Giving lieutenant governor the power to nominate aldermen to the Municipal Corporation of Delhi will mean he can destabilise an elected civic body, the Supreme Court observed on Wednesday and wondered whether these nominations were of so much concern to the Centre.
A bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala made this observation while reserving its verdict on the plea of the Delhi government challenging the LG's power to nominate aldermen.
The MCD has 250 elected and 10 nominated members.
In December last year, the Aam Aadmi Party (AAP) defeated the Bharatiya Janata Party in the civic elections, winning 134 wards and ending the saffron party's 15-year run at the helm of the MCD. The BJP won 104 seats and the Congress finished a distant third with nine.
"Is the nomination of 12 specialised people in MCD of that much concern to the Centre? Actually, giving this power to the LG would effectively mean that he can destabilise the democratically elected municipal committees because they (aldermen) will have voting powers also," the bench said.
Additional solicitor general Sanjay Jain, appearing for the LG's office, said in the context of Delhi, it is pertinent to note that the 69th amendment came and GNCTD Act was notified, which collectively contain mechanism for governance of Delhi.
The 69th Amendment Act of 1991 accorded a special status to the Union territory of Delhi by designing it as the National Capital Territory of Delhi.
The bench told Jain his submission means that MCD is an institution of self-governance and that the role of LG here is distinct from the role of administrator when he acts on the aid and advice of the council of ministers under Article 239AA.
Referring to the Act, Jain said there are some powers which are entrusted to administrators and some others are given to the government.
Justice Narasimha asked Jain whether he means the power conferred upon the administrator is independent of the state and cannot be given to the state government.
Senior advocate Abhishek Singhvi, appearing for the Delhi government, said no separate powers have been accorded to the state government to nominate people to the MCD, and for the past 30 years, the practice of the LG nominating aldermen on the aid and advice of the city government has been followed.
"LG never appoints aldermen in his own right," he said, adding that the nominations are always made by the President but on the aid and advice of the Union government.
Referring to the provisions, Singhvi said where a file is marked to the state government, it stops at its door, but where it is marked to the LG, he has to act on the aid and advice of the state government.
Jain interjected saying just because a practice has been followed for 30 years does not mean it is correct.
Singhvi submitted that if Jain's argument is accepted, then LG after LG was wrong in following this practice.
The bench said giving the LG the power to nominate aldermen will effectively mean that he can destabilise a democratically elected MCD because these aldermen get appointed to the standing committees and have voting power.
Jain, however, contended that these nominated aldermen do not have much power.
Singhvi contested Jain's claim and said aldermen have been appointed in ward committees and they have voting power in such committees.
The bench then asked both Singhvi and Jain to file their written submissions in two days and said it will pass an order on the plea.
On Tuesday, the top court 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.
It was hearing a petition filed by the AAP government challenging the nomination of aldermen by the LG.
Jain has referred to the reply filed by the office of the LG and the constitutional scheme to assert the concept of 'aid and advice', in the context of the administrator's power to nominate members to the MCD, is different from the one which has been projected by the Delhi government here.
He has submitted the file pertaining to nominations to the MCD directly come to the office of LG as he is the administrator, and the concept of aid and advice is not applicable in this case.
Singhvi has referred to the 2018 Constitution bench judgment of the apex court and its recent verdict on control over services to claim the LG has to act as per the aid and advice of the government. The senior lawyer contended the LG should have taken back the nominations by now.
"There are 12 zones, 12 ward committees and aldermen can be appointed to any committee...for the first time in the last 30 years, the LG has directly appointed members in the MCD and earlier it was always based on aid and advice (of the government)," Singhvi has said in this arguments.
Earlier, on May 12, the top court observed the LG has to act on the "aid and advice" of the council of ministers of the Delhi government in nominating 10 aldermen to the MCD.
A five-judge Constitution bench ruled last Thursday that the Delhi government has legislative and executive powers over all but three services -- public order, police and land -- and substantially clipped the wings of the Centre's point man in running day-to-day administration of the national capital.
In the petition filed through lawyer Shadan Farasat, the Arvind Kejriwal government has challenged the decision of the LG to nominate the members 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 Corporation) 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 no proposal was allowed to originate from the elected government and the file pertaining to the nomination of aldermen was circulated to the departmental minister only on January 5, after nominations had already been made and notified.
