Row over nomination of MCD members: SC asks how L-G can act without aid & advice of council of ministers

The Supreme Court Monday orally observed as to how can the Lieutenant Governor (L-G) act “without aid and advice” of the council of ministers in nominating 10 members to the Municipal Corporation of Delhi.

The top court, which had earlier issued notice on the plea of the Delhi government, granted 10 days to the office of the L-G, represented by Additional Solicitor General (ASG) Sanjay Jain, to file the response to the petition seeking quashing of the nomination of the 10 members.

“How can the L-G take the decision without aid and advice of the council of ministers? This has to be exercised on the aid and advice...,” a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala said.

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The ASG, at the outset, said an amendment to Section 44 of the GNCTD Act (the Government of National Capital Territory Act) was made after the 2018 judgement of a constitution bench of the top court.

“In view of the amendment, a notification, which is under challenge in a separate petition, was issued,” the law officer said, adding that the response by way of an affidavit will be filed.

Senior advocate A M Singhvi, appearing for the Delhi government, opposed the submissions saying they were “patently wrong” and the constitutional interpretation of Article 239AA (which deals with Delhi) by the Supreme Court cannot be negated by amending a statute.

He alleged the Delhi government officers were “emboldened” as they were sending the files directly to the office of the L-G without first sharing them with the Delhi government.

“This way, every time we have to come to the court for relief and they are enjoying the power. The statute cannot change the constitutional interpretation,” he said, adding that strictures be passed against the Delhi government officers.

“This MCD is divided into 12 zones and each zone has a ward committee and each committee gets a nominated aldermen to sit. So what is there by electoral majority is nullified by the aldermen and thus standing committee is chosen. The whole object is patently illegal,” Singhvi said.

The bench said it will list the petition.

Earlier, the top court had sought a response from the office of the L-G on the plea.

In the petition filed through lawyer Shadan Farasat, the Arvind Kejriwal government has challenged the decision of the L-G to nominate the members allegedly without the “aid and advice” of the council of ministers.

The bench had taken note of the submissions of Singhvi and issued notice to the Office of Lieutenant Governor through its principal secretary for April 10.

Last month, the top court had ensured the polls for mayor and deputy mayor were held after getting deferred thrice amid chaos by making it clear that the 10 nominated members of the Municipal Corporation of Delhi cannot vote in the mayoral election.

Besides seeking quashing of the nominations, the plea has sought a direction to the L-G'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 Municipal Corporation of Delhi 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 L-G 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 L-G 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 L-G 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 L-G 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 L-G 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.