PIL for Statehood of Delhi and Puducherry

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITON (CIVIL) NO. OF 2014

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

1.     Dr Nutan Thakur wife of

Sri Amitabh Thakur,

r/o 5/426, Viram Khand,
Gomti Nagar,
Lucknow

2.     Pratima Pandey d/o
Sri Asok Pande
r/o 5/1243, Viram Khand,
Gomti Nagar,
Lucknow                                                                                         Petitioners

Versus

Union of India                                                                                           Respondent

Through Secretary,

Ministry of Law and Justice,

New Delhi-110001.

A PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE NATURE OF PUBLIC INTEREST LITIGATION CHALLENGING

THE INAPRROPRIATENESS AND ILLEGALITY IN THE STATUS OF DELHI AND PUDUCHERRY MAKING THEIR CURRENT POSITION AS UNION TERRITORY AS BEING ULTRA-VIRES TO THE BASIC STRUCTURE OF CONSTITUTION OF INDIA AND HENCE AND PRAYING FOR SUITABLE DIRECTIONS IN THIS REGARDS

TO

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS HON’BLE COMPANION JUSTICES OF THE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHOWETH:

1.     That this petition has been under Article 32 of the Constitution of India in the nature of public interest litigation challenging the position of Delhi and Puducherry as a Union Territory as being Ultra-vires to the basic structure of the Constitution of India and hence praying for suitable directions in this regards

2.     The Petitioner is seeking the following reliefs:

(a) Issue a writ of mandamus where by directing the respondent and all its instrumentalities not to give effect to provisions of Article 239A, 239AA and 239AB of the Constitution of India and to declare the same as being violative and ultra vires of the basic structure of the constitution

(b)Issue a writ of certiorari quashing the placing of Delhi at Serial No 1 and Puducherry at Serial No 6 in the list II , Union Territory, of Schedule I of the Constitution of India and to issue an appropriate writ order or direction placing Delhi in list I, The States, of Schedule 1

(c) Issue such other appropriate writ or direction that may be deemed to be just and equitable in the facts and circumstances of the case and in the interest of justice

3.     That the petitioners are citizen of India and interested in safeguarding the interest of public at large and ventilating the grievances of public regarding the issues of public importance, in the exercise of his duty in terms of Article 51A (g) of the Constitution and with a view to promote the Rule of Law, has preferred the instant Writ Petition under Article 32 of the Constitution of India in Public Interest

4.     The petitioners are citizen of India which provides them the statutory and constitutional right to prefer a Public Interest Litigation before this Hon’ble Court. They also do not have any such adversity related with them in any manner that could bar them from pursuing PILs before this Hon’ble Court or elsewhere. In brief the petitioner No 1 is a social activist working in the field of transparency and accountability in governance and also as regards establishment of rule of law. The petitioner No 2, is a young advocate who also has social concerns and feels it her duty to bring matters of public interest and constitutional importance before Hon’ble Courts.

5.     That the matter being brought in this PIL is as regards the current constitutional status of Delhi and Puducherry.

6.     That as per Schedule 1 of the Constitution of India, Delhi is at Serial No 1 of the list of Union Territories while Puducherry is at Serial No 6

7.     That as is well-known Schedule 1 of the Constitution consists of the names of all the States and Union Territories (UT, for short) of India

8.     That the concept of States and Union Territories emanates in the Constitution in the very first Article where Article 1 says-“(1) India, that is Bharat, shall be a Union of States.  (2) The States and the territories thereof shall be as specified in the First Schedule.  (3) The territory of India shall comprise-  1. The territories of the States; 2. the Union territories specified in the First Schedule; and 3. such other territories as may be acquired.”

9.     That thus Article 1 makes it very clear that territory of India can comprise only of the States, the UTs and acquired territories

10.                       That admission or establishment of new States is governed by Article 2 while formation of new States and alteration of areas, boundaries or names of existing States is done through Article 3.

11.                       That Part V of the Constitution is related with Union. Here Chapter 1 related with the Executive says at Article 52-“The President of India.- There shall be a President of India.” Article 53(1) says-“Executive power of the Union.- (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.”  

12.                       That Article 73 says-“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 on 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 in 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.”

13.                       That Article 74 related with Council of Ministers says-“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.”

14.                       That relevant provisions of Article 75 are-“Other provisions as to Ministers.- (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.  (2) The Minister shall hold office during the pleasure of the President.  (3) The Council of Ministers shall be collectively responsible to the House of the People.”

15.                       That Article 77 as regards Conduct of Government Business says-“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 nor 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.’

16.                       That article 79 says-“Constitution of Parliament.- There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the council of States and the House of the People.”

17.                       That Article 80 to 106 talks of various provisions related with the two houses, the members of these two houses, their qualification and disqualification, the offices of the two houses and so on.

18.                       That Legislative Procedure  of the Parliament is described in Article 107 onwards. Article 107 says- “Provisions as to introduction and passing of Bills.- (1) Subject to the provisions of Articles 109 and 117 with respect to Money Bills and other financial Bills, a Bill may originate in either House of Parliament.   (2) Subject to the provisions of Article 108 and 109, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed by both Houses.   (3) A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.  (4) A Bill pending in the Council of States which has not been passed by the House of the People shall not lapse on a dissolution of the House of the People.   (5) A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the council of States, shall subject to the provisions of Article 108, lapse on a dissolution of the House of the People.” Article 108 is as regards joint sitting of both Houses in certain cases, 109 as regards special procedure in respect of Money Bills, where Article 110 defines the "Money Bill”, Article 111 is about assent to Bills which says that-“When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent there from.   Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they 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 when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent there from.”

19.                        That Article 112 is about Annual financial statement, 113 about procedure in Parliament with respect to estimates, 114. About Appropriation Bills, 115 about supplementary, additional or excess grants, 116 about votes on account, votes of credit and exceptional grants and 117 about special provisions as to financial Bills

20.                       That Article 123 is as regards the Power of President to promulgate Ordinances during recess of Parliament

21.                       That there are almost identical provisions of the States as given in Part VI The Sates where Article 152 says-“Definition.- In this Part, unless the context otherwise, requires, the expression "State" does not include the State of Jammu and Kashmir.”

22.                       That Article 153 says -:Governors of States.- There shall be Governor for each State: Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States.”

23.                       That Article 154 says-“Executive power of State.- (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall-  (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor”

24.                       That Article 162 says-“Extent of executive power of State.- 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 the Constitution or by any law made by Parliament upon the Union or authorities thereof.” 

25.                       That Article 163 says-“Council of Ministers to aid and advise Governor.- (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.” 

26.                       That relevant part of Article 164 says-“Other provisions as to Ministers.- (1) The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer so him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. 

27.                       That Article 166 says-“Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order on instruction 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 Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”  

28.                       That Article 168 says-“Constitution of Legislatures in States.- (1) For every State there shall be a Legislature which shall consist of the Governor, and (a) in the States of Bihar, Madhya Pradesh, Maharashtra, Karnataka and Uttar Pradesh, two houses: (b) in other States, one House.(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.”

29.                       That Article 196 is about provisions as to introduction and passing of Bills, 197 about restriction on powers of Legislative Council as to Bills other than Money Bills, 198 about special procedure in respect of Money Bills, 199 about definition of "Money Bills and 200 about assent to Bills which says-“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, 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.”

30.                       That Article 201 is as regards Bill reserved for consideration.- “When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as it mentioned in the first proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.”

31.                       That Article 202 is about Annual financial statement, 203 about procedure in Legislature with respect to estimates, 204 about Appropriation Bills and 205 about supplementary, additional or excess grants.-

32.                       That Part VIII of the Constitution is as regards the Union Territories. Article 239 says-“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.”

33.                       That Article 239A says-“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.

34.                       That Article 239AA says-“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) 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 of Delhi 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 the 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 44, 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 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 percent, 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 to 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 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   supplementing provisions  contained in the foregoing clauses and for all matter 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 not withstanding that it contains any provision which amends or has the effect of amending this constitution. (8)  The Provisions of article 239 B 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) of article 239 A” shall be deemed to be a reference to this article or article 239 AB, as the case may be

35.                       That Article 239AB says-“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 or article 239 AA or 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 239 AA.

36.                       That Article 239B says-“Power of administrator to promulgate Ordinances during recess of Legislature (1) If at any time, except when the Legislature of the Union territory of Pondicherry is in session, the administrator thereof is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that no such Ordinance shall be promulgated by the administrator except after obtaining instructions from the President in that behalf: Provided further that whenever the said legislature is dissolved, or its functioning from the President shall be deemed to be an Act of the Legislature of the Union territory which has been duly enacted after complying with the provisions in that behalf contained in any such law as is referred to in clause ( 1 ) of Article 239A, the administrator shall not promulgate any Ordinance during the period of such dissolution or suspension (2) An Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the Union territory which has been duly enacted after complying with the provisions in that behalf contained in any such law as is referred to in clause ( 1 ) of Article 239A, but every such Ordinance  (a) shall be laid before the Legislature of the Union territory and shall cease to operate at the expiration of six weeks from the reassembly of the legislature or if, before the expiration of that period, a resolution disapproving it is passed by the Legislature, upon the passing of the resolution; and (b) may be withdrawn at any time by the administrator after obtaining instructions from the President in that behalf  (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the Union territory made after complying with the provisions in that behalf contained in any such law as is referred to in clause ( 1 ) of Article 239A, it shall be void

37.                       That part XI related with relations between the Union and the States says at Article 245- “Extent of laws made by Parliament and by the Legislatures of States.- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.  (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 

38.                       That Article 246 says-“Subject-matter 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"). (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. 

39.                       That Article 256 says-“Obligation of States and the Union.- The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose” while Article 257 says-“Control of the Union over States in certain cases.- (1) The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.  (2) The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance: Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works. (3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State and Article 258 says-“Power of the Union to confer powers, etc., on States in certain cases.- (1) Notwithstanding anything in this Constitution, the President may, with the consent of the Governor of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends. (2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.”

40.                       That what the above constitutional provisions sum up to is that most part of the Union of India constitutes of States while the remaining part is the Union Territory. The States are governed primarily through the Constitutional provisions enumerated in Part VI for which there is a State Executive headed by the Governor of the State in whose name the entire executive acts of the State are conducted and who is aided and advised by the Council of Ministers headed by the Chief Minister. The States also have their separate/independent legislature which have the power to make laws as regards List II and List III of Schedule VIII of the Constitution. In contradiction there are Union Territories (UTs, for short) which shall be administered by the President through an administrator as stated in Article 239.

41.                       That Hon’ble Justice S M Sikri in the Constitutional Bench of this Hon’ble Court in Kesavananda Bharati Sripadagalvaru and Ors vs State Of Kerala And Anr (AIR 1973 SC 1461) stated in no uncertain terms-“ 316. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution;  (2) Republican and Democratic form of Government. (3) Secular character of the Constitution;  (4) Separation of powers between the Legislature, the executive and the judiciary;  (5) Federal character of the Constitution. 317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. 318. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.”

42.                       That the Hon’ble Justice Sikri again said-“ 620. The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated). 1. The supremacy of the Constitution.  2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation”

43.                       That this concept of Basic structure has since then become the fundamental edifice of the Indian legal and constitutional framework.

44.                       That in Kuldip Nayar vs Union Of India & Ors (AIR 2006 SC 3127) the concept of federalism was dealt with in great details by a Constitutional bench of this Hon’ble Court. It said-“There can be no quarrel with the proposition that Indian model is broadly based on federal form of governance. Answering the criticism of the tilt towards the Centre, Shri T.T. Krishnamachari, during debates in the Constituent Assembly on the Draft Constitution, had stated as follows: "Sir, I would like to go into a few fundamental objections because as I said it would not be right for us to leave these criticism uncontroverted. Let me take up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this country is concerned. 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."

45.                       That in this context, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had explained the position in the following words:"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 co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large 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." (emphasis supplied)

46.                       That in Kuldip Nayar (supra), this Hon’ble Court said-“The Constitution incorporates the concept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the State under Article 252 only with the consent of two or more States, with provision for adoption of such legislation by any other State; competence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 "in the national interest" and under Article 250 during "emergency"; vesting the President with the power under Article 258(1) to entrust a State Government, with consent of the Governor, functions in relation to matters to which executive power of the Union extends, notwithstanding anything contained in the Constitution; decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment; etc. In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964) [AIR 1965 SC 745 (Paragraph 39 at 762)], this Court ruled thus: "In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen's dominions (1). On the other hand, 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. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation (2). Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours."

47.                       That In S. R. Bommai & Ors. v. Union of India & Ors. [AIR 1994 SC 1918 : 1994 (3) SCC 1], a Constitution Bench comprising 9 Judges of this Court considered the nature of federalism under the Constitution of India where Hon’ble Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment observed as under: - "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 its boundaries 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 quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic 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."

48.                       That in paragraph 98 of S R Bommai (supra) , Hon’ble Justice Sawant, proceeded to observe as under: -"In this connection, we may also refer to what Dr Ambedkar had to say while answering the debate in the Constituent Assembly in the context of the very Articles 355, 356 and 357. He has emphasised there that notwithstanding the fact that there are many provisions in the Constitution whereunder the Centre has been given powers to override the States, our Constitution is a federal Constitution. It means that the States are sovereign in the field which is left to them. They have a plenary authority to make any law for the peace, order and good Government of the State.

49.                       That in Paragraph 106 of S R Bommai (supra), his following observations are relevant:-"Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else." (emphasis supplied)

50.                       That in ITC Ltd. v. Agricultural Produce Market Committee & Ors. [(2002) 9 SCC 232], this Hon’ble Court ruled thus: - "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 the federalism while also upholding the Central supremacy as contemplated by some of its articles”

51.                       That in Kuldip Nayar it was once again iterated-“Reference can also be made in this respect to Public Services Tribunal Bar Association v. State of U.P. & Anr. [2003 (4) SCC 104] and State of Andhra Pradesh and Ors. V. McDowell & Company & Ors. [1996(3) SCC 709]. The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution.”

52.                       That in I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors [(2007) 2 SCC 1], this Hon’ble Court once again  mentioned Bharati (supra)-“These amendments were challenged in Kesavananda Bharati's case. The decision in Kesavananda Bharati's case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath's case was overruled. The majority opinion held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid.”

53.                       That in State Of West Bengal & Ors vs The Committee For Protection Of Democratic rights((2010) 3 SCC 571), the Hon’ble Court said-“ 14.Bearing in mind the basis on which the correctness of the impugned direction is being questioned by the State of West Bengal, we shall first notice the scope and purport of Part XI of the Constitution. According to Article 1 of the Constitution, India is a `Union' of States, which means a Federation of States. Every federal system requires division of powers between the Union and State Governments, which in our Constitution is effected by Part XI thereof. While Articles 245 to 255 deal with distribution of legislative powers, the distribution of administrative powers is dealt with in Articles 256 to 261. Under the Constitution, there is a three-fold distribution of legislative powers between the Union and the States, made by the three Lists in the Seventh Schedule of the Constitution. While Article 245 confers the legislative powers upon the Union and the States, Article 246 provides for distribution of legislative powers between the Union and the States.

54.                       That thus in West Bengal (supra), the Hon’ble Court said-“The State Legislature 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 and it also has the power to make laws with respect to any matters enumerated in List III (Concurrent List). The exclusive power of the State Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to clause (1) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an Entry in List II, which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature

55.                       That in West Bengal (supra), this Hon’ble Court thus said-“ 25.In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. As observed in Raja Ram Pal Vs. Hon'ble Speaker, Lok Sabha & Ors.( (2007) 3 SCC 184) the Constitution is the suprema lex in this country. All organs of the State, including this Court and the High Courts, derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. Highlighting the fundamental features of a federal Constitution, in Special Reference No.1 (supra), the Constitution Bench (7-Judges) observed as follows: “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 Union.

56.                       That the conclusion of all the above orders of this Hon’ble Court is that federalism is a basic structure of the Indian Constitution and it cannot be amended or changed through any of the Constitutional amendments.

57.                       That, in contrast, in the case of Puduchery and Delhi, this basic structure has been disturbed and distorted, as shall be explained in the subsequent Paras.

58.                       That the first thing is that Indian federalism provides for a Union divided among various States.

59.                       That there is a definite separation of powers between the Union and the States, as enumerated in the above Para.

60.                       That the Union has its own Executive, Legislature and Judiciary while there are separate Executive, legislature and judiciary for the States.

61.                       That each of these organs of the Union and the State have well-defined structure, role and functioning.

62.                       That in addition to the States, there are certain areas known as the Union Territories (UTs)

63.                       That these UTs are one who are not part of any of the States enumerated in List 1 of the Schedule 1 and thus to which Part VI of the Constitution related with “the States” does not apply.

64.                       That UTs are one where the administration/executive power lies with the President unlike the States where the executive power lies with the Governor.

65.                       That UTs are one where the executive power of the President is used through the Administrator appointed by the President

66.                       That for the UTs, the laws are made solely by the Parliament of India unlike the State Assemblies which frame laws for State and concurrent list items.

67.                       That for the UTS, there is nothing like State list or concurrent list and all the laws for all possible subjects are made solely by the Parliament

68.                       That thus the status and position of the UTs, as defined in Article 1 and otherwise, is very clear and specific.

69.                       That again in India, there can only be a State and the UTs (one which are not among the States listed in Schedule I), other than the acquired territories, which seems to be a transitional position to be later placed among either the UT or the State.

70.                       That but against these clear constitutional provisions and demarcation, Articles 239A, 239AA and 239AB were inserted through the Constitution (Fourteenth Amendment) Act, 1962 and the Constitution (Seventy-fourth Amendment) Act, 1991 which have one by one introduced such features in the Constitution of India which go against the basic structure of the Indian Constitution and are hence ultra vires to the basic structure of the Constitution as promulgated in Keshvanand Bharat (supra) and later accepted as a well-settled and definite constitutional feature through innumerable number of pronouncements of this Hon’ble Court.

71.                       That the petitioners call these amendments and hence the Articles 239A, 239AA and 239AB as being ultra vires to the basic structure of Indian constitution because they create structures which is neither a State nor a UT ands go against the basic concept of federalism.  While the Constitution talks only of States as the primary unit of the Union, with a small area being placed among the UTs which possibly were found not fit to be governed through separate States and/or needed to be governed directly by the Union, these Articles 239A, 239AA and 239AB create such constitutional entities which are neither States nor UTs and are hence a structure completely unknown in the Indian constitution.

72.                       That again while federalism has been defined and accepted as the basic structure of the Indian constitution and Federalism is broadly stated to be a political concept in which a group of members are bound together by covenant (Latin: foedus, covenant) with a governing representative head and the term "federalism" is used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (such as states or provinces), based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation

73.                       That several definitions have emerged for the term 'federalism', by various scholars of the subject. However, all these definitions have one and the same interpretation. Federalism can be described as a system of government in which the indicators of social, political and economic development are pursued by a coordinated effort of both central and other incorporated units of government. Simply put, the pursuit of development by central and other integrated independent units of government. Even though this definitions contrast with other popular definitions of the term, the idea of the existence of a central as well as other equally independent units of government, is general to all definitions of the concept of federalism.

74.                       That some very popular definitions of federalism or federations by Scholars are considered below-

(A) Daniel Elazar defined federalism as "a system of political organization uniting separate states or other units in such a way as to allow each to remain a political entity. A federal system which differs from other methods of organizing states in being based on a contractual agreement by separate government to share power among themselves".  

(B) K.C Wheare; generally regarded as the Father of contemporary federal theories, defined federalism or federal government, in His famous book; Federal Government, as "the method of dividing power so that general and regional governments are each within a sphere co-ordinate and independent". In another work of His, he explained federalism further as "the delimited and co-ordinate division of government functions", which according to him implies that to the extent to which any system of government does not conform to this criterion, it has no claim on federalism.

(C) Federalism, according to Sam Oyovbaire is defined as "the interaction between conflicts, consensus and resources, which normally takes place in an arena-a value system which underpins the perception of these phenomenon by actors".

(D) Federalism, in the words of K.C Wheare is an appropriate form of government to offer to communities or states of distinct, differing nationalities that wish to form a common government and to behave as one people for some purposes, but wish to remain independent and, in particular, to retain their nationality in all other aspects. This portrays federalism as an effective political and constitutional design useful for managing complex governmental problems associated with ethnic and cultural diversity (e.g Nigeria).

(E) Forsyth Murray (1994:15), describes it as "State of States".

(F) Daniel Elazar (1987:12), sees a federation as being "self rule plus shared rule".

75.                       That coined from the Latin word 'foedus', meaning league, pact or covenant, federation refers to federal systems that are based on the idea of a permanent compact between political bodies that creates a new political entity, while no abolishing the original constituent units. A federal system may be regarded as a compromise form of unity which allows a balance between the need for union in some areas and the wish for diversity in others.

76.                       That  K.C Wheare; the famous proponent of the approach, defined federations in his book "Federal Government", in terms of constitutional law of provision and political relationships and institutions which arise from these provisions. By the federal principle, Wheare means the method of dividing power so that general and regional government are each within their jurisdiction coordinate and; (a) Division of power among other government (b) A written constitution showing this division of powers  (c) Coordinate supremacy of two order of the government, with regards to their respective function.

77.                       That Carl J. Fredrich, defined federalism as a process that seeks to develop a consciously flexible model of federalism. He further described it as "a union of groups united by common objectives but retaining their distinctive group character for other purposes". Federalism to Fredrich is a process of federalizing; that is, the process of achieving a union of groups which retain their respective identities, it follows that federalism may be operating on both the direction of integration or aggregation and differentiation or disaggregation.

78.                       In his leading work; "Federalism: origin, operation and significance", William Riker, defined the concept by saying "a constitution is federal if it provides for two levels of government, each of which has at least one area of action in which it is autonomous; taking final decision and enjoying some entrenched protection of its autonomy within its area of functional jurisdiction".

79.                       That Preston King has provided four essential features for federalism- (a) Its representation is preponderantly territorial, (b) This territorial representation is characteristically secured on at least two sub-national levels which he refers to as 'local' and 'regional' government, (c) The regional units are incorporated electorally or perhaps otherwise, into the decision procedure of the national centre (d) The incorporation of the regions into the decision procedure of the centre can be altered only by extraordinary constitutional measures, not, for example, by resort to a simple majority vote of the national legislature or by the autonomous decision of the national executive.

80.                       That through all these discussions, certain factors can be deduced as the principles of federalism; such as; Constitutionalism, Distribution and separation of power, Checks and balances, Limited government, Legalism, Multi-culturalism, Political pluralism, Non-centralization subsidiarity,  Legalism etc

81.                       That but against these essential features, in the case of UTs, Article 239A, 239AA and 239AB introduce such features that make them neither Union territory or State.

82.                       That while UTs are by definition regions directly governed by the Union, these constitutional amendments introduced legislatures in the UTs of Puducherry and Delhi along with Council of Ministers. Thus as per Article 239A, a body to function as a Legislature for the Union territory of Puducherry and a Council of Ministers for it. Thus Puducherry has both the Union executive and the Union Parliament as its executive and the legislature, it also gets a separate executive, in the shape of Council of Ministers and a legislature for this UT, which is inherently contradictory because through this constitutional amendment, two executives and two legislatures operate simultaneously in the UT of Puducherry.

83.                       That this is against the basic concept of federalism because in federalism, there is a definite separation of power between the federal body and the local units but in this particular case, the separation of power gets dissolved, while at the same time a dichotomy and inherent contradiction emerges where Puducherry has two executives and two legislatures.

84.                       That even more difficult and contradictory is the position of Delhi which Article 239AA calls the National Capital Territory of Delhi. Here this Article provides a Legislative Assembly where the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. This Article even says that 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. 

85.                       That as per Clause (3)(a) of Article 239AA,  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 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18.

86.                       That clause (4) of Article 239AA says that there shall be a Council of Ministers consisting of not more than ten percent, 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 to 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.

87.                       That but there is also a proviso which says 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.

88.                       That clause (5) says that 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 but as per clause (6) the Council of Ministers shall be collectively responsible to the Legislative Assembly.

89.                       That similarly Article 239AB provides that 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, he may order suspend the operation of any provision or article 239 AA or all or any of the provisions of any law made in pursuance of that article for such period

90.                       That thus each of the above provisions is full of contradictions and incongruities and inconsistencies, in such a manner that they are abjectly against the basic structure of the Constitution.

91.                       That in the basic structure of federalism, there is devolution of power between the Union and the State. This does not and shall not apply in the case of UTs because as the name itself makes it amply clear, UTs are the territories governed directly by the Union where the power has not been devolved separately to the States.

92.                       That but in the case of Puducherry and Delhi, while the executive and legislative power remains with the Union, it simultaneously has also been provided to the UT council of ministers and the UT legislature.

93.                       That thus there are simultaneously two executives for the same territorial region of Puducherry without very definite division of authority and functioning. The same is true of the legislature because both the Parliament and the UT legislature are simultaneously operating in this UT, with non clarity of role and functioning. The same is true for Delhi as well

94.                       That hence in Delhi what happens is that there is a Chief Minister who is not appointed by the Governor but by the President. The scheme of things in general in Indian constitution is such that the President appoints the Prime Minister while the Governor, appointed by the President, in turn appoints the Chief Minister. This is the federal structure India has adopted. In this federal structure the President and the Governor have separate and well defined roles. In the case of Delhi, this basic structure is being completely violated because it is not the Governor but the President who is directly appointing the Chief Minister.

95.                       That but this Chief Minister is not there to aid and advise the President who appointed him but the Lieutenant Governor. Hence, a very strange and peculiar situation emerges where the Chief Minister is appointed by one person while he is aiding and advising another person.

96.                       That as if this is not enough, 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 to take such action as he deems necessary. This makes it a triangle between the President, the Lieutenant Governor and the Council of Ministers, which goes directly against the basic concept of Federalism

97.                       That again this Council of Ministers shall be collectively responsible to the Legislative Assembly, which introduces a new factor in the entire complexity.

98.                       That the seats in such Assembly shall be filled by members chosen by direct election. Thus these Member of Legislative Assemblies (MLAs, for short) are as much like the MLAs of any other State. The provisions of articles 324 to 327 and 329 shall also apply in this case as they apply, in relation to a State. But when it comes to articles 326 and 329, here reference to “appropriate Legislature” shall be deemed to be a reference to Parliament. This is a complexity not found in any other Stare except that in the UT of Delhi, which makes it a strange creature which is neither a State nor a UT and is definitely against the basic concept of federalism.

99.                       That again this 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 except matters with respect to Entries 1,2, and 18 of the State List and Entries 44, 65 and 66 of that List in so far as they relate to the said Entries 1,2,and 18.

100.                  That these entries are as follows- 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, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.  44. Treasure trove. 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

101.                  That it can be easily seen that some of these entries, particularly entry No 1, 2 and 18 are such that if they are taken away no government is able to function well. If a State/UT government  does not have right over public order and police, can it be expected to perform its assigned job in any manner? Is it not against the basic concept of federalism? Does it not take away the cardinal principle of federalism that there are definite and well-assigned devolution of power taking into account all the functional requirements.

102.                  That similarly if right over land and land tenures are not assigned to the State legislature and the State executive, or to the UT legislature or the UT executive, how can it be expected to function, land being one of the most basic and primary units of functioning?

103.                  That it can thus be seen that taking away items like Police, public order and land and asking a Chief Minister and his council to function is like telling a horse with all its legs tied to run at the required speed.

104.                  That it can also be easily seen that any legislature that does not have the authority to frame rules on Police, public order and land can never be in a position to formulate laws in its required totality.

105.                  That every other provision of Article 239AA are such that they make it almost a State but a truncated and a partial one.

106.                  That thus this Article talks of disagreement between the Union legislature and the UT legislature concluding that if the legislature 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. This is a feature that holds true for States and not for the UTs.

107.                  That as if this is not enough, even some form of President’s Rule has also been initiated for the Delhi UT where Article 239AB says that 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 or article 239 AA. This is almost like Article 356 and the same word President’s Rule is being used by one and all in common parlance.

108.                  That thus very strangely President’s rule gets introduced in a region which any way remains in President’s rule all the time.

109.                  That summing it up, one can see the UT of Delhi and Puducherry practically functioning as States but not being State in reality but being a UT.

110.                  That this also means that these two are de facto a State while de jure they are UTs.

111.                  That this dichotomy has its adverse effect on each and every constitutional authority.

112.                  That thus the President who normally appoints the Governor who in turn appoints the CM is directly appointing both the Lt Governor and the CM, which goes against the basic dictate of federalism.

113.                  That again the UT of Delhi and Puducherry have two executives at the same time. The President on one hand is there for these UTs and he is being aided and advised by the PM with his council of Ministers, while simultaneously there is the Lt Governor being aided and advised by his CM and the council of Ministers.

114.                  That similarly the UT of Delhi and Puducherry are having the Parliament making laws for them and the UT legislature also doing the same.

115.                  That all these confusions, non-clarity, dichotomy etc are arising solely because of the confused state of mind while bringing these constitutional amendments which leave Delhi and Puducherry neither as a State nor as a UT and which play with the basic features of federalism.

116.                  That such a situation can be removed only when the dichotomy ends and the two UTs of Delhi and Puducherry get placed in the list of States instead of being called UTs or to remove the semblance of State so as to make them UTs in letter and spirit once again.

117.                  That thus the two possible course of actions are- (a) Bring Delhi and Puducherry in the list of State (b) Keep Delhi and Puducherry in the list of UTs but remove all such features which are giving it a semblance of being a State and hence creating all kinds of confusions and are playing with the basic structure of federalism

118.                  That to the petitioners it seems that a better and more logical option would be to go for the first option because these UTs have already seen these features for long in such a manner that the people of these UTs have started believing that they are not exactly UTs but partial States who might get “full statehood” in near future

119.                  That thus bringing them back to complete UT features might act detrimental to the psyche of the people of these places and hence the petitioners pray that since the presently prevailing structure is against the basic feature/basic structure of the Constitution and hence needs to be immediately removed, so out of the two options it would be better that the first option of detaching them from the list of UTs and bringing them in the list of States should be a preferred option.

120.                  That before ending the petitioners would humbly beg to present the following substantial questions of constitutional law that forced them to bring this issue before this Hon’ble Court-

(A) Whether can be a State legislature in Union Territories?

(B)           Whether there can be Chief Minister and council of ministers in a Union Territory?

(C)            Whether President can be the appointing authority of the Chief Minister and the council of ministers?

(D)           Whether a legislature in Union Territory can be given a power to legislate from the law from state list and concurrent list?

(E)            Whether there can be president rule in a Union Territory already directly under President rule?

(F)            Can a Chief Minister be appointed by the President and be aiding and advising another person, viz., the Lieutenant Governor?

(G)           Can two executives coexist simultaneously for a territory in the way they presently exist for the UTs of Delhi and Puducherry?

(H)           Can two legislatures coexist simultaneously for a territory in the way they presently exist for the UTs of Delhi and Puducherry?

121.                  That it is these legal and constitutional questions that have forced the petitioners to bring this matter before this highest seat of justice in the Nation.

GROUNDS

A.    Because Federalism is the basic structure of Indian Constitution as enunciated in Keshavanand Bharati (supra) and as reiterated in umpteen number of cases by this Hon’ble Court

B.    Because federalism means a well-defined separation between the central unit (Union, in the case of India) and the local units (the States)

C.     Because in addition to the States, some territories have been classified as Union Territory by the Indian Constitution

D.    Because these Union Territories are governed directly by the Union

E.     Because other than these States and Union Territories, there are no other permissible structures in the Indian Constitution, except the acquired territories

F.     Because the current features of Article 239A, 239AA and 239AB make Delhi and Puducherry  neither a State nor a Union Territory

G.    Because the present features of Articles 239A, 239AA and 239AB create a situation where a large number of complexities and inherent contradictions arise which go against the basic structure of federalism

H.    Because presently Delhi and Puducherry are de facto States but de jure Union Territory and this dichotomy and anomaly is creating a lot of confusion and is also proving detrimental to the functioning of these Union Territories

I.       Because such inherent contradictions and anomalies are also proving adverse against the people of these places

J.       Because these Articles have raised a very large number of legal questions of constitutional nature that need to be clarified immediately

K.    Because to the petitioners’ legal knowledge as regards the basic concept of federalism and the way power, functioning and authority were divided between the Union and the State in the original Constitution, there cannot be a State legislature in Union Territories

L.     Because similarly as far as the petitioners can conceive there cannot be Chief Minister and council of ministers in a Union Territory

M.  Because President cannot be the appointing authority of the Chief Minister and the council of ministers

N.    Because a legislature in Union Territory cannot be given a power to legislate from the law from state list and concurrent list

O.    Because there cannot be president rule in a Union Territory already directly under President rule

P.     Because a Chief Minister cannot be appointed by the President and be aiding and advising another person, viz., the Lieutenant Governor

Q.    Because two executives cannot coexist simultaneously for a territory in the way they presently exist for the UTs of Delhi and Puducherry, as being opposed to the basic structure of Indian Constitution and the concept of federalism

R.    Because two legislatures cannot similarly coexist simultaneously for a territory in the way they presently exist for the UTs of Delhi and Puducherry

Prayer

It is therefore, most respectfully, prayed that this Hon’ble Court may graciously be please to-

(a) Issue a writ of mandamus where by directing the respondent and all its instrumentalities not to give effect to provisions of Article 239A, 239AA and 239AB of the Constitution of India and to declare the same as being violative and ultra vires of the basic structure of the constitution

(b)Accordingly to issue a writ of certiorari quashing the placing of Delhi at Serial No 1and Puducherry at Serial No 6 in the list II , Union Territory, of Schedule I of the Constitution of India and to issue an appropriate writ order or direction placing Delhi and Puducherry in list I, The States, of Schedule 1

(c) Any other appropriate relief that this Hon’ble Court may deem fit in the interest of justice

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

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