Summary of Issue 2

Whether the Union Territory shall not be considered a state for ratification of the
amendment.
Article 368(2) of the Indian Constitution deals with the ratification of constitutional
amendments by the states. It stipulates that if an amendment affects the powers or
representation of the states, it requires ratification by the legislatures of at least half of the
states.
However, this provision must explicitly address the inclusion of Union Territories (UTs) in the
ratification process, which needs to be present thereto. It's important to understand that
historically, Union Territories have not been treated as states for Article 368(2). This is due
to several reasons, including the unique status of Union Territories as distinct from full-
fledged states.
Article 2 of the Indian Constitution gives the President the authority to admit new territories
into the Union or establish new states, which implies that Union Territories should be
treated on par with states. However, in practice, many Union Territories have been kept as
distinct autonomous areas with varying levels of legislative power. The legislative intent
behind this separation was to maintain a clear distinction between states and Union
Territories and to prevent undue concentration of power.
Union Territories are characterized by their direct administrative connection with the
Central Government. Compared to states, most Union Territories need full-fledged
legislative assemblies with the exact extent of legislative authority. Administrators
appointed by the President govern them.
Treating Union Territories as states for constitutional amendment ratification under Article
368(2) would have significant implications. It could give the Central Government greater
leverage in the amendment process, as many laws are passed based on majority support.
Given the distinct nature and administrative control of Union Territories, their inclusion in
the ratification process could alter the dynamics of constitutional amendments and
centralize decision-making power. Henceforth the Union territory of “Vedapuri” and “NCT of
Indraprastha” should not be considered as state in any manner.

Issue 2
2.1 Whether Union Territory of “Vedapuri” and “NCT of Indraprastha” are states.
The discourse surrounding the Union territories of “Vedapuri” and “NCT of Indraprastha”
classification as "States" to ratify constitutional amendments finds itself balanced on a
fulcrum that supports an argument against this recognition. While the Constitutional
(Seventieth Amendment) Act, 1992, and the nuanced provisions of Article 239AA may
indicate a move towards parity, it is imperative to recognize that the very essence of Union
territories, as envisioned by the framers of the Constitution, deviates from the attributes
typically ascribed to "States."
The Constitutional (Seventieth Amendment) Act, 1992, while acknowledging the need for
representation in the Presidential election, does not conclusively alter the fundamental
character of Union territories. Their origin lies in an administrative approach that
differentiates them from States, a distinction rooted in the deliberations of the Constituent
Assembly. The parliamentary debate on the Indian Constitution resonates with this
understanding. Members of the Constituent Assembly, cognizant of the unique
administrative challenges posed by these territories, deliberately opted for a distinct
constitutional arrangement, establishing their classification as Union territories rather than
States. This underlying intent must be noticed in the contemporary debate.
Article 239AA itself, despite conferring legislative powers to the Legislative Assembly of the
National Capital Territory, articulates a comprehensive framework that simultaneously
recognizes their administrative relationship with the Central government. The caveat
embedded within this Article, which empowers Parliament to make laws for the territory,
reaffirms the legislative authority of the Central government over Union territories. This
provision echoes the sentiment of the parliamentary debate on the Constitution, where
discussions acknowledged the necessity for a clear demarcation between Union territories
and States in governance. Article 239A is enabling. It enables Parliament to enact a law for
the Union territory to create a legislature or a Council of Ministers or both. In creating a
legislature, Parliament is left free to determine whether the legislative body should be
entirely elected or consist of a certain number of nominated legislators. Parliament, in its
legislative power, may create a legislature or a Council of Ministers. In the first place,
whether to do so is left to its discretion. Whether one or both of such bodies should be
created is also left to the legislative authority of Parliament. If it decides to enact a law,
Parliament is empowered to specify the constitutional powers and functions of the
legislature and of the Council of 25 Ministers. While the Constitution provides an enabling
provision, the setting up of a legislature, the creation of a Council of Ministers, and the
ambit of their authority are to be governed by an ordinary law to be enacted by Parliament.
Such a law, clause 2 clarifies, would not constitute an amendment of the Constitution under
Article 368 even if it contained provisions that amend or have the effect of amending the
Constitution. Creating democratic institutions for governing Union territories under Article
239A was left to the legislative will of Parliament.
A cornerstone of this argument against considering Union territories as "States" is the
historical backdrop that informed the evolution of Union territories within the Indian polity.
The framers of the Constitution were acutely conscious of the diverse nature of the Indian
subcontinent, prompting the creation of a category distinct from States. This distinction
permeated the Constituent Assembly debates, wherein the delineation between the two
entities was expounded upon, underscoring the inherent dissimilarity in their roles,
functions, and administrative frameworks.
Furthermore, the case of L. Chandra Kumar v. Union of India (1997) underscores the
importance of recognizing Union territories as a separate constitutional category. The
Supreme Court, in this case, held that Union territories are governed by the President
through the Lieutenant Governor or Administrator and do not enjoy the same autonomy
and powers as States. This legal precedent solidifies the distinction between the two entities
within the constitutional framework., while the Constitutional (Seventieth Amendment) Act,
1992, might seem to point toward a convergence of Union territories and States in certain
respects, the historical context, parliamentary debates, constitutional provisions, and legal
precedents collectively bolster the argument that Union territories should not be considered
as "States" to ratify constitutional amendments. The framers of the Constitution envisioned
Union territories as entities with distinct administrative requirements, necessitating a
conscious delineation between them and States within the constitutional architecture.

2.2 Making Ut States will defeat the purpose of the federal structure of the Constitution
The contemplation of elevating Union territories to the status of "States" to ratify
constitutional amendments necessitates a comprehensive assessment of the repercussions
on the federal structure of the Indian Constitution and the inviolable Basic Structure
Doctrine. Such a transformation, while seemingly aligned with the principle of equality,
poses a substantive challenge to the very essence of India's federal framework and could
potentially infringe upon the foundational tenets safeguarded by landmark cases such as
Kesavananda Bharati vs State of Kerala, I. C Golaknath, and Minerva Mills case.
The Indian Constitution is inherently structured on federalism, balancing the powers vested
in the Centre and those granted to the States. This equilibrium forms the crux of India's
governance, delineating the spheres of authority and responsibility between the two levels
of government. Transforming Union territories into full-fledged States risks disrupting this
equilibrium, as it may dilute the States' rights and autonomy in an attempt to homogenize
governance.
The precedent set by landmark cases reinforces the significance of this constitutional
dichotomy. In the Golaknath case (1967), the Supreme Court upheld the sanctity of the
Constitution's basic structure, stressing the importance of preserving the federal structure.
Subsequently, in the Kesavananda Bharati case (1973), the Court established that amending
powers cannot be used to alter the Constitution's basic structure. Elevating Union territories
to the status of States for ratification purposes might inadvertently alter this balance and
contravene these principles, undermining the federal foundation of the Constitution.
Democracy has been held, by a Constitution Bench of this Court in Kihoto Hollohan v
Zachillhu, to be a part of the basic structure of our Constitution. The insertion of Article
239AA by exercising the constituent power is an instance of an amendment elevating a
democratic form of governance to a constitutional status for the National Capital Territory.
In interpreting such exercises of the constituent power which fortify the basic structure, the
meaning of the constitutional text must be guided by the intent 
 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of India,
(1994) underlying such exercises of the constituent power. A nine-judge Bench of this Court
in I.R. Coelho v State of Tamil Nadu had held thus: “The Constitution is a living document.
The constitutional provisions have to be construed regarding the march of time and the
development of law. It is, therefore, necessary that while construing the doctrine of basic
structure due regard be had to various decisions which led to expansion and development
of the law. Constitutionalism is now a legal principle which requires control over the
exercise of Governmental power to ensure that it does not destroy the democratic
principles upon which it is based. These democratic principles include the protection of
fundamental rights. The principle of constitutionalism advocates a check and balance model
of the separation of powers, it requires a diffusion of powers, necessitating different
independent centers of decision making. The principle of constitutionalism advocates a
check and balance model of the separation of powers, it requires a diffusion of powers,
necessitating different independent centres of decision making.”
The Basic Structure Doctrine, enunciated in the Kesavananda Bharati case, enshrines
certain immutable principles and is integral to the Constitution's identity. This doctrine
serves as a bulwark against any changes that could jeopardize the essence of the
Constitution. Altering the administrative classification of Union territories disregards the
framers' intention and could disturb the delicate equilibrium between the Centre and
States, infringing upon the Constitution's basic structure.
Moreover, the Constitution has specifically established Union territories as separate entities,
distinct from States, under Article 1. Elevating them to the status of States might necessitate
amendments to this foundational provision, which could run counter to the Golaknath and
Kesavananda Bharati verdicts, given their implications for the basic structure of the
Constitution.
It is further contended that Parliamentary democracy having been adopted by our
Constitution, this Court may inter pret Article 239AA so that Constitutional design and Con
constitutional objectives be fulfilled. It submitted that judgments of this Court in
Rustom Cavasjee Cooper Vs. Union of India, (1970)1 SCC 248: and judgment of this Court in
Maneka Gandhi Vs. Union of In dia and Another, (1978)1 SCC 248: reflect 49 that principles
of less textual and more purposive method of Constitutional interpretation which has been
adopted in these cases. Judgment of this Court in K.C. Vasanth Kumar and Another Vs.
State of Karnataka, 1985 Supp. SCC 714 has been relied, wherein this Court laid down follow
ing:¬

“……………………….It is not enough to exhibit a Marshallian awareness that we are

expounding a Constitution; we must also remember that we are expounding a
Constitution born in the mid¬twentieth century, but of an anti-imperialist struggle,
influenced by constitutional instruments, events and revolutions elsewhere, in search
of a better world, and wedded to the idea of justice, economic, so cial and political to all.
Such a Constitution must be given a generous interpretation so as to give all its citizens the
full measure of justice promised by it. The exposi tors of the Constitution are to
concern themselves less with mere words and arrangement of words than with the
philosophy and the pervading “spirit and sense” of the Constitution, so elaborately
exposed for our guidance in the Directive Principles of State Policy and other
provisions of the Constitution…………………………….”
Shri H.M. Seervai, in his “A Critical Commentary” on Constitutional Law of India, on
interpretation of the Constitution, states following in Paragraph 2.1 and 2.2:¬ 50 “2.1 A
Court of Law must gather the spirit of the Constitution from the language used, and what
one may believe to be the spirit of the Constitution cannot prevail if not sup ported by the
language, which therefore must be construed according to well-established rules of
interpretation uninfluenced by an assumed spirit of the Constitution. Where the
Constitution has not limited, either in terms or by necessary implication, the gen eral powers
conferred upon the Legislature, the Court cannot limit them upon any notion of the spirit of
the Constitution. Well established rules of interpretation require that the meaning and
intention of the framers of a Constitution – be it a Parliament or a Constituent Assembly –
must be ascertained from the language of that Constitution itself; with the motives of
those who framed it, the Court has no concern. But, as Higgins J. observed – “in
words that have not withered or grown sterile with years”¬: “although we are to
interpret the words of the constitution on the same principles of interpretation as we ap ply
to any ordinary law, these very principles of interpretation compel us to take into
account the nature and scope of the Act we are interpreting, to remember that it is a
Constitution, a mechanism under which laws are to be made, and not a mere Act
which de clares what the law is to be.”
Justice G.P. Singh in “Principles of Statutory Interpretation”, 14th Edition, while discussing
interpretation of Constitution stated the following
“The Constitution is a living organic thing and must be applied to meet the current
needs and requirements, and is not bound to be interpreted by reference to the original
understanding of the institutional economy as debated in Parliament. Accordingly, the
Supreme Court held that the content and meaning of Article 149, which provides the
duties and powers of the CAG, will vary from age to age and, given that spectrum is an
important natural resource, CAG has the power to examine the accounts of telecom
service providers under Article 149. It cannot, however, be said that the rule of literal
construction or the golden legislation of construction has no application to the interpretation
of the Constitution. So when the language is plain and specific and the literal
construction produces no difficulty to the constitutional heme, the same has to be
resorted to. Similarly, where the Constitution has prescribed a method for doing a thing and
has left no ‘abeyance’ or gap, if the court by a strained construction pre scribes
another method for doing that thing, the decision will become open to serious ob jection and
criticism.”
The implications are not limited to the federal structure alone. The Centre administers union
territories through appointed Lieutenant Governors or Administrators, reflecting a unique
administrative framework that responds to their distinct needs and challenges. Elevating
Union territories to the status of States could disrupt this framework and render it
incongruent with the newly acquired statehood, leading to administrative incongruities and
undermining the smooth functioning of local governance. transforming Union territories
into States to ratify constitutional amendments can undermine the essence of the Indian
Constitution's federal structure. While appealing from a perspective of equal
representation, this transformation disregards the intricate constitutional balance between
the Centre and the States. Furthermore, it can run afoul of the Basic Structure Doctrine,
potentially infringing upon principles upheld by landmark cases such as Kesavananda Bharati
and Golaknath. The fabric of the Constitution's federalism and its fundamental structure
should be approached with utmost caution and respect for its foundational principles.

2.3 The Constitutional (Seventieth Amendment) Act is ultra virus.

The Constitutional (Seventieth Amendment) Act, 1992, which designates the Union
territories of Delhi and Pondicherry as "States" to ratify constitutional amendments, raises
significant concerns about its constitutionality. This amendment is inextricably intertwined
with these territories' governance dynamics, central control, and autonomy, raising
pertinent questions about its alignment with the foundational principles of federalism,
democracy, and the Constitution's basic structure doctrine.
The establishment of Union territories was envisaged to provide direct administrative
control by the Central government over regions with special requirements distinct from the
states' structures. The Constituent Assembly deliberations on this matter and establishing
Article 1 of the Constitution to delineate Union territories reflect this intent. However,
amendment 70's elevation of these territories to "States" for ratification contradicts this
original rationale. It entails bestowing the status of "State" upon entities initially designed
for direct administrative control by the Central government, effectively blurring the lines
between statehood and central governance.
Centralization of power is conspicuously manifest in the affairs of Delhi and Pondicherry.
The NCT of Delhi vs Union Of India case (2018) highlighted the tussle between the elected
government and the Lieutenant Governor, demonstrating the Centre’s substantial control
over Delhi's administration. . It is vivid from Article 74 that the President is always bound by
the aid and advice of the Union Council of Ministers except a few well known
situations which are guided by constitutional conventions. The Constitution, however,
does not lay down any express provision which allows the President to act as per his
discretion. The Governor of a State, as per Article 163, is bound by the aid and advice of his
Council of Ministers in the exercise of his functions except where he is, by or under the
Constitution, required to exercise his functions or any of them in his discretion.
Thus, the Governor may act in his discretion only if he is so permitted by an express
provision of the Constitution. 195. As far as the Lieutenant Governor of Delhi is concerned,
as per Article 239AA (4), he is bound by the aid and advice of his Council of Ministers in
matters for which the Delhi Legislative Assembly has legislative powers. However, this is
162 subject to the proviso contained in Clause (4) of Article 239AA which gives the power to
the Lieutenant Governor that in case of any difference between him and his Ministers, he
shall refer the same to the President for a binding decision. This proviso to clause (4) has
retained the powers for the Union even over matters falling within the legislative
domain of the Delhi Assembly. This overriding power of the Union to legislate qua other
Union Territories is exposited under Article 246(4).In the light of the aforesaid analysis and
the ruling of the nine-Judge Bench in New Delhi Municipal Corporation it is clear as
noon day that by no stretch of imagination, NCT of Delhi can be accorded the status
of a State under our present constitutional scheme and the status of the Lieutenant
Governor of Delhi is not that of a Governor of a State, rather he remains an
Administrator, in a limited sense, working with the designation of Lieutenant Governor.
This case emphasized the pivotal role of the Lieutenant Governor, who functions as the
Central government’s representative, in administrating the National Capital Territory.
Elevating Delhi to "State" status for ratification reinforces this central control, potentially
creating an undemocratic environment where the elected government's authority is
significantly curtailed.
The amendment's constitutionality is further questioned by its potential exploitation for
political expediency. The Union territories' distinct administrative structure has historically
enabled the Centre to influence local governance and political processes. Elevating these
territories to "States" status allows the Central government to wield its power in ratification
matters, potentially skewing the democratic balance. The administrative control, coupled
with Amendment 70's provision for ratification, raises concerns about whether these
territories can truly exercise their voice independently.
The criteria for making a state or a Union territory were consciously designed to
accommodate varied administrative requirements and levels of autonomy. Amendments
that alter this classification should reflect these nuanced considerations. The Naga People's
Movement of Human Rights v. Union of India (1997) case upheld the constitutional validity
of the state of Nagaland, emphasizing that the state's unique historical and political
situation warranted special consideration in the constitutional framework. Elevating Delhi
and Pondicherry to "States" without addressing their distinctive administrative frameworks
may undermine the principles such landmark cases uphold.
Amendment 70th, which designates Delhi and Pondicherry as "States" for ratification
purposes, appears constitutionally problematic due to its inconsistency with the territories'
original administrative intent, centralization of power, and potential to undermine
democratic principles. The prevailing administrative framework, the historical context, and
the Central government's substantial control over these territories raise legitimate concerns
about this amendment's fairness, equity, and constitutional propriety. By diluting the
essence of Union territories, Amendment 70 risks becoming a tool for political expedience,
subverting the federal structure and democratic ethos enshrined in the Constitution.