Manas Dasgupta
NEW DELHI, Aug 5: In a major setback to the ruling Aam Aadmi Party (AAP), the Supreme Court on Monday ruled that the Lieutenant Governor of Delhi enjoyed the powers to nominate 10 experts in municipal administration as aldermen in the Municipal Corporation of Delhi without the aid and advice of the council of ministers of the Delhi government.
The Court held that the power was a statutory power flowing the Delhi Municipal Corporation Act and hence the Governor need not act as per the aid and advice of the Delhi Government. Since it was a statutory power given to the LG and not an executive power of the Government, the LG was expected to act as per the statutory mandate and not as per the aid and advice of the Delhi Government.
The judgment was delivered nearly 15 months after the order was reserved on a petition filed by the Delhi Government challenging the LG’s decision. A bench comprising the Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala had heard the case and reserved the judgement on May 17, 2023. Justice Narasimha pronounced the verdict on behalf of the bench on Monday.
The bench held that the power of the L-G was drawn from Section 3(3)(b)(1) of the Delhi Municipal Corporation Act 1957. The Act, a parliamentary law, was amended in 1993 to vest the power to nominate 10 expert persons. The bench referred to a Constitution Bench judgment which had laid down that the executive power of the Delhi government would conform to a parliamentary law dealing with subjects in the State and Concurrent Lists of the Seventh Schedule of the Constitution.
Justice Narasimha did not agree with senior advocate AM Singhvi, appearing for Delhi, that the power of the L-G was both semantic and a “relic of the past.” Mr Singhvi had argued that the national capital had a democratically elected government, which should be allowed to run its own municipal administration without interference from the L-G office.
“This is a law made by the Parliament… The law requires the L-G to exercise power,” the court noted. The legal question before the court was whether the L-G could nominate the 10 persons as a part of the statutory duty of his office or was he bound by the aid and advice of the Council of Ministers.
“The statutory power under Section 3(3)(b)(1) to name the 10 persons of special knowledge was vested in the LG for the first time through the 1993 amendments to the DMC Act, 1957 in order to incorporate constitutional changes in Articles 239AA and 239AB (provisions which deal with the establishment of the Delhi government) of the Constitution in Part 9A concerning municipal administration,” Justice Narasimha observed.
The power of the L-G to nominate is expressly given in the DMC Act, a parliamentary law. “The L-G is to act as per the mandate of a statute and not guided by aid and advice of the Council of Ministers,” the court held.
While the BJP welcomed the apex court’s verdict, the AAP leader and Rajya Sabha member Sanjay Singh said the party “respectfully disagrees” with the SC verdict and termed it a “big blow” to India’s democracy. He said the SC’s decision gives the L-G the right to bypass the elected government.
Reacting to the court order, Mr Singh said in a statement, “This is a big blow to India’s democracy. By bypassing the elected government, you are going to give all the powers to the lieutenant governor, so that the LG can run Delhi.” “This is not good for democracy and the Constitution of India. We respectfully disagree with the decision of the Supreme Court,” the Rajya Sabha MP said. The decision is “unfortunate” and “against the spirit of democracy”, he added.
He pointed out that the court’s decision was completely different from the reservations the judges had expressed on the powers of LG during the hearing of the petition. “The court’s decision was completely different from the comments made by the chief justice and other judges during the hearing of this case. In other states, the governor approves names of nominated councillors but on the aid and advice of the elected government,” Mr Singh said.
The MCD has 250 elected and 10 nominated members. In December 2022, the AAP defeated the BJP in the MCD elections, ending the saffron party’s 15-year rule. The AAP won 134 seats, the BJP 104 and the Congress nine.
On May 17 last year, the top court had said giving the L-G the power to nominate aldermen to the MCD would mean that he could destabilise an elected civic body. “Is the nomination of specialised people in MCD of that much concern to the Centre? Actually, giving this power to the L-G would effectively mean that he can destabilise the democratically elected municipal committees because they (aldermen) will have voting powers also,” it had said.
Mr Singhvi had contended that 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 L-G nominating aldermen on the aid and advice of the city government has been followed.
Then additional solicitor general Sanjay Jain, appearing for the L-G’s office, had submitted that just because a practice has been followed for 30 years does not mean it is correct.
Earlier, the SC had asked about the “source of power” of the L-G under the Constitution and the law to nominate aldermen to the MCD without the aid and advice of the elected government. The ASG had referred to the reply filed by the office of the L-G 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, was different from the one projected by the government.
Jain had argued that the file pertaining to nominations to the MCD come directly to the office of L-G as he was the administrator and the concept of aid and advice is not applicable in this case.
Singhvi had referred to the 2018 constitution bench judgement of the apex court and its recent verdict on control over services to claim the L-G has to act as per the aid and advice of the government. The senior lawyer contended the L-G 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 L-G has directly appointed members in the MCD and earlier it was always based on aid and advice (of the government),” Singhvi had argued.
The MCD election was held in December 2022. But the civic body’s deliberative wing has remained incomplete in the absence of key panels over the logjam due to the dispute over the aldermen. The logjam meant that all major projects were stuck.
MCD functionaries said the court verdict will pave the way for elections for wards committee or 12 decentralised panels to oversee each administrative zone in Delhi and subsequently the standing committee.
The last civic polls were held following the unification of three erstwhile corporations in May 2022 for better administration. AAP won the polls securing a simple majority of 134 out of 250 seats. In January 2023, LG VK Saxena nominated 10 aldermen. The AAP moved the Supreme Court over the nominations, saying they were made without consulting the government. It argued such nominations were earlier made following the aid and advice of the government.
The AAP and BJP have been at loggerheads over securing these posts. Alderman is a titular position with origins in the old municipal governance structure of boroughs and county councils in Britain. Aldermen have no direct voting rights in the House of MCD councillors. Their right to vote in the wards committee could help alter the power balance in other committees under the MCD. The AAP has a majority in the House. But the zonal distribution of BJP and AAP councillors leaves the control over the standing committee an open contest.
All the policy proposals and the budget are presented first to the 18-member panel. Only after its approval, they are sent to the House of councillors. An MCD official said the panel clears the sanctions of all projects worth above ₹five crore, policy matters with financial implications on the civic body as well as the layout plans of all major projects.
Out of the 18 members, six are elected directly. MCD’s 12 zonal wards committees of the 12 administrative zones elect the rest of the 12 members. After all the 18 members are finalised, one of them is elected as the standing committee chairman through elections. The chairman’s position is important and rivals the powers of the mayor.
Former MCD chief law officer Anil Gupta said the aldermen do not have voting rights in the House meetings as per the 2015 Onika Malhotra high court order. He added aldermen have voting rights in the zonal committees and therefore they may help the political parties to tip the balance.
The AAP alleged that 10 members from the BJP background were nominated and said this was against the people’s verdict in the MCD elections.
In the absence of the key panel, a series of projects and policy decisions have remained stuck over the last 20 months. An MCD official pointed out that only the standing committee can clear the layout plans of major infrastructure projects. Over 60 such projects were stuck in the town planning department in the absence of this key panel. “The pending projects include the one for appointing new companies for clearing the landfill sites…new operators need to be hired for bio mining of legacy waste. We are also unable to appoint a new operator for collection of toll tax in the Capital…the contract of the previous operator ended on April 10,” the official said.
The official explained that the commissioner has the power to clear projects up to ₹5 crore. But larger projects need the standing committee’s approval along with layout plan approval for projects like the Delhi Transport Corporation township in Hari Nagar, hostel towers for Delhi University, IIFT Maidangarhi and another multi-storey tower on DDU Marg. “We are also undertaking the process for layout plans of three colonies which would serve as a model for regularisation of unauthorised colonies but this will also need the approval of the standing committee,” he said.
The AAP-led MCD House of councillors passed a resolution on January 15 saying that approvals for contracts with expenditures greater than ₹5 crore, including cases where approvals are routed through the Standing Committee, be given by the corporation.
In the absence of the key panel, MCD was forced to provide extensions to private operators in multiple cases including the contract to manage garbage in the central zone which covers VIP pockets in New Delhi. The corporation has been unable to hire a private operator for Delhi’s first pet park in Jangpura and set up the Shahjahnabad Museum and Interpretation Centre near Lahori Gate among other projects
The Supreme Court verdict will intensify the battle for control over the standing committee. Mr Gupta said the municipal secretariat will now hold elections for the wards committees, each of which will elect a chairman, deputy chairman, and a standing committee member. “One of the six directly elected standing committee members, Kamaljeet Sehrawat, has resigned after being elected West Delhi Member of Parliament. Therefore, a direct election for the vacant post will be held. Together all these 18 members will elect the chairman. The entire process may take 1-1.5 months given that time for nominations has to be provided.”
MCD oversees an area of 1397.3 square kilometres sub-divided into 12 administrative zones. Based on the distribution of councillors, the BJP has an advantage in Shahdara, Shahdara South, Najafgarh, and Keshavpuram zones. AAP has an advantage in five zones.
While Mr Singh said the SC verdict give all the rights to the LG bypassing the government which was “not good for democracy and the Constitution,” the Delhi BJP chief Virendra Sachdeva said AAP opposes LG’s decisions. “Delhi cannot be compared to other states. Delhi is a centrally administered area. The Supreme Court decision has exposed them. We are disappointed with Singh’s statement which raises questions on the verdict. Even though they are aware of the jurisdictions in Delhi, AAP misleads people by blaming LG. The decision by LG was according to the Constitution.”
