New Delhi: Giving the Lieutenant Governor the power to nominate aldermen to the Municipal Corporation of Delhi will mean he can destabilise an elected civic body, the Supreme Court observed on Wednesday and wondered whether these nominations were of so much concern to the Centre.
A bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala made this observation while reserving its verdict on the plea of the Delhi government challenging the Lieutenant Governor's power to nominate aldermen.
The MCD has 250 elected and 10 nominated members.
In December last year, the Aam Aadmi Party (AAP) defeated the BJP in the civic elections, winning 134 wards and ending the saffron party's 15-year run at the helm of the MCD. The BJP won 104 seats and the Congress finished a distant third with nine.
"Is the nomination of 12 specialised people in MCD of that much concern to the Centre? Actually, giving this power to the Lieutenant Governor would effectively mean that he can destabilise the democratically elected Municipal Committees because they (aldermen) will have voting powers also," the bench said.
Additional Solicitor General Sanjay Jain, appearing for the Lieutenant Governor's office said in the context of Delhi, it is pertinent to note that the 69th amendment came and GNCTD Act was notified, which collectively contain mechanism for governance of Delhi.
The 69th Amendment Act of 1991 accorded a special status to the Union Territory of Delhi by designing it as the National Capital Territory of Delhi.
The bench told Jain his submission means that MCD is an institution of self-governance and that the role of Lieutenant Governor here is distinct from the role of administrator when he acts on the aid and advice of the Council of Ministers under Article 239AA.
Referring to the Act, Additional Solicitor General Sanjay Jain said there are some powers which are entrusted to administrators and some others are given to the government.
Justice Narasimha asked Jain whether he means the power conferred upon the administrator is independent of the state and cannot be given to the state government.
Senior advocate Abhishek Singhvi, appearing for the Delhi government, said 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 Lieutenant Governor nominating aldermen on the aid and advice of the city government has been followed.
"Lieutenant Governor never appoints aldermen in his own right," he said, adding the nominations are always made by the President but on the aid and advice of the Union government.
Referring to the provisions, Abhishek Singhvi said where a file is marked to the state government, it stops at its door, but where it is marked to the Lieutenant Governor, he has to act on the aid and advice of the state government.
Sanjay Jain interjected saying just because a practice has been followed for 30 years does not mean it is correct.
Abhishek Singhvi submitted if Sanjay Jain's argument is accepted, then Lieutenant Governor after Lieutenant Governor was wrong in following this practice.
The bench said giving the Lieutenant Governor the power to nominate aldermen will effectively mean that he can destabilise a democratically elected MCD because these aldermen get appointed to the standing committees and have voting power.
Sanjay Jain, however, contended these nominated aldermen do not have much power.
Abhishek Singhvi contested Additional Solicitor General Sanjay Jain's claim and said aldermen have been appointed in ward committees and they have voting power in such committees.
The bench then asked both Abhishek Singhvi and Sanjay Jain to file their written submissions in two days and said it will pass an order on the plea.
On Tuesday, the top court had asked about the "source of power" of the Lieutenant Governor under the Constitution and the law to nominate aldermen to the MCD without the aid and advice of the elected government.
It was hearing a petition filed by the AAP government challenging the nomination of aldermen by the LG.
Jain has referred to the reply filed by the office of the Lieutenant Governor 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, is different from the one which has been projected by the Delhi government here.
He has submitted the file pertaining to nominations to the MCD directly come to the office of Lieutenant Governor as he is the administrator, and the concept of aid and advice is not applicable in this case.
Abhishek Singhvi has referred to the 2018 constitution bench judgement of the Supreme Court and its recent verdict on control over services to claim the LG has to act as per the aid and advice of the government. The senior lawyer contended the Lieutenant Governor 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 LG has directly appointed members in the MCD and earlier it was always based on aid and advice (of the government)," Abhishek Singhvi has said in this arguments.
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 ruled last Thursday 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.
In the petition filed through lawyer Shadan Farasat, the Arvind Kejriwal government has challenged the decision of the Lieutenant Governor 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 Lieutenant Governor'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.
The petition claimed no proposal was allowed to originate from the elected government and the file pertaining to the nomination of aldermen was circulated to the departmental minister only on January 5, after nominations had already been made and notified.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)