Breaking: LG's Decision To Nominate Aldermen In MCD Does Not Need Aid And Advise Of Elected Government: Apex Court

The Supreme Court today held that the Lieutenant Governor can nominate aldermen to the Municipal Corporation of Delhi without the aid and advice of the elected government.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice PS Narasimha held so in a plea filed by the Delhi government challenging the LG's power to nominate aldermen in the MCD. The Judgment was pronounced in open Court by Justice Narasimha.

Justice Narasimha said, "Section 33(B)(1) of the Delhi Municipal Corporation Act (DMC) Act provides that the LG of the National Capital Territory of Delhi shall nominate ten persons with special knowledge in Municipal administration to the DMC."

On the question of whether a LG can exercise the power of nomination as a statutory duty attached to the office, or is bound by the aid and advice of the Council of Ministers, Justice Narasimha said, "We were guided by the opinion of the Hon'ble Chief Justice...If Parliament makes law in relation to any subject in List II and List III, the executive power of the GNCTD shall then be limited to the law enacted by Parliament."

 Pertinently, on May 17, 2023, the Bench had reserved the verdict in the matter. While reserving the order the Court had observed that giving the lieutenant Governor the power to nominate aldermen in the Municipal Corporation of Delhi would mean that he can destabilise an elected civic body.

Earlier, the Bench had asked about the "source of power" of the LG under the Constitution and the law to nominate aldermen to the MCD without the aid and advice of the elected government.

In the petition filed through Advocate on Record (AoR) Shadan Farasat, the Arvind Kejriwal government has challenged the decision of the LG to nominate the members allegedly without the "aid and advice" of the council of ministers. Besides seeking quashing of the nominations, the plea has sought a direction to the LG's office to "nominate members to the MCD under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act..., in accordance with the aid and advice of the Council of Ministers".

"This petition has been filed by the elected government of the NCT of Delhi seeking inter alia quashing of orders dated..., and consequent gazette notifications ..., whereby the Lieutenant Governor has illegally appointed 10 (ten) nominated members to the MCD on his own initiative, and not on the aid and advice of the Council of Ministers," the plea said. It said neither the DMC (Delhi Municipal Commission) Act nor any other provision of law says anywhere that such nomination is to be made by the administrator in his discretion. "This is the first time such a nomination has been made by the LG completely bypassing the elected government, thereby arrogating to an un-elected office a power that belongs to the duly elected government," it said.

Referring to the constitutional scheme pertaining to Delhi, it said the word administrator' must necessarily be read as the administrator, who is LG here, acting on the aid and advice of the council of ministers. The petition underlined that according to the provision of the Delhi Municipal Corporation Act, apart from the elected councillors, the MCD also had to include 10 people, above 25 years of age, having special knowledge or experience in municipal administration, which were to be nominated by the administrator.

"It is pertinent to note that neither the section (of the MCD Act) nor any other provision of law says anywhere that such nomination is to be made by the Administrator in his discretion," the petition claimed. It said it was a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and un-elected head of state were to be exercised only under the "aid and advice" of the council of ministers, but for some "exceptional spheres" where they were expressly required by law to act in their discretion.

"Accordingly, under the constitutional scheme, the LG is bound to act on the aid and advice of the council of ministers and, if there is a difference of opinion, he may refer the matter to the President and under no circumstances does he have any independent decision-making power," the petition claimed. It said the only two courses of action open to the LG were to either accept the proposed names duly recommended by the elected government, or to 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. As such, the nominations made by the LG are ultra vires and illegal, and are consequently liable to be quashed," it alleged. The petition claimed no proposal was allowed to originate from the elected government and the file pertaining to the nomination of members was circulated to the departmental minister only on January 5, after nominations had already been made and notified.

Cause Title: Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi [WP (C) No. 348/2023]

Click here to read/download Judgment