What is Delhi LG's source of power, Supreme Court wants to know

The Supreme Court on Tuesday asked about the ”source of power” of the lieutenant governor under the Constitution and the law to nominate 10 aldermen to the Municipal Corporation of Delhi (MCD) without the aid and advice of the elected government. 

A bench headed by Chief Justice D Y Chandrachud, hearing a petition filed by the Aam Aadmi Party government challenging the nominations by the LG to the MCD, asked additional solicitor general Sanjay Jain, appearing for the office of the lieutenant governor, about the source of power with regard to the nominations.

”What is the source of power for you to nominate? Show us the source of power of LG. Does the Constitution recognise the power of LG to appoint aldermen,” the bench asked.

The law officer referred to the reply filed by the office of the LG and the constitutional scheme and said the concept ”aid and advice”, in the context of the administrator's power to nominate members in the MCD, is different from the one which has been portrayed by the Delhi government here. 

Jain said the file pertaining to nominations to the MCD directly came to the office of LG as he is the administrator and the concept of aid and advice is not applicable in this case. 

On being told that the office of the LG has filed its fresh response to the petition, the bench said it will hear the plea on Wednesday after perusing the reply.

Senior advocate Abhishek Singhvi, appearing for the Delhi government, referred to the 2018 and recent Constitution bench judgments on control over services and said the LG has to act as per the aid and advice of the government and he 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 last 30 years, the LG has directly appointed members in the MCD and and earlier it was always based on aid and advice (of the government),” he said. 

Earlier on May 12, the top court observed the lieutenant governor 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 held on 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.

”Why don't you (additional solicitor general Sanjay Jain, appearing for the office of the LG) advise the LG that he cannot nominate members in the MCD? He has to act as per the aid and advice of the government,” the CJI had said.

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.

”This is the first time such a nomination has been made by the LG completely bypassing the elected government, thereby arrogating to an un-elected office a power that belongs to the duly elected government,” it said.

Referring to the constitutional scheme pertaining to Delhi, it said the word ’administrator' must necessarily be read as the administrator, who is LG here, acting on the aid and advice of the council of ministers.

The petition underlined that according to the provisions of the Delhi Municipal Corporation Act, apart from the elected councillors, the MCD also had to include 10 people, above 25 years of age, having special knowledge or experience in municipal administration, which were to be nominated by the administrator.

”It is pertinent to note that neither the section (of the MCD 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.

It said it was a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and un-elected head of state were to be exercised only under the ”aid and advice” of the council of ministers, but for some ”exceptional spheres” where they were expressly required by law to act in their discretion.

”Accordingly, under the constitutional scheme, the LG is bound to act on the aid and advice of the council of ministers and, if there is a difference of opinion, he may refer the matter to the President and under no circumstances does he have any independent decision-making power,” the petition claimed.

It said the only two courses of action open to the LG were to either accept the proposed names duly recommended by the elected government, or to differ with the proposal and refer the same to the president.

”It was not open to him at all to make nominations on his own initiative, completely circumventing the elected government. As such, the nominations made by the LG are ultra vires and illegal, and are consequently liable to be quashed,” it said.

The petition claimed no proposal was allowed to originate from the elected government and the file pertaining to the nomination of members was circulated to the departmental minister only on January 5, after nominations had already been made and notified.