Supreme Court's Judgment in MCD Alderman Case Contradicts Constitution Bench Precedents, Undermines Democracy

Despite two Constitution Bench judgments of the Supreme Court delineating the contours of the powers of the Government of National Capital Territory of Delhi (GNCTD) and the Lieutenant Governor (LG) of Delhi, a stalemate continues to persist in the governance of the national capital. Since the Union Government and the GNCTD are helmed by two rival political parties, friction has only intensified.

In 2018, a 5-judge Constitution Bench of the Supreme Court emphatically stated that primacy has to be given to the elected government of Delhi in the matters over which it has jurisdiction and that the power of the LG - an appointee of the Union Government- to differ has to be used only in exceptional circumstances. In 2023, another 5-judge Constitution Bench the Supreme Court upheld the power of the Delhi Government to control civil servants (except in matters related to law & order, police and land). Soon after the verdict, the Union Government brought an Ordinance (which was later passed as a Parliamentary law) to give primacy to LG in the matter of services, diluting the effect of the Supreme Court's judgment. A third round of litigation is now pending before the Constitution Bench regarding the services law.

Amidst the escalating tensions between the Union and the GNCTD, the Supreme Court on August 5 delivered its judgment upholding the power of the LG to unilaterally nominate ten members(aldermen) to the Municipal Corporation of Delhi(MCD). The judgment, which was delivered nearly 15 months after it was reserved in May 2023, came as a surprise. While reserving the judgment on May 17, 2023, Chief Justice of India DY Chandrachud, who was heading the 3-judge bench, had expressed concerns about the LG exercising such unilateral powers, saying that by nominating members without the consent of the GNCTD, he can “destabilize the elected corporation” Nevertheless, the judgment held that the LG was not required to act as per the aid and advice of the Delhi Government while nominating members to the MCD. Notably, the judgment does not contain any discussion on the concerns raised by the bench during the hearing.

Hollow assumption in the judgment that all statutory powers of LG are discretionary

The judgment (authored by Justice PS Narasimha for the bench also comprising CJI & Justice JB Pardiwala) deserves critical scrutiny as it goes against the Constitution Bench judgments.

The basis of the judgment's reasoning is this - the LG is not required to act as per the aid and advice of the Government when he is discharging a statutory function. The LG's power to nominate is a statutory power flowing from Section 3(3)(b)(i) of the Delhi Municipal Corporation Act. Hence it is not an executive function which is to be guided by the aid and advice of the Government.

To bolster this reasoning, the judgment referred to Article 239AA(4) of the Constitution, which states that the LG should act as per the aid and advice of the Government except in so far as he is, by or under any law, required to act in his discretion

The first fallacy of the judgment is that it makes a presumption that Section 3(3)(b)(i) of the DMC Act requires the LG to act in his discretion. There is nothing in the text or context of the DMC Act to suggest that the power to nominate members is a discretionary power of the LG. The judgment thus makes quite a leap of logic in making a hollow assumption that this is a discretionary power and then proceeding to bring it under the exception carved out in Article 239AA(4).

There is no basis for the underlying premise of the judgment that every statutory power of the LG is discretionary. Also, this view of the Court has grave potential to wreak havoc. For example, as per the same DMC Act, the power to convene the first session of the Corporation is given to the LG. If this power is also discretionary, then it would follow from the judgment that the LG can even indefinitely defer the first meeting of the Corporation at his pure whim. In other words, absolute power is given to an unelected authority to control an elected body.

The judgment ignores the 2018 verdict that LG lacked independent power

The second fallacy is that the judgment violates the law laid down by the 2018 Constitution Bench judgment that the LG has no independent authority in respect to matters reserved for the Delhi Government. The Constitution excludes only three areas from the Delhi Government's jurisdiction - public order, police and land. Municipality is not a matter excluded from the GNCTD's jurisdiction. Therefore, in such matters, as per the 2018 judgment, the LG has only two options- either go by the GNCTD's opinion or refer the matter to the President. The 2018 judgment further clarified that the reference to the President cannot be done in a routine manner and can be only in exceptional circumstances. This is clear from the lead judgment authored by the then CJI Dipak Misra in the 2018 case. It was held there :

"The meaning of 'aid and advise' employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision ­making power. He has to either act on the 'aid and advice' of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.” (Emphasis supplied.)

The 2018 judgment further stated that there is “a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.” Also, the reference to the President cannot be casual.

As stated in the 2018 judgment :

“The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

"The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.”

So, the 2018 judgment clearly elucidated that in the ordinary course, the LG is mandated to act as per the aid and advice of the elected government. Unfortunately, the judgment in the MCD-Alderman case is rendered disregarding the exposition of law in the 2018 Constitution Bench judgment, which is binding on the three-member bench. There is absolutely no reference to or discussion on the above said crucial observations in the 2018 verdict.

GNCTD's power limited by the DMC Act ?Addressing an implicit premise of the judgment

An inarticulate premise in the judgment seems to be the suggestion that the executive power of the Delhi Government is limited since the DMC Act has been enacted by the Parliament.

As per Article 239AA, the Parliament has the power to enact laws with respect to matters in the State list and the Concurrent list in relation to the GNCTD.

The judgment quoted certain observations made by CJI DY Chandrachud in the 2023 Constitution Bench case.The suggestion being made in the MCD case, though implicitly, seems to be that since the DMC Act is a Central law, the executive power of the GNCTD has been taken away and the Union(and as a corollary, the LG) has the power. However, this suggestion is not expressly stated in the judgment as its reasoning.

Be that as it may, on a closer reading of the observations of CJI DY Chandrachud (from the 2023 judgment), which are extracted in the MCD case, it would be clear that the implicit suggestion in the judgment does not have any tenability.

Firstly, the observation of CJI DY Chandrachud(from the 2023 judgment) quoted in the MCD case is a paraphrasing of the observations in the lead judgment written by the then CJI Dipak Misra in the 2018 judgment. CJI Misra's observation was : “However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament.”

So, the observation in the 2018 judgment was that the Delhi Government's executive power should be discharged in accordance with the law made by the Parliament in relation to matters in the State List or the Concurrent List. It does not hold that the executive power of the GNCTD is extinguished in such scenarios.

CJI Chandrachud, while paraphrasing this observation in the 2023 judgment, used the word “limited” in place of “conform”. It is clear from the below passage(from CJI Chandrachud's judgment in the 2023 case) which is extracted in the MCD case :

“The judgment of the majority, however, clarified that if Parliament makes a law in relation to any subject in List II and List III, the executive power of GNCTD shall then be limited by the law enacted by Parliament. It was held:

“(Quote from the 2018 judgment)....However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament.”

The judgment in the MCD Case seems to be suggesting that the word "limited" would imply that the GNCTD's power has been taken away.

Nevertheless, the judgment does not venture to say anything expressly on this point. In any case, the executive power of the government is not dependent on the word play in the judgments, as it has been clearly fixed by the Constitution - that it extends to all areas in Lists 2 and 3 except those relating to law & order, police and land.

MCD judgment goes against the spirit of democracy and federalism

The Constitution Bench judgments of 2018 and 2023 intended to safeguard the democratic role of the elected government. Hence, limits were defined on the powers of LG, an unelected authority.

“The provisions of Article 239AA represent a clear mandate of the Constitution to provide institutional governance founded on participatory, representative and responsive government”, Justice Chandrachud (as he was then) wrote in the 2018 judgment. Increasing the scope for unilateral interference by an unelected authority will definitely undermine a “participatory, representative and responsive” government.

“In a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution,” the Court observed in the 2023 judgment.

When there are two views possible, the Court ought to adopt a view which subserves democracy, enhances accountability and avoids vesting unfettered discretionary powers on any single authority. “Constitution has to be interpreted in such a manner to enhance its democratic spirit. The paradigm of representative participation by engagement of citizenry should not be annihilated by interpretation,” the 2018 judgment stated.

In the politically factitious climate prevailing in the national capital, such discretionary powers have a great potential for abuse, giving credence to the concerns raised by the CJI during the hearing that they can be used to destabilize the elected corporation.

The judgment in the MCD case, by adopting a narrow interpretation and selective reading of Constitution Bench judgments, fails to embrace the spirit of democracy and federalism. This sets a problematic precedent, potentially expanding the unaccounted discretion of the Lieutenant Governor (LG) in other contested areas, thereby undermining the authority of the elected government.

(The author is the Managing Editor of LiveLaw. He can be reached at manu@livelaw.in)