NEW DELHI: In a major blow to the Delhi government, the Supreme Court on Monday upheld the power of Delhi's Lieutenant Governor to appoint 10 aldermen without the aid and advice of the Cabinet of the elected government.
A bench of Chief Justice of India D Y Chandrachud and Justices P S Narasimha and J B Pardiwala pointed out Parliament has statutorily entrusted the LG with the power to appoint the aldermen.
"The Lieutenant Governor has the power to nominate members to the Delhi Municipal Corporation, and is a statutory power and not an executive power. Hence, the Delhi LG can act as per his discretion and not as per the aid and advice of the Delhi Government," the bench said.
Pronouncing the judgment, Justice Narasimha said once such power is conferred to the LG, the Delhi government can't have a say on this issue.
The bench said the Constitution bench had earlier ruled that the Parliament can legislate on state and concurrent lists of Delhi.
The Supreme Court had reserved its judgement in May, 2023.
The AAP-led Delhi govt, in its plea filed before the top court, alleged that giving the LG the power to nominate aldermen to the MCD would mean he can destabilise an elected civic body. It is pertinent to mention here that the MCD has 250 elected and 10 nominated members.
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The Delhi government sought quashing of orders of January 3 and 4, 2023, and consequent gazette notifications, whereby the LG appointed 10 nominated members to the Municipal Corporation of Delhi (MCD).
“This is the first time since Article 239AA came into effect in 1991 that such a nomination has been made by the Lieutenant Governor completely by-passing the elected government, thereby arrogating to an unelected office a power that belongs to the duly elected government,” the plea said.
It also contended that nominations in question have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (DMC Act), which provided that the MCD should include, apart from the elected councillors, ten persons of not less than 25 years of age and who have special knowledge or experience in municipal administration, “to be nominated by the administrator”.
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Neither the section nor any other provision of law says anywhere that such nomination is to be made by the administrator in his discretion, it 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.
“The nominations made by the Lieutenant Governor are per se unconstitutional and illegal," it added.
