How can LG act without aid & advice of council of ministers, asks SC on nomination of MCD members

The Supreme Court on Monday queried how could the Delhi Lt Governor (LG) act without the aid and advice of the council of ministers in nominating 10 members to the MCD.

A bench headed by Chief Justice of India D.Y. Chandrachud and comprising Justices P.S. Narasimha and J.B. Pardiwala said: "How can the LG take the decision without aid and advice of the council of ministers?"

Additional Solicitor General Sanjay Jain, representing the LG office, submitted that an amendment to Section 44 of the GNCTD Act (the Government of National Capital Territory Act) was made after the 2018 judgment of the apex court's constitution bench. He said a response will be filed in the matter and added that in view of the amendment, a notification, which is under challenge in a separate petition, was issued.

Senior advocate A.M. Singhvi, assisted by advocate Shadan Farasat, representing the Delhi government, contested the submissions made by Jain.

Singhvi said the constitutional interpretation of Article 239AA (which deals with Delhi) by the Supreme Court cannot be negated by amending a statute and added that Delhi government officers were sending the files directly to the LG office without first sharing them with the government.

After hearing submissions, the bench gave 10 days to the office of the LG to file the response on the Delhi government plea seeking quashing of the nomination of the 10 members.

During the hearing, Singhvi stressed that every time the government has to come to the court to seek relief and they are enjoying the power, and added that each zone of MCD has a ward committee and each committee gets a nominated alderman to sit.

The bench said it will list the petition for hearing.

On March 29, the Supreme Court issued notice on a plea by Delhi government challenging the appointment of 'aldermen' by the Delhi LG to the MCD.

"This is the first time since Article 239AA came into effect in 1991 that such a nomination has been made by the Lt Governor completely by-passing the elected government, thereby arrogating to an unelected office a power that belongs to the duly elected government," said the government's plea.

The Delhi government sought quashing of orders dated January 3 and 4, 2023, and consequent gazette notifications, whereby the LG appointed 10 (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.

The plea contended that nominations in question have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (DMC Act), which provides that the MCD should 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".

It further contended 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.

The Delhi government said it is a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and unelected head of state are to be exercised only under the 'aid and advice' of the council of ministers. "Such an express requirement is completely lacking under either the Constitution or the statutory scheme under the DMC Act in the present case, and as such the nominations made by the Lt Governor are per se unconstitutional and illegal," it added.