L-G can nominate 10 aldermen to Delhi corporation, rules SC

L-G can nominate 10 aldermen to Delhi corporation, rules SC

Sub: Polity

Sec: Constitution

Context: Fifteen months after reserving its verdict, the Supreme Court held on Monday (August 5) that the Centre-appointed Delhi Lieutenant Governor (L-G) has the power to nominate ‘aldermen’ to the Municipal Corporation of Delhi (MCD) without the aid and advice of the Council of Ministers from the Delhi Government.

Details:

The bench of Justices P.S. Narasimha and P.V. Sanjay Kumar held that the Delhi Municipal Corporation Act, 1957 (DMC Act) gives the Delhi L-G the ‘explicit’ power to nominate aldermen without any requirement to consult the Council of Ministers, and held that the nomination of 10 aldermen in January 2023 was a valid exercise of power.

In January, the Delhi L-G nominated 10 aldermen by invoking his powers under Section 3 of the Delhi Municipal Corporation Act, 1957 (DMC Act). However, with the legality of the nomination in question, key functions of the MCD came to a halt.

Who are aldermen and why was their nomination by the Delhi L-G been challenged?

Under the DMC Act, Delhi is divided into 12 zones. The Act also creates a ‘Wards Committee’ for each zone comprising elected representatives and the aldermen within that territory. The Delhi L-G under Section 3 the DMC Act is empowered to nominate 10 aldermen who must be above 25 years of age and “have special knowledge or experience in municipal administration”. Though the aldermen do not have the right to vote in the MCD meetings, they play a crucial role in the functioning of the house through the Ward Committee.

Each of the 12 Wards Committees must elect a member to be a part of the MCD Standing Committee in their first meeting. Aldermen can vote in these elections and stand as candidates for being elected as a member of the Standing Committee. The remaining six Standing Committee members are chosen directly by the MCD house after the mayoral elections.

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Though the Mayor is the nominal head of the MCD, the Standing Committee effectively manages the functions of the corporation, and it cannot be constituted without the alderman participating in the voting process. Without this committee, the MCD cannot perform crucial functions, including entering into contracts involving more than Rs. 5 crore expenditure, appointing MCD officers to key positions, recommending budget revisions, or approving any exercise of power involving expenditure beyond the current year.

Why is the nomination of aldermen in question?

Article 239AA of the Constitution of India contains special provisions for the National Capital Territory of Delhi. Crucially, it provides for the creation of the Delhi Legislative Assembly, the Council of Ministers which comprises members of this assembly, and the offices of the Chief Minister and the Delhi L-G.

The article states that the Council of Ministers and the Chief Minister will “aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion”. The assembly has the power to make laws on all subjects in the State List except for laws that govern ‘Public order’ (entry 1), ‘Police’ (entry 2) and ‘Land’ (entry 18).

What did the court rule?

• The bench of Justices P.S. Narasimha and P.V. Sanjay Kumar referred to the five-judge bench decision in Government of NCT of Delhi v. Union of India (2023) to arrive at its decision. In 2023, the apex court held that Parliament would have the power to legislate over subjects in the State List as well, when it comes to the NCT of Delhi. In this case that would include passing laws over ‘local government’, which is subject under the State List and would cover the DMC Act.
• As the DMC Act gives the Delhi L-G the ‘explicit’ power to nominate aldermen without any requirement to consult the Council of Ministers, the court held that the nomination of 10 aldermen in January 2023 was a valid exercise of power.
• In view of the distinct constitutional position as it exists for NCTD(National Capital Territory of Delhi), the position of Lt. Governor is akin to that of a Governor in a State under Article 163 of the Constitution.
• There is a clear distinction between the discretionary power of the Governor under Article 163 and that of the Governor under Article 239AA(4).While Article 163 requires Governor of a State to act on the aid and advice of the Council of Ministers, ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’, the exception in so far as the Lt. Governor, under Article 239AA(4) is concerned, he will act in his discretion, ‘in so far as he is required by or under any law’. Article 239AA of the Constitution takes into account the unique position of NCTD and therefore adopts the mandate of ‘law’ as a distinct feature for exercise of discretion”.
• In its analysis, the Court referred to Article 239AA of the Constitution, as per which Council of Ministers is to aid and advise the LG in relation to matters where the Delhi Legislative Assembly has power to make laws. It was observed that sub-Article (4) of the same provides an exception to the rule, that is where the LG is, by or under any law, required to act in his discretion.
• With regard to Delhi, reference was made to Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, which was introduced by an amendment in 1993 (post-introduction of Article 239AA in 1991).