On December 23, the Delhi government ordered an enquiry into alleged irregularities in the Delhi & District Cricket Association. However, the state's lieutenant governor, Najeeb Jung, declared the Commission of Inquiry illegal. He reasoned that only a state government can order an enquiry under the Commissions of Inquiry Act, 1952, and that the Delhi government is not a state government, but a Union Territory.

In an article on Scroll.in, retired Supreme Court judge Markandey Katju said that Jung’s position on the matter was untenable. He argued that Delhi is certainly a state as contemplated by the Commissions of Inquiry Act, 1952, adding that there should be a purposive, not literal interpretaton, of the word "state" in the law.

In a series of email exchanges with Katju, former Union law minister and senior lawyer Shanti Bhushan offered a counterview on the matter, arguing that the Delhi government is not empowered to order a Commission of Inquiry.

The correspondence between the two legal experts is reproduced below.

Shanti Bhushan: Justice Katju is totally wrong.

Delhi being the capital of India, having the embassies of the entire world located therein, the President of India, the Parliament of India, the Prime Minister, the entire cabinet, etc. it could not belong to the people of Delhi only. It belongs to the people of the whole country. It is the government elected by the people of the entire country who have to administer Delhi.

This is the reason for enacting Article 239 AA (7), empowering  Parliament to enact a law for supplementing the provisions of Part VIII which could even go to the extent of amending that Part . In fact, this power was exercised by the Parliament by enacting the Administration of the National Territory Act.

A look at the provisions of this Act would show that neither the Delhi government nor even the Delhi Legislative Assembly have been given any real powers. Their function even on subjects not excluded from their jurisdiction is only to assist the central government through its representative, the Lt Governor. All powers are rightly with the central government alone. Any exercise of legislative power or executive power requires the approval of the Lt Governor.

It may hurt the ego of Arvind Kejriwal, but the constitutional position is that he is only a chief minister in name, and is effectively only a subordinate officer of the Lt Governor. His role as chief minister is only ceremonial.

Markandey Katju: So according to you, Delhi voters wasted their time and money voting for a ceremonial body, and you made a substantial financial contribution also to this ceremonial body.

By your logic, Delhiites were cheated and deceived into thinking that they were electing a legislative (not a merely administrative) body, and the only authority in Delhi is the unelected chamcha of the central government, Najeeb Jung, while elected functionaries are only flowerpots.

I find your logic totally unacceptable in a democratic country.

Except for land, police and public order, the Delhi legislature can legislate, and the Delhi Government. can deal with, all matters in the State and Concurrent List. But how can they legislate and deal with them if they cannot even inquire into them? Sport is a matter within entry 33 of the State List, and inquiries are a matter covered by entry 45 of the Concurrent List.

Hence a purposive, and not a literal interpretation, has to be given to the word “state” in section 3 of the Commissions of Inquiry Act, 1952. Several decisions of the Indian Supreme Court, as well as English Courts, have adopted the purposive approach.

You write:
"A look at the provisions of this Act would show that neither the Delhi government nor even the Delhi Legislative Assembly have been given any real powers. Their function even on subjects not excluded from their jurisdiction is only to assist the Central Government through its representative, the Lt Governor. All powers are rightly with the Central Governmentt alone."

So according to you, the Delhi chief minister, other Delhi ministers, and MLAs are only civil servants who are subordinate to the central government and their job is only to assist the central government. With respect, I find this a strange logic. If your statement is accepted, Article 239AA becomes redundant, and Delhi reverts to becoming a purely administrative unit.

Your reference to Article 239AA (7) is totally misplaced. That provision reads:
"(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. "

A perusal of the above shows that it only empowers Parliament to make supplementary, incidental or consequential laws. It does not derogate from the legislative powers of the Delhi Legislature on matters on which it is competent to legislate.

I may mention that by virtue of Articles 249 and 250 of the Constitution in some situations, Parliament can legislate on matters covered by the state list.

Shanti Bhushan: By your own logic then, the people of India made a grave mistake in electing the Modi government. Even if the locally elected government has to assist a nationally elected government, what is the harm? Perhaps you seem to agree with Arvind Kejriwal that the only function of the Delhi government is only to search for issues to fight the central government and abuse the Prime Minister by calling him a psychopath. If the local government does any good work, do you think the central government would obstruct it?

I think I know Arvind Kejriwal better than you do. Please tell me what good things he has done for Delhi during the last ten months. Why did he handpick a person who was already being investigated for corruption and appoint to the crucial post of special secretary to the Chief Minister? Are you aware that all the 932 auto permits granted  by the Kejriwal government had to pay bribes of Rs 15,000 or Rs 20,000 each, and when this fact became public all the permits had to be cancelled? Several contracts have been granted by this government through secretary Rajendra Kumar for many crores, each without any tenders. All of them are bound to be for huge bribes.

This Delhi government is totally steeped in corruption. You should demand an enquiry in their corruption. Please send me a list of any good things done by this governmentt during the last ten months. Do you find better traffic, cleaner roads, better hospitals or schools, or any improvement in the environment or in any other respect?

At least I do not find any difference. Arvind Kejriwal has been a huge disappointment, and I really feel sorry to have promoted him aggressively. Even Anna (Hazare) is quite disappointed. The only thing Kejriwal has done is to increase the publicity budget from Rs 20 crore to Rs 500 crore, which is being used only to publicise Arvind alone. Before the elections, he promised that his ministers and MLAs would only take half of the existing salaries, but they have now increased it by four times. He made 70 promises and has not fulfilled even one of them. He has expelled all honest people from the party. I shall be awaiting your reply indicating any good things that he has done for Delhi.

Markandey Katju: With respect, the last post of yours was totally emotional, and not legal or rational at all.

When I was a very junior lawyer in Allahabad High Court in 1971 or 1972, I heard you arguing against Pt. Kanhaiyalal Mishra, SC Khare, Shyam Nath Kacker, Jagdish Swarup and other top lawyers of the Allahabad High Court, and deliver brilliant logical arguments..I also heard you arguing for Raj Narain in the historic case against Mrs Indira Gandhi.

What has happened now? In your last email there was not a single cool, rational argument, but only vituperations and invectives against Arvind Kejriwal. This was not expected of you.

Shanti Bhushan: If you carefully read and consider the following, you will yourself reach the conclusion that the Delhi government does not have the power to constitute a commission of enquiry:

* General Clauses Act: Definition of state government in a Union Territory.
* Constitution Art 239, 239 AA, 239 B
* The Govt of National Capital Territory Act.1991 Sec 41 to Sec 45
* Rules 19(5), 25(a), 45, 46, 49, 50, 51, 55, 56, 57
* Commission of Enquiry Act, Section 3

When I consider a legal question, I do so without any prejudiced mind. I have had serious differences with the Bharatiya Janata Party, particularly about their attitude towards Muslims, but yet I do not condone any baseless charge without an iota of evidence even against their leaders.

Arvind Kejriwal had no business to say that Arun Jaitley was the most corrupt minister in the Modi government, without any evidence of corruption against a person in public life for 40 years, who has an unblemished record after spending 19 months in jail during the Emergency, and that too without any evidence of corruption against him. At the most, one could allege that he might have overlooked corruption of some officers when he was President (of the DDCA). A similar charge was levelled Against Prime Minister Manmohan Singh (in the 2G scam).

Markandey Katju: I have read all the statutory provisions you mentioned, but I am afraid that you are relying on the literal rule of interpretation while interpreting the word “state” in section 3 of the Commissions of Inquiry Act, while I am relying on the principle of purposive construction, which is indeed the modern approach, as held in several decisions of British and American Courts, as well as of the Indian Supreme Court.

In fact, Heydon's mischief rule of interpretation, laid down in Heydon's case of 1584, was a kind of purposive rule, directing that the court must adopt that construction which “shall suppress the mischief, and advance the remedy”. The rule was explained by our Supreme Court in Bengal Immunity Co. vs. State of Bihar, AIR 1955 S.C.661 ( vide judgment of S.R.Das, J.).

In the present context, it seems prima facie from the evidence Kirti Azad produced in his press conference and the Wikileaks4India videos, statements of Bishen Singh Bedi, etc that there was massive corruption in DDCA while Jaitley was its President. Should not this be inquired into so that the mischief can be suppressed?

Surely the central government will not investigate it. It would be strange to say that while the Delhi Legislature and Delhi government can legislate and deal with the topic of sports (vide entry 33 of the State List in the 7th Schedule to our Constitution), and enquiries can be held by them (vide entry 45 of the concurrent list), an inquiry cannot be held by the Delhi government in regard to an alleged massive scam relating to cricket in Delhi. How can a body legislate or deal with a matter if it cannot even inquire into it?

In this connection, it may be mentioned that, as pointed out by Lord Denning in Notham v. Bamet Council, (1978) 1 WLR 220. the literal interpretation is now completely out of date and has been replaced by the purposive approach referred to by Lord Diplock in Kommins Ballrooms Co. v. Zenith investments Ltd., (1971) AC 850 (881). vide Lord Denning's The Discipline of Law. Chapter II.

In Hindustan Lever Ltd. v. Ashok Vishnu Kate. 1995 (6) SCC 326. the Supreme Court said :
"Francis Bennton in his Statutory Interpretation Second Edn. has dealt with the Functional Construction Rule in Part XV of his book. The nature of purposive construction is dealt with in Part XX at page 659 thus:

A purposive construction of an enactment is one which gives effect to the legislative purpose by:
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or,

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."

At p. 661 of the same book, the author has considered the topic of "Purposive Construction" in contrast with literal construction. The learned author has observed as under:
"Contrast with literal construction - Although the term “purposive construction” is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975 : “If one looks back to the actual decisions of the [House of Lords) on questions of statutory construction over the last 30 years, one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions”. The matter was summed up by Lord Diplock in this way:

...I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it."

The above decisions thus clearly show that in England as well as in our country also, now the purposive approach is being preferred to the literal approach in statutory construction.

The US Supreme Court, too, has often relied on purposive construction, vide its decisions, in Miranda vs Arizona, Griswold vs. Connecticut, Roe vs. Wade, etc. as well its decisions greatly expanding the scope of the commerce clause in Article 1 section 8 of the US Constitution.

Take another example. Article 1 section 8 in the US Constitution states that Congress (the US Parliament) can raise armies and navies. There is no mention of an Air Force there, obviously because there were no aircraft in 1791 when the U.S. Constitution was promulgated. The first aircraft was invented by the Wright brothers in 1903.

However, today’s reality is that a modern army cannot fight without air cover. Amendment to the US Constitution is a very arduous and lengthy procedure because it requires two-third majority of both Houses of Congress and ratification by three-fourth of the States. By the time this is done, the enemy may invade and occupy the country. Hence a purposive, and not literal, interpretation has to be given to the words “Armies and Navies”, and they must be interpreted to mean all armed forces necessary for the security of the country (which would include an Air Force also).

As regards the second part of your email, I never said that you had a prejudiced mind, and I am not going into the allegations Kejriwal has made against Jaitley. I was only examining a legal and Constitutional issue. You are much senior to me, and I have always held you in high respect since our Allahabad days. In fact someone made a personal accusation against you once in a comment on Facebook, and I immediately rebuffed him. The comment and my reply are given below:
Justice Katju,  Mr Bhushan is defending BJP like a defence counsel in open n shut case. He cannot swallow his defeat of not becoming CM/ PM, ego makes even an intellectual blind.

I replied:
I would not like to make personal comments about Mr. Shanti Bhushan. He is very much senior to me. He was Advocate General of UP in 1969, while I started law practice in Allahabad High Court in 1971. I have known him for about 45 years.

Shanti Bhushan: The General Clauses A expressly provides that "state government shall mean in a state the governor, and in a Union territory the central govt", Can Justice Katju have any doubt about Delhi being a Union Territory. Is it not crystal clear that in Delhi, the central government alone can constitute an enquiry commission?

Markandey Katju: Section 3 of the General Clauses Act defines state as follows :
" (58) “State” —

(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory;"

I have got this from the net. Please confirm whether this is correct. State has been defined to include a Union territory.

Moreover, a purposive interpretation should be given. If a government cannot even inquire into a matter, how can it legislate on it?