The Supreme Court on Wednesday issued notice on a plea by Delhi government challenging the appointment of 'aldermen' by the Delhi Lieutenant Governor (L-G) to the MCD.
Senior advocate Abhishek Manu Singhvi, representing the Delhi government, along with advocate Shadan Farasat made submissions before a bench headed by Chief Justice of India D.Y. Chandrachud.
The top court issued notice to the office of Delhi L-G and scheduled the matter for hearing on April 10. "This is the first time since Article 239AA came into effect in 1991 that such a nomination has been made by the Lieutenant Governor completely by-passing the elected government, thereby arrogating to an unelected office a power that belongs to the duly elected government", said the government's plea.
The Delhi government sought quashing of orders dated January 3 and 4, 2023, and consequent gazette notifications, whereby the LG appointed 10 (ten) nominated members to the Municipal Corporation of Delhi (MCD) on his own initiative, and not on the aid and advice of the council of ministers.
The plea contended that nominations in question have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (DMC Act), which provides that the MCD should include, apart from the elected councillors, ten persons of not less than 25 of age and who have special knowledge or experience in municipal administration, "to be nominated by the administrator".
It further contended that neither the section nor any other provision of law says anywhere that such nomination is to be made by the administrator in his discretion.
The Delhi government said it is a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and unelected head of state are to be exercised only under the "aid and advice" of the council of ministers.
"Such an express requirement is completely lacking under either the Constitution or the statutory scheme under the DMC Act in the present case, and as such the nominations made by the Lieutenant Governor are per se unconstitutional and illegal", it added.
It stressed that the DMC Act does not vest any discretion in the L-G in the matter of nominating members to the MCD. "The only two courses of action open to him (L-G) were to either accept the proposed names duly recommended to him for nomination to MCD 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", added the plea.