretation which has been adopted in these cases. Judgment of this Court in K.C. Vasanth Kumar and Another Vs. State of Karnataka, 1985 Supp. SCC 714 has been relied, wherein this Court laid down follow­ ing:­

“……………………….It is not enough to exhibit a Marshallian awareness that we are expounding a Constitution; we must also remember that we are expounding a Constitution born in the mid­twentieth century, but of an anti­impe­ rialist struggle, influenced by constitu­ tional instruments, events and revolutions elsewhere, in search of a better world, and wedded to the idea of justice, economic, so­ cial and political to all. Such a Constitu­ tion must be given a generous interpretation so as to give all its citizens the full mea­ sure of justice promised by it. The exposi­ tors of the Constitution are to concern themselves less with mere words and arrange­ ment of words than with the philosophy and the pervading “spirit and sense” of the Con­ stitution, so elaborately exposed for our guidance in the Directive Principles of State Policy and other provisions of the Constitution…………………………….”

48. Shri H.M. Seervai, in his “A Critical Commentary” on Constitutional Law of India, on interpretation of the Constitution, states following in Paragraph 2.1 and 2.2:­
“2.1 A Court of Law must gather the spirit of the Constitution from the language used, and what one may believe to be the spirit of the Constitution cannot prevail if not sup­ ported by the language, which therefore must be construed according to well­established rules of interpretation uninfluenced by an assumed spirit of the Constitution. Where the Constitution has not limited, either in terms or by necessary implication, the gen­ eral powers conferred upon the Legislature, the Court cannot limit them upon any notion of the spirit of the Constitution.

2.2 Well established rules of interpretation require that the meaning and intention of the framers of a Constitution – be it a Par­ liament or a Constituent Assembly – must be ascertained from the language of that Con­ stitution itself; with the motives of those who framed it, the Court has no concern. But, as Higgins J. observed – “in words that have not withered or grown sterile with years”­:

“although we are to interpret the words of the constitution on the same principles of interpretation as we ap­ ply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting, to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which de­ clares what the law is to be.”

49. Justice G.P. Singh in “Principles of Statutory In­ terpretation”, 14th Edition, while discussing interpreta­ tion of Constitution stated following:­
“The Constitution is a living organic thing and must be applied to meet the current needs and requirements, and is not bound to be interpreted by reference to the original understanding of the constitutional econom­ ics as debated in Parliament. Accordingly, the Supreme Court held that the content and meaning of Article 149, which provides the duties and powers of the CAG, will vary from age to age and, given that spectrum is an important natural resource, CAG has the power to examine the accounts of telecom service providers under Article 149.

It cannot, however, be said that the rule of literal construction or the golden rule of construction has no application to interpre­ tation of the Constitution. So when the language is plain and specific and the lit­ eral construction produces no difficulty to the constitutional scheme, the same has to be resorted to. Similarly, where the Consti­ tution has prescribed a method for doing a thing and has left no ‘abeyance’ or gap, if the court by a strained construction pre­ scribes another method for doing that thing, the decision will become open to serious ob­ jection and criticism.”

50. Aharon Barak (Former President, Supreme Court of Is­ rael) while dealing with Purposive Constitutional Inter­ pretation expounded the modern concept in following words:­
“The purpose of the constitutional text is to provide a solid foundation for national existence. It is to embody the basic aspira­ tions of the people. It is to guide future generations by its basic choices. It is to control majorities and protect individual dignity and liberty. All these purposes can­ not be fulfilled if the only guide to inter­ pretation is the subjective purposes of the framers of the constitutional text. The con­ stitution will not achieve its purposes if its vision is restricted to the horizons of its founding fathers. Even if we assume the broadest generalizations of subjective pur­ pose, this may not suffice. It may not pro­ vide a solid foundation for modern national existence. It may be foreign to the basic aspirations of modern people. It may not be consistent with the dignity and liberty of the modern human being. A constitution must be wiser than its creators”.

51. Almost same views have been expressed by Aharon Barak in “Foreword: A Judge on Judging The Role of a Supreme Court in a Democracy”, which are as under:­ “The original intent of the framers at the time of drafting is important. One cannot understand the present without understanding the past. The framers’ intent lends histor­ ical depth to understanding the text in a way that honors the past. The intent of the constitutional authors, however, exists alongside the fundamental views and values of modern society at the time of interpreta­ tion. The constitution is intended to solve the problems of the contemporary person, to protect his or her freedom. It must contend with his or her needs. Therefore, in deter­ mining the constitution’s purpose through interpretation, one must also take into ac­ count the values and principles that prevail at the time of interpretation, seeking syn­ thesis and harmony between past intention and present principle.”

52. In this context, we may also profitably notice views of David Feldman expressed in “The Nature and Signifi­ cance of Constitutional Legislation” published in 2013(129) L.Q.R. 343­358. Few principles to guide the interpretation of Constitution instruments were noted, which are as follows:­

“Despite differences between constitutions, and between types of provision within each constitution, diverse jurisdictions have shown considerable consistency in their se­ lection of principles to guide the interpre­ tation of constitutional instruments. First, constitutions are to be interpreted with the aid of their preambles, which are usually treated as forming an integral part of them.63 Secondly, a democratic constitution must be interpreted to “foster, develop and enrich”, rather than undermine, democratic institutions.64 In particular, interpreters should give scope for a self­governing en­ tity to make its own decisions, including decisions about the terms on which demo­ cratic institutions operate, subject to lim­ its imposed by the constitution.65 Thirdly, constitutions are not to be interpreted with mechanical literalness. Interpreters must take account of the context, ultimate ob­ ject, and textual setting of a provision, 66 bearing in mind that “the question is not what may be supposed to have been intended [by the framers], but what has been said”.

67 Fourthly, according to at least some judges, constitutions are not to be inter­ preted as permitting institutions, including legislatures, to act in a way which “offends what I may call the social conscience of a sovereign democratic republic”, because law must be regarded by ordinary people as “rea­ sonable, just and fair” Nevertheless, these principles must be qual­ ified by the recognition of differences be­ tween constitutions.”

53. Learned counsel for the appellant has also relied on the principles of Constitutional silence
and Constitu­ tional implications. It is submitted that Constitutional silence and Constitutional
implications have also to be given due effect while interpreting Constitutional provi­ sions.
Reliance has been placed on Constitutional Bench
Judgment of this Court in Manoj Narula Vs. Union of In­

dia, (2014) 9 SCC 1. Constitution Bench in the above

case while considering principles of Constitutional si­ lence or abeyance laid down following in
Paras 65­66:­

“65. The next principle that can be thought of is constitutional silence or silence of the Constitution or constitutional abeyance. The said principle is a progressive one and is applied as a recognised advanced consti­ tutional practice. It has been recognised by the Court to fill up the gaps in respect of certain areas in the interest of justice and larger public interest. Liberalisation of the concept of locus standi for the purpose of development of public interest litigation to establish the rights of the have­nots or to prevent damages and protect environment is one such feature. Similarly, laying down guidelines as procedural safeguards in the matter of adoption of Indian children by foreigners in Laxmi Kant Pandey v. Union of India [(1987) 1 SCC 66] or issuance of guidelines pertaining to arrest in D.K. Basu v. State of W.B. [(1997) 1 SCC 416] or di­ rections issued in Vishaka v. State of Ra­ jasthan [(1997) 6 SCC 241] are some of the instances.

66. In this context, it is profitable to re­ fer to the authority in Bhanumati v. State of U.P. [(2010) 12 SCC 1] wherein this Court was dealing with the constitutional validity of the U.P. Panchayat Laws (Amendment) Act, 2007. One of the grounds for challenge was that there is no concept of no­confidence motion in the detailed constitutional provi­ sion under Part IX of the Constitution and, therefore, the incorporation of the said provision in the statute militates against the principles of Panchayati Raj institu­ tions. That apart, reduction of one year in place of two years in Sections 15 and 28 of the Amendment Act was sought to be struck down as the said provision diluted the prin­ ciple of stability and continuity which is the main purpose behind the object and rea­ son of the constitutional amendment in Part IX of the Constitution. The Court, after re­ ferring to Articles 243­A, 243­C(1), (5), 243­D(4), 243­D(6), 243­F(1), 243­G, 243­H, 243­I(2), 243­J, 243­K(2) and (4) of the Constitution and further taking note of the amendment, came to hold that the statutory provision of no­confidence is contrary to Part IX of the Constitution. In that con­ text, it has been held as follows: (Bhanu­ mati case, SCC p. 17, paras 49­50)

“49. Apart from the aforesaid rea­ sons, the arguments by the appellants cannot be accepted in view of a very well­known constitutional doctrine, namely, the constitutional doctrine of silence. Michael Foley in his treatise on The Silence of Constitu­ tions (Routledge, London and New York) has argued that in a Constitu­ tion ‘abeyances are valuable, there­ fore, not in spite of their obscurity but because of it. They are signifi­ cant for the attitudes and approaches to the Constitution that they evoke, rather than the content or substance of their strictures’. (p. 10)

50. The learned author elaborated this concept further by saying, “De­ spite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational char­ acter and restraining quality of a Constitution as its more tangible and codified components.’ (p. 82)”

54. It is further relevant to notice that although above well known Constitutional doctrine was noticed but the Court held that express Constitutional provisions cannot be ignored while considering such doctrine and princi­ples. After what has been stated above about above prin­ ciples in Paras 65 and 66, following was held in Para 67:­

“67. The question that is to be posed here is whether taking recourse to this doctrine for the purpose of advancing constitutional culture, can a court read a disqualification to the already expressed disqualifications provided under the Constitution and the 1951 Act. The answer has to be in the inevitable negative, for there are express provisions stating the disqualifications and second, it would tantamount to crossing the boundaries of judicial review.”

55. Doctrine of Constitutional implications was also no­ ticed by Constitution Bench in Para 68 to the following effect:­

“68. The next principle that we intend to discuss is the principle of constitutional implication. We are obliged to discuss this principle as Mr Dwivedi, learned Amicus Cu­ riae, has put immense emphasis on the words “on the advice of the Prime Minister” occur­ ring in Article 75(1) of the Constitution. It is his submission that these words are of immense significance and apposite meaning from the said words is required to be de­ duced to the effect that the Prime Minister is not constitutionally allowed to advise the President to make a person against whom charge has been framed for heinous or seri­ ous offences or offences pertaining to cor­ ruption as Minister in the Council of Minis­ ters, regard being had to the sacrosanctity of the office and the oath prescribed under the Constitution. The learned Senior Counsel would submit that on many an occasion, this Court has expanded the horizon inherent in various articles by applying the doctrine of implication based on the constitutional scheme and the language employed in other provisions of the Constitution.”

56. There cannot be any dispute with regard to doctrine of silence and doctrine of implications as noticed above. But while applying above said doctrines in interpreting a Constitutional provision, express provision cannot be given a go­bye. The purpose and intent of Constitutional provisions especially the express language used which re­ flect a particular scheme has to give full effect to and express Constitutional scheme cannot be disregarded on any such principles.

57. From the above discussions, it is apparent that Con­ stitutional interpretation has to be purposive taking into consideration the need of time and Constitutional principles. The intent of Constitution framers and ob­ ject and purpose of Constitutional amendment always throw light on the Constitutional provisions but for interpret­ ing a particular Constitutional provision, the Constitu­ tional Scheme and the express language employed cannot be given a go­bye. The purpose and intent of the Constitu­ tional provisions have to be found from the very Consti­ tutional provisions which are up for interpretation. We, thus, while interpreting Article 239AA have to keep in mind the purpose and object for which Sixty Ninth Consti­ tution (Amendment) Act, 1991 was brought into force. Af­ ter noticing the above principles, we now proceed further to examine the nature and content of the Constitutional provisions.

CONSTITUTIONAL SCHEME OF ARTICLE 239AA
58. To find out the Constitutional Scheme as delineated by Article 239AA, apart from looking into the express language of Article 239AA, we have also to look into the object and purpose of Constitutional provision, on which sufficient light is thrown by the object and reasons as contained in Sixty Ninth Constitutional Amendment as well as Balakrishnan’s Report which was the basis of Sixty Ninth Constitutional Amendment. We have already referred to some relevant parts of Balakrishnan’s report in preceding paragraph of this judgment.

59. The task before Balakrishnan Report in words of Balakrishnan himself was to synchronise the two competing claims i.e. “On the one hand, effective administration of the National Capital is of vital importance to the National Government not only for ensuring a high degree of security and a high level of administrative efficiency but also for enabling the Central Government to discharge its national and international responsibilities”. To ensure this, it must necessarily have a complete and comprehensive control over the affairs of the capital. On the other hand, legitimate demand of the large population of the capital city for the democratic right of participation in the Government at the city level is too important to be ignored. We have endeavoured to design a Governmental structure for Delhi which we hope, would reconcile these two requirements”.

60. For administration of Delhi, there has been earlier a Parliamentary Legislation. Legislative Assembly functioned in Delhi after the enforcement of the Constitution till 01.11.1956. Article 239A which was inserted by Constitutional Fourteenth Amendment Act, 1962 had already contemplated that Parliament may by law provide for Legislative Assembly for a Union territory. While considering the salient features of the proposed structure, following was stated in Para 6.7.2 of the Report:

“6.7.2 As we have already stated, any governmental set­up for Delhi should ensure that the Union is not fettered or hampered in any way in the discharge of its own special responsibilities in relation to the administration of the national capital by a constitutional division of powers, functions and responsibilities between the union and the Delhi Administration. The only way of ensuring this arrangement is to keep Delhi as a Union territory for the purposes of the Constitution. Thereby, the provision in article 246(4) of the Constitution will automatically ensure that Parliament has concurrent and overriding powers to make laws for Delhi on all matters, including those relateable to the State List. Correspondingly, the Union Executive can exercise executive powers in respect of all such matters subject to the provisions of any Central law governing the matter. We, therefore, recommend that even after the creation of a Legislative Assembly and Council of Ministers for Delhi it should continue to be a Union territory for the purposes of the Constitution.”

61. The Report also highlighted the necessity of certain subjects being kept out of jurisdiction of Legislative Assembly of Delhi which were to be dealt with by the Union.

62. At this juncture, it is also relevant to note the issue pertaining to admissibility of the Balakrishnan Report. The issue regarding admissibility of Parliamentary Committee’s Report in proceeding under Article 32/Article 136 of the Constitution of India was engaging attention of the Constitution Bench when hearing in these matters were going on. The Constitution Bench has delivered its judgment in Writ Petition (C) No. 558 of 2012 Kalpna Mehta and others Vs. Union of India and others on 09.05.2018. The Constitution Bench had held that Parliamentary Committee Reports can be looked into and referred to by this Court in exercise of its jurisdiction under Article 32/136. The Chief Justice delivering his opinion(for himself and on behalf of Justice A.M. Khanwilkar) in the conclusions recorded in Paragraph 149 in sub paragraph (iv) and (vii), has laid down:

“(iv) In a litigation before this Court either under Article 32 or Article 136 of the Constitution of India can take on record the report of the Parliamentary Standing Committee. However, the Court while taking the report on record as a material can take aid of as long as there is no contest or the dispute on the content because such a contest would invite the court to render a verdict either accepting the report in toto or in part or rejecting it in entirety.
(vii) In a public interest litigation where the adversarial position is absent, the Court can take aid of the said report in larger interest of the society to subserve the cause of welfare State and in any furtherance to rights provided under the Constitution or any statutory provision.”

63. Justice D.Y. Chandrachud (one of us) answering the reference has held at Page 86:
“(i) As a matter of principle, there is no reason why reliance upon the report of a Parliamentary Standing Committee cannot be placed in proceedings under Article 32 or Article 136 of the Constitution;
(ii) Once the report of a Parliamentary Committee has been published, reference to it in the course of judicial proceedings will not constitute a breach of parliamentary privilege. The validity of the report is not called into question in the court. No Member of Parliament or person can be made liable for what is stated in the course of the proceedings before a Parliamentary Committee or for a vote tendered or given; and
(iii) However, when a matter before the court assumes a contentious character, a finding of fact by the court must be premised on the evidence adduced in the judicial proceeding.”

64. Myself (Justice Ashok Bhushan) delivering my concurring opinion has also laid down following in Paragraph 151(ii,vii):

“(ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports which are steps towards the governance of the country. The right to know about the reports only arises when they have been published for use of the public in general. (vii) Both the parties have not disputed that Parliamentary Reports can be used for the purposes of legislative history of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the committee by the Court for the above two purposes, we fail to see any valid reason for not accepting the submission of the petitioner that Courts are not debarred from accepting the Parliamentary materials and reports, on record, before it, provided the Court does not proceed to permit the parties to question and impeach the reports.”

65. Thus, it is now well settled that Parliamentary Committee Report can be looked into to find out the intent and purpose of legislation, in the present case, Sixty Ninth Constitutional Amendment.

66. The statement of object & reasons of Sixty Ninth Amendment Act has also referred to the Balakrishnan’s Report. While referring to the Balakrishnan’s Report, following has been noted:
“The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the National Capitals of other countries with a federal set­up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories.”

67. The recommendation of the Committee that Delhi should continue to be Union territory providing with a Legislative Assembly and Council of Ministers responsible to such Assembly was thus accepted and to give effect the same Article 239AA was inserted in the Constitution. There is no denying that one of the purposes for insertion of Article 239AA is to permit a democratic and republican form of Government. The principle of cabinet responsibility was the Constitutional intent which has to be kept in mind while interpreting the Constitutional provisions.

68. There are many facets of Article 239AA which need elaborate consideration. Different facets shall be separately dealt under following heads:

A LEGISLATIVE POWER OF PARLIAMENT AND THAT OF GNCTD

B EXECUTIVE POWER OF UNINON (PRESIDENT/ LG) AND THAT OF GNCTD

C PROVISO TO ARTICLE 239AA
(i) AID AND ADVICE
(ii) IN MATTER

D WHETHER CONCURRENCE OF LG REQUIRED FOR EXCLUSIVE DECISION OF GNCTD

E COMMUNICATION OF DECISION OF COUNCIL OF MINISTERS / MINISTER AND LG, ITS PURPOSE AND OBJECT

F ADMINISTARTIVE FUNCTION OF THE GNCTD AND LG AS DELINEATED BY 1991 ACT AND THE TRANSACTIONS OF BUSINESS RULEs, 1993.

A. LEGISLATIVE POWER OF PARLIAMENT AND THAT OF GNCTD

69. Clause (3) of the 239AA deals with power to make laws for the whole or any part of the National Territory of Delhi by the Legislative Assembly as well as by Parliament. Clause (3) of Article 239 is extracted for ready reference:

“(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State of List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2, and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2,and 18.

(b) Nothing in sub­clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.

(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void;

Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent such law shall prevail in National Capital Territory :

Provided further that nothing in this sub­clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.”
70. The above provision makes it clear that Legislative Assembly shall have power to make laws in respect of any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of the List.

71. The provision is very clear which empowers the Legislative Assembly to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List except the excluded entries. One of the issue is that power to make laws in State List or in Concurrent List is hedged by phrase “in so far as any such matter is applicable to Union territories”.

72. A look of the Entries in List II and List III indicates that there is no mention of Union Territory. A perusal of the List II and III indicates that although in various entries there is specific mention of word “State” but there is no express reference of “Union Territory” in any of the entries. For example, in List II Entry 12, 26, 37, 38, 39, 40, 41, 42 and 43, there is specific mention of word “State”. Similarly, in List III Entry 3, 4 and 43 there is mention of word “State”. The above phrase “in so far as any such matter is applicable to Union Territory” is inconsequential. The reasons are two fold. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express Constitutional provision.

73. Thus, there is no difficulty in comprehending the Legislative power of the NCTD as expressly spelled out in Article 239AA. Now, we turn to find out Legislative power of the Parliament. Sub­clause (b) of Clause (3) of the Article 239AA mentions “nothing in sub clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof.

74. It is relevant to note that sub clause (3) begins with the word “subject to the provisions of this Constitution”. Article 246 thus, by Chapter 1st of the Part X1 of the Constitution dealing with the Legislative relations has to be looked into and to be read alongwith Article 239AA clause (3). Article 246 provides as follows:
“246. Subject­matter of laws made by Parliament and by the Legislatures of States.­
(1) Notwithstanding anything in clauses
(2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.”

75. Article 246 clause (4) expressly provides that Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State; notwithstanding that such matter is a matter enumerated in the State List. 76. The Union Territories are part of the India which are not included in any State. Thus, Parliament will have power to make laws for any matter with regard to Union territories. In clause (4) of Article 246 by Seventh Constitutional Amendment, in place of words “in Part A or Part B of the First Schedule” the words “in State” have been substituted. Thus, overriding power of the Parliament was provided with regard to Part C and D States on enforcement of the Constitution which Constitutional Scheme is continued after amendment made by Seventh Constitutional Amendment.

77. The issue regarding constitutional scheme envisaged for Delhi consequent to insertion of Article 239AA of Sixty Ninth Constitution Amendment came for consideration before a Nine Judge Bench of this Court in NDMC Vs. State of Punjab (1997) 7 SCC 339. The issue in the NDMC case was whether the property tax levied by NDMC On the immovable properties of States situated within the Union Territory of Delhi would be covered by the exemption provided in Article 289 of the Constitution of India. Delhi High Court had been pleased to hold that the exemption under Article 289 would apply and the assessment and demand notices of NDMC were quashed. The appeal came to be decided by a Nine Judge Bench of this Court.

78. The majority opinion was delivery by Justice B.P. Jeevan Reddy. The majority held that States and Union territories are different entities, which is clear from the scheme of Articles 245 and 246. Following was laid down in Paragraphs 152, 155 and 160:­

……………152. On a consideration of rival contentions, we are inclined to agree with the respondents­States. The States put together do not exhaust the territory of India. There are certain territories which do not form part of any State and yet are the territories of the Union.

That the States and the Union Territories are different entities, is evident from clause (2) of Article 1 — indeed from the entire scheme of the Constitution. Article 245(1) says that while Parliament may make laws for the whole or any part of the territory of India, the legislature of a State may make laws for the whole or any part of the State. Article 1(2) read with Article 245(1) shows that so far as the Union Territories are concerned, the only law­ making body is Parliament. The legislature of a State cannot make any law for a Union Territory; it can make laws only for that State. Clauses (1), (2) and (3) of Article 246 speak of division of legislative powers between Parliament and State legislatures. This division is only between Parliament and the State legislatures, i.e., between the Union and the States. There is no division of legislative powers between the Union and Union Territories.

Similarly, there is no division of powers between States and Union Territories. So far as the Union Territories are concerned, it is clause (4) of Article 246 that is relevant. It says that Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. Now, the Union Territory is not included in the territory of any State. If so, Parliament is the only law­making body available for such Union Territories. It is equally relevant to mention that the Constitution, as originally enacted, did not provide for a legislature for any of the Part ‘C’ States (or, for that matter, Part ‘D’ States). It is only by virtue of the Government of Part ‘C’ States Act, 1951 that some Part ‘C’ States including Delhi got a legislature. This was put an end to by the States Reorganisation Act, 1956. In 1962, the Constitution Fourteenth (Amendment) Act did provide for creation/constitution of legislatures for Union Territories (excluding, of course, Delhi) but even here the Constitution did not itself provide for legislatures for those Part ‘C’ States; it merely empowered Parliament to provide for the same by making a law. In the year 1991, the Constitution did provide for a legislature for the Union Territory of Delhi [National Capital Territory of Delhi] by the Sixty­Ninth (Amendment) Act (Article 239­AA) but even here the legislature so created was not a full­ fledged legislature nor did it have the effect of — assuming that it could — lift the National Capital Territory of Delhi from Union Territory category to the category of States within the meaning of Chapter I of Part XI of the Constitution. All this necessarily means that so far as the Union Territories are concerned, there is no such thing as List I, List II or List III. The only legislative body is Parliament — or a legislative body created by it. Parliament can make any law in respect of the said territories — subject, of course, to constitutional limitations other than those specified in Chapter I of Part XI of the Constitution. Above all, the Union Territories are not “States” as contemplated by Chapter I of Part XI; they are the territories of the Union falling outside the territories of the States. Once the Union Territory is a part of the Union and not part of any State, it follows that any tax levied by its legislative body is Union taxation. Admittedly, it cannot be called “State taxation” — and under the constitutional scheme, there is no third kind of taxation. Either it is Union taxation or State taxation………………

……………… 155. In this connection, it is necessary to remember that all the Union Territories are not situated alike. There are certain Union Territories (i.e., Andaman and Nicobar Islands and Chandigarh) for which there can be no legislature at all — as on today. There is a second category of Union Territories covered by Article 239­A (which applied to Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry — now, of course, only Pondicherry survives in this category, the rest having acquired Statehood) which have legislatures by courtesy of Parliament. Parliament can, by law, provide for constitution of legislatures for these States and confer upon these legislatures such powers, as it may think appropriate. Parliament had created legislatures for these Union Territories under the “the Government of Union Territories Act, 1963”, empowering them to make laws with respect to matters in List II and List III, but subject to its overriding power. The third category is Delhi. It had no legislature with effect from 1­11­1956 until one has been created under and by virtue of the Constitution Sixty­Ninth (Amendment) Act, 1991 which introduced Article 239­AA. We have already dealt with the special features of Article 239­AA and need not repeat it. Indeed, a reference to Article 239­B read with clause (8) of Article 239­AA shows how the Union Territory of Delhi is in a class by itself but is certainly not a State within the meaning of Article 246 or Part VI of the Constitution. In sum, it is also a territory governed by clause (4) of Article 246. As pointed out by the learned Attorney General, various Union Territories are in different stages of evolution. Some have already acquired Statehood and some may be on the way to it. The fact, however, remains that those surviving as Union Territories are governed by Article 246(4) notwithstanding the differences in their respective set­ups — and Delhi, now called the “National Capital Territory of Delhi”, is yet a Union Territory……………”

……………160. It is then argued for the appellants that if the above view is taken, it would lead to an inconsistency. The reasoning in this behalf runs thus: a law made by the legislature of a Union Territory levying taxes on lands and buildings would be “State taxation”, but if the same tax is levied by a law made by Parliament, it is being characterised as “Union taxation”; this is indeed a curious and inconsistent position, say the learned counsel for the appellants. In our opinion, however, the very premise upon which this argument is urged is incorrect. A tax levied under a law made by a legislature of a Union Territory cannot be called “State taxation” for the simple reason that Union Territory is not a “State” within the meaning of Article 246 (or for that matter, Chapter I of Part XI) or Part VI or Articles 285 to 289……………”

79. After examining the Constitutional Scheme delineated by Article 239AA, another constitutional principle had been laid down by the Constitution Bench that Union territories are governed by Article 246(4) notwithstanding their differences in respective set­ups and Delhi, now called the “National Capital Territory of Delhi” is yet a Union Territory. The Constitution Bench had also recognised that the Union territory of Delhi is in a class by itself, certainly not a State. Legislative power of the Parliament was held to cover Union Territories including Delhi.

80. The above clearly indicates that Parliament has power to make laws for NCTD with respect to any of the matter enumerated in State List or Concurrent List. The Legislative Assembly of NCT has legislative power with respect to any of the matters enumerated in the State List or in the Concurrent List excluding the excepted entries of State List.

B. EXECUTIVE POWERS OF THE UNION(PRESIDENT /LG) AND THAT OF THE GNCTD

81. Although there is no express provision in the Constitutional Scheme conferring executive power to LG of the Union territory of Delhi, as has been conferred by the Union under Article 73 and conferred on the State under Article 154. Under the Constitutional Scheme executive power is co­extensive with the Legislative power. The Executive power is given to give effect to Legislative enactments. Policy of legislation can be given effect to only by executive machinery. The executive power has to be conceded to fulfill the constitutionally conferred democratic mandate. Clause (4) of Article 239AA deals with the exercise of executive power by the Council of Ministers with the Chief Minister as the head to aid and advice the LG in exercise of the above functions. The submission of the respondent is that executive power in relation to all matters contained in List II and List III is vested in the President.

82. The Union and States can exercise Executive power on the subjects on which they have power to legislate. This Court in Rai Sahib Ram Jawaya Kapur and Others Vs. State of Punjab, AIR 1955 SC 549 while considering the extent of the Executive power in Paragraph 7 held following:­

“7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these arti­ cles are analogous to those of Sections 8 and 49(2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following, the same analogy as is provided in regard to the dis­ tribution of legislative powers between them. Article 162, with which we are di­ rectly concerned in this case, lays down:

“Subject to the provisions of this Con­ stitution, the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws:

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

Thus under this article the executive au­ thority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which Par­ liament has power to make laws and to the exercise of such rights, authority and ju­ risdiction as are exercisable by the Govern­ ment of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with re­ gard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to Par­ liament to provide that in exceptional cases the executive power of the Union shall ex­ tend to these matters also. Neither of these articles contain any definition as to what the executive function is and what activi­ ties would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr Pathak seems to suggest, that it is only when Par­ liament or the State Legislature has legis­ lated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 172 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed al­ ready. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr Pathak’s contention.”

83. The Constitution Bench has also in above case laid down that in our Constitution; we have adopted the same system of Parliamentary democracy as in England. In this regard, following was held in Para Nos. 13 and 14:­

“13. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British par­ liamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confi­ dence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of so­ cial and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.

14. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the Presi­ dent but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The Presi­ dent has thus been made a formal or consti­ tutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the Council of Ministers con­ sisting, as it does, of the members of the legislature is, like the British Cabinet, “a hyphen which joins, a buckle which fastens the legislative part of the State to the ex­ ecutive part”. The Cabinet enjoying, as it does, a majority in the legislature concen­ trates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”

84. The appellant relying on Article 73 of the Constitu­ tion had submitted that Article 73 lays down the princi­ ple that while there may exist under the Constitution concurrent legislative powers on two different federal units, there can never be any concurrent executive pow­ ers. It was further submitted that the above principle equally applies to matters listed in List II and List III of the Constitution of India for NCTD. Referring to the Article 239AA(3)(b), it is contended that the said provi­ sion confers power on Parliament to enact legislations in matters in both state list and concurrent lists. Such power is also available under Article 246. However, it does not follow from the above that the said provision also confers executive powers in relation to matters in the state list and concurrent list. It is further sub­ mitted that Parliament may by law confer executive powers in relation to matters in the concurrent list on the Union Government for States, it may also do so in rela­ tion to the NCTD. But, if such thing is not done, Union Government will, as a general rule, have no executive powers in respect of matters under List II (except the excluded Entries) and it is the GNCTD, which shall enjoy exclusive executive powers. We are of the view that the above interpretation as put up by the appellant on Con­ stitutional provisions cannot be accepted. The principle is well established that Executive powers co­exist with the Legislative powers. Reference to Article 73 has been made in this context, which need to be noted. Article 73 provides as follows:­

“73. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, author­ ity and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in subclause (a) shall not, save as ex­ pressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immedi­ ately before the commencement of this Con­ stitution.”

85. The proviso to Article 73(1) provides that the execu­ tive power referred to in subclause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Obviously, the proviso refers to the Concurrent List where both Parliament and State has power to make laws. Executive power in reference to Concurrent List has been deliberately excluded to avoid any dupli­ cacy in exercise of power by two authorities. The Arti­ cle 73 as it stood prior to Constitution Seventh Amend­ ment Act, 1956 contained the expression after the word State “specified in Part A or Part B of the First Sched­ ule”. Thus, the executive power was excluded of the Union only with regard to Part A and Part B States alone. Thus, when the Constitution was enforced, executive power of Union in reference to Part C States was not excluded with regard to Concurrent List also. Part C States hav­ ing been substituted as now by Union Territories by Con­ stitution Seventh Amendment Act. the word “State” in Pro­ viso to Article 73 cannot be read to include Union Terri­ tory. Reading the word Union Territory within the word “State” in proviso to Article 73(1) shall not be in ac­ cordance with Scheme of Part VIII (Union Territories) of the Constitution. Union Territories are administered by the President. Exercise of executive power of the Union through President is an accepted principle with regard to Union Territories. The above interpretation is also re­ inforced due to another reason. Under Article 239AA(4) proviso, the Lieutenant Governor, in case of difference of opinion, can make a reference to the President for de­ cision and has to act according to the decision given thereon. The President, thus, with regard to a particular executive action, which has been referred, has exclusive jurisdiction to take a decision, which both Council of Ministers as well as Lieutenant Governor has to follow. The provision does not indicate that power of the Presi­ dent is confined only to executive actions which are men­ tioned in List II. When the President as provided by the Constitutional Scheme, is entitled to take executive de­ cision on any matter irrespective of the fact whether such executive decision taken by the Council of Ministers or Ministers related to matters covered by List II and List III, the executive power to Union through President cannot be confined to List II. Overriding power to the Union even on the executive matters has to be conceded to be there as per Constitutional scheme. It is another matter that for exercise of executive powers by the Union through President and by Council of Ministers, headed by Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering sub­clause(4) of Article 239AA. Legislative power of the Union is co­extensive with its executive power in relation to NCT is further indicated by the pro­ visions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239AA by the Constitution 69th Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by the Parliament in ex­ ercise of power under Article 239AA(7)(a) of the Consti­ tution. Section 49 of the Act, 1991 provides as follows:

“49. Relation of Lieutenant Governor and his Ministers to President.­ Notwithstand­ ing anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

86. Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged Coun­ cil of Ministers and the Lieutenant Governor shall be un­ der the general control of, and comply with such particu­ lar directions issued by the President from time to time. The power of the President to issue direction is not lim­ ited in any manner so as to put any restriction on the executive power of the Union.

87. The President further is empowered under Section 44 of Act, 1991 to make rules for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. As per Article 239AA sub­clause (4) read with business rules, the manner and procedure of conduct of business including executive functions of GNCTD has to be administered. Al­ though the Union ordinarily does not interfere with or meddle with the day to day functions of the GNCTD which is in tune with the constitutional scheme as delineated by Article 239AA and to give meaning and purpose to the Cabinet form of Government brought in place in the Na­ tional Capital of Territory. But as the overriding leg­ islative power of the Parliament is conceded in the con­ stitutional scheme, overriding executive power has also to be conceded even though such power is not exercised by the Union in the day to day functioning of the GNCTD. We thus conclude that executive power of the Union is co­ex­ tensive on all subjects referable to List I and List II on which Council of Ministers and the NCTD has also exec­ utive powers.

88. Learned counsel for the appellants have also referred to Article 239AB. One of the submissions raised by the appellants is that the executive power can be exercised by Union or the Lieutenant Governor only in the circum­ stances as mentioned in Article 239AB i.e. only when con­ stitutional machinery in National Capital Territory has failed and National Capital Territory is unable to carry out the administration in accordance with the provisions of Article 239AB. Article 239AB was also added by Con­ stitution Sixty Ninth Amendment Act, which is as fol­ lows:­

“239AB. Provision in case of failure of constitutional machinery.­ If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by or­ der suspend the operation of any provision of Article 239AA or of all or any of the provi­ sions of any law made in pursuance of that ar­ ticle for such period and subject to such con­ ditions as may be specified in such law and make such incidental and consequential provi­ sions as may appear to him to be necessary or expedient for administering the National Capi­ tal Territory in accordance with the provisions of Article 239 and Article 239AA.”

89. The provision of the Article 239AB is a special pro­ vision where President may suspend the provision of Arti­ cle 239AA or any of the provision of any law made in pur­ suance of that article. The above provision is akin to Article 356, the subject of both the provisions, i.e., Article 239AB and Article 356 is same, i.e., “provision in case of failure of constitutional machinery”. The power under Article 356/239AA is conferred on Union in larger interest of State. The submission that executive power can be exercised by the Union through President only when power under Article 239AB is exercised, cannot be accepted. The provision of Article 239AB is for en­ tirely different purpose, and is not a provision regard­ ing exercise of general executive power by the Union.

Article 239AA(4) Proviso

90. The interpretation of the proviso to sub­clause(4) is the main bane of contention between the parties. There are two broad aspects which need detailed consideration. The first issue is the concept of the words “aid and ad­ vice” as contained in sub­clause (4) of Article 239AA. The appellants case is that the content and meaning of aid and advice is same as has been used in Article 74 and Article 163 of the Constitution. Article 163 Sub­ clause(1) is extracted for ready reference:­

163.Council of Ministers to aid and ad­ vise Governor:­ (1) There shall be a council of Ministers with the Chief Min­ ister as the head to aid and advise the Governor in the exercise of his func­ tions, except in so far as he is by or under this constitution required to exer­ cise his functions or any of them in his discretion.

91. The appellant’s have placed reliance on Constitution Bench judgment of this Court in Shamsher Singh Vs. State of Punjab and Another, (1974) 2 SCC 831. The Constitu­ tion Bench of this Court in the above case had occasion to examine the phrase “aid and advice” as used in Article 163 of the Constitution. This Court found that our Con­ stitution embodies generally the Parliamentary system of the Government of British model both for Union and the States. Both President and Governor have to act on the basis of aid and advice received from the Council of the Ministers except when they have to exercise their func­tion in their discretion. Paras 27, 28, 30, 32 and 33, which are relevant are quoted as follows:­

“27. Our Constitution embodies generally the Parliamentary or Cabinet system of Govern­ ment of the British model both for the Union and the States. Under this system the Presi­ dent is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers. Article 103 is an ex­ ception to the aid and advice of the Council of Ministers because it specifically pro­ vides that the President acts only according to the opinion of the Election Commission. This is when any question arises as to whether a Member of either House of Parlia­ ment has become subject to any of the dis­ qualifications mentioned in clause (1) of Article 102.
28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

30. In all cases in which the President or the Governor exercises his functions con­ ferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution re­ quires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Gover­ nor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction re­ quired by the Constitution is not the per­ sonal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the consti­ tutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Ar­ ticle 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) pro­ vide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transac­ tion of the business of the Government and the allocation of business among the Minis­ ters of the said business. The Rules of Business and the allocation among the Minis­ ters of the said business all indicate that the decision of any Minister or officer un­ der the Rules of Business made under these two articles viz. Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the de­ cision of the President or the Governor re­ spectively.

32. It is a fundamental principle of English Constitutional law that Ministers must ac­ cept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sover­ eign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advis­ ers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a Parliamen­ tary and responsible form of Government at the Centre and in the States and not a Pres­ idential form of Government. The powers of the Governor as the constitutional head are not different.

33. This Court has consistently taken the view that the powers of the President and the powers of the Governor are similar to the powers of the Crown under the British Parliamentary system. (See Ram Jawaya Kapur v. State of Punjab, A. Sanjeevi Naidu v. State of Madras4, U.N.R. Rao v. Indira Gandhi5). In Ram Jawaya Kapur case Mukher­ jea, C.J. speaking for the Court stated the legal position as follows. The Executive has the primary responsibility for the formula­ tion of governmental policy and its trans­ mission into law. The condition precedent to the exercise of this responsibility is that the Executive retains the confidence of the legislative branch of the State. The initia­ tion of legislation, the maintenance of or­ der, the promotion of social and economic welfare, the direction of foreign policy, the carrying on of the general administra­ tion of the State are all executive func­ tions. The Executive is to act subject to the control of the Legislature. The execu­ tive power of the Union is vested in the President. The President is the formal or constitutional head of the Executive. The real executive powers are vested in the Min­ isters of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions.”

92. It is well settled that the Governor is to act on aid and advice of the Council of Ministers and as contem­ plated under Article 163, according to the Constitutional scheme, Governor is not free to disregard the aid and ad­ vice of the Council of Ministers except when he is re­ quired to exercise his function in his discretion. There cannot be any dispute to the proposition as laid down by this Court in Shamsher Singh (supra) and followed there­ after in number of cases. Whether the “aid and advice” as used in Article 239AA(4) has to be given the same meaning as is contained in Article 163 and Article 74 is the question to be answered. The appellant’s case is that Constitution scheme as delineated in Article 239AA itself having accepted Westminster model of Governing system, “aid and advice” of the Council of Ministers is binding on the LG and he cannot act contrary to the aid and ad­ vice and is bound to follow the aid and advice. It is submitted that any other interpretation shall run con­ trary to the very concept of Parliamentary democracy, which is basic feature of the Constitution. There could have been no second opinion had the proviso to sub­ clause(4) of Article 239AA was not there. The aid and advice as given by Council of Ministers as referred to in sub­clause(4) has to be followed by the Lieutenant Gover­ nor unless he decides to exercise his power given in pro­ viso of sub­clause(4) of Article 239AA. The proviso is an exception to the power as given in sub­clause(4). A case when falls within the proviso, the “aid and advice” of the Council of Ministers as contemplated under sub­ clause (4) is not to be adhered to and a reference can be made by Lieutenant Governor. This is an express Consti­ tution scheme, which is delineated by sub­clause(4) of Article 239AA proviso. It is relevant to note that the scheme which is reflected by sub­clause(4) of Article 239AA proviso is the same scheme which is contained under Section 44 of the Government of Union Territories Act, 1963. Section 44 of the Act is quoted below:­

“There shall be a Council of Ministers in each Union Territory with the Chief Minister at the head to aid and advise the Administrator in the exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi­judicial functions.

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

93. Thus, with regard to Union Territories, the exception as carved out in proviso was very much there since be­ fore. Thus, the scheme as contained in proviso was well known scheme applicable in the Union Territories. When there is an express exception when the aid and advice given by the Council of Ministers is not binding on the Lieutenant Governor and he can refer it to the President and pending such decision in case of urgency take his own decision, we are not persuaded to accept that aid and ad­ vice is binding on the Governor under Article 163. The Legislative Assembly of the NCTD being representing the views of elected members their opinion and decision has to be respected and in all cases, except where Lieutenant Governor decides to make a reference.

94. Another issue which needs consideration is the mean­ ing of the word “any matter” as occurring in first sen­ tence of the proviso to sub­clause(4). Another issue which needs to be considered in this context is as to whether the operation of the proviso to sub­clause(4) is confined to only few categories of cases as contended by appellant or the proviso can be relied by Lieutenant Gov­ ernor in all executive decisions taken by Council of Min­ isters. According to appellants, the proviso operates in the following areas, when the decision of the Council of Ministers of the NCTD:­

a. is outside the bounds of executive power under Article 239AA(4);

b. impedes or prejudices the lawful exercise of the executive power of the Union;

c. is contrary to the laws of the Parliament;

d. falls within Rule 23 matters such as ­

i. matters which affect the peace and tranquil­ lity of the Capital;

ii. interests of any minority community;

iii. relationship with the higher judiciary;

iv. any other matters of administrative importance which the Chief Minister may consider neces­ sary.

95. Thus, appellants contended that apart from above cat­ egories mentioned above, proviso has no application in any other matter. We are not able to read any such re­ striction in the proviso as contended by the appellants. The proviso uses the phrase “any matter” in the first sentence, i.e., “provided that in the case of difference of opinion between the Lieutenant Governor and his Minis­ ters on any matter……….” The word “any matter” are words of wide import and the language of Article 239AA(4) does not admit any kind of restriction in operation of pro­ viso. There is nothing in the provision of sub­clause

(4) to read any restriction or limitation on the phrase “any matter” occurring in proviso. The word “any matter” has also been used in Article 239AA(3) while providing for power to make laws. Sub­clause(3)(a) reads “subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters stated in the State List or in the Concurrent List in so far as any such matter is applica­ ble to Union Territories……………”. Further, sub­clause(b) provides “Nothing in sub­clause(a) shall derogate from the powers of Parliament under the Constitution to make laws with respect to any matter for a Union Territory or any part thereof”. The use of word “any matter” in above two clauses clearly indicate that it is not used in any limited or restricted manner rather use of word “any mat­ ter” is used referring to the entire extent of legisla­ tion. When the same phrase has been used in proviso to sub­clause(4), we are of the view that similar interpre­ tation has to be given to the same word used in earlier part of the same Article.

96. In this context, we refer to Tej Kiran Jain and Oth­ ers Vs. N. Sanjiva Reddy and Others, (1970) 2 SCC 272.
In the above case, this Court had occasion to consider the word “any thing” as used in Article 105(2) of the Constitution of India. This Court stated following in Paragraph 8:­ “8. In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of “anything said … in Parlia­ ment”. The word “anything” is of the widest import and is equivalent to “everything”. The only limitation arises from the words “in Parliament” which means during the sit­ ting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was im­ mune from proceedings in any Court this im­ munity is not only complete but is as it should be……………………….”

97. From the above discussions, it is thus clear that aid and advice of the Council of Ministers is binding on the Lieutenant Governor except when he decides to exercise his power given in proviso of sub­clause(4) of Article 239AA. In the matters, where power under Proviso has not been exercised, aid and advice of the Council of Minis­ ters is binding on the Lieutenant Governor. We are of the view that proviso to sub­clause(4) of Article 239AA cannot be given any other interpretation relying on any principle of Parliamentary democracy or any system of Government or any principle of Constitutional silence or implications.

98. The submission of the appellants that proviso to sub­ clause(4) of Article 239AA envisages an extreme and un­ usual situation and is not meant to be a norm, is sub­ stantially correct. The exercise of power under Proviso cannot be a routine affair and it is only in cases where Lieutenant Governor on due consideration of a particular decision of the Council of Ministers/Ministers, decides to make a reference so that the decision be not imple­ mented. The overall exercise of administration of Union Territory is conferred on President, which is clear from the provisions contained in Part VIII of the Constitu­ tion. Although, it was contended by the appellant that Article 239 is not applicable with regard to NCTD after Article 239AA has been inserted in the Constitution.

The above submission cannot be accepted on account of the express provisions which are mentioned under Article 239AA and Article 239AB itself. Article 239AA sub­ clause(1) itself contemplates that administrator ap­ pointed under Article 239 shall be designated as the Lieutenant Governor. Thus the administrator appointed under Article 239 is designated as LG. Article 239AB is also applicable to NCTD. Article 239AB in turn refers to any apply Article 239. The provisions contained in Part VIII of the Constitution have to be looked into in its entirety. Thus, all the provisions of Part VIII has to be cumulatively read while finding out the intention of the Constitution makers, which makes it clear that Arti­ cle 239 is also applicable to the NCTD.

Whether concurrence of Lieutenant Governor is required on executive decision of GNCTD.

99. The constitutional provision of Article 239AA does not indicate that the executive decisions of GNCTD have to be taken with the concurrence of LG. The constitutional provisions inserted by 69th Constitution Amendment are with the object to ensure stability and permanence by providing Legislative Assembly and Council of Ministers by the constitutional provisions itself. With regard to executive decision taken by the Council of Ministers/Ministers of GNCTD proviso gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between executive decisions of the GNCTD and the LG, but the scheme does not suggest that the decisions by Council of Ministers/Ministers have to be taken with the concurrence of the LG. The above conclusion is re­enforced by looking into the 1991 Act as well as Rules framed by the President under Section 44 of 1991 Act, namely, the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993. The provisions of 1991 Act although provide for communication of proposal, agenda and decisions of the Council of Ministers/Ministers to LG but there is no indication in any of the provisions that the concurrence of LG is required with regard to the aforesaid decisions.

100. Earlier enactments governing the Delhi administration did provide the word concurrence of LG for implementing decisions taken by GNCTD but the said scheme having been given a go­bye in the 1991 Act, there is no requirement of any concurrence of LG to the executive decisions taken by the GNCTD.
Communication to the LG, its purpose and object

101. The scheme of 1991 Act clearly delineates that LG has to be informed of all proposals, agendas and decisions taken by the Council of Minister/Ministers. Section 44 deals with the conduct of business which is to the following effect:

“44.Conduct of business :

(1) The President shall make rules :

(a) for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers; and
(b) for the more convenient transaction of business with the ministers, including the procedure to be adopted in the case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action of Lieutenant Governor whether taken on the advise of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated in such manner as may be specified in rules to be made by the Lieutenant Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Lieutenant Governor.”

102. Under Section 45, Chief Minister is to furnish information to the LG about all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and the proposals for legislation and to furnish such information as may be called for by the LG. Section 45 is as follows:

“45. Duties of Chief Minister as respects the furnishing of information to the Lieutenant Governor, etc. :
It shall be the duty of the Chief Minister –
(a)to communicate to the Lieutenant Governor all decisions of the Council of Ministers relating to the administration of the affairs of the Capital and proposals for legislation;
(b)to furnish such information relating to the administration of the affairs of the Capital and proposals for legislation as Lieutenant Governor may call for, and
(c)if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.”

103. Rules have been framed under Section 44 of 1991 Act, namely, 1993 Rules, which throw considerable light over the actual functioning of GNCTD and LG. Rule 9 sub­rule (2) provides that if it is decided to circulate any proposal, the Department to which it belongs, shall prepare a memorandum setting out in brief the facts of the proposal, the points for decision and the recommendations of the Minister in charge and when the same is circulated to the Ministers, simultaneously a copy thereof is to be sent to the LG. Rule 10 is as follows:

“10. (1) While directing that a proposal shall be circulated, the Chief Minister may also direct, if the matter be of urgent nature, that the Ministers shall communicate their opinion to the Secretary to the Council by a particular date, which shall be specified in the memorandum referred to in rule 9.
(2) If any Minister fails to communicate his opinion to the Secretary to the Council by the date so specified in the memorandum, it shall be assumed that he has accepted the recommendations contained therein.
(3) If the Minister has accepted the recommendations contained in the memorandum or the date by which he was required to communicate his opinion has expired, the Secretary to the Council shall submit the proposal to the Chief Minister.
(4) If the Chief Minister accepts the recommendations and if he has no observation to make, he shall return the proposal with his orders thereon to the Secretary to the Council.
(5) On receipt of the proposal, the Secretary to the Council shall communicate the decision to the Lieutenant Governor and pass on the proposal to the Secretary concerned who shall thereafter take necessary steps to issue the orders unless a reference to the Central Government is required in pursuance of the provisions of Chapter V.”

104. The above provision also indicates that after proposal is accepted by the Chief Minister, the same shall be communicated to the LG and only thereafter necessary step to issue the orders is to be taken provided no reference is made to the Central Government by the LG under Chapter V of the Rules.

105. Rule 13 sub­rule (3) provides that an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chief Minister shall be sent to the LG. The agenda approved by the Chief Minister shall be sent by the Secretary to the Council, to the LG. Rule 13 sub­rule (3) is as follows:
“Rule 13(3) After an agenda showing the proposals to be discussed in a meeting of the Council has been approved by the Chief Minister, copies thereof, together with copies of such memoranda as have not been circulated under rule 11, shall be sent by the Secretary to the Council, to the Lieutenant Governor, the Chief Minister and other Ministers, so as to reach them at least two days before the date of 7 such meeting. The Chief Minister may, in case of urgency, curtail the said period of two days.”

106. Rule 14 again provides that decisions taken by the Council on each proposal shall be communicated to the LG. Standing orders issued by the Minister­in­charge for the disposal of proposals or matters in his Department are also required to be communicated to LG, as required by Rules 15 and 16.

107. Rule 19 sub­rule (5) empowers the LG to call for papers relating to any proposal or matter in any Department and such requisition shall be complied with by the Secretary to the Department concerned.

108. Rule 23 enumerates certain matters which are to be submitted to LG before issuing any orders thereon. Rule 23 is as follows:
“23. The following classes of proposals or matters shall essentially be submitted to the Lieutenant Governor through the Chief Secretary and the Chief Minister before issuing any orders thereon, namely:
(i) matters which affect or are likely to affect the peace and tranquility of the capital;
(ii) matters which affect or are likely to affect the interest of any minority community, Scheduled Castes and backward classes;
(iii) matters which affect the relations of the Government with any State Government, the Supreme Court of India or the High Court of Delhi;
(iv) proposals or matters required to be referred to the Central Government under the Act or under Chapter V;
(v) matters pertaining to the Lieutenant Governor’s Secretariat and personnel establishment and other matters relating to his office;
(va) matters on which Lieutenant Governor is required to make order under any law or instrument in force;
(vi) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence;
(vii) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected with those; and
(viii) any other proposals or matters of administrative importance which the Chief Minister may consider necessary.

109. Under Rule 24, the LG is empowered to require any order passed by the Minister­in­charge to be placed before the Council for consideration.

110. Rule 25 obliges the Chief Minister to furnish to the LG such information relating to the administration of the Capital and proposals for legislation as the LG may call for.

111. Rule 49 deals with the difference of opinion between the LG and Minister in regard to any matter, whereas Rule 50 deals with difference of opinion between the LG and the Council with regard to any matter. Rules 49 and 50 are as follows:

“49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council
50. In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the Central Government for the decision of the President and shall act according to the decision of the President.”

112. Rule 49 enable and oblige the LG to discuss the matter when there is some difference with decision of a Minister. The discussion to sort out difference and to arrive at an acceptable course of action is always welcome and is a measure employed in all organisational functioning.

113. The scheme as delineated by 1991 Act and Rules 1993 clearly indicates that LG has to be kept informed of all proposals, agendas of meeting and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through the proposals and decisions so as to enable him to exercise powers as conceded to him under 1991 Act and Rules 1993. Further, the power given under proviso to 239AA(4) can be exercised only when LG is informed and communicated of all decisions taken by GNCTD. The communication of all decisions is necessary to enable the LG to perform duties and obligations to oversee the administration of GNCTD and where he is of different opinion he can make a reference to the President. As observed above the purpose of communication is not to obtain his concurrence of the decision but purpose is to post him with the administration so as to enable him to exercise his powers conceded to him under proviso to Article 239AA sub­clause (4). We have already observed that the powers given in proviso to sub­clause (4) is not to be exercised in a routine manner rather it is to be exercised by the LG on appropriate reasons to safeguard the interest of the Union Territory.

114. Learned Additional Solicitor General has submitted before us that in the last few years there have been very few references by the LG in exercise of powers under proviso to sub­clause (4) of Article 239AA. Rule 14 sub­ rule (2) of 1993 Rules empowers the Minister concerned to take necessary action to give effect to the decision of the Council after decision has been communicated to the LG. The purpose of communication is to enable the LG to discharge obligation to oversee and scrutinise the decision. Although, there is no indication in the 1993 Rules as to after communication of the decisions of the Council as to what stage the decisions are to be implemented. As observed no concurrence is required on the decisions and communication is only for the purpose of enabling the LG to formulate opinion as to whether there is any such difference which may require reference. Only a reasonable time gap is to elapse, which is sufficient to the LG to scrutinise the decision. It is for the LG and the Council of Ministers to formulate an appropriate procedure for smooth running of the administration decisions can very well be implemented by the GNCTD immediately after the decisions are communicated to LG and are “seen” by the LG. When LG has seen a decision and does not decide to make a reference, the decision has to be implemented by all means. We are, thus, of the view that the 1991 Act and 1993 Rules cover the entire gamut, manner and procedure of executive decisions taken by the Council of Ministers/Minister their communication, and implementation and the entire administration is to be run accordingly.

115. The 1993 Rules provide that Chief Secretary and the Secretary of the Department concerned are severally responsible for the careful observance of these Rules and when either of them considers that there has been any material departure, he shall bring it to the notice of the Minister­in­charge, Chief Minister and the LG. Rule 57 is as follows:

“57. The Chief Secretary and the Secretary of the Department concerned are severally responsible for the careful observance of these rules and when either of them considers that there has been any 20 material departure from these rules, he shall personally bring it to the notice of the Minister­in­charge, Chief Minister and the Lieutenant Governor.”

116. The duty of observance of 1993 Rules and other statutory provisions lay both on Council of Ministers, Chief Minister and LG. All have to act in a manner so that the administration may run smoothly without there being any bottleneck. The object and purpose of all constitutional provisions, Parliamentary enactments and the Rules framed by the President is to carry the administration in accordance with the provisions in the interest of public in general so that rights guaranteed by the Constitution to each and every person are realised. When the duty is entrusted on persons holding high office, it is expected that they shall conduct themselves, in faithful, discharge of their duties to ensure smooth running of administration and protection of rights of all concerned.

117. I have perused the elaborate opinion of My Lord, the Chief Justice with which I substantially agree, but looking to the importance of the issues, I have penned my own views giving reasons for my conclusions.

118. I have also gone through the well researched and well considered opinion of Brother Justice D.Y. Chandrachud. The view expressed by Justice Chandrachud are substantially the same as have been expressed by me in this judgment.

119. In view of the foregoing discussions we arrive on the following conclusions on the issues which have arisen before us:

CONCLUSIONS
I. The interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The intent of the Constitution framers, the object and reasons of a Constitutional Amendment always throw light on the Constitutional provisions. For adopting the purposive interpretation of a particular provision the express language employed cannot be given a complete go­bye.

II. The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State List and Concurrent List. The Legislative Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in the Concurrent List.

III. Executive power is co­extensive with the legislative power. Legislative power is given to give effect to legislative enactments. The Policy of legislation can be given effect to only by executive machinery.

IV. When the Constitution was enforced, executive power of Union in reference to Part C States with regard to Concurrent List was not excluded. Part C States having been substituted by 7th Constitution Amendment as Union Territories. The word ‘State’ as occurring in proviso to Article 73 after 7th Constitution Amendment cannot be read as including Union Territory. Reading the word ‘Union Territory’ within the word ‘State’ in proviso to Article 73 shall not be in consonance with scheme of Part VIII (Union Territories) of the Constitution.

V. Executive power of the Union is co­extensive on all subjects referable to List II and III on which Legislative Assembly of NCTD has also legislative powers.

VI. The “aid and advice” given by Council of Ministers as referred to in sub­clause (4) of Article 239AA is binding on the LG unless he decides to exercise his power given in proviso to sub­clause (2) of Article 239AA.

VII. The Legislative Assembly of NCTD being representing the views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President.

VIII. The power given in proviso to sub­clause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG on valid reasons after due consideration, when it becomes necessary to safeguard the interest of the Union Territory.

IX. For the Executive decisions taken by the Council of Ministers/Ministers of GNCTD, proviso to sub­clause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG, but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG.

X. The scheme as delineated by 1991 Act and 1993 Rules clearly indicates that LG has to be kept informed of all proposals, agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through so as to enable him to exercise the powers as conceded to him under proviso to sub­clause (4) as well as under 1991 Act and 1993 Rules. The purpose of communication is not to obtain concurrence of LG.

XI. From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.

120. We having answered the constitutional issues raised before us in the above manner let these matters be now placed before the appropriate Bench for hearing after obtaining orders from Hon’ble the Chief Justice.

……………………..J.
( ASHOK BHUSHAN )

NEW DELHI,
JULY 04, 2018.

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TATA SONS LIMITED & ORS ….. Plaintiffs
Through: Mr. Pravin Anand and Mr. Karan Kamra, Advs.
Versus
JOHN DOE(S) & ORS ….. Defendants
Through: Ms. Anwesha Saha, Adv. for D-6 to 8

CORAM: HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

ORDER

DATE: 27.04.2017

1. The summons issued to the newly impleaded defendants No.6 to 8 are awaited and the defendant No.9 is reported to be unserved.
2. The plaintiff however has filed an affidavit of service of defendants No.6 to 8 and qua defendant No.9, the counsel for the plaintiffs states that three persons named Ashok Kumar Agarwal were found at the address given. He however states that the service provider has furnished the cell phone number of Ashok Kumar Agarwal who was identified.
3. The plaintiffs are permitted to serve the defendant No.9 Ashok Kumar Agarwal by text message as well as through Whatsapp as well as by email and to file affidavit of service.
4. The counsel appearing for defendants No.6 to 8 seeks time to file written statement.
5. Written statement be filed within four weeks.
6. Replication thereto, if any be filed within further four weeks thereafter.
7. List for framing of issues, if any and for further consideration on 2nd August, 2017.

RAJIV SAHAI ENDLAW, J.

APRIL 27, 2017
Bs..

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Kross Television India Pvt Ltd & Anr …Plaintiffs
Versus
Vikhyat Chitra Production & Ors …Defendants

Dr Birendra Saraf, with Ms Pooja Kshirsagar and Ms Ankita Singh i/b ANP Partners for the Plaintiffs.

CORAM: G.S. PATEL, J

DATED: 23rd March 2017

PC:-
1. Dr Saraf tenders an Affidavit dated 22nd March2 017 of one Mr Daipayan Banerjee, an authorised signatory of the Plaintiff. This shows inter alia that the Plaintiffs were able to contact the Defendants. He says that pursuant to the previous order, the Plaintiffs obtained addresses of the Defendant from the Central Board of Film Certification (“CBFC”). The Plaintiffs then attempted to serve the Defendants at those addresses by courier and hand delivery. They were told that the 1st Defendant had shifted its address. The courier was told that the address of the Defendant was changed solely with an intention to evade or avoid service. The Plaintiffs’ Advocates attempted to contact the 1st Defendant, AR Vikhyat, on his mobile number 89516 37695. The Truecaller mobile phone app showed this to be his mobile number. It was also reflected on his WhatsApp contact information. The WhatsApp status shown the name of the infringing Kannada film, Pushpaka Vimana. In subsequent messages exchanged, Vikhyat accepted that he was the producer of the Kannada film Pushpaka Vimana (paragraph 5 of the Affidavit).

2. Copies of the plaint, Notice of Motion and the order of 17th March 2017 were served on Defendant No.1, Vikhyat, and Defendant No. 5, Deepak Krishna, by WhatsApp. This was received. Vikhyat replied. He said ‘I dint understand anything. Will check with my legal team and I’ll text you back. I am out of station.’

3. The Plaintiffs effected service by email at two addresses: vikhyat.forever@gmail.com and deepakpn99@gmail.com.

4. Then the Plaintiffs’ Advocates tried to contact Krishna, Defendant No. 5. It was he who supplied Vikhyat’s mobile phone number. There is an email exchange annexed to this Affidavit.

5. The Defendants were informed by email and message that the matter would be listed today in this Court. The message was delivered.

6. I do not see what more can be done for the purposes of this Motion. It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had ‘no notice’. To say that is untrue; they may not have had service by registered post or through the bailiff, but they most certainly had notice. They had copies of the papers. They were told of the next date. A copy of the previous order was sent to them. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.

7. The Plaintiffs have given the Defendants every opportunity to appear. The past record shows that the Defendants are only avoiding service. It was extremely difficult to even obtain their addresses. Their addresses were in fact obtained when the Plaintiffs contacted the CBFC in Bengaluru and obtained the addresses from that secretariat. The Defendants’ addresses were necessarily with that body since the Defendants obtained certification for their film from that office. The CBFC in fact informed the Plaintiffs that there is only one producer, and it furnished that address. The copy of the communication dated 21st March 2017 from the CBFC is at Exhibit “A” to this Affidavit and it lists Vikhyat’s address. If Vikhyat and Krishna believe they can resort to these tactics to avoid service, they are wrong. They may succeed in avoiding a bailiff. They may be able to avoid a courier or a postman. They have reckoned without the invasiveness of information technology. Vikhyat in particular does not seem to have cottoned on to the fact that when somebody calls him and he responds, details can be obtained from in-phone apps and services, and these are very hard to either obscure or disguise. There are email exchanges. There are message exchanges. None of these to my mind establishes that the Defendants are not adequately served.

8. The Defendants must now face the consequences.

9. There is no reply to the Notice of Motion. There is no appearance either.

10. The Suit seeks an injunction in respect of the Kannada film Pushpaka Vimana, one that has already been released. The case of the Plaintiff is that the Kannada film is a plagiarised copy of the Korean film called Miracle In Cell No. 7 released on 23rd January 2013 first in Korean and then in English on YouTube in 2014. The 2nd Plaintiff approached the original producers of Korean film for rights to a Hindi remake, and obtained an assignment on 10th June2016. The 2nd Plaintiff obtained an exclusive license on 1st December 2016 to produce a theatrical motion picture. The 2nd Plaintiff then assigned its rights to the 1st Plaintiff. The 1st Plaintiff started researching the remake. In February 2017, the 1st Plaintiff found the infringing Kannada film. On checking with their assignors, the Plaintiffs learnt that the original producers had not assigned or transferred any rights to the Defendants.

11. There is material prima facie to show that the Kannada film is a copy of the original Korean film. Paragraph 3.12 of the plaint has details. It quotes, inter alia, Vikhyat as admitting that he ‘adapted’ the screenplay of the Korean film for the Kannada film. There are fifteen separate instances of such admissions and corroborating material set out in that paragraph. Prima facie, Dr Saraf is correct in saying that the Kannada film is a colourable imitation of the Korean original. The Kannada film has been released and there is also a possibility that the Defendants have even made a telecast.

12. Therefore Dr Saraf submits that all further exhibition, distribution and telecasts must be prevented as a prima facie case has been made out. He submits that the balance of convenience is with the Plaintiffs and that if an injunction as sought is not granted the Plaintiffs will suffer irreparable injury. It is in these circumstances that various injunctive orders are sought. I agree with these submissions.

13. In my view, there is absolutely no reason whatsoever why an ad-interim order in terms of prayer clause a(i), (ii), (iii) and (iv) and prayer clause b(i),(ii) and (iii) should not be granted today. There will, therefore, be an ad-interim order in these terms:

“(a) pending the hearing and final disposal of the present Suit this Hon’ble Court:—

i. grant temporary and interim injunction restraining the Defendants, their agents, servants, nominees, assigns and / or any persons claiming through or under them from in any manner, showing, exhibiting, communicating to public, making available for viewing and / or in any manner showing the Kannada Film on any medium, including but not restricted to, cinema theatres, television, internet, making and releasing CDS/DVs;

ii. grant temporary and interim injunction restraining the Defendants, their agents, servants, nominees, assigns and / or any persons claiming through or under them from in any manner entering into any agreement / arrangement with third parties for grant of satellite rights (by whatever name) for the purposes of showing / exhibiting the Kannada Film on Television or internet;

iii. grant temporary injunction against the Defendants, their agents, servants, nominees, assigns and / or any persons claiming through or under them and against any party thereby restraining them from releasing the Kannada Film on Television or internet;

iv. injunction against the Defendant, their servants, employees, assigns and / or nominees thereby restraining him / them from in any manner entering into any agreements / arrangements with any person or interse to create any rights in the Kannada Film, including right to make copy of the film, use the screenplay and script for remake, prequel and / or sequel or dub the Kannada Film in any other language.

(b) Defendants thus be directed to disclose on oath:

(i) Agreements, arrangements and / or contacts executed, if any, with Actors, Artists, writers, lyricist, cast, crew etc. in relation to the said Kannada film;

(ii) Agreements, arrangements and / or contacts executed, if any, with third parties with respect to and / or in relation to granting negative rights, exploitation rights and / or satellite rights in respect to the said Kannada film;

(iii) If the Defendants have received any amounts inter se and / or from the third parties with respect to and / or in relation to the said Kannada film and give account of the said amounts, if any.”

14. List the Notice of Motion for hearing and final disposal on 12th April 2017.

(G. S. PATEL, J.)

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.__17998_____OF 2017
(Arising from SLP (C) No.4841/2016)

Ankur Kapoor       ….Appellant
Versus
Oriental Insurance Co. Ltd.     ….Respondent

DATE : 6-November-2017

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. The appellant has sought enhancement of compensation by filing this appeal, questioning the judgment dated 31.10.2015 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No. 3218 of 2003 (O&M).

3. Facts leading to this appeal are as under:

In the accident that occurred at about 10.30 p.m. on 21.3.2000 at Jamnagar, the appellant sustained grievous injury to his right arm which resulted in permanent disability to the extent of 50% to his right arm. Since the appellant was immediately admitted to the hospital at Jamnagar his life was saved; the appellant remained as in-patient in the hospital from 21.03.2000 to 31.05.2000 and had undergone several surgeries. It is the case of the appellant that even after discharge from the hospital at Jamnagar, he was taking treatment at Karnal as out-patient. At the time of accident, the appellant was “Dec Cadet trainee” of Merchant Navy in the Binnyship Management Company Ltd. and as a trainee, he was getting fifty US dollars per month as salary, apart from free boarding and lodging. It was the claim of the appellant that he would have become “third Officer” after 18 months and the said post was attached with the salary of 1500 US dollars per month. According to the appellant, he would have then become “Chief Officer” within three years and then “Captain” of the ship after about eight years of the service, but as a result of accident and as a result of permanent disability to the right arm of the appellant, he has not only lost his job in Binnyship Management Company Ltd. but he has become unfit for the Merchant Navy. He alleges that his future career is ruined, apart from sustaining heavy financial loss.

4. The Motor Accident Claims Tribunal, Karnal awarded compensation of Rs.6,60,000/- (Rupees Six Lacs Sixty Thousand only) along with 9% interest per annum from the date of filing the claim petition to the appellant.

5. Dissatisfied with the quantum of compensation, the appellant approached the High Court of Punjab and Haryana at Chandigarh seeking enhancement of compensation. The High Court has enhanced the compensation by Rs.2,20,000/- (Rupees Two Lacs Twenty Thousand only) along with interest @ 6% per annum, which means the appellant has been awarded a total compensation of Rs.8,80,000/- along with interest. As mentioned supra, this appeal is filed praying for further enhancement of compensation.

6. The Tribunal as well as the High Court have not quantified the compensation under separate heads, which in our considered opinion has resulted in grant of lesser compensation.

7. It is by now well settled by this Court in a catena of decisions including the case of Raj Kumar vs. Ajay Kumar reported in (2011) 1 SCC 343, in the case of permanent disability, the compensation is usually awarded under the following heads:

A. Pecuniary damages (Special Damages):

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure;

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

B. Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries;

(v) Loss of amenities (and/or loss of prospects of marriage);

(vi) Loss of expectation of life (shortening of normal longevity)

8. The record reveals that the Tribunal has made a note while recording the deposition of the claimant about the seriousness of the injuries sustained by the claimant. The observation of the Tribunal reads thus:

“At this stage I have seen the right arm i.e. right upper limb which is almost completely in a damaged condition and skin is not visible properly from elbow onward till shoulder and there seems to be some muscle loss.”

The record also reveals that the claimant was unconscious for a couple of days in the hospital and he was operated by the doctor at Jamnagar hospital. According to the appellant, he has spent an amount of Rs.3,00,000/- (Rupees Three Lacs only) at Jamnagar hospital. Thereafter, he has taken the assistance of Dr. O.P.Miglani at Karnal for getting the dressing done every day. The disability certificate is Ex. P1 and the treatment certificate issued by the hospital is Ex. P9. Due to the injuries sustained, the appellant has lost strength and flexibility in his right arm and he cannot lift the weight. The appellant cannot raise the arm beyond the level of 90 degree and he cannot drive the vehicle as his arm is not as strong as it was before the accident. The appellant had completed six and half months training prior to the incident. When the ship had halted at Jamnagar for ten days, he took casual leave for seven days to go to Karnal for applying fresh passport, during which time the accident occurred. After completion of his 10+2, the appellant had passed Diploma in Applied Research International, New Delhi which is a condition precedent for joining Merchant Navy. The appellant had also passed Diploma in Personal Safety and Social Responsibilities, Oil Tanker Familiarization, Elementary First Aid, Personal Survival Techniques, Fire Prevention and Fire Fighting(all are related to sea courses) for Dec Cadet and thereafter he joined Binniship Management Company as Dec Cadet. The record further reveals that the appellant has to undergo one more surgery i.e. plastic surgery at Mumbai inasmuch as such facility is not available in his native place at Karnal. According to the appellant, the said surgery may cost him rupees three to four lacs.

9. Having regard to the afore-mentioned material on record and keeping in mind that the future of the appellant has become bleak, so also his marriage prospects are reduced to greater extent, in our considered opinion, the compensation awarded to the appellant needs to be enhanced to certain extent.

The appellant, as mentioned supra, has spent about rupees three lacs for treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure during the course of treatment. He lost his earnings during the course of treatment, i.e., at least for a period of four months. He has also lost his future earnings since he may not be able to do the job as before and he cannot join Merchant Navy. Even, it would be very difficult for him to get an alternate job easily, particularly in view of 50% permanent disability to his right arm. Thus, the appellant is awarded Rs.10,00,000/- (Rupees Ten Lacs only) on account of the expenses relating to treatment, hospitalization, medicines etc, loss of earnings during the course of treatment and loss of future earnings on account of permanent disability. The appellant is awarded Rs.3,00,000/- (Rupees Three Lacs only) for future medical expenses. The appellant must have suffered pain, agony and trauma as a consequence of injuries. The Court can take judicial notice of the fact that he may not have bright future as before. He was just 22 years of age at the time of accident and was unmarried. It is unfortunate that he had to suffer at this young age when he was thinking of his bright future life. Having regard to the material on record, we award Rs.3,00,000/-(Rupees Three Lacs only) towards pain, agony and trauma as a consequence of injuries, and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of amenities(including loss of prospects of marriage) and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of expectation of life.

10. Thus, on all counts, the appellant is awarded, in total, a compensation of Rs.22,00,000/-(Rupees Twenty Two Lacs only), instead of Rs.8,80,000/-(Rupees Eight Lacs Eighty Thousand only) awarded by the High Court, along with uniform rate of interest @ 8% per annum from the date of filing of the claim petition before the Motor Accident Claims Tribunal till its realization. It is also directed that the payment of compensation with interest shall be made to the appellant within three months from today. Needless to mention that any amount, if already paid, shall be adjusted. The findings of the Motor Accident Claims Tribunal and the High Court regarding composite negligence and liability to pay will remain undisturbed.

11. The instant appeal is accordingly allowed to the aforesaid extent. There shall be no order as to costs.

…………….J.
[S.A. BOBDE]
…………….J.
[MOHAN M. SHANTANAGOUDAR]

NEW DELHI;
NOVEMBER 06, 2017.

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SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 607-608 OF 2017
(arising out of S.L.P. (Criminal) Nos. 3119-3120 of 2014)

Mukesh & Anr. …Appellants
Versus
State for NCT of Delhi & Ors. …Respondents

WITH
CRIMINAL APPEAL NOS. 609-610 OF 2017
(arising out of S.L.P. (Criminal) Nos. 5027-5028 of 2014)

JUDGEMENT

Dipak Misra, J. [for himself and Ashok Bhushan, J.] The cold evening of Delhi on 16th December, 2012 could not have even remotely planted the feeling in the twenty-three year old lady, a para-medical student, who had gone with her friend to watch a film at PVR Select City Walk Mall, Saket, that in the next few hours, the shattering cold night that was gradually stepping in would bring with it the devastating hour of darkness when she, alongwith her friend, would get into a bus at Munirka bus stand to be dropped at a particular place; and possibly could not have imagined that she would be a prey to the savage lust of a gang of six, face brutal assault and become a playful thing that could be tossed around at their wild whim and her private parts would be ruptured to give vent to their pervert sexual appetite, unthinkable and sadistic pleasure. What the victims had not conceived of, it all happened, as the chronology of events would unroll. The attitude, perception, the beastial proclivity, inconceivable self-obsession and individual centralism of the six made the young lady to suffer immense trauma and, in the ultimate eventuate, the life-spark that moves the bodily frame got extinguished in spite of availing of all the possible treatment that the medical world could provide. The death took place at a hospital in Singapore where she had been taken to with the hope that her life could be saved.

2. The friend of the girl survived in spite of being thrown outside the bus along with the girl and the attempt of the accused-appellants to run over them became futile as they, by their slight movement, could escape from being crushed under the bus, and the appellants left them thinking that they were no more alive. Lying naked, as the clothes were removed from their bodies, they shouted for help and as good fortune would have it, the night patrolling vehicle, a motor cycle, arrived and the said man, Raj Kumar, PW-72, gave the shirt to the boy and contacted the control room from which a Bolero patrol van came and they brought a bed sheet and tore it into two parts and gave a piece to each of the victims so that they could cover themselves and feel civil. The PCR van took the victims to the Safdarjung Hospital where treatment commenced.

3. The present case is one where there can be no denial that the narrative is long, the investigation has been cautious and to bring home the charge, modern and progressive scientific methods have been adopted. Mr. Siddharth Luthra, learned senior counsel for the respondent-State, has made indefatigable endeavour to project that the investigation is flawless and exemplary; and Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the appellants, have severely criticized it as faulty on many a score and that it is completely biased; and Mr. Sanjay R. Hegde, learned senior counsel, the friend of the Court, in his own way, has highlighted that the investigation is not only flawed but also unreliable which deserves chastisement and warrants rejection. Many facets of the investigation that pertain to recording of dying declaration, recording of statements of witnesses under Section 161 of the Code of Criminal Procedure (CrPC), the medical examination, holding of the test identification parade, the manner and method of search and seizure and the procedure of arrest have been seriously commented upon. That apart, criticism is advanced from many a spectrum to strengthen the stance that it does not meet the standard and test determined by law. Needless to say, the factual score and the investigation have to withstand the test of reliability and acceptability. The appreciation of evidence brought on record requires to be appositely scrutinized to adjudge the fact whether the appellants are guilty of their culpability or there has been public pressure, as alleged, to falsely implicate the appellants or to treat them as guinea pigs to save others and accept the hypothesis that the prosecution has booked them at the instance of some political executives or to save a situation which a disturbed society perceives as a collective catastrophe on the paradigm of social stability and to sustain its faith in the investigation to keep the precept of rule of law alive. In essence, the submission is that the whole exercise, namely, investigation and trial, has been carried out with the sole purpose for the survival of the prosecuting agency. We have stated in the beginning that Mr. Sharma and Mr. Singh appearing for the appellants commenced their submission with all the vehemence and sensitivity at their command to strike at the root of the prosecution branding it as suspicious, absolutely unreliable, apathetic to the concept of individual dignity and engaged in maladroit effort to book the vulnerable and the innocent so as to disguise and cover their inefficiency to catch the real culprits. In the course of our deliberation, we shall dwell upon the same and keenly scrutinize the justifiability of the aforesaid criticism.

The Prosecution Narrative

4. Presently, we shall advert to the exposition of facts. The prosecution case, as projected, is that on 16.12.2012, the deceased, ‘Nirbhaya’ (not her real name), had gone with her friend, the informant, PW-1, to the PVR situated in Select City Walk Mall, Saket to watch a movie. After the show was over, about 8:30 p.m., they took an auto and reached Munirka bus stand wherefrom they boarded a white coloured chartered bus [DL-1P-C-0149, Ext.P1] which was bound to Dwarka/Palam Road, as a boy in the bus was calling for commuters for the said destination. As per the version of the informant, PW-1, the friend of the prosecutrix, the bus had yellow and green lines/stripes and the word “Yadav” was written on it. After both of them had entered the bus, they noticed that six persons were already inside the bus, four in the cabin of the driver and two behind the driver’s cabin. The deceased and the informant sat on the left side in the row of two-seaters and paid the fare of twenty rupees as demanded. Before they could get the feeling of a safe journey (though not a time-consuming journey), a feeling of lonely suffocation and a sense of danger barged in, for the accused persons did not allow anyone else to board and the bus moved and the lights inside the bus were put off. With the lights being put off, the darkness and the fear of the unexpected darkness ruled. A few minutes later, three persons (who have been identified as accused Ram Singh, Akshay and a young boy, who has been treated as a juvenile in conflict with law) came out of the driver’s cabin and started to abuse PW-1. The young companion of the deceased raised opposition to the abuse that led to an altercation which invited the other two who were sitting outside the driver’s cabin to join. The spirit to oppose and the duty to save the prosecutrix had to die down and perilously succumb to the assault by the accused persons with the iron rods that caused injuries to his head, both the legs and other parts of the body and the consequence was that he fell on the floor of the bus to hear the painful cries of the lady who, he knew, was being treated as an object, an article for experimentation and prey to the pervert proclivity of the six but could do nothing except to hear unbearable cries made in agony and pain. His spirit was dead, and bound to.

5. As the prosecution story further unfurls, the two accused persons, namely, Pawan and Vinay, pinned the young man down and robbed the victims of their mobiles besides robbing the informant of his purse carrying a Citi Bank credit card, ICICI Bank Debit Card, his identity card issued by his employer-company, metro card, a sum of rupees one thousand, his Titan Watch, a golden ring studded with jewels and a silver ring studded with pearl, black colour Hush Puppies shoes, black colour Numero Uno jeans, a grey colour pullover and a brown colour blazer. As per the version of the prosecution, PW-1 was carrying two mobiles and the prosecutrix was carrying only one, and the accused snatched away all the three mobiles.

6. The overpowering was not meant to satisfy the avarice. As the accusations proceed, after the informant was overpowered, as it could only have a singular result, the accused persons, namely, Ram Singh, Akshay and the Juvenile in Conflict with Law (JCL) took the prosecutrix to the rear side of the bus and she was raped by them, one after the other.

7. After committing rape, the accused Ram Singh (since deceased), accused Akshay and the JCL came towards the informant, PW-1, and nailed him down; then the accused Vinay and accused Pawan went to the rear side of the bus and committed rape on the prosecutrix, one by one. PW-1 noticed that earlier the bus was moving at fast speed but after sometime, he felt that the speed of the bus was reduced and he saw that the accused Mukesh, who was driving the bus, came near him and hit him with the rod and he also went to the rear side of the bus and raped the prosecutrix. The prosecutrix was brutally gang raped by the accused one after the other and she was also subjected to unnatural sex. Her private parts and her internal organs were seriously injured by inserting iron rod and hand in the rectal and vaginal region. As per PW-1, he had heard the cries of the prosecutrix like “chod do, bachao”. PW-1 could hear the prosecutrix shouting in a loud oscillating voice. The prosecutrix was carrying a grey colour purse having an Axis Bank ATM card and other belongings. The accused persons robbed her of her belongings and stripped her. They also took away the clothes of the informant while beating him with iron rods. The accused were exhorting that both the victims be not left alive. The accused then tried to throw both the informant and the prosecutrix out of the moving bus from its rear door but could not open it and so, they brought them to the front door and threw them out of the moving bus at National Highway No. 8, Hotel Delhi 37, Mahipalpur flyover by the side of the road.

8. As indicated earlier, the prosecutrix and PW-1 were noticed by PW-72, Raj Kumar, who heard the voice of ‘bachao, bachao’ from the left side of the road near a milestone opposite to Hotel Delhi 37. PW-72 saw PW-1 and the prosecutrix sitting naked having blood all around. Immediately thereafter, PW-72, Raj Kumar, informed PW-70, Ram Pal, who was in the Control Room, requesting him to call PCR. PW-70, Ram Pal, of EGIS Infra Management India (P) Limited, dialed 100 No. and even asked his other patrolling staff to reach the spot.

9. About 10:24 p.m., PW-73, H.C. Ram Chander, who was in charge of PCR van Zebra 54, received information about the incident and the lying of victims in a naked condition near the foot of Mahipalpur fly over towards Dhaula Kuan opposite GMR Gate. PW-73 reached the spot and found the victims. He got the crowd dispersed and brought a bottle of water and a bedsheet from the nearby hotel and tore the same into two parts and gave it to both the victims to cover themselves.

Travel to the Safdarjung Hospital

10. About 11:00 p.m., PW-73 took the victims to Safdarjung Hospital, New Delhi. On the way to the hospital, the victims gave their names to him and informed that they had boarded a bus from Munirka and that after some time the occupants had started misbehaving and had beaten the boy and taken the girl (prosecutrix) to the rear side of the bus and committed rape on her. Thereafter, they had taken off the clothes of the victims and thrown them naked on the road. While leaving the informant, PW-1, in the casualty where he was examined by PW-51, Dr. Sachin Bajaj, and his MLC, Ext. PW-51/A, was drawn up, PW-73 took the prosecutrix to the Gynae ward and got her admitted there. The MLC of the prosecutrix,PW- 49/B, was prepared by PW-49, Dr. Rashmi Ahuja.

11. PW-49, Dr. Rashmi Ahuja, recorded the history of the incident as told to her by the prosecutrix and noted the same in Exhibit PW-49/A. As per the version narrated by the prosecutrix to her, it was a case of gang rape in a moving bus by 4-5 persons when the prosecutrix was returning after watching a movie with the informant. She was slapped on her face, kicked on her abdomen and bitten over lips, cheek, breast and vulval region. The prosecutrix remembered intercourse two times and rectal penetration also. She was also forced to have unnatural oral sex but she refused. All this continued for half an hour and then she was thrown off from the moving bus along with her friend.

12. The following external injuries were noted by Dr. Rashmi Ahuja in Ex. PW-49/A:
a) Bruise over left eye covering whole of the eye
b) Injury mark (abrasion) at right angle of eye
c) Bruise over left nostril involving upper lip
d) Both lips edematous
e) Bleeding from upper lip present
f) Bite mark over right cheek
g) Left angle of mouth injured (small laceration)
h) Bite mark over left cheek
i) Right breast bite marks below areola present
j) Left breast bruise over right lower quadrant, bite
mark in inferior left quadrant

Per abdomen:
i) Guarding & rigidity present

Local examination:
a) Cut mark (sharp) over right labia present
b) A tag of vagina (6 cm in length) hanging outside the introitus
c) There was profuse bleeding from vagina

Per vaginal examination:
i) A posterior vaginal wall tear of about 7 to 8 cm

Per rectal examination:
i) Rectal tear of about 4 to 5 cm., communicating with the vaginal tear.

13. As the evidence brought on record would show, 20 samples of the prosecutrix were taken and sealed with the seal of the hospital and handed over to PW-59, Inspector Raj Kumari.

Registration of FIR and the progress thereon 14. At this juncture, it is necessary to state that after the victims were rescued, the informant, PW-1, Awninder Pratap, gave his first statement to the police at 3:45 a.m. on 17.12.2012 which culminated into the recording of the FIR at 5:40 a.m. being FIR No. 413/2012 dated 17.12.2012, PS Vasant Vihar under Section 120B IPC and Sections 365/366/376(2)(g)/377/307/302 IPC and/or Sections 396/395 IPC read with Sections 397/201/412 IPC. It was thereafter handed over to S.I. Pratibha Sharma, PW-80, for investigation.

15. On the same night, i.e., 16/17.12.2012, the prosecutrix underwent first surgery around 4:00 a.m. The prosecutrix was operated by PW-50, Dr. Raj Kumar Chejara, Safdarjung Hospital, New Delhi and his surgery team comprised of Dr. Gaurav and Dr. Piyush. OT notes have been exhibited as Ex.PW-50/A and Ex.PW-50/B. The second and third surgeries were performed on 19.12.2012 and 23.12.2012 respectively.

16. During the period the prosecutrix was undergoing surgeries one after the other, and when all were concerned about her progress of recovery, the prosecution was carrying out its investigation in a manner that it thought systematic. The first and foremost responsibility of the prosecution was to find out, on the basis of the information given, about the accused persons. That is how the prosecution story uncurtains.

17. On 17.12.2012, supplementary statements of PW-1 were recorded by PW-80, SI Pratibha Sharma. Based on the description of the bus given by PW-1, the offending bus bearing No. DL-1PC-0149 was found parked in Ravi Das Jhuggi Camp, R.K. Puram, New Delhi. PW-80 along with PW-74, SI Subhash Chand, and PW-65, Ct. Kripal Singh, went to the spot and found accused Ram Singh sitting in the bus. On seeing the police, Ram Singh got down from the bus and started running. The police intercepted Ram Singh and he was arrested and interrogated.

18. Personal search was conducted on Ram Singh and his disclosure statement, Ex. P-74/F, was recorded by PW-74 and his team. Based on his disclosure statement, PW-74, Investigating Officer, SI Subhash Chand, seized the bus, Ex. P1, vide Seizure Memo Ex. PW- 74/K. PW-74 seized the seat cover of the bus of red colour and its curtains of yellow colour. On the bus, ‘Yadav’ was found written on its body with green and yellow stripes on it. The Investigating Officer also seized the key of the bus, Ex. P-74/2, vide Seizure Memo Ex. PW-74/J. The documents of the bus were also seized. The disclosure statement of Ram Singh, Ex. PW-74/F, led to the recovery of his bloodstained clothes, iron rods and debit card of Asha Devi, the mother of the prosecutrix. PW-74, Investigating Officer, also recovered ashes and the partly unburnt clothes lying near the bus which was seized vide Memo Exhibit No. PW-74/M and Unix Mobile Phone with MTNL Sim, Ex. P-74/5, vide Memo Ex. P/74E. The Investigating Officer prepared the site plan of the place where the bus was parked and from where the ashes were found. The arrest of the accused persons and seizure of articles

19. The arrest of accused, Ram Singh, also led to the arrest of two other accused persons, namely, accused Vinay Sharma and accused Pawan @ Kaalu. On 18.12.2012, accused Mukesh was apprehended from village Karoli by PW-58, SI Arvind Kumar, and was produced before PW-80, SI Pratibha Sharma. At the instance of accused Mukesh Singh, a Samsung Galaxy Trend DUOS Blue Black mobile belonging to the informant was recovered. On 23.12.2012, at his instance, PW-80 prepared the route chart of the route where Mukesh drove the bus at the time of the incident, Ex PW-80/H. Besides that, he got recovered his bloodstained clothes from the garage of his brother at Anupam Apartment, Saidulajab, Saket, New Delhi. He opted to undergo Test Identification Parade. In the Test Identification Parade conducted by PW-17, Sandeep Garg, Metropolitan Magistrate, PW-1, identified accused-Mukesh.

20. Accused Pawan was apprehended and arrested about 1:15 p.m. on 18.12.2012 vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G, was recorded and his personal search was conducted vide memo Ex.PW-60/C. In his disclosure statement, Pawan pointed out Munirka bus stand where the prosecutrix and PW-1 boarded the bus and memo Ex.PW-68/I was prepared. He also pointed at the spot where PW-1 and the prosecutrix were thrown out of the bus and memo Ex.PW-68/J was prepared in this regard.

21. Accused Vinay Sharma got recovered his bloodstained clothes, PW-1’s Hush Puppies leather shoes and the prosecutrix’s mobile phone, Nokia Model 3110 of black grey colour. Further recoveries were made pursuant to his supplementary disclosure. Similarly, accused Pawan Kumar got recovered from his jhuggi his bloodstained clothes, shoes and also a wrist watch make Sonata and Rs. 1000/- robbed from PW-1.

22. On 21.12.2012, accused Akshay was also arrested from Village Karmalahang, PS Tandwa, Aurangabad, Bihar. His disclosure statement was recorded. He led to his brother’s house in village Naharpur, Gurgaon, Haryana and got recovered his bloodstained clothes. A ring belonging to PW-1, two metro cards and a Nokia phone with SIM of Vodafone Company was also recovered from Akshay. Akshay also opted to undergo TIP and was positively identified by PW-1. The mobile phones of the accused persons were seized and call details records with requisite certificates under Section 65-B of Indian Evidence Act were obtained by the police.

23. After getting arrested, all the accused were medically examined. The MLCs of all the accused persons show various injuries on their person; viz., in the MLC, Ex.PW-2/A, of accused Ram Singh, PW-2, Dr. Akhilesh Raj, has opined that the injuries mentioned at point Q to P-1 could possibly be struggle marks. Similar opinions were received in respect of other accused persons. PW-7, Dr. Shashank Pooniya, has opined that the injuries present on the body of accused Akshay were a week old and were suggestive of struggle as per MLC, Ex.PW-7/A. MLC, Ex.PW-7/B, pertaining to accused Pawan shows that he had suffered injuries on his body which were simple in nature. The MLC, Ex.PW-7/C, of accused Vinay Sharma proved that he too suffered injuries, simple in nature, 2 to 3 days old, though injury No. 8 was claimed to be self inflicted by the accused himself.

Further treatment of the victim and filing of chargesheet

24. While the arrest took place, as indicated earlier, the victim underwent second and third surgeries on 19.12.2012 and 23.12.2012 respectively. The second surgery was performed on the prosecutrix on 19.12.2012 by PW-50, Dr. Raj Kumar Chejara, along with his operating team consisting of Prof. Sunil Kumar, Dr. Pintu and Dr. Siddharth. Dr. Aruna Batra and Dr. Rekha Bharti were present along with the anaesthetic team. The clinical notes, Ex.PW-50/C, and notes prepared by the Gynaecology team, Ex.PW-50/D, can be referred to in this regard. The prosecutrix was re-operated on 23.12.2012 for peritoneal lavage and placement of drain under general anaesthesia and the notes are exhibited as Ex.PW-50/E.

25. As the condition of the prosecutrix did not improve much, the prosecution thought it appropriate to record the statements of the prosecutrix. The said statements have been conferred the status of dying declaration. As is noticeable from the evidence, PW-49 also deposed that certain exhibits were collected for examination such as outer clothes, i.e., sweater, sheet covering the patient; inner clothes, i.e., Sameej torned; dust; grass present in hairs, dust in clothes; debris from in between fingers; debris from nails; nail clippings; nail scrapings; breast swab; body fluid collection (swab from saliva); combing of pubic hair; matted pubic hair, clipping of pubic hair; cervical mucus collection; vaginal secretions; vaginal culture; washing from vaginal; rectal swab; oral swab; urine and oxalate blood vial; blood samples, etc.

26. On 21.12.2012, on being declared fit, the second dying declaration was recorded by PW-27, Smt. Usha Chaturvedi, Sub-Divisional Magistrate. This dying declaration is an elaborate one where the prosecutrix has described the incident in detail including the insertion of rods in her private parts. She also stated that the accused were addressing each other with names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”.

27. On 25th December, 2012, at 1:00 p.m., PW-30, Shri Pawan Kumar, Metropolitan Magistrate, went to the hospital to record the dying declaration of the prosecutrix. The attending doctors opined that the prosecutrix was not in a position to speak but she was otherwise conscious and responded by way of gestures. Accordingly, PW-30 put questions in such a manner as to enable her to narrate the incident by way of gestures or writing. Her statement, Ex.PW-30/D, was recorded by PW-30 in the form of dying declaration by putting her questions in the nature of multiple choice questions. The prosecutrix gave her statement/dying declaration through gestures and writings, Exhibit PW-30/D, the contents of which will be discussed later.

28. At this juncture, the cure looked quite distant. The health condition was examined on 26th December 2012 by a team of doctors comprising of Dr. Sandeep Bansal, Cardiologist, Dr. Raj Kumar Chejara, Dr. Sunil Kumar, Dr. Arun Batra and Dr. P.K. Verma and since the condition of the prosecutrix was critical, it was decided that she be shifted abroad for further treatment and fostering oasis of hope on 27th December, 2012, she was shifted to Mt. Elizabeth Hospital, Singapore, for her further treatment. The hope and expiration became a visible mirage as the prosecutrix died on 29th December, 2012 at Mt. Elizabeth Hospital, Singapore. Dr. Paul Chui, PW-34, Forensic Pathologist, Health Sciences Authority, Singapore, deposed that her exact time of death was 4:45 a.m. on 29th December, 2012. The death occurred at Mt. Elizabeth Hospital and the cause of her death was sepsis with multiple organ failure following multiple injuries. The original post mortem report is Ex. PW-34/A and its scanned copy is Ex.PW-34/B; the Toxicology Report dated 4th January, 2013 is Exhibit PW-34/C. In the post-mortem report, Ex.PW-34/A, besides other serious injuries, various bite marks have been observed on her face, lips, jaw, rear ear, on the right and left breasts, left upper arm, right lower limb, right upper inner thigh (groin), right lower thigh, left thigh lateral and left leg lower anterior.

29. It is apt to note here that during the course of investigation (keeping in mind that the vehicle was identified), the investigating agency went around to collect the electronic evidence. A CCTV footage produced by PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and PW-25/C-2, and the photographs, Ex.PW-25/B-1 to Ex.PW-25/B-7, were collected from the Mall, Select City Walk, Saket to ascertain the presence of PW-1 and the prosecutrix at the Mall. The certificate under Section 65-B of the Indian Evidence Act, 1872 (for short, “Evidence Act”) with respect to the said footage is proved by PW-26, Shri Sandeep Singh, vide Ex.PW-26/A. Another important evidence is the CCTV footage of Hotel Delhi 37 situated near the dumping spot. The said footage showed a bus matching the description given by the informant at 9:34 p.m. and again at 9:53 p.m. The said bus had the word “Yadav” written on one side. Its exterior was of white colour having yellow and green stripes and its front tyre on the left side did not have a wheel cap. The description of the bus was affirmed by PW-1’s statement. The CCTV footage stored in the pen drive, Ex.P-67/1, and the CD, Ex.P-67/2, were seized by the I.O. vide seizure memo Ex.PW-67/A from PW-67, Pramod Kumar Jha, the owner of Hotel Delhi 37. The same were identified by PW-67, Pramod Jha, PW-74, SI Subhash, and PW-76, Gautam Roy, from CFSL during their examination in Court. PW-78, SHO, Inspector Anil Sharma, had testified that the said CCTV footage seized vide seizure memo Ex.PW-67/A was sent to the CFSL through S.I. Sushil Sawaria and PW-77, the MHC(M). Thereafter, on 01.01.2013, the report of the CFSL was received.

30. As the prosecution story would further undrape, in the course of investigation, the test identification parade was carried out. We shall advert to the same at a later stage.

31. We had indicated in the beginning that the investigating team had taken aid of modern methods to strengthen its case. The process undertaken, the method adopted and the results are severely criticized by the learned counsel for the appellants to which we shall later on revert to but presently to the steps taken by the investigating agency during investigation. With the intention to cover the case from all possible spheres and to establish the allegations with the proof of conclusivity and not to give any chance of doubt, the prosecution thought that it was its primary duty to ascertain the identity of the accused persons; and for the said purpose, it carried out DNA analysis and fingerprint and bite mark analysis.

Collection of samples and identity of accused persons

32. The blood sample of the informant was collected by Dr. Kamran Faisal, PW-15, Safdarjung Hospital, on 25.12.2012 and was handed over to SI Pratibha Sharma, PW-80, vide seizure memo Ex.PW-15/A by Constable Suresh Kumar, PW-42. Similarly, as mentioned earlier, PW-49, Dr. Rashmi Ahuja, had collected certain samples from the person of the prosecutrix which are reflected in Ex.PW-49/A from point B to B. All the samples were collected by Inspector Raj Kumari, PW-59, vide seizure memo Ex.PW-59/A and were handed over to PW-80, SI Pratibha Sharma, at Safdarjung Hospital in the morning of 17.12.2012. Also the samples of gangrenous bowels of the prosecutrix were taken on 24.12.2012 and were handed over to SI Gajender Singh, PW-55, who seized the same vide seizure memo Ex.PW-11/A. All the samples were deposited with the MHC(M) and were not tampered with in any manner. A specimen of scalp hair of the prosecutrix was also taken on 24.12.2012 by Dr. Ranju Gandhi, PW-29, and was handed over to PW- 80, SI Pratibha Sharma, vide seizure memo Ex.PW-29/A.

33. The accused were also subjected to medical examination and samples were taken from their person which were sent for DNA analysis.

34. DNA analysis was done at the behest of PW-45, Dr. B.K. Mohapatra, Sr. Scientific Officer, Biology, CFSL, CBI, and Biological Examination and DNA profiling reports were prepared which are exhibited as Ex. PW-45/A-C. The report, after analysing the DNA profiles generated from the known samples of the prosecutrix, the informant, and each of the accused, concluded that:

“An analysis of the above shows that the samples were authentic and established the identities of the persons mentioned above beyond reasonable doubt.”

35. On 17.12.2012 and 18.12.2012, a team of experts from the CFSL went to Thyagraj Stadium and lifted chance prints from the bus in question, Ex.P-1. On 28.12.2012, PW-78, Inspector Anil Sharma of P.S. Vasant Vihar, the then S.H.O. of Police Station Vasant Vihar, requested the Director, CFSL, for taking digital palm prints and foot prints of all the accused persons vide his letter Ex.PW-46/C. Pursuant to the said request made by PW-78, Inspector Anil Sharma, the CFSL, on 31.12.2012, took the finger/palm prints and foot prints of the accused persons at Tihar Jail. After comparing the chance prints lifted from the bus with the finger prints/palm prints and foot prints of all the accused persons, PW-46, Shri A.D. Shah, Senior Scientific Officer (Finger Prints), CFSL, CBI submitted his report Ex.PW-46/D. In the report, the chance prints of accused Vinay Sharma were found to have matched with those on the bus in question.

36. Bite mark analysis was also undertaken by the investigative team to establish the identity and involvement of the accused persons. PW-66, Asghar Hussain, on the instructions of the I.O., S.I. Pratibha Sharma, had taken 10 photographs of different parts of the body of the prosecutrix at SJ Hospital on 20.12.2012 between 4:30 p.m. and 5:00 p.m. which were marked as Ex.PW-66/B (Colly.) [10 photographs of 5” x 7” each] and Ex.PW-66/C (Colly.) [10 photographs of 8” x 12” each]. PW-66 also proved in Court the certificate provided by him in terms of Section 65-B of the Evidence Act in respect of the photographs, Ex. PW-66/A. Thereafter, PW-18, SI Vishal Choudhary, collected the photographs and the dental models from Safdarjung Hospital on 01.01.2013 and duly deposited the same in the malkhana after he, PW-18, had handed them over to the S.H.O. Anil Sharma, PW-78. The same were later entrusted to S.I. Vishal Choudhary, PW-18 on 02.01.2013, which is proved vide RC No.183/21/12 and exhibited as Ex.PW-77/V. PW-71, Dr. Ashith B. Acharya, submitted the final report in this regard which is exhibited as Ex. PW-71/C. In the said report, he has concluded that at least three bite marks were caused by accused Ram Singh whereas one bite mark has been identified to have been most likely caused by accused Akshay.

37. It is seemly to note here that on completion of the investigation, the chargesheet came to be filed on 03.01.2013 under Section 365/376(2)(g)/377/307/395/ 397/302/396/412/201/120/34 IPC and supplementary chargesheet was filed on 04.02.2013.

Charge and examination of witnesses, conviction and awarding of sentence by the trial court

38. After the case was committed to the Court of Session, all the accused were charged for the following offences:

1. u/s 120-B IPC;
2. u/s. 365 / 366 / 307 / 376 (2)(g) IPC / 377 IPC read with Section 120-B IPC;
3. u/s. 396 IPC read with Section 120-B IPC and /or;
4. u/s. 302 IPC read with Section 120-B IPC;
5. u/s. 395 IPC read with Section 397 IPC read with 120-B IPC;
6. u/s. 201 IPC read with Section 120-B IPC and;
7. u/s. 412 IPC.

During the course of trial, accused Ram Singh committed suicide and the proceedings qua him stood abated vide order dated 12.10.2013.

39. It is worthy to mention here that in order to bring home the charge, the prosecution initially examined 82 witnesses and thereafter, the statements of the accused persons were recorded and they abjured their guilt. Accused Pawan Gupta @ Kaalu examined Lal Chand, DW-1, Heera Lal, DW-2, Ram Charan, DW-3, Gyan Chand, DW-4, and Hari Kishan Sharma, DW-16, in support of his plea. Accused Vinay Sharma examined Smt. Champa Devi, DW-5, Hari Ram Sharma, DW-6, Kishore Kumar Bhat, DW-7, Sri Kant, DW-8, Manu Sharma, DW-9, Ram Babu, DW-10, and Dinesh, DW-17, to establish his stand. Accused Akshay Kumar Singh @ Thakur examined Chavinder, DW-11, Sarju Singh, DW-12, Raj Mohan Singh, DW-13, Punita Devi, DW-14, and Sarita Devi, DW-15. As the factual matrix would reveal, subsequently three more prosecution witnesses were examined and on behalf of the defence, two witnesses were examined.

40. Learned Sessions Judge, vide judgment dated 10.09.2013, convicted all the accused persons, namely, Akshay Kumar Singh @ Thakur, Vinay Sharma, Mukesh and Pawan Gupta @ Kaalu under Section 120B IPC for the offence of criminal conspiracy; under Section 365/366 IPC read with Section 120B IPC for abducting the victims with an intention to force the prosecutrix to illicit intercourse; under Section 307 IPC read with Section 120B IPC for attempting to kill PW-1, the informant; under Section 376(2) (g) IPC for committing gang rape with the prosecutrix in pursuance of their conspiracy; under Section 377 IPC read with Section 120B IPC for committing unnatural offence with the prosecutrix; under Section 302 IPC read with Section 120B IPC for committing murder of the helpless prosecutrix; under Section 395 IPC for conjointly committing dacoity in pursuance of the aforesaid conspiracy; under Section 397 IPC read with Section 120B IPC for the use of iron rods and for attempting to kill PW-1 at the time of committing robbery; under Section 201 IPC read with Section 120B IPC for destroying of evidence and under Section 412 IPC for the offence of being individually found in possession of the stolen property which they all knew was a stolen booty of dacoity committed by them.

41. After recording the conviction, as aforesaid, the learned trial Judge imposed the sentence, which we reproduce:
“(a) The convicts, namely, convict Akshay Kumar Singh @ Thakur, convict Mukesh, convict Vinay Sharma and convict Pawan Gupta @ Kaalu are sentenced to death for offence punishable under Section 302 Indian Penal Code. Accordingly, the convicts to be hanged by neck till they are dead. Fine of Rs.10,000/- to each of the convict is also imposed and in default of payment of fine such convict shall undergo simple imprisonment for a period of one month.
(b) for the offence under Section 120-B IPC I award the punishment of life imprisonment to each of the convict and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(c) for the offence under Section 365 IPC I award the punishment of seven years to each of the convict and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(d) for the offence under Section 366 IPC I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(e) for the offence under Section 376(2)(g) IPC I award the punishment of life imprisonment to each of the convict person with fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(f) for the offence under Section 377 IPC I award the punishment of ten years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(g) for the offence under Section 307 IPC I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(h) for the offence under Section 201 IPC I award the punishment of seven years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(i) for the offence under Section 395 read with Section 397 IPC I award the punishment of ten years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;
(j) for the offence under Section 412 IPC I award the punishment of ten years to each of the convict person and fine of Rs.5000/- to each of them. In default of payment of fine simple imprisonment for one month to such convict;”

42. Be it noted, the learned trial Judge directed the sentences under Sections 120B/365/366/376(2)(g)/ 377/201/395/397/412 IPC to run concurrently and that the benefit under Section 428 CrPC would be given wherever applicable. He further recommended that appropriate compensation under Section 357A CrPC be awarded to the legal heirs of the prosecutrix and, accordingly, sent a copy of the order to the Secretary, Delhi Legal Services Authority, New Delhi, for deciding the quantum of compensation to be awarded under the scheme referred to in sub-section (1) of Section 357A CrPC. That apart, as death penalty was imposed, he referred the matter to the High Court for confirmation under Section 366 CrPC.

The view of the High court

43. The High Court, vide judgment dated 13.03.2014, affirmed the conviction and confirmed the death penalty imposed upon the accused by expressing the opinion that under the facts and circumstances of the case, imposition of death penalty awarded by the trial court deserved to be confirmed in respect of all the four convicts. As the death penalty was confirmed, the appeals preferred by the accused faced the inevitable result, that is, dismissal.

Commencement of hearing and delineation of contentions

44. As we had stated earlier, the grievance relating to the lodging of FIR and the manner in which it has been registered has been seriously commented upon and criticized by the learned counsel for the appellants. Mr. Sharma, learned counsel for the appellants – Mukesh and Pawan Kumar Gupta, and Mr. Singh, learned counsel for the appellants – Vinay Sharma and Akshay Kumar Singh, have stressed with all the conviction at their command that when a matter of confirmation of death penalty is assailed before this Court, it is the duty of this Court to see every aspect in detail and not to treat it as an ordinary appeal.

45. As the argument commenced with the said note, we thought it appropriate to grant liberty to the learned counsel for the appellants to challenge the conviction and the imposition of death sentence from all aspects and counts and to dissect the evidence and project the irregularities in arrest and investigation. Learned counsel for the parties argued the matter for considerable length of time and hence, we shall deal with every aspect in detail.

Delayed registration of FIR

46. The attack commences with the registration of FIR and, therefore, we shall delve into the same in detail. PW-57, ASI Kapil Singh, the Duty Officer at P.S. Vasant Vihar, New Delhi, on the intervening night of 16/17.12.2012, received information about the incident. He lodged DD No.6-A, Ex.PW-57/A, and passed on the said DD to PW-74, SI Subhash Chand, who was on emergency duty that night at P.S. Vasant Vihar. Immediately thereafter, PW-57, ASI Kapil Singh, received yet another information qua admission of the prosecutrix and of the informant in Safdarjung Hospital and he lodged DD No.7-A, Ex.PW-57/B, and also passed on the said DD to SI Subhash Chand.

47. PW-74, SI Subhash Chand, then left for Safdarjung Hospital where he met PW-59, Inspector Raj Kumari, and PW-62, SI Mahesh Bhargava. PW-59, Inspector Raj Kumari, handed over to him the MLC and the exhibits concerning the prosecutrix as given to her by the treating doctor and PW-62, SI Mahesh Bhargava, handed over to him the MLC of the informant. PW-74, SI Subhash Chand, then recorded the statement, Ex.PW-1/A, of the informant at 1:30 a.m. on 17.12.2012 and made his endorsement, Ex.PW-74/A, on it and he gave the rukka to PW-65, Ct. Kripal Singh, for being taken to P.S. Vasant Vihar, New Delhi and to get the FIR registered. PW-65, Ct. Kripal Singh, then went to P.S. Vasant Vihar, New Delhi and at 5:40 a.m. and gave the rukka to PW-57, ASI Kapil Singh, the Duty Officer, who, in turn, recorded the FIR, Ex.PW-57/D, made endorsement, Ex.PW-57/E, on the rukka and returned it to PW-65, Ct. Kripal Singh, who then handed it to PW-80, SI Pratibha Sharma, at P.S. Vasant Vihar to whom the investigation was entrusted.

48. SI Subhash Chand, PW-74, deposed that the statement of the informant might have been recorded around 3:45 a.m. although PW-1 deposed that his statement was recorded at 5:30 a.m. It was submitted that the original statement was recorded by HC Ram Chander, PW-73, and the investigation process had already begun around 1:15 a.m. and the subsequent information from the informant which is stated to be the first information was, in fact, crafted after the investigating agency decided on a course of action. It is submitted by the learned counsel for the appellants that the delay in the FIR raises serious doubts.

49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.

50. In the present case, after the occurrence, the prosecutrix and PW-1 were admitted to the hospital at 11:05 p.m.; the victim was admitted in the Gynaecology Ward and PW-1, the informant, in the casualty ward. PW-74, SI Subhash Chand, recorded the statement of PW-1 at 3:45 a.m. After PW-1 and the prosecutrix were taken to the hospital for treatment, the statement of PW-1 was recorded by PW-74, SI Subhash Chand, at 1:37 a.m. and the same was handed over to PW- 65, Constable Kripal Singh, to PW-57, Kapil Singh. In the initial stages, the intention of all concerned must have been to save the victim by giving her proper medical treatment. Even assuming for the sake of argument that there is delay, the same is in consonance with natural human conduct.

51. In this case, there is no delay in the registration of FIR. The sequence of events are natural and in the present case, after the occurrence, the victim and PW-1 were thrown out of the bus at Mahipalpur in semi-naked condition and were rescued by PW-72, Raj Kumar, and PW-70, Ram Pal, both EGIS Infra Management India (P) Limited employees. The victim was seriously injured and was in a critical condition and it has to be treated as a natural conduct that giving medical treatment to her was of prime importance. The admission of PW-1 and the victim in the hospital and the completion of procedure must have taken some time. PW-1 himself was injured and was admitted to the hospital at 11:05 p.m. No delay can be said to have been caused in examining PW-1, the informant.

52. In the context of belated FIR, we may usefully refer to certain authorities in the field. In Ram Jag and others v. State of U.P.1 , it was held as that witnesses cannot be called upon to explain every hour’s delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.”

53. In State of Himachal Pradesh v. Rakesh Kumar2, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.

Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.

Non-mentioning of assailants in the FIR

54. An argument was advanced assailing the FIR to the effect that the FIR does not contain: (i) the names of the assailants either in the MLC, Ex.PW-51/A, or in the complaint, Ex.PW-1/A, (ii) the description of the bus and (iii) the use of iron rods.

55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.

56. In Rattan Singh v. State of H.P.3, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P.4; Sone Lal v. State of U.P.5; Gurnam Kaur v. Bakshish Singh6.

57. In State of Uttar Pradesh v. Naresh and others7, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan8 and Ranjit Singh v. State of M.P.9 58. In Rotash (supra) this Court while dealing with the omission of naming an accused in the FIR opined that:

“14. …. We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that PW 1 did not name him in the first information report, we do not find any reason to disbelieve the statement of Mooli Devi, PW 6. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case. PW 6 received as many as four injuries.”

59. While dealing with a similar issue in Animireddy Venkata Ramana v. Public Prosecutor10, the Court held as under:

“13. … While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well-known principles of caution.””

Thus, apart from other aspects what is required to be scrutinized is that there is no attempt for false implication, application of principle of caution and evaluation of the testimonies of the witnesses as regards their trustworthiness.

60. In view of the aforesaid settled position of law, we are not disposed to accept the contention that omission in the first statement of the informant is fatal to the case. We are disposed to think so, for the omission has to be considered in the backdrop of the entire factual scenario, the materials brought on record and objective weighing of the circumstances. The impact of the omission, as is discernible from the authorities, has to be adjudged in the totality of the circumstances and the veracity of the evidence. The involvement of the accused persons cannot be determined solely on the basis of what has been mentioned in the FIR.

61. In his statement recorded in the early hours of 17.12.2012, PW-1 stated about going to the Select City Walk Mall, Saket alongwith the prosecutrix and boarding the bus. He has also stated about the presence of four persons sitting in the cabin of the bus and two boys sitting behind the cabin and clearly stated about the overt act. He has broadly made reference to the accused persons and also to the overt acts. There are no indications of fabrication in Ex.PW-1/A.

62. The victim and PW-1 were thrown out of the bus and after some time they were admitted to the hospital. Both the injuries on PW-1’s person and the gruesome acts against the victim must have put him in a traumatic condition and it would not have been possible for him to recall and narrate the entire incident to the police at one instance. It cannot be said that merely because the names of the accused persons are not mentioned in the FIR, it raises serious doubts about the prosecution case.

Appreciation of the evidence of PW-1

63. Having dealt with the contention of delay in lodging of the FIR and omission of names in the FIR on the basis of the first statement of PW-1, we may now proceed to appreciate the evidentiary value to be attached to the testimony of PW-1 and the contentions advanced in this regard.

64. As per the evidence of PW-1, he alongwith the prosecutrix, on the fateful day about 3:30 p.m., took an auto from Dwarka, New Delhi to Select City Walk Mall, Saket, New Delhi, where they watched a movie till about 8:30 p.m. and, thereafter, left the Mall. As they could not get an auto for Dwarka, they hired an auto for Munirka intending to take a bus (route No. 764) thereon. About 9:00 p.m. when they reached Munirka bus stand they boarded a white colour chartered bus and JCL was calling for commuters to Dwarka/Palam Mod. While boarding the bus, PW-1 noted that the bus had “Yadav” written on its side; had yellow and green lines/stripes; the entry gate was ahead of its front left tyre; and its front tyre was without a wheel cover. After boarding, he saw that besides the boy (JCL) who was calling for passengers and the driver, two other persons were sitting in the driver’s cabin and two persons were seated inside the bus on either side of the aisle. After the bus left the Munirka bus stand, the lights inside the bus were turned off. Then accused Ram Singh, accused Akshay Thakur and the JCL (all three identified later) came towards PW-1 and verbally and physically assaulted him. When PW-1 resisted them, accused Vinay and accused Pawan were called along with iron rods and all the accused persons started hitting PW-1 with the iron rods. When the prosecutrix attempted to call for help, PW-1 and the prosecutrix were robbed of their possessions.

65. PW-1 was immobilized by accused Vinay and accused Pawan Kumar; while others, viz., accused Ram Singh, Akshay and the JCL took the prosecutrix to the rear side of the bus whereafter PW-1 heard the prosecutrix shout out “chod do, bachao” and her cry. After the above, three accused committed the heinous act of raping the prosecutrix, accused Vinay and Pawan then went to the rear side of the bus while the other three pinned down PW-1. Thereafter, accused Mukesh (originally driving the bus) hit PW-1 with the rod and went to the rear side of the bus. PW-1 also heard one of the accused saying “mar gayee, mar gayee”. After the incident, PW-1 and the prosecutrix were dragged to the front door (because the rear door was jammed) and were pushed out of the moving bus opposite Hotel Delhi 37. After being thrown outside, the bus was turned in such a manner as to crush both of them but PW-1 pulled the prosecutrix and himself out of the reach of the wheels of the bus and saved their lives.

66. The statement of the informant, PW-1, was recorded by PW-74 in the early hours of 17.12.12 and Ex.PW-1/A is the complaint. In his chief examination, PW-74 deposes that he had given the complaint (rukka) to Ct. Kripal Singh and sent him to the police station at 5:10 a.m. which thereby leaves the time of recording the informant’s statement inconclusive. Even if the version of PW-74 was to be relied upon and the informant’s statement had been recorded by 5:10 a.m., DD entry which forms Ex.PW-57/C records that till 5:30 a.m., no punishable offence has been reported to have occurred and information of well-being had been recorded despite the fact that previous DD entries had been recorded on the basis of telephonic conversations between police officers at the hospital, the scene of crime and the control room (both DD entries 6A and 7A had been recorded on the basis of phone conversations). The first supplementary statement was recorded around 7:30 a.m., on 17.12.2012 specifically with respect to the bus in question. In this statement, Ex. PW-80/D1, PW-1 merely gives a generic description of the bus. However, unlike in Ex. PW-1/A, in his supplementary statement, the informant states that the bus was white in colour with stripes of yellow and green, that there were 3 x 2 seats and that if he remembered anything else, he would reveal the same. At this time, the investigating agency had neither seized the bus nor arrested the accused; the statement of the informant is, therefore, silent on specific details about the same. PW’s second supplementary statement, Ex.PW-80/D3, was recorded around noon on 17.12.2012 in which the informant, for the first time since the time of the incident, revealed details about the bus in which the crime allegedly occurred (that there was the word “Yadav” written on the side, that the front wheel cover was missing), and also revealed the names of the accused (Ram Singh, one Thakur, one Mukesh/Ramesh, Vinay and Pawan).

67. The learned amicus curiae, Mr. Hegde, submitted that at every stage, PW-1 made improvement in his statements. It was submitted that when PW-1 was confronted with the omissions Ex.PW-1/A, Ex.PW-8/D1 and Ex. PW-80/D3, he stated that he was unable to talk at the time of recording of his statement due to injury to the tongue. It was submitted that as per Ex.PW-51/A, he sustained only simple injury and it does not state that PW-1 suffered injury to his tongue. It was further contended that the process of improving and embellishing the informant’s statement did not end with recording his statement under Section 161 CrPC. On 19.12.2012, the informant made a statement under Section 164 CrPC before the Metropolitan Magistrate, Saket Courts. This statement is the most comprehensive and contains details which had been discovered by the prosecution by then such as the names of all the accused (including the name of the JCL for the first time) and details from inside the bus (colour of the seats and curtains). It was contended that the improved version of PW-1 renders his evidence unreliable and merely because he is an injured witness, his evidence cannot be accepted.

68. It is urged by Mr. Hegde, learned amicus curiae, that inconsistencies and omissions amounting to contradiction in the testimony of PW-1 make him an untrustworthy and unreliable witness. The inconsistencies pointed out by the learned amicus curiae pertain to the number of assailants, the description of the bus and the identity of the accused. As regards the omission, it is contended by him that the said witness had not mentioned about the alleged use of rod in the FIR. He has further submitted that though he has stated that he had been assaulted by the iron rods as per his subsequent statement, yet the said statement is wholly unacceptable since he had sustained only simple injuries.

69. Mr. Hegde, in his further criticism of the evidence of PW-1, has put forth that the effort of the prosecution had been to highlight the consistencies instead of explaining the inconsistencies. That apart, submits Mr. Hegde, that the witness has revealed the story step by step including the gradual recognition of the identity of the accused in tandem with the process of investigation and in such a situation, his testimony has to be looked with suspicion.

70. Mr. Sharma, learned counsel for the appellants – Mukesh and Pawan Kumar Gupta, and Mr. Singh, learned counsel for the appellants – Vinay Sharma and Akshay Kumar Singh, submit that the omissions in the statement of PW-1 amount to contradictions in material particulars and such contradictions go to the root of the case and, in fact, materially affect the trial or the very case of the prosecution. Therefore, they submit that the testimony of PW-1, who is treated as a star witness, is liable to be discredited. Reliance has been placed on the authorities in State Represented by Inspector of Police v. Saravanan & another11, Arumugam v. State Represented by Inspector of Police, Tamil Nadu 12, Mahendra Pratap Singh v. State of Uttar Pradesh13 and Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra14.

71. The authorities that have been commended by Mr. Sharma need to be appositely understood. In Arumugam (supra), the Court was dealing with the issue of acceptance of the version of interested witnesses. It has referred to Dalip Singh v. State of Punjab15, State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh16, Lehna v. State of Haryana17, Gangadhar Behera and others v. State of Orissa18 and State of Rajasthan v. Kalki and another19 and opined that while normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.

72. In Saravanan (supra), reiterating the principle, the Court held:

“18. …. it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies.”

73. In Mahendra Pratap Singh (supra), the Court referred to the authority in Inder Singh and another v. State (Delhi Administration)20 wherein it has been held thus:

“2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect.”

In the circumstance of the case, the Court, analyzing the evidence, opined:

“62. From the above discussion of the evidence of the eyewitnesses including injured witnesses, their evidence does not at all inspire confidence and their evidence is running in conflict and contradiction with the medical evidence and ballistic expert’s report in regard to the weapon of offence, which was different from the one sealed in the police station. The High Court has, in our opinion, disregarded the rule of judicial prudence in converting the order of acquittal to conviction.”

74. In Sunil Kumar Sambhudayal Gupta (supra), while dealing with the issue of material contradictions, the Court held:

“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affer the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh21.) 32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.” (Vide Mahendra Pratap Singh v. State of U.P. )”

And again:

“35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.” (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)

75. Mr. Luthra, learned senior counsel appearing for the respondent-State, on the other hand, has disputed the stand of the appellants as regards the discrepancies in the statement of PW-1. According to him, the evidence of PW-1 cannot be discarded on grounds which are quite specious. The circumstances in entirety are to be appreciated. He has placed reliance on the appreciation of the trial court and contended that the appreciation and analysis are absolutely impeccable. The relied upon paragraph is as follows:

“The complainant PW1 in his deposition had corroborated his complaint Ex.PW1/A; his statement Ex.PW80/D-1 recorded under section 161 Cr.P.C; his supplementary statement Ex.PW80/D-3 and his statement Ex.PW1/B recorded under section 164 CrPC; qua his visit to Select City Mall, Saket; then moving to Munirka in an auto; boarding the bus Ex.P1; the incident; throwing them out of the moving bus and attempt of accused to overrun the victims by their bus.

It was argued by the Ld. Defence counsel that during his cross examination PW1 was confronted with his statement Ex. PW1/A qua the factum of not disclosing in it the user of iron rods; the description of bus, the name of the assailants either in MLC Ex. PW51/A or in his complaint Ex.PW1/A. However, I do not consider such omissions as fatal as it is a settled law that FIR is not an encyclopedia of facts. The victim is not precluded from explaining the facts in his subsequent statements. It is not expected of a victim to disclose all the finer aspects of the incident in the FIR or in the brief history given to the doctor; as doctor(s) are more concerned with treatment of the victims. More so the victim who suffers from an incident, obviously, is in a state of shock and it is only when we moves in his comfort zone, he starts recollecting the events one by one and thus to stop the victim from elaborating the facts to describe the finer details, if left out earlier, would be too much.

Thus if PW1 had failed to give the description of the bus or of iron rods to the doctor in his MLC Ex. PW51/A or in his complaint Ex. PW1/A it shall not have any fatal effect on the prosecution case. What is fatal is the material omissions, if any.”

76. The evidence of PW-1 is assailed contending that he is not a reliable witness. During the cross-examination, his evidence was assailed contending that Ex.PW-1/A is replete with contradictions and inconsistencies. Taking us through the evidence, Mr. Singh has submitted that in his first statement, Ex.PW-1/A, there were lot of omissions and contradictions and the improvements in his subsequent statements render the evidence wholly untrustworthy. The appellants, in an attempt to assail the credibility of the testimony of PW-1, inter alia, raised the contentions: (i) Non-disclosure of the use of iron rod and (ii) the names of the assailants in the MLC in Ex. PW-51/A or in Ex.PW-1/A. However, the trial court held these assertions as non-fatal to PW-1’s testimony:

“… It is not expected of a victim to disclose all the finer aspects of the incident in the FIR or in the brief history given to the doctor; as doctor(s) are more concerned with treatment of the victims. More so the victim who suffers from an incident, obviously, is in a state of shock and it is only when we move in his comfort zone, he starts recollecting the events one by one and thus to stop the victim from elaborating the facts to describe the finer details, if left out earlier, would be too much.”

77. The contentions assailing the evidence of PW-1 does not merit acceptance, for at the time when he was first examined his friend (the prosecutrix) was critically injured and he was in a shocked mental condition. The evidence of a witness is not to be disbelieved simply because he is a partisan witness or related to the prosecution. It is to be weighed whether he was present or not and whether he is telling the truth or not.

78. The informant, PW-1, in his deposition, has clearly spoken about the occurrence and also corroborated his complaint, Ex.PW-1/A. The evidence of PW-1 is unimpeachable in character and the roving cross-examination has not eroded his credibility. It is necessary to mention here that PW-1 was admitted in the casualty ward of Safdarjung Hospital. As he was injured, he was medically examined by Dr. Sachin Bajaj, PW-51, and as per the evidence, Ext.PW-51/A, the following injuries were found on his body:

(a) 1cm X1 cm size clean lacertated wound over the vertex of scalp (head injury);
(b) 0.5 X 1 cm size clean lacerated wound over left upper leg;
(c) 1X 0.2 cm size abrasion over right knee.

79. The injuries found on the person of PW-1 and the fact that PW-1 was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence along with the prosecutrix. The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh23, it was held as under:

“31. We may merely refer to Abdul Sayeed v. State of M.P.24 where this Court held as under:

“28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ‘Convincing evidence is required to discredit an injured witness.’ [Vide Ramlagan Singh v. State of Bihar25, Malkhan Singh v. State of U.P.26, Machhi Singh v. State of Punjab27, Appabhai v. State of Gujarat 28, Bonkya v. State of Maharashtra29, Bhag Singh v. State of Punjab30, Mohar v. State of U.P.31, Dinesh Kumar v. State of Rajasthan32, Vishnu v. State of Rajasthan33, Annareddy Sambasiva Reddy v. State of A.P.34 and Balraje v. State of Maharashtra35.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab36 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

‘28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka37 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand38 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana39. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.’

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”

To the similar effect is the judgment of this Court in Balraje (supra).”

80. As is manifest from the evidence, S.I. Pratibha Sharma, PW-80, recorded the First Supplementary Statement under Section 161 CrPC of the informant, PW-1, Awninder Pratap Singh about 7:30 a.m. on 17.12.2012. Thereafter, PW-1, the informant, took PW-80, S.I. Pratibha Sharma, to the spot from where he and the prosecutrix had boarded the bus.

81. Apart from the injuries sustained, the presence of PW-1 is further confirmed by the DNA analysis of:

1. the bloodstained mulberry leaves and grass that were collected from the spot in Mahipalpur where they were thrown off the bus; (Ex.74/C )

2. the blood stains on Vinay’s jacket (Ex.68/2) (as per Seizure Memo Ex. 68/3), Pawan’s sweater (Ex. P.68/6) (as per Ex. PW68/F ) and Akshay’s jeans (Ex P.68/6) tying them to the incident; (from the trial court judgment); and

3. the unburnt cloth pieces belonging to PW-1 that were recovered alongwith the ashes of the prosecutrix’s clothing (Ex. PW74/M).

82. The trial court judgment was fortified by the decisions of this Court in Pudhu Raja and another v. State Represented by Inspector of Police40, Jaswant Singh v.

State of Haryana41 and Akhtar and others v. State of Uttaranchal42 on the law of material omissions and contradictions. Concurringly, the High Court too observed that the defence had failed to demonstrate from the informant’s testimony such discrepancies, omissions and improvements that would have caused the High Court to reject such testimony after testing it on the anvil of the law laid down by this Court:

“325. …Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. …”

83. In this context, we may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony43:

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …”

84. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.44, it has been ruled that:

“11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.”

85. In Ugar Ahir v. State of Bihar45, a three-Judge Bench held:

“7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.”

86. In Krishna Mochi v. State of Bihar46, the Court ruled that:

“32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that this Court in recent times has conscientiously taken notice of these facts from time to time”.

87. In Inder Singh (supra), Krishna Iyer, J. laid down that:

“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes.”

88. In the case of State of U.P. v. Anil Singh47, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

89. In Mohan Singh and another v. State of M.P.48, this Court has held:

“11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.”

90. Keeping the aforesaid aspects in view, we shall now proceed to test the submission of the learned counsel for the appellants and the learned amicus curiae on the issue whether the testimony of PW-1 deserves acceptance being reliable or not. It is no doubt true that in the earlier statement of PW-1, that is, Ex.PW-1/A, there are certain omissions; but the main thing to be seen is whether the omissions go to the root of the matter or pertain to insignificant aspects. The evidence of PW-1 is not to be disbelieved simply because there were certain omissions. The trial Court as well as the High Court found his evidence credible and trustworthy and we find no reason to take a different view.

91. The case of the prosecution is attacked contending that PW-1 is a planted witness and that he keeps on improving his version. It is submitted that PW-1 is not reliable as had he been present at the time of occurrence, he would have endeavoured to save the victim and the nature of injuries as mentioned in Ex. PW-51/A on the person of PW-1 raises serious doubt about his presence at the time of occurrence.

92. The prosecutrix and PW-1 were surrounded and attacked by at least six accused persons. As narrated by PW-1, he was pinned down by two of the assailants while the others committed rape on the prosecutrix on the rear side of the bus. The accused persons were in a group and were also armed with iron rods. PW-1 was held by them. It would not have been possible for PW-1 to resist the number of accused persons and save the prosecutrix. The evidence of PW-1 cannot be doubted on the ground that he had not interfered with the occurrence. The improvements made in the supplementary statement need not necessarily render PW-1’s evidence untrustworthy more so when PW-1 has no reason to falsely implicate the accused.

93. Learned counsel for the State has highlighted that the version of PW-1 is absolutely consistent and the trial court as well as the High Court has correctly relied upon his testimony. He has drawn our attention to the version of PW-1 in the FIR, the statement recorded under Section 164 CrPC and his testimony before the trial court. We have given anxious consideration and perused the FIR, supplementary statements recorded under Section 164 CrPC and appreciated the evidence in court and we find that there is no justification or warrant to treat the version of the witness as inconsistent. The consistency is writ large and the witness, as we perceive, is credible.

94. Mr. Luthra, learned senior counsel, further contested the argument advanced on behalf of the appellants as regards the discrepancies so far as PW-1 is concerned. As regards the items stolen, it is recorded in the FIR that the accused persons stole the informant’s Samsung Galaxy Mobile phone bearing 7827917720 and 9540034561 and his wallet containing Rs.1000, ICICI debit card, Citi Bank Credit Card, ID Card, one silver ring, one gold ring and took off all his clothes, i.e., khakhi coloured blazer, grey sweater, black jeans, black Hush Puppies shoes and they also stole the prosecutrix’s mobile phone with number 9818358144. His statement recorded under Section 164 CrPC states that the accused snatched the Samsung Galaxy S-Duos Mobile, one more mobile phone of Samsung, one purse with Rs. 1000, one Citibank credit card, ICICI Debit Card, Company I-Card, Delhi Metro Card and also snatched black jeans, one silver ring, one gold ring, Hush Puppies shoes. They also snatched the prosecutrix’s Nokia mobile phone and grey colour purse and both the wrist watches. Before the trial court, he deposed that they snatched both the rings, shoes, purse containing cards and cash, socks and belt; they took off all his clothes and left him in an underwear; the accused had also taken off all the prosecutrix’s clothes and snatched all her belongings including grey purse containing Axis bank card. PW-1 also identified Hush Puppies shoes, Ex. P-2, Sonata watch, Ex. P-3, metro card, Ex. P-5, Samsung Galaxy Duos, Ex. P-6, and currency notes, Ex. P-7. As regards the weapon of assault, in the FIR and in the Section 164 statement, “rod” was recorded as weapon of assault and in his testimony before the trial court, PW-1 deposed that the weapon of assault was “iron rods”. So far as throwing from the bus is concerned, it is recorded in the FIR that the other accused persons told the driver to drive the bus at a fast speed and then tried to throw the informant from the back door of the bus, however, the back door of the bus did not open. Then they threw both the informant and the prosecutrix from the moving bus near NH 8 Mahipalpur on the side of the road. His statement recorded under Section 164 CrPC states that the bus driver was driving the bus at a fast speed on being told by the other accused and he heard them saying that the girl had died and to throw her off the bus. They then took the informant and the prosecutrix to the rear door of the bus but could not open the door and, therefore, dragged them to the front door of the bus and threw them out. The bus driver turned the bus in such a manner after throwing them, that if the informant had not pulled the prosecutrix, then the bus would have run over her. PW-1 has deposed before the trial court that he heard one of the accused saying “mar gayee, mar gayee”; the accused were exhorting that the informant and the prosecutrix should not be left alive; the accused persons pulled the informant near the rear door and put the prosecutrix on him. The rear door was closed, so they dragged both the informant and the prosecutrix to the front door; they were thrown off opposite Hotel Delhi 37; after they were thrown, the accused persons turned the bus and tried to crush them under the wheels. As regards the naming/description of the accused, the FIR recorded that the accused were aged between 25-30 years; one of them had a flat nose and was the youngest; one of them wore a red banian and they were wearing pant and shirt; and the accused were named as Ram Singh, Thakur, Mukesh, Vinay and Pawan. In the statement, it was recorded that he saw a dark coloured man who was being called “Mukesh, Mukesh”; he over-heard them calling each other as Ram Singh, Thakur; and the other three were addressing each other Pawan and Vinay and taking the name of JCL. In his testimony, it is recorded that he identified A-2, Mukesh, as Driver, A-1, Ram Singh, and A-3, Akshay, as persons sitting in the driver’s cabin and identified A-4, Vinay, and A-5, Pawan, as persons sitting in the bus.

95. As regards the minor contradictions/omissions, the trial court has placed reliance upon Pudhu Raja (supra) and Jaswant Singh (supra) and treated the version of PW-1 as reliable. The testimony of PW-1 has been placed reliance upon by both the Courts and on an anxious and careful scrutiny of the same, we do not perceive any reason to differ with the said view.

96. As we find, the trial court has come to the conclusion that the incident has been aptly described by PW-1, the injured. The injuries on his person do show that he was present in the bus at the time of the incident. His presence is further confirmed by the DNA analysis. Suffice it to say for the present, the contradictions in the statement, Ex.PW-1/A, are not material enough to destroy the substratum of the prosecution case. From the studied analysis of the evidence of PW-1, it is the only inevitable conclusion because the appreciation is founded on yardstick of consideration of totality of evidence and its intrinsic value on proper assessment. Recovery of the bus and the CCTV footage

97. The endeavour of the prosecution was to first check the route and get a clue of the bus. For the aforesaid purpose, the CCTV footage becomes quite relevant. The story starts from the Select City Walk Mall, Saket and hence, we have to start from there. As per the case of the prosecution, the informant and the prosecutrix had gone to Select City Walk Mall, Saket to see a film. The CCTV footage produced by PW-25, Rajender Singh Bisht, in a CD, Ex.PW-25/C-1 and PW-25/C-2, and the photographs, Ex.PW-25/B-1 to Ex.PW- 25/B-7, are evident of the fact that the informant and the prosecutrix were present at Saket till 8:57 p.m. The certificate under S ection 65B of the Evidence Act with respect to the said footage is proved by PW-26, Shri Sandeep Singh, vide Ex.PW-26/A. The informant as well as the prosecutrix gave brief description of the entire incident in their MLCs which led the investigating team to the Hotel near Delhi Airport where the prosecutrix and the informant were dumped after the incident. PW-67, Pramod Kumar Jha, the owner of the Hotel at Delhi Airport, was examined by the investigating officers regarding the present incident. He handed over the pen drive containing the CCTV footage, Ex.P-67/1, and the CD, Ex.P-67/2 to the I.O. which were seized vide seizure memo Ex.PW-67/A. The CCTV footage and the photographs were identified by PW-67, Pramod Jha, PW-74. SI Subhash Chand, and Gautam Roy, PW-76, from CFSL during their examination in Court. The CCTV footage twice showed a white coloured bus having yellow and green stripes at 9:34 p.m. and again at 9:53 p.m. The bus exactly matched the description of the offending bus given by the informant. It had the word “Yadav” written on one of its sides and its front tyre on the left side did not have a wheel cap. PW-78, the S.H.O., Inspector Anil Sharma, has further deposed that the said CCTV footage seized vide seizure memo Ex.PW-67/A was sent to the CFSL through SI Sushil Sawariya, PW-54, on 02.01.2013, and this part of the testimony of PW-78 is corroborated by the testimony of PW-54, SI Sushil Sawaria, and PW-77, the MHC(M). Thereafter, on 03.01.2013, the report of the CFSL was received. In fact, the trial court had assured itself of the correct identification of the bus by playing the said CCTV footage shown in the pen drive, Ex.PW-67/1, and the CD, Ex.PW-67/2, during the cross-examination of PW-67, Pramod Jha.

98. Learned counsel Mr. Singh has asserted that bus, Ex. P-1, has been falsely implicated in the present case as is evidenced from the recovery of the CCTV footage. In an attempt to discredit the CCTV footage, he pointed out that only the CCTV recording alleged to be of this bus was recorded and not of all other white buses that had ‘Yadav’ written on them. The learned counsel for the defence subsequently maintained that the CCTV footage cannot be relied upon as the same has been tampered with by the investigating officers.

99. PW-76, Gautam Roy, HOD, Computer Cell, Forensic Division, has testified that on 02.01.2013, he had received two sealed parcels sealed with the seal of PS and the seals tallied with the specimen seals provided. He marked the blue coloured pen drive found in parcel No.1 as Ex.1 and the Moser Baer CD found in the second parcel as Ex.2. He further testified that both the exhibits were played by him in the computer and the bus was seen twice, at 9:34 p.m. and 9:54 p.m. He had photographed all these three by freezing the pen drive and the CD and these photographs were compared by him with the photographs taken by the photographer, PW-79, P.K. Gottam, which he had summoned. The witness testified that he had prepared the three comparison charts in this regard as Ex.PW-76/B, PW-76/C and PW-76/D, and his detailed report as Ex.PW-76/E. The footage taken in a CD and pen drive was sealed in PW-67’s presence and as the recording was automatic data being fed on regular basis into the hard disk, the question of tampering with the same could not arise. PW-79, P.K. Gottam, from CFSL, CBI, has stated in his examination that he took photographs of the bus bearing No.DL-1P-C-0149 parked at Thyagraj Stadium, INA, New Delhi from different angles on 17.12.2012 and 18.12.2012 and handed over the same to PW-76. The said photographs were marked as B1 in Ex.PW-76/B; as C1 and C2 in Ex.PW-76/C; and as D1 in Ex.PW-76/D. He has deposed as to the genuineness of the photographs by deposing that the software used for developing the photographs was tamper proof.

100. Once it is proved before the court through the testimony of the experts that the photographs and the CCTV footage are not tampered with, there is no reason or justification to perceive the same with the lens of doubt. The opinion of the CFSL expert contained in the CFSL report marked as Ex.PW-76/E authenticates that there was no tampering or editing in both the exhibits, Ex.P-67/1 and Ex.P- 67/2, and that a bus having identical patterns as the one parked at Thyagraj Stadium is seen in the CCTV footage, which includes the word “Yadav” written on one side, “back side dent (left)” and absence of wheel cover on the front left side. The contents of the report is also admitted to be true by its author, PW-76, Gautam Roy. Quite apart from that, it is perceptible that the High Court, in order to satisfy itself, had got the CCTV footage played during the hearing and found the same to be creditworthy and acceptable.

101. As the narrative proceeds, the next step was to find out the bus. The identity of the bus in the CCTV footage was known and the said knowledge could propel the prosecution to move for recovery. We may start from the beginning. The bus, Ex. P-1, bearing registration No. DL-1P-C-0149, is the vehicle alleged to have been involved in the incident. PW-74, SI Subhash Chand, on 17.12.2012, along with PW-1, the informant, and PW-80, WSI Pratibha Singh, went to Munirka bus stand from where the victims had boarded the alleged bus, Ex. P-1, and then to Mahipalpur to the spot where both the victims were thrown off the bus on 16.12.2012. After the collection of exhibits from the spot, PW-74 and PW-80 went to the hotels opposite the spot having CCTV cameras installed and amongst those was Hotel Delhi 37. At the said hotel, the informant/PW-1 identified the bus they had boarded in the CCTV footage of the road and the relevant footage of the recording was taken in a pen drive and CD and was handed over to the Investigating Officer as Ex. PW-67/A. Later in the day, secret information was received by PW-80 that the alleged bus was parked at Sector 3, R.K. Puram. PW-74 accompanied PW-80 and PW-65, Ct Kripal Singh, to Ravidass Camp where a bus matching the description given by PW-1 was parked near the Gurudwara. It was white in colour with ‘Yadav’ written on the side. When the police approached the bus, A-1, Ram Singh, got down from it and started to run; he was later apprehended in a chase by PW-74 and PW-65. From A-1, the fitness certificate, PUC and other documents regarding the registration of the vehicle DL-1PC-0149 were seized as Ex. PW-74/I, PW-74/J and PW-74/K. The entry door of the bus was ahead of the front wheel and the wheel cap was missing from the front tyre. After recovery of the burnt clothes at the behest of A1, he was sent to the police station with PW-65. PW-42, Ct. Suresh Kumar, was called to the spot and he drove the bus to Thyagraj Stadium around 5:45 p.m. on the same day. An inspection of the bus was conducted inside the stadium and the CFSL team lifted Ex. PW-74/P. Thereafter, PW-32, SI Vishal Chaudhary, and PW-33, SI Vikas Rana, were called from police station Kotla Mubarakpur to guard the bus.

102. Mr. Singh has raised the following issues with respect to the identification and recovery of the alleged bus:

1. CCTV footage was not properly examined to check all possible buses plying on the said route;

2. The bus was taken to Thyagraj Stadium instead of the Police Station to avoid the media and to better facilitate the planting of evidence; and

3. PW-81, Dinesh Yadav, owner of the Bus was in judicial custody for 6 months before his examination in the Court and he was so detained in custody to bring pressure upon him.

103. Mr. Singh has made bald allegation that the bus, Ex P-1, was falsely implicated and that all the DNA evidence recovered therefrom was actually planted. He contends that the bus, Ex. P-1, was sent to Thyagraj Stadium instead of the concerned Police Station, PS Vasant Vihar, with the deliberate intention of avoiding the media attention so that the evidence could be planted easily. This argument is in furtherance of his false implication theory. He has, however, provided no further specific assertions to cast a doubt in our mind that the police has planted the evidence in the bus.

104. Mr. Luthra, in his turn, relying on the decision of the Delhi High Court in Manjit Singh v. State49, has placed statistics before us pointing to the paucity of physical space in police stations across the city. In Manjit Singh (supra), the High Court had ordered the Delhi Police to furnish data regarding case properties with the Police. The High Court noted that there was an accumulation of “2,86,741 case properties including 25,547 vehicles, out of which as many as 2,479 properties are lying in public places outside the police stations”. Given the state of affairs, the submission put forth by Mr. Luthra is acceptable. There is dearth of space inside the police stations in Delhi and the use of Thyagraj Stadium as parking lot in the present case does not necessarily mean that there was any mala fide intention on the part of the investigating agency without any specific assertion to advance the said bald allegation.

105. It may also be noted that on 17.12.2012, PW-42, Ct. Suresh Kumar, drove the bus from Ravidass Camp to Thyagraj Stadium around 5:45 p.m. along with PW-74 and PW-80. About 6:15 p.m., PW-32, SI Vishal Chaudhary, along with Ct. Amit, both of PS Kotla Mubarakpur, were sent to Thyagraj Stadium where on the instructions of PW-80, SI Pratibha, PW-32, guarded the bus till 8:00 a.m. the next day. On 18.12.2012, he handed over the charge of guarding the bus to PW-33, SI Vikas Rana, PS Kotla Mubarakpur, and he guarded the bus till 8:30 p.m., until after the CFSL team left. Thus, the criticism as regards the parking of the bus at Thyagraj Stadium and not at the Police Station pales into insignificance. Reliability of the testimony of PW-81 (the owner of the bus)

106. Having dealt with the recovery of the bus, it is necessary to dwell upon the contention put forth by the learned counsel for the appellants which pertains to the acceptability and reliability of the testimony of PW-81, Dinesh Yadav. The principal contention in this regard is that PW-81, Dinesh Yadav, the owner of the bus, was in judicial custody and, therefore, his version in the court is under tremendous pressure as he was desirous of getting a bail order to enjoy his liberty. Highlighting this aspect, it is urged by Mr. Sharma and Mr. Singh, learned counsel for the appellants, that the testimony of the said witness deserves to be totally discarded.

107. PW-81, Dinesh Yadav, is a transporter and owns 8 to 10 buses including Ex. P-1. He runs the buses under the name ‘Yadav Travels’. He was examined by the prosecution to prove that A-1, A-2 and A-3 are connected with the bus, Ex. P-1. In his examination, PW-81 admitted that the word ‘Yadav’ is written across Ex. P-1 and that it is white in colour with yellow stripes. PW-81 stated that A-1, Ram Singh (since deceased), was the driver of the said bus in December 2012, A-3, Akshay Kumar Singh, was his helper and the bus was usually parked by A-1, Ram Singh, in R.K. Puram, near his residence. The bus was attached to Birla Vidya Niketan School, Pushp Vihar, New Delhi to ferry students in the morning and also to a Company, M/s Net Ambit, Sector 132, Noida, to take its employees from Delhi to Noida. On 17.12.2012, the bus went from Delhi to Sector 132, Noida to take the staff of M/s Net Ambit to their office and PW-81 was informed by A-1, Ram Singh, or A-2, Mukesh, that the bus was checked at the DND toll plaza on their route to Noida.

108. Learned counsel Mr. Singh has asserted that PW-81 was kept in judicial custody to obtain a statement favourable to the prosecution in the present case. In this aspect, it is noted that PW-81 also stated that he was kept in judicial custody. The arrest was, however, not made in the present case; it was in connection with another case in relation to providing incorrect address to the Transport Authority. He was lodged in jail in case FIR No. 02/2013 of PS Civil Lines under Sections 420, 468, 471 IPC. PW-81 had provided his friend’s address as his own at the time of registration and was arrested on a complaint made by the Transport Authority. He was named in the charge-sheet in the present case and was cited as a witness at serial No. 36 but was dropped by the prosecution on 28.05.2013. Later on, his examination was sought by way of an application under Section 311 CrPC. The application was allowed by the trial court order dated 03.07.2013 on the ground that he was the owner of the bus and his examination was necessary to prove as to whom he had handed over the custody of the bus on the night of the incident, i.e., 16.12.2012. It is limpid from the deposition of PW-81 that he was in judicial custody for a separate offence and, therefore, it is difficult to accede to the argument advanced by Mr. Singh that he was under pressure to support the version of the prosecution.

109. Apart from the above, the prosecution, in order to place A-1 as the driver of the bus, Ex. P-1, has examined PW-16, Rajeev Jakhmola. PW-16, Manager (Admn) of Birla Vidya Niketan School, Pushp Vihar, handled their transport. In his examination, he stated that PW-81, Dinesh Yadav, had provided the school with 7 buses on contract basis including Ex. P-1 and that A-1, Ram Singh, was its driver. He also submitted a copy of Ram Singh’s Driving Licence to the Police along with the copy of the agreement of the school with the owner of the bus, copy of the RC, copy of the fitness certificate, certificate of third party technical inspection, pollution certificate, two copies of certificate–cum-policy schedule (Insurance), copy of certificate of training undergone by accused Ram Singh, copy of permit and list of the transporters, collectively as Ex. PW-16/A.

110. Thus, according to the prosecution, from the evidence of PW-16, Rajeev Jakhmola, and PW-81, Dinesh Yadav, it stands proved that the bus in question was routinely driven by Ram Singh. When an argument was raised before the High Court over the veracity of PW-81’s testimony, it recorded as under: “270. We are constrained to say that there is no substance in the aforesaid contention of Mr. Sharma for the reason that PW-81 Dinesh Yadav, the owner of the bus bearing registration No.DL1PC-0149, in which the offence was committed, has categorically stated in his cross-examination that bus Ex.P-1 was being used for ferrying the students in the morning and thereafter as a chartered bus for taking the officials of M/s. Net Ambit from Delhi to Noida. He further stated in cross-examination that on 17.12.2012, the bus took the staff of M/s. Net Ambit from Delhi to Sector 132, Noida, UP. Quite apparently, therefore, accused Ram Singh as disclosed by him had thrown the SIM card nearabout the bus stand of Sector 37, where according to PW-44 Mohd. Zeeshan, it was found at the noon hour. Since it is not in dispute that accused Ram Singh was the driver of the bus and this fact stands fully established by the evidence on record, Noida was possibly found by him to be the safest destination to dispose of the SIM card.”

111. The aforesaid analysis commends our approval because we, having analysed the said aspect on our own, have arrived at the same conclusion. There is no trace of doubt that the testimony of the said witness withstands close scrutiny and there is no reason to treat it with any kind of disapproval. That apart, the evidence of PW-16 corroborates the testimony of the owner of the bus. Personal search and statements of disclosure leading to recovery

112. Learned counsel for the appellants have seriously questioned the arrest of the accused persons and the recoveries made pursuant to the said arrest. It is the stand of the prosecution that pursuant to the arrest of all the accused A-1 to A-5, there were disclosure statements recorded under Section 27 of the Evidence Act which led to recoveries of incriminating articles such as objects belonging to the victims as also objects which have been linked orally or scientifically (such as through DNA profiling) to the prosecutrix and PW-1. These material objects recovered are used to link the convicts with the crime and corroborate the version of the eye witness PW-1 and the dying declaration of the deceased victim.

113. First, we shall refer to the arrest of Ram Singh and the recoveries made at his instance. As already stated, on 17.12.2012, PW-80, SI Pratibha Sharma, had spotted accused Ram Singh sitting in the offending bus, Ex. P1, which was parked at Ravidass Camp, R.K. Puram, New Delhi. On seeing the police, Ram Singh got down from the bus and started running. He was chased and instantly arrested at 4:15 p.m. vide memo Ex.PW-74/D and subsequently, his personal search was conducted vide memo Ex.PW-74/E and his disclosure Ex.PW-74/F was recorded. Notably, Ram Singh has led to several important discoveries and seizures from inside the bus.

114. Accused Mukesh was apprehended on 18.12.2012 from village Karoli, Rajasthan, by a team headed by PW-58, SI Arvind. He produced accused Mukesh before PW-80, SI Pratibha Sharma, the Investigating Officer, at Safdarjung Hospital in muffled face alongwith a mobile, Samsung Galaxy Duos, Ex.P-6, seized by her vide memo Ex.PW-58/A. The accused was arrested at 6:30 p.m. on 18-12-2012 by her vide memo Ex.PW-58/B and his personal search was conducted vide memo Ex.PW-58/C. The accused pointed the Munirka bus stand vide memo Ex.PW-68/K and the dumping spot vide memo Ex.PW-68/L. This Samsung Galaxy phone was identified to be that of PW-1, the informant.

115. On 23.12.2012, accused Mukesh led the police to Anupam Apartment, garage No. 2, Saidulajab, Saket, New Delhi, and got recovered a green colour T-shirt, Ex.P-48/1, on which the word “play boy” was printed; a grey colour pant, Ex.P-48/2, and a jacket, Ex.P-48/3, of bluish grey colour, all seized vide memo Ex.PW-48/B. The Investigating Officer also prepared the site plan, Ex.PW-80/I, of the place of recovery. On 24.12.2012, accused Mukesh also got prepared a route chart Ex.PW-80/H.

116. On 18.12.2012, accused Ram Singh led the Investigating Officer to Ravidass Camp and pointed towards his associates, namely, accused Vinay and accused Pawan. Accused Pawan was apprehended and arrested about 1:15 p.m. vide memo Ex.PW-60/A; his disclosure, Ex.PW-60/G, was recorded and his personal search was conducted vide memo Ex.PW-60/C. Accused Pawan Gupta pointed out the Munirka bus stand and a pointing out memo Ex.PW-68/I was prepared. He also pointed the dumping spot and memo Ex.PW-68/J was prepared in this regard.

117. On 19.12.2012, from accused Pawan Gupta, PW-80, got effected the following recoveries:

(a)Wrist watch Ex.P3 seized vide memo Ex.PW-68/G;
(b) Two currency notes of denomination of Rs.500/- Ex.P-7 colly were seized vide memo Ex.PW-68/G;
(c) Clothes worn by the accused at the time of the incident seized vide memo Ex.PW-68/F; and
(d)Black coloured sweater having grey stripes with label Abercrombie and Fitch Ex.P-68/6 and a pair of coca-cola colour pants Ex.P-68/7 colly; underwear having elastic labeled Redzone Ex.P-68/8 and a pair of sports shoes with Columbus inscribed on them as Ex.P-68/9.

It may be stated here that Sonata wrist watch, Ex. P3, was identified as that of PW-1.

118. On 18.12.2012, about 1:30 p.m., accused Vinay Sharma was arrested in front of Ravidass Mandir, Main Road, Sector-3, R.K. Puram, New Delhi vide arrest memo Ex.PW-60/B; and his disclosure Ex.PW-60/H was also recorded. He pointed out the Munirka bus stand from where the victims were picked up vide memo Ex.PW-68/I and he also pointed out Mahipalpur Flyover, the place where the victims were thrown out of the moving bus vide pointing out memo Ex.PW-68/J. On 19.12.2012, he led to the following recoveries:

(a) Hush Puppies shoes Ex.P-2 seized vide memo Ex.PW-68/C; and
(b)Nokia mobile phone Ex.P-68/5 of the prosecutrix seized vide memo Ex.PW-68/D.

Hush Puppies shoes, Ex. P2, were identified to be that of PW-1, the informant. Nokia Mobile Phone, Ex. P-68/5, was identified to be that of the prosecutrix.

119. On 19.12.2012, pursuant to his supplementary disclosure statement Ex.PW-68/A, the following recoveries were made by the accused vide seizure memo Ex.PW-68/B:

(a)One blue coloured jeans having monogram of Expert Ex.P-68/1;
(b)A black coloured sports jacket with white stripes and a monogram of moments as Ex.P-68/3 and a pair of rubber slippers as Ex.P-68/4.

120. During the personal search of Vinay Sharma, the following article was recovered:
(a) Nokia mobile phone with IMEI No. 35413805830821418 belonging to the accused, which was returned to him on superdari vide order dated 4-4-2013

121. On 21.12.2012, about 9:15 p.m., accused Akshay Kumar Singh @ Thakur was arrested from village Karmalahang, P.S. Tandwa, District Aurangabad, Bihar vide memo Ex.PW-53/A and on 21.12.2012 and 22.12.2012, his disclosures, Ex.PW-53/I and Ex.PW-53/D, respectively were recorded. On 22.12.2012, he got effected the following recoveries from the residence of his brother, Abhay, from the rented house of one Tara Chand, village Naharpur, Gurgaon, viz;

i. Blood stained jeans (Ex.P-53/3) worn by the accused at the time of the incident, recovered from a black bag (Ex.P-53/2)
ii. A blue black coloured Nokia mobile phone (Ex.P-53/1)
iii. Blood-stained red coloured banian (vest).
122. On 27.12.2012, he got recovered the informant’s Metro card Ex.P-5 and the informant’s silver ring, Ex.P-4, from House No. 1943, 3rd Floor, Gali No.3, Rajiv Nagar, Sector-14, Gurgaon, Haryana.

123. Learned counsel for the appellants and learned amicus, Mr. Hegde, have vehemently criticized the arrest and recoveries that have been made or effected. It is urged by Mr. Sharma that the appellant Mukesh was not in custody when the recovery took place and additionally, he was not produced before the nearest Magistrate within twenty-four hours from the time of detention. Mr. Luthra, in his turn, would submit that the said accused was formally arrested at Delhi and, thereafter, the recovery on the basis of his disclosure took place. Mr. Singh, learned counsel, contended that the disclosure statements which have been recorded by the police do tantamount to confessional statements relating to the involvement and commission of the crime. This argument requires to be squarely dealt with. For appreciating the said submission, it is necessary to appreciate the inter-se relationship between the accused persons and thereafter dwell upon the process of the arrest and judge the acceptability on the anvil of the precedents in the field.

124. As the evidence brought on record would show, the accused persons were known to each other. Mukesh, A-2, and deceased Ram Singh, A-1, were brothers. According to the testimony of Dinesh Yadav, PW-81, Ram Singh was the driver of the bus and A-3, Akshay, was working as a helper in the bus. The same is manifest from the Attendance Register, Ex. P-81/2, seized vide Ex. PW-80/K and the Driving License of A-1, Ram Singh, Ex. P-74/4, seized vide Ex. PW-74/1. From the testimony of PW-13, Brijesh Gupta, and PW-14, Jiwant Shah, it is evident that Ram Singh and Mukesh were brothers. From the evidence of Champa Devi, DW-5, mother of Vinay, A-4, it is quite clear that Vinay, Pawan, A-5, and Ram Singh, A-1, were known to each other. Mukesh, in his statement under Section 313 CrPC, has admitted that he and Ram Singh are brothers. A-3, Akshay, in his statement under Section 313 CrPC, has admitted that he was working with Ram Singh in the bus, Ex. P-1, as a helper. He has also admitted that he knew Ram Singh and there had been altercation on 16.12.2012 with A-1, Ram Singh. A-5, Pawan, in his statement under Section 313 CrPC, admitted that he was a witness to the quarrel between A-4, Vinay, and A-1, Ram Singh. From the aforesaid evidence, it is luminous that all the accused persons were closely associated with each other.

125. Having dealt with this facet, we shall now proceed to meet the criticism advanced by the learned counsel for the appellants with regard to the recoveries and the disclosure statements that led to the discoveries.

126. Assailing the acceptability of the arrest and the disclosure statements leading to the recoveries, Mr. Sharma and Mr. Singh have contended that the materials brought on record cannot be taken aid of for any purpose since the items seized have been planted at the places of recovery and a contrived version has been projected in court. That apart, it is submitted that the recoveries are gravely doubtful inasmuch as the prosecution has not seized all the articles from one accused on one occasion but on various dates. We have cleared the maze as regards the arrest and copiously noted the manner of arrest of the accused persons and their leading to recoveries. Be it noted, recovery is a part of investigation and permissible under Section 27 of the Evidence Act. However, Mr. Sharma has raised a contention that this Court should take note of the fact that Section 27 of the Evidence Act has become a powerful weapon in the hands of the prosecution to rope in any citizen. The said submission, as we perceive, is quite broad and specious. It is open to the defence to find fault with recovery and the manner in which it is done and its relevance. It is not permissible to advance an argument that Section 27 of the Evidence Act is constantly abused by the prosecution or that it uses the said provision as a lethal weapon against anyone it likes. In the instant case, we have noted how the recoveries have been made and how they have been proved by the unimpeachable testimony of the prosecution witnesses.

127. Mr. Luthra, learned senior counsel appearing for the State, would submit that in the present case, the material objects recovered serve as links to corroborate and they have been used as the law permits. In this regard, he has filed a chart which we think it appropriate to reproduce for better appreciation of the said aspect. It is as follows:

128. Having reproduced the chart, now we shall refer to certain authorities on how a statement of disclosure is to be appreciated. In Pulukuri Kottaya v. Emperor50, it has been observed:

“[I]t is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

129. In Delhi Administration v. Bal Krishan and others51, the Court, analyzing the concept, use and evidentiary value of recovered articles, expressed thus:

“7. … Section 27 of the Evidence Act permits proof of so much of the information which is given by persons accused of an offence when in the custody of a police officer as relates distinctly to the fact thereby discovered, irrespective of whether such information amounts to a confession or not. Under Sections 25 and 26 of the Evidence Act, no confession made to a police officer whether in custody or not can be proved as against the accused. But Section 27 is by way of a proviso to these sections and a statement, even by way of confession, which distinctly relates to the fact discovered is admissible as evidence against the accused in the circumstances stated in Section 27….”

130. In Mohd. Inayatullah v. State of Maharashtra52, dealing with the scope and object of Section 27 of the Evidence Act, the Court held:

“12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.

13. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown53; Rex v. Ganee54). Now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh55).

131. Analysing the earlier decisions, in Anter Singh v. State of Rajasthan56, the Court summed up the various requirements of Section 27 as follows:

“(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused’s own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.”

132. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru57, the Court referred to the initial prevalence of divergent views and approaches and the same being put to rest in Pulukuri Kottaya case (supra) which has been described as locus classicus, relying on the said authority, observed:

“120. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council’s decision has not been questioned in any of the decisions of the highest court either in the pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.”

133. Explaining the said facet, the Court proceeded to state thus:

“121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case:

“clearly the extent of the information admissible must depend on the exact nature of the fact discovered”

and the information must distinctly relate to that fact.

Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said:

“Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.””

134. Expatriating the idea further, the Court proceeded to lay down:

“121. …. We have emphasised the word “normally” because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown’s counsel was emphatically rejected with the following words:

“If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.”

Then, Their Lordships proceeded to give a lucid exposition of the expression “fact discovered” in the following passage, which is quoted time and again by this Court:

“In Their Lordships’ view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”
(emphasis supplied)

122. The approach of the Privy Council in the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus:

“… About 14 days ago, I, Kottaya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kottaya.”

The Privy Council held that:

“14. The whole of that statement except the passage ‘I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come’ is inadmissible.”
(emphasis supplied)

There is another important observation at para 11 which needs to be noticed. The Privy Council explained the probative force of the information made admissible under Section 27 in the following words:

“Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.””

135. In the instant case, the recoveries made when the accused persons were in custody have been established with certainty. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. Mr. Luthra, learned senior counsel for the State, has not placed reliance on any kind of confessional statement made by the accused persons. He has only taken us through the statement to show how the recoveries have taken place and how they are connected or linked with the further investigation which matches the investigation as is reflected from the DNA profiling and other scientific evidence. The High Court, while analyzing the facet of Section 27 of the Evidence Act, upheld the argument of the prosecution relying on State, Govt. of NCT of Delhi v. Sunil and another58, Sunil Clifford Daniel v. State of Punjab59, Ashok Kumar Chaudhary and others v. State of Bihar60, and Pramod Kumar v. State (Government of NCT of Delhi)61.

136. On a studied scrutiny of the arrest memo, statements recorded under Section 27 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the custody of the accused persons cannot be discarded. The recovery is founded on the statements of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the accused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons.

Test Identification Parade and the identification in Court

137. Now, we shall deal with the various facets of test identification parade. Upon application moved by PW-80, SI Pratibha Sharma, Investigating Officer, PW-17, Sandeep Garg, Metropolitan Magistrate, conducted the Test Identification Parade (TIP) for the accused Ram Singh (since deceased), who refused to participate in the TIP proceedings on the ground that he was shown to the witnesses in the police station. Since accused Ram Singh died during the trial, neither the trial court nor the High Court delved into this aspect regarding the refusal of accused Ram Singh to participate in the TIP proceedings.

138. On 19.12.2012, PW-17, Sandeep Garg, Metropolitan Magistrate initiated TIP proceedings for accused Vinay and Pawan, but they refused to participate in the TIP. In the TIP proceedings, the Metropolitan Magistrate has recorded the following:-

“…………..accused Pawan Kumar @ Kalu and accused Vinay, both refused to participate in the TIP proceedings and stated that they had committed a horrible crime. I recorded their refusal and gave certificate.”

139. Vinay and Pawan refused to participate in the TIP proceedings without giving any reason whatsoever. TIP of accused Mukesh was conducted on 20.12.2012 at Tihar Jail by PW-17, Sandeep Garg, in which PW-1, Awninder Pratap, identified accused Mukesh. In his testimony, the informant, PW-1, has identified his signature at point ‘A’ in TIP proceedings with respect to the accused Mukesh, Ex.PW-1/E. The High Court has pointed out that there was no serious challenge to the TIP proceedings of accused Mukesh in the cross-examination of the Metropolitan Magistrate, PW-17, or even the Investigating Officer, PW-80. TIP of accused Akshay was conducted on 26.12.2012 at Central Jail No.4, Tihar Jail, where the informant, PW-1, identified accused Akshay. PW-1 identified his signature at point ‘A’ in the TIP proceedings of accused Akshay marked as Ex.PW-1/F. The accused Mukesh and Akshay were already identified in the TIP proceedings by the informant. Test Identification Proceedings corroborate and lend assurance to the dock identification of accused Mukesh and Akshay by the informant, PW-1.

140. Criticizing the TIP, it is urged by the learned counsel for the appellants and Mr. Hegde, learned amicus curiae, that refusal to participate may be considered as circumstance but it cannot by itself lead to an inference of guilt. It is also argued that there is material on record to show that the informant had the opportunity to see the accused persons after they were arrested. It is necessary to state here that TIP does not constitute substantive evidence. It has been held in Matru alias Girish Chandra v. State of Uttar Pradesh62 that identification test is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation of an offence is proceeding on the right lines.

141. In Santokh Singh v. Izhar Hussain and another63, it has been observed that the identification can only be used as corroborative of the statement in court.

142. In Malkhansingh v. State of M.P.64, it has been held thus:

“7. … The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. …”

And again:

“16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. …”

143. In this context, reference to a passage from Visveswaran v. State represented by S.D.M.65 would be apt. It is as follows:

“11. … The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. …”

144. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)66, the Court, after referring to Munshi Singh Gautam v. State of M.P.67, Harbhajan Singh v. State of J & K68 and Malkhansingh (supra), came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.

145. In the case at hand, the informant, apart from identifying the accused who had made themselves available in the TIP, has also identified all of them in Court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance. Therefore, we hold that TIP is not dented.

Admissibility and acceptability of the dying declaration of the prosecutrix:

146. At this stage, it would be immensely seemly to appreciate the acceptability and reliability of the dying declaration made by the prosecutrix.

147. The circumstances in this case, as is noticeable, makes the prosecution bring in three dying declarations. Mr. Sharma and Mr. Singh have been extremely critical about the manner in which they have been recorded and have highlighted the irreconcilable facets. In quintessence, their submission is that the three dying declarations have been contrived and deserve to be kept out of consideration. Mr. Hegde, learned friend of the Court, contends that the dying declarations do not inspire confidence, for variations in them relate to the number of assailants, the description of the bus, the identity of the accused and the overt acts committed by them. It is contended that the three dying declarations made by the prosecutrix vary from each other and the said variations clearly reveal the inconsistencies and the improvements in the dying declarations mirror the improvements that are brought about in PW-1’s statements and the progress of the investigation.

148. The sudden appearance of the name ‘Vipin’ in the third dying declaration after the recording of Akshay’s disclosure statement where he mentions a person named Vipin is alleged to be indicative of the fact that the dying declaration is, in fact, doubtful. It is contended that the prosecution has failed to explain ‘Vipin’, his connection with the crime and his elimination from the case. The vapourisation of Vipin has to be considered against the backdrop of repeated assertions by the prosecution that every word of the three dying declarations is correct, consciously made and worthy of implicit belief. Learned senior counsel has also submitted that apart from the inconsistencies, the numerous procedural irregularities in the recording of the declarations make it suspicious. In this regard, lack of an independent assessment of the mental fitness of the prosecutrix, while recording the second dying declaration, has been highlighted. The multiple choice questions in the third and final dying declaration are being nomenclatured as leading questions and it is asserted that they have not been satisfactorily explained by the prosecution. Further, the evidence by the doctors does not cure the impropriety of lack of an independent assessment by the SDM while recording her second dying declaration.

149. It is submitted that if at all any dying declaration is to be relied on, it should only be the first dying declaration made on 16.12.2012 and recorded by PW-49, Dr. Rashmi Ahuja, and the said dying declaration only states that there were 4 to 5 persons on the bus. It is further stated that the prosecutrix was raped by a minimum of 2 men and that she does not remember intercourse after that. It is, therefore, unsafe to proceed on the assumption that all six persons on the bus committed rape upon the prosecutrix within a span of 21 minutes.

150. Keeping the aforesaid criticism in view, we proceed to analyse the acceptability and reliability of the dying declarations. Firstly, when the prosecutrix was brought to the Gynae Casualty about 11:15 p.m., she gave a brief account of the incident to PW-49, Dr. Rashmi Ahuja, in her MLC on 16.12.2012. PW-49, Dr. Rashmi Ahuja, has deposed that on the night of 16.12.2012 about 11:15 p.m., the prosecutrix was brought to the casualty by a PCR constable and that she gave a brief history of the incident. PW-49, Dr. Rashmi Ahuja, recorded the same in her writing in the Casualty/GRR paper, i.e., Ex. PW-49/A.

151. In the instant case, as per the history told by the prosecutrix to Dr. Rashmi Ahuja, it was a case of gang rape in a moving bus by 4-5 persons when the prosecutrix was returning after watching a film with her friend. She was slapped on her face, kicked on her abdomen and bitten over lips, cheek, breast and vulval region. She remembers intercourse two times and rectal penetration also. She was also forced to suck their penis but she refused. All this continued for half an hour and then she was thrown off from the moving bus with her friend. We have already stated about the injuries which were noted by Dr. Rashmi Ahuja in Ex.PW-49/A.

152. The relevant statement of the prosecutrix in the Medico Legal Expert, Ex.PW49/A, reads as under: “… she went to watch movie with her boyfriend, Awnidra: she left the movie at 8:45 PM and was waiting for bus at Munirka Bus stop where a bus going to Bahadurgarh, stopped and both climbed the bus at around 9 PM. At around 9:05-9:10 PM, around 4-5 people in the bus started misbehaving with the girl, took her to the rear side of bus while her boyfriend was taken to the front of bus, where both were beaten up badly. Her clothes were torn over and she was beaten up, slapped repeatedly over her face, bitten over lips, cheeks, breast and Mons veneris. She was also kicked over her abdomen again and again. She was raped by at least minimum of two men, she does not remember intercourse after that. She had rectal penetration. They also forced their penis into her mouth and forced her to suck which she refused and was beaten up instead. This continued for half hour and she was then thrown away from the moving bus with her boyfriend. She was taken up by PCR Van and brought to GRR. She has history of intercourse with her boyfriend about two months back. (willfully)”

153. PW-49, Dr. Rashmi Ahuja, had noticed number of injuries on the person of the prosecutrix and the same were noted in Ex. PW- 49/B as under:

154. PW-50, Dr. Raj Kumar Chejara, and the surgery team operated the prosecutrix in the intervening night of 16/17.12.2012 and the operative findings have also been earlier noted.

155. PW-50, Dr. Raj Kumar Chejara, has proved the OT notes as Ex.PW-50/A bearing the signature of Dr. Gaurav and his own note in this regard is Ex.PW-50/B. As per his opinion, the condition of the small and large bowels were extremely bad for any definitive repair. After performing the operation, the patient was shifted to ICU. The first surgery was damage control surgery and it was expected that unhealthy bowel would be there.

156. The second surgery was performed on 19.12.2012 by him along with his operating team consisting of Prof. Sunil Kumar, Dr. Pintu and Dr. Siddharth. From the gynaecological side, Dr. Aruna Batra and Dr. Rekha Bharti were present along with anaesthetic team. The findings were as under:

“Abdominal findings:
1. Rectum was longtitudinally torn on anterior aspect in continuation with perineal tear. This tear was continuing upward involving sigmoid colon, descending colon which was splayed open. The margin were edematous. There were multiple longitudinal tear in the mucosa of recto sigmoid area. Transverse colon was also torn and gangrenous. Hepatic flexture, ascending colon & caecum were gangrenous with multiple perforations at many places. Terminal ileum approximately one and a half feet loosely hanging in the abdominal cavity, it was avulsed from its mesentry and was non-viable. Rest of the small bowel was non-existent with only patches of mucosa at places and borders of the mesentry was contused. The contused mesentry borders initially appeared (during 1st surgery) as contused small bowel.

2. Jejunostomy stoma was gangrenous for approximately 2cm.
3. Stomach and duodenum was distended but healthy.”

157. Dying Declaration was recorded by SDM, Smt. Usha Chaturvedi, PW-27, on 21.12.2012. The medical record of the prosecutrix shows that the prosecutrix was not found fit for recording of her statement until 21st December, 2012 about 6:00 p.m. when the prosecutrix was declared fit for recording statement by PW-52, Dr. P.K Verma. PW-52 had examined the prosecutrix and found her to be fit, conscious, oriented and meaningfully communicative for making statement vide his endorsement at point ‘A’ on application, Ex.PW-27/DB. The second dying declaration, Ex.PW-27/A, was recorded by PW-27, Smt. Usha Chaturvedi, SDM. This dying declaration is an elaborate one where the prosecutrix has described the incident in detail including the act of insertion of rod in her private parts. She also stated that the accused were addressing each other with names like,“Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”.

158. The relevant portion of the dying declaration Ex. PW-27/A recorded by PW-27, SDM, is extracted below:

“Q.1. What is your name, your father’s name and your residential address?
Ans. My name is prosecutrix and my father name is Sh. ………. and we reside at ……………..

Q.2 Do you study or work some where?
Ans. I have completed my BPT (Bachelor of Physiotherapy).

Q.3 On which date and place, the incident occurred?
Ans. This happened on 16.12.12 in the midst of at about 9:00-9:15 p.m.

Q.4 Where had you gone on that day and how did you reach the place of occurrence?
Ans. I had gone to watch the movie i.e. “Life of Pi” 6.40-8.30 p.m. to Select City Mall, Saket on the day of incident along with my friend Sh. Awninder S/o. Sh. Bhanu Pratap, R/o House No.14, Bair Sarai, New Delhi-16. We took an Auto Rikshaw from there and reached Munirka.

Q.5 How did you go further?
Ans. After that, I saw white colored bus whose conductor had been calling the passengers of Palam Mor and Dwarka. I had to go to Dwarka, Sec-1. That is why both of us, I and my friend boarded the bus and gave twenty rupees (Rs. 20/-) at the fare of Rs.10/- per passenger.

Q.6. Were there passengers inside the bus?
Ans. When I entered the bus there were 6-7 passengers. Assuming them to be passenger, we sat outside the cabin of the bus.

Q.7 Provide the detailed information about the bus?
Ans. The bus was of the white colour and the seats were of the red colour. Yellow coloured curtains were fixed. The glasses of the bus were black and were closed. I could see outside from inside but nothing could be seen inside from outside. In one row of the bus there were two seats and in the other row, there were three seats.

Q,8 After entering the bus, did you suspect anything seeing the people occupying the seats there?
Ans. I had suspected (something amiss) but the conductor had already taken the (fare) money and the bus had started. So, I kept sitting there.

Q.9 What did happen afterwards? Please inform in detail.
Ans. After five minutes when the bus climbed the bridge of Malai Mandir, the Conductor closed the door of the bus and switched off the light inside the bus. And they came to my friend and started hitting and beating him. Three four (3-4) people caught hold of him and the remaining people dragged me to the rear portion of the bus and tore off my clothes and took turns to rape me. They hit me on my stomach with an iron rod and bit me on my whole body. Prior to that, they snatched from me and my friend all our articles i.e. mobile phone, purse, credit card, debit card, watches, etc. All six of the persons committed oral, vaginal, anal rape on me. These people inserted the iron rod into my body through my vagina and rectum and also pulled it out. They extracted the internal private part of my body through inserting hand and iron rod into my private parts and caused hurt to me. Six persons kept committing rape on me for approximately one hour by turns. The drivers kept changing in the moving bus so that they can rape me. …….

PW-27 Usha Chaturvedi, SDM, when examined and recorded the dying declaration of prosecutrix come off in her dying declaration she state as under:”

159. The clinical notes, Ex.PW-50/C, and notes prepared by the gynaecology team were proved as Ex.PW-50/D. The gynaecological notes were prepared on actual examination of the patient on the operation table during the surgery. PW-50 further operated the prosecutrix on 23.12.2012 for peritoneal lavage and placement of drain under general anaesthesia and his notes are Ex.PW-50/E. 160. Statement of the prosecutrix was recorded by PW-30, Pawan Kumar, Metropolitan Magistrate, vide Ex.PW-30/D. On 24.12.2012, an application for recording the statement of the prosecutrix under Section 164 CrPC was moved by the Investigating Officer, which is exhibited as Ex.PW-30/A and, thereafter, the learned Metropolitan Magistrate fixed the date for recording of the statement as 25.12.2012 at 9:00 a.m. at Safdarjung Hospital vide his endorsement at Point “P” to “P-1” on Ex. PW-30/A. On 25.12.2012, PW-28, Dr. Rajesh Rastogi, at 12:40 p.m., declared the prosecutrix fit for recording statement through gestures. She was found conscious, oriented, co-operative, comfortable and meaningfully communicative to make a statement through non-verbal gestures.

161. On 25.12.2012, the prosecutrix’s statement, Ex.PW-30/D, under Section 164 CrPC was recorded by PW-30, Pawan Kumar, Metropolitan Magistrate, in the form of questions by putting her multiple choice questions. This statement was made through gestures and writings. The statement recorded by PW-30 which ultimately became another dying declaration reads as under:

“25/12/2012 at 01.00 p.m. at ICU Safdarjung Hospital. Statement of Prosecutrix (Name and Particulars withheld) As opined by the attending doctors the Prosecutrix is not in position to speak but she is otherwise conscious and oriented and responding by way of gestures, so I am putting question in such a manner so as to enable to narrate the incident by way of gesture or writing.

Ques. : When and at what time the incident happened?
1. 20/12/2012 2. 13/12/2012 3. 16/12/2012
Ans : 16/12/12 (by writing after taking time)
Ques.: Have you seen the staff of the bus?
1. Yes 2. No
Ans.: 1 yes by gesture (nodding her head)
Ques.: Have you seen those people at that time?
1. Yes 2. No
Ans.: 1
Ques.: By which article they have given beatings?
(answer by writing)
Ans.: By iron rod which was long.
Ques.: What happened of your belongings means
mobile etc.?
1. Fell down 2. Snatched by them 3. Don‘t know
Ans.: 2
Ques.: Besides rape where and how did you get the injuries? (tried to answer by writing)
Ans.: Head, face, back, whole body including genital parts (by gesture indication)
Ques.: By which names they were addressing to each other? (tried answer by writing)
Ans.: 1. Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.
Ques.: What did they do after rape?
1. Left at home 2. Threw at unknown place 3. Got down at some other bus stop.
Ans: 2”

As per Ex. PW-30/D, this answer was written by the prosecutrix in her own hand.

162. On 26.12.2012, the condition of the prosecutrix was examined and it was decided to shift her abroad for further treatment. Notes in this regard are Ex.PW-50/F bearing the signatures of Dr. Raj Kumar, Dr. Sunil Kumar, Dr. Aruna Batra and Dr. P.K. Verma.

163. The prosecutrix died at Mount Elizabeth Hospital, Singapore on 29.12.2012 at 4:45 a.m. The cause of death is stated as sepsis with multi organ failure following multiple injuries, as is evincible from Ex.PW-34/A.

164. Learned counsel for the appellants have objected to the admissibility of the dying declarations available on record mainly on the ground that they are not voluntary but tutored. It is argued that the second and third dying declarations are nothing but a product of tutoring and are non-voluntary and the only statement recorded is the MLC, Ex.PW49/A and Ex. PW49/B, prepared immediately after the incident, wherein the prosecutrix has neither named any of the accused nor mentioned the factum of iron rod being used by the accused persons and the act of the accused in committing unnatural offence. It is further alleged that the prosecutrix could not have given such a lengthy dying declaration running upto four pages on 21.12.2012 as she was on oxygen support. PW-27 has deposed that the prosecutrix was on oxygen support at the time of recording the second dying declaration. It is further contended that it must be taken into account that ever since the prosecutrix was admitted to the hospital, she was continuously on morphine and, thus, she could not have gained consciousness. The second dying declaration has been further assailed on the ground of being recorded at the behest of SDM, PW-27, instead of a Magistrate and that too after a delay of nearly four days. The third dying declaration, Ex.PW-30/D, recorded by the Metropolitan Magistrate, PW-30, on 25.12.2012 through gestures and writings is controverted by putting forth the allegations of false medical fitness certificate and absence of videography.

165. Another argument advanced by the lerned counsel raising suspicion on the genuineness of the second and third dying declarations is that the dates on which the dying declarations were recorded have been manipulated. The counsel asseverated that the second dying declaration, i.e., Ex.PW-27/A, purported to have been recorded by PW-27 on 21.12.2012 was, in fact, recorded on the previous day as evidenced from the overwriting of the date in Ex. PW-27/B. The counsel also pointed to the overwriting of the date in the third dying declaration, i.e., Ex. PW-30/C, recorded by PW-30. It is propounded by them that the date was modified thrice in order to fit in the fake chain of circumstances contrived by the prosecution.

166. Resisting the said submissions, Mr. Luthra, learned senior counsel for the State, astutely contended that all the three dying declarations recorded at the instance of the prosecutrix are consistent and well corroborated by medical evidence as well as by PW-1’s testimony, and other scientific evidence. The prosecutrix’s first statement, Ex. PW-49/A, given to PW-49 was only a brief account of the heinous act committed on her and in that state of shock, nothing more could be legitimately expected of her. Only after receiving medical attention, she was declared fit to record statement and on 21.12.2012, PW-52 had examined the prosecutrix and found her to be fit, conscious, oriented and meaningfully communicative for making statement vide his endorsement at point ‘A’ on application Ex.PW-27/DB. PW-27, Smt. Usha Chaturvedi, SDM, recorded her statement in which the prosecutrix described the incident in detail and also named the accused persons. In fact, PW-27 has also deposed before the court that the prosecutrix was in a fit mental condition to give the statement on 21.12.2012. Moreover, the prosecutrix’s third statement, Ex.PW-30/D, which was recorded in question-answer form through gestures and writings by PW-30, Pawan Kumar, Metropolitan Magistrate, is consistent with the earlier two dying declarations and that adds to the credibility and conclusively establishes reliability.

167. In the first dying declaration made to PW-49, Dr. Rashmi Ahuja, recorded in Ex.PW-49/A and in MLC, Ex.PW-49/B, due to her medical condition, though the prosecutrix broadly described the incident of gang rape committed on her and injuries caused to her and PW-1, yet she failed to vividly describe the incident of inserting iron rod, etc. As soon as the prosecutrix was brought to the hospital, she gave a brief description of the incident to PW-49, Dr. Rashmi Ahuja. As it appears from the record, the prosecutrix had lost sufficient quantity of blood due to which she was drowsy and could only give a brief account of the incident and injuries caused to her and the informant. Even though the prosecutrix has given only a brief account of the occurrence, yet she was responding to verbal command and hence, the same is natural and trustworthy and furthermore, Ex. PW-49/A is also consistent with the other dying declarations.

168. By virtue of the second dying declaration recorded as Ex.PW-27/A on 21.12.2012 about 9:10 p.m. by the SDM, Smt. Usha Chaturvedi, the exact details of the incident and the injuries caused to the prosecutrix have come on record. The learned SDM has satisfied herself that the prosecutrix was fit to make the statement. While recording the dying declaration of the prosecutrix, Ex.PW-27/A, Dr. P.K Verma, PW-52, had found her conscious, oriented and meaningfully communicative vide his endorsement at point ‘A’ on the application, Ex.PW-27/DB. It was only thereafter that PW-27, Smt. Usha Chaturvedi, SDM, recorded the statement, Ex.PW-27/A, of the prosecutrix. The prosecutrix not only signed it but even wrote the date and time in this statement. She narrated the entire incident specifying the role of each accused; gang rape/unnatural sex committed upon her; the injuries caused in her vagina and rectum by use of iron rod and by inserting of hands by the accused; description of the bus, robbery and lastly throwing of both the victims out of the moving bus, Ex.P1, in naked condition at the footfall of Mahipalpur flyover.

169. As it appears from the record, PW-27, after recording the statement of the prosecutrix, as contained in Ex.PW-27/A, forwarded the statement alongwith the forwarding letter, Ex. PW-27/B, to the ACP, Vasant Vihar undersigned by herself. Ex. PW-27/A, which contains the statement of the prosecutrix, is duly signed by the prosecutrix on all the pages and also signed by PW-27, SDM. PW-27 has certified in Ex.PW-27/A that the signature of the prosecutrix was obtained in her presence at 9:00 p.m. on 21.12.2012 after which she has signed the same. No overwriting of date is evidenced in Ex.PW-27/A. However, so far as the forwarding letter, i.e., Ex.PW-27/B, is concerned, the date mentioned by PW-27 after putting her signature is overwritten as 21.12.2012. When cross-examined on this aspect, PW-27 has stated that she had herself overwritten the date and, thus, overruled the possibility of any falsification of the document at the behest of the investigating team. PW-27 explained the overwriting of date as a ‘human error’ and the same has been rightly construed by the trial court and accepted by the High Court as a complete explanation. The relevant statement of PW-27 is as under:

“It is correct that in Ex.PW27/B there is an over writing on the date under my signature. VOL: It was a human error. The statement was recorded on 21-12-2012, so for all purpose this date will be 21-12-2012.”

170. Agian on 25.12.2012 on an application, Ex.PW-28/A, though Dr. P.K Verma, PW-52, opined that the prosecutrix was unable to speak as she was having endotracheal tube, i.e, in larynx and trachea and was on ventilator, yet PW-28, Dr. Rajesh Rastogi, declared her to be conscious, oriented and meaningfully communicative through non-verbal gestures and fit to give statement. PW-30, Pawan Kumar, Metropolitan Magistrate, also satisfied himself qua fitness and ability of the prosecutrix to give rational answers by gestures to his multiple choice questions. The opinion of the doctors obtained prior to recording of the statements, Ex.PW-27/A and Ex.PW-30/D-1, as also the observations made by the SDM and Metropolitan Magistrate qua her fitness cannot be disregarded completely on the basis of surmises of the learned counsel for the appellants.

171. Adverting to the third dying declaration, Ex.PW-30/C, we are able to appreciate that PW-30, after recording the statement of the prosecutrix, has signed the document. The date mentioned therein is overwritten as 25.12.2012. However, in the forwarding note to the investigating officer which is contained in continuation of the prosecutrix’s statement annexed as Ex. PW-30/C, the signature and date mentioned by PW-30 is very clear and no overwriting is visible. Be it noted, PW-30 was never cross-examined on the aspect of overwriting of the date in Ex.PW-30/C. The learned counsel has, for the first time, raised this issue before us merely to substantiate his suspicion of manipulation on the part of the prosecution. We hold that pointing at insignificant errors is inconsequential so far as cogent evidence produced by the prosecution stand on a terra firma. It is beyond human prudence to discard the detailed and well signed statements of the prosecutrix, in spite of clear date put by herself, merely because PW-30 erred at one point of time in correctly recording the date. Moreover, the testimony of PW-52, Dr. P.K. Verma, who was incharge of the ICU and in whose supervision the entire treatment and recording of statements by the prosecutrix was done, cannot be discarded on account of meagre technical errors.

172. Another line of argument developed by the learned counsel is that there has been failure on the part of the prosecutrix to disclose the names of any of the accused persons in the brief history given by her to the doctor in MLC, Ex.PW-49/A, and so, her dying declarations, Ex.PW-27/A and Ex.PW-30/D-1, where she had given the names of the accused persons, are tutored versions and cannot form the basis of conviction. This argument, however, is completely unjustified in the light of the medical condition of the prosecutrix when she was brought to the hospital. As per the records, the prosecutrix was brought to the hospital in a state of sub-consciousness and sheer trauma. In her MLC, Ex.PW-49/B, her condition is described as drowsy responding only to verbal commands and hence, not completely alert due to the shock and excessive loss of blood. The prosecutrix was declared fit to make statements, Ex.PW-27/A and Ex.PW-30/D-1, only when she was operated thrice. Her dying declarations, Ex.PW-27/A and Ex.PW-30/D-1, also stand corroborated by the medical evidence as well as the testimony of PW-1.

173. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while admitting a dying declaration, must be vigilant towards the need for ‘Compos Mentis Certificate’ from a doctor as well as the absence of any kind of tutoring. In Laxman v. State of Maharashtra69, the law relating to dying declaration was succinctly put in the following words:

“3. … A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

174. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court, in Atbir v. Government of NCT of Delhi70, taking into consideration the earlier judgment of this Court in Paniben v. State of Gujarat71 and another judgment of this Court in Panneerselvam v. State of Tamil Nadu72, has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:

“22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”

175. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the contents of the dying declarations in the light of the various surrounding facts and circumstances. In Shudhakar v. State of Madhya Pradesh73, this Court, after referring to the landmark decisions in Laxman (supra) and Chirra Shivraj v. State of Andhra Pradesh74, has dealt with the issues arising out of multiple dying declarations and has gone to the extent of declining the first dying declaration and accepting the subsequent dying declarations. The Court found that the first dying declaration was not voluntary and not made by free will of the deceased; and the second and third dying declarations were voluntary and duly corroborated by other prosecution witnesses and medical evidence. In the said case, the accused was married to the deceased whom he set ablaze by pouring kerosene in the matrimonial house itself. The smoke arising from the house attracted the neighbours who rushed the victim to the hospital where she recorded three statements before dying. In her first statement given to the Naib Tehsildar, she did not implicate her husband, but in the second and third statements, which were also recorded on the same day, she clearly stated that the accused poured kerosene on her and set her on fire. The accused was convicted under Section 302 IPC. In this regard, the Court made the following observations:

“21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters.”

176. Recently, a two-Judge Bench of this Court in Sandeep and another v. State of Haryana75 was faced with a similar situation where the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After referring to the two dying declarations, this Court examined whether there was any inconsistency between the two dying declarations. After examining the contents of the two dying declarations, this Court held that there was no inconsistency between the two dying declarations and non-mention of certain features in the dying declaration recorded by the Judicial Magistrate does not make both the dying declarations incompatible.

177. In this regard, it will be useful to reproduce a passage from Babulal and others v. State of M.P.76

wherein the value of dying declaration in evidence has been stated:

“7. … A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his Maker with a lie in his mouth” (nemo moriturus praesumitur mentire). Mathew Arnold said, “truth sits on the lips of a dying man”. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. …”

178. Dealing with oral dying declaration, a two-Judge Bench in Prakash and another v. State of Madhya Pradesh77 has ruled thus:

“11. … In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody’s case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. …”

179. In Vijay Pal v. State (Government of NCT of Delhi)78, after referring to the Constitution Bench decision in Laxman (supra) and the two-Judge Bench decisions in Babulal (supra) and Prakash (supra), the Court held:

“22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.

23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat79 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of M.P. v. Dal Singh80, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.”

180. In the case at hand, the first statement of the prosecutrix was recorded by PW-49, Dr. Rashmi Ahuja, on the night of 16.12.2012 and the second statement was recorded by the SDM on 21.12.2012 after a delay of five days. In the present facts and circumstances of the case, we do not find that there is any inconsistency in the dying declarations to raise suspicion as to the genuinity and voluntariness of the subsequent dying declarations. The prosecutrix had been under constant medical attention and was reported to be fit for giving a statement on 21.12.2012 only. On the night of the incident itself, she underwent first surgery conducted by PW-50, Dr. Raj Kumar Chejara, Surgical Specialist, Department of Surgery, Safdarjung Hospital, New Delhi and his surgery team comprising of himself, Dr. Gaurav and Dr. Piyush, and the prosecutrix was shifted to ICU. The second surgery was performed on her on 19.12.2012. Ex.PW-50/C, OT notes dated 19.12.2012 show that the prosecutrix was put on ventilation after the surgery. Considering the facts and circumstances and the law laid down above, a mere omission on the part of the prosecutrix to state the entire factual details of the incident in her very first statement does not make her subsequent statements unworthy, especially when her statements are duly corroborated by other prosecution witnesses including the medical evidence.

181. The contention that no dying declaration could have been recorded on 21.12.2012 as the prosecutrix was administered morphine does not hold good as PW-52, Dr. P.K. Verma, has deposed that morphine was injected at 6:00 p.m. on 20.12.2012 and its effect would have lasted for only 3-4 hours. PW-52 has denied that the prosecutrix was unconscious and had difficulty in breathing at the time when she made the statement to PW-27, SDM, on 21.12.2012.

182. Yet another objection raised by the the learned counsel for the appellants concerning the medical fitness of the prosecutrix, while recording the third dying declaration is that when PW-30, Metropolitan Magistrate, Pawan Kumar, recorded the dying declaration of the prosecutrix, she was not in a position to speak as per the endorsement made by PW-52, Dr. P.K. Verma, and, therefore, no weight could be attached to the dying declaration recorded by PW-30. In this regard, reliance is placed upon Ex.PW-30/B1. This contention was raised before the High Court as well as the trial court and while considering the contention, we find that:

“On 25.12.2012, application [Ex.PW-30/B] moved by P.W.-80 S.I. Pratibha Sharma between 9:30 a.m. to 10:00 a.m. seeking opinion regarding fitness of prosecutrix to get statement recorded. Pw-52 Dr. P.K. Verma examined the prosecutrix and opined at 12:35 p.m. that “patient has endotracheal tube in place (i.e. in her larynx and trachea) and was on ventilator and hence she could not speak”.

183. PW-28, Dr. Rajesh Rastogi, opined vide Ex.PW-28/A at 12:40 p.m. on 25.12.2012 that the prosecutrix was conscious, cooperative, meaningfully communicative through non-verbal gestures, oriented and fit to give statement. PW-28, Dr. Rajesh Rastogi, examined the prosecutrix around 12 noon and finished it by 12:00-12:30 p.m. On 25.12.2012 at 12:35 p.m., Dr. P.K. Verma had endorsed on the document Exhibit PW-30/B that the victim could not speak as she had endotracheal tube in place (that is, in larynx and trachea) and was on ventilator. However, subsequently, at 12:40 p.m. on the same day, PW-28, Dr. Rajesh Rastogi, had endorsed on the said document, Ex.PW-30/B, to the effect that the victim was conscious, cooperative, meaningfully communicative, oriented, responding through non-verbal gestures and fit to give statement. The learned counsel contended that it is inconceivable that the prosecutrix who was on life support system at 12:35 p.m. could be opined to be conscious, cooperative and fit to give statement within five minutes, i.e., at 12:40 p.m.

184. The said contention, as we find, has been appropriately dealt with by both courts below by adverting to the depositions of PW-52, Dr. P.K. Verma, and PW-28, Dr. Rajesh Rastogi. Regarding the fit mental condition of the prosecutrix and as to the different endorsements made by PW-52, Dr. P.K. Verma, and PW-28, Rajesh Rastogi, PW-52 was questioned suggesting that the prosecutrix was not in a fit mental condition to give the dying declaration. PW-52 has clearly deposed in his cross-examination that he had never endorsed that the victim was unfit to give statement at 12:35 p.m., rather he had said that she was on ventilator and hence, could not speak. The aforesaid explanation of PW-52, Dr. P.K. Verma, who was incharge of the ICU in Safdarjung Hospital at the relevant time makes it limpid that even though the prosecutrix was not able to speak, yet she was conscious and oriented and was in a position to make the statement by gestures.

185. The contention that the third dying declaration made through gestures lacks credibility and that the same ought to have been videographed, in our view, is totally sans substance. The dying declaration recorded on the basis of nods and gestures is not only admissible but also possesses evidentiary value, the extent of which shall depend upon who recorded the statement. In the instant case, the dying declaration was recorded by PW-30, Mr. Pawan Kumar, Metropolitan Magistrate. A perusal of the questions and the simple answers by way of multiple choice put to the prosecutrix is manifest of the fact that those questions and answers were absolutely simple, effective and indispensable. The dying declaration recorded by PW-30, Ex.PW-30/D, though by nods and gestures and writings, inspires confidence and has been rightly relied upon by the trial Court as well as the High Court. Videography of the dying declaration is only a measure of caution and in case it is not taken care of, the effect of it would not be fatal for the case and does not, in any circumstance, compel the court to completely discard that particular dying declaration.

186. In Meesala Ramakrishan v. State of A.P.81, this Court, while admitting the dying declaration made through gestures, made the following observations: “20. … that dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked — whether they were simple or complicated — and how effective or understandable the nods and gestures were.”

187. In B. Shashikala v. State of A.P.82, it was observed that:

“13. The evidence of PW 8 is absolutely clear and unambiguous as regards the manner in which he recorded the statement of the deceased with the help of PW 4. It is also evident that he also has knowledge of Hindi although he may not be able to read and write or speak in the said language. His evidence also shows that he has taken all precautions and care while recording the statement. Furthermore, he had the opportunity of recording the statement of the deceased upon noticing her gesture. The court in a situation of this nature is also entitled to take into consideration the circumstances which were prevailing at the time of recording the statement of the deceased.”

188. Appreciating the third dying declaration recorded on the basis of gestures, nods and writings on the base of aforesaid pronouncements, we have no hesitation in holding that the dying declaration made through signs, gestures or by nods are admissible as evidence, if proper care was taken at the time of recording the statement. The only caution the court ought to take is that the person recording the dying declaration is able to notice correctly as to what the declarant means by answering by gestures or nods. In the present case, this caution was aptly taken, as the person who recorded the prosecutrix’s dying declaration was the Metropolitan Magistrate and he was satisfied himself as regards the mental alertness and fitness of the prosecutrix, and recorded the dying declaration of the prosecutrix by noticing her gestures and by her own writings.

189. Considering the facts and circumstances of the present case and upon appreciation of the evidence and the material on record, in our view, all the three dying declarations are consistent with each other and well corroborated with other evidence and the trial court as well as the High Court has correctly placed reliance upon the dying declarations of the prosecutrix to record the conviction.

Insertion of the iron rod:

190. Presently, we shall advert to the contentions raised as regards the use of iron rod for causing recto-vaginal injury. The case of the prosecution is that the accused, in most inhumane and unfeeling manner, inserted iron rod in the rectum and vagina of the prosecutrix and took out the internal organs of the prosecutrix from the vaginal and anal opening while pulling out the said iron rod. They also took out the internal organs of the prosecutrix by inserting iron rod in the vagina of the prosecutrix thereby causing dangerous injuries. Two iron rods, Ex.P-49/1 and Ex.P-49/2, were recovered vide seizure memo Ex.PW-74/G by the Investigating Officer, PW-80, at the instance of accused Ram Singh (since deceased). As per Ex.PW-49/A, the internal injuries sustained by the victim were like vaginal tear, profused bleeding from vagina, rectal tear communicating with vaginal tear and other injuries.

191. PW-50, Dr. Raj Kumar Chejara, and the surgery team operated the prosecutrix in the intervening night of 16/17.12.2012 and the operative findings are as under:

a. collection of around 500ml of blood inperitoneal cavity
b. stomach pale,
c. duodenum contused
d. jejunum contused & bruised at whole of the length and lacerated & transected at many places. First transaction was 5cm away from DJ junction. Second one was 2 feet from the DJ, after that there was transaction and laceration at many places. Jejunal loop was of doubtful viability. Lieum – whole lieum was totally contused and it was of doubtful viability. Distanl lieum was completely detached from the mesentry till ICJ (ileocaecal junction). It was completely devascularized.
e. Large bowel was also contused, bruised and of doubtful viability. Descending colon was lacerated vertically downward in such a manner that it was completely opened.
f. Sigmoid colon & rectum was lacerated at many places. Linearlyu, mucosa was detached completely at places, a portion of it around 10cm was prolapsing through perineal wound.
g. Liver and spleen was normal.
h. Both sides retro peritoneal (posterior wall of the abdomen) haematoma present.
i. Mesentry and omentum was totally contused and bruised.
j. Vaginal tear present, recto vaginal septum was completely torn.

192. PW-80, SI Pratibha Sharma, the Investigating Officer, deposed before the trial court that accused Ram Singh had led her inside the bus, Ex.P1 and had taken out two iron rods from the shelf of the driver’s cabin. One of the rods, 59 cm in length, was primarily used for changing punctured tyres; it was hooked from one end and chiseled from the other. It also had multiple serrations on both the ends. The other rod was of silver colour, hollow and 70 cm long. This rod formed part of a hydraulic jack and was used as its lever, Ex.PW49/G. The rods were blood stained and the recovered rods were sealed with the seal of PS and were deposited in the Malkhana. On 24.12.2012, the said iron rods along with the sample seal were sent to CFSL, CBI for examination through SI Subhash, PW-74, vide RC No. 178/21/12, proved as Ex.PW-77/R. The DNA report prepared by Dr. B.K. Mohapatra, PW-45, suggests that the DNA profile developed from the bloodstains from both the iron rods is consistent with the DNA profile of the prosecutrix.

193. Mr. Sharma, learned counsel for the appellants, has countered the prosecution case on the use of iron rods. He has drawn support from the medical records and the testimony of the witnesses as also the prosecutrix to assert the aforesaid submission. He submits that the prosecution has fabricated the story as regards the use of iron rods only to falsely implicate all the accused in the death of the prosecutrix. The defence has refuted the use of iron rods by the accused on the ground that the informant as well as the prosecutrix did not mention about the use of iron rods in their first statements. The main contention of the accused is that the prosecutrix herself, in her first statement given to Dr. Rashmi Ahuja, PW-49, Ex. PW-49/A, failed to disclose the use of iron rods. He relies on the absence of the words ‘iron rods’ in Ex.PW-49/A to fortify this submission. He contends that as recorded by PW-49, the prosecutrix was in a fit state of mind for she even gave her residential address after undergoing the traumatic experience, but she failed to mention that the accused persons also used the iron rods on her, a fact that would have had a bearing on her treatment.

194. The aforesaid proponement is not sustainable as MLC, Ex.PW49/A, of the prosecutrix suggests that she was brought to the hospital in a traumatized state with grievous injuries and she was cold and clammy, i.e., whitish (due to vasoconstriction) and had lost a lot of blood. As per Ex.PW-49/A, the prosecutrix was sure of intercourse to have been committed twice along with rectal penetration whereafter she did not remember intercourse. It is worthy to note that she was oscillating between consciousness and unconsciousness at the time of the incident and there was loss of lot of blood by the time she had reached the hospital which is evident from Ex. PW49/B-MLC. A victim who has just suffered a ghastly and extremely frightening incident cannot be expected to immediately come out of the state of shock and state the finest details of the incident. The subsequent dying declarations of the prosecutrix corroborated by the medical evidence cannot be disregarded merely on the ground that the use of iron rods is not substantiated by the prosecutrix’s first statement.

195. The gravity and hideousness of the injuries caused to the prosecutrix, as has already been discussed above, clearly shows the use of iron rods by the accused. The injuries caused to the prosecutrix by incessantly and abominably injuring her private parts using the concerned iron rods were so grave that death was the inevitable consequence. As already noted, both the iron rods, Ex.P-49/1 and Ex.P-49/2, were recovered at the instance of accused Ram Singh from inside the concerned bus. The DNA profile developed from the blood stains obtained from the iron rods is also consistent with the DNA profile of the prosecutrix. In such circumstances, merely because the finger prints of the accused were not obtained from the iron rods, it cannot be concluded that the accused were not linked with the concerned iron rods. Accused Ram Singh himself had the iron rods recovered to the Investigating Officer. Furthermore, the dying declaration of the prosecutrix, which is highly reliable, clearly establishes the horrendous use of iron rods by the accused persons.

196. The iron rods were sent for forensic examination to the CFSL. The DNA profile developed from the blood stains obtained from the iron rods recovered at the instance of accused Ram Singh was found to be of female origin and were found to be consistent with the DNA profile of the prosecutrix. Hence, the factum of insertion of iron rods in the private parts of the prosecutrix is also fortified by the scientific evidence.

197. PW-1, in his chief examination, deposed that he was severely assaulted by the accused with iron rods on his head and the rest of his body. It is submitted that as per MLC of PW-1, Ex.PW-51/A, the nature of injuries sustained by PW-1 were simple. It is contended that if PW-1 was beaten with the iron rod in the manner alleged by him, he would have sustained more serious injuries. It is canvassed that PW-1 sustained only simple injuries which leads to an inference that the iron rod was not used in the manner stated by the prosecution. Of course, as per Ex.PW-51/A, PW-1 sustained simple injuries but as seen from Ex.PW-51/A, there was also nasal bleeding from his nose and PW-1 was also vomiting. Merely because the injuries sustained by PW-1 were opined to be of simple nature, the use of iron rods cannot be doubted.

198. Learned counsel for the appellants further stressed on the point that PW-1 neither in his MLC, Ex. PW-51/A, nor in his complaint, Ex.PW1/A, mentioned the use of iron rod; the description of bus or the names of the accused. In this regard, it has to be kept in mind that the purpose of FIR is mainly to set the criminal law in motion and not to lay down every minute detail and the entire gamut of the evidence relating to the case and, therefore, non-mention of use of iron rods in the FIR does not remotely create a dent in the case of the prosecution. When the subsequent statements of the prosecutrix well corroborated by the medical evidence are available, it is completely immaterial that the statement of PW-1 does not mention the use of iron rods. Thus, PW-1’s omission to state the factum of use of iron rods in his complaint or MLC is not fatal to the case of the prosecution.

199. It is apposite to state here that non-mention of the use of iron rods in PW-1’s statement has been a ground for giving rise to suspicion of his testimony. We find it difficult to comprehend as to how PW-1 could have been aware of any use of iron rods against the prosecutrix. PW-1 was being held by the accused towards the front of the bus, while the prosecutrix was being raped at the rear side of the bus and the lights of the bus also had been turned off. His statement in his complaint, Ex.PW-1/A, that he heard the prosecutrix shouting and crying and that her voice was oscillating is consistent with the narration of facts as also the medical records.

200. The second statement of the prosecutrix recorded in Ex.PW-27/A by PW-27, Smt. Usha Chaturvedi, has detailed the account of the entire incident specifying the role of each accused; gang rape/unnatural sex committed upon her; and the injuries caused in her vagina and rectum by use of iron rod and by inserting of hands by the accused are mentioned. This statement, in fact, bears the date and signature of the prosecutrix and records that the accused committed gang rape on her, inserted iron rod in the vagina and through anal opening causing injuries to the internal organs of the prosecutrix. The subsequent statement of the prosecutrix also affirms the above facts. That apart, as per the medical opinion Ex.PW-49/G given by PW-49, the recto-vaginal injury of the prosecutrix could be caused by the rods recovered from the bus.

Anatomy argument

201. Learned counsel for the appellants also submitted that if the rods purported to be used had actually been inserted through the vagina, it would have first destroyed the uterus before the intestines were pulled out. It was submitted that there were no rods related injuries in her uterus and medical science too does not assist the prosecution in their claim that the iron rods were used as a weapon for penetration. Mr. Sharma placed reliance on:

1. the first OT notes, Ex. PW-50/A that were made following the first operation of the prosecutrix on 17.12.2012 and where the following was recorded:

“uterus, B/L tubes and ovaries seen and healthy”

2. the case sheet of the operation conducted on 19.12.2012, presented as Ex. PW-50/D, wherein the following was recorded:

“Gynae findings
… Cx, vaginal vault and ant vaginal wall (H) …”

3. the post-mortem report, Ex. PW-34/A, that was prepared in Mount Elizabeth Hospital, Health Science Authority, Singapore, by the Autopsy doctor, Dr. Paul Chui on 29.12.2012 and where the following was recorded:

“Uterus, Tubes and Ovaries Uterus, tubes and ovaries were present in their normal anatomical positions. The uterus measured 8cm x 5cm x 3.5cm. Thin fibrinopurulent adhesions were present on the serosal surfaces of the uterus and the adnexae. Cervix appeared normal and the os was closed. There were no cervical erosions and no haemorrhages on the intra-vaginal aspect of the cervix. Cut sections showed thin endometrium and normal myometrium. Tubes were normal. Both ovaries were normal in size. Cut sections of both ovaries showed corpus lutea, the largest of which was present in the right ovary.”

The learned counsel for the appellants submit that that if the doctors in the surgery team did not find the uterus damaged, then it cannot be claimed that the rod was inserted in her private parts and intestines were pulled out. 202. The aforesaid submission can be singularly rejected without much discussion on the foundation that a question to that effect was not put to the doctors in their respective cross-examinations. However, instead of summary rejection, we shall deal with it for the sake of our satisfaction and also to meet the contention. While it may be so that the uterus, tubes and the cervix were not damaged, that does not mean that the intestines could not have been damaged as they have been. It stands to reason based on common understanding and medical science to allay this contention. First, it is nowhere the stance that the rod was inserted only through the vagina. The prosecutrix herself had stated in her dying declarations that she was raped through the vagina as also the anus, Ex. PW-27/A. The anus is directly connected to the intestines via the rectum and, thus, deep penetration by use of a rod or other long object could have caused injuries to the bowels/intestines.

203. To appreciate the above contention, it is necessary to understand the anatomy and position of the uterus. We may profitably refer to the following excerpts from ‘Gray’s Anatomy: Descriptive and Applied’, 34th Edn. [Orient Longman Publication] at pages 1572 and 1579:

“THE UTERUS: The uterus, or womb, is a hollow, thick-walled, muscular organ situated in the lesser pelvis between the urinary bladder in front and the rectum behind. Into its upper part the uterine tubes open one on each side, while below, its cavity communicates with that of the vagina. When the ova are discharged from the ovaries, they are carried to the uterine cavity through the uterine tubes. If an ovum be fertilized it embeds itself in the uterine wall and is normally retained in the uterus until prenatal development is completed, the uterus undergoing changes in size and structure to accommodate itself to the needs of the growing embryo. After parturition the uterus returns almost to its former condition, though it is somewhat larger than in the virgin state. For general descriptive purposes the adult virgin uterus is taken as the type form.

In the virgin state the uterus is flattened from before backwards and is pear-shaped, with the narrow end directed downwards and backwards. It lies between the bladder below and in front, and the sigmoid colon and rectum above and behind, and is completely below the level of the pelvic inlet.

The long axis of the uterus usually lies approximately in the axis of the pelvic inlet (p.440), but as the organ is freely movable its position varies with the state of distension of the bladder and rectum. Except when much displaced by a distended bladder, it forms almost a right angle with the vagina, since the axis of the vagina correspond to the axes of the cavity and outlet of the lesser pelvis (p. 440)” (at page 1572)

“THE VAGINA: The vagina is a canal which extends from the vestibule, or cleft between the labia minora, to the uterus, and is situated, behind the bladder and urethra, and in front of the rectum and anal canal; it is directed upwards and backwards, its axis forming with that of the uterus an angle of over ninety degrees, opening forwards …” (at page 1579)

“And ‘A Fascimile: Gray’s Anatomy’ (at page 723) [Black Rose Publications]
“THE VAGINA”
…………
Relations: Its anterior surface is concave, and in relation with the base of the bladder, and with the urethra. Its posterior surface is convex, and connected to the anterior wall of the rectum, for the lower three-fourths of its extent….”

The aforesaid excerpts establish that the vagina and uterus are almost at right angles to each other and the rectum is only separated by a wall of tissue. The pelvic cavity as set forth in the diagram in the book supports the same.

204. The exhibits relating to injuries may be noted. OT notes from 17.12.2012 and 19.12.2012 read as under:

“OT Notes:

PW 50/B: Call received from Dr. Gaurav and Dr. Piyush at approx. 4.00 a.m. from noty OT. Immediately reached OT and reviewed the details of internal injury (as mentioned in OT notes) the condition of the small and large bowel extremely bad for any definitive repair. The condition explained to the mother of the patient and the police officials present. Case discussed with Dr. S.K. Jain. Int. I/C telephonically.”

205. The operative findings which are seen from the examination done by the Gynaecologist and the Surgeons are:

“Perineal

> Abdominal findings: Rectum is longitudinally torn on anterior aspect in continuation with tear. This tear is continuing upward involving sigmoid colon descending colon which is splayed open. The margins are edematous.
> There are multiple longitudinal tear in the mucosa of rectosigmoid area.
> Transverse colon was also torn and gangrenous.
> Hepatic flexure ascending colon and caecum were gangrenous and multiple perforation at many places.
> Terminal item approximately 1½ feet loosely hanging in the abdominal cavity. It was avulsed from its mesentery and was nonviable.
> Rest of small bowel was nonenlistend with only patens of mucosa at places and border of the mesentery was contused. This contused mesentery border initially appeared (during first surgery) as contused small bowel.
> Jejunostomy stoma was gangrenous for approximately 2 cm.
> Stomach and duodenum was distended but healthy.

Surgical Procedure:
> Resection of gangrenous terminal ileum, caecum, appendix, ascending colon, hepatic flexure and transverse colon was done.
> Resection of necrotic jejunal stoma with closure of duodenojejunal flexure in two layers by 3-0 viaeny.
> Diverting lateral tube dudoenostomy (with 18F Folley’s catheter) brought through right flank.
> Tube gastrostomy was added as another decompressive measures (28 size apotere tube was used) Tube gastrostomy was brought and from previous jejunostomy site.
> Abdominal drain placed in pelvis.
> Rectal sheath closed by using No. 1 prolene interrupted sutures.
> Skin closed by using 1-0 nylone.
> Perineal wound packed with Betadine soaked gauze piece.
> T-Bandage applied
> ASD done for abdominal wound.
> Patient tolerated procedure and was shifted back to ICU-I. Post OP Advise
1. NPO
2. CRTA
3. IVF as per CVP and output by ICU team.
4. Injection menopenum Limezolid to be continued as before.
5. Injection metronidazole 100ml IV TDS.
6. Injection Pantoprozole 20 mg IV OD
7. Strict I/O charting.
8. Rest of the treatment as advised by ICU team.”

206. From the nature of the injuries noted in the OT Notes, the rectum was longitudinally torn and transverse colon was torn. From the Post-Mortem Certificate, the uterus was found in position (no injuries to uterus). If the rod was inserted in the vagina, having regard to the fact that the injury within the vagina was only in the posterior surface, it indicates that the rod was pushed inside with a downward force and not upward (which could have resulted in injury to the uterus) and it perhaps tunnelled its way through the vagina into the rectal cavity and the bowels. Therefore, merely because no injuries to the uterus of the victim were noticed, that does not lead to the conclusion that iron rod was not used. Thus, the submission that has been raised with immense enthusiasm and ambition to create a concavity in the case of the prosecution on this score deserves to be repelled and we do so.

Analysis of evidence pertaining to DNA

207. Having dealt with the aspect pertaining to insertion of rod, it is apposite to advert to the medical evidence and post mortem report. We have, while dealing with other aspects, referred to certain aspects including DNA analysis of medical evidence but the same requires to be critically dealt with as the prosecution has placed hevy reliance upon it.

208. DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the basic genetic material in all human body cells. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. DNA structure determines human character, behaviour and body characteristics. DNA profiles are encrypted sets of numbers that reflect a person’s DNA makeup which, in forensics, is used to identify human beings. DNA is a complex molecule. It has a double helix structure which can be compared with a twisted rope ‘ladder’.

209. The nature and characteristics of DNA had been succinctly explained by Lord Justice Phillips in Regina v. Alan James Doheny & Gary Adams83. In the above case, the accused were convicted relying on results obtained by comparing DNA profiles obtained from a stain left at the scene of the crime with DNA profiles obtained from a sample of blood provided by the appellant. In the above context, with regard to DNA, the following was stated by Lord Justice Phillips:

“Deoxyribonucleic acid, or DNA, consists of long ribbon-like molecules, the chromosomes, 46 of which lie tightly coiled in nearly every cell of the body. These chromosomes – 23 provided from the mother and 23 from the father at conception, form the genetic blueprint of the body. Different sections of DNA have different identifiable and discrete characteristics. When a criminal leaves a stain of blood or semen at the scene of the crime it may prove possible to extract from that crime stain sufficient sections of DNA to enable a comparison to be made with the same sections extracted from a sample of blood provided by the suspect. This process is complex and we could not hope to describe it more clearly or succintly than did Lord Taylor C.J. in the case of Deen (transcript:December 21, 1993), so we shall gratefully adopt his description.

“The process of DNA profiling starts with DNA being extracted from the crime stain and also from a sample taken from the suspect. In each case the DNA is cut into smaller lengths by specific enzymes. The fragments produced are sorted according to size by a process of electrophoresis. This involves placing the fragments in a gel and drawing them electromagnetically along a track through the gel. The fragments with smaller molecular weight travel further than the heavier ones. The pattern thus created is transferred from the gel onto a membrane. Radioactive DNA probes, taken from elsewhere, which bind with the sequences of most interest in the sample DNA are then applied. After the excess of the DNA probe is washed off, an X-ray film is placed over the membrane to record the band pattern. This produces an auto radiograph which can be photographed. When the crime stain DNA and the sample DNA from the suspect have been run in separate tracks through the gel, the resultant auto-radiographs can be compared. The two DNA profiles can then be said either to match or not.””

210. In the United States, in an early case Frye v. United States84, it was laid down that scientific evidence is admissible only if the principle on which it is based is substantially established to have general acceptance in the field to which it belonged. The US Supreme Court reversed the above formulation in Daubert v. Merrell Dow Pharmaceuticals, Inc.85 stating thus:

“11. Although the Frye decision itself focused exclusively on “novel” scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Fed.Rule Evid.201.

13. This is not to say that judicial interpretation, as opposed to adjudicative fact finding, does not share basic characteristics of the scientific endeavor: “The work of a judge is in one sense enduring and in another ephemeral… In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine.” B.Cardozo, The nature of the Judicial Process 178, 179 (1921).”

211. The principle was summarized by Blackmun, J., as follows:
“To summarize: “general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court of Appeals focused almost exclusively on “general acceptance,” as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.”

212. After the above judgment, the DNA Test has been frequently applied in the United States of America. In District Attorney’s Office for the Third Judicial District et al. v. William G. Osborne86, Chief Justice Roberts of the Supreme Court of United States, while referring to the DNA Test, stated as follows:

“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure-usually but not always through legislation.

… … …

Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue.”

213. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the Court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner.

214. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Section 53A sub-section (2) as well as Section 164(A) sub-section (2) are to the following effect:

“Section 53A. Examination of person accused of rape by Medical Practitioner.-
(1) … … … …

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail. Section 164A. Medical Examination of the victim of rape.-

(1) … … … …
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:-

(i) the name and address of the woman and of the person by whom she was brought;
(ii)the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.”

215. This Court had the occasion to consider various aspects of DNA profiling and DNA reports. K.T. Thomas, J. in Kamti Devi (Smt.) and another v. Poshi Ram87, observed:

“10. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. …”

216. In Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh88, a two-Judge Bench had explained as to what is DNA in the following manner: “41. Submission of Mr Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means:

“Deoxyribonucleic acid, which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting, identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent precise, experts opine.”

There cannot be any doubt whatsoever that there is a need of quality control. Precautions are required to be taken to ensure preparation of high molecular weight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. (See article of Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA profiling and its applications.) But in this case there is nothing to show that such precautions were not taken.

42. Indisputably, the evidence of the experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. In cross-examination, PW 46 had stated as under:

“If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.””

217. In Santosh Kumar Singh v. State Through CBI89, which was a case of a young girl who was raped and murdered, the DNA reports were relied upon by the High Court which were approved by this Court and it was held thus:

“71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram (supra). In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9.”

218. In Inspector of Police, Tamil Nadu v. John David90, a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. Paragraph 60 of the decision is reproduced below:

“60. … The said fact was also proved from the DNA test conducted by PW 77. PW 77 had compared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW1 and Baby Ponnusamy was found in the recovered parts of the body and that therefore they should belong to the only missing son of PW 1.”

219. In Krishan Kumar Malik v. State of Haryana91, in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, this Court held that after the incorporation of Section 53-A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. The relevant paragraph is reproduced below: “44. Now, after the incorporation of Section 53-A in the Cr.P.C w.e.f 23.06.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.”

220. In Surendra Koli v. State of Uttar Pradesh and others92, the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl. Para 12 is reproduced below:- “12. The DNA test of Rimpa by CDFD, a pioneer institute in Hyderabad matched with that of blood of her parents and brother. The doctors at AIIMS have put the parts of the deceased girls which have been recovered by the doctors of AIIMS together. These bodies have been recovered in the presence of the doctors of AIIMS at the pointing out by the accused Surendra Koli. Thus, recovery is admissible under Section 27 of the Evidence Act.”

221. In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra93, the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat ‘Kuber’ and several articles were recovered from ‘Kuber’. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed:

“333. It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant’s DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III.”

222. In Sandeep v. State of Uttar Pradesh94, the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. The Court, relying on the DNA report, stated as follows:

“67. In the light of the said expert evidence of the Junior Scientific Officer it is too late in the day for the appellant Sandeep to contend that improper preservation of the foetus would have resulted in a wrong report to the effect that the accused Sandeep was found to be the biological father of the foetus received from the deceased Jyoti. As the said submission is not supported by any relevant material on record and as the appellant was not able to substantiate the said argument with any other supporting material, we do not find any substance in the said submission. The circumstance, namely, the report of DNA in having concluded that accused Sandeep was the biological father of the recovered foetus of Jyoti was one other relevant circumstance to prove the guilt of the said accused.”

223. In Rajkumar v. State of Madhya Pradesh95, the
Court was dealing with a case of rape and murder of a 14
year old girl. The DNA report established the presence of
semen of the appellant in the vaginal swab of the
prosecutrix. The conviction was recorded relying on the DNA
report. In the said context, the following was stated:

“8. The deceased was 14 years of age and a student in VIth standard which was proved from the school register and the statement of her father Iknis Jojo (PW1). Her age has also been mentioned in the FIR as 14 years. So far as medical evidence is concerned, it was mentioned that the deceased prosecutrix was about 16 years of age. So far as the analysis report of the material sent and the DNA report is concerned, it revealed that semen of the appellant was found on the vaginal swab of the deceased. The clothes of the deceased were also found having appellant’s semen spots. The hair which were found near the place of occurrence were found to be that of the appellant.”

224. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another96, the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child.

The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate. The pertinent observations are extracted below:

“19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

20. As regards the authority of this Court in Kamti Devi, this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband to the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act.” The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court confronted with a situation in which a DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.”

From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.

225. In order to establish a clear link between the accused persons and the incident at hand, the prosecution has also adduced scientific evidence in the form of DNA, fingerprint and bite mark analysis.

226. Various samples, for the purpose of DNA profiling, were lifted from the person of the prosecutrix; the informant; the accused, their clothes/ articles; the dumping spot; the iron rods; the ashes of partly burnt clothes; as well as from the offending bus. PW-45, Dr. B.K. Mohapatra, analysed the said DNA profiles and submitted his report thereof. In his report, he concluded that the samples were authentic and capable of establishing the identities of the persons concerned beyond reasonable doubt.

227. After establishing the identities of each of the accused persons, the informant and the prosecutrix through DNA analysis, the DNA profiles generated from the remaining samples, where the identity of biological material found thereon needed to be ascertained, were matched with the DNA profiles of the prosecutrix, the informant and the accused, generated earlier from known samples. Such an analysis cogently linked each of the accused with the victims as also with the crime scene. A summary of the findings in the report submitted by PW-45, Dr. B.K. Mohapatra, is as under:

228. Further, a summary of the DNA analysis of the biological samples lifted from the material objects such as the bus, the iron rods, and the ash and unburnt pieces of clothes is also worth producing here:

229. PW-45, Dr. B.K. Mohapatra, has clearly testified in his cross-examination that all the experiments conducted by him confirmed to the guidelines and methodology documented in the Working Procedure Manuals of the laboratory which have been validated and recommended for use in the laboratory. He further added that once a DNA profile is generated, its accuracy is 100%. The trial court and the High Court have consistently noted that the counsel for the defence did not raise any substantial ground to challenge the DNA report during the cross-examination of PW-45. In such circumstances, there is no reason to declare the DNA report as inaccurate, especially when it clearly links the accused persons with the incident.

230. Mr. Sharma, learned counsel appearing for appellants – Mukesh and Pawan Kumar Gupta, submitted that in the insant case, the DNA test cannot be treated to be accurate, for there was blood transfusion as the prosecutrix required blood and when there is mixing of blood, the DNA profiling is likely to differ. It is seemly to note, nothing had been put to the expert in his cross-examination in this regard. As the authorities relating to DNA would show, if the quality control is maintained, it is treated to be quite accurate and as the same has been established, we are compelled to repel the said submission of Mr. Sharma.

The evidence relating to finger print analysis:

231. Next aspect that is required to be adverted is the evidence of fingerprint analysis adduced by the prosecution to establish the identity of the accused persons. By virtue of the finger print analysis, the prosecution has tried mainly to establish the presence of the accused in the offending bus. On 17.12.2012 and 18.12.2012, a team of experts from the CFSL had lifted chance finger prints from the concerned bus, Ex.P-1, at Thyagraj Stadium. On 28.12.2012, PW-78, Inspector Anil Sharma of P.S. Vasant Vihar, the then S.H.O. of Police Station Vasant Vihar, requested the Director, CFSL for taking digital palm prints and foot prints of all the accused persons vide his letter Ex.PW-46/C. Pursuant to the said request made by PW-78, Inspector Anil Sharma, the CFSL on 31.12.2012 took the finger/palm prints and foot prints of the accused persons at Tihar Jail. After comparing the chance prints lifted from the bus with the finger prints/palm prints and foot prints of all the accused persons, PW-46, Shri A.D. Shah, Senior Scientific Officer (Finger Prints), CFSL, CBI, submitted his report, Ex.PW-46/D.

232. As per the report, Ex.PW-46/D, the result of the aforesaid examination of the Finger Print Division of the CFSL, CBI, New Delhi was that the chance prints of accused Vinay Sharma were found on the bus in question. The relevant portion of the report is as under:

“RESULT OF EXAMINATION:

1. The chance print marked as Q.1 is identical with left palmprint specimen of Vinay Sharma S/o Sh.Hari Ram Sharma marked here as LPS-28 on the slip marked here as S.28 (Matching ridge characteristics have been found in their relative positions in the chance palmprint and specimen palm print. This forms the basis of the opinion that these prints are identical. Eight of them have been marked with projected red lines with their detailed description are placed at Annexure-1)

II. The chance print marked as Q.4 is identical with right thumb impression of Vinay Sharma S/o Sh.Hari Ram Sharma marked here as RTS-23 on the slip marked here as S.23 (Matching ridge characteristics have been found in their relative positions in the chance print and specimen finger print. This forms the basis of the opinion that these prints are identical. Eight of them have been marked with projected red lines with their detailed description are placed at Annexure-2).”

The above report incontrovertibly proves that accused Vinay was present in the bus at the time of the incident. Be it noted, the other chance prints were found to be unfit for comparison or different from specimen print.

The Odontology report

233. Now, we shall analyse the Odontology report. In today’s world, Odontology is a branch of forensic science in which dental knowledge is applied to assist the criminal justice delivery system. S. Keiser-Nielsen, an authority on Forensic Odontology defines the basic concept of Forensic Odontology in the following words:

“A. Forensic odontology is that branch of odontology which in the interests of justice deals with the proper handling and examination of dental evidence and with the proper evaluation and presentation of dental findings. Only a dentist can handle and examine dental evidence with any degree of accuracy; therefore, this field is above all a dental field.”

234. Professor Neilsen, elaborating on Forensic Odontology, further states:

“B. There are three reasons for considering forensic odontology a well-defined and more or less independent subject:1) it has objectives different from those at which conventional dental education aims; 2) forensic dental work requires investigations and considerations different from those required in ordinary dental practice; and 3) forensic dental reports and statements have to be presented in accordance with certain legal formalities in order to be of value to those requesting aid.

The area of forensic odontology consists of three major fields of activity:1) the examination and evaluation of injuries to teeth, jaws, and oral tissues from various causes: 2) the examination of bite marks with a view to the subsequent elimination or possible identification of a suspect as the originator; and 3) the examination of dental remains (whether fragmentary or complete, and including all types of dental restoration) from unknown persons or bodies for the purpose of identification.”

235. In the instant case, the prosecution has relied upon the odontology report, i.e., bite mark analysis report prepared by PW-71, Dr. Ashith B. Acharya, to link the incident with the accused persons. The Odontology report links accused Ram Singh and accused Akshay with the crime in question.

236. Dr. K.S. Narayan Reddy, in his book, Medical Jurisprudence and Toxicology (Law, Practice and Procedure), Third Edition, 2010, Chapter VIII page 268, has extensively dealt with human bites, their patterns, the manner in which they should be lifted with a swab and moistened with sterile water and the manner in which such swabs need to be handled is delineated along with their usefulness in identification. The High Court has also referred to the same. It is as follows:

“They are useful in identification because the alignment of teeth is peculiar to the individual. Bite marks may be found in materials left at the place of crime e.g., foodstuffs, such as cheese, bread, butter, fruit, or in humans involved in assaults, when either the victim or the accused may show the marks, usually on the hands, fingers, forearms, nose and ears.”

237. After making the aforesaid observations, the author dwells upon the various methods used for bite mark analysis including the photographic method, which method was utilized in the instant case. The photographic method is described as under:

“Photographic method: The bite mark is fully photographed with two scales at right angle to one another in the horizontal plane. Photographs of the teeth are taken by using special mirrors which allow the inclusion of all the teeth in the upper or lower jaws in one photograph. The photographs of the teeth are matched with photographs or tracings of the teeth. Tracings can be made from positive casts of a bite impression, inking the cutting edges of the front teeth. These are transferred to transparent sheets, and superimposed over the photographs, or a negative photograph of the teeth is superimposed over the positive photograph of the bite. Exclusion is easier than positive matching.”

238. In the present case, the photographs of bite marks taken by PW-66, Shri Asghar Hussein, of different parts of the body of the prosecutrix were examined by PW-71, Dr. Ashith B. Acharya. The photographs depicted the bite marks on the body of the prosecutrix. The said bite marks found on the body of the victim were compared with the dental models of the suspects. The analysis showed that at least three bite marks were caused by accused Ram Singh, whereas one bite mark has been identified to have been most likely caused by accused Akshay. An excerpt from the report, Ex. PW- 71/C, of PW-71, Dr. Ashith B. Acharya, has been extracted by the High Court. It reads thus:

“…….. There is absence of any unexplainable discrepancies between the bite marks on Photograph No. 4 and the biting surfaces of one of the accused person’s teeth, namely Ram Singh. Therefore, there is reasonable medical certainty that the teeth on the dental models of the accused person named Ram Singh caused the bite marks visible on Photograph No 4; also the bite marks on Photograph Nos.1 and 2 show some degree of specificity to this accused person’s teeth by virtue of a sufficient number of concordant points, including some corresponding unconventional/ individual characteristics. Therefore, the teeth on the dental models of the accused person with the name Ram Singh probably also caused the bite marks visible on Photograph Nos.1 and 2……..

x x x x x The comparison also shows that there is a concordance in terms of general alignment and angulation of the biting surfaces of the teeth of the lower jaw on the dental models of the accused person with the name Akshay and the corresponding bite marks visible on Photograph No.5. In particular, the comparison revealed concordance between the biting surface of the teeth on the lower jaw of the dental models of the accused person with the name Akshay and the bite mark visible on Photograph No.5 in relation to the rotated left first incisor whose mesial surface pointed towards the tongue. Overall, the bite mark shows some degree of specificity to the accused person’s teeth by virtue of a number of concordant points, including one corresponding unconventional/ individual characteristic. There is an absence of any unexplainable discrepancies between the bite mark and the biting surfaces of this accused person’s teeth. Therefore, the teeth on the dental models of the accused person with the name Akshay probably caused the bite marks visible on Photograph No.5.”

239. Be it noted, the present is a case where the victim’s body contained various white bite marks. Bite mark analysis play an important role in the criminal justice system. Advanced development of technology such as laser scanning, scanning electron microscopy or cone beam computed tomography in forensic odontology is utilized to identify more details in bite marks and in the individual teeth of the bite. Unlike fingerprints and DNA, bite marks lack the specificity and durability as the human teeth may change over time. However, bite mark evidence has other advantages in the criminal justice system that links a specific individual to the crime or victim. For a bite mark analysis, it must contain abundant information and the tooth that made the mark must be quite distinctive.

240. Bite marks in skin are photographed in cases where the suspect is apprehended. A thorough dental combination is administered after dental examination of the suspect. Final comparison of the details of the original mark with the dentation of the suspect is done by experts.

241. The bite marks generally include only a limited number of teeth. The teeth and oral structure of the accused are examined by experts and, thereafter, bite marks are compared and reports are submitted. Forensic Odontology is a science and the most common application of Forensic Odontology is for the purpose of identification of persons from their tooth structure.

242. Forensic Odontology has established itself as an important and indispensable science in medico-legal matters and expert evidence through various reports which have been utilized by courts in the administration of justice. In the case at hand, the report is wholly credible because of matching of bite marks with the tooth structure of the accused persons and there is no reason to view the same with any suspicion. Learned counsel for the appellants would only contend that the whole thing has been stage-managed. We are not impressed by the said submission, for the evidence brought on record cogently establish the injuries sustained by the prosecutrix and there is consistency between the injuries and the report. We are not inclined to accept the hypothesis that bite marks have been managed.
Acceptability of the plea of alibi

243. Presently, we shall deal with the plea of alibi as the same has been advanced with immense conviction. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar97:

“22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

‘The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.”

23. The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. …”
[underlining is ours]

244. The said principle has been reiterated in Gurpreet Singh v. State of Haryana98, Shaikh Sattar v. State of Maharashtra99, Jitender Kumar v. State of Haryana100 and Vijay Pal (supra). 245. We had earlier indicated that in their Section 313 CrPC statements, the accused have advanced the plea of alibi. Accused Pawan Kumar Gupta @ Kaalu has taken the plea of alibi stating, inter alia, that throughout the evening of 16.12.2012 till late night, he was in the DDA District Park, Hauz Khas, Opposite IIT Gate, New Delhi, watching a musical event organised in connection with Christmas Celebration and that he was never in the bus, Ex.P1, and had not committed any offence with the prosecutrix or with the informant.

246. Before coming to the defence evidence led by him, we may refer to the answers given by him in response to the questions put to him in his statement under Section 313 CrPC wherein he has admitted that mobile No. 9711927157 belongs to him. He further stated that he had consumed liquor in the evening of 16.12.2012 and had accompanied accused Vinay Sharma to the musical event at DDA District Park where he took more liquor and fell unconscious and was later brought to his house by his father and uncle. He stated that he went out in the evening of 16.12.2012 and saw a quarrel between accused Vinay Sharma and accused Ram Singh (since deceased). Then he returned to his jhuggi. After sometime, he came out of his jhuggi and saw accused Vinay Sharma, his sister, mother and others going to a musical party and so, he also went with them and took more liquor in the party and even lost his mobile phone. Strangely enough, in his supplementary statement recorded on 16.08.2013 under Section 313 CrPC, he stated that he was present in the said party with his family members and friends and that a video clip was prepared by one Ram Babu, DW-13, and that he does not remember if he had accompanied accused Vinay Sharma to the said park on that evening. It is in contradiction to the stand taken by him in his earlier statement recorded under Section 313 CrPC.

247. Accused Pawan examined his father, DW-2, Shri Hira Lal Ram, who deposed that on 16.12.2012 about 7:15 p.m., when he came to his house, he was informed by his daughter that accused Pawan had gone to DDA District Park, Hauz Khas. It is in contradiction to the deposition made by the other defence witnesses who have said that accused Vinay Sharma and his family members had left Ravi Dass Camp, Sector-3, R.K. Puram, New Delhi, about 8:00/8:30 p.m. and that accused Pawan had accompanied them. Accused Pawan also said so in his initial statement under Section 313 CrPC.

248. DW-4, Shri Gyan Chand, the maternal uncle of accused Pawan, deposed that he brought accused Pawan Gupta @ Kaalu to the jhuggi from the DDA District Park and saw one Ram Charan warming his hands on a bonfire just outside his jhuggi who came and asked him about the wellbeing of accused Pawan. Ram Charan, DW-3, however, deposed that about 8:30/9:00 p.m., he was sitting inside his jhuggi with its door open and he saw accused Pawan being brought by his uncle in drunken state. This is yet again in contradiction to what has been deposed by the other defence witnesses who said that accused Pawan Gupta and accused Vinay Sharma had rather left Ravi Dass Camp, Sector-3, R.K. Puram, New Delhi about 8:00/8:30 p.m. for the DDA District Park.

249. DW-16, a shopkeeper of the locality, had deposed that he had seen the vehicle of Shri Gyan Chand about 9:00/9:30 p.m. on 16.12.2012 when accused Pawan Gupta was brought in drunken condition and was taken to his jhuggi. Initially, he failed to mention if Shri Hira Ram was accompanying Shri Gyan Chand.

250. Though the witnesses have also deposed about the taking away of accused Pawan by 3/4 persons on 17.12.2012, yet that plea too is in contradiction to the arrest memo Ex.PW-60/A wherein the accused is stated to have been arrested on 18.12.2012 about 1:15 p.m. at the instance of accused Ram Singh (since deceased).

251. Hence, there exist contradictions in the statements of the defence witnesses produced on behalf of accused Pawan Gupta (a): qua the timing when the accused had left his jhuggi at Ravi Dass Camp on the fateful night of 16.12.2012 inasmuch as some of the witnesses deposed that accused Pawan left for DDA District Park at 8:00/8:30 p.m. and some others deposed that they saw him being brought to his jhuggi about 8:30/9:00 p.m.; (b) qua the fact if DW-2 had gone with DW-1 to the park to fetch his son; and (c) qua the fact if accused Pawan went to the park with accused Vinay Sharma or not.

252. Accused Akshay Kumar Singh @ Thakur, in his statement under Section 313 CrPC, stated that he was not in Delhi on the fateful night and that on 15.12.2012, he had left Delhi for his village in Mahabodhi Express on the ticket of his brother, Abhay, along with his brother’s wife and nephew. He produced certain witnesses in his defence. DW-11, Shri Chavinder, an auto driver from his village, deposed that he had brought accused Akshay Kumar Singh @ Thakur and his family members from Anugrah Narayan Railway Station, District Aurangabad, Bihar to his native village Karmalahang, P.S. Tandwa, in his own auto on 16.12.2012 at 10:00 a.m. It is interesting to note that he does not remember about any other passenger/native who shared his auto on that day. DW-13, Sh. Raj Mohan Singh, the father-in-law of the accused, deposed that when he reached accused Akshay’s house, he found his son-in-law being implicated in a rape case allegedly committed on 16.12.2012. It probably shows that DW-13 had gone to meet Akshay Kumar Singh @ Thakur only when he had come to know about his implication in the rape case and when accused Akshay Kumar Singh @ Thakur was on the run. It is an admitted fact that the Chowkidar of P.S. Tandwa had met father-in-law of the accused on 20.12.2012 and had informed him about the implication of accused Akshay for the first time. If it was so, then DW-13, Shri Raj Mohan, must have visited the house of accused Akshay Kumar Singh @ Thakur either on 20.12.2012 or on 21.12.2012.

253. DW-12, DW-14 and DW-15 are all relatives of accused Akshay Kumar Singh @ Thakur and, as observed by both the courts, they tried to wriggle him out of the messy situation, as is the natural instinct of the family members. However, it is to be seen that during the evidence of DW-14, wife of accused Akshay Kumar Singh @ Thakur, she was interrupted from answering by accused Akshay from behind on more than one occasion. Similarly, DW-15, the sister-in-law of the accused, who had allegedly accompanied the accused to her native village, mysteriously, was not aware as to why her husband Abhay who was to accompany her on 15.12.2012 to the native village did not accompany her. She was not aware of the reason which made her husband stay behind in Delhi. Being the wife, she was expected to know this, at least.

254. While weighing the plea of ‘alibi’, the same has to be weighed against the positive evidence led by the prosecution, i.e., not only the substantive evidence of PW-1 and the dying declarations, Ex.PW-27/A and Ex.PW-30/D-1, but also against the scientific evidence, viz., the DNA analysis, finger print analysis and bite marks analysis, the accuracy of which is scientifically acclaimed. Considering the inconsistent and contradictory nature of the evidence of ‘alibi’ led by the accused against the positive evidence of the prosecution, including the scientific one, we hold that the accused have miserably failed to discharge their burden of absolute certainty qua their plea of ‘alibi’. The plea taken by them appears to be an afterthought and rather may be read as an additional circumstance against them.

255. In response to the questions put to him in his statement under Section 313 CrPC, accused Vinay had admitted that mobile No. 8285947545, Ex.DW10/1, belongs to his mother and its SIM was lost prior to 16.12.2012 and that on 16.12.2012, at 9:30 p.m., his friend Vipin had taken his phone to the DDA District Park and had returned it the next morning without SIM card and memory card.

256. In response to question No. 221, he stated that about 8:00/8:30 p.m., he went to see accused Ram Singh and he had a scuffle/exchange of fist blow and then he returned to his jhuggi. Thereafter, he left for musical party with his sister, mother and others. He did not say if his father had accompanied them. He also told that about 11:30 p.m., he had returned to his jhuggi.

257. It is worthy to note that the prosecution had proved the Call Detail Record, Ex.PW-22/B, of the phone of accused Vinay Sharma, having SIM No. 8285947545, admittedly in the name of his mother, Smt. Champa Devi, but in the possession of accused Vinay Sharma in the evening of 16.12.2012 and allegedly snatched by one Vipin in the said music party and returned to him in the morning of 17.12.2012 without SIM card and memory card. The Call Detail Record Ex.PW-22/B does show that the accused had been making calls to one particular number, viz., 8601274533 from 15.12.2012 till 20:19:37 of 17.12.2012. The authenticity of the CDR is proved under Section 65-B of the Indian Evidence Act. If the accused was not having a SIM card in his phone No. 8285947545, then how could he have called from this SIM on 15.12.2012, then on 16.12.2012 and in the morning of 17.12.2012 till about 8:23:42 p.m.

258. The accused rather said that his SIM and memory card were not in his phone when it was returned by his friend Vipin and that the phone was not with him at 9:55:21 when it registered a call for 58 seconds and when his location was found near IGI Airport, i.e., the road covered by the Route Map, Ex.PW-80/H, where the bus, Ex.P1, was moving on that night. Further, if as per accused Vinay Sharma he had no memory card and SIM card in his mobile phone, then the question of making of a video clip from his mobile phone by his friend DW-10, Shri Ram Babu, does not arise. Even his personal search memo Ex.PW-60/D does not show that the said mobile phone, when seized, had any memory card in it. The intention of the accused appears to be to wriggle himself out of explaining the receipt of call on his mobile at 9:55 p.m. on 16.12.2012.

259. After referring to the decision in Ram Singh and others v. Col. Ram Singh101, the trial Court has held that accused Vinay had miserably failed to prove the authenticity of the video clip in terms of the above judgment. The accused had failed to show if DW-10, Ram Babu, aged 15 years, was ever competent to record the clip and how such device was preserved. Admittedly by him, the memory card was not in the phone when returned to him by his friend, Vipin. It is also not shown in the seizure memo Ex.PW-60/D that the mobile, Ex.DW-10/1, was seized along with memory card. Thus, it raises a doubt as to how and by whom this memory card was later inserted in his phone, Ex.DW-10/1, and how and when the video clip was taken and whether there was any tampering, etc. and thus, the compliance of Section 65-B of the Indian Evidence Act was mandatory in these circumstances to ensure the purity of the evidence and in its absence, it would be difficult to rely upon such evidence.

260. Even otherwise, in the alternative, the properties of mobile Ex.DW-10/1 show the timing of the video clip as 8:16 p.m. of 16.12.2012 which is patently false because as per the defence witnesses, accused Vinay Sharma with his family had left Ravi Dass Camp at 8:00/8:30 p.m. and as per Smt. Champa Devi, DW-5, it takes about one hour on foot to reach the DDA District Park and, thus, even if we believe their theory, then also accused Vinay Sharma and accused Pawan Gupta @ Kaalu were not in the park at 8:16 p.m. on 16.12.2012.

261. Vinay Sharma’s mother, Smt. Champa Devi, DW-5, deposed that her son, accused Vinay Sharma, had gone to meet accused Ram Singh (since deceased), about 8:00 p.m. on 16.12.2012 and he had a quarrel with Ram Singh, he was beaten and then the accused returned to his jhuggi. Thereafter, accused Vinay Sharma accompanied her to DDA District Park, Hauz Khas, Opposite IIT Gate, New Delhi to watch a musical programme and stayed in the park till late in the night. His mother does not speak if her husband had also accompanied her to the said DDA District Park but DW-6 deposed that his son had returned about 8:00 p.m. after the quarrel and then they had gone to the said DDA District Park. DW-7, Shri Kishore Kumar Bhat, also deposed that about 8:00/8:30 p.m., he was in his jhuggi when the father of accused Vinay Sharma with his children came to his jhuggi and they all went to DDA District Park. He has also stated that a musical programme was organized by St. Thomas Church, Sector-2, R.K. Puram, New Delhi, in the said DDA District Park, Hauz Khas, on that night.

262. DW-9, Shri Manu Sharma, deposed that he went with accused Vinay Sharma to reason with accused Ram Singh (since deceased) but accused Vinay Sharma had stated that his brother had accompanied him to meet accused Ram Singh (since deceased). Further, DW-9, Manu Sharma, stated that he had accompanied accused Vinay Sharma to the musical event but accused Vinay Sharma did not say so.

263. Hence, as per the statement of accused Vinay Sharma (under Section 313 CrPC) and as per the statements of the defence witnesses, accused Vinay Sharma and his family with accused Pawan Gupta @ Kaalu had left Ravi Dass Camp about 8:15 p.m. to 8:30 p.m. and as per DW-5, Smt. Champa Devi, it takes about an hour to reach the DDA District Park, Hauz Khas, on foot, so even according to them, they allegedly reached the park about 9:15 p.m. or 9:30 p.m. Thus, from this angle too, the video clip showing the accused in the park on 16.12.2012 about 8:16 p.m. appears to have been tampered.

264. PW-83, Shri Angad Singh, the Deputy Director (Horticulture), DDA, had deposed that no such permission was ever granted by any authority to organize any such function in the evening of 16.12.2012 in the said DDA District Park, Hauz Khas, New Delhi and that no function was ever organized in the park on 16.12.2012 by anyone. PW-84, Father George Manimala of St. Thomas Church, as also PW-85, Brother R.P. Samual, Secretary, Ebenezer Assembly Church, deposed that their Church(es) never organized any musical programme/event in the DDA District Park, Hauz Khas, in the evening of Sunday, i.e., on 16.12.2012. Rather, they deposed that on Sundays, there is always a mass prayer in the church and there is no question of organizing any programme outside the Church premises and that even otherwise, they have their own space/lawn within the Church premises where they can hold such type of programmes/functions.

265. Though Shri Singh, learned counsel for the respective appellants, tried to press upon a document, Ex.PW-84/B, a programme pamphlet of St. Thomas Church wherein it was mentioned that the Church was holding programmes of “Carol Singing” from 10.12.2012 to 23.12.2012 at 7:00 p.m. at public places, yet in view of the categorical denial by PW-84 and PW-85 that any such programme was organized by the Church on 16.12.2012 in the DDA District Park, opposite IIT Gate, Hauz Khas, New Delhi, the plea has no substance.

266. It is settled in law that while raising a plea of ‘alibi’, the burden squarely lies upon the accused person to establish the plea convincingly by adducing cogent evidence. The plea of ‘alibi’ that accused Vinay Sharma and accused Pawan Gupta @ Kaalu had attended the alleged musical programme in the evening of 16.12.2012 in the DDA District Park, Hauz Khas, opposite IIT Gate, New Delhi, has been rightly rejected by the trial court which has been given the stamp of approval by the High Court.

Criminal conspiracy

267. The next aspect that we intend to address pertains to criminal conspiracy. The accused persons before us were charge-sheeted for the offence of criminal conspiracy within the meaning of Section 120A IPC apart from other offences. The trial court found all the accused guilty of the offence under Section 120B IPC and awarded life imprisonment alongwith a fine of Rs. 5,000/- to each of the convicts. The High Court has also affirmed their conviction under Section 120B after recording concurrent findings.

268. Before analysing the present facts with reference to Section 120A IPC in order to find out whether the charge of criminal conspiracy is proved in respect of each of the accused, it is pertinent to note the actual nature and purport of Section 120A IPC and allied provisions. Section 120A IPC as contained in Chapter V-A defines the offence of criminal conspiracy. The provision was inserted in the IPC by virtue of Criminal Law (Amendment) Act, 1913. Section 120A IPC reads as under:

“120A. Definition of criminal conspiracy:- When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”

269. Section 120B being pertinent is reproduced below:

“120B. Punishment of criminal conspiracy – (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

270. The underlying purpose for the insertion of Sections 120A and 120B IPC was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means punishable under law. The criminal thoughts in the mind when take concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal by illegal means than even if nothing further is done an agreement is designated as a criminal conspiracy. The proviso to Section 120A engrafts a limitation that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

271. By insertion of Chapter V-A in IPC, the understanding of criminal conspiracy in the Indian context has become akin to that in England. The illegal act may or may not be done in pursuance of an agreement but the mere formation of an agreement is an offence and is punishable. The law relating to conspiracy in England has been put forth in Halsbury’s Laws of England (vide 5th Ed. Vol.25, page 73) as under:

“73. Matters common to all conspiracies. There are statutory common law offences of conspiracy. The essence of the offences of both statutory and common law conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.”

272. The English law on ‘conspiracy’ has been succinctly explained by Russell on Crimes (12th Ed. Vol. 1 page 202) in the following passage:

“The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.”

273. Coleridge J. in R. v. Murphy102 explained ‘conspiracy’ in the following words:

“… I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in any cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, ‘had they this common design, and did they pursue it by these common means the design being unlawful?”

274. Lord Brampton of the House of Lords in Quinn v. Leatham103 had aptly defined conspiracy which definition was engrafted in Sections 120A and 120B IPC. Following was stated by the House of Lords:

“‘A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; and punishable of for a criminal object, or for the use of criminal means’.”

275. A perusal of the above shows that in order to constitute an offence of criminal conspiracy, two or more persons must agree to do an illegal act or an act which if not illegal by illegal means. This Court on several occasions has explained and elaborated the element of conspiracy as contained in our penal law. In Noor Mohammad Mohd. Yusuf Momin vs State of Maharashtra104, this Court has observed:

“Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107, I.P.C. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested, quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence.”

276. In E.G. Barsay v. State of Bombay105, the following was stated:

”…… The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.

277. A three-Judge Bench in Yash Pal Mittal v. State of Punjab106 had noted the ingredients of the offence of criminal conspiracy and held:

“10. The main object of the criminal conspiracy in the first charge is undoubtedly cheating by personation. The other means adopted, inter alia, are preparation or causing to be prepared spurious passports; forging or causing to be forged entries and endorsements in that connection; and use of or causing to be used forged passports as genuine in order to facilitate travel of persons abroad. The final object of the conspiracy in the first charge being the offence of cheating by personation, as we find, the other offences described therein are steps, albeit, offences themselves, in aid of the ultimate crime. The charge does not connote plurality of objects of the conspiracy. That the appellant himself is not charged with the ultimate offence, which is the object of the criminal conspiracy, is beside the point in a charge under Section 120-B IPC as long as he is a party to the conspiracy with the end in view. Whether the charges will be ultimately established against the accused is a completely different matter within the domain of the trial court.

11. The principal object of the criminal conspiracy in the first charge is thus “cheating by personation”, and without achieving that goal other acts would be of no material use in which any person could be necessarily interested. That the appellant himself does not personate another person is beside the point when he is alleged to be a collaborator of the conspiracy with that object. We have seen that some persons have been individually and specifically charged with cheating by personation under Section 419 IPC. They were also charged along with the appellant under Section 120-B IPC. The object of criminal conspiracy is absolutely clear and there is no substance in the argument that the object is merely to cheat simpliciter under Section 417, IPC.”

278. Certainly, entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is essential to the offence of criminal conspiracy as has been rightly emphasized by this Court in Kehar Singh and Ors. v. State (Delhi Administration)107. In the said case, the court further stressed upon the relevance of circumstantial evidence in proving conspiracy as direct evidence in such cases is almost impossible to adduce. 279. In the said case, K. Jagannatha Shetty, J., in his concurring opinion, has also elaborated the concept of conspiracy to the following effect:

“274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Sections 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.

275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition:

“Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties ‘actually came together and agreed in terms’ to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was ‘a tacit understanding between conspirators as to what should be done’.”

276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard.”

280. In Saju v. State of Kerala108, explaining the concept of conspiracy, this Court stated the following:

“7. To prove the charge of criminal conspiracy the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available…

10. It has thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew was leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established.”

281. In Mir Nagvi Askari v. Central Bureau of Investigation109, this Court reiterated the various facets of ‘criminal conspiracy’ and laid down as follows:

“60. Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.

61. The ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.

Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution viz. meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.

62. The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication. (See Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra110.)

282. In Pratapbhai Hamirbhai Solanki v. State of Gujrat and another111, this Court explained the ingredients of ‘criminal conspiracy’ as under:

“21. At this stage, it is useful to recapitulate the view this Court has expressed pertaining to criminal conspiracy. In Damodar v. State of Rajasthan112, a two-Judge Bench after referring to the decision in Kehar Singh v. State (Delhi Admn.) and State of Maharashtra v. Som Nath Thapa113, has stated thus:

“15. … The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not (sic*) sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or a series of acts, he would be held guilty under Section 120-B of the Penal Code, 1860.”

22. In Ram Narayan Popli v. CBI114 while dealing with the conspiracy the majority opinion laid down that:

“342. … The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act.”

It has been further opined that:

“342. … The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. … no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.”

The two-Judge Bench proceeded to state that:

“342. … For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means.”

23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.”

283. As already stated, in a criminal conspiracy, meeting of minds of two or more persons for doing an illegal act is the sine qua non but proving this by direct proof is not possible. Hence, conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. Moreover, it is also relevant to note that conspiracy being a continuing offence continues to subsist till it is executed or rescinded or frustrated by the choice of necessity. In K. R. Purushothaman v. State of Kerala115, the Court has made the following observations with regard to the formation and rescission of an agreement constituting criminal conspiracy:

“To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.”

284. After referring to a catena of judicial pronouncements and authorities, a three-Judge Bench of this Court in State through Superintendent of Police, CBI/SIT v. Nalini and others116 summarised the principles relating to criminal conspiracy as under:

“Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

“1. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.

2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

4. Conspirators may, for example, be enrolled in a chain – A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollment, where a single person at the center doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders”.

8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefore. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”

285. The rationale of conspiracy is that the required objective manifestation of disposition of criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interest of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators. An agreement of this kind can rarely be shown by direct proof; it must be inferred from the circumstantial evidence of co-operation between the accused. What people do is, of course, evidence of what lies in their minds. To convict a person of conspiracy, the prosecution must show that he agreed with others that they would together accomplish the unlawful object of the conspiracy. [See: Firozuddin Basheeruddin and others v. State of Kerala117]

286. In Suresh Chandra Bahri v. State of Bihar118, this Court reiterated that the essential ingredient of criminal conspiracy is the agreement to commit an offence. After referring to the judgments in Noor Mohd. Mohd. Yusuf Momi (supra) and V.C. Shukla v. State (Delhi Admn.)119, it was held in S.C. Bahri (supra) as under:

“[A] cursory look to the provisions contained in Section 120-A reveals that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact-situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub-section (2) of Section 120-A IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.”

287. From the law discussed above, it becomes clear that the prosecution must adduce evidence to prove that:
(i) the accused agreed to do or caused to be done an act;
(ii) such an act was illegal or was to be done by illegal means within the meaning of IPC;
(iii) irrespective of whether some overt act was done by one of the accused in pursuance of the agreement.

288. In the case at hand, the prosecution has examined PW-82 to prove the charges of conspiracy and for further identification of all the accused persons in the bus on the date of the incident. He has also been presented to support the prosecution case that immediately preceding the fateful incident, all the accused persons had, in execution of their conspiracy, been robbing/merry-making with passengers on the road.

289. The defence has controverted the testimony of PW-82 on several aspects which has already been discussed before. It has been alleged that Ram Adhar, PW-82, is a planted witness who was brought in by the investigators to fill the lacunae, if any, in their investigation and to further make a strong case against the accused persons. The defence has further denied the presence of accused Mukesh at the scene of the crime. Accused Vinay and accused Akshay have also raised the plea of alibi which has been dealt with separately by us. Regardless of the fact that we have found the testimony of PW-82 to be creditworthy, even if the same is not taken into account for the purpose of establishing that the accused acted in concert with each other to commit heinous offences against the victim, the testimony of PW-1 coupled with the dying declarations of the prosecutrix irrefragably establish the charge under Section 120B against all the accused persons.

290. First of all, in order to prove the presence of all the accused on board the bus where the entire incident took place, the prosecution has relied upon the testimony of PW-1, PW-82, PW-16 and, most importantly, the dying declarations of the prosecutrix.

291. As per the records, PW-82 has testified to the effect that on the date of the incident, about 8:30 p.m., he had boarded the concerned bus from Munirka Bus Stand, New Delhi, on noticing that the conductor of the bus sought commuters for Khanpur. However, he was later informed that he would be dropped at Nehru Place instead of Khanpur. When PW-82 tried to get down the bus, he was wrongfully confined, attacked by the persons inside the bus who robbed him of his belongings, viz., Rs.1500/- in cash and a mobile phone, and he was then thrown out of the moving bus. During the trial, PW-82 has identified all the four accused persons, viz., Akshay Kumar Singh @ Thakur, Pawan Gupta, Vinay Sharma and accused Mukesh, present in the concerned bus at the time of the incident. PW-82 had lodged the complaint on 18.12.2012 on the basis of which FIR No. 414 of 2012 was registered at P.S. Vasant Vihar, New Delhi under Sections 365, 397, 342 IPC.

292. Learned senior counsel for the State, Mr. Luthra, has submitted that PW-82 had been examined to establish the conduct of the accused on the aspect of conspiracy and also to establish the identity of the accused persons before the trial court. It was further submitted that PW-82, Ram Adhar, identified all the four accused in the court, namely, Akshay Kumar Singh @ Thakur, Pawan Gupta, Vinay Sharma and Mukesh besides two others present inside the bus and also identified Mukesh as driving the bus and stated that others took him inside the bus and robbed him and attacked him.

293. The contention of the appellants is that the testimony of PW-82 is not bereft of doubt for several reasons, namely, a) delay in lodging FIR, b) non-examination of Sanjiv Bhai as a witness, c) he has stated that he heard the person with the burnt hand say “Mukesh, tez chalao”, d) apart from that, he does not mention that he heard the names of any of the accused, and e) he had not visited a doctor/hospital despite stating that he had injuries on his face which prevented him from registering an FIR.

294. Regarding the alleged incident of attack on PW-82 by the accused, it was submitted that the said case against the accused ended in conviction and the same is pending in appeal. In respect of the credibility of the testimony of PW-82 as to the commission of the offence, we are not inclined to take into account the evidence of PW-82 except on one limited aspect, that is, the presence of the accused in the bus, Ex.P1, on the night of 16.12.2012 since PW-82’s presence in the bus on the night of 16.12.2012 is admitted. In his statement under Section 313 CrPC, Mukesh-A2 admitted that PW-82 had boarded the offending bus prior to the boarding of the bus by the informant and the victim. The relevant portion of his statement is extracted as under:

“Q.211: It is in evidence against you that PW82 Shri Ram Adhar deposed that on 16.12.2012 after finishing his carpenter’s work at a shop at Munirka till about 8:30 PM, he boarded a white colour bus from sabji Market across the road of my work place. The helper of the bus was calling the passenger by saying “khanpur-khanpur”. As PW82 boarded the bus, one of the occupants told him that the bus is going to Nehru Place. As PW82 tried to get down, one person whose one limb was having burn injuries, gave beating to him. The other person pulled him inside the bus towards the back side and they all gave beating to him and removed his belongings i.e. one mobile with two sims and Rs.1500/-. The sim card numbers were 9999095739 and 9971612554. What do you have to say?

Ans: It is correct that PW82 Shri Ram Adhar had boarded the bus Ex.P1 on 16.12.2012 prior to the boarding of the bus Ex.P1 by the complainant and the victim. He boarded the bus from Sabji Mandi at Sector-4 on the main road. He went on the back side of the bus but after sometime he was made to deboard the bus at IIT flyover by accused Akshay as he had no money to pay the fare. At that time accused Akshay, accused Ram Singh, since deceased, accused Vinay accused Pawan along with JCL were present in the bus and I was driving it.”
[underlining added]

The presence of PW-82 in Ex.P1 bus prior to the boarding of the bus by the informant, PW-1, and the victim and the presence of all the accused in the bus is, thus, established by the prosecution.

295. The evidence of PW-81, Dinesh Yadav, the owner of the offending bus, indicates accused Ram Singh, A-1, (since deceased) as the driver of the bus and Akshay Kumar as the cleaner of the bus which is further shown in the attendance register of the bus exhibited as Ex.PW-80/K. The evidence of PW-81, Dinesh Yadav, is corroborated by the entries made in the attendance register where in the driver’s page at Sl. No. 5, the name of accused Ram Singh (since deceased) is written against bus No. 0149 and at Sl.No. 15, the name of Akshay is written as helper against bus No. 0149. As stated earlier, the bus bearing Registration No.DL-1PC-0149 was one of the buses hired by Birla Vidya Niketan School, Pushp Vihar, New Delhi and the fact that the driver of the bus at the relevant time was Ram Singh is sought to be proved by the prosecution through the testimony of PW-16, Rajeev Jakhmola, Manager (Administration) of the said school. The said witness has testified that one Dinesh Yadav, PW-81, had provided seven buses to the school including bus bearing No. DL-1PC-0149 for the purpose of ferrying the children of the school. The driver of this bus was one Ram Singh, son of Mange Lal. The documents relating to the bus including the photocopies of the agreement between the school and the bus contractor, copy of the driving licence of Ram Singh, A-1, and the letter of termination dated 18.12.2012 with “Yadav Travels” were furnished to the Investigating Officer, SI Pratibha Sharma, vide his letter dated 25.12.2012, exhibited as Ex.PW-16/A (colly.). From the evidence of PW-16, Rajeev Jakhmola, it stands proved that the bus in question was routinely driven by Ram Singh (since deceased). The statement of PW-16, Rajeev Jakhmola, is corroborated by the testimony of PW-81, Dinesh Yadav. Significantly, PW-81, Dinesh Yadav, further testified:

“This bus was being parked by accused Ram Singh near his house because this bus was attached with the school and also with an office as a chartered bus and that the accused used to pick up the students early in the morning.”

296. The testimony of PW-13, Brijesh Gupta, who was an auto driver and also resident of jhuggi at Ravi Dass Camp from where the offending bus was seized is also relevant to prove the presence of the accused in the bus. He stated in his evidence that A-1, Ram Singh (since deceased), is the brother of A-2, Mukesh, and that both resided in the jhuggi at Ravi Dass camp and that Ram Singh used to drive the said bus and park it in the night near his jhuggi. PW-13, in his evidence, deposed that on the night of 16.12.2012, about 11:30 p.m., when he returned to his jhuggi after plying his auto, he saw accused Mukesh, A-2, taking water in some can inside a white colour bus and washing it from inside. He also noticed some clothes and pieces of curtains being burnt in the fire.

297. In his questioning under Section 313 CrPC, Mukesh, A-2, has admitted that he and A-1, Ram Singh (since deceased), are brothers. He has also admitted that on the night of 16.12.2012, he was driving the bus and that accused Pawan and Vinay Sharma were seated on the backside of the driver’s seat, whereas Akshay and Ram Singh were sitting in the driver’s cabin. The relevant portion of his statement under Section 313 CrPC reads as under:

“Q2. It is in evidence against you that PW1 further deposed that they inquired from 4-5 auto rickshaw-walas to take them to Dwarka, but they all refused. At about 9 PM they reached at Munirka bus stand and found a white colour bus on which “Yadav” was written. A boy in the bus was calling for commuters for Dwarka/Palam Mod. PW1 noticed yellow and green line/strips on the bus and that the entry gate of the bus was ahead of its front tyre, as in luxury buses and that the front tyre was not having a wheel cover. What do you have to say?

Ans: I was driving the bus while my brother Ram Singh, since deceased and JCL, Raju was calling for passengers by saying “Palam/Dwarka Mod”.

Q4: It is in evidence against you that during the course of his deposition, complainant, PW-1 has identified you accused Mukesh to be the person who was sitting on the driver’s seat and was driving the bus; PW1 further identified your co-accused Ram Singh (since deceased), and Akshay Kumar to be the person who were sitting in the driver’s cabin alongwith the driver; PW-1 had also identified your co-accused Pawan Kumar who was sitting in front of him in two seats row of the bus; PW-1 had also identified your co-accused Vinay Sharma to be the person who was sitting in three seats row just behind the Driver’s cabin, when PW1 entered the bus; PW1 has also deposed before the court that the conductor who was calling him and his friend/prosecutrix to board the bus Ex.P1 was not among the accused person being tried in this court.

Ans: Accused Pawan and accused Vinay Sharma were sitting on my back side of the driver’s seat and whereas accused Akshay was sitting in the driver’s cabin while my brother Ram Singh, since deceased was asking for passengers.

Q5: It is in evidence against you that after entering the bus PW1 noticed that seats cover of the bus were of red colour and it had yellow colour curtains and the windows of the bus had black film on it. The windows were at quite a height as in luxury buses. As PW1 sat down inside the bus, he noticed that two of you accused were sitting in the driver’s cabin were coming and returning to the driver’s cabin. PW1 paid an amount of Rs.20/- as bus fare to the conductor i.e. Rs.10/- per head. What do you have to say?

Ans: It is correct that the windows of the bus Ex.P1 were having black film on it but I cannot say if the seats of the bus were having red covers or that the curtains were of yellow colour as my brother Ram Singh, since deceased, only used to drive the bus daily and that on that day since he was drunk heavily so I had gone to Munirka to bring him to my house and hence, I was driving the bus on that day. I had gone to Munirka with my nephew on my cycle to fetch Ram Singh since deceased and that the other boys alongwith Ram Singh had already taken the bus from R.K.Puram. I was called by Ram Singh on phone to come at Munirka.”

298. A-3, Akshay @ Thakur, in his statement under Section 313 CrPC, has admitted that he was working with A-1, Ram Singh (since deceased), in the offending bus, Ex.P1, as a helper. He has also admitted therein that he had joined A-1, Ram Singh (since deceased), on 03.11.2012. The relevant portion of his statement under Section 313 CrPC is extracted hereunder:

“Q.210: It is in evidence against you that PW81 Shri Dinesh Yadav is the owner of the bus Ex.P1 and that he has employed accused Ram Singh, since deceased, as the driver of the bus in the month of December, 2012 and you accused Akshay was working as helper in the said bus. Further, he deposed that on 25.12.2012 he had handed over the documents relating to the bus to the investigating officer, seized vide memo Ex.PW80/K. The copy of the challan and copy of the notice are collectively Ex.P-81/1 and the register on which “Yadav Travels 2012” is written is Ex.P-81/2. He also identified the driving license Ex.P-74/1 of his driver, accused Ram Singh, since deceased. He further deposed that the bus Ex.P1 used to ply in Birla Vidya Niketan as well as chartered bus and used to take the office-goers from Delhi and drop them at Noida every morning and evening. What do you have to say?

Ans: It is correct that I was working as a helper in the bus Ex.P1. I joined Ram Singh, since deceased as helper on 3.11.2012 but I left the company of Ram Singh on 15.12.2012 at about 10.30 AM and I left for my village at 11:30 am and I went to New Delhi Railway Station and I left Delhi in the train at about 2:30 P.M.”

299. DW-5, Smt. Champa Devi, is the mother of Vinay Sharma, A-4. She has stated in her evidence that her son, Vinay Sharma, A-4, who returned home at 4:00 p.m. on 16.12.2012, went in search of A-1 on hearing about the misbehaviour of A-1, Ram Singh (since deceased), with his sister and was able to trace him by 8:00 p.m. and that her son Vinay Sharma, A-4, had quarreled with Ram Singh, A-1. She has deposed in her evidence that her son Vinay Sharma returned bleeding from his mouth and after some time they had left to the DDA District Park to attend a musical programme where they had met A-5, Pawan alias Kaalu, alongwith two others.

300. The prosecution has, thus, established that the accused were associated with each other. The criminal acts done in furtherance of conspiracy is established by the sequence of events and the conduct of the accused. An important facet of the law of conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of the conspiracy. Section 10 of the Indian Evidence Act which reads as under is relevant in this context:

“10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

301. Section 10 of the Indian Evidence Act begins with the phrase “where there is reasonable ground to believe that two or more persons have conspired together to commit an offence” which implies that if prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of the common intention is admissible against all. In the facts of the present case, the prima facie evidence of the existence of conspiracy is well established.

302. The informant, PW-1, has also deposed as to the clarity of the entire incident. He has identified all the accused to be present in the bus when he had boarded the same with the prosecutrix. He has maintained that he saw three persons sitting in the driver’s cabin who were moving in and out of the cabin. Both the informant and the prosecutrix had sensed some sort of hostility and strangeness in the behaviour of the accused. But, as they had paid for the ticket, they quietly kept sitting. Soon they found that the lights in the bus were put off and the accused Ram Singh (since deceased) and accused Akshay came near them to ask where PW1 was heading with the prosecutrix at that odd time of the evening. PW-1, on objecting to such a query, was beaten and pinned down by the accused. Thereafter, all the accused, one after the other, committed rape and unnatural sex on the prosecutrix using iron rods which has been explicitly described by the prosecutrix herself in her dying declarations recorded by PW-27, Sub-Divisional Magistrate, and PW-30, Metropolitan Magistrate. The relevant portion of the second dying declaration of the prosecutrix as contained in Ex.PW-27/A is as under:

“Q.09 Iske baad kya hua? Kripya vistaar se bataiye. Ans.09 Paanch minute baad jab bus Malai Mandir ke pul par chadi toh conductor ne bus ke darwaze bandh kar diye aur andar ki batiya bujha di aur mere dost ke paas akar galiyan dene lage aur marne lage. Usko 3-4 logo ne pakad liya aur mujh ko baki log mujhe bus ke peechey hisey mein le gaye aur mere kapde faad diye aur bari-2 se rape kiya. Lohey ki rod se mujhe mere paet par maara aur poore shareer par danto se kata. Is se pehle mere dost ka saman – mobile phone, purse, credit card & debit card, ghadi aadi cheen liye. But total chhey (6) log the jinhoney bari-bari se oral (oral) vaginal (through vagina) aur pichhey se (anal) balatkar kiya. In logo ne lohe ki rod ko mere shareer ke andar vaginal/guptang aur guda (pichhey se) (through rectum) dala aur phir bahar bhi nikala. Aur mere guptango haath aur lohe ki rod dal kar mere shareer ke andruni hisson ko bahar nikala aur chot pahunchayi. Chhey logo ne bari-bari se mere saath kareeb ek ghante tak balatkar kiya. Chalti huyi bus mein he driver badalta raha taaki woh bhi balatkar kar sake.”

303. The chain of events described by the prosecutrix in her dying declarations coupled with the testimonies of the other witnesses clearly establish that as soon as the informant and the prosecutrix boarded the bus, the accused persons formed an agreement to commit heinous offences against the victim. Forcefully having sexual intercourse with the prosecutrix, one after the other, inserting iron rod in her private parts, dragging her by her hair and then throwing her out of the bus all establish the common intent of the accused to rape and murder the prosecutrix. The trial court has rightly recorded that the prosecutrix’s alimentary canal from the level of duodenum upto 5 cm of anal sphincter was completely damaged. It was beyond repair. Causing of damage to the jejunum is indicative of the fact that the rod was inserted through the vagina and/or anus upto the level of jejunum. Further, septicemia was the direct result of multiple internal injuries. Moreover, the prosecutrix has also maintained in her dying declaration that the accused persons were exhorting that the prosecutrix had died and she be thrown out of the bus. Ultimately, both the prosecutrix as well as the informant were thrown out of the moving bus through the front door by the accused after having failed to throw them through the rear door. The conduct of the accused in committing heinous offences with the prosecutrix in concert with each other and thereafter throwing her out of the bus in an unconscious state alongwith PW-1 unequivocaly bring home the charge under Section 120B in case of each of them. The criminal acts done in furtherance of the conspiracy is evident from the acts and also the words uttered during the commission of the offence. Therefore, we do not have the slightest hesitation in holding that the trial court and the High Court have correctly considered the entire case on the touchstone of well-recognised principles for arriving at the conclusion of criminal conspiracy. The prosecution has been able to unfurl the case relating to criminal conspiracy by placing the materials on record and connecting the chain of circumstances. The relevant evidence on record lead to a singular conclusion that the accused persons are liable for criminal conspiracy and their confessions to counter the same deserve to be repelled.

Summary of conclusions:

304. From the critical analysis, keen appreciation of the evidence and studied scrutiny of the oral evidence and other materials, we arrive at the following conclusions:

i. The evidence of PW-1 is unimpeachable and it deserves to be relied upon.
ii. The accused persons alongwith the juvenile in conflict with law were present in the bus when the prosecutrix and her friend got into the bus.
iii. There is no reason or justification to disregard the CCTV footage, for the same has been duly proved and it clearly establishes the description and movement of the bus.
iv. The arrest of the accused persons from various places at different times has been clearly proven by the prosecution.
v. The personal search, recoveries and the disclosure leading to recovery are in consonance with law and the assail of the same on the counts of custodial confession made under torture and other pleas are highly specious pleas and they do not remotely create a dent in the said aspects.
vi. The contention raised by the accused persons that the recoveries on the basis of disclosure were a gross manipulation by the investigating agency and deserve to be thrown overboard does not merit acceptance.
vii. The relationship between the parties having been clearly established, their arrest gains more credibility and the involvement of each accused gains credence.
viii. The dying declarations, three in number, do withstand close scrutiny and they are consistent with each other.
ix. The stand that the deceased could not have given any dying declaration because of her health condition has to be repelled because the witnesses who have stated about the dying declarations have stood embedded to their version and nothing has been brought on record to discredit the same. That apart, the dying declaration by gestures has been proved beyond reasonable doubt.
x. There is no justification in any manner whatsoever to think that PW-1 and the deceased would falsely implicate the accused-appellants and leave the real culprits.
xi. The dying declarations made by the deceased have received corroboration from the oral and documentary evidence and also enormously from the medical evidence.
xii. The DNA profiling, which has been done after taking due care for quality, proves to the hilt the presence of the accused persons in the bus and their involvement in the crime. The submission that certain samples were later on taken from the accused and planted on the deceased to prove the DNA aspect is noted only to be rejected because it has no legs to stand upon.
xiii. The argument that the transfusion of blood has the potentiality to give rise to two categories of DNA or two DNAs is farthest from truth and there is no evidence on that score. On the contrary, the evidence in exclusivity points to the matching of the DNA of the deceased with that of the accused on many aspects. The evidence brought on record with regard to finger prints is absolutely impeccable and the trial court and the High Court have correctly placed reliance on the same and we, in our analysis, have found that there is no reason to disbelieve the same.
xiv. The scientific evidence relating to odontology shows how far the accused have proceeded and where the bites have been found and definitely, it is extremely impossible to accept the submission that it has been a manipulation by the investigating agency to rope in the accused persons.
xv. The evidence brought on record as regards criminal conspiracy stands established.

In view of the aforesaid summation, the inevitable conclusion is that the prosecution has proved the charges leveled against the appellants beyond reasonable doubt.

Sentencing procedure and compliance of Section 235(2) CrPC:

305. Now we shall proceed to sentencing. A submission was raised that provisions of Section 235(2) CrPC was not complied with. The said provision reads as follows:

“235. Judgment of acquittal or conviction
(1) …..
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

306. While discussing Section 235(2) CrPC, this Court, in Santa Singh v. State of Punjab120, observed as follows:

“4. …. the hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.”

307. A three-Judge Bench in Dagdu and others v. State of Maharashtra121 considered the object and scope of Section 235(2) CrPC and held that:

“79. But we are unable to read the judgment in Santa Singh as laying down that the failure on the part of the Court, which convicts an accused, to hear him on the question of sentence must necessarily entail a remand to that Court in order to afford to the accused an opportunity to be heard on the question us sentence. The Court, on convicting an accused, must unquestionably hear him on the qustion of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.

80. Bhagwati, J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is nut abused and turned into an instrument for unduly protracting the proceedings. The material on which the accused proposes to rely may therefore, according to the learned Judge, be placed before the Court by means of an affidavit. Fazal Ali, J., also observes that the courts must be vigilant to exercise proper control over their proceedings, that the accused must not be permitted to adopt dilatory tactics under the cover of the new right and that what Section 235(2) contemplates is a short and simple opportunity to place the necessary material before the Court. These observations show that for a proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction. The fact that in Santa Singh this Court remanded the matter to the Sessions Court does not spell out the ratio of the judgment to be that in every such case there has to be a remand. Remand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.”

308. Mr. Raju Ramachandran, learned amicus curiae, submitted that the sentence passed by the trial court that has been confirmed by the High Court ought to be set aside as they have not followed the fundamental norms of sentencing and have not been guided by the paramount beacons of legislative policy discernible from Section 354(3) and Section 235(2) CrPC. It is urged by him that the import of Section 235 CrPC is not only to hear the submissions orally but also to afford an opportunity to the prosecution and the defence to place the relevant material having bearing on the question of sentence. Learned amicus curiae would submit that the trial court as well as the High Court has failed to put any of the accused persons to notice on the question of imposition of death sentence; that sufficient time was not granted to reflect on the question of death penalty; that none of the accused persons were heard in person; that the learned trial Judge has failed to elicit those circumstances of the accused which would have a bearing on the question of sentence, especially the mitigating factors in a case where death penalty is imposed; that no separate reasons were ascribed for the imposition of death penalty on each of the accused; and that it was obligatory on the part of the learned trial Judge to individually afford an opportunity to the accused persons. Learned amicus curiae would submit that the learned trial Judge has pronounced the sentence in a routine manner which vitiates the sentence inasmuch as the solemn duty of the sentencing court has not been kept in view. Mr. Ramachandran had emphatically put forth that denial of an individualized sentencing process results in the denial of Articles 14 and 21 of the Constitution of India. Mr. Luthra, learned senior counsel for the respondent-State, submitted that the learned trial Judge had heard the accused persons and there has been compliance with Section 235(2) CrPC and the High Court has appositely concurred with the same.

309. Be it stated, after hearing the learned counsel for the both sides and the learned amicus curiae, the Court, on 03.02.2017, passed the following order:

“After the argument for the accused persons by Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel were advanced, we thought it appropriate to hear the learned friends of the Court and, accordingly, we have heard Mr. Raju Ramachandran and Mr. Sanjay R. Hegde, learned senior counsel. It is worthy to note here that Mr. Hegde, learned senior counsel argued on the sustainability of the conviction on many a ground and submitted a written note of submission. Mr. Ramachandran, learned senior counsel, inter alia, emphasized on the aspect of sentence imposed by the trial court which has been confirmed under Section 366 Cr.P.C. While arguing with regard to the imposition of the capital punishment on the accused persons, one of the main submissions of Mr. Ramachandran was that neither the trial court nor the High Court has followed the mandate enshrined under Section 235(2) of the Code of Criminal Procedure. Section 235(2) Cr.P.C. reads as follows:-

“235. Judgment of acquittal or conviction.- (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Referring to the procedure adopted by the trial court, it was urged by Mr. Ramachandran that the learned trial Judge had not considered the aggravating and mitigating circumstances, as are required to be considered in view of the Constitution Bench decision in Bachan Singh vs. State of Punjab122, and further there has been a failure of the substantive law, inasmuch as there has been weighing of the mitigating or the aggravating circumstances in respect of each individual accused. Learned senior counsel contended that Section 235(2) Cr.P.C. is not a mere formality and in a case when there are more than one accused, it is obligatory on the part of the learned trial Judge to hear the accused individually on the question of sentence and deal with him. As put forth by Mr. Ramachandran, the High Court has also failed to take pains in that regard. To bolster his submission, he has commended us to the authority in Santa Singh vs. The State of Punjab. In the said case, Bhagwati, J. dealt with the anatomy of Section 235 Cr.P.C., the purpose and purport behind it and, eventually, came to hold that:-

“Law strives to give them social and economic justice and it has, therefore, necessarily to be weighted in favour of the weak and the exposed. This is the new law which judges are now called upon to administer and it is, therefore, essential that they should receive proper training which would bring about an orientation in their approach and outlook, stimulate sympathies in them for the vulnerable sections of the community and inject a new awareness and sense of public commitment in them. They should also be educated in the new trends in penology and sentencing procedures so that they may learn to use penal law as a tool for reforming and rehabilitating criminals and smoothening out the uneven texture of the social fabric and not as a weapon, fashioned by law, for protecting and perpetuating the hegemony of one class over the other. Be that as it may, it is clear that the learned Sessions Judge was not aware of the provision in section 235(2) and so also was the lawyer of the appellant in the High Court unaware of it. No inference can, therefore, be drawn from the omission of the appellant to raise this point, that he had nothing to Say in regard to the sentence and that consequently no prejudice was caused to him.”

Thereafter, the learned Judge opined that non-compliance goes to the very root of the matter and it results in vitiating the sentence imposed. Eventually, Bhagwati, J. set aside the sentence of death and remanded the case to the court of session with a direction to pass appropriate sentence after giving an opportunity to the appellant therein to be heard in regard to the question of sentence in accordance with the provision contained in Section 235(2) Cr.P.C. as interpreted by him.

In the concurring opinion, Fazal Ali, J., ruled thus:-

“The last point to be considered is the extent and import of the word “hear” used in Section 235(2) of the 1973 Code. Does it indicate, that the accused should enter into a fresh trial by producing oral and documentary evidence on the question of the sentence which naturally will result in further delay of the trial? The Parliament does not appear to have intended that the accused should adopt dilatory tactics under the cover of this new provision but contemplated that a short and simple opportunity has to be given to the accused to place materials if necessary by leading evidence before the Court bearing on the question of sentence and a consequent opportunity to the prosecution to rebut those materials. The Law Commission was fully aware of this anomaly and it accordingly suggested thus:

“We are aware that a provision for an opportunity to give evidence in this respect may necessitate an adjournment; and to avoid delay adjournment, for the purpose should, ordinarily be for not more than 14 days. It may be so provided in the relevant clause. It may not be practicable to keep up to the time-limit suggested by the Law Commission with mathematical accuracy but the Courts must be vigilant to exercise proper control over the proceedings so that the trial is not unavoidably or unnecessarily delayed.”

The said decision was considered by a three-Judge Bench in Dagdu and Others vs. State of Maharashtra (1977) 3 SCC 68. The three-Judge Bench referred to the law laid down in Santa Singh (supra) and opined that the mandate of Section 235 (2) Cr.P.C. has to be obeyed in letter and spirit. However, the larger Bench thought that Santa Singh (supra) does not lay down as a principle that failure on the part of the Court which convicts an accused, to hear him on the question of sentence must necessarily entail a remand to that Court in order to afford the accused an opportunity to be heard on the question of sentence. Chandrachud, J. (as His Lordship then was) speaking for the Bench ruled thus:-

“The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.”

It is seemly to note here that Mr. Ramachandran has also commended us to a three-Judge Bench decision in Malkiat Singh and Others vs. State of Punjab (1991) 4 SCC 341, wherein the three-Judge Bench ruled that sufficient time has to be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.

Learned senior counsel has also drawn our attention to a two-Judge Bench decision in Ajay Pandit alias Jagdish Dayabhai Patel and Another vs. State of Maharashtra (2012) 8 SCC 43, wherein the matter was remanded to the High Court. Mr. Ramachandran has drawn our attention to paragraph 47 of the said authority. It reads as follows:-

“Awarding death sentence is an exception, nor the rule, and only in the rarest of rare cases, the court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) CrPC.”

Having considered all the authorities, we find that there are two modes, one is to remand the matter or to direct the accused persons to produce necessary data and advance the contention on the question of sentence. Regard being had to the nature of the case, we think it appropriate to adopt the second mode. To elaborate, we would like to give opportunity before conclusion of the hearing to the accused persons to file affidavits along with documents stating about the mitigating circumstances. Needless to say, for the said purpose, it is necessary that the learned counsel, Mr. M.L. Sharma and his associate Ms. Suman and Mr. A.P. Singh and his associate Mr. V.P. Singh should be allowed to visit the jail and communicate with the accused persons and file the requisite affidavits and materials.

At this juncture, Mr. M.L. Sharma, learned counsel has submitted that on many a occasion, he has faced difficulty as he had to wait in the jail to have a dialogue with his clients. Mr. Sidharth Luthra, learned senior counsel has submitted that if this Court directs, Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel and their associate Advocates can visit the jail at 2.45 p.m. each day and they shall be allowed to enter the jail between 3.00 p.m. to 3.15 p.m. and can spend time till 5.00 p.m. Needless to say, they can commence their visits from 7th February, 2017, and file the necessary separate affidavits and documents. After the affidavits are made ready by the learned counsel for the accused persons, they can intimate about the same to Mr. Luthra, who in his turn, shall intimate the same to the Superintendent of Jail, who shall make arrangement for a Notary so that affidavits can be notarized, treating this as a direction of this Court. Needless to say, while the learned counsel will be discussing with the accused persons, the meeting shall be held in separate rooms inside the jail premises so that they can have a free discussion with the accused persons. Needless to say, they can reproduce in verbatim what the accused persons tell them in the affidavit. The affidavits shall be filed by 23rd February, 2017.

We may hasten to add that after the affidavits come on record, a date shall be fixed for hearing of the affidavits and pertaining to quantum of sentence if, eventually, the conviction is affirmed. The learned counsel for the prosecution, needless to say, is entitled to file necessary affidavits with regard to the circumstances or reasons for sustenance of the sentence. Additionally, the prosecution is given liberty to put forth in the affidavit any refutation, after the copies of the affidavits by the learned counsel for the accused persons are served on him. For the said purpose, a week’s time is granted. Needless to say, the matter shall be heard on sentence, after affidavits from both the sides are brought on record. The date shall be given at 2.00 p.m. on 6th February, 2017. For the present, the matter stands adjourned to 4th February, 2017, for hearing.

Let a copy of the order be handed over to Mr. Sidharth Luthra by 4th February, 2017, who shall get it translated in Hindi and give it to the Superintendent of Jail, who in his turn, shall hand over it to the accused persons and, simultaneously, explain the purport and effect of the order.

The Superintendent of Jail is also directed to submit a report with regard to the conduct of the accused persons while they are in custody.” 310. After passing of the said order, the hearing continued and on 13.02.2017, the following order was passed:

“Mr. A.P. Singh, learned counsel has concluded his arguments. After his conclusion of the arguments, as per our order, dated 3.2.2017, affidavits are required to be filed by 23.2.2017. Let the affidavits be filed by that date. Mr. Siddharth Luthra, learned senior counsel appearing for the State shall file the affidavit by 2nd March, 2017. Registry is directed to hand over copies of the affidavits to Mr. K. Parameshwar, learned counsel assisting Mr. Raju Ramachandran, learned senior counsel and Mr. Anil Kumar Mishra-I, learned counsel assisting Mr. Sanjay Kumar Hegde, learned senior counsel
(Amicus Curiae).

Mr. Luthra, learned senior counsel shall make arrangements for visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma, learned counsel for the petitioners even on Saturday and sunday. He shall intimate our order to the jail authorities so that they can arrange the visit of Mr. A.P. Singh and Mr. Manohar Lal Sharma on Saturday and Sunday.

Let the matter be listed on 3.3.2017 for hearing on the question of sentence, aggravating and mitigating circumstances on the basis of the materials brought on record by learned counsel for the parties.”

311. In pursuance of the aforesaid order, affidavits on behalf of the appellants have been filed. It is necessary to note that the learned counsel for the appellants addressed the Court on the basis of affidavits on 06.03.2017 and the order passed on that date is extracted hereunder:

“Mr. A.P. Singh, learned counsel has filed affidavits on behalf of the three accused persons, namely, Pawan Kumar Gupta, Vinay Sharma and Akshay Kumar Singh and Mr. M.L. Sharma, learned counsel has filed the affidavit on behalf of Mukesh. Be it noted, Mr. A.P. Singh, learned counsel has filed the translated version of the affidavits and Mr. Manohar Lal Sharma, learned counsel has filed the original version in Hindi as well as the translated one.

At this juncture, Mr. Raju Ramachandran, learned senior counsel who has been appointed as Amicus Curiae to assist the Court, submitted that two aspects are required to be further probed to comply with the order dated 3.2.2017 inasmuch as this Court has taken the burden on itself for compliance of Section 235(2) of the Code of Criminal Procedure. Learned senior counsel would point out that the affidavit filed by Mukesh does not cover many aspects, namely, socio-economic background, criminal antecedents, family particulars, personal habits, education, vocational skills, physical health and his conduct in the prison.

Mr. Manohar Lal Sharma, learned counsel submits that a report was asked for from the Superintendent of Jail with regard to the conduct of the accused persons while they are in custody, but the same has not directly been filed by the Superintendent of Jail.

Mr. Siddharth Luthra, learned senior counsel for the respondent-State, would, per contra, contend that he has filed the affidavit and the affidavit contains the report of the Superintendent of Jail.

In our considered opinion, the Superintendent of Jail should have filed the report with regard to the conduct of the accused persons since they are in custody for almost four years. That would have thrown light on their conduct. Let the report with regard to their conduct be filed by the Superintendent of Jail in a sealed cover in the Court on the next date of hearing.

As far as the affidavit filed by Mukesh is concerned, Mr. Sharma, learned counsel stated that he will keep the aspects which are required to be highlighted in mind and file a further affidavit within a week hence.

The direction issued on the earlier occasion with regard to the visit of jail by the learned counsel for the parties shall remain in force till the next date of hearing.

Let the matter be listed at 2.00 p.m. on 20.3.2017. The report of the Superintendent of Jail, as directed hereinabove, shall be filed in Court on that date.”

312. Thereafter, the matter was heard on 20.03.2017 and the following order came to be passed:

“Mr. M.L. Sharma, learned counsel has filed an additional affidavit of the petitioner, Mukesh and Mr. A.P. Singh, learned counsel has filed affidavits for the petitioners, Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh.

Mr. Siddharth Luthra, learned senior counsel has produced two sealed covers containing the reports submitted by Superintendent of the Central Jail No.2 and the Superintendent of Central Jail No.4 in respect of the petitioners who are in the respective jails. Two sealed covers are opened in presence of the learned counsel for the parties. They be kept on record.

Registry is directed to supply a copy of the aforesaid reports to Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the petitioners. Registry shall also supply a copy thereof to Mr. K. Parameshwar, learned counsel assisting Mr. Raju Ramachandran, learned Amicus Curiae and Mr. Anil Kumar Mishra-I, learned counsel assisting Mr. Sanjay R. Hegde, learned Amicus Curiae. A copy of the report shall also be handed over to Ms. Supriya Juneja, learned counsel assisting Mr. Siddharth Luthra, learned senior counsel, for he does not have a copy as the reports have been produced before us in the sealed covers.

Mr. Siddharth Luthra, learned senior counsel prays for and is granted three days time to file a status report and argue the matter.”

Delineation as regards the imposition of sentence

313. Be it noted, we have heard the learned counsel appearing for the parties, Mr. Luthra, learned senior counsel for the respondent-State, Mr. Ramachandran and Mr. Hegde on the question of sentence. Before we advert to the principles for imposition of sentence, we think it appropriate to deal with the affidavits filed by the accused. For the sake of convenience, it is necessary to make a summary of the affidavits.

314. Accused Mukesh, A-2, filed his statement, written in his own hand-writing in Hindi, denying his involvement in the occurrence and pleading innocence. He stated that on 17.12.2012, he was picked up from his house at Karoli, Rajasthan and brought to Delhi where the police tortured him and threatened to kill him. Therefore, he acted as per the direction of the police and V.K. Anand, Advocate. He further stated that he is uneducated and poor, but not a criminal and if he is acquitted, he would go back to Karoli, Rajasthan and would take care of his parents.

315. Accused Akshay Kumar Singh, A-3, has stated that he hails from a naxal affected area in District Aurangabad, Bihar and due to poverty, he could not continue his studies beyond 9th class. He has stated that his aged father Shri Saryu Singh and mother, Smt. Malti Devi, are dependent on him. He has further stated that he is married to Punita Devi since 2010 and they have a son, now aged about six years. He further stated that due to poverty and lack of adequate opportunity in home town, he came to Delhi in the month of November 2012 to earn his livelihood. To maintain his dependants which include his parents, wife and child, he started working as a cleaner in the concerned bus at a wage of Rs.50/- per day. He reiterated his plea of alibi asserting that he had left Delhi on 15.12.2012 in Mahabodhi Express accompanied by his sister-in-law, Sarita Devi, and went to his native place Karmalahang where he was arrested. He further stated that after his confinement in Tihar Jail, he has been maintaining good behaviour and is working hard as a labourer in the prison to maintain his family.

316. Accused Vinay Sharma, A-4, in his affidavit stated that he was born in Kapiya Kalan, Tehsil Rudra Nagar, District Basti, Uttar Pradesh and that his parents used to work as labourers and that his family is very poor. The accused stated that he used to take care of his grandfather who was a religious saint and up to July, 2012, he was studying at his native place in Uttar Pradesh and only after July, 2012, he came to Delhi to pursue his further studies. He has stated that he got himself admitted to the University of Delhi, School of Open Learning, Delhi and to earn his livelihood, he worked as a part-time instructor in gym and also as a seasonal waiter in hotels and marriage ceremonies at night. Accused Vinay Sharma further stated that he has to take care of his ailing parents and also his younger sisters and younger brother, who are totally dependent on him. In his affidavit, he reiterated his plea of alibi asserting that on the fateful day, he had participated in the Christmas celebration and was enjoying there with his family. The accused has further stated that he has no criminal antecedents and after his confinement in Tihar Jail, he has maintained good behaviour and has also organized various musical programmes and his paintings are displayed in Tihar Jail.

317. Accused Pawan Gupta, A-5, filed his affidavit stating that he comes from a very poor family where his father used to sell fruits on the road for their living. He further stated that he is a resident of Cluster Jhuggi Basti and was assisting his father in selling fruits on a cart. The accused also illustrated the ailing condition of his family stating that his parents are heart patients and his mother is a handicapped person suffering from BP and thyroid. He also stated that his younger sister, Dimple Gupta, was under depression on account of the false implication of her brother in the present case and could not tolerate humiliation by the society and she has committed suicide on 09.02.2013. Apart from that, he has to look after his dependant parents and two other sisters, one married and the other unmarried and aged 17 years, and one younger brother. On behalf of accused Pawan Gupta, fervent plea was made that he has no prior criminal antecedent and after being confined to Central Jail, Tihar, he is trying to reform himself into a better person.

318. Mr. Ramachandran, learned amicus curiae, criticized the sentence, placed reliance on Bachan Singh v. State of Punjab123 and submitted that the trial court and the High Court have committed the error of not applying the doctrine of equality which prescribes similar treatment to similar persons and stated that the Court in Bachan Singh (supra) has categorically held that the extreme penalty can be inflicted only in gravest cases of extreme culpability; in making the choice of sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also; and that the mitigating circumstances referred therein are undoubtedly relevant and must be given great weight in the determination of sentence. Further placing reliance on Machhi Singh v. State of Punjab124, it is submitted by learned amicus curiae that in the said case, the Court held that a balance sheet of the aggravating and mitigating circumstances should be drawn up and the mitigating circumstances should be accorded full weightage and a just balance should be struck between the aggravating and mitigating circumstances. He further pointed out number of decisions wherein this Court has given considerable weight to the circumstances of the criminal and commuted the sentence to life imprisonment.

319. Mr. Ramachandran further urged that in the present case, the decision in Bachan Singh (supra) was completely disregarded and the trial court, while sentencing the accused, only placed emphasis on the brutal and heinous nature of the crime and the mitigating factors including the possibility of reform and rehabilitation were ruled out on the basis of the nature of the crime and not on its own merits. It is further contended by him that in Sangeet and another v. State of Haryana125 and Shankar Kisanrao Khade v. State of Maharashtra126, the decisions, i.e., Shiv v. High Court of Karnataka127, B.A.Umesh v. Registrar General, High Court of Karnataka128 and Dhananjoy Chaterjee v. State of West Bengal129, relied upon by the Special Public Prosecutor and the High Court, have been doubted by this Court.

320. Learned amicus curiae has further propounded that sentencing and non-consideration of the mitigating circumstances are violative of Articles 14 and 21 of the Constitution. It is his submission that the prosecution’s argument on aggravating circumstances gets buttressed by the material on record while the plea of mitigating circumstances rests solely on arguments and this imbalance is a serious violation of the doctrine of fairness and reasonableness enshrined in Article 14 of the Constitution; that there should be a fair and principle-based sentencing process in death penalty cases by which a genuine and conscious attempt is made to investigate and evaluate the circumstances of the criminal; that the fair and principled approaches are facets of Article 14; and that if the enumeration and evaluation of mitigating factors are left only to the accused or his counsel and the Court does not accord a principle-based treatment, the imposition of death penalty will be rendered the norm and not the exception, which is an inversion of the Bachan Singh (supra) logic and a serious violation of Article 21 of the Constitution.

321. Mr. Ramachandran submitted that the trial court and the High Court failed to pay due regard to the mitigating factors; that the courts have committed the mistake of rejecting the mitigating factors by reasoning that it may not be sufficient for awarding life sentence; and that the courts have not considered all the mitigating factors cumulatively to arrive at the conclusion whether the case fell within the rarest of rare category. He has referred to the Constitution Bench decision in Triveniben v. State of Gujarat130 wherein Shetty, J. in his concurring opinion, opined that death sentence cannot be given if there is any one mitigating circumstance in favour of the accused and all circumstances of the case should be aggravating and submitted that this line of judicial thought has been completely ignored by the High Court and the trial court.

322. Learned amicus curiae further contended that the attribution of individual role with respect to the iron rod, which was a crucial consideration in convicting the accused under Section 302 IPC, was not considered by the trial court or the High Court in the sentencing process and stressed that when life imprisonment is the norm and death penalty the exception, the lack of individual role has tobe regarded as a major mitigating circumstance. In this regard, reliance has been placed by him on Karnesh Singh v. State of U.P.131, Ronny v. State of Maharashtra132, Nirmal Singh v. State of Haryana133 and Sahdeo v. State of U.P134.

323. Mr. Ramachandran has also contended that subsequent to the pronouncement in Machhi Singh (supra), there are series of decisions by this Court where the Court has given considerable weight to the concept of reformation and rehabilitation and commuted the sentence to life imprisonment. According to him, young age is a mitigating factor and this Court has taken note of the same in Raghubir Singh v. State of Haryana135, Harnam Singh v. State of Uttar Pradesh136, Amit v. State of Maharashtra137, Rahul v. State of Maharashtra138, Rameshbhai Chandubhai Rathod v. State of Gujarat139, Santosh Kumar Bariyar v. State of Maharashtra140, Sebastian v. State of Kerala141, Santosh Kumar Singh (supra), Rameshbhai Chandubhai Rathod II v. State of Gujarat142, Amit v. State of Uttar Pradesh143 and Lalit Kumar Yadav v. State of Uttar Pradesh144. That apart, it is urged by him that when the crime is not pre-meditated, the same becomes a mitigating factor and that has been taken note of by this Court in the authorities in Akhtar v State of Uttar Pradesh145, Raju v. State of Haryana146 and Amrit Singh v. State of Punjab147.

324. Learned amicus curiae would further urge that when the criminal antecedents are lacking and the prosecution has not been able to say about that the appellants deserve imposition of lesser sentence. For the said purpose, he has commended us to the authorities in Nirmal Singh (supra), Raju v. State of Haryana (supra), Amit v. State of Maharashtra (supra), Surender Pal v. State of Gujarat148, Rameshbhai Chandubhai Rathod II (supra), Amit v. State of Uttar Pradesh (supra), Anil v. State of Maharashtra149 and Lalit Kumar Yadav v. State of Uttar Pradesh150.

325. Learned senior counsel has emphasized on the reform, rehabilitation and absence of any continuing threat to the collective which are factors to be taken into consideration for the purpose of commutation of death penalty to life imprisonment. In this regard, learned senior counsel has drawn inspiration from the decisions in Ronny (supra), Nirmal Singh (supra), Bantu v. State of Madhya Pradesh151, Lehna (supra), Rahul (supra), Santosh Kumar Bariyar (supra), Santosh Kumar Singh (supra), Rajesh Kumar v. State152, Amit v. State of Uttar Pradesh (supra), Ramnaresh v. State of Chhattisgarh153, Sandesh v. State of Maharashtra154 and Lalit Kumar Yadav (supra).

326. Mr. Ramachandran has also submitted that the present case should be treated as a special category as has been held in Swamy Shradhananda (2) v. State of Karnataka155 and the recent Constitution Bench decision in Union of India v. Sriharan156. It is urged by him that in many a case, this Court has exercised the said discretion. Learned senior counsel in that regard has drawn our attention to the pronouncements in Rameshbhai Chandubhai Rathod (supra), Neel Kumar v. State of Haryana157, Ram Deo Prasad v. State of Bihar158, Chhote Lal v.State of Madhya Pradesh159, Anil v. State of Maharashtra (supra), Rajkumar (supra) and Selvam v. State160.

327. Mr. Hegde, learned friend of the Court, canvassed that the theory of reformation cannot be ignored entirely in the obtaining factual matrix in view of the materials brought on record. Learned senior counsel would contend that imposition of death penalty would be extremely harsh and totally unwarranted inasmuch as the case at hand does not fall in the category of rarest of rare case. That apart, it is contended by him that the entire incident has to be viewed from a different perspective, that is, the accused persons had the bus in their control, they were drunk, and situation emerged where the poverty-stricken persons felt empowered as a consequence of which the incident took place and considering the said aspect, they may be imposed substantive custodial sentence for specific years but not death penalty. Additionally, it is submitted by him that in the absence of pre-meditation to commit a crime of the present nature, it would not invite the harshest punishment.

328. Mr. Luthra, learned senior counsel, has referred to the reports of the Superintendent of Jail that the conduct of the accused persons in the jail has been absolutely non-satisfactory and non-cooperative and the diabolic nature of the crime has shaken the collective conscience. According to him, the diabolic nature of the crime has nothing to do with poverty, for it was not committed for alleviation of poverty but to satiate their sexual appetite and enormous perversity. He would submit that this would come in the category of rarest of the rare cases in view of the law laid down in Sevaka Perumal v. State of Tamil Nadu161, Kamta Tiwari v. State of Madhya Pradesh162, State of U.P. v. Satish163, Holiram Bordoloi v. State of Assam164, Ankush Maruti Shinde v. State of Maharashtra165, Sundar v. State166 and Mohfil Khan v. State of Jharkhand167.

329. It is also submitted by Mr. Luthra that mitigating circumstances are required to be considered in the light of the offence and not alone on the backdrop of age and family background. For this purpose, he has relied upon Deepak Rai v. State of Bihar168 and Purshottam Dashrath Borate v. State of Maharashtra169. 330. Mr. Sharma and Mr. Singh, learned counsel for the appellants, would submit that the conduct of the accused persons shows reformation as there are engaged in educating themselves and also they have been participating in affirmative and constructive activities adopted in jail and so, death penalty should not be affirmed and should be commuted. Mr. Sharma, learned counsel appearing for the accused Mukesh, submits that he is not connected with the crime in question. It is put forth that the case at hand cannot be regarded as rarest of the rare cases and, therefore, the maximum punishment that can be given should be for a specific period.

331. Presently, we shall proceed to analyse the aforesaid aspect. In Bachan Singh (supra), the Court held thus:

“(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.”

332. In the said case, the Court, after referring to the authority in Furman v. Georgia170, noted the suggestion given by the learned counsel about the aggravating and the mitigating circumstances. The aggravating circumstances suggested by the counsel read as follows:

“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—

(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

After reproducing the same, the Court opined:

“Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”

333. Thereafter, the Court referred to the suggestions
pertaining to mitigating circumstances:
“Mitigating circumstances.—In the exercise of its
discretion in the above cases, the court shall take
into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

The Court then observed:

“We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.”

334. In the said case, the Court has also held thus:

“It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

335. In Machhi Singh (supra), a three-Judge Bench has explained the concept of ‘rarest of the rare cases’ by observing thus:

“The reasons why the community as a whole does not endorse the humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of ‘reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.”

336. Thereafter, the Court has adverted to the aspects of the feeling of the community and its desire for self-preservation and opined that the community may well withdraw the protection by sanctioning the death penalty. What has been ruled in this regard is worth reproducing:

“But the community will not do so in every case. It may do so ‘in the rarest of rare cases’ when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

337. It is apt to state here that in the said case, stress was laid on certain aspects, namely, the manner of commission of the murder, the motive for commission of the murder, anti-social or socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of murder.

338. After so enumerating, the propositions that emerged from Bachan Singh (supra) were culled out which are as follows:

“The following propositions emerge from Bachan Singh case:

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

339. The three-Judge Bench further opined that to apply the said guidelines, the following questions are required to be answered:

“(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?”

In the said case, the Court upheld the extreme penalty of death in respect of three accused persons. 340. The Court in Haresh Mohandas Rajput v. State of Maharashtra171, while dealing with the situation where the death sentence is warranted, referred to the guidelines laid down in Bachan Singh (supra) and the principles culled out in Machhi Singh (supra) and opined as follows:

“19. In Machhi Singh v. State of Punjab this Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh to cases where the “collective conscience” of the community is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between the aggravating and the mitigating circumstances.”

After so stating, the Court ruled thus:

“20. The rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded. (See C. Muniappan v. State of T.N172., Dara Singh v. Republic of India173, Surendra Koli v. State of U.P.174, Mohd. Mannan175 and Sudam v. State of Maharashtra176.)

21. Thus, it is evident that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. As to whether the death sentence should be awarded, would depend upon the factual scenario of the case in hand.”

341. This Court, while dealing with the murder of a young girl of about 18 years in Dhananjoy Chatterjee (supra), took note of the fact that the accused was a married man of 27 years of age, the principles stated in Bachan Singh’s case and further took note of the rise of violent crimes against women in recent years and, thereafter, on consideration of the aggravating factors and mitigating circumstances, opined that:

“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

342. After so stating, the Court took note of the fact that the deceased was a school-going girl and it was the sacred duty of the appellant, being a security guard, to ensure the safety of the inhabitants of the flats in the apartment but to gratify his lust, he had raped and murdered the girl in retaliation which made the crime more heinous. Appreciating the manner in which the barbaric crime was committed on a helpless and defenceless school-going girl of 18 years, the Court came to hold that the case fell in the category of rarest of the rare cases and, accordingly, affirmed the capital punishment imposed by the High Court.

343. In Laxman Naik v. State of Orissa177, the Court commenced the judgment with the following passage: “The present case before us reveals a sordid story which took place sometime in the afternoon of February 17, 1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature is said to have been committed by the appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a prey to his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large”. 344. It is worthy to note that in the said case, the High Court had dismissed the appellant’s appeal and confirmed the death sentence awarded to him. While discussing as regards the justifiability of the sentence, the Court referred to the decision in Bachan Singh’s case and opined that there were absolutely no mitigating circumstances and, on the contrary, the facts of the case disclosed only aggravating circumstances against the appellant. Elaborating further, the Court held thus:

“The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”

After so stating, the Court, while affirming the death sentence, opined that:

“ …….The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code.”

345. Kamta Tiwari (supra) is a case where the appellant was convicted for the offences punishable under Sections 363, 376, 302 and 201 of IPC and sentenced to death by the learned trial Judge and the same was affirmed by the High Court. In appeal, the two-Judge Bench referred to the propositions culled out in Machhi Singh (supra) and expressed thus:

“Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances — but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him ‘Tiwari Uncle’. Obviously her closeness with the appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder — as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a “rarest of rare” cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s abhorrence of such crimes.”

346. In Bantu v. State of Uttar Pradesh178, a five year old minor girl was raped and murdered and the appellant was awarded death sentence by the trial Court which was affirmed by the High Court. This Court found the appellant guilty of the crime and, thereafter, referred to the principles stated in Bachan Singh, Machhi Singh (supra) and Devender Pal Singh v. State of A.P.179 and eventually came to hold that the said case fell in the rarest of the rare category and the capital punishment was warranted. Being of this view, the Court declined to interfere with the sentence.

347. In Rajendra Pralhadrao Wasnik v. State of Maharashtra180, the appellant was awarded sentence of death by the learned trial Judge which was confirmed by the High Court, for he was found guilty of the offences punishable under Sections 376(2)(f), 377 and 302 IPC. In the said case, the prosecution had proven that the appellant had lured a three year old minor girl child on the pretext of buying her biscuits and then raped her and eventually, being apprehensive of being identified, killed her. In that context, while dismissing the appeal, the Court ruled thus: “37. When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. 38. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of PW 2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.”

348. At this stage, it is fruitful to refer to some authorities where in cases of rape and murder, the death penalty was not awarded. In State of T.N. v. Suresh and another181, the Court, while unsettling the judgment of acquittal recorded by the High Court and finding that the accused was guilty of rape of a pregnant woman and also murder, awarded the sentence of life imprisonment by observing:

“The above discussion takes us to the final conclusion that the High Court has seriously erred in upsetting the conviction entered by the Sessions Court as against A-2 and A-3. The erroneous approach has resulted in miscarriage of justice by allowing the two perpetrators of a dastardly crime committed against a helpless young pregnant housewife who was sleeping in her own apartment with her little baby sleeping by her side and during the absence of her husband. We strongly feel that the error committed by the High Court must be undone by restoring the conviction passed against A-2 and A-3, though we are not inclined, at this distance of time, to restore the sentence of death passed by the trial court on those two accused”.

From the aforesaid authority, it is seen that the Court did not think it appropriate to restore the death sentence passed by the trial court regard being had to the passage of time.

349. In Akhtar v. State of U.P. (supra), the appellant was found guilty of murder of a young girl after committing rape on her and was sentenced to death by the learned Sessions Judge and the said sentence was confirmed by the High Court. The two-Judge Bench referred to the decisions in Laxman Naik (supra) and Kamta Tiwari (supra) and addressed itself whether the case in hand was one of the rarest of the rare case for which punishment of death could be awarded. The Court distinguished the two decisions which have been referred to hereinabove and ruled:

“In the case in hand on examining the evidence of the three witnesses it appears to us that the accused-appellant has committed the murder of the deceased girl not intentionally and with any premeditation. On the other hand the accused-appellant found a young girl alone in a lonely place, picked her up for committing rape; while committing rape and in the process by way of gagging the girl has died. The medical evidence also indicates that the death is on account of asphyxia. In the circumstances we are of the considered opinion that the case in hand cannot be held to be one of the rarest of rare cases justifying the punishment of death”.

350. In State of Maharashtra v. Barat Fakira Dhiwar182, a three-year old girl was raped and murdered by the accused. The learned trial Judge convicted the accused and awarded the death sentence. The High Court had set aside the order of conviction and acquitted him for the offences. This Court, on scrutiny of the evidence, found the accused guilty of rape and murder. Thereafter, the Court proceeded to deal with the sentence and, in that context, observed:

“Regarding sentence we would have concurred with the Sessions Court’s view that the extreme penalty of death can be chosen for such a crime. However, as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases”, as envisaged by the Constitution Bench in Bachan Singh v. State of Punjab. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life”.

351. Keeping in view the aforesaid authorities, the Court, in Vasanta Sampat Dupare v. State of Maharashtra183, proceeded to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed and observed:

“… When the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation the manner in which the brutal crime is committed. We are absolutely conscious that Judges while imposing sentence, should never be swayed away with any kind of individual philosophy and predilections. It should never have the flavour of Judge-centric attitude or perception. It has to satisfy the test laid down in various precedents relating to rarest of the rare case. We are also required to pose two questions that has been stated in Machhi Singh’s case.” 352. In the said case, the Court dwelt upon the manner in which the crime was committed and how a minor girl had become a prey of the sexual depravity and was injured by the despicable act of the accused to silence the voice so that there would be no evidence. Dealing with the same, the Court referred to earlier judgments and held:

“58. Presently, we shall proceed to dwell upon the manner in which the crime was committed. Materials on record clearly reveal that the appellant was well acquainted with the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased and the children used to call him “uncle”. He had lured the deceased to go with him to have chocolates. It is an act of taking advantage of absolute innocence. He had taken the deceased from place to place by his bicycle and eventually raped her in a brutal manner, as if he had an insatiable and ravenous appetite. The injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, for he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life-spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.

59. In this context, we may fruitfully refer to a passage from Shyam Narain v. State (NCT of Delhi)184, wherein it has been observed as follows:

“1. The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a ‘tsunami’ of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity.”

In the said case, while describing the rape on an eight-year-old girl, the Court observed: (Shyam Narain case, SCC p. 88, para 26) “26. … Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight-year-old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilised society. The age-old wise saying that ‘child is a gift of the providence’ enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.”

Elucidating further, the Court held:

“60. In the case at hand, as we find, not only was the rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be taken into consideration. The learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid-fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had a number of cases pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances.

62. As we perceive, this case deserves to fall in the category of the rarest of rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven makes a four-year minor innocent girl child the prey of his lust and deliberately causes her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold.”

353. In the said case, a review petition bearing Review Petition (Criminal) Nos. 637-638 of 2015 was filed which has been recently dismissed. U.U. Lalit, J., authoring the judgment, has held:

“19. It is thus well settled, “the Court would consider the cumulative effect of both the aspects (namely aggravating factors as well as mitigating circumstances) and it may not be very appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes completely ignoring other classes under other heads and it is the primary duty of the Court to balance the two.” Further, “it is always preferred not to fetter the judicial discretion by attempting to make excessive enumeration, in one way or another; and that both aspects namely aggravating and mitigating circumstances have to be given their respective weightage and that the Court has to strike the balance between the two and see towards which side the scale/balance of justice tilts.” With these principles in mind we now consider the present review petition.

20. The material placed on record shows that after the Judgment under review, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It is asserted that the jail record of the petitioner is without any blemish. The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in Bachan Singh but what is now being projected is that there is a possibility of the accused being reformed and rehabilitated. Though these attempts on part of the petitioner are after the judgment under review, we have considered the material in that behalf to see if those circumstances warrant a different view. We have given anxious consideration to the material on record but find that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter. We, therefore, affirm the view taken in the Judgment under review and dismiss the present Review Petition.”

354. The mitigating factors which have been highlighted before us on the basis of the affidavits filed by the appellants pertain to the strata to which they belong, the aged parents, marital status and the young children and the suffering they would go through and the calamities they would face in case of affirmation of sentence, their conduct while they are in custody and the reformative path they have chosen and their transformation and the possibility of reformation. That apart, emphasis has been laid on their young age and rehabilitation.

355. Now, we shall focus on the nature of the crime and manner in which it has been commited. The submission of Mr. Luthra, learned senior counsel, is that the present case amounts to devastation of social trust and completely destroys the collective balance and invites the indignation of the society. It is submitted by him that that a crime of this nature creates a fear psychosis and definitely falls in the category of rarest of the rare cases.

356. It is necessary to state here that in the instant case, the brutal, barbaric and diabolic nature of the crime is evincible from the acts committed by the accused persons, viz., the assault on the informant, PW-1 with iron rod and tearing off his clothes; assaulting the informant and the deceased with hands, kicks and iron rod and robbing them of their personal belongings like debit cards, ring, informant’s shoes, etc.; attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; their brutish behaviour in having anal sex with the deceased and forcing her to perform oral sex; injuries on the body of the deceased by way of bite marks (10 in number); and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death. The medical history of the prosecutrix (as proved in the record in Ex. PW-50/A and Ex. PW-50) demonstrates that the entire intestine of the prosecutrix was perforated and splayed open due to the repeated insertion of the rod and hands; and the appellants had pulled out the internal organs of the prosecutrix in the most savage and inhuman manner that caused grave injuries which ultimately annihilated her life. As has been established, the prosecutrix sustained various bite marks which were observed on her face, lips, jaws, near ear, on the right and left breast, left upper arm, right lower limb, right inner groin, right lower thigh, left thigh lateral, left lower anterior and genitals. These acts itself demonstrate the mental perversion and inconceivable brutality as caused by the appellants. As further proven, they threw the informant and the deceased victim on the road in a cold winter night. After throwing the informant and the deceased victim, the convicts tried to run the bus over them so that there would be no evidence against them. They made all possible efforts in destroying the evidence by, inter alia, washing the bus and burning the clothes of the deceased and after performing the gruesome act, they divided the loot among themselves. As we have narrated the incident that has been corroborated by the medical evidence, oral testimony and the dying declarations, it is absolutely obvious that the accused persons had found an object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her alongwith her friend out of the bus and crush them. The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome beastility of passion ruled the mindset of the appellants to commit a crime which can summon with immediacy “tsunami” of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.

357. When we cautiously, consciously and anxiously weigh the aggravating circumstances and the mitigating factors, we are compelled to arrive at the singular conclusion that the aggravating circumstances outweigh the mitigating circumstances now brought on record. Therefore, we conclude and hold that the High Court has correctly confirmed the death penalty and we see no reason to differ with the same.

358. Before we part with the case, we are obligated to record our unreserved appreciation for the assistance rendered by Mr. Raju Ramachandran and Mr. Sanjay R. Hegde, learned amicus curiae appointed by the Court. We must also record our uninhibited appreciation for Mr. M.L. Sharma and Mr. A.P. Singh, learned counsel for the appellants, for they, keeping the tradition of the Bar, defended the appellants at every stage.

359. In view of our preceding analysis, the appeals are bound to pave the path of dismissal, and accordingly, we so direct.

………………………J.
(Dipak Misra)

………………………J.
(Ashok Bhushan)

New Delhi
May 05, 2017

REPORTABLE

IN THE SUPREME COURT OF INDI

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 607-08 OF 2017

[@SLP(CRL) NOS. 3119-3120 OF 2014]

Mukesh & Anr. ….. Appellants
Vs.
State of NCT of Delhi and Ors. ….. Respondents

With

CRIMINAL APPEAL NOS. 609-10 OF 2017
[@SLP(CRL) NOS. 5027-5028 OF 2014]

Vinay Sharma & Anr. ….. Appellants
Vs.
State of NCT of Delhi and Ors. ….. Respondents

JUDGEMENT
R. BANUMATHI, J.
I have gone through the judgment of my esteemed Brother Justice Dipak Misra. I entirely agree with the reasoning adopted by him and the conclusions arrived at. However, in view of the significant issues involved in the matter, in the light of settled norms of appreciation of evidence in rape cases and the role of Judiciary in addressing crime against women, I would prefer to give my additional reasoning for concurrence.

2. Honesty, pride, and self-esteem are crucial to the personal freedom of a woman. Social progress depends on the progress of everyone. Following words of the father of our nation must be noted at all times:

“To call woman the weaker sex is a libel; it is man’s injustice to woman. If by strength is meant moral power, then woman is immeasurably man’s superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If non-violence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?”

3. Crimes against women – an area of concern: Over the past few decades, legal advancements and policy reforms have done much to protect women from all sources of violence and also to sensitize the public on the issue of protection of women and gender justice. Still, the crimes against women are on the increase. As per the annual report of National Crime Records Bureau titled, ‘Crime in India 2015’ available at http://ncrb.nic.in/StatePublications/CII/CII2015/FILES /Compendium – 15.11.16.pdf, a total of 3,27,394 cases of crime against women were reported in the year 2015, which shows an increase of over 43% in crime against women since 2011, when 2,28,650 cases were reported. A percentage change of 110.5% in the cases of crime against women has been witnessed over the past decade (2005 to 2015), meaning thereby that crime against women has more than doubled in a decade. An overall crime rate under the head, ‘crime against women’ was reported as 53.9% in 2015, with Delhi UT at the top spot.

4. As per the National Crime Records Bureau, a total of 34,651 cases of rape under Section 376 IPC were registered during 2015 (excluding cases under the Protection of Children from Sexual Offences Act, 2012). An increasing trend in the incidence of rape has been observed during the period 2011-2014. These cases have shown an increase of 9.2% in the year 2011 (24,206 cases) over the year 2010 (22,172 cases), an increase of 3.0% in the year 2012 (24,923 cases) over 2011, with further increase of 35.2% in the year 2013 (33,707 cases) over 2012 and 9.0% in 2014 (36,735 cases) over 2013. A decrease of 5.7% was reported in 2015 (34,651 cases) over 2014 (36,735 cases). 12.7% (4,391 out of 34,651 cases) of total reported rape cases in 2015 were reported in Madhya Pradesh followed by Maharashtra (4,144 cases), Rajasthan (3,644 cases), Uttar Pradesh (3,025 cases) and Odisha (2,251 cases) accounting for 11.9%, 10.5%, 8.7% and 6.5% of total cases respectively. NCT of Delhi reported highest crime rate of 23.7% followed by Andaman & Nicobar Islands at 13.5% as compared to national average of 5.7%. In order to combat increasing crime against women, as depicted in the statistics of National Crime Records Bureau, the root of the problem must be studied in depth and the same be remedied through stringent legislation and other steps. In order to secure social order and security, it is imperative to address issues concerning women, in particular crimes against women on priority basis.

5. Stringent legislation and punishments alone may not be sufficient for fighting increasing crimes against women. In our tradition bound society, certain attitudinal change and change in the mind-set is needed to respect women and to ensure gender justice. Right from childhood years’ children ought to be sensitized to respect women. A child should be taught to respect women in the society in the same way as he is taught to respect men. Gender equality should be made a part of the school curriculum. The school teachers and parents should be trained, not only to conduct regular personality building and skill enhancing exercise, but also to keep a watch on the actual behavioural pattern of the children so as to make them gender sensitized. The educational institutions, Government institutions, the employers and all concerned must take steps to create awareness with regard to gender sensitization and to respect women. Sensitization of the public on gender justice through TV, media and press should be welcomed. On the practical side, few of the suggestions are worthwhile to be considered. Banners and placards in the public transport vehicles like autos, taxis and buses etc. must be ensured. Use of street lights, illuminated bus stops and extra police patrol during odd hours must be ensured. Police/security guards must be posted at dark and lonely places like parks, streets etc. Mobile apps for immediate assistance of women should be introduced and effectively maintained. Apart from effective implementation of the various legislation protecting women, change in the mind set of the society at large and creating awareness in the public on gender justice, would go a long way to combat violence against women.

6. Factual Matrix: The entire factual matrix of the concerned horrendous incident has already been fairly set out in the judgment of my esteemed brother Justice Dipak Misra, the High Court and the trial Court. Suffice only to briefly recapitulate the facts, for my reference purpose and for completion.

7. In the wintry night of 16.12.2012, when the entire Delhi was busy in its day-to-day affair, embracing the joy of year-end, two youths were bravely struggling to save their dignity and life. It is a case of barbaric sexual violence against women, in fact against the society at large, where the accused and juvenile in conflict with law picked up a 23 year old physiotherapy student and her male friend (PW-1) accompanying her, from a busy place in Delhi-Munirka Bus stop and subjected them to heinous offences. The accused gang-raped the prosecutrix in the moving bus and completely ravished her in front of her helpless friend, Awninder Pratap (PW-1). The accused, on satisfaction of their lust, threw both the victims, half naked, outside the bus, in December cold near Mahipalpur flyover. The prosecutrix and PW-1 were noticed in miserable condition near Mahipalpur flyover, where they were thrown, by PW-72 Raj Kumar, who was on patrolling duty that night in the area and PW-73 Ram Chandar, Head Constable, rushed the prosecutrix and PW-1 to Safdarjung Hospital owing to the need of immediate medical attention. Law was set in motion by the statement of PW-1, which was recorded after giving primary medical treatment to him. Statement/Dying declaration of the prosecutrix was also recorded by PW-49 Doctor, PW-27 Sub-Divisional Magistrate and PW-30 Metropolitan Magistrate. After intensive care and treatment in ICU in Delhi, the victim was airlifted to a hospital in Singapore by an air-ambulance where she succumbed to her injuries on 29.12.2012.

8. The incident shocked the nation and generated public rage. A Committee headed by Justice J.S. Verma, Former Chief Justice of India was constituted to suggest amendments to deal with sexual offences more sternly and effectively in future. The suggestions of the Committee led to the enactment of Criminal Law (Amendment) Act, 2013 which, inter alia, brought in substantive as well as procedural reforms in the core areas of rape law. The changes brought in, inter alia, can broadly be titled as under:- (i) Extension of the definition of the offence of rape in Section 375 IPC; (ii) Adoption of a more pragmatic approach while dealing with the issue of consent in the offence of rape; and (iii) Introduction of harsher penalty commensurating with the gravity of offence. These subsequent events though not relevant for the purpose of this judgment, I have referred to it for the sake of factual completion.

9. Both the courts below, by recording concurrent findings, have found all the accused guilty of the offences they were charged with and owing to the gravity and manner of committing the heinous offences held that the acts of the accused shake the conscience of the society falling within the category of rarest of rare cases and awarded death penalty. Briefly put, the courts below have found that the prosecution has established the guilt of the accused inter alia on the following:

1. Three dying declarations of the prosecutrix, complementing each other, corroborated by medical evidence and other direct as well as circumstantial evidence.

2. Testimony of eye witness – PW-1, corroborated by circumstantial evidence as well as scientific evidence.

3. Recovery of the bus in which incident took place and recovery of the concerned iron rod therefrom, completing the chain of circumstantial evidence, by proof of scientific evidence like DNA analysis, finger print analysis etc.

4. Arrest of the accused and their identification by PW-1, recovery of articles belonging to the prosecutrix and PW-1 from the accused, pursuant to their disclosure statement, substantiated by proof of DNA analysis.

5. Conspiracy of the accused in the commission of offence.

10. While concurring with the majority, I have recorded my reasoning by considering the evidence on record in the light of settled legal principles and also analysed the justifiability of the punishment awarded to the accused. For proper appreciation of evidence, it is apposite to first refer to the settled principles and norms of appreciation of evidence of prosecutrix and other evidence in a rape case.

11. Duty of court in appreciation of evidence while dealing with cases of rape: Crime against women is an unlawful intrusion of her right to privacy, which offends her self-esteem and dignity. Expressing concern over the increasing crime against women, in State of Punjab v. Gurmit Singh and Others (1996) 2 SCC 384, this Court held as under:-

“21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case…….” [Emphasis supplied]

12. The above principle of law, declared in Gurmeet Singh’s case is reiterated in various cases viz., State of Rajasthan v. N.K. The Accused (2000) 5 SCC 30; State of H.P. v. Lekh Raj and Another (2000) 1 SCC 247; State of H.P. v. Asha Ram (2005) 13 SCC 766.

13. Clause (g) of sub-section (2) of Section 376 IPC (prior to 2013 Amendment Act 13 of 2013) deals with cases of gang rape. In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape is committed by even one, all the accused are guilty, irrespective of the fact that only one or more of them had actually committed the act. Section 376(2)(g) read with Explanation I thus embodies a principle of joint liability. But so far as appreciation of evidence is concerned, the principles concerning the cases falling under sub-section(1) of Section 376 IPC apply.

14. In a case of rape, like other criminal cases, onus is always on the prosecution to prove affirmatively each ingredients of the offence. The prosecution must discharge this burden of proof to bring home the guilt of the accused and this onus never shifts. In Narender Kumar v. State (NCT of Delhi) (2012) 7 SCC 171, it was held as under:-

“29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. ……… There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.”

15. At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of prosecutrix in lieu of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination etc., if the same is found natural and trustworthy.

16. Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood. Ours is a conservative society and not a permissive society. Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false charge, concerning her chastity. In State of Karnataka v. Krishnappa, (2000) 4 SCC 75, it was held as under:-

“15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely…

16. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. [emphasis supplied]”

17. There is no legal compulsion to look for corroboration of the prosecutrix’s testimony unless the evidence of the victim suffers from serious infirmities, thereby seeking corroboration. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, it was held as under:-

“9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different….

10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4)….

11. ……On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. ……. [emphasis supplied]”

It was further held in Bharwada Bhoginbhai Hirjibhai (supra) that if the evidence of the victim does not suffer from any basic infirmity and the “probabilities-factor” does not render it unworthy of credence, there is no reason to insist on corroboration except corroboration by the medical evidence. The same view was taken in Krishan Lal v. State of Haryana (1980) 3 SCC 159.

18. It is well-settled that conviction can be based on the sole testimony of the prosecutrix if it is implicitly reliable and there is a ring of truth in it. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not requirement of law but a guidance of prudence under given circumstances. In Rajinder alias Raju v. State of Himachal Pradesh, (2009) 16 SCC 69, it was held as under:-

“19. In the context of Indian culture, a woman—victim of sexual aggression—would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”

19. In Raju and Others v. State of Madhya Pradesh (2008) 15 SCC 133, it was held as under:-

“10. ….that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary….

11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

20. In State of H.P. v. Asha Ram (2005) 13 SCC 766, this Court highlighted the importance of, and the weight to be attached to, the testimony of the prosecutrix. In para (5), it was held as under:

“5. …. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”

21. As held in the case of State of Punjab v. Ramdev Singh (2004) 1 SCC 421, there is no rule of law that the testimony of the prosecutrix cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. The above judgment of Ramdev Singh (supra) has been approvingly quoted in State of U.P. v. Munshi (2008) 9 SCC 390.

22. In a catena of decisions, this Court has held that conviction can be based on the sole testimony of the prosecutrix, provided it is natural, trustworthy and worth being relied upon vide State of H.P. v. Gian Chand (2001) 6 SCC 71, State of Rajasthan v. N.K. The Accused (2000) 5 SCC 30; State of H.P. v. Lekh Raj and Another (2000) 1 SCC 247, Wahid Khan v. State of Madhya Pradesh (2010) 2 SCC 9, Dinesh Jaiswal v. State of Madhya Pradesh (2010) 3 SCC 232; Om Prakash v. State of Haryana (2011) 14 SCC 309.

23. Observing that once the statement of the prosecutrix inspires confidence, conviction can be based on the solitary evidence of the prosecutrix and that corroboration of testimony of a prosecutrix is not a requirement of law but only a rule of prudence, in Narender Kumar’s case (supra), this Court held as under:-

“20. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.”

21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial (sic circumstantial), which may lend assurance to her testimony. (Vide Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (2003) 3 SCC 175 and Vishnu v. State of Maharashtra (2006) 1 SCC 283.)”

24. Courts should not attach undue importance to discrepancies, where the contradictions sought to be brought up from the evidence of the prosecutrix are immaterial and of no consequence. Minor variations in the testimony of the witnesses are often the hallmark of truth of the testimony. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Due to efflux of time, there are bound to be minor contradictions/discrepancies in the statement of the prosecutrix but such minor discrepancies and inconsistencies are only natural since when truth is sought to be projected through human, there are bound to be certain inherent contradictions. But as held in Om Prakash v. State of U.P. (2006) 9 SCC 787, the Court should examine the broader probabilities of a case.

25. There is no quarrel over the proposition that the evidence of the prosecutrix is to be believed by examining the broader probabilities of a case. But where there are serious infirmities and inherent inconsistencies in evidence; the prosecutrix making deliberate improvement on material point with a view to rule out consent on her part, no reliance can be placed upon the testimony of the prosecutrix. In Tameezuddin v. State (NCT of Delhi), (2009) 15 SCC 566, it was held as under:-

“9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.”

The same view was taken in Suresh N. Bhusare v. State of Maharashtra (1999) 1 SCC 220 and Jai Krishna Mandal v. State of Jharkhand (2010) 14 SCC 534.

26. On the anvil of the above principles, let us test the case of prosecution and version of the prosecutrix as depicted in her dying declaration.

27. Dying Declaration: Prosecution relies upon three dying declarations of the victim:- (i) Statement of victim recorded by PW-49 Dr. Rashmi Ahuja (Ex. PW-49/A) when the victim was brought to Safdarjung Hospital and admitted in the Gynae casualty at about 11:15 p.m. on 16.12.2012 – the victim gave a brief account of the incident stating that she went to a movie with her friend Awnindra (PW-1) and that after the movie, they together boarded the bus from Munirka bus stop in which she was gang-raped and that she was thrown away from the moving bus thereafter, along with her friend; (ii) Second dying declaration recorded by PW-27 Usha Chaturvedi, SDM (Ex. PW-27/A) on 21.12.2012 at about 09:00 p.m. – the victim gave the details of the entire incident specifying the role of each accused: gang-rape, unnatural sex committed on her, the injuries inflicted by accused on her vagina and rectum, by use of iron rod and by insertion of hands in her private parts; description of the bus, robbery and lastly throwing both the victim and also her boyfriend out of the moving bus in naked condition near Mahipalpur flyover; (iii) Third dying declaration recorded by PW-30 Pawan Kumar, Metropolitan Magistrate (Ex.PW-30/D) on 25.12.2012 at 1:00 PM at ICU, Safdarjung Hospital by putting questions in multiple choice and recording answers through such questions by gestures or writings – the victim wrote the names of the accused in the third dying declaration. Evidence of PW-28 Dr. Rajesh Rastogi and the certificate (Ex.PW-28/A) given by him establishes that the victim was in a fit mental condition to give the statement through gestures. Furthermore, PW-75 Asha Devi, mother of the victim in her cross-examination also deposed that she had a talk with her daughter on the night of 25.12.2012, which shows that the victim was conscious, communicative and oriented. Contentions urged, assailing the fit mental condition of the victim have no merit.

28. With regard to the contention that there were improvements in the dying declarations, I am of he view, the victim was gang-raped and iron rod was inserted in her private parts in the incident and the victim must have been pushed to deep emotional crisis. Rape deeply affects the entire psychology of the woman and humiliates her, apart from leaving her in a trauma. The testimony of the rape victim must be appreciated in the background of the entire case and the trauma which the victim had undergone. As a matter of record, PW-49 Dr. Rashmi Ahuja, at around 11:15 p.m. on the night of 16.12.2012, had attended to the prosecutrix as soon as she was brought to the hospital and had prepared casualty/OPD Card of the prosecutrix (Ex. PW-49/A), as well as her MLC (Ex. PW-49/B). At that time, PW-49 had found her cold and clammy due to vaso-constriction. The prosecutrix was found shivering, for which she was administered IV line and warm saline in order to stabilize her pulse and BP. When the victim was in such a condition, the victim cannot be expected to give minute details of the occurrence like overt act played by the accused, insertion of iron rod etc. There is no justification for blowing up such omission out of proportion in the statement recorded by PW-49 Dr. Rashmi Ahuja and doubt the same. In the occurrence, physical and emotional balance of the victim must have been greatly disturbed. Startled by the incident, whatever the victim was able to momentarily recollect, she narrated to PW-49 and placed in that position non-mention of minute details in Ex.PW-49/A cannot be termed as a material omission.

29. Dying declaration is a substantial piece of evidence provided it is not tainted with malice and is not made in an unfit mental state. Each case of dying declaration has to be considered in its own facts and circumstances in which it is made. However, there are some well-known tests to ascertain as to whether the statement was made in reference to cause of death of its maker and whether the same could be relied upon or not. The Court also has to satisfy as to whether the deceased was in a fit mental state to make the statement. The Court must scrutinize the dying declaration carefully and ensure that the declaration is not the result of tutoring, prompting or imagination. Once the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. That the deceased had the opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. v. Public Prosecutor (1976) 3 SCC 618]

30. The principles governing dying declarations have been exhaustively laid down in several judicial pronouncements. In Paniben (Smt.) v. State of Gujarat, (1992) 2 SCC 474, this Court referred to a number of judgments laying down the principles governing dying declaration. In this regard, I find it apposite to quote the following from Paniben (supra) as under:-

“18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 522; Ramawati Devi v. State of Bihar (1983) 1 SCC 211).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. (1974) 4 SCC 264)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. (1981) Supp. SCC 25)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2 SCC 654)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu (1980) Supp. SCC 455)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar (1980) Supp. SCC 769)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. (1988) Supp. SCC 152)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan (1989) 3 SCC 390)”

The above well-settled tests relating to dying declarations and the principles have been elaborately considered in a number of judgments. [Vide Khushal Rao v. State of Bombay, AIR 1958 SC 22; State of Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552; State of Orissa v. Bansidhar Singh, (1996) 2 SCC 194; Panneerselvam v. State of Tamil Nadu (2008) 17 SCC 190; Atbir v. Govt. of NCT of Delhi (2010) 9 SCC 1 and Umakant and Anr. v. State of Chhattisgarh (2014) 7 SCC 405].

31. Multiple Dying Declarations: In cases where there are more than one dying declarations, the Court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where there are more than one dying declaration, it is the duty of the Court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration. Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances. This Court in a number of cases, where there were multiple dying declarations, consistent in material particulars not being contradictory to each other, has affirmed the conviction. [Vide Vithal v. State of Maharashtra (2006) 13 SCC 54].

32. In Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, while discarding the two inconsistent dying declarations, laid down the principles for consideration of multiple dying declarations as under:-

“13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684) However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

33. In Ganpat Mahadeo Mane v. State of Maharashtra (1993) Supp.(2) SCC 242, there were three dying declarations. One recorded by the doctor; the second recorded by the police constable and also attested by the doctor and the third dying declaration recorded by the Executive Magistrate which was endorsed by the doctor. Considering the third dying declaration, this Court held that all the three dying declarations were consistent and corroborated by medical evidence and other circumstantial evidence and that they did not suffer from any infirmity.

34. In Lakhan v. State of M.P. (2010) 8 SCC 514, this Court considered a similar situation where in the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After examining the contents of the two dying declarations, this Court held that there was no inconsistency between two dying declarations and non-mention of certain features in the dying declarations recorded by the Judicial Magistrate does not make both the dying declarations inconsistent.

35. In the light of the above principles, I now advert to analyze the facts of the present case. The victim made three dying declarations:- (i) statement recorded by PW-49 Dr. Rashmi Ahuja immediately after the victim was admitted to the hospital; (ii) Dying declaration (Ex.PW-27/A) recorded by PW-27 SDM Usha Chaturvedi on 21.12.2012; and (iii) dying declaration (Ex.PW-30/D) recorded by PW-30 Pawan Kumar, Metropolitan Magistrate on 25.12.2012 at 1:00 P.M by multiple choice questions and recording answers by gestures and writing. In the first dying declaration (Ex.PW-49/A), the prosecutrix has stated that more than two men committed rape on her, bit her on lips, cheeks and breast and also subjected her to unnatural sex. In the second dying declaration (Ex.PW-27/A) recorded by PW-27, the victim has narrated the entire incident in great detail, specifying the role of each accused, rape committed by number of persons, insertion of iron rod in her private parts, description of the bus, robbery committed and throwing of both the victims out of the moving bus in naked condition. In the second dying declaration, she has also stated that the accused were addressing each other with the names like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”. In the second dying declaration, though there are improvements in giving details of the incident, names of the accused etc., there are no material contradictions between the first and second dying declaration (Ex.PW-49/A and Ex.PW-27/A).

36. On 25.12.2012 at 1:00 P.M, PW-30 Pawan Kumar, Metropolitan Magistrate recorded the statement by putting multiple choice questions to the victim and by getting answers through gestures and writing. The third dying declaration (Ex.PW-30/D) is found consistent with the earlier two declarations. It conclusively establishes that the victim was brutally gang-raped, beaten by iron rod, subjected to other harsh atrocities and was finally dumped at an unknown place. While making the third declaration, the victim also tried to reveal the names of the accused by writing in her own handwriting viz. Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju.

37. As per the settled law governing dying declarations, even if there are minor discrepancies in the dying declarations, in the facts and circumstances of the case, the Court can disregard the same as insignificant. A three-Judge Bench of this Court in Abrar v. State of Uttar Pradesh (2011) 2 SCC 750, held that it is practical that minor discrepancies in recording dying declarations may occur due to pain and suffering of the victim, in case the declaration is recorded at multiple intervals and thus, such discrepancies need not be given much emphasis. “12. It is true that there are some discrepancies in the dying declarations with regard to the presence or otherwise of a light or a torch. To our mind, however, these are so insignificant that they call for no discussion. It is also clear from the evidence that the injured had been in great pain and if there were minor discrepancies inter se the three dying declarations, they were to be accepted as something normal. The trial court was thus clearly wrong in rendering a judgment of acquittal solely on this specious ground. We, particularly, notice that the dying declaration had been recorded by the Tahsildar after the doctor had certified the victim as fit to make a statement. The doctor also appeared in the witness box to support the statement of the Tahsildar. We are, therefore, of the opinion, that no fault whatsoever could be found in the dying declarations.”

38. When a dying declaration is recorded voluntarily, pursuant to a fitness report of a certified doctor, nothing much remains to be questioned unless, it is proved that the dying declaration was tainted with animosity and a result of tutoring. Especially, when there are multiple dying declarations minor variations does not affect the evidentiary value of other dying declarations whether recorded prior or subsequent thereto. In Ashabai and Anr. v. State of Maharashtra (2013) 2 SCC 224, it was held as under: “15. ….As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.”

39. Considering the present case on the anvil of the above principles, I find that though there was time gap between the declarations, all the three dying declarations are consistent with each other and there are no material contradictions. All the three dying declarations depict truthful version of the incident, particularly the detailed narration of the incident concerning the rape committed on the victim, insertion of iron rod and the injuries caused to her vagina and rectum, unnatural sex committed on the victim and throwing the victim and PW-1 out of the moving bus. All the three dying declarations being voluntary, consistent and trustworthy, satisfy the test of reliability.

40. Dying Declaration by gestures and nods: Adverting to the contention that the third dying declaration made through gestures lacks credibility, it is seen that the multiple choice questions put to the prosecutrix by PW-30 Pawan Kumar, Metropolitan Magistrate, were simple and easily answerable through nods and gestures. That apart, before recording the dying declaration, PW-30 Pawan Kumar, Metropolitan Magistrate had satisfied himself about fit mental state of the victim to record dying declaration through nods and gestures. There is nothing proved on record to show that the mental capacity of the victim was impaired, so as to doubt the third dying declaration. As the victim was conscious, oriented and meaningfully communicative, it is natural that the victim was in a position to write the names of the accused persons and also about the use of long iron rod. The third dying declaration recorded through nods and gestures and also by the victim’s own writing, writing the names of the accused inspires confidence in the Court; the same was rightly relied upon by the trial Court as well as the High Court.

41. Dying declaration made through signs, gesture or by nods are admissible as evidence, if proper care was taken at the time of recording the statement. The only caution the Court ought to take is to ensure that the person recording the dying declaration was able to correctly notice and interpret the gestures or nods of the declarant. While recording the third dying declaration, signs/gestures made by the victim, in response to the multiple choice questions put to the prosecutrix are admissible in evidence.

42. A dying declaration need not necessarily be by words or in writing. It can be by gesture or by nod. In Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182, this Court held as under:-

“20. …..that dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked — whether they were simple or complicated — and how effective or understandable the nods and gestures were.” The same view was reiterated in B. Shashikala v. State of A.P. (2004) 13 SCC 249.

43. In the case of rape and sexual assault, the evidence of prosecutrix is very crucial and if it inspires confidence of the court, there is no requirement of law to insist upon corroboration of the same for convicting the accused on the basis of it. Courts are expected to act with sensitivity and appreciate the evidence of the prosecutrix in the background of the entire facts of the case and not in isolation. In the facts and circumstances of the present case as the statements of the prosecutrix in the form of three dying declarations are consistent with each other and there are no material contradiction, they can be completely relied upon without corroboration. In the present case, the prosecutrix has made a truthful statement and the prosecution has established the case against the respondents beyond reasonable doubt. The victim also wrote the names of the accused persons in her own hand-writing in the dying declaration recorded by PW-30 (Ex.PW-30/D). Considering the facts and circumstances of the present case and upon appreciation of the evidence and material on record, I find all the three dying declarations consistent, true and voluntary, satisfying the test of probabilities factor. That apart, the dying declarations are wellcorroborated by medical and scientific evidence adduced by the prosecution. Moreover, the same has been amply corroborated by the testimony of eye witness-PW-1.

44. Corroboration of Dying declaration by Medical Evidence:- The dying declaration is amply corroborated by medical evidence depicting injuries to vagina and internal injuries to rectum and recto-vaginal septum as noted by PW-49 Dr. Rashmi Ahuja and PW-50 Dr, Raj Kumar Chejara. On the night of 16.12.2012, the prosecutrix was medically examined by PW-49 who recorded her injuries and statement in the MLC (Ex. PW-49/B). On local examination, a sharp cut over right labia and a 6 cm long tag of vagina was found hanging outside the introitus. Vaginal examination showed bleeding and about 7 to 8 cm long posterior vaginal wall tear. A rectal tear of about 4 to 5 cm was also noticed communicating with the vaginal tear. Apart from the said injuries to the private parts of the prosecutrix, guarding and rigidity was also found in her abdomen and several bruises and marks on face were noticed. Bruises and abrasions around both the eyes and nostrils were also found. Lips were found edematous and left side of the mouth was injured by a small laceration. Bite marks over cheeks and breast, below areola, were also present. Bruises over the left breast and bite mark in interior left quadrant were prominent.

45. During surgery, conducted on 16/17.12.2012 PW-50 Dr. Raj Kumar Chejara (Ex.PW-50/A and Ex. PW-50/B) noted contusion and bruising of jejunum, large bowel, vaginal tear, and completely torn recto-vaginal septum. Small and large bowels were affected and were extremely bad for any definitive repair. It was also noted that rectum was longitudinally torn and the tear was continuing upward involving sigmoid colon, descending colon which was splayed open. There were multiple perforations at many places of ascending colon and calcum. Terminal illeum approximately one and a half feet loosely hanging in the abdominal cavity avulsed from its mesentery. Rest of the small bowel was non-existent with only patches of mucosa at places and borders of the mesentery were contused. While performing second surgery on 19th December, 2012, surgery team also recorded findings that rectum was longitudinally torn on anterior aspect in continuation with peritorial tear and other internal injuries. On 26-12-2012 the condition of the prosecutrix was examined and it was decided to shift her abroad for further treatment and she was shifted by an air-ambulance to Singapore Mount Elizabeth Hospital. The prosecutrix died at Mount Elizabeth Hospital, Singapore on 29-12-2012 at 04:45 AM. Cause of death is stated as sepsis with multi organ failure following multiple injuries. (Ex.PW-34/A)

46. Injuries to vagina, rectum and recto-vaginal septum as noted by PW-49 Dr. Rashmi Ahuja and PW-50 Dr. Raj Kumar Chejara; and the injuries as depicted in the post-mortem certificate, including the other external injuries which are evidently marks of violence during the incident, exhibit the cruel nature of gang rape committed on the victim. The profused bleeding from vagina and tag of vagina hanging outside; completely recto-vaginal septum clearly demonstrate the violent act of gang rape committed on the victim. The medical reports including the operation theatre notes (Ex. PW-50/A and 50/B) and the injuries thereon indicates the pain and suffering which the victim had undergone due to multiple organ failure and other injuries caused by insertion of iron rod.

47. If considered on the anvil of settled legal principles, injuries on the person of a rape victim is not even a sine qua non for proving the charge of rape, as held in Joseph v. State of Kerala (2000) 5 SCC 197. The same principle was reiterated in State of Maharashtra v. Suresh (2000) 1 SCC 471. As rightly held in State of Rajasthan v. N.K., The Accused (2000) 5 SCC 30, absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegations of rape or evidence of consent on the part of the prosecutrix. In the present case, the extensive injuries found on the vagina/private parts of the body of the victim and injuries caused to the internal organs and all over the body, clearly show that the victim was ravished.

48. Corroboration of dying declaration by scientific evidence:- The DNA profile generated from blood-stained pants, t-shirts and jackets recovered at the behest of A-2 Mukesh matched with the DNA profile of the victim. Likewise, the DNA profile generated from the blood-stained jeans and banian recovered at the behest of A-3 Akshay matched with the DNA profile of the victim. DNA profile generated from the blood-stained underwear, chappal and jacket recovered at the behest of A-4 Vinay matched with the DNA profile of the victim. DNA profiles generated from the clothes of the accused recovered at their behest consistent with that of the victim is an unimpeachable evidence incriminating the accused in the occurrence. As submitted by the prosecution, there is no plausible explanation from the accused as to the matching of DNA profile of the victim with that of the DNA profile generated from the clothes of the accused. The courts below rightly took note of the DNA analysis report in finding the accused guilty.

49. Bite marks on the chest of the victim and Odontology Report: It is also to be noted that the photographs of bite marks found on the body of the victim, lifted by PW-66 Shri Asghar Hussain were examined by PW-71 Dr. Ashith B. Acharya. The analysis shows that at least three bite marks were caused by accused Ram Singh whereas one bite mark has been identified to have been most likely caused by accused Akshay. This aspect of Odontology Report has been elaborately discussed by the High Court in paragraphs (91) to (94) of its judgment. Odontology Report which links accused Ram Singh and accused Akshay, with the case, strengthens the prosecution case as to their involvement.

50. Going by the version of the prosecutrix, as per the dying declaration and the evidence adduced, in particular medical evidence and scientific evidence, I find the evidence of the prosecutrix being amply corroborated. As discussed earlier, in rape cases, Court should examine the broader probabilities of a case and not get swayed by discrepancies. The conviction can be based even on the sole testimony of the prosecutrix. However, in this case, dying declarations recorded from the prosecutrix are corroborated in material particulars by:- (i) medical evidence; (ii) evidence of injured witness PW-1; (iii) matching of DNA profiles, generated from blood-stained clothes of the accused, iron rod recovered at the behest of deceased accused Ram Singh and various articles recovered from the bus with the DNA profile of the victim; (iv) recovery of belongings of the victim at the behest of the accused, viz. debit card recovered from A-1 Ram Singh and Nokia mobile from A-4 Vinay. The dying declarations well corroborated by medical and scientific evidence strengthen the case of the prosecution by conclusively connecting the accused with the crime.

51. Use of Iron Rod and death of the victim: Case of the prosecution is that the accused brutally inserted iron rod in the vagina of the prosecutrix and pulled out internal organs of the prosecutrix. The defence refuted the use of iron rod by the accused on the ground that the complainant as well as the victim did not mention the use of iron rods in their first statements. Contention of the appellants is that when the victim had given details of the entire incident to PW-49 Dr. Rashmi Ahuja, if iron rod had been used, she would not have omitted to mention the use of iron rods in the incident. We do not find force in such a contention, as ample reliable evidence are proved on record which lead to the irresistible conclusion that iron rod was used and it was not a mere piece of concoction.

52. Use of iron rods and insertion of the same in the private parts of the victim is established by the second dying declaration recorded by SDM PW-27 Usha Chaturvedi, where the victim has given a detailed account of the incident, role of the accused, gang rape committed on her and other offences including the use of iron rods. The brutality with which the accused persons inserted iron rod in the rectum and vagina of the victim and took out her internal organs from the vaginal and anal opening is reflected in Ex.PW- 49/A. Further, medical opinion of PW-49 (Ex. PW-49/G) stating that the recto-vaginal injury could be caused by the rods recovered from the bus, strengthens the statement of the victim and the prosecution version. When the second and third dying declarations of the prosecutrix are well corroborated by the medical evidence, non-mention of use of iron rods in prosecutrix’s statement to PW-49 Dr. Rashmi Ahuja (Ex. PW-49/A), does not materially affect the credibility of the dying declaration. Insertion of iron rod in the private parts of the prosecutrix is amply established by the nature of multiple injuries caused to jejunum and rectum which was longitudinally torn, tag of vagina hanging out; and completely torn recto-vaginal septum.

53. At the behest of accused Ram Singh two iron rods (Ex.P-49/1 and Ex.P-49/2) were recovered from the shelf of the driver’s cabin vide seizure Memo Ex.PW-74/G. The blood-stained rods deposited in the Malkhana were thereafter sent for chemical analysis. The DNA report prepared by PW-45 Dr. B.K Mohapatra, indicates that the DNA profile developed from the blood-stained iron rods is consistent with the DNA profile of the victim. Presence of blood on the iron rods and the DNA profile of which is consistent with the DNA profile of the victim establishes the prosecution case as to the alleged use of iron rods in the incident.

54. Evidence of PW-1: In his first statement made on 16.12.2012, eye witness PW-1 stated that he accompanied the prosecutrix to Select City Mall, Saket, New Delhi in an auto from Dwarka, New Delhi where they watched a movie till about 08:30 p.m. After leaving the Mall, PW-1 and the victim took an auto to Munirka from where they boarded the fateful bus. After the prosecutrix and PW-1 boarded the bus, the accused surrounded PW-1 and pinned him down in front side of the bus. While the accused Vinay and Pawan held PW-1, the other three accused committed rape on the victim on the rear side of the bus. Thereafter, other accused held PW-1, while Vinay and Pawan committed rape on the victim. Later accused Mukesh who was earlier driving the bus, committed rape on the victim. After the incident, PW-1 and the prosecutrix were thrown out of the moving bus, near Mahipalpur flyover. In the incident, PW-1 himself sustained injuries which lends assurance to his credibility. 55. That PW-1 accompanied the victim to Select City Mall and that he was with the victim till the end, is proved by ample evidence. As per the case of the prosecution, on the fateful day, the complainant and the prosecutrix had gone to Saket Mall to see a movie. CCTV footage produced by PW-25 Rajender Singh Bisht in two CDs (Ex.PW-25/C-1 and PW-25/C-2) and seven photographs (Ex.PW-25/B-1 to Ex.PW-25/B-7) corroborate the version of PW-1 that the complainant and the victim were present at Saket Mall till 8:57 p.m. The certificate under Section 65-B of the Indian Evidence Act, 1872 with respect to the said footage is proved by PW-26 Shri Sandeep Singh (Ex.PW-26/A) who is the CCTV operator at Select City Mall.

56. The computer generated electronic record in evidence, admissible at a trial is proved in the manner specified in Section 65-B of the Evidence Act. Sub-section (1) of Section 65 of the Evidence Act makes electronic records admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in sub-section (2) of Section 65-B of the Evidence Act. When those conditions are satisfied, the electronic record becomes admissible in any proceeding without further proof or production of the original, as evidence of any of the contents of the original or any fact stated therein of which direct evidence is admissible. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act.

57. Having carefully gone through the deposition of PW-1, I find that his evidence, even after lengthy cross examination, remains unshaken. The evidence of a witness is not to be disbelieved simply because of minor discrepancies. It is to be examined whether he was present or not at the crime scene and whether he is telling the truth or not. PW-1 has clearly explained as to how he happened to be with the victim and considering the cogent evidence adduced by the prosecution, presence of PW-1 cannot be doubted in any manner. PW-1 himself was injured in the incident and he was admitted in the Casualty Ward, where PW-51 Dr. Sachin Bajaj examined him. As per Ex.PW-51/A, lacerated wound over the vertex of scalp, lacertated wound over left upper lip and abrasion over right knee were found on the person of PW-1. Testimony of PW-1 being testimony of an injured witness lends credibility to his evidence and prosecution’s case. As rightly pointed out by the Courts below, no convincing grounds exist to discard the evidence of PW-1, an injured witness.

58. The question of the weight to be attached to the evidence of an injured witness has been extensively discussed by this Court in Mano Dutt and Anr. v State of Uttar Pradesh (2012) 4 SCC 79. After exhaustively referring to various judgments on this point, this Court held as under :-

“31. We may merely refer to Abdul Sayeed v. State of M.P.(2010)10 SCC 259 where this Court held as under: (SCC pp. 271-72, paras 28-30)

“28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ‘Convincing evidence is required to discredit an injured witness.’ [Vide Ramlagan Singh v. State of Bihar(1973) 3 SCC 881, Malkhan Singh v. State of U.P.(1975) 3 SCC 311, Machhi Singh v. State of Punjab (1983) 3 SCC 470, Appabhai v. State of Gujarat1988 Supp SCC 241, Bonkya v. State of Maharashtra(1995) 6 SCC 447, Bhag Singh v. State of Punjab (1997) 7 SCC 712, Mohar v. State of U.P.(2002) 7 SCC 606 (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan(2008) 8 SCC 270, Vishnu v. State of Rajasthan(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.(2009) 12 SCC 546 and Balraje v. State of Maharashtra(2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) ‘28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana(2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.’

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”

59. After the accused were arrested, they made disclosure statements. Pursuant to the said disclosure statements, recoveries of various articles were effected which included clothes of the accused and articles belonging to PW-1 and the prosecutrix. The Samsung Galaxy Duos mobile phone recovered from A-2 was identified by the complainant in the court as belonging to him and testimony of the complainant was further fortified by the testimony of PW-56 Sandeep Dabral, Manager, Spice Mobile Shop, who stated that the said Samsung Mobile bearing the respective IMEI number was sold in the name of the complainant. Also, the metro card and silver ring recovered at the behest of A-3 Akshay were identified by PW-1 in court as belonging to him. The silver ring was also identified by the complainant in the TIP proceedings conducted on 28.12.2012. Likewise, the Hush-Puppies shoes recovered at the behest of A-4 Vinay and wrist watch of Sonata make recovered at the behest of A-5 Pawan were identified by PW-1 in TIP proceedings as belonging to him. Recoveries of articles of PW-1 and other scientific evidence, irrebutably establish the presence of PW-1 at the crime scene and strengthens the credibility of PW-1’s testimony.

60. Apart from the recoveries made at the behest of the accused,
presence of PW-1 is also confirmed by DNA profile generated from the
blood-stained mulberry leaves and grass collected from Mahipalpur (seized
vide Memo Ex. PW-74/C) where both the victims were thrown after the
incident. As per the Chemical Analysis Report, DNA profile generated from
the blood-stained murberry leaves collected from the Mahipalpur flyover
were found to be of male origin and consistent with the DNA profile of
PW-1. This proves that PW-1 was present with the victim at the time of the
incident and both of them were together thrown out of the bus at
Mahipalpur.

61. Further, as discussed infra, pursuant to the disclosure statement of the accused, clothes of accused, some of which were blood-stained and other incriminating articles were recovered. PW-45 Dr. B.K. Mohapatra matched the DNA profiles of the blood detected on the clothes of the accused with that of the complainant and the victim. One set of DNA profile generated from jeans-pant of the accused Akshay (A-3) matched the DNA profile of PW-1. Likewise, one set of DNA profile generated from the sports jacket of accused Vinay (A-4) was found consistent with the DNA profile of PW-1. Also, one set of DNA profile generated from black coloured sweater of Accused Pawan Gupta (A-5) was found consistent with the DNA profile of PW-1. Result of DNA analysis further corroborates the version of PW-1 and strengthens the prosecution case. DNA Analysis Report, as provided by PW-45 is a vital piece of evidence connecting the accused with the crime.

62. Matching of DNA profile generated from the bunch of hair recovered from the floor of the bus near the second row seat on the left side, with DNA profile of the complainant is yet another piece of evidence corroborating the version of PW-1[vide Ex.PW-45/B]. Further, DNA profile developed from burnt cloth pieces, recovered from near the rear side entry of the bus was found consistent with DNA profile of PW-1; and this again fortifies the presence of PW-1 with the victim in the bus.

63. Contention of the appellants is that there are vital contradictions in the statements of PW-1. It is contended that initially PW-1 did not give the names of the accused in the FIR and that he kept on improving his version, in particular, in the second supplementary statement recorded on 17.12.2012 in which he gave the details of the bus involved. To contend that testimony of PW-1 is not trustworthy, reliance is placed on Kathi Bharat Vajsur And Anr. v State of Gujarat (2012) 5 SCC 724. In Kathi Bharat Vajsur’s case, this Court has observed that when there are inconsistencies or contradictions in oral evidence and the same is found to be in contradiction with other evidence then it cannot be held that the prosecution has proved the case beyond reasonable doubt.

64. While appreciating the evidence of a witness, the approach must be to consider the entire evidence and analyze whether the evidence as a whole gives a complete chain of facts depicting truth. Once that impression is formed, it is necessary for the court to scrutinize evidence particularly keeping in view the prosecution case. Any minor discrepancies or improvements not touching the core of the prosecution case and not going to the root of the matter, does not affect the trustworthiness of the witness. Insofar as the contention that PW-1 kept on improving his version in his statement recorded at various point of time, it is noted that there are indeed some improvements in his version but, the core of his version as to the occurrence remains consistent. More so, when PW-1 and the victim faced such a traumatic experience, immediately after the incident, they cannot be expected to give minute details of the incident. It would have taken some time for them to come out of the shock and recollect the incident and give a detailed version of the incident. It is to be noted that in the present case, the statements of PW-1 recorded on various dates are not contradictory to each other. The subsequent statements though are more detailed as compared to the former ones, in the circumstances of the case, it cannot be said to be unnatural affecting the trustworthiness of PW-1’s testimony. There is hardly any justification for doubting the evidence of PW-1, especially when it is corroborated by recovery of PW-1’s articles from the accused and scientific evidence.

65. The trial Court as well as the High Court found PW-1’s evidence credible and trustworthy and I find no reason to take a different view. The view of the High Court and the trial court is fortified by the decisions of this court in Pudhu Raja and Anr. v. State Rep. by Inspector of Police, (2012) 11 SCC 196, Jaswant Singh v. State of Haryana (2000) 4 SCC 484 and Akhtar and Ors. v. State of Uttaranchal (2009) 13 SCC 722. Further, the evidence of PW-1 is amply strengthened by scientific evidence and recovery of the incriminating articles from the accused. The alleged omissions and improvements in the evidence of PW-1 pointed out by the defence do not materially affect the evidence of PW-1.

66. Recovery of the bus and its Involvement in the incident: Description of the entire incident by PW-1 and the victim led the investigating team to the Hotel named “Hotel Delhi Airport”, where PW-1 and the victim were dumped after the incident. PW-67 P.K. Jha, owner of Hotel Delhi Airport handed over the pen drive containing CCTV footage (Ex.P-67/1) and CD (Ex.P-67/2) to the Investigating Officer which were seized. From the CCTV footage, the offending bus bearing registration No.DL-1PC-0149 was identified by PW-1. The bus was seized from Ravi Dass Camp and Ram Singh (A-1) was also arrested.

67. PW-81 Dinesh Yadav is the owner of the bus bearing Registration No.DL-1PC-0149 (Ex.P-1). PW-81 runs buses under the name and style “Yadav Travels”. On interrogation, PW-81 Dinesh Yadav stated that A-1 Ram Singh was the driver of the bus No.DL-1PC-0149 in December, 2012 and A-3 Akshay Kumar Singh was his helper in the bus. PW-81 also informed the police that the bus was attached to Birla Vidya Niketan School, Pushp Vihar, New Delhi to ferry students to the school in the morning and that it was also engaged by a Company named M/s. Net Ambit in Noida, to take its employees from Delhi to Noida. PW-81 also informed the police that after daily routine trip, A-1 Ram Singh used to park the bus at Ravi Dass Camp, R.K. Puram, near his residence. PW-81 further informed that on 17.12.2012, the bus as usual went from Delhi to Noida to take the Staff of M/s Net Ambit to their office. The recovery of the bus (Ex.P-1) and evidence of PW-81 led to a breakthrough in the investigation that A-1 Ram Singh was the driver of the bus and A-3 Akshay was the cleaner of the bus.

68. Furthermore, in order to prove that A1 Ram Singh (Dead) was the driver of the bus No.DL-1PC-0149 (Ex.P-1), PW-16 Rajeev Jakhmola, Manager (Administration) of Birla Vidya Niketan School, Pushp Vihar, New Delhi was examined. In his evidence, PW-16 stated that PW-81, Dinesh Yadav had provided the school with seven buses on contract basis including the bus No.DL-1PC-0149 (Ex.P-1) and that A-1 Ram Singh was its driver. In his interrogation by the police, PW-16 had also handed over Ram Singh’s driving licence alongwith copy of agreement of the school with the owner of the bus and other documents. By adducing the evidence of PW-81 Dinesh Yadav and PW-16 Rajeev Jakhmola, the prosecution has established that the bus in question was routinely driven by A-1 Ram Singh (Dead) and A-3 Akshay Kumar was the helper in the bus.

69. On 17.12.2012, a team of experts from CFSL comprising PW-45 Dr. B.K. Mohapatra, PW-46 A.D. Shah, PW-79 P.K. Gottam and others, went to the Thyagraj Stadium and inspected the bus Ex.P1. On inspection, certain articles were seized from the said bus vide seizure memo Ex.PW-74/P. It is brought on record that the samples were diligently collected and taken to CFSL, CBI by SI Subhash (PW-74) vide RC No. 178/21/12 for examination. The DNA profile of material objects lifted from the bus bearing No.DL-1PC-0149 were found consistent with that of the victim and the complainant. Matching of the DNA profile developed from the articles seized from the bus DL-1PC-0149 like hair recovered from the third row of the bus on the left side with the DNA profile of PW-1, strengthens the prosecution case as to the involvement of the offending bus bearing registration No.DL-1PC-0149. DNA profile developed from the blood-stained curtains of the bus and blood-stained seat covers of bus and the bunch of hair recovered from the floor of the bus below sixth row matched with the DNA profile of the victim. The evidence of DNA analysis is an unimpeachable evidence as to the involvement of the offending bus in the commission of offence and also strong unimpeachable evidence connecting the accused with the crime.

70. The accused neither rebutted this evidence nor offered any
convincing explanation except making feeble attempt by stating that
everything was concocted. PW-46, A.D. Shah, Senior Scientific Officer
(Finger Prints), CFSL, CBI examined the chance prints lifted from the bus.
Chance print marked as ‘Q.1’ lifted from the bus (Ex.P-1) was found
identical with the left palm print of accused Vinay Sharma. Further chance
print marked as ‘Q.4’ was found identical with right thumb impression of
accused Vinay Sharma. A finger print expert report (Ex.PW-46/D) states
that the chance print lifted from the bus being identical with the finger print
of accused Vinay Sharma, establishes the presence of accused Vinay
Sharma in the bus, thereby strengthening prosecution case.
71. Arrest and Recovery under Section 27 of the Indian Evidence
Act: Prosecution very much relies upon disclosure statements of the
accused, pursuant to which articles of the victim and also of PW-1 were
recovered. Accused being in possession of the articles of the victim and
that of PW-1, is a militating circumstance against the accused and it is for
the accused to explain as to how they came in possession of these articles.
Details of arrest of accused and articles recovered from the accused are as
under:-

72. As noted in the above tabular form, various articles of the complainant and the victim were recovered from the accused viz., Samsung Galaxy Phone (recovered at the behest of A-2 Mukesh); silver ring (recovered at the behest of A-3 Akshay); Hush Puppies shoes (recovered at the behest of A-4 Vinay) and Sonata Wrist Watch (recovered at the behest of A-5 Pawan). Recovery of belongings of PW-1 and that of the victim, at the instance of the accused is a relevant fact duly proved by the prosecution. Notably the articles recovered from the accused thereto have been duly identified by the complainant in test identification proceedings. Recovery of articles of complainant (PW-1) and that of the victim at the behest of accused is a strong incriminating circumstance implicating the accused. As rightly pointed out by the Courts below, the accused have not offered any cogent or plausible explanation as to how they came in possession of those articles.

73. Similarly, the Indian bank debit card (Ex.PW-74/3) recovered at the behest of A-1 Ram Singh and black coloured Nokia mobile phone (Ex.PW-68/5) recovered at the behest of A-4 Vinay have been proved to be used by the prosecutrix. PW-75 Asha Devi mother of the victim in her testimony stated that the Debit card belonged to her PW-75 Asha Devi and that the same was in the possession of her daughter. Nokia mobile phone (Ex.PW-68/5) is stated to be the mobile used by the victim. Notably, the articles of the prosecutrix recovered from the accused were proved by the evidence of PW-75 Asha Devi (mother of the victim) and the same was not controverted by the defence.

74. Section 25 of the Indian Evidence Act (for short ‘the Evidence Act’) speaks of a confession made to a police officer, which shall not be proved as against a person accused of an offence. Section 26 of the Evidence Act also speaks that no confession made by the person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Sections 25 and 26 of the Evidence Act put a complete bar on the admissibility of a confessional statement made to a police officer or a confession made in absentia of a Magistrate, while in custody. Section 27 of the Evidence Act is by way of a proviso to Sections 25 and 26 of the Evidence Act and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. Section 27 of the Evidence Act reads as under:-

“27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

Section 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information is true and is a relevant fact and accordingly it can be safely allowed to be given in evidence.

75. Section 27 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (i) The information must be such as the accused has caused discovery of the fact, i.e. the fact must be the consequence, and the information the cause of its discovery; (ii) The information must ‘relate distinctly’ to the fact discovered. Both the conditions must be satisfied. Various requirements of Section 27 of the Evidence Act are succinctly summed up in Anter Singh v. State of Rajasthan (2004) 10 SCC 657:-

“16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused’s own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.”

76. Appending a note of caution to prevent the misuse of the provision of Section 27 of the Evidence Act, this Court in Geejaganda Somaiah v. State of Karnataka (2007) 9 SCC 315, observed that the courts need to be vigilant about application of Section 27 of the Evidence Act. Relevant extract from the judgment is as under:-

“22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.”

77. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when the investigating officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process.

78. While the prosecution has been able to prove the recoveries made at the behest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.

79. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW-80 SI Pratibha Sharma has deposed in her cross-examination that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.

80. When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In State Govt. of NCT of Delhi v. Sunil and Another (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 Cr.P.C. to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.

81. In the landmark case of Pulukuri Kottaya v. King-Emperor AIR 1947 PC 67, the Privy Council has laid down the relevance of information received from the accused for the purpose of Section 27 of the Evidence Act. Relevant extracts from the judgment are as under:

“10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.”

The test laid down in Pulukuri Kottaya’s case was reiterated in several subsequent judgments of this Court including State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600.

82. In the light of above discussion, it is held that recoveries made pursuant to disclosure statement of the accused are duly proved by the prosecution and there is no substantial reason to discard the same. Recovery of articles of PW-1 and also that of victim at the instance of the accused is a strong incriminating evidence against accused, especially when no plausible explanation is forthcoming from the accused. Further, as discussed infra, the scientific examination of the articles recovered completely place them in line with the chain of events described by the prosecution.

83. DNA Analysis: In order to establish a clear link between the accused persons and the incident at hand, the prosecution has also adduced scientific evidence in the form of DNA analysis. For the purpose of DNA profiling, various samples were taken from the person of the prosecutrix; the complainant; the accused, their clothes/articles; the dumping spot; the iron rods; the ashes of burnt clothes; as well as from the offending bus. PW-45 Dr. B.K. Mohapatra analysed the said DNA profiles and submitted his report thereof. In his report, he concluded that the samples were authentic and capable of establishing the identities of the persons concerned beyond reasonable doubt. Prosecution relies upon the biological examination of various articles including the samples collected from the accused and the DNA profiles generated from the blood-stained clothes of the accused. The DNA profile generated from the samples collected, when compared with the DNA profile generated from the blood samples of the victim and PW-1 Awninder Pratab Pandey, were found consistent.

84. For easy reference and for completion of narration of events, I choose to refer to the articles recovered from the accused pursuant to their disclosure statements and other articles like blood-stained clothes; samples of personal fluids like blood, saliva with control swab; other samples like nail clippings, penil swab, stray hair etc. Details of the DNA analysis is contained in the reports of biological examination and DNA profiling (Ex.PW-45/A to Ex.PW-45/C), furnished by PW-45 Dr. B.K. Mohapatra.

85. Before considering the above findings of DNA analysis contained in tabular form, let me first refer to what is DNA, the infallibility of identification by DNA profiling and its accuracy with certainty. DNA – De-oxy-ribonucleic acid, which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. DNA is the genetic blue print for life and is virtually contained in every cell. No two persons, except identical twins have ever had identical DNA. DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens, victim’s DNA on the blood-stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders. Finger prints are only on the fingers and at times may be altered. Burning or cutting a finger can change the make of the finger print. But DNA cannot be changed for an individual no matter whatever happens to a body.

86. We may usefully refer to Advanced Law Lexicon, 3rd Edition Reprint 2009 by P. Ramanatha Aiyar which explains DNA as under:-

“DNA.- De-oxy-ribonucleic acid, the nucleoprotein of chromosomes. The double-helix structure in cell nuclei that carries the genetic information of most living organisms.

The material in a cell that makes up the genes and controls the cell. (Biological Term)

DNA finger printing. A method of identification especially for evidentiary purposes by analyzing and comparing the DNA from tissue samples. (Merriam Webster)”

In the same Law Lexicon, learned author refers to DNA identification as under:

DNA identification. A method of comparing a person’s deoxyribonucleic acid (DNA) – a patterned chemical structure of genetic information – with the DNA in a biological specimen (such as blood, tissue, or hair) to determine if the person is the source of the specimen. – Also termed DNA finger printing; genetic finger printing (Black, 7th Edition, 1999)

87. DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes etc. recovered from the accused or from witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA finger printing makes it possible to obtain conclusive results. Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 kms. from the place where the offence has been committed by any other registered medical practitioner.

88. Observing that DNA is scientifically accurate and exact science and that the trial court was not justified in rejecting DNA report, in Santosh Kumar Singh v. State through CBI (2010) 9 SCC 747, the Court held as under:-

“65. We now come to the circumstance with regard to the comparison of the semen stains with the blood taken from the appellant. The trial court had found against the prosecution on this aspect. In this connection, we must emphasise that the court cannot substitute its own opinion for that of an expert, more particularly in a science such as DNA profiling which is a recent development.

66. Dr. Lalji Singh in his examination-in-chief deposed that he had been involved with the DNA technology ever since the year 1974 and he had returned to India from the UK in 1987 and joined CCMB, Hyderabad and had developed indigenous methods and techniques for DNA finger printing which were now being used in this country. We also see that the expertise and experience of Dr. Lalji Singh in his field has been recognised by this Court in Kamalanantha v. State of T.N. (2005) 5 SCC 194 We further notice that CW 1 Dr. G.V. Rao was a scientist of equal repute and he had in fact conducted the tests under the supervision of Dr. Lalji Singh. It was not even disputed before us during the course of arguments that these two scientists were persons of eminence and that the laboratory in question was also held in the highest esteem in India.

67. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant.

68. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number of textbooks and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. In Bhagwan Das v. State of Rajasthan AIR 1957 SC 589 it has been held that it would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert.

71. We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Dev i v. Poshi Ram (2001) 5 SCC 311 . In arriving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on Circumstance 9.” [emphasis added].

89. From the evidence of PW-45 and the details given in the above tabular form, it is seen that the DNA profile generated from blood-stained clothes of the accused namely, A-1 Ram Singh (dead); A-2 Mukesh; A-3 Akshay; A-4 Vinay; and A-5 Pawan Gupta @ Kalu are found consistent with the DNA profile of the prosecutrix. Also as noted above, two sets of DNA profile were generated from the black colour sweater of the accused Pawan. One set of DNA profile found to be female in origin, consistent with the DNA profile of the prosecutrix; other set found to be male in origin, consistent with the DNA profile of PW-1. Likewise, two sets of DNA profile were generated from the black colour sports jacket of accused Vinay, one of which matched the DNA profile of the prosecutrix and another one matched the DNA profile of PW-1. Likewise, two sets of DNA profile were generated from the jeans pant of accused Akshay, one of which matched the DNA profile of the prosecutrix and another one matched the DNA profile of PW-1. The result of DNA analysis and that of the DNA profile generated from blood-stained clothes of the accused found consistent with that of the victim is a strong piece of evidence incriminating the accused in the offence.

90. DNA profile generated from the blood samples of accused Ram Singh matched with the DNA profile generated from the rectal swab of the victim. Blood as well as human spermatozoa was detected in the underwear of the accused Ram Singh (dead) and DNA profile generated therefrom was found to be female in origin, consistent with that of the victim. Likewise, the DNA profile generated from the breast swab of the victim was found consistent with the DNA profile of the accused Akshay.

91. As discussed earlier, identification by DNA genetic finger print is almost hundred per cent precise and accurate. The DNA profile generated from the blood-stained clothes of the accused and other articles are found consistent with the DNA profile of the victim and DNA profile of PW-1; this is a strong piece of evidence against the accused. In his evidence, PW-45 Dr. B.K. Mohapatra has stated that once DNA profile is generated and found consistent with another DNA profile, the accuracy is hundred per cent and we find no reason to doubt his evidence. As pointed out by the Courts below, the counsel for the defence did not raise any substantive ground to rebut the findings of DNA analysis and the findings through the examination of PW-45. The DNA report and the findings thereon, being scientifically accurate clearly establish the link involving the accused persons in the incident.

92. Conspiracy: The accused have been charged with the offence of “conspiracy” to commit the offence of abduction, robbery/dacoity, gang rape and unnatural sex, in pursuance of which the accused are alleged to have picked up the prosecutrix and PW-1. The charge sheet also states that in furtherance of conspiracy, the accused while committing the offence of gang rape on the prosecutrix intentionally inflicted bodily injury with iron rod and inserted the iron rod in the vital parts of her body with the common intention to cause her death.

93. The learned amicus Mr. Sanjay Hegde submitted that there is no specific evidence to prove that there was prior meeting of minds of the accused and that they had conspired together to commit grave offence by use of iron rod, resulting in the death of the victim and, therefore, insertion/use of iron rod by any one of the accused cannot be attributed to all the accused in order to hold them guilty of the offence of murder.

94. The essentials of the offence of conspiracy and the manner in which it can be proved has been laid down by this Court through a catena of judicial pronouncements and I choose to briefly recapitulate the law on the point, so as to determine whether the offence is made out in this case or not. Meeting of minds for committing an illegal act is sine qua non of the offence of conspiracy. It is also obvious that meeting of minds, thereby resulting in formation of a consensus between the parties, can be a sudden act, spanning in a fraction of a minute. It is neither necessary that each of the conspirators take active part in the commission of each and every conspiratorial act, nor it is necessary that all the conspirators must know each and every details of the conspiracy. Essence of the offence of conspiracy is in agreement to break the law as aptly observed by this Court in Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195.

95. So far as the English law on conspiracy is concerned, which is the source of Indian law, KENNY has succinctly stated that in modern times conspiracy is defined as an agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim or only as a means to it. Stressing on the need of formation of an agreement, he has cautioned that conspiracy should not be misunderstood as a purely mental crime, comprising the concurrence of the intentions of the parties. The meaning of an ‘agreement’, he has explained by quoting following words of Lord Chelmsford:

“Agreement is an act in advancement of the intention which each person has conceived in his mind.”

KENNY has further said that it is not mere intention, but the announcement and acceptance of intentions. However, it is not necessary that an overt act is done; the offence is complete as soon as the parties have agreed as to their unlawful purpose, although nothing has yet been settled as to the means and devices to be employed for effecting it. [Refer KENNY on Outlines of Criminal Law, 19th Edn., pp. 426-427]

96. The most important aspect of the offence of conspiracy is that apart from being a distinct statutory offence, all the parties to the conspiracy are liable for the acts of each other and as an exception to the general law in the case of conspiracy intent i.e. mens rea alone constitutes a crime. As per Section 10 of the Evidence Act, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by any one of them in reference to their common intention, is admissible against the others. As held in State of Maharashtra v. Damu and Others (2000) 6 SCC 269, the only condition for the application of the rule in Section 10 of the Evidence Act is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence.

97. The principles relating to the offence of criminal conspiracy and the standard of proof for establishing offence of conspiracy and the joint liability of the conspirators have been elaborately laid down in Shivnarayan Laxminarayan Joshi and Ors. v. State of Maharashtra (1980) 2 SCC 465; Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra (1981) 2 SCC 443; Kehar Singh and Ors. v. State (Delhi Administration) (1988) 3 SCC 609; State of Maharashtra and Ors. v. Som Nath Thapa and Ors. (1996) 4 SCC 659; State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600; State Through Superintendent of Police, CBI/SIT v. Nalini and Ors. (1999) 5 SCC 253 Yakub Abdul Razak Menon v. The State of Maharashtra, through CBI, Bombay (2013) 13 SCC 1.

98. Another significant aspect of the offence of criminal conspiracy is that it is very rare to find direct proof of it, because of the very fact that it is hatched in secrecy. Unlike other offences, criminal conspiracy in most of the cases is proved by circumstantial evidence only. It is extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested, quarters or from utter strangers. Conspiracy is a matter of inference, deduced from words uttered, criminal acts of the accused done in furtherance of conspiracy. (Vide Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696; Firozuddin Basheeruddin and Ors. v. State of Kerala (2001) 7 SCC 596; Ram Narain Poply v. Central Bureau of Investigation and Ors. (2003) 3 SCC 641; Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394; Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr. (2013) 1 SCC 613; Chandra Prakash v. State of Rajasthan (2014) 8 SCC 340 etc.)

99. In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394, this Court, after referring to the law laid down in several pronouncements, summarised the core principles of law of conspiracy in the following words:

“23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.”

100. In the present case, there is ample evidence proving the acts, statements and circumstances, establishing firm ground to hold that the accused who were present in the bus were in prior concert to commit the offence of rape. The prosecution has established that the accused were associated with each other. The criminal acts done in furtherance of conspiracy, is established by the sequence of events and the conduct of the accused. Existence of conspiracy and its objects could be inferred from the chain of events. The chain of events described by the victim in her dying declarations coupled with the testimony of PW-1 clearly establish that as soon as the complainant and the victim boarded the bus, the accused switched off the lights of the bus. Few accused pinned down PW-1 and others committed rape on the victim in the back side of the bus one after the other. The accused inserted iron rods in the private parts of the prosecutrix, dragging her holding her hair and then threw her outside the bus. The victim has also maintained in her dying declaration that the accused persons were exhorting that the victim has died and she be thrown out of the bus. Ultimately, both the victim and the complainant were thrown out of the moving bus through the front door, having failed to throw them through the rear door. The chain of action and the act of finally throwing the victim and PW-1 out of the bus show that there was unity of object among the accused to commit rape and destroy the evidence thereon.

101. In this case, the existence of conspiracy is sought to be drawn by an inference from the circumstances: (i) the accused did not allow any other passenger to board the bus after PW-1 and the prosecutrix boarded the bus; (ii) switching off the lights; pinning PW-1 down by some while others commit rape/unnatural sex with the prosecutrix at the rear side of the bus; (iii) exhortation by some of the accused that the victim be not left alive; and (iv) their act of throwing the victim and PW-1 out of the running bus without clothes in the wintery night of December. Existence of conspiracy and its objects is inferred from the above circumstances and the words uttered. In my view, the courts below have rightly drawn an inference that there was prior meeting of minds among the accused and they have rightly held that the prosecution has proved the existence of conspiracy to commit gang rape and other offences.

102. As already stated in the beginning, in achieving the goal of the conspiracy, several offences committed by some of the conspirators may not be known to others, still all the accused will be held guilty of the offence of criminal conspiracy. The trial court has recorded that the victim’s complete alimentary canal from the level of duodenum upto 5 cm from anal sphincter was completely damaged. It was beyond repair. Causing of damage to jejunum is indicative of the fact that the rods were inserted through vagina and/or anus upto the level of jejunum.” Further “the septicemia was the direct result of internal multiple injuries”. Use of iron rod by one or more of the accused is sufficient to inculpate all the accused for the same. In the present case, gang rape and use of iron rod caused grave injuries to victim’s vagina and intestines; throwing her out of the bus in that vegetative state in chilled weather led to her death; all this taking place in the course of same transaction and with the active involvement of all the accused is more than sufficient evidence to find the accused guilty of criminal conspiracy. I, thus, affirm the findings of the courts below with regard to conviction of all the accused under Section 120-B IPC and Section 302 read with Section 120-B IPC.

103. Apart from considering the principles of law of conspiracy distinctly, if we consider it in the context of ‘conspiracy to commit the offence of gang rape, unnatural sex etc., as is specifically relevant in the present case, we find that existence of common intent and joint liability is already implicit in the offence of gang rape. Gang rape is dealt with in clause (g) of sub-section (2) of Section 376 IPC read with Explanation 1. As per Explanation 1 to Section 376 IPC, “where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape” and all of them shall be liable to be punished under sub-section (2) of Section 376 IPC. As per Explanation 1, by operation of deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the groups has committed rape in furtherance of the common intention.

104. While considering the scope of Section 376(2)(g) IPC read with Explanation, in Ashok Kumar v. State of Haryana (2003) 2 SCC 143, this Court held as under:-

“8. Charge against the appellant is under Section 376(2)(g) IPC. In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence. [Emphasis added]” So far as the offence under Section 376 (2)(g) IPC, the sharing of common intention and the jointness in commission of rape is concerned, the same is established by the presence of all the accused in the bus; their action in concert as established by the dying declaration of the prosecutrix and the evidence of PW-1, presence of blood in the clothes of all the accused, DNA profile generated thereon being consistent with the DNA profile of the victim.

105. The prosecution has established the presence of the accused in the bus and the heinous act of gang rape committed on the prosecutrix by the accused by the ample evidence – by the multiple dying declaration of the victim and also by the evidence of PW-1 and medical evidence and also by arrest and recovery of incriminating articles of the victim and that of PW-1 complainant. The scientific evidence in particular DNA analysis report clearly brings home the guilt of the accused.

106. Section 235(2), Criminal Procedure Code: Once the conviction of the accused persons is affirmed, what remains to be decided is the question of appropriate punishment imposed on them. On the aspect of sentencing, we were very effectively assisted by the learned Amicus Curiae. Accused were convicted vide judgment and order dated 10.09.2013 and on the very next day of judgment i.e. on 11.09.2013, the arguments on sentencing were concluded. Thereafter, a separate order on sentence was pronounced on 13.09.2013.

107. Counsel for the appellants as well as the learned amicus Mr. Raju Ramachandran contended that no effective opportunity was given to the appellants to lead their defence on the point of sentencing as mandated under Section 235(2) Cr.P.C. and each of the accused were not individually heard in person on the question of sentence. Learned Amicus Curiae, Mr. Raju Ramachandran submitted only the counsel for the accused were heard and all the accused were treated alike irrespective of their individual background and were sentenced to death, which is in clear violation of the mandate of Section 235(2) Cr.P.C. It was submitted that Section 235(2) Cr.P.C. is intended to give an opportunity to the accused to place before the Court all the relevant facts and material having a bearing on the question of sentence and, therefore, salutary provision should not have been treated as a mere formality by the trial court. In support of his contention, the learned Amicus has placed reliance upon a number of judgments viz. – (i) Dagdu & Ors. v. State of Maharashtra (1977) 3 SCC 68; (ii) Malkiat Singh and Ors. v. State of Punjab (1991) 4 SCC 341; and (iii) Ajay Pandit alias Jagdish Dayabhai Patel and Anr. v. State of Maharashtra (2012) 8 SCC 43.

108. Section 235 Cr.P.C. deals with the judgments of acquittal or conviction. Under Section 235(2) Cr.P.C., where the accused is convicted, save in cases of admonition or release on good conduct, the Judge shall hear the accused on the question of sentence and then pass sentence in accordance with law. Section 235(2) Cr.P.C. imposes duty on the court to hear the accused on the question of sentence and then pass sentence on him in accordance with law. The only exception to the said rule is created in case of applicability of Section 360 Cr.P.C. i.e. when the court finds the accused eligible to be released on probation of good conduct or after admonition.

109. Section 354 Cr.P.C. specifies the language and contents of judgment, while delivering the judgment in a criminal case. Section 354(3) Cr.P.C. deals with judgments where conviction is for an offence punishable with death penalty or in the alternative with imprisonment for life. Section 354(3) Cr.P.C. mandates that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence.

110. The statutory duty to state special reasons under Section 354(3) Cr.P.C. can be meaningfully carried out only if the hearing on sentence under Section 235(2) Cr.P.C. is effective and procedurally fair. To afford an effective opportunity to the accused, the Court must hear on the question of sentence to know about (i) age of the accused; (ii) background of the accused; (iii) prior criminal antecedents, if any; (iv) possibility of reformation, if any; and (v) such other relevant factors. The major deficiency in the complex criminal justice system is that important factors which have a bearing on sentence are not placed before the Court. Resultantly, the Courts are constantly faced with the dilemma to impose an appropriate sentence. In this context, hearing of the accused under Section 235(2) Cr.P.C. on the question of sentencing is a crucial exercise which is intended to enable the accused to place before the Court all the mitigating circumstances in his favour viz. his social and economic backwardness, young age etc. The mandate of Section 235(2) Cr.P.C. becomes more crucial when the accused is found guilty of an offence punishable with death penalty or with the life imprisonment.

111. It is well-settled that Section 235(2) Cr.P.C. is intended to give an opportunity of hearing to the prosecution as well as the accused on the question of sentence. The Court while awarding the sentence has to take into consideration various factors having a bearing on the question of sentence. In case, Section 235(2) Cr.P.C. is not complied with, as held in Dagdu’s case, the appellate Court can either send back the case to the Sessions Court for complying with Section 235(2) Cr.P.C. so as to enable the accused to adduce materials; or, in order to avoid delay, the appellate Court may by itself give an opportunity to the parties in terms of Section 235(2) Cr.P.C. to produce the materials they wish to adduce instead of sending the matter back to the trial Court for hearing on sentence. In the present case, we felt it appropriate to adopt the latter course and accordingly asked the counsel appearing for the appellants to file affidavits/materials on the question of sentence. Consequently, vide order dated 03.02.2017, we directed the learned counsel for the accused to place in writing, before this Court, their submissions, whatever they desired to place on the question of sentence. In compliance with the order, Mr. M.L. Sharma, learned counsel on behalf of the accused A-2 Mukesh and A-5 Pawan and Mr. A.P. Singh, learned counsel on behalf of the accused Akshay Kumar Singh, Vinay Sharma and Pawan Gupta filed the individual affidavits of the accused.

112. Accused Mukesh (A-2) in his affidavit has stated that he was picked up from his house at Karoli, Rajasthan and brought to Delhi and reiterated that he is innocent and he denied his involvement in the occurrence. In their affidavits, accused Akshay Kumar Singh (A-3), accused Vinay Sharma (A-4) and accused Pawan Gupta (A-5) submitted in their individual affidavits have stated that they hail from an ordinary/ poor background and are not much educated. They have also stated that they have aged parents and other family members who are dependent on them and they are to be supported by them. Accused have also stated that they have no criminal antecedents and that after their confinement in Tihar Jail they have maintained good behavior.

113. Learned counsel Mr. M.L. Sharma submitted that accused Mukesh (A-2) is innocent and he has been falsely implicated only because he is the brother of accused Ram Singh.

114. Taking us through the affidavits filed by the accused, learned counsel Mr. A.P. Singh submitted that the accused namely Akshay Kumar Singh, Pawan Gupta and Vinay Sharma hail from very poor background; and have got large families to support; and have no criminal antecedents. It has been contended that having regard to the fact that the three accused have no prior criminal antecedents and are not hardened criminals, the case will not fall under “rarest of rare cases” to affirm the death sentence. 115. Supplementing the affidavits filed by the accused, the learned amicus and senior counsel Mr. Raju Ramachandran and Mr. Sanjay Hegde submitted that assuming that the conviction of the appellants are confirmed, the accused who hail from very ordinary poor background and having no criminal antecedents, the death sentence be commuted to life imprisonment.

116. Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases. The courts are consistently faced with the situation where they are required to answer the new challenges and mould the sentence to meet those challenges. Protection of society and deterring the criminal is the avowed object of law. It is expected of the courts to operate the sentencing system as to impose such sentence which reflects the social conscience of the society. While determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large.

117. In State of M.P. v. Munna Choubey and Anr. (2005) 2 SCC 710, it was observed as under:

“10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu (1991) 3 SCC 471.”

118. In Jashubha Bharatsinh Gohil and Ors. v. State of Gujarat (1994) 4 SCC 353, while upholding the award of death sentence, this Court held that sentencing process has to be stern where the circumstances demand so. Relevant extract is as under:

“12………The courts are constantly faced with the situation where they are required to answer to new challenges and mould the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. The change in the legislative intendment relating to award of capital punishment notwithstanding, the opposition by the protagonist of abolition of capital sentence, shows that it is expected of the courts to so operate the sentencing system as to impose such sentence which reflects the social conscience of the society. The sentencing process has to be stern where it should be.”

119. Whether the Case falls under rarest of rare cases: Law relating to award of death sentence in India has evolved through massive policy reforms-nationally as well as internationally and through a catena of judicial pronouncements, showcasing distinct phases of our view towards imposition of death penalty. Undoubtedly, continuing prominence of reformative approach in sentencing and India’s international obligations have been majorly instrumental in facilitating a visible shift in court’s view towards restricting imposition of death sentence. While closing the shutter of deterrent approach of sentencing in India, the small window of ‘award of death sentence’ was left open in the category of ‘rarest of rare case’ in Bachan Singh v. State of Punjab (1980) 2 SCC 684, by a Constitution Bench of this Court.

120. In Bachan Singh (supra), while upholding the constitutional validity of capital sentence, this Court revisited the law relating to death sentence at that point of time, by thoroughly discussing the law laid down in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20; Rajendra Prasad v. State of U.P. (1979) 3 SCR 646 and other cases. The principles laid down in Bachan Singh’s case is that, normal rule is awarding of ‘life sentence’, imposition of death sentence being justified, only in rarest of rare case, when the option of awarding sentence of life imprisonment is unquestionably foreclosed’. By virtue of Bachan Singh (supra), ‘life imprisonment’ became the rule and ‘death sentence’ an exception. The focus was shifted from ‘crime’ to the ‘crime and criminal’ i.e. now the nature and gravity of the crime needs to be analysed juxtaposed to the peculiar circumstances attending the societal existence of the criminal. The principles laid down in Bachan Singh’s case were considered in Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 and was summarised as under:-

“38. In this background the guidelines indicated in Bachan Singh’s case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh’s case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender’ also require to be taken into consideration along with the circumstances of the `crime’.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

121. In Machhi Singh’s case, this Court took the view that in every case where death penalty is a question, a balance sheet of aggravating and mitigating circumstances must be drawn up before arriving at the decision. The Court held that for practical application of the doctrine of ‘rarest of rare case’, it must be understood broadly in the background of five categories of cases crafted thereon that is ‘Manner of commission of crime’, ‘Motive’, ‘Anti-social or socially abhorrent nature of the crime’, ‘Magnitude of crime’, and ‘Personality of victim of murder’. These five categories are elaborated in para nos. 32 to 37 as under:-

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in
order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.”

122. The principle laid down in Bachan Singh (supra) and Machhi Singh (supra) came to be discussed and applied in all the cases relating to imposition of death penalty for committing heinous offences. However, lately, it was felt that the courts have not correctly applied the law laid down in Bachan Singh (supra) and Machhi Singh (supra), which has led to inconsistency in sentencing process in India; also it was observed that the list of categories of murder crafted in Machhi Singh (supra), in which death sentence ought to be awarded are not exhaustive and needs to be given even more expansive adherence owing to changed legal scenario. In Swamy Shradhananda alias Murali Manohar Mishra (2) v. State of Karnataka (2008) 13 SCC 767; a three-Judge Bench of this Court, observed as under in this regard:-

“43. In Machhi Singh the Court crafted the categories of murder in which `the Community’ should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh was rendered on 20 July, 1983, nearly twenty five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for Ransom and Gang Rape and murders committed in course of those offences were yet to become a menace for the society compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country’s Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and `whistle blowers’. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. Relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself.”

123. A milestone in the sentencing policy is the concept of ‘life imprisonment till the remainder of life’ evolved in Swamy Shradhananda (2)(supra). In this case, a man committed murder of his wife for usurping her property in a cold-blooded, calculated and diabolic manner. The trial court convicted the accused and death penalty was imposed on him which was affirmed by the High Court. Though the conviction was affirmed by this Court also on the point of sentencing, the views of a two-Judge Bench of this Court, in Swamy Shradhananda v. State of Karnataka (2007) 12 SCC 282 differed, and consequently, the matter was listed before a three-Judge Bench, wherein a mid way was carved. The three-Judge Bench, was of the view that even though the murder was diabolic, presence of certain circumstances in favour of the accused, viz. no mental or physical pain being inflicted on the victim, confession of the accused before the High Court etc., made them reluctant to award death sentence. However, the Court also realised that award of life imprisonment, which euphemistically means imprisonment for a term of 14 years (consequent to exercise of power of commutation by the executive), would be equally disproportionate punishment to the crime committed. Hence, in Swamy Shradhananda (2) (supra) the Court directed that the accused shall not be released from the prison till the rest of his life. Relevant extract from the judgment reads as under:

“92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all.”

124. After referring to a catena of judicial pronouncements post Bachan Singh (supra) and Machhi Singh (supra), in the case of Ramnaresh and Ors. v. State of Chhattisgarh (2012) 4 SCC 257, this Court, tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances. It would be apposite to refer to the same here:

“Aggravating circumstances
(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty Under Section 43 Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances
(1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.”

125. Similarly, this Court in Sangeet and Another v. State of Haryana (2013) 2 SCC 452, extensively analysed the evolution of sentencing policy in India and stressed on the need for further evolution. In para (77), this Court emphasized on making the sentencing process a principled one, rather than Judge-centric one and held that a re-look is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court.

126. As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal Test” and the “Rarest of the Rare Test”, the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded. Reference may be made to Holiram Bordoloi v. State of Assam (2005) 3 SCC 793 [Para 15-17], Ankush Maruti Shinde and Ors. v. State of Maharashtra (2009) 6 SCC 667 (para 31-34), Kamta Tiwari v. State of Madhya Pradesh (1996) 6 SCC 250 (para 7-8), State of U.P. v. Satish (2005) 3 SCC 114 (para 24-31), Sundar alias Sundarajan v. State by Inspector of Police and Anr. (2013) 3 SCC 215 (para 36-38, 42-42.7, 43), Sevaka Perumal and Anr. v. State of Tamil Nadu (1991) 3 SCC 471 (para 8-10, 12), Mohfil Khan and Anr. v. State of Jharkhand (2015) 1 SCC 67 (para 63-65).

127. Even the young age of the accused is not a mitigating circumstance for commutation to life, as has been held in the case of Bhagwan Swarup v. State of U.P. (1971) 3 SCC 759 (para 5), Deepak Rai v. State of Bihar (2013) 10 SCC 421 (para 91-100) and Shabhnam v. State of Uttar Pradesh (2015) 6 SCC 632 (para 36).

128. Let me now refer to a few cases of rape and murder where this Court has confirmed the sentence of death. In Molai & Anr. v. State of M.P. (1999) 9 SCC 581, death sentence awarded to both the accused for committing offences under Sections 376 (2)(g) IPC, 302 read with Section 34 IPC and 201 IPC, was confirmed by this Court. The accused had committed gang rape on the victim, strangulated her thereafter and threw away her body into the septic tank with the cycle, after causing stab injuries. It was held as under:

“36……It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her under-garment and thereafter took her to the septic tank alongwith the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned Counsel for the accused (appellants) could not point any mitigating circumstances from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below.”

129. In Bantu v. State of Uttar Pradesh (2008) 11 SCC 113, the victim aged about five years was not only raped, but was murdered in a diabolic manner. The Court awarded extreme punishment of death, holding that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed must be delicately balanced by the Court in a dispassionate manner.

130. In Ankush Maruti Shinde and Ors. v. State of Maharashtra (2009) 6 SCC 667, concerned accused were found guilty of offences under Sections 307 IPC, 376(2)(g) IPC and 397 read with 395 and 396 of IPC. This Court declined to interfere with the concurrent findings of the courts below and upheld death penalty awarded to the accused, taking into account the brutality of the incident, tender age of the deceased, and the fact of a minor girl being mercilessly gang raped and then put to death. The court also noted that there was no provocation from the deceased’s side and the two surviving eye witnesses had fully corroborated the case of the prosecution.

131. In Mehboob Batcha and Ors. v. State rep. by Supdt. of Police (2011) 7 SCC 45, accused were policemen who had wrongfully confined one Nandagopal in police custody in Police Station Annamalai Nagar on suspicion of theft from 30.05.1992 till 02.06.1992 and had beaten him to death there with lathis, and had also gang raped his wife Padmini in a barbaric manner. This Court could not award death penalty due to omission of the courts below in framing charge under Section 302, IPC. However, the observations made by this Court are worth quoting here:

“Bane hain ahal-e-hawas muddai bhi munsif bhi Kise vakeel karein kisse munsifi chaahen — Faiz Ahmed Faiz 1. If ever there was a case which cried out for death penalty it is this one, but it is deeply regrettable that not only was no such penalty imposed but not even a charge under Section 302 IPC was framed against the accused by the Courts below. ……………..

9. We have held in Satya Narain Tiwari @ Jolly and Anr. v. State of U.P. (2010) 13 SCC 689 and in Sukhdev Singh v. State of Punjab, (2010) 13 SCC 656 that crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric, and hence they call for harsh punishment…………”

132. In Mohd. Mannan @ Abdul Mannan v. State of Bihar (2011) 5 SCC 317, this Court upheld award of death sentence to a 43 year old accused who brutally raped and murdered a minor girl, while holding a position of trust. Relevant considerations of the Court while affirming the death sentence are extracted as under:

“26….The postmortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The Appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenseless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is natural and logical. We are of the opinion that Appellant is a menace to the society and shall continue to be so and he can not be reformed. We have no manner of doubt that the case in hand falls in the category of the rarest of the rare cases and the trial court had correctly inflicted the death sentence which had rightly been confirmed by the High Court.”

In Shivaji @ Dadya Shankar Alhat v. State of Maharashtra (2008) 15 SCC 269; Rajendra Pralhadrao Wasnik v. The State of Maharashtra (2012) 4 SCC 37 award of death penalty in case of rape and murder was upheld, finding the incident brutal and accused a menace for the society.

133. In Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2 SCC 220, a security guard who was entrusted with the security of a residential apartment had raped and murdered an eighteen year old inhabitant of one of the flats in the said apartment, between 5.30 p.m. and 5.45 p.m. The entire case of the prosecution was based on circumstantial evidence. However, Court found that it was a fit case for imposing death penalty. Following observation of the Court while imposing death penalty is worth quoting:-

“14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” (emphasis added)

134. In a landmark judgment Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur (Concurring) after analysing various cases of rape and murder, wherein death sentence was confirmed by this Court, in para (122) briefly laid down the grounds which weighed with the Court in confirming the death penalty and the same read as under:-

“122. The principal reasons for confirming the death penalty in the above cases include:

(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan v. State of U.P. (1991) 1 SCC 752, Dhananjoy Chatterjee v. State of W.B. (1994) 2 SCC 220, Laxman Naik v. State of Orissa (1994) 3 SCC 381, Kamta Tewari v. State of M.P. (1996) 6 SCC 250, Nirmal Singh v. State of Haryana (1999) 3 SCC 670, Jai Kumar v. State of M.P. (1999) 5 SCC 1, State of U.P. v. Satish (2005) 3 SCC 114, Bantu v. State of U.P. (2008) 11 SCC 113, Ankush Maruti Shinde v. State of Maharashtra (2009) 6 SCC 667, B.A. Umesh v. State of Karnataka (2011) 3 SCC 85, Mohd. Mannan v. State of Bihar (2011) 5 SCC 317 and Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37);
(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee (1994) 2 SCC 220, Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667 and Mohd. Mannan (2011) 5 SCC 317);
(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar(1999) 5 SCC 1, B.A. Umesh (2011) 3 SCC 85 and Mohd. Mannan (2011) 5 SCC 317);
(4) the victims were defenceless (Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250, Ankush Maruti Shinde (2009) 6 SCC 667, Mohd. Mannan (2011) 5 SCC 317 and Rajendra Pralhadrao Wasnik (2012) 4 SCC 37);
(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250, Nirmal Singh (1999) 3 SCC 670, Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667, B.A. Umesh (2011) 3 SCC 85 and Mohd. Mannan (2011) 5 SCC 317) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu v. High Court of Karnataka (2007) 4 SCC 713, B.A. Umesh (2011) 3 SCC 85 and Rajendra Pralhadrao Wasnik (2012) 4 SCC 37).”

135. We also refer to para (106) of Shankar Kisanrao Khade’s case where Justice Madan B. Lokur (Concurring) has exhaustively analysed the case of rape and murder where death penalty was converted to that of imprisonment for life and some of the factors that weighed with the Court in such commutation. Para (106) reads as under:-

“106. A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include:

(1) the young age of the accused [Amit v. State of Maharashtra (2003) 8 SCC 93 aged 20 years, Rahul v. State of Maharashtra (2005) 10 SCC 322 aged 24 years, Santosh Kumar Singh v. State (2010) 9 SCC 747 aged 24 years, Rameshbhai Chandubhai Rathod (2) (2011) 2 SCC 764 aged 28 years and Amit v. State of U.P.(2012) 4 SCC 107 aged 28 years];
(2) the possibility of reforming and rehabilitating the accused (in Santosh Kumar Singh (2010) 9 SCC 747 and Amit v. State of U.P.(2012) 4 SCC 107 the accused, incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh (1999) 3 SCC 670, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Amit v. State of Maharashtra (2003) 8 SCC 93, Surendra Pal Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of U.P (2012) 4 SCC 107);
(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh (1999) 3 SCC 670, Mohd. Chaman (2001) 2 SCC 28, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Surendra Pal Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of U.P. (2012) 4 SCC 107).
(5) a few other reasons need to be mentioned such as the accused having been acquitted by one of the courts (State of T.N. v. Suresh (1998) 2 SCC 372, State of Maharashtra v. Suresh (2000) 1 SCC 471, State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, State of Maharashtra v. Mansingh (2005) 3 SCC 131 and Santosh Kumar Singh (2010) 9 SCC 747);
(6) the crime was not premeditated (Kumudi Lal v. State of U.P. (1999) 4 SCC 108, Akhtar v. State of U.P. (1999) 6 SCC 60, Raju v. State of Haryana (2001) 9 SCC 50 and Amrit Singh v. State of Punjab (2006) 12 SCC 79);
(7) the case was one of circumstantial evidence (Mansingh (2005) 3 SCC 131 and Bishnu Prasad Sinha (2007) 11 SCC 467). In one case, commutation was ordered since there was apparently no “exceptional” feature warranting a death penalty (Kumudi Lal (1999) 4 SCC 108) and in another case because the trial court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput (2011) 12 SCC 56).”

136. In the same judgment in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, Justice Madan B. Lokur (concurring) while elaborately analysing the question of imposing death penalty in specific facts and circumstances of that particular case, concerning rape and murder of a minor, discussed the sentencing policy of India, with special reference to execution of the sentences imposed by the Judiciary. The Court noted the prima facie difference in the standard of yardsticks adopted by two organs of the government viz. Judiciary and the Executive in treating the life of convicts convicted of an offence punishable with death and recommended consideration of Law Commission of India over this issue. The relevant excerpt from the said judgment, highlighting the inconsistency in the approach of Judiciary and Executive in the matter of sentencing, is as under:

“148. It seems to me that though the Courts have been applying the rarest of rare principle, the Executive has taken into consideration some factors not known to the Courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the Courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.” In Shankar Kisanrao’s case, it was observed by Justice Madan B. Lokur that Dhananjay Chatterjee’s case was perhaps the only case where death sentence imposed on the accused, who was convicted for rape was executed.

137. Another significant development in the sentencing policy of India is the ‘victim-centric’ approach, clearly recognised in Machhi Singh (Supra) and re-emphasized in a plethora of cases. It has been consistently held that the courts have a duty towards society and that the punishment should be corresponding to the crime and should act as a soothing balm to the suffering of the victim and their family. [Ref: Gurvail Singh @ Gala and Anr. v. State of Punjab (2013) 2 SCC 713; Mohfil Khan and Anr. v. State of Jharkhand (2015) 1 SCC 67; Purushottam Dashrath Borate and Anr. v. State of Maharashtra (2015) 6 SCC 652]. The Courts while considering the issue of sentencing are bound to acknowledge the rights of the victims and their family, apart from the rights of the society and the accused. The agony suffered by the family of the victims cannot be ignored in any case. In Mohfil Khan (supra), this Court specifically observed that ‘it would be the paramount duty of the Court to provide justice to the incidental victims of the crime – the family members of the deceased persons.

138. The law laid down above, clearly sets forth the sentencing policy evolved over a period of time. I now proceed to analyse the facts and circumstances of the present case on the anvil of above-stated principles. To be very precise, the nature and the manner of the act committed by the accused, and the effect it casted on the society and on the victim’s family, are to be weighed against the mitigating circumstances stated by the accused and the scope of their reform, so as to reach a definite reasoned conclusion as to what would be appropriate punishment in the present case- ‘death sentence’, life sentence commutable to 14 years’ or ‘life imprisonment for the rest of the life’.

139. The question would be whether the present case could be one of the rarest of rare cases warranting death penalty. Before the court proceed to make a choice whether to award death sentence or life imprisonment, the court is to draw up a balance-sheet of aggravating and mitigating circumstances attending to the commission of the offence and then strike a balance between those aggravating and mitigating circumstances. Two questions are to be asked and answered:- (i) Is there something uncommon about the crimes which regard sentence of imprisonment for life inadequate; (ii) Whether there is no alternative punishment suitable except death sentence. Where a crime is committed with extreme brutality and the collective conscience of the society is shocked, courts must award death penalty, irrespective of their personal opinion as regards desirability of death penalty. By not imposing a death sentence in such cases, the courts may do injustice to the society at large.

140. We are here concerned with the award of an appropriate sentence in case of brutal gang-rape and murder of a young lady, involving most gruesome and barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them. The victim and her friend were picked up from the Munirka bus stand with the mala fide intent of ravishing and torturing her. The accused not only abducted the victim, but gang-raped her, committed unnatural offence by compelling her for oral sex, bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victim was thrown half naked in the wintery night, with grievous injuries.

141. If we look at the aggravating circumstances in the present case, following factors would emerge:

> Diabolic nature of the crime and the manner of committing crime, as reflected in committing gang-rape with the victim; forcing her to perform oral sex, injuries on the body of the deceased by way of bite marks; insertion of iron rod in her private parts and causing fatal injuries to her private parts and other internal injuries; pulling out her internal organs which caused sepsis and ultimately led to her death; throwing the victim and the complainant (PW-1) naked in the cold wintery night and trying to run the bus over them.

> The brazenness and coldness with which the acts were committed in the evening hours by picking up the deceased and the victim from a public space, reflects the threat to which the society would be posed to, in case the accused are not appropriately punished. More so, it reflects that there is no scope of reform.

> The horrific acts reflecting the in-human extent to which the accused could go to satisfy their lust, being completely oblivious, not only to the norms of the society, but also to the norms of humanity.

> The acts committed so shook the conscience of the society.

142. As noted earlier, on the aspect of sentencing, seeking reduction of death sentence to life imprisonment, three of the convicts/appellants namely A-3 Akshay, A-4 Vinay and A-5 Pawan placed on record, through their individual affidavits dated 23.03.2017, following mitigating circumstances:-

(a) Family circumstances such as poverty and rural background,
(b) Young age,
(c) Current family situation including age of parents, ill health of family members and their responsibilities towards their parents and other family members,
(d) Absence of criminal antecedents,
(e) Conduct in jail, and
(f) Likelihood of reformation.

In his affidavit, accused Mukesh reiterated his innocence and only pleaded that he is falsely implicated in the case.

143. In Purushottam Dashrath Borate and Anr. v. State of Maharashtra (2015) 6 SCC 652, this Court held that age of the accused or family background of the accused or lack of criminal antecedents cannot be said to be the mitigating circumstance. It cannot also be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.

144. Society’s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. As held in Om Prakash v. State of Haryana (1999) 3 SCC 19, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime.

145. Bearing in mind the above principles governing the sentencing policy, I have considered all the aggravating and mitigating circumstances in the present case. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime. Crimes like the one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime good conduct of the accused, the statement of the accused as to their background and family circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of “rarest of rare cases”. The circumstances stated by the accused in their affidavits are too slender to be treated as mitigating circumstances.

146. In the present case, there is not even a hint of hesitation in my mind with respect to the aggravating circumstances outweighing the mitigating circumstances and I do not find any justification to convert the death sentence imposed by the courts below to ‘life imprisonment for the rest of the life’. The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form. The accused may not be hardened criminals; but the cruel manner in which the gang-rape was committed in the moving bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’. If at all there is a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang-rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the ‘rarest of rare category’, then one may wonder what else would fall in that category. On these reasoning recorded by me, I concur with the majority in affirming the death sentence awarded to the accused persons.

147. The incident of gang-rape on the night of 16.12.2012 in the capital sparked public protest not only in Delhi but nation-wide. We live in a civilized society where law and order is supreme and the citizens enjoy inviolable fundamental human rights. But when the incident of gang-rape like the present one surfaces, it causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilized society and whether both men and women feel the same sense of liberty and freedom which they should have felt in the ordinary course of a civilized society, driven by rule of law. Certainly, whenever such grave violations of human dignity come to fore, an unknown sense of insecurity and helplessness grabs the entire society, women in particular, and the only succour people look for, is the State to take command of the situation and remedy it effectively.

148. The statistics of National Crime Records Bureau which I have indicated in the beginning of my judgment show that despite the progress made by women in education and in various fields and changes brought in ideas of women’s rights, respect for women is on the decline and crimes against women are on the increase. Offences against women are not a women’s issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. There are a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important to ensure that gender justice does not remain only on paper.

149. We have a responsibility to set good values and guidance for posterity. In the words of great scholar, Swami Vivekananda, “the best thermometer to the progress of a nation is its treatment of its women.” Crime against women not only affects women’s self esteem and dignity but also degrades the pace of societal development. I hope that this gruesome incident in the capital and death of this young woman will be an eye-opener for a mass movement “to end violence against women” and “respect for women and her dignity” and sensitizing public at large on gender justice. Every individual, irrespective of his/her gender must be willing to assume the responsibility in fight for gender justice and also awaken public opinion on gender justice. Public at large, in particular men, are to be sensitized on gender justice. The battle for gender justice can be won only with strict implementation of legislative provisions, sensitization of public, taking other pro-active steps at all levels for combating violence against women and ensuring widespread attitudinal changes and comprehensive change in the existing mind set. We hope that this incident will pave the way for the same.

.………………………..J.
[R. BANUMATHI]

New Delhi;
May 05, 2017.

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GITA MITTAL, ACTING CHIEF JUSTICE
1. The legal permissibility of referring a complaint cases under Section 138 of the NI Act for amicable settlement through mediation; procedure to be followed upon settlement and the legal implications of breach of the mediation settlement is the subject matter of this judgment. Shri Bharat Chugh, as the concerned Metropolitan

Magistrate (NI Act) – Central – 01/THC/ Delhi, when seized of Complaint Case Nos.519662/2016 and 519664/2016 (Old Complaint Case Nos.2429/2015 and 2430/2015) under Section 138 of the Negotiable Instruments Act (“NI Act” hereafter) passed an order dated 13th January, 2016, the following questions under Section 395 of the Code of Criminal Procedure (“Cr.P.C” hereafter) to this court for consideration :
“1. What is the legality of referral of a criminal compoundable case (such as one u/s 138 of the NI Act) to mediation?
2. Can the Mediation and Conciliation Rules, 2004 formulated in exercise of powers under the CPC, be imported and applied in criminal cases? If not, how to fill the legal vacuum? Is there a need for separate rules framed in this regard (possibly u/s 477 of the CrPC)?
3. In cases where the dispute has already been referred to mediation – What is the procedure to be followed thereafter? Is the matter to be disposed of taking the very mediated settlement agreement to be evidence of compounding of the case and dispose of the case, or the same is to be kept pending, awaiting compliance thereof (for example, when the payments are spread over a long period of time, as is usually the case in such settlement agreements)?
4. If the settlement in Mediation is not complied with – is the court required to proceed with the case for a trial on merits, or hold such a settlement agreement to be executable as a decree?
5. If the Mediated Settlement Agreement, by itself, is taken to be tantamount to a decree, then, how the same is to be executed? Is the complainant to be relegated to file an application for execution in a civil court? If yes, what
should be the appropriate orders with respect to the criminal complaint case at hand. What would be the effect of such a mediated settlement vis-à-vis the complaint case?”
(Emphasis by us)
The reference has been registered as Crl.Ref.No.1/2016.
2. Given the importance of the questions raised in criminal law, by an order dated 15th March, 2016, we had appointed Mr. Siddharth Aggarwal, Advocate as amicus curiae in the matter. On the 20th of July 2016, having regard to the nature of the above issues which had been crystallized by the ld. Metropolitan Magistrate and in view of their extensive experience on all aspects of mediation, we had also appointed Mr. J.P. Sengh, Sr. Advocate as well as Ms. Veena Ralli, Advocate (currently Member and Organizing Secretary respectively of the Organizing Committee of Samadhan – Delhi High Court Mediation and Conciliation Centre), both senior and experienced mediators, as amici curiae in the matter.
3. Court notice was also issued to the counsel for the parties in both CC Nos.2429/2015 & 2430/2015, Dayawati v. Yogesh Kumar Gosain pending in the court of the Metropolitan Magistrate for appearance before us and they stand represented through counsel before us.
4. Written submissions stand filed by learned amici curiae to assist this court. We have had the benefit of hearing Mr. J.P. Sengh, Senior Advocate, Ms. Veena Ralli, Advocate and Mr. Siddharth Aggarwal,
Advocate as amici curiae as well as Mr. Gautam Pal, ld. counsel for the complainant and Mr. Ajay Digpaul, ld. counsel for the respondent in the complaints under Section 138 of the NI Act.
5. We set down hereunder the headings under which we have considered the matter :
I. Factual matrix (paras 6 to 16)
II. Alternate dispute resolution mechanisms statutorily recognized (paras 17 to 20)
III. Statutory provisions (paras 21 to 31)
IV. Scope of Section 89 of the Code of Civil Procedure, 1908 (paras 32 to 41)
V. Statutory power to refer matters for dispute resolution and effect of a settlement (paras 42 to 49)
VI. Power of criminal courts to refer cases to mediation (paras 50 to 57)
VII. Process to be followed in reference of above disputes in criminal law to mediation (para 58)
VIII. Dispute resolution encouraged in several cases by the Supreme Court in non-compoundable cases as well (paras 59 to 62)
IX. Nature of proceedings under Section 138 of the NI Act (paras 63 to 67)
X. Permissibility of settlement of offence under Section 138 of the NI Act (paras 68 to 73)
XI. Mediation and Conciliation Rules, 2004 – notified the Delhi High Court (paras 74 to 77)
XII. Impact of settlement of disputes in a complaint under Section 138 Negotiable Instruments Act by virtue of Lok Adalat under the Legal Services Authorities Act, 1987 (paras 78 to 80)
XIII. What is the procedure to be followed if in a complaint case under Section 138 of the NI Act, a settlement is reached in mediation? (paras 81 to 107)
XIV. Breach of such settlement accepted by the court – consequences? (paras 108 to 117)
XV. Reference answered (para 118)
XVI. Result (paras 119 to 121)
We now propose to discuss the above issues in seriatim :
I. Factual matrix
6. Before dealing with the questions raised before us, it is necessary to briefly note some essential facts of the case. The appellant Smt. Dayawati (“complainant” hereafter) filed a complaint under Section 138 of the NI Act, complaining that the respondent Shri Yogesh Kumar Gosain herein (“respondent” hereafter) had a liability of `55,99,600/- towards her as on 7th April, 2013 as recorded in a regular ledger account for supply of fire-fighting goods and equipment to the respondent on different dates and different quantities. In part discharge of this liability, the respondent was stated to have issued two account payee cheques in favour of the complainants of `11,00,000/- (Cheque No.365406/- dated 1st December, 2014) and `16,00,000/-
(Cheque No.563707 dated 28th November, 2014). Unfortunately, these two cheques were dishonoured by the respondent’s bank on presentation on account of “insufficiency of funds”.
7. As a result, the complainant was compelled to serve a legal notice of demand on the respondent which, when went unheeded, led to the filing of two complaint cases under Section 138 of the NI Act before the Patiala House Courts, New Delhi being CC Nos.89/1/15 and 266/1/15. In these proceedings, both parties had expressed the intention to amicably settle their disputes. Consequently, by a common order dated 1st April, 2015 recorded in both the complaint cases, the matter was referred for mediation to the Delhi High Court Mediation and Conciliation Centre.
8. We extract hereunder the operative part of the order dated 1st April, 2015 which reads as follows :
“… Ld. Counsel for accused submits that accused is willing to explore the possibilities of compromise. Ld. Counsel for complainant is also interested (sic) in compromise talk. Let the matter be referred to Mediation Cell, High Court Delhi, Delhi. Parties are directed to appear before the Mediation Cell, Hon’ble High Court, Delhi on 15.04.2015 at 2:30 p.m.”
9. It appears that after negotiations at the Delhi High Court Mediation and Conciliation Centre, the parties settled their disputes under a common settlement agreement dated 14th May, 2015 under which the accused agreed to pay a total sum of `55,54,600/- to the complainant as full and final settlement amount in installments with
Page 7 of 89
regard to which a mutually agreed payment schedule was drawn up. It was undertaken that the complainant would withdraw the complaint cases after receipt of the entire amount. In the agreement drawn up, the parties agreed to comply with the terms of the settlement which was signed by both the parties along with their respective counsels. We extract the essential terms of the settlement hereunder :
“xxx xxx xxx
6. The following settlement has been arrived at between the parties hereto :
a) That the second party shall pay a total sum of Rs.55,54,600/- to the first party towards full and final settlement of all the claims of the first party against the second party.
b) That on 25.06.2015, the second party shall pay Rs.11,00,000/- to the first party by way of NEFT/RTGS/demand draft.
c) That on 25.10.2015, the second party shall pay Rs.16,00,000/- to the first party by way of NEFT/RTGS/demand draft.
d) The balance sum of Rs.28,54,600/- shall be paid by the second party to the first party within 18 months from 25.11.2015 by way of NEFT/RTGS/demand draft in equal monthly installments i.e. Rs.1,58,600/-
e) That the second party shall also provide “C-Form (Sales Tax, Mumbai)” to the first party against Bill Nos.R 605 dated 27.02.2013 and R 607 dated 06.03.2013.
f) That the first party undertakes to withdraw the present CC Nos. 89/1/15 and 266/1/15 upon receipt of entire settlement amount from the second party.”
(Emphasis by us)
10. This settlement agreement was placed before the court on 1st June, 2015 when the following order was recorded :
“File received back from the Mediation Centre with report of settlement. Settlement agreement dated 14.05.2015 gone through. At joint request, put up for compliance of abovesaid settlement agreement and for making of first installment on 30.06.2015”
(Emphasis by us)
11. Unfortunately, the accused/respondent herein failed to comply with the terms of the settlement. Though vested with the obligation thereunder to pay a sum of `11,00,000/- as the first installment on 25th June, 2015, he paid only a sum of `5,00,000/- to the complainant through RTGS without giving any justification. On the 30th June of 2015, the Metropolitan Magistrate consequently recorded thus:
“… Ld. Counsel for complainant submits that the accused has not made the payment of first installment in terms of mediation settlement dated 14.05.2015.
Ld. Counsel for complainant further submits that accused was to pay first installment of Rs. 11,00,000/- on or before the 25.06.2015 however he has paid only Rs. 5,00,000/- through RTGS. No reasonable explanation for the non-payment of full amount of first installment is given by the accused. Further, no assurance is given by the accused for making of the due installments within the stipulated time.
Considering the facts of the case and submissions on behalf of both the parties, it is apparent that the accused is not willing to comply with the terms and conditions of the mediation settlement. Hence, mediation settlement failed.
Let the matter be proceeded on merit, put up on 14.08.2015”
(Emphasis by us)
12. Thereafter, two more opportunities were given by the Metropolitan Magistrate on 14th August, 2015 and 21st August, 2015 to the accused to comply with the settlement. Finally, in view of the continued non-compliance, the matter was listed for framing of notice on 28th September, 2015 and trial on merits.
13. In the meantime, the Negotiable Instruments (Amendment) Ordinance, 2015, received the assent of the President of India on the 26th of December, 2016. On account of promulgation of the ordinance, Section 142 of the Negotiable Instuments Act, 1881 stood amended with regard to jurisdiction of offences under Section 138 of the enactment and therefore these cases stood transferred from Patiala House Courts to Tis Hazari Courts at which stage the matter came to be placed before the ld. referral judge.
14. At this stage, an application dated 16th November, 2015 was filed by the complainant seeking enforcement of the settlement agreement dated 14th May, 2015 placing reliance on the judicial precedents reported at 2013 SCC OnLine Del 124 Hardeep Bajaj v. ICICI; 2015 SCC OnLine Del 7309 Manoj Chandak v. M/s Tour Lovers Tourism (India) Pvt Ltd and 2015 SCC OnLine Del 9334 M/s Arun International v. State of Delhi. The complainant urged that the settlement agreement was arrived at after long negotiations and meetings; that it was never repudiated by the accused nor challenged
on grounds of it being vitiated for lack of free consent or any other ground and lastly, that the accused having paid part of the first agreed installment, has also acted upon the mediation settlement and cannot be allowed to wriggle free of his obligation under the same.
15. The respondent, on the other hand, argued that the settlement agreement was not binding contending primarily, for the first time, that the settlement amount was exorbitant and onerous pointing out that the complaints were filed with regard to two cheques which were for a cumulative amount of `27,00,000/- while the settlement amount was of `55,54,600/- and this by itself was evidence that the agreement was unfair, arbitrary and not binding on the accused. It was further urged that on receipt of the case from the mediation cell, the statement of the parties ought to have been recorded before the court whereby the parties would have adopted the mediation settlement agreement so that the same bore the imprimatur of the court. As per the respondent, absence of such statement in the case denuded the settlement agreement of its binding nature and efficacy.
16. The ld. Metropolitan Magistrate was of the view that these questions had arisen, not just in this case, but a plethora of other cases as well. Consequently, the order dated 13th of January 2016 was passed making the aforestated reference under Section 395 of the Cr.P.C. to this court. At the same time, so far as the complaints under Section 138 of the NI Act are concerned, the ld. MM additionally directed thus :

“In view of the question of law that has arose in the present case, the decision on which is necessary for further proceedings and a proper adjudication of the present case – a reference has been made u/s 395 of the CrPC for consideration and guidance of the Hon’ble High Court of Delhi.
The office attached to this court is directed to send this Reference Order to the Ld. Registrar General, Hon’ble High Court of Delhi in appropriate manner and through proper channel.
List the matter now on 06.06.2016 awaiting the outcome of the reference and clarity on the legal issue.”
II. Alternate dispute resolution mechanisms statutorily recognized
17. Let us, first and foremost, briefly examine the genesis, modes and methods of dispute resolution available to disputants. It is common knowledge that other than the traditional adversarial litigation before courts, alternate dispute resolution mechanisms found as being increasingly suited for various classes of cases, stand given statutory recognition and have received judicial recommendation as well.
18. The legislature has increasingly awarded statutory recognition and provided for alternate dispute resolution mechanisms to parties in several enactments, some completely dedicated to this process. These include lok adalats (Section 19 of the Legal Services Authorities Act, 1987); arbitration and conciliation (Parts I & III of Arbitration and Conciliation Act, 1996 as well as Section 89(a) & (b) of the Code of Civil Procedure, 1908 incorporated on 1st of July 2002); judicial
settlement and mediation (Section 89(c) & (d) of the Code of Civil Procedure).
19. Some other statutes that recognize and prescribe alternate dispute resolution attempts mandatorily include the Hindu Marriage Act (Section 23), the Family Courts Act, 1984 (Section 9) and; the Industrial Disputes Act, 1947 (Section 10).
20. We find that so far as criminal proceedings are concerned, statutory recognition stands given to settlements between complainants/victims and accused persons under Section 320 of the Cr.P.C which also provides the limits of permissibility and the procedure to be followed by the court in compounding of offences.
III. Statutory provisions
21. Before examining the reference, we may for expediency extract the relevant provisions of the Negotiable Instruments Act, 1881; the Legal Services Authority Act, 1987; the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 in one place.
22. The relevant statutory provisions of Negotiable Instruments Act, 1881 read as follows: “138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]”
xxx xxx xxx
143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.
(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.”
xxx xxx xxx
147. Offences to be compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.”
(Emphasis by us)
23. The Legal Services Authorities Act, 1987 provides for constitution of legal services authorities to provide free and competent
legal services to the weaker sections of the society as well as to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and also postulates alternate dispute resolution mechanism as lok adalats. The relevant statutory provisions of Legal Services Authorities Act, 1987 regarding dispute resolution are reproduced hereafter : “19. Organisation of Lok Adalats.— (1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. xxx xxx xxx (5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of— (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. 20. Cognizance of cases by Lok Adalats.— (1) Where in any case referred to in clause (i) of sub-section (5) of section 19 (i) (a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court,
for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Where any case is referred to a Lok Adalat under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. (5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived
at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advise the parties to seek remedy in a court. (7) Where the record of the case is returned under sub-section (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1). 21. Award of Lok Adalat.- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-free paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).]” (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. (Emphasis by us)
24. Let us also examine Section 89 of the Code of Civil Procedure, 1908 (“CPC” hereafter), relevant statutory provisions whereof also prescribe alternate dispute resolution mechanisms, which are as under:

“89. Settlement of disputes outside the Court (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute had been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute
were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.” (Emphasis supplied)

25. So far as the civil suits are concerned, the Legislature has amended the CPC to incorporate Rules 1A, 1B and 1C in Order X which are reproduced hereunder: “1-A. Direction of the court to opt for any one mode of alternative dispute resolution.— After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of Section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties. 1-B. Appearance before the conciliatory forum or authority.— Where a suit is referred under Rule 1-A, the parties shall appear before such forum or authority for conciliation of the suit. 1-C. Appearance before the Court consequent to the failure of efforts of conciliation.— Where a suit is referred under Rule 1-A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the court and direct the parties to appear before the Court on the date fixed by it.” (Emphasis by us)

26. We may also usefully extract the provisions of Rule 3 of Order XXIII of the CPC which provide the manner in which a civil court will proceed upon adjustment of a suit, wholly or in part, by an agreement or compromise. This provision reads thus :
“3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: –
Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.”
(Emphasis by us)
27. At this point, it is also necessary to examine from the Cr.P.C., the provisions of Section 29, which provides the sentence which a magistrate may pass; Section 320 which stipulates cases which may be compounded by the parties as well as those which may be compounded with the leave of the court or otherwise; Section 357 which provides for award of compensation while awarding a sentence of fine or of which fine forms a part; Section 421 which provides for the manner in which a fine may be recovered and Section 431 which
enables a court to recover any money by virtue of an order made under the Cr.P.C.

28. Sections 29 and 320 of the Cr.P.C., are relevant for the present consideration, read as follows : “29. Sentences which Magistrates may pass (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.” 320. Compounding of offences.—(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table:— xxx xxx xxx (2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for
such offence is pending, be compounded by the persons mentioned in the third column of that Table:— xxx xxx xxx” (Emphasis supplied) 29. The provisions of Sections 357, 421, 431 of the Cr.P.C. which enable the court to direct payments of monetary amounts and enable recovery thereof, by the trial courts also may be extracted and read as follows : “357. Order to pay compensation (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser
of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.” “421. Warrant for levy of fine (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be
imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.” “431. Money ordered to be paid recoverable as fine Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub- section (1) of section 421, after the words and figures” under section 357″, the words and figures” or an order for payment of costs under section 359″ had been inserted.” (Emphasis supplied)

30. Given the questions referred to us, we may also extract hereunder the extent of the rule making power of the High Court under Section 477 of the Cr.P.C. which reads thus :
“477. Power of High Court to make rules –
(1) Every High Court may, with the previous approval of the State Government, make rules—
(a) as to the persons who may be permitted to act as petition-writers in the Criminal Courts subordinate to it;
(b) regulating the issue of licences to such persons, the conduct of business by them, and the scale of fees to be charged by them.
(c) providing a penalty for a contravention of any of the rules so made and determining the authority by which such contravention may be investigated and the penalties imposed;
(d) any other matter which is required to be, may be, prescribed.
(2) All rules made under this section shall be published in the Official Gazette.” (Emphasis supplied)
31. The Delhi High Court has on 11th August, 2005 notified the “Mediation And Conciliation Rules 2004” to guide mediation in Delhi. We extract hereunder the relevant extract, as amended, thereof:
“(TO BE PUBLISHED IN PART IV OF DELHI GAZETTE EXTRAORDINARY)
HIGH COURT OF DELHI : NEW DELHI
NOTIFICATION
No.171/Rules/DHC Dated: 11th August, 2005
In exercise of the rule making power under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and clause (d) of sub-section (2) of Section 89 of the said Code and all other powers enabling it in this behalf, the High Court of Delhi hereby makes the following rules :-
MEDIATION AND CONCILIATION RULES, 2004
Rule 1 : Title
“The Rules will apply to all mediation and conciliation connected with any suit or other proceeding pending in the High Court of Delhi or in any court subordinate to the High Court of Delhi. The mediation in respect of any suit or proceeding pending before the High Court of Delhi or any other Court or Tribunal may be referred to the Delhi High Court Mediation and Conciliation Centre or any other Mediation Centre set up by Legal Services Authorities. Upon such a reference being made to Delhi High Court Mediation and Conciliation Centre, the same will be governed by the Charter of the Delhi High Court Mediation and Conciliation Centre and to those mediation proceedings, the present Rules will apply mutatis mutandi.” These Rules shall be called the Mediation and Conciliation Rules, 2004.
Rule 2: Appointment of Mediator/Conciliator
(a) Parties to a suit or other proceeding may agree on the name of the sole mediator/conciliator for mediating between them. …
xxx xxx xxx
Rule 3 : Panel of mediators/conciliators
xxx xxx xxx
(b)(i) The District & Sessions Judge shall, for the purpose of appointing the mediator/conciliator to mediate between the parties in the suits or proceedings prepare a panel of the mediators/conciliators within a period of thirty days of the commencement of these rules and shall submit the same to the High Court for approval. On approval of the said panel by the High Court, with or without modification, which shall be done within thirty days of the submission of the panel by the District & Sessions Judge, the same shall be put on the Notice Board.
xxx xxx xxx

Rule 24 : Settlement agreement
a) Where an agreement is reached between the parties in regard to all the issues in the suit or proceeding or some of the issues, the same shall be reduced to writing and signed by the parties or their constituted attorney. If any counsel has represented the parties, the conciliator/mediator may obtain his signature also on the settlement agreement.
(b) The agreement of the parties so signed shall be submitted to the mediator/conciliator who shall, with a covering letter signed by him, forward the same to the Court in which the suit or proceeding is pending.
(c) Where no agreement is arrived at between the parties, before the time limit stated in Rule 18 of where, the mediator/conciliator is of the view that no settlement is possible, he shall report the same to the Court in writing.
Rule 25 : Court to fix a date for Recording settlement and passing decree
(a) On receipt of any settlement, the Court shall fix a date of hearing normally within seven days but in any case not beyond a period of fourteen days. On such date of hearing, if the Court is satisfied that the parties have settled their dispute(s), it shall pass a decree in accordance with terms thereof.
(b) If the settlement dispose of only certain issues arising in the suit or proceeding, on the basis of which any decree is passed as stated in Clause (a), the Court shall proceed further to decide remaining issues.”
(Emphasis supplied)
IV. Scope of Section 89 of the Code of Civil Procedure, 1908
32. Mediation as a mode of alternate dispute settlement thus finds statutory recognition in Section 89 of the Code of Civil Procedure.
33. Valuable light is thrown on the interpretation of Section 89 in the judicial pronouncements rendered by the Supreme Court of India

in (2003) 1 SCC 49, Salem Advocate Bar Assn. v. Union of India (Salem Bar I); (2005) 6 SCC 344, Salem Advocate Bar Assn. v. Union Of India (Salem Bar II) and (2010) 8 SCC 24, Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Constructions Co. Pvt. Ltd.
34. Extensive amendments were effected to the Code of Civil Procedure by the Legislature by Act 46 of 1999. Amongst the provisions inserted, was Section 89 which provided for settlement of disputes outside the court through use of alternate dispute redressal mechanisms. Several writ petitions came to be filed before the Supreme Court of India challenging the amendments effected to the Code of Civil Procedure by the Amendment Act 46 of 1999 and Amendment Act 22 of 2002. Amongst these was W.P.(C)No.496/2000 titled Salem Advocate Bar Assn. v. Union of India. This writ petition came to be decided, along with connected writ petitions, by way of the judgment dated 25th October, 2002 reported at (2003) 1 SCC 49, Salem Advocate Bar Assn. v. Union of India (commonly known as Salem Bar I). So far as the amendments and insertion of Section 89 of the Code of Civil Procedure was concerned, the Supreme Court observed that Section 89 was a new provision and even through arbitration or conciliation had been in place as modes of settling the disputes, this had not really reduced the burden of the courts. The court was of the view that modalities had to be formulated for the manner in which Section 89 as well as other provisions which had been introduced by way of amendments, may have to be operated. For
this purpose, a Committee was constituted to ensure that the amendments made became effective and resulted in quicker dispensation of justice.

35. This was followed by a later pronouncement in the same case reported at (2005) 6 SCC 344, Salem Advocate Bar Assn. v. Union Of India (commonly referred to as Salem Bar II), whereby the Supreme Court further clarified the position holding as follows : “57. A doubt has been expressed in relation to clause (d) of Section 89(2) of the Code on the question as to finalisation of the terms of the compromise. The question is whether the terms of compromise are to be finalised by or before the mediator or by or before the court. It is evident that all the four alternatives, namely, arbitration, conciliation, judicial settlement including settlement through the Lok Adalat and mediation are meant to be the action of persons or institutions outside the court and not before the court. Order 10 Rule 1-C speaks of the “Conciliation Forum” referring back the dispute to the court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of Section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing to the parties, “effect” the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be a settlement, and on that ground he cannot be treated to be disqualified to try the suit afterwards, if no settlement is arrived at between the parties. xxx xxx xxx 62. When the parties come to a settlement upon a reference made by the court for mediation, as suggested by the Committee
that there has to be some public record of the manner in which the suit is disposed of and, therefore, the court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to record a settlement and pass a decree and feel that the settlement can be implemented even without a decree. In such eventuality, nothing prevents them in informing the court that the suit may be dismissed as a dispute has been settled between the parties outside the court.”
(Emphasis by us)

36. In (2010) 8 SCC 24, Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Constructions Co. Pvt. Ltd., the Supreme Court was called upon to consider the scope of Section 89 of the CPC. Certain errors by the draftsman were noted in Section 89 of the CPC. In this judgment, the court further interpreted the statute to implement the spirit, object and intendment of the provisions. We may usefully refer to para 25 of the judgment in this regard, which reads as follows:
“25. In view of the foregoing, it has to be concluded that proper interpretation of Section 89 of the Code requires two changes from a plain and literal reading of the section. Firstly, it is not necessary for the court, before referring the parties to an ADR process to formulate or reformulate the terms of a possible settlement. It is sufficient if the court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of “judicial settlement” and “mediation” in clauses (c) and (d) of Section 89(2) shall have to be interchanged to correct the draftsman’s error.
Clauses (c) and (d) of Section 89(2) of the Code will read as under when the two terms are interchanged:

(c) for “mediation”, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for “judicial settlement”, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.
The above changes made by interpretative process shall remain in force till the legislature corrects the mistakes, so that Section 89 is not rendered meaningless and infructuous.”
(Emphasis supplied)
37. With regard to anomalies in Section 89 of the CPC, the Supreme Court has thus held that where the court has referred the matter to mediation, the mediator shall be deemed to be a Lok Adalat under the Legal Services Act. For cases covered under Section 89 of the CPC, it is thus abundantly clear that the mediated settlement and settlement before “another Judge”, would have the same efficacy and binding status as an award of the Lok Adalat which is deemed to be a decree.
38. The Supreme Court has also stipulated that mediated settlement would have to be placed before the courts concerned for recording of the settlement and disposal of the case. We extract hereunder para 39 of Afcons wherein this is discussed :

“39. Where the reference is to a neutral third party (“mediation” as defined above) on a court reference, though it will be deemed to be reference to Lok Adalat, as the court retains its control and jurisdiction over the matter, the mediation settlement will have to be placed before the court for recording the settlement and disposal. Where the matter is referred to another Judge and settlement is arrived at before him, such settlement agreement will also have to be placed before the court which referred the matter and that court will make a decree in terms of it.” (Emphasis supplied)
As a result of the pronouncement in Afcons, Section 89 of the C.P.C. thus stands modified to the extent noted above.
39. So far as the procedure to be adopted by a court upon reference of the disputes in a civil case to an ADR mechanism is concerned, the same stands further considered in Afcons. The relevant portion of the judgment is reproduced as under :
“43 We may summarise the procedure to be adopted by a court under Section 89 of the Code as under:
(a) When the pleadings are complete, before framing issues, the court shall fix a preliminary hearing for appearance of parties. The court should acquaint itself with the facts of the case and the nature of the dispute between the parties.
(b) The court should first consider whether the case falls under any of the category of the cases which are required to be tried by courts and not fit to be referred to any ADR processes. If it finds that the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to ADR
processes. It will then proceed with the framing of issues and trial.
(c) In other cases (that is, in cases which can be referred to ADR processes) the court should explain the choice of five ADR processes to the parties to enable them to exercise their option.
(d) The court should first ascertain whether the parties are willing for arbitration. The court should inform the parties that arbitration is an adjudicatory process by a chosen private forum and reference to arbitration will permanently take the suit outside the ambit of the court. The parties should also be informed that the cost of arbitration will have to be borne by them. Only if both parties agree for arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration.
(e) If the parties are not agreeable for arbitration, the court should ascertain whether the parties are agreeable for reference to conciliation which will be governed by the provisions of the AC Act. If all the parties agree for reference to conciliation and agree upon the conciliator(s), the court can refer the matter to conciliation in accordance with Section 64 of the AC Act.
(f) If the parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the cases for want of consensus, the court should, keeping in view the preferences/options of parties, refer the matter to any one of the other three ADR processes: (a) Lok Adalat; (b) mediation by a neutral third-party facilitator or mediator; and (c) a judicial settlement, where a Judge assists the parties to arrive at a settlement.
(g) If the case is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and there is no personal animosity between the parties (as in the case of motor accident claims), the court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Where the
facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.
(h) If the reference to the ADR process fails, on receipt of the report of the ADR forum, the court shall proceed with hearing of the suit. If there is a settlement, the court shall examine the settlement and make a decree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind.
(i) If the settlement includes disputes which are not the subject-matter of the suit, the court may direct that the same will be governed by Section 74 of the AC Act (if it is a conciliation settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat). If the settlement is through mediation and it relates not only to disputes which are the subject-matter of the suit, but also other disputes involving persons other than the parties to the suit, the court may adopt the principle underlying Order 23 Rule 3 of the Code. This will be necessary as many settlement agreements deal with not only the disputes which are the subject-matter of the suit or proceeding in which the reference is made, but also other disputes which are not the subject-matter of the suit. (j) If any term of the settlement is ex facie illegal or unenforceable, the court should draw the attention of parties thereto to avoid further litigations and disputes about executability.” (Emphasis by us)
40. In para 44, the Supreme Court has also laid down certain consequential aspects which have to be borne in mind while giving effect to Section 89 of the Code. Para 44 of the judgment is reproduced as under :

“44. The court should also bear in mind the following consequential aspects, while giving effect to Section 89 of the Code:
(i) If the reference is to arbitration or conciliation, the court has to record that the reference is by mutual consent. Nothing further need be stated in the order-sheet.
(ii) If the reference is to any other ADR process, the court should briefly record that having regard to the nature of dispute, the case deserves to be referred to Lok Adalat, or mediation or judicial settlement, as the case may be. There is no need for an elaborate order for making the reference.
(iii) The requirement in Section 89(1) that the court should formulate or reformulate the terms of settlement would only mean that the court has to briefly refer to the nature of dispute and decide upon the appropriate ADR process.
(iv) If the Judge in charge of the case assists the parties and if settlement negotiations fail, he should not deal with the adjudication of the matter, to avoid apprehensions of bias and prejudice. It is therefore advisable to refer cases proposed for judicial settlement to another Judge.
(v) If the court refers the matter to an ADR process (other than arbitration), it should keep track of the matter by fixing a hearing date for the ADR report. The period allotted for the ADR process can normally vary from a week to two months (which may be extended in exceptional cases, depending upon the availability of the alternative forum, the nature of case, etc.). Under no circumstances the court should allow the ADR process to become a tool in the hands of an unscrupulous litigant intent upon dragging on the proceedings.
(vi) Normally the court should not send the original record of the case when referring the matter to an ADR forum. It should make available only copies of relevant papers to the ADR forum. (For this purpose, when pleadings are filed the court may insist upon filing of an extra copy). However if the case is referred to a court

annexed mediation centre which is under the exclusive control and supervision of a judicial officer, the original file may be made available wherever necessary.”
(Emphasis by us)
41. In para 45, the court had clarified that these were guidelines subject to such changes as the concerned court may deem fit with reference to the special circumstances of the case.
There is thus complete clarity on the manner in which a court must proceed when making a reference to mediation.
V. Statutory power to refer matters for dispute resolution and effect of a settlement
42. We have extracted above Section 19 of the Legal Services Act, 1987 providing for the organization of Lok Adalats. The Lok Adalats have the jurisdiction under sub-section 5 of Section 19 to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of :
(i) any case pending before, or
(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organized.
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under the law.
Thus so far as criminal cases are concerned, a Lok Adalat has jurisdiction over only such criminal matters that relate to offences
compoundable by law i.e. under Section 320 of the Cr.P.C. or under any special enactment.
It is also to be noted that under this enactment, it is also specifically provided that “court” means a “civil, criminal or revenue court”.
43. So far as cognizance of cases by Lok Adalats are concerned, the same is taken in accordance with Section 20 of the enactment. This may be by agreement between the parties or upon one party making an application. It can also be by way of a reference by the court.
44. By virtue of Section 21 of the Legal Services Act, an award made by the Lok Adalats shall be final and binding and no appeal shall lie in any court against it. The award is deemed to be “decree of civil court” or, as the case may be, “an order of any other court”.
The statute therefore, makes no distinction between an award in a civil or criminal case.
45. So far as the civil suits which are tried in accordance with the provisions of Code of Civil Procedure are concerned, the mandate of Section 89 of the C.P.C. enables the court to refer the parties for settlement of disputes outside the court including for judicial settlement to Lok Adalats and mediation.
46. Order X of the C.P.C. provides the modalities for implementing the mandate of Section 89 CPC.

47. Additionally the provisions of the Arbitration and Conciliation Act, 1996 enable reference of matters where there is an arbitration agreement, for dispute resolution by arbitration and conciliation.
48. The Code of Criminal Procedure, 1973 and the Negotiable Instruments Act, 1881 unfortunately contain no provisions for reference of the matters thereunder to alternate dispute resolution mechanisms.
49. As the Code of Civil Procedure would have no application to criminal proceedings to which the Code of Criminal Procedure applies, Section 89 of the C.P.C. cannot and would not, in terms, apply to the proceedings under Section 138 of the NI Act.
VI. Power of criminal courts to refer cases to mediation
50. We have found that, though the Code of Civil Procedure contains a specific provision in Section 89 of the C.P.C. enabling reference of matters to alternate dispute redressal, however, so far as criminal cases are concerned, it is amply clear that the Code of Criminal Procedure does not contain any express statutory provision enabling the criminal court to refer the parties to a forum for alternate dispute resolution including mediation. The same is the position regarding cases under the NI Act. Therefore, the question which first begs an answer is whether the criminal court can in any manner refer parties before it to dispute resolution by mediation.
51. In para 18 of Afcons, the Supreme Court has given illustrations of certain categories of cases that were normally not considered

suitable for alternate dispute resolution processes. Prosecution for criminal offences has been mentioned as not suitable. The judgment also notes that the categorization enumerated is merely illustrative and not inflexible. As the legal validity of mediation in criminal compoundable cases was not specifically in question, there is thus no authoritative judicial pronouncement prohibiting the same.
52. Out of the alternate dispute redressal mechanisms adopted by this country’s legal system, the mediation movement as a reliable mechanism, has gained both acceptability and popularity. In an article titled “Mediation : Constituents, Process and Merit” (http://gujarathighcourt.nic.in/mediation/sbs1.htm) authored by S.B. Sinha, J. (Retd. Judge of the Supreme Court of India), it has been noted that unlike litigation and arbitration, which consists of formal evidentiary hearings and a final adjudication, mediation was a semi-formal negotiation aimed at allowing parties to settle disputes, not only amicably but also economically and expeditiously by a process of self and participatory determination. It is noted that mediation as a method of dispute resolution was not a unique or new concept and that it had in fact evolved through long standing traditions, was being used by tribes and villages across our country long before it came to be statutorily recognized in the recent past. The roots of mediation have been traced back to texts such as “Kautilya’s Arthashastra” as well as the Panchayati Raj system. The references to Lord Krishna’s mediation between Kauravas and Pandavas during the Mahabharata are legendary.

53. Mediation undoubtedly provides an efficient, effective, speedy, convenient and inexpensive process to resolve disputes with dignity, mutuality, respect and civility where parties participate in arriving at a negotiated settlement rather than being confronted with a third party adjudication of their disputes. The very fact that it enables warring parties to sit across the table and negotiate, even if unsuccessful in dispute resolution, undergoing the process creates an atmosphere of harmony and peace in which parties learn to ‘agree to disagree’.
54. The examination of the statutory regime and the practice governing mediation shows that the genesis of the mediation may rest on a court referral whereby the court refers the parties in a pending case, with their consent, to mediation. However, the availability of mediation as a platform to negotiate a settlement does not rest on a court referral. The parties are enabled to approach the mediation centre or the mediator even without the court order in what is referred to as ‘pre-litigation mediation’ which is really an effort to resolve the dispute before filing a case to explore the possibility of dispute resolution without court intervention. Inasmuch as we are not concerned with the consequences of a settlement in a pre-litigation mediation or the manner of its enforceability, we do not propose to dwell on it in this judgment.
55. Mr. J.P. Sengh, Senior Advocate would emphasize before us that it is the parties who are referred to the mediation, and, not the lis before the court. It is contended that the power to refer parties to mediation is irrespective of the nature of the case before the court, and
that it could be civil or criminal. We find that inasmuch as it is the parties who are referred to mediation, this would be the correct legal position.
56. We have extracted above the provisions of Section 320 of the Cr.P.C. Section 320 of the Cr.P.C. enumerates and draws a distinction between offences as compoundable, either between the parties or with the leave of the court. This provision clearly permits and recognizes the settlement of specified criminal offences. Settlement of the issue(s) is inherent in this provision envisaging compounding. The settlement can obviously be only by a voluntary process inter se the parties. To facilitate this process, there can be no possible exclusion of external third party assistance to the parties, say that of neutral mediators or conciliators.
57. Therefore, even though an express statutory provision enabling the criminal court to refer the complainant and accused persons to alternate dispute redressal mechanisms has not been specifically provided by the Legislature, however, the Cr.P.C. does permit and recognize settlement without stipulating or restricting the process by which it may be reached. There is thus no bar to utilizing the alternate dispute mechanisms including arbitration, mediation, conciliation (recognized under Section 89 of CPC) for the purposes of settling disputes which are the subject matter of offences covered under Section 320 of the Cr.P.C.
VII. Process to be followed in reference of above disputes in criminal law to mediation
58. So what is the process to be followed in disputes under criminal law? So far as criminal matters are concerned, Section 477 of the Cr.P.C. enables the High Court to make rules regarding any other matter which is required to be prescribed. The Mediation and Conciliation Rules stand notified by the Delhi High Court in exercise of the rule making power under Part X of the Code of Civil Procedure, Section 89(2)(d) of the C.P.C. as well as “all other powers enabling the High Court” in this behalf. The Rules therefore, clearly provide for mediation not only in civil suits, but also to “proceeding pending in the High Court of Delhi or in any court subordinate to the High Court of Delhi”. So far as Delhi is concerned, these rules would apply to mediation in a matter referred by the court concerned with a criminal case as well as proceedings under Section 138 of the NI Act.
VIII. Dispute resolution encouraged in several cases by the Supreme Court in non-compoundable cases as well
59. We note that there have been several instances when the Supreme Court has approved exercise of inherent powers under Section 482 of the Cr.P.C. by the High Court for quashing criminal cases on account of compromise/settlement even though they are not included in the list of compoundable cases under Section 320 of the Cr.P.C. In (2012) 10 SCC 303, Gian Singh v. State of Punjab, it was held that this was in exercise of statutory power of the High Court under Section 482 of the Cr.P.C. The relevant extract of the judgment is reproduced as under :

“61. … But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”
(Emphasis supplied) 60. In a recent pronouncement dated 4th October, 2017, reported at 2017 SCC OnLine SC 1189 Parabatbhai Aahir @ Parbatbhai Bhimsinhabhai Karmur and Ors Vs State of Gujarat and Anr a three-Judge bench of the Supreme Court speaking through D.Y. Chandrachud, J. cited with approval, inter alia, the judgment in Gian Singh reiterating that in exercise of its inherent jurisdiction under
Section 482 of the Cr.P.C, the High Court is empowered to quash FIRs/Criminal Proceedings emanating from non-compoundable offences if the ends of justice and the facts of the case, so warrant. While, so approving the Supreme Court, laid down the exposition of the law in the form of exhaustive guidelines which are extracted thus:
‘(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.’
61. The judicial precedent in (2013) 5 SCC 226, K. Srinivas Rao v. D.A. Deepa is in the context of a complaint filed by the respondent wife under Section 498A of the Indian Penal Code, against the appellant husband and his family members, the offence under Section 498A of the IPC being non-compoundable. Noting that mediation, as a method of alternative dispute redressal had got legal recognition, observations regarding settlements of matrimonial disputes were made in paras 39 and 46 by the Supreme Court to the courts dealing with matrimonial matters which read thus : “39. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted out. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10% to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. …

xxx xxx xxx
44. We, therefore, feel that though offence punishable under Section 498-A IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If, however, they choose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. xxx xxx xxx 46. We, therefore, issue directions, which the courts dealing with the matrimonial matters shall follow. xxx xxx xxx
46.2. The criminal courts dealing with the complaint under Section 498-A IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel
that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the court concerned to work out the modalities taking into consideration the facts of each case.
46.3. All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.”
(Emphasis supplied)
62. Therefore, the Supreme Court has recognized the permissibility of the High Court’s quashing the criminal prosecutions in exercise of their inherent jurisdiction under Section 482 of the Cr.P.C. on a consideration of the subject matter of the cases. The Supreme Court has accepted compromises in non-compoundable offences upon evaluation of the genuineness, fairness, equity and interests of justice in continuing with the criminal proceedings relating to non-compoundable offences, after settlement of the entire dispute especially in offences arising from “commercial, financial, civil, partnership” or such like transactions or relating to matrimonial or family disputes which are private in nature.
IX. Nature of proceedings under Section 138 of the NI Act
63. Before proceeding with the examination of the questions under reference, it is necessary to examine the spirit, intendment and object of the incorporation of Section 138 of the NI Act, the Preamble whereof states “Whereas it is expedient to define and amend the law
relating to promissory notes, bills of exchange and cheques”. It is therefore, evident that Section 138 of the NI Act was introduced to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments (Ref.: (2003) 3 SCC 232, Goaplast P. Ltd. V. Chico Ursula D’Souza & Anr.).
64. In (2011) 4 SCC 593, Kaushalya Devi Massand v. Roopkishore Khore, the Supreme Court drew the following distinction between the traditional criminal offences and the offence under Section 138 of the NI Act observing thus : “11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.”
(Emphasis supplied)
65. We also find useful the observations of the Supreme Court in (2012) 1 SCC 260, R. Vijayan v. Baby wherein the court was determining an issue in respect of compensation when fine is imposed as the sentence or it forms part of the sentence. In this pronouncement, the Supreme Court noted that cases arising under Section 138 of the NI Act are really “civil cases masquerading as criminal cases”. The statutory object in effect appears to be both punitive as also compensatory and restitutive in regard to cheque dishonouring cases. The judgment notes that Chapter XVII of the
enactment is a unique exercise which bears the dividing line between civil and criminal jurisdictions and that it provides a single forum to enforce a civil and criminal remedy.
66. In this regard, the observations of the Supreme Court in (2010) 5 SCC 663, Damodar S. Prabhu v. Sayed Babalal H also shed valuable light, relevant extract whereof is as below : “17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]: “… Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant’s interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were ‘compromised’ or ‘settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued.” 18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages
of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court.” (Emphasis by us)
67. It is quite apparent that proceedings under Section 138 of the NI Act have a special character. They arise from a civil dispute relating to dishonouring to a cheque but may result in a criminal consequence. Even though the statute is punitive in nature, however, its spirit, intendment and object is to provide compensation and ensure restitution as well which aspects must received priority over punishment. The proceedings under Section 138 of the NI Act are therefore, distinct from other criminal cases. It is well settled that they are really in the nature of a civil wrong which has been given criminal overtones.
X. Permissibility of settlement of offence under Section 138 of the NI Act
68. So far as the offence/proceedings under Section 138 of the NI Act are concerned, the Legislature has provided Section 147 which specifically stipulates that “every offence punishable under this Act shall be compoundable”. It is important to note that Section 147 of the statute contains a non-obstante provision and is applicable

notwithstanding anything contained in the Code of Criminal Procedure. Therefore, irrespective of and apart from the offences stipulated under Section 320 of the Cr.P.C., Section 147 of the NI Act makes the offence under Section 138 of the NI Act specifically compoundable.
69. The impact of the non-obstante clause in Section 147 of the NI Act has been considered by the High Court of Gujarat in the judgment reported at (2005) CriLJ 431, Rameshbhai Somabhai Patel v. Dineshbhai Achalanand Rathi wherein the court held thus: “8. The victim of the offence can compound the offence notwithstanding anything contained in Cr. P.C. 1973. In other words, the parties can settle the alleged criminal wrong and conclude their dispute under adjudication and request the Court where it is pending to pass appropriate order viz: order of acquittal. Undisputedly, the petitioner accused has approached this Court for scrutiny of the legality and validity of the order of conviction and sentence and, therefore, the original complainant can positively appear before this Court and say that he has compounded the offence with the accused and now he has not to pursue the remedy, that he is not interested in proceeding with the complaint and to see that the accused is sent to the prison. The effect of the same would be practically or say similar to a withdrawal from the prosecution with or without any qualification. So, the original complainant if comes to the Court and says that he is withdrawing himself from prosecution on account of compromise and he has compounded the matter, then obviously the conviction and sentence shall have to be annulled/set aside. Considering the language of the section, even there is no scope for the Court to consider whether such a request should be accepted or not. No formal permission to compound the offence is required to be sought for.

9. Considering the language of Section 147 of the N.I. Act, it is not necessary to consider the scheme of Section 320 of CrPC, but to appreciate the questions posed, it can still be looked into other relevant provision. Section 320 of CrPC divides compoundable offences in two different parts by Sub-section (1). and Sub-section (2). Subsequent subsections deal with other contingencies, qualifications or embargoes. But Section 147 of the N.I. Act says that offence shall be compoundable and it does not provide for any other or further qualification or embargo like Sub-section (2) of Section 320 of CrPC. The parties can compound the offence as if the offence is otherwise compoundable. Thus, the offence is made straightaway compoundable like the case described under Sub-section (1) of Section 320 of CrPC. Subsection (9) of Section 320 of CrPC has no room to play because of non obstante clause in Section 147 of the N.I. Act. …. 10. The declaration placed before the Court and the presence of the original complainant respondent No. 1 today before the Court takes me to a conclusion that the say of the complainant should be accepted that he has withdrawn from prosecution because he has compounded the offence out of the Court. As per the settled legal position, the effect of compounding of the offence is that of acquittal.” (Emphasis by us)
70. On this aspect, valuable light is thrown on this issue also in the pronouncement of the Supreme Court in Damodar S. Prabhu’s case wherein the Supreme Court has laid down the guidelines while interpreting Section 138 and 147 of the NI Act to encourage litigants in cheque dishonouring cases to opt for compounding during early stages of the litigation to ease choking of the criminal justice system. To encourage this, a graded scheme of imposing costs on parties who unduly delay compounding of the offence and for controlling filing of
the complaints in multiple jurisdictions relatable to same transactions has been proscribed. We extract hereunder the relevant directions of the Supreme Court in this regard : “21. … In view of this submission, we direct that the following guidelines be followed: THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.” (Emphasis supplied)

71. The court has however, observed in this judgment that Section 147 of the Act did not carry any guidance on how the court will proceed with the compounding of the offence under the enactment and that the scheme legislatively contemplated under Section 320 of the Cr.P.C. cannot be followed in the strict sense. It was to overcome the hurdle because of the legislative vacuum that the graded scheme was provided to give some guidance and to save valuable time of the courts.
72. In this regard, reference may also usefully be made to the pronouncement of the Supreme Court reported at (2014) 5 SCC 590, Indian Banks Association & Ors. v. Union of India wherein the court observed thus : “21. This Court in Damodar S. Prabhu v. Sayed Babalal H. [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] laid down certain guidelines while interpreting Sections 138 and 147 of the Negotiable Instruments Act to encourage litigants in cheque dishonour cases to opt for compounding during early stages of litigation to ease choking of criminal justice system; for graded scheme of imposing costs on parties who unduly delay compounding of offence; and for controlling of filing of complaints in multiple jurisdictions relatable to same transaction, which have also to be borne in mind by the Magistrate while dealing with cases under Section 138 of the Negotiable Instruments Act.” (Emphasis by us)
73. The above further reinforces the position that there is no legal prohibition upon a court, seized of a complaint under NI Act, to encourage dispute resolution by recourse to the alternate dispute
resolution methods including mediation. On the contrary, the guidelines laid down by the court in Damodar S. Prabhu unequivocally encourage settlement. Mediation, as a mechanism for dispute resolution and arriving at a settlement automatically gets reinforced so far as a case under Section 138 of the NI Act is concerned.
XI. Mediation and Conciliation Rules, 2004 – notified the Delhi High Court
74. Mediation in Delhi is guided by the Mediation and Conciliation Rules, 2004. These Rules source the rule making power to “Part X and Clause (d) of sub-section (2) of Section 89” of the Code of Civil Procedure, 1908 as well as “all other powers enabling” the High Court of Delhi to make such Rules.
75. The Delhi Mediation and Conciliation Rules, 2004 apply to all mediations and conciliations connected with “any suit or other proceedings pending in the High Court of Delhi or in any other court subordinate to the High Court of Delhi”. These rules further state that mediation in respect of any “suit or proceeding pending before the High Court or any other court or tribunal” may be referred to the Delhi High Court Mediation and Conciliation Centre or any other mediation centre set up by the Legal Services Authorities Act, 1987.
76. In this regard, we may advert to Article 227 of the Constitution of India as well as Section 477 of the Cr.P.C. which enables the High Court to make such rules.

77. The Mediation and Conciliation Rules, 2004 stand notified by the High Court of Delhi which would guide the process to be followed even in references to mediation arising under Section 138 of the N.I. Act.
XII. Impact of settlement of disputes in a complaint under Section 138 Negotiable Instruments Act by virtue of Lok Adalat under the Legal Services Authorities Act, 1987
78. Given the reference under examination, it is therefore, necessary to examine what would be the impact of a settlement of disputes in a complaint under Section 138 of the NI Act before the Lok Adalat constituted under the Legal Services Authorities Act, 1987? This issue was the subject matter of consideration before the Supreme Court in the judgment reported at (2012) 2 SCC 51, K. Govindam Kutty Menon v. C.D. Shaji. The Kerala High Court had taken a view that when a criminal case is settled at a Lok Adalat, the award passed by it has to be treated only as an order of the criminal court and that it cannot be executed as a decree of the civil court. This finding was overturned by the Supreme Court. We extract hereunder the observations of the Supreme Court in paras 12, 13 and 26 : “12. Unfortunately, the said argument was not acceptable to the High Court. On the other hand, the High Court has concluded that when a criminal case is referred to the Lok Adalat and it is settled at the Lok Adalat, the award passed has to be treated only as an order of that criminal court and it cannot be executed as a decree of the civil court. After saying so, the High Court finally concluded that “an award passed by the Lok Adalat on reference of a criminal case by the criminal court as already concluded can only be construed as an order by the criminal court

and it is not a decree passed by a civil court” and confirmed the order of the Principal Munsif who declined the request of the petitioner therein to execute the award passed by the Lok Adalat on reference of a complaint by the criminal court. 13. On going through the Statement of Objects and Reasons, definition of “court”, “legal service” as well as Section 21 of the Act, in addition to the reasons given hereunder, we are of the view that the interpretation adopted by the Kerala High Court in the impugned order is erroneous. xxx xxx xxx 26. From the above discussion, the following propositions emerge: (1) In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that court. (2) The Act does not make out any such distinction between the reference made by a civil court and a criminal court. (3) There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various courts (both civil and criminal), tribunals, Family Court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other forums of similar nature. (4) Even if a matter is referred by a criminal court under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court.” (Emphasis by us)

79. The judgment of the Supreme Court reported at (2014) 10 SCC 690 Madhya Pradesh State Legal Services Authority v. Prateek Jain in Civil Appeal No. 8614/2014 decided on 10th September, 2014, also brings forth that even when cases under Section 138 of the NI Act were settled before the Lok Adalat, the guidelines in Damodar S. Prabhu are to be followed, with modifications, if any, qua reduction of costs if necessary. In para 23 of the judgment, the court stated the legal position thus : “23. Having regard thereto, we are of the opinion that even when a case is decided in the Lok Adalat, the requirement of following the Guidelines contained in Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] should normally not be dispensed with. However, if there is a special/specific reason to deviate therefrom, the court is not remediless as Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] itself has given discretion to the court concerned to reduce the costs with regard to specific facts and circumstances of the case, while recording reasons in writing about such variance. Therefore, in those matters where the case has to be decided/settled in the Lok Adalat, if the court finds that it is a result of positive attitude of the parties, in such appropriate cases, the court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused person, to make out a plausible case for the waiver/reduction of costs and to convince the court concerned about the same. This course of action, according to us, would strike a balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu [Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] on the one hand

and the public interest which is sought to be achieved by encouraging settlements/resolution of case through the Lok Adalats on the other hand.” (Emphasis by us)
80. The Supreme Court has thus declared the legal position that the Legal Services Authorities Act did not make out any distinction between the reference made by a civil court and a criminal court. Upon settlement before the Lok Adalat even in a criminal case, the award of the Lok Adalat has to be treated as a decree capable of execution by a civil court. The guidelines contained in Damodar S. Prabhu are required to be followed even upon such settlement subject to the discretion to the court concerned to reduce/wave the costs with regard to the specific facts and circumstances of the case.
XIII. What is the procedure to be followed if in a complaint case under Section 138 of the NI Act, a settlement is reached in mediation?
81. So what would be the appropriate procedure for recording a settlement reached by the parties upon their referral to mediation during the pendency of a complaint under Section 138 of the NI Act?
82. The above discussion would show that proceedings under Section 138 of the NI Act stand categorized as quasi-civil. In order to provide meaningful interpretation and to do complete justice in such proceedings, criminal courts are known to have often utilized the principles in the Code of Civil Procedure in such cases. These include the summary proceedings for maintenance under Section 125 of the Cr.P.C. as well as the proceedings under Section 145 of the Cr.P.C.

83. In this regard, reference may usefully be made to a judgment of the High Court of Madhya Pradesh reported at MANU/MP/1150/2012, Sunitabai v. Narayan. The court in this revision petition was considering a challenge to a trial court order rejecting an application for amendment of pleadings in proceedings under Section 125 of the Cr.P.C. While considering the permissibility of amendment of the petition under Section 125 of the Cr.P.C., the court held thus : “06. As per settled preposition, the proceeding under Section 125 of the Cr.P.C. is treated to be a quasi-civil proceeding and in such premises, the provisions of Order 6 Rule 17 of the CPC or some other provision of such Code could not be applied strictly but whenever the specific provision in this regard is not available in the special enactment then in that position, Court may adopt the principal (sic:principle) laid down by the Apex Court either in the civil case or in the criminal case. In such premises, if the present matter is examined in the light of the decision of the Apex Court in the matter of P. Venkateswarlu v. Motor & General Traders reported in AIR 1975 Supreme Court 1409 holding that the parties have right to amend the pleadings on the basis of the subsequent event which has come into existence during pendency of the suit, then the aforesaid application of amendment deserves to be allowed by allowing this revision.” (Emphasis by us)
Thus the court permitted application of the principles which bind a civil court regarding amendment of pleadings, to proceedings under Section 125 of the Cr.P.C. treated as quasi civil in nature and permitted its amendment.

84. In a decision dated 3rd February, 2010 in Crl.R.C.No.780/2006 entitled Chinnappaiyan v. Chinnathayee, a Single Judge of the Madras High Court held that: “…though a petition under Section 125 (1) of the Code is made before the criminal court – as defined under Section 6 of the Code essentially, the right that is decided by the said Court is purely civil in nature. Therefore, undoubtedly, the order made by the Magistrate under Section 125 (1) of the Code for maintenance is the culmination of such a civil right of an individual. But, Section 125(3) of the Code empowers the Court to impose a sentence of imprisonment, in the event of failure to obey such order made under Section 125(1) of the Code. To this extent, the proceeding is criminal in nature. To put it comprehensively, a proceeding initiated under Section 125 of the Code is quasi-civil and quasi-criminal. The Hon’ble Supreme Court has held so in several judgments. Regarding the procedure for making claim before the Court for maintenance, what is filed under Section 125 (1) of the Code is pure and simple a petition and not a complaint as defined in Section 2(d) of the Code. This would again indicate that a proceeding under Section 125 of the Code is treated as a quasi-civil and quasi criminal proceeding.” (Emphasis furnished)
85. In the context of proceedings under Section 145 of the Cr.P.C., in 1963 CriLJ 491, Madansetty Tirpataiah v. Stats S.I.P. Atmakur, the High Court of Andhra Pradesh was considering a revision petition challenging the order of the Sub-Divisional Magistrate whereby the petitioner’s application for inter alia filing additional documents was rejected. The court was therefore, called upon to rule on jurisdiction of the SDM to permit filing of documents at a late stage. While

considering such question, the court also observed on the nature of the proceedings and held thus : “6. Further, to my mind, proceedings under Section 145 of the Cr PC are more or less of a quasi-civil nature. So that on analogy of Civil Suit, in cases under this Section if within the time fixed by the Magistrate, the party is not in a position to file documents in his possession which support his claim, and he is able to satisfy the Court that for sufficient and valid reasons he could not file the said documents with in the prescribed time, it would be open to the Magistrate in the ends of justice to allow a party to file the said documents. 7. It is no doubt true that there is no provision in the Criminal Procedure Code analogous to Civil Procedure, for filing of documents at a late stage, but having regard to the nature of the proceedings in the ends of justice such exercise of discretion cannot entirely be ruled out. xxx xxx xxx.” (Emphasis by us)
86. Thus courts have had regard to the nature of proceedings, and, wherever found that criminal proceedings are really quasi-civil in nature, so far as matters of procedure is concerned, consistently expanded the limits of specific statutory prescription in order to do complete justice between the parties, keeping in mind the elements of public interest as well as the spirit, object and intendment of the legislation.
87. In the present case, other than the settlement agreement, there is no judicial order of any court that binds the respondent to honour the settlement arrived at during mediation.

88. It is reported that even if a mediated settlement agreement is reached, generally criminal complaints under Section 138 of the NI Act are withdrawn/compounded by the complainants only after receipt of the entire amount(s) agreed as part of the settlement. The criminal courts thus necessarily have to keep the complaint pending, awaiting the implementation of the negotiated settlement.
89. The present reference manifests that in the event of breach of the settlement, the courts have to recommence proceedings on merits and the evidentiary/legal value of the mediated settlement remains undetermined. This has enabled many accused to divert the complaint to mediation only with the intent to effectively delay the proceedings under Section 138 of the NI Act.
90. Mr. Siddharth Aggarwal, ld. amicus curiae has placed certain judicial precedents on this aspect before us. In (2013) SCC OnLine Del 124, Hardeep Bajaj v. ICICI Bank Ltd., the petitioner had entered into an amicable settlement dated 26th May, 2012 for payment to the respondent bank in mediation undertaken during the pendency of the complaint under Section 138 of the NI Act to make payment of Rs.9,08,800/- in full and final settlement of the bank claim in monthly installments of Rs.1,50,000/- commencing from 26th May, 2012, the last of which was payable on 26th October, 2012. Without abiding with the settlement, the petitioner approached the ld. MM for modifying the settlement. The ld. MM noticed that the petitioner had violated the successive undertakings given by him and dismissed the application for modification with costs. The petitioner approached
this court by way of a revision petition which was dismissed. In para 10 of the judgment, the ld. Single Judge of this court has noted that “once the settlement reached is accepted by the court or an undertaking is given, it becomes binding on the parties”.
91. In (2015) SCC OnLine Del 7309, Manoj Chandak v. Tour Lovers Tourism (India) Pvt. Ltd., the respondent failed to honour the mediated settlement dated 26th July, 2013 reached in complaints under Section 138 of the NI Act, 1881. Instead, after three months, it filed an application for reconsideration of the settlement on the ground that the signatures of its authorized representatives were forcibly obtained and that he had no instructions to agree to the terms of the settlement. This application was allowed by the trial court by the order dated 25th April, 2014 and the parties were again referred to mediation. A challenge was laid regarding the voluntariness of the mediated settlement. The learned Single Judge therefore, held that “since question of fact are being raised regarding voluntariness of the mediated settlement, therefore, it would be appropriate that an opportunity is granted by trial court to respondents to lead evidence to show that the mediated settlement was not a voluntary one”.
92. In yet another pronouncement reported at (2015) SCC OnLine Del 9334, M/s Arun International v. State of Delhi & Anr., a settlement regarding the subject matter of the complaint under Section 138 of the NI Act was reached before the Court annexed mediation centre in the Rohini District Courts which was placed before the magistrate in the pending proceedings. The court recorded the

statement of the respondent no.2 admitting the claim of the complainant and seeking an adjournment to pay the agreed amount. Two years were sought by the respondent no.2 from the the 25th November, 2013 being the date of making of the statement before the ld. Metropolitan Magistrate. Vide order dated 16th February, 2015, the ld. Metropolitan Magistrate returned the complaints for want of territorial jurisdiction, in view of the ratio of the Supreme Court in the pronouncement of Dashrath Rupsingh Rathore v. State. The ld. Single Judge held that the order dated 16th February, 2015 was illegal and contrary to law, in view of the fact that the matter stood settled before the Mediation Centre as also that the decision in Dashrath Rupsingh Rathore was inapplicable, the complaint cases having gone to the stage of Section 145(2) of the Cr.P.C. In para 7, the learned Single Judge had observed that “it is settled law and even otherwise the settlement of the mediation as well is deemed to be a decree and cannot be challenged”.
In view of the above enunciation of the law, this position is not legally correct.
93. Our attention is also drawn to the pronouncement of the ld. Single Judge of the Kerala High Court in the judgment reported at (2014) 3 KLJ 637, Sreelal v. Murali Menon & Anr. The petitioner in this case was the complainant in a complaint under Section 138 of the NI Act. On the date for evidence, on the request of the accused, the matter was referred for mediation where a settlement dated 17th February, 2014 was reached and six months time was given for
payment. In the settlement, the parties had agreed that in default, the complainant was allowed to proceed with the case and, if the amount was paid, then the complainant would have to withdraw the case. While the petitioner/complainant was willing to wait the agreed period for payment, the respondent was insisting that the mediated agreement had the effect of an award; that the petitioner was not entitled to proceed with the case; and that his remedy was to execute the agreement as if it was an award under the Legal Services Act. In paras 12 and 13 of the judgment, the court has explained the alternative dispute resolution process in cases under Section 138 of the NI Act thus : “12. Then, the question is what is to effect of mediation agreement in a criminal matter. Admittedly, if the matter is referred for mediation, the mediator is not acting neither as Adalath nor as an Arbitrator or Conciliator to resolve the disputes by passing an award either under the provisions of Legal Services Authorities Act or under the provisions of the Arbitration and Conciliation Act. Even if, the matter is referred in a civil case for mediation under S. 89 of the Code of Civil Procedure, even then, the mediator is not passing any judgment, but he is only facilitating the parties to arrive at the settlement and help them to draw the mediation agreement and after the agreement is signed by the parties, and counter signed by the Advocates, then, it will be forwarded to the Court which referred the matter and that Court will pass a decree on the basis of the agreement applying the principle under O. 23 R. 3 of Code of Civil Procedure accordingly. Till, the seal of the court is affixed on the agreement, and a decree is passed on that basis that agreement, it has no legal effect in the eye of law. So, even if a mediation agreement reaches the criminal court, agreeing to settle the issue on certain
terms, the criminal court cannot rely on that agreement and pass a civil decree, relegating the parties to get the amount realized by filing execution petition before the Civil Court and it can only on the basis of the evidence either convict or acquit the accused and if the case is compounded, if it is a compoundable offence, then it can record compounding and that compounding will have the effect of an acquittal under S. 320(8) of Code of Criminal Procedure. 13. Further, the counsel for the respondent relied on the decision reported in Govindankutty Metion v. Shaji (2011 (4) KLT 857 (SC)) and argued that since the matter is referred for mediation and the parties have settled the dispute in the mediation, then it will have the effect of a civil decree and the complainant cannot proceed with the criminal case and he can only execute the award as though it is a civil decree. It is true that in the decision relied on by the counsel for the respondent namely, Govindankutty Menon’s case (supra), the Hon’ble Supreme Court has held that if the case under S. 138 of the Negotiable Instruments Act is referred to Adalath by a criminal court and if the matter is settled in the Adalath, then by virtue of the deeming provision, an award passed by the Adalath based on the compromise has to be treated as a decree capable of execution by a civil court. In that case, a case under S. 138 of the Negotiable Instruments Act was referred to Adalath constituted under the Legal Services Authorities Act by a Criminal Court and in the Adalath, parties have agreed on terms and provided time for payment of the amount and that compromise was recorded and accordingly an award was passed in the Adalath and the criminal case was closed. When, the complainant filed an execution petition before the Munsiff s Court for realisation of the amount and the Munsiff dismissed the execution petition on the ground that Criminal Court cannot pass a civil decree even in Adalath which was affirmed by this court but when that was challenged before the Hon’ble Supreme Court, the Hon’ble Supreme Court reversed the
finding and held that by virtue of the deeming provision under S. 21 of the Legal Services Authorities Act, even, in cases under S. 138 of the Negotiable Instruments Act if a compromise was accepted and an award has been passed in the Adalath, then that will have the effect of a civil decree and that can be executed through civil court as though it is a decree of a civil court. The facts are different in this case as already discussed, the mediation cannot be treated at par with Lok Adalath as mediator has no power to pass any award as provided under the Legal Services Authorities Act. So the dictum is not applicable to the facts in this case.” (Emphasis by us)
In view of the position in legislation, the court had declared the correct legal position that mediation cannot be treated at par with the Lok Adalat and that the mediator has no power to pass an award as a Lok Adalat which is deemed to be a decree under the Legal Service Authority Act, 1987.
94. In para 14, the Kerala High Court considered the question as to whether such agreement could be treated as evidence in a criminal matter. While answering this question, it was observed by the court that even if the complainant had agreed in the mediation to settle the matter for a lesser amount than the amount mentioned in the cheque, it could not be said that the actual amount due is the amount agreed in the mediation. Para 14 of the judgment reads as follows : “14. Then, the question is whether the agreement entered into between the parties in a mediation can be treated as evidence in a criminal matter. It may be mentioned here, unless the agreement is accepted by the court and a decree is passed under S. 89 of the Code of Criminal Procedure r/w O. 23 R. 3
of Code of Civil Procedure, that will have no effect, unless that has been converted into a conciliation agreement based on which an award is passed by the Conciliator under the provisions of the Arbitration and Conciliation Act. Further, it is the cardinal principle in the mediation that whatever transpired in the mediation cannot be disclosed even before the court of law and that cannot be called upon to be produced as evidence as well as it will affect the confidentiality of the things transpired in the process of mediation. So the party who did not honour the settlement which was effected in the process of mediation, then, is not entitled to use the same as evidence before the court and agreement also cannot be marked in evidence as it has no legal effect unless it is accepted by the court and a decree is passed under S. 89 r/w O. 23 R. 3 of the Code of Civil Procedure. That cannot be possible in a Criminal Court. Further even if the party had agreed to settle the matter for a lesser amount than the amount mentioned in the cheque in the mediation, it cannot be said that, that was the amount payable as in the mediation, parties can forgo so many things for the purpose of achieving harmony between the parties and restore their relationship. So the amounts arrived in a mediation also cannot be used as evidence for coming to the conclusion that the amount mentioned in the cheque is not the real amount due, and the complainant is not entitled to maintain the action on the basis of that cheque. The court has to allow the parties to adduce evidence ignoring the mediation agreement and dispose of the case on the basis of evidence adduced by parties as it should not be put in evidence in view of the bar under rules 20, 21 and 22 of the Civil Procedure (Alternative Disputes Resolution) Rules Kerala 2008 which reads as follows:— Rule 20:— Confidentiality, disclosure and inadmissibility of information— (1) The mediator shall not disclose confidential information concerning the dispute received from any party to the proceedings unless permitted in writing by the said party.

(2) Parties shall maintain confidentiality in respect of events that transpired during mediation and shall not rely on or introduce the said information in any other proceedings as to: (a) views expressed by a party in the course of the mediation proceedings; (b) documents obtained during the mediation which were expressly required to be treated as confidential or other notes, drafts or information given by parties or mediators; (c) Proposals made or views expressed by the mediator. (d) Admission made by a party in the course of mediation proceedings. (e) The fact that a party had or had not indicated willingness to accept a proposal. (3) There shall be no stenographic or audio or video recording of the mediation proceedings. Rule 21:— Privacy- Mediation sessions and meetings are private; only the concerned parties or their counsel or authorised representatives can attend. Other persons may attend only with the permission of the parties or with the consent of the mediator. Rule 22:— Immunity- No mediator shall be held liable for anything bona fide or omitted to be done by him during the mediation proceedings for civil or criminal action nor shall he be summoned by any party to the suit to appear in a court of law to testify in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the mediation proceedings.”
95. It was held by the court that the agreement arrived at in the mediation cannot be used as the evidence to contend that the amount mentioned in the cheque was not the real amount. In these
circumstances, the party violating the mediation agreement, cannot use the same as evidence before the court and that the agreement has no legal effect unless it has been “accepted by the court and a decree is passed under Section 89 r/w Order 23 Rule 3 of the Code of Civil Procedure.” which was not possible in a criminal court.
96. So far as mediation in Delhi is concerned, in the “Mediation and Conciliation Rules, 2004”, Rule 20 is concerned with “confidentiality, disclosure and inadmissibility of information”, Rule 21 mandates privacy in the mediation sessions while Rule 22 prescribes immunity from civil/criminal proceedings to the mediator for anything done bona fide or omitted to be done during the mediation proceedings.
97. In cases under Section 138 of the NI Act, judicial reinforcement of this sound principle is to be found in the encouragement by the Supreme Court to settlements of the disputes between parties at early stages. This is in keeping with the legislative mandate of Section 147, so that the spirit, intendment and object of this statutory provision can be effectively realized.
98. We have noted above that Section 147 of the NI Act has made the offence under Section 138 of the NI Act compoundable. Proceedings under Section 138 of the NI Act have been considered as quasi civil by the courts. Therefore, in principle, the procedure which applies to recording a settlement in civil cases could guide the procedure to be followed and be applied for recording a settlement between the parties to a complaint under Section 138 of the NI Act.
Guidance on this aspect is provided by the provisions of Order XXIII Rule 3 of the CPC and the practice followed by the civil courts upon a compromise arrived at between the parties to a suit.
99. So far as the statutory provision is concerned, Order XXIII Rule 3 of the CPC reads as follows :
“3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: –
Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.”
(Emphasis by us)
100. The Code of Criminal Procedure as well as the NI Act have provided only for compounding of offences. No procedure regarding the manner in which a settlement agreement required to be placed or considered by the court has been provided.
101. Reference can usefully be made to certain pronouncements under the Code of Civil Procedure, wherein the Legislature has
provided Rule 3 of Order XXIII, which specifically provides for “Compromise of suits”. The Legislature has prescripted that if it is “proved to the satisfaction of the court” that a suit has been adjusted wholly or in part by any “lawful agreement or compromise in writing and signed by the parties”, the court shall order such agreement or compromise to be recorded and shall pass a decree in accordance thereof, so far as it relates to the parties in the suit. It is important to note that Order XXIII Rule 3 of the CPC permits the consideration of the agreement, whether or not the subject matter of the agreement or compromise is the same as the subject matter of the suit. While the Code of Civil Procedure would have no application to the proceedings which are guided by the Criminal Procedure Code, however, given the legislative vacuum, there appears to be no reason as to why the principles which apply to consideration of a settlement under Order XXIII Rule 3 of the CPC cannot be applied for consideration of a settlement which is the subject matter of consideration by a court under Section 320 of the Cr.P.C. or Section 147 of the NI Act. The principles of Rule 3 or Order XXIII of the C.P.C., as laid in judicial pronouncements, can be summarized thus:
(i) For a compromise to be held to be binding, it has to be signed either by the parties or by their counsels or both, failing which Order XXIII Rule 3 of the CPC would not be applicable.
(Ref. : (1988) 1 SCC 270, Gurpreet Singh v. Chatur Bhuj Goel; (2009) 6 SCC 194, Sneh Gupta v. Devi Sarup & Ors.)
(ii) Order XXIII Rule 3 of the CPC casts an obligation on the court to be satisfied that the settlement agreement is lawful and is in writing and signed by the parties or by their counsels.
(Ref. : (1978) 2 SCC 179, Suleman Noormohamed & Ors. v. Umarbhai Janubhai; (2006) 1 SCC 148, Amteshwar Anand v. Virender Mohan Singh & Ors.).
(iii) An obligation is cast on the court under Order XXIII Rule 3 of the CPC to order the agreement to be recorded and pass a decree in accordance thereof.
(Ref. : (2006) 1 SCC 148, Amteshwar Anand v. Virender Mohan Singh & Ors. (paras 26 and 27)).
(iv) A consent decree is really a contract between the parties with the seal of the court superadded to it.
(Ref. : (1969) 2 SCC 201, Baldevdas Shivlal & Anr. v. Filmistan Distributors (India) P. Ltd. & Ors.; (2002) 100 DLT 278, Hindustan Motors Ltd. v Amritpal Singh Nayar & Anr.; (2007) 14 SCC 318, Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari & Ors.).
(v) A consent decree may operate as an estoppel as well.
[Ref. : AIR 1956 SC 346, Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa; (2007) 14 SCC 318, Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari & Ors. (para 15)].

102. The practice followed by the civil court before whom the settlement in writing, duly signed by the parties, is placed, is to record the statements of parties confirming that the settlement was entered into voluntarily, without any force, pressure or undue influence; that it contained the actual terms of the settlement; and undertakings of the parties to remain bound by the terms thereof. Upon being satisfied that the settlement was voluntary and lawful, the civil court takes it on record accepting the undertaking and passing a decree in terms thereof.
103. In the pronouncement of the Allahabad High Court reported at AIR 1930 All 409 : 1929 SCC OnLine All 140, Emperor v. Jhangtoo Barai & Anr., the court was considering whether there was in fact a composition of the offence or not? It was observed that the best possible evidence was that of the document signed by the parties which was in the handwriting of the complainant himself that the composition was correct. In para 6, it was also observed that if all the parties were present in court, it was entirely unnecessary for any verification of such composition. The court noted that “The complainant was literate. He signed the document in his own writing. It must presumed, unless it is proved to the contrary, that the complainant well understood the one small paragraph that appeared in the document. In any case, the only verification that was required was a simple question to the parties whether they signed the document and whether they understood its contents. There can be no doubt that on that day there was a valid composition within the meaning of
section 345 of the Code of Criminal Procedure before the court. It was therefore the duty of the Magistrate upon that day, and without any unnecessary delay, to have pronounced an acquittal. I am clear that it is incompetent for any person, once having entered into a valid composition, to withdraw from it.”
104. Binding the parties to a settlement agreement entered into through a formal mediation process and being held accountable for honouring the same is really enforcing the legislative mandate in enacting Sections 138 and 147 of the NI Act i.e. to ensure an expeditious time bound remedy for recovery of the cheque amounts. Breach of a lawful entered agreement would not only frustrate the parties to the mediation, but would be opposed to the spirit, intendment and purpose of Section 138 of the NI Act and would defeat the ends of justice. The courts cannot permit use of mediation as a tool to abuse judicial process.
105. There is no legal prohibition upon a criminal court seized of such complaint, to whom a mediated settlement is reported, from adopting the above procedure. Application of the above enunciation of law to a mediation arising out of a criminal case manifests that a settlement agreement would require to be in writing and signed by the parties or their counsels. The same has to be placed before the court which has to be satisfied that the agreement was lawful and consent of the parties was voluntary and not obtained because of any force, pressure or undue influence. Therefore, the court would record the statement of the parties or their authorized agents on oath affirming
the settlement, its voluntariness and their undertaking to abide by it in the manner followed by the civil court when considering a settlement placed before it under Order XXIII Rule 3 of the CPC. The court would thereafter pass an appropriate order accepting the agreement, incorporating the terms of the settlement regarding payment under Section 147 of the NI Act and the undertakings of the parties. The court taking on record the settlement stands empowered to make the consequential and further direction to the respondent to pay the money in terms of the mediated settlement and also direct that the parties would remain bound by the terms thereof.
106. In having so proceeded, there is a satisfaction of the voluntariness and legality of the terms of the settlement of the court and acceptance of the terms thereof as well as a specific order in terms thereof. Consequently, the amount payable under the settlement, would become an amount payable under an order of the criminal court.
107. So far as the disputes beyond the subject matter of the litigation is concerned, upon the settlement receiving imprimatur of the court, such settlement would remain binding upon the parties and if so ordered, would be subject to the orders of the court.
XIV. Breach of such settlement accepted by the court – consequences?
108. The instant reference has resulted because of the failure of the court to have recorded the settlement and undertakings binding the accused person in the complaint under Section 138 of the NI Act to
abide by the settlement arrived at during mediation. There can be no manner of doubt that once a settlement is reported to the court and made the basis of seeking the court’s indulgence, the parties ought not to be able to resile from such a position. So what is the remedy available to a complainant if the respondent commits breach of the mediation settlement and defaults in making the agreed payments?
109. Let us examine as to whether the legislature has provided any mechanism in the Cr.P.C. for recovery of monetary amounts.
110. We have extracted Section 421 of the Cr.P.C. above which provides the mechanism to recover fines, by issuing a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender and/or by issuing a warrant authorizing the realization of amounts as arrears of land revenue from movable and immovable property of the defaulter.
111. In the event of either party resiling from the agreed upon settlement which has received the imprimatur of the court, the party attempting to breach the settlement and undertaking cannot be permitted to avoid making the payment. Such party also should not be allowed to violate such undertaking given to the opposite side as well as the court.
112. In (2009) 6 SCC 652, Vijayan v. Sadanandan K. & Anr., it was held that Section 431 read with Section 421 of the Cr.P.C. is applicable to recovery of compensation ordered under Section 357(5).

113. Section 431 Cr.P.C., also extracted above, provides if any money, other than a fine, is payable by virtue of any order made under the Cr.P.C., the method of recovery whereof is not expressly provided for, shall be recoverable in terms of Section 421 Cr.P.C.
114. In the event that a criminal court passes order accepting the mediated settlement between the parties and directs the accused to make payment in terms thereof, the settlement amount becomes payable under the order of the court. Such order having been passed in proceedings under Section 138 of the NI Act, would be an order under Section 147 of the NI Act and Section 320 of the Cr.P.C.
115. In proceedings where settlement is permitted under Section 320 of the Cr.P.C., it would be an order thereunder.
116. Where proceedings are disposed on settlement terms by the High Court, it would be an order passed in exercise of jurisdiction under Section 482 of the Cr.P.C. Upon breach of such order and non-payment of the agreed amounts, the same may be recoverable in terms of Section 431 read with Section 421 Cr.P.C.
117. In addition, if the party has tendered an undertaking to abide by the terms of the agreement, which stands accepted by the court, in the event of breach of the undertaking, action and consequences under the Contempt of Courts Act could also follow.
XV. Reference answered

118. In view of the above, the reference made by the ld. Metropolitan Magistrate by the order dated 13th January, 2016 (extracted in para 1 above) is answered thus :
Question I : What is the legality of referral of a criminal compoundable case (such as on u/s 138 of the NI Act) to mediation?
It is legal to refer a criminal compoundable case as one under Section 138 of the NI Act to mediation.
Question II : Can the Mediation and Conciliation Rules, 2004 formulated in exercise of powers under the CPC, be imported and applied in criminal cases? If not, how to fill the legal vacuum? Is there a need for separate rules framed in this regard (possibly u/s 477 of the CrPC)?
The Delhi Mediation and Conciliation Rules, 2004 issued in exercise of the rule making power under Part-10 and Clause (d) of sub-section (ii) of Section 89 as well as all other powers enabling the High Court of Delhi to make such rules, applies to mediation arising out of civil as well as criminal cases.
Question III : In cases where the dispute has already been referred to mediation – What is the procedure to be followed thereafter? Is the matter to be disposed of taking the very mediated settlement agreement to be evidence of compounding of the case and dispose of the case, or the same is to be kept pending, awaiting compliance thereof (for example, when the payments are spread over a long period of time, as is usually the case in such settlement agreements)?
In the context of reference of the parties, in a case arising under Section 138 of the NI Act, to mediation is concerned, the following procedure is required to be followed :

III (i) When the respondent first enters appearance in a complaint under Section 138 of the NI Act, before proceeding further with the case, the Magistrate may proceed to record admission and denial of documents in accordance with Section 294 of the Cr.P.C., and if satisfied, at any stage before the complaint is taken up for hearing, there exist elements of settlement, the magistrate shall inquire from the parties if they are open to exploring possibility of an amicable resolution of the disputes.
III (ii) If the parties are so inclined, they should be informed by the court of the various mechanisms available to them by which they can arrive at such settlement including out of court settlement; referral to Lok Adalat under the Legal Services Authorities Act, 1987; referral to the court annexed mediation centre; as well as conciliation under the Arbitration and Conciliation Act, 1996.
III (iii) Once the parties have chosen the appropriate mechanism which they would be willing to use to resolve their disputes, the court should refer the parties to such forum while stipulating the prescribed time period, within which the matter should be negotiated (ideally a period of six weeks) and the next date of hearing when the case should be again placed before the concerned court to enable it to monitor the progress and outcome of such negotiations.
III (iv) In the event that the parties seek reference to mediation, the court should list the matter before the concerned mediation centre/mediator on a fixed date directing the presence of the parties/authorized representatives before the mediator on the said date.

III (v) If referred to mediation, the courts, as well as the mediators, should encourage parties to resolve their overall disputes, not confined to the case in which the reference is made or the subject matter of the criminal complaint which relates only to dishonouring of a particular cheque.
III (vi) The parties should endeavour to interact/discuss their individual resolutions/proposals with each other as well and facilitate as many interactions necessary for efficient resolution within the period granted by the court. The parties shall be directed to appear before the mediator in a time bound manner keeping in view the time period fixed by the magistrate.
III (vii) In the event that all parties seek extension of time beyond the initial six week period, the magistrate may, after considering the progress of the mediation proceedings, in the interest of justice, grant extension of time to the parties for facilitating the settlement. For the purposes of such extension, the magistrate may call for an interim report from the mediator, however keeping in mind the confidentiality attached to the mediation process. Upon being satisfied that bona fide and sincere efforts for settlement were being made by the parties, the magistrate may fix a reasonable time period for the parties to appear before the mediator appointing a next date of hearing for a report on the progress in the mediation. Such time period would depend on the facts and circumstances and is best left to the discretion of the magistrate who would appoint the same keeping in view the best interest of both parties.
Contents of the settlement
III (viii) If a settlement is reached during the mediation, the settlement agreement which is drawn-up must incorporate :
(a) a clear stipulation as to the amount which is agreed to be paid by the party;
(b) a clear and simple mechanism/method of payment and the manner and mode of payment;
(c) undertakings of all parties to abide and be bound by the terms of the settlement must be contained in the agreement to ensure that the parties comply with the terms agreed upon;
(d) a clear stipulation, if agreed upon, of the penalty which would enure to the party if a default of the agreed terms is committed in addition to the consequences of the breach of the terms of the settlement;
(e) an unequivocal declaration that both parties have executed the agreement after understanding the terms of the settlement agreement as well as of the consequences of its breach;
(f) a stipulation regarding the voluntariness of the settlement and declaration that the executors of the settlement agreement were executing and signing the same without any kind of force, pressure and undue influence.
III (ix) The mediator should forward a carefully executed settlement agreement duly signed by both parties along with his report to the court on the date fixed, when the parties or their authorized representatives would appear before the court.
Proceedings before the court
III (x) The magistrate would adopt a procedure akin to that followed by the civil court under Order XXIII of the C.P.C.
III (xi) The magistrate should record a statement on oath of the parties affirming the terms of the settlement; that it was entered into voluntarily, of the free will of the parties, after fully understanding the contents and implications thereof, affirming the contents of the agreement placed before the court; confirming their signatures thereon. A clear undertaking to abide by the terms of the settlement should also be recorded as a matter of abundant caution.
III (xii) A statement to the above effect may be obtained on affidavit. However, the magistrate must record a statement of the parties proving the affidavit and the settlement agreement on court record.
III (xiii) The magistrate should independently apply his judicial mind and satisfy himself that the settlement agreement is genuine, equitable, lawful, not opposed to public policy, voluntary and that there is no legal impediment in accepting the same.
III (xiv) Pursuant to recording of the statement of the parties, the magistrate should specifically accept the statement of the parties as well as their undertakings and hold them bound by the terms of the settlement terms entered into by and between them. This order should clearly stipulate that in the event of default by either party, the amount agreed to be paid in the settlement agreement will be recoverable in terms of Section 431 read with Section 421 of the Cr.P.C.
III (xv) Upon receiving a request from the complainant, that on account of the compromise vide the settlement agreement, it is withdrawing himself from prosecution, the matter has to be compounded. Such prayer of the complainant has to be accepted in keeping with the scheme of Section 147 of the NI Act. (Ref.:(2005) CriLJ 431, Rameshbhai Somabhai Patel v. Dineshbhai Achalanand Rathi)
At this point, the trial court should discharge/acquit the accused person, depending on the stage of the case. This procedure should be followed even where the settlement terms require implementation of the terms and payment over a period of time.
III (xvi) In the event that after various rounds of mediation, the parties conclude that the matter cannot be amicably resolved or settled, information to this effect should be placed before the magistrate who should proceed in that complaint on merits, as per the procedure prescribed by law.
III (xvii) The magistrate should ensure strict compliance with the guidelines and principles laid down by the Supreme Court in the pronouncement reported at (2010) 5 SCC 663, Damodar S. Prabhu v. Sayed Babalal H and so far as the settlement at the later stage is concerned in (2014) 10 SCC 690 Madhya Pradesh State Legal Services Authority v. Prateek Jain.
III (xvii) We may also refer to a criminal case wherein there is an underlying civil dispute. While the parties may not be either permitted in law to compound the criminal case or may not be willing to
compound the criminal case, they may be willing to explore the possibility of a negotiated settlement of their civil disputes. There is no legal prohibition to the parties seeking mediation so far as the underlying civil dispute is concerned. In case a settlement is reached, the principles laid down by us would apply to settlement of such underlying civil disputes as well.
In case reference in a criminal case is restricted to only an underlying civil dispute and a settlement is reached in mediation, the referring court could require the mediator to place such settlement in the civil litigation between the parties which would proceed in the matter in accordance with prescribed procedure.
Question IV : If the settlement in Mediation is not complied with – is the court required to proceed with the case for a trial on merits, or hold such a settlement agreement to be executable as a decree?
In case the mediation settlement accepted by the court as above is not complied with, the following procedure is required to be followed :
IV (i) In the event of default or non-compliance or breach of the settlement agreement by the accused person, the magistrate would pass an order under Section 431 read with Section 421 of the Cr.P.C. to recover the amount agreed to be paid by the accused in the same manner as a fine would be recovered.
IV (ii) Additionally, for breach of the undertaking given to the magistrate/court, the court would take appropriate action permissible in law to enforce compliance with the undertaking as well as the
orders of the court based thereon, including proceeding under Section 2(b) of the Contempt of Courts Act, 1971 for violation thereof.
Question V : If the Mediated Settlement Agreement, by itself, is taken to be tantamount to a decree, then, how the same is to be executed? Is the complainant to be relegated to file an application for execution in a civil court? And if yes, what should be the appropriate orders with respect to the criminal complaint case at hand. What would be the effect of such a mediated settlement vis-à-vis the complaint case?
V (i) The settlement reached in mediation arising out of a criminal case does not tantamount to a decree by a civil court and cannot be executed in a civil court.
However, a settlement in mediation arising out of referral in a civil case by a civil court, can result in a decree upon compliance with the procedure under Order XXIII of the C.P.C. This can never be so in a mediation settlement arising out of a criminal case.
XVI. Result
119. The present reference, under Section 395(2) of the CrPC, is answered in the above terms.

120. We place on record our deep appreciation for the amici curiae: Mr. J.P. Sengh, Senior Advocate; Ms. Veena Ralli, Advocate and Mr. Siddharth Agarwal, Advocate, who have rendered indispensable and worthy assistance to us, in this matter.

121. Let the record of Complaint Case Nos.519662/2016 and 519664/2016 be forthwith returned to the trial court, which shall proceed in the matter, in accordance with law.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J.
OCTOBER 17, 2017/aj

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