'LG Can Effectively Destabilize Elected Delhi Municipal Corporation By Nominating Members', Says Supreme Court While Reserving Verdict

The Supreme Court today reserved its judgement on the issue whether the Lieutenant Governor (LG) of Delhi can nominate aldermen (nominated members) to the Municipal Corporation of Delhi without the consent of the Delhi Government.

A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala was hearing Delhi Government's petition seeking the quashing of notifications through which the Lieutenant Governor (LG) of Delhi appointed ten nominated members to the Municipal Corporation of Delhi (MCD) on his own initiative, and not on the aid and advice of the Council of Ministers. While hearing the plea, CJI DY Chandrachud orally remarked that LG, with the power to nominate members to the MCD, can effectively destabilize the democratically elected MCD.  

CJI DY Chandrachud orally remarked–

"There is another way to look at it. Is the nomination of people who have specialised knowledge in a local body such great concern to Union of India? By giving this power to the LG, he can effectively destabilize the democratically elected MCD."

He added–

"They will have voting power. They can be placed anywhere, these ten members by the LG."

Senior Advocate Dr AM Singhvi, appearing for the Delhi Government agreed to the same and highlighted that the nominations had been made in the ward committees of the MCD where the BJP was weak.

Arguments Raised 

Additional Solicitor General Sanjay Jain, appearing for the LG, sought to draw distinction between the role of the LG under Article 239AA and the role of the LG as an administrator when it came to local body nominations as per the Delhi Municipal Corporation Act. He highlighted that the Delhi Municipal Corporation Act had specifically defined the role of Administrator (LG). He stated that "aid and advice" of the Delhi Government was not necessary while exercising a statutory power which was specifically conferred on the Administrator. Further, he added that while the tasks of the Central and the State government could be delegated, there was no such delegation of powers of the administrator. 

Per contra, Senior Advocate Dr AM Singhvi, appearing for the GNCTD, placed reliance on the two constitution bench judgments in the GNCTD vs Union of India cases. He added that since 30 years, the practice which had been followed was that the LG never appointed without the aid and advice of the ministers. To this, ASG Jain said–

"Just because a practice has been followed for years, doesn't mean it is correct."

Through his submissions, Singhvi added–

"Where the state government is mentioned, the file stops, it does not go to the LG. Where the LG is mentioned, he acts on aid and advice. In both cases, LG is bound. It is the travelling of the file."

Background

The petition argues that the nominations by the LG in his own discretion, without the aid and advice of the Council of Minister is against the constitutional scheme. As per the petition, the appointments have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (“DMC Act”), which provides that the Municipal Corporation of Delhi shall include, apart from the elected councillors, ten persons of not less than 25 of age and who have special knowledge or experience in municipal administration, “to be nominated by the Administrator”. The petition submits that–

"It is pertinent to note that neither the section nor any other provision of law says anywhere that such nomination is to be made by the Administrator in his discretion. As such, under the scheme of Article 239AA of the Constitution, the word “Administrator” must necessarily be read as Administrator / Lieutenant Governor, acting on the aid and advice of the Council of Ministers, and the Lieutenant Governor was bound to make the nominations on the aid and advice of the Council of Ministers."

To substantiate the submission, the petition also cites the judgement of the Constitution Bench of Supreme Court in State (NCT of Delhi) v. Union of India (2018), as per which Article 239AA provides that the elected government of the NCT of Delhi has exclusive executive powers over all subjects in the State and Concurrent List, apart from the three excepted subjects of ‘public order’, ‘police’ and ‘land’. As per the petition, in the present case, the power of nominations fall under Entry 5 of the State List i.e. ‘Local Government’, which does not relate to any of the excepted subjects.

The petition further argues that the procedure followed in clearing the file for the nominations was also violative of the Transaction of Business Rules, as amended in 2021 as per which a proposal must originate from the elected Government, and be placed before the Lieutenant Governor for his opinion through the Chief Secretary/Chief Minister. Following this, the LGmust record his views on the proposal within seven days and in case of any difference of opinion between the LG and the Minister of a department, the LG "shall strive to settle the issue by way of dialogue and discussion within a period of fifteen working days."

Thus, the petition contends that the only two courses of action open to the LG were–

1. Accept the proposed names recommended to him for nomination to MCD by the elected government or;

2. Differ with the proposal, and refer the same to the President.

"It was not open to him at all to make nominations on his own initiative, completely circumventing the elected government," states the petition.

The petition was filed through Advocate on Record Shadan Farasat.

Case Title: Govt of NCT of Delhi v. Office of Lieutenant Governor of Delhi WP(C) No. 348/2023

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