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Why has the Supreme Court held that the power exercised by the lieutenant governor of Delhi to nominate persons to the DMC is his statutory duty and not an act done in the exercise of executive power of the Delhi government?
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IN a ruling constricting the role of the elected government of Delhi, the Supreme Court has ruled that the lieutenant governor (LG) is not bound by the aid and advice of the council of ministers of the National Capital Territory of Delhi (NCTD) while nominating persons with special knowledge in municipal administration to the Delhi Municipal Cooperation (DMC).
A Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud, Justice P.S. Narasimha and Justice J.B. Pardiwala held that the power exercised by the LG under the DMC Act, 1993 to nominate persons to the DMC is his statutory duty and not an act done in the exercise of executive power of the Delhi government.
The ruling comes more than a year after the Supreme Court had reserved judgment on a petition filed by the Delhi government challenging the notifications issued by the LG nominating as many as ten members in municipal administration to the DMC.
“The issue arose out of the elections to the DMC held on December 4, 2022. AAP obtained a simple majority by winning 134 out of 250 wards and the BJP came second winning 104 wards.
Article 239AA(4) of the Constitution provides that "there shall be a council of ministers consisting of not more than ten percent of the total number of members in the legislative assembly, with the Chief Minister at the head to aid and advise the LG 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."
It further provides that in the case of a difference of opinion between the LG and his ministers on any matter, the LG shall refer it to the President for decision and act according to the decision given thereon by the President.
Pending such a decision, the Article further provides that it shall be competent for the LG in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
Section 3(3)(b)(i) of the DMC Act provides that the following persons shall be represented in the corporation, namely: "(i) Ten persons, who are not less than 25 years of age and who have special knowledge or experience in municipal administration, to be nominated by the administrator: Provided that the persons nominated under this sub-clause shall not have the right to vote in the meetings of the corporation."
The issue arose out of the elections to the DMC held on December 4, 2022. Aam Aadmi Party (AAP) obtained a simple majority by winning 134 out of 250 wards and the Bharatiya Janata Party (BJP) came second winning 104 wards.
On January 2, 2023, the municipal secretary, DMC, sent a note, countersigned by the commissioner, DMC that the LG would nominate ten persons to the corporation as provided under Section 3(3)(b)(i) of the DMC Act. The Orders to this effect were issued on January 3, 2023.
It is in this background that the Delhi government challenged the notifications issued by the LG. A further direction was sought to the LG to nominate persons under Section 3(3)(b)(i) of the DMC Act only in accordance with the aid and advice of the council of ministers.
Senior advocate Dr Abhishek Manu Singhvi, assisted by advocate Shadan Farasat, for the Delhi government, made multifold arguments. They argued:
Additional Solicitor General (ASG) Sanjay Jain, for the LG, argued that the LG is specifically empowered under Section 3(3)(b)(i) of the DMC Act to nominate persons of his own accord and that obligation does not fall within the duty to act on the aid and advice of the council of ministers.
Interpreting Section 3(3)(b)(i) of the DMC Act, the Bench held that it is a 'law' made by the Parliament that requires the LG to exercise the power of nomination and thus it satisfies the exception contemplated under Article 239AA(4) of Constitution permitting him to act in his discretion as he is by or under any law so required to act.
“Senior advocate Dr Abhishek Manu Singhvi, assisted by advocate Shadan Farasat, for the Delhi government, made multifold arguments.
The Bench also rejected the argument of the Delhi government that the word 'administrator' is a relic of the pre-1991 legislation when there was no legislative assembly for Delhi, for the reason that Section 3(3)(b)(i) was introduced only in 1993 to give effect to the two constitutional amendments.
It noted that the DMC Act, as amended in 1993, recognises five authorities exercising distinct powers and duties under the Act. They are: i) The Union government, ii) The government of NCTD, iii) The administrator, iv) The DMC, and v) the commissioner.
The (Amendment) Act carries out as many as 136 amendments to the principal Act to give effect to a scheme by which powers, duties and responsibilities are allocated to the authorities, depending on the functions that they perform under the Act. This also includes comprehensive amendments to Section 3(3)(b)(i) of the Act.
For instance, the Bench said that while the power of nomination of aldermen is given to the LG under Section 3(3)(b)(i), the power of nomination of members of the legislative assembly is given to the Speaker of the House under this very Section.
The Bench thus rejected the argument that the power vested in the LG continued by default or is a 'semantic lottery'.
The Bench held that the power to nominate was brought into the statute for the first time with the introduction of the 1993 amendment to the DMC Act.
"The statutory power under Section 3(3)(b)(i) to nominate persons of special knowledge was vested in the LG for the first time by the 1993 amendment to the Delhi Municipal Corporation Act, 1957 to incorporate the constitutional changes through Articles 239AA, 239AB and introduction of Part IX-A relating to municipalities.
"The power to nominate is therefore not a vestige of the past or a power of the administrator that is continued by default. It is made to incorporate change in the constitutional structure of NCTD," the Bench held.
“The Bench also rejected the argument of the Delhi government that the word 'administrator' is a relic of the pre-1991 legislation.
The Bench also observed that it could not agree with the submission of Dr Singhvi that the position of LG is akin to that of a governor in a state under Article 163 of the Constitution given that there is a distinct constitutional position as it exists for NCTD.
"There is a clear distinction between the discretionary power of the governor under Article 163 and that of the LG under Article 239AA(4). While Article 163 requires the 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 LG 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 the exercise of discretion," the Bench held.
The Bench also laid down a restatement of the relations between the Union government and the Delhi government in light of the decisions of the Supreme Court in State (NCT of Delhi) versus Union of India and the recent pronouncement in the case of Government of NCT of Delhi versus Union of India.
With regard to the legislative relationship between the Union government and the Delhi government, the Bench said the Delhi state assembly has the power to make laws for Delhi with respect to any of the matters in the State List or the Concurrent List in the Seventh Schedule.
However, this power cannot be exercised for Entry 1 (public order), Entry 2 (police) and Entry 18 (land) of the State List.
The Bench added that Parliament also has the power to make laws for Delhi with respect to 'any matter' in the three lists. This, the Bench said, is a departure from the legislative powers of the Parliament with respect to states.
“The Bench thus rejected the argument that the power vested in the LG continued by default or is a 'semantic lottery'.
Under the constitutional scheme, the Parliament does not have legislative competence over entries in List II for states. But in the case of Delhi, the Parliament has the power to make laws even with respect to matters enumerated in List II.
The Bench further held that once the Parliament exercises its legislative power and makes a law on a subject in List II (State List) or List III (Concurrent List), the legislative assembly of Delhi is denuded of its legislative competence to make laws with respect to that subject.
Importantly, the Bench observed that once there is no legislative power for the Delhi assembly, there would be no executive power as executive power is always coextensive and coterminous with legislative power.
Explaining the executive relationship between the Delhi government and the Union, the Bench observed that the Delhi government has executive power in relation to all matters with respect to which the Delhi assembly has the power to make laws.
Similarly, the Union of India has an exclusive executive power with respect to matters in Entries 1, 2 and 18 of the State List, which are specifically excluded from the legislative power of the Delhi assembly.
It added that the executive power of the Delhi government is to be exercised through the LG, who is required to act on the aid and advice of the council of ministers.
However, here also there is a departure for the Delhi government in that while the governor of a state under Article 163 acts on the aid and advice of the council of ministers on all matters except when he is by or under the Constitution required to exercise his functions in his discretion, the LG, under Article 239AA(4) is to exercise discretion, "in so far as he is, by or under any law, required to act in his discretion".
“Under the constitutional scheme, the Parliament does not have legislative competence over entries in List II for states.
"'Law' requiring him to act at his discretion could be a law of the legislative assembly of NCTD or a parliamentary law," the Bench said.
The Bench said once the Parliament makes a law on the subject over which Delhi's legislative assembly has competence and consequently executive power then the powers, duties and obligations of the authorities will then be governed by the mandate of the law made.
Importantly, the Bench noted that if the law vests a power, duty or obligation on the LG, the LG will act under the mandate of the Act and not as per the 'executive power' of the government of Delhi.
Thus, statutory provisions alone will determine whether the power is intended to be exercised by the LG on his own accord or the aid and advice of the council of ministers.
Applying this restatement of the relations between the Union government and the Delhi government, the Bench turned to the controversy at hand.
“The Bench noted that if the law vests a power, duty or obligation on the LG, the LG will act under the mandate of the Act and not as per the 'executive power' of the government of Delhi.
It pointed out that the statutory power under Section 3(3)(b)(i) of the DMC Act, to nominate persons of special knowledge, was vested in the LG for the first time by the 1993 amendment to the DMC Act to incorporate the Constitutional changes through Articles 239AA, 239AB and introduction of Part IX-A relating to municipalities.
The power to nominate, the Bench declared, is not a relic of the past or a power of the administrator that is continued by default. It is made to incorporate change in the constitutional structure of Delhi.
It opined that the text of Section 3(3)(b)(i) of the DMC Act, 1957 as amended in 1993, expressly enables the LG to nominate persons having special knowledge to the corporation.
"The context in which the power is located confirms that the LG is intended to act as per the mandate of the statute and not to be guided by the aid and advice of the council of ministers," the Bench said.
