Supreme Court validates Delhi LG’s authority to appoint aldermen to MCD

In a crucial development to a 15-month-long plea of the Delhi government, the Supreme Court affirmed that the Lieutenant Governor (LG )  of Delhi possesses the authority to appoint aldermen to the Municipal Corporation Of Delhi ( MCD) independently, without any assistance of the Delhi Government. The court further declared that the power of the LG  derives from the Delhi Municipal Corporation Act which states the power as statutory rather than executive, making the governor independent in terms of appointment, who can act without the aid and advice of the Council of Ministers.

Delhi government’s petition and SC’s verdict 

The ruling came in response to a petition which was filed by the Delhi Government challenging the decision of LG. In its petition, the Delhi Government requested the annulment of the order and notifications issued by LG on January 1, 2023, and January 4, 2023, which designated  10 individuals as nominated members of the Municipal Corporation of Delhi under the Delhi Municipal Corporation ( DMC ) Act,1957. Additionally, it sought a directive for the LG to make nominations in accordance to aid and advice of the Council of Ministers. Three-member bench consisting of Chief Justice Of India DY Chandrachud, Justice Narsimha Rao, and Justice JB Pardiwal, heard the case and reserved their judgment on May 17, 2023. On August 5, 2024, Justice PS Narasimha delivered the verdict.

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Shedding light on GNCTD executive powers and LG’s nomination authority 

The court noted that the decision in the second Government of National Capital Territory of Delhi ( GNCTD ) case establishes that when parliament legislates on matters in  State list (list 1) and Concurrent list (list 3), the GNCTD ‘s executive power will restrict accordingly. 

Section 2 (3)(b)(1) of the Delhi Municipal Corporation (DMC) Act of 1957, amended in 1993, gives the lieutenant governor of the capital, the authority to appoint 10 individuals having expertise in the municipal administration of DMC.

 The Court confirms the discretionary power of the governor under the DMC Act

Supreme Court emphasised that the DMC act as enacted by the parliament, mandates the Governor to exercise the nomination power. This aligns with certain exceptions, outlined in Article 239AA(4) of the constitution which allows the governor to act in “discretion”. The court dismissed the claim that this power was merely a  “semantic lottery”, noting that it was explicitly granted through the 1993 amendment.

Delhi Government’s Argument on LG’s nomination authority 

In its petition, the Delhi government contends that the LG should not unilaterally make appointments, circumventing the elected government. It further asserted that the term “Administrator” in article  239AA of the constitution ( Special provisions for Delhi ) should be understood as an Administrator/LG acting based on the aid and advice of the Council of Ministers. It states that in GNCTD  the LG has two options either to accept the recommendations by the elected government or to transfer them to the President of India.

Arguments in Delhi government vs. LG case 

Senior advocate Dr Am Singhvi, representing the Delhi Government, argues that for 30 years, the LG had adhered to the practice of making appointments only with the recommendations of the council of ministers. He referred to the SC’s 2018 decision in State ( NCT of Delhi) v Union of India which states that Article 239AA grants exclusive executive powers to the elected government over subjects in the state as well as concurrent list, Though it had few exceptions including land, police, and public order. Singhavi contented that the nominations fall under the ‘local government in the state list, which does not fall under the purview of the excepted subjects. In contrast, Additional Solicitor General Sanjay jain representing the LG, argues that the role of the LG under Article 239 AA differs from the role of the administrator regarding local body nominations under the DMC Act asserting the “ aid and advice” of the Delhi government is not required for the statutory powers that were conferred with LG under this act.

During the court proceedings, CJI Chandrachud noted that the LG’s powers to appoint members to the MCD could potentially undermine the democratically elected MCD, given that the aldermen can join the standing committees and exercise voting rights.

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