A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and PS Narasimha ruled that the Delhi Lieutenant Governor (LG) is not obligated to follow the aid and advice of the Delhi government’s cabinet when appointing aldermen, as his authority is derived from the Delhi Municipal Corporation Act.
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NEW DELHI: The Supreme Court on Monday (5th Aug) upheld the Lieutenant Governor’s decision to unilaterally appoint ten aldermen to the Municipal Corporation of Delhi (MCD) without consulting the state cabinet, marking a significant setback for the Aam Aadmi Party (AAP)-led Delhi Government.
A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and PS Narasimha ruled that the Delhi Lieutenant Governor (LG) is not obligated to follow the aid and advice of the Delhi government’s cabinet when appointing aldermen, as his authority is derived from the Delhi Municipal Corporation Act.
“The 1993 Delhi Municipal Corporation Act first vested the power to nominate in the LG. The power expressed by the statute on the LG shows the statutory schemes in which power is distributed. The Delhi LG is expected to act as per the mandate of the statute and not the aid and advice of the council of ministers,”
the Court held.
The law requires him to do so, and it is covered by the exception to Article 239, which empowers the President to administer Union Territories.
“It is the law made by the parliament, it satisfies the discretion exercised by the LG since law requires him to do so and falls under exception of Article 239,” the Court held.
Article 239 (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.
The Aam Aadmi Party-led Delhi government petitioned, claiming this was the first time since Article 239AA of the Constitution came into effect in 1991 that such a nomination had been made by the LG, bypassing the elected government.
According to the Delhi Government’s petition, the LG had only two options:
1. To either accept the proposed names recommended for nomination by the elected government or
2. To disagree with the proposal and refer it to the President.
During the hearings, the CJI had remarked that the nomination of aldermen by the LG could destabilize the democratic functioning of the MCD. The Court reserved its verdict in May 2023.
The verdict was delivered nearly 15 months after the Court concluded its hearing on the matter.
Due to the pending verdict, the standing committee of the MCD could not be constituted, as the ten aldermen are part of the body that elects this committee.
READ ALSO: Delhi Government Challenges LG’s Authority to Appoint Lawyers for State in Supreme Court
MCD Mayor Shelly Oberoi expressed concern that the civic body’s functioning had come to a stay as a result and urged the top court to allow the MCD Corporation to perform the functions of the standing committee temporarily.
Senior Advocate Abhishek Manu Singhvi, along with Advocates Shadan Farasat and Natasha Maheshwari, represented the Delhi government. Additional Solicitor General Sanjay Jain represented the LG.
Background of the Case
On May 17 of the previous year, the Supreme Court highlighted the potential for the LG’s power to nominate aldermen to disrupt the functioning of an elected civic body. The Municipal Corporation of Delhi consists of 250 elected and 10 nominated members.
“Granting the lieutenant governor the authority to nominate aldermen to the Municipal Corporation of Delhi (MCD) could enable him to undermine the stability of an elected civic body.”
-observed the court.
“Is the nomination of specialized individuals to the MCD such a significant concern for the Centre? In reality, granting this power to the LG would allow him to undermine the democratically elected Municipal Committees, as these aldermen would also possess voting rights.”
-stated the court.
Senior advocate Abhishek Singhvi, representing the Delhi government, argued that historically, the practice has been for the LG to nominate aldermen based on the aid and advice of the city government. He emphasized-
“For the past 30 years, the LG has followed the practice of nominating aldermen based on the aid and advice of the city government.”
In the December 2022 civic elections, the Aam Aadmi Party (AAP) emerged victorious, securing 134 wards and ending the Bharatiya Janata Party’s (BJP) 15-year reign over the MCD. The BJP won 104 seats, while the Congress finished a distant third with nine seats.
The Supreme Court previously questioned whether the nomination of specialists to the MCD was of such significant concern to the central government.
In December 2022, the Aam Aadmi Party (AAP) won the civic elections by securing 134 wards, thereby ending the Bharatiya Janata Party’s (BJP) 15-year control over the MCD. The BJP won 104 seats, and Congress secured nine.
Contrasting this, then Additional Solicitor General Sanjay Jain, representing the LG’s office, argued that long-standing practices do not necessarily equate to correctness.
“Simply because a practice has been followed for 30 years does not make it right.”
– he contended.
The bench noted that granting the LG such power could destabilize a democratically-elected MCD since aldermen participate in standing committees and possess voting rights.
The Supreme Court delved into the constitutional foundation for the LG’s authority to nominate aldermen without the elected government’s aid and advice. The Additional Solicitor General referenced the constitutional framework to argue that the concept of ‘aid and advice’ differs from what the Delhi government presented.
He stated-
“The file regarding nominations to the MCD goes directly to the LG’s office since he is the administrator, and the principle of aid and advice does not apply in this instance.”
In contrast, Singhvi cited a 2018 constitution bench judgment and a recent verdict on control over services to argue that the LG should act according to the aid and advice of the government.
He maintained-
“The LG is required to act according to the government’s aid and advice. The senior lawyer argued that the LG should have withdrawn the nominations by now.”
The AAP government, through lawyer Shadan Farasat, filed a plea seeking to annul the nominations and directed the LG’s office to nominate members to the MCD under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act in line with the aid and advice of the Council of Ministers.
