Source: Supreme Court

Why in News?

A bench of Chief Justice of India DY Chandrachud, Justice PS Narsimha and Justice JB Pardiwala held that the Lieutenant Governor (LG) shall not be guided by the aid and advice of the Council of Ministers while nominating the members under Section 3(3)(b)(i) of Delhi Municipal Corporation Act, 1957 (DMC).

• The Supreme Court held this in the case of Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi.

What is the Background of Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi Case?

• In the recent election to DMC Aam Aadmi Party (AAP) won majority and Bharatiya Janata Party (BJP) came second.
• The Municipal Secretary of DMC sent a note countersigned by the Commissioner that LG will nominate ten persons to the Corporation as provided under Section 3(3)(b)(i) of the DMC Act.
• The very next day LG nominated ten members, and it was notified in the Delhi Gazette.
• The instant writ petition was filed challenging the legality and propriety of the nominations by LG.
• The petitioners have requested to quash the notifications by writ of certiorari and direct the LG to nominate the persons in accordance with the Council of Ministers' aid and advice.

What were the Court’s Observations?

• The Court first of all discussed in detail the duties conferred on the LG and the powers and duties entrusted to the Government of National Capital Territory of Delhi (NCTD) by the DMC Act.
• The Court laid down the following two points of law:
  • The statutory power to nominate under Section 3(3)(b)(i) was introduced for the first time by the 1993 Amendment Act. The power to nominate is therefore not a vestige of the past or a power of the Administrator that is continued by default.
  • The ‘text’ of Section 3(3)(b)(i) of DMC Act, 1957 expressly enables the LG to nominate persons having special knowledge. The power seen in the ‘context’ in which it is located confirms that the LG is intended to act as per the mandate and not guided by the aid and advice of the Council of Ministers.
• Thus, the Court held that the notifications issued by the LG under Section 3(3)(b)(i) are not in violation of Article 239AA read with Section 41 of Government of NCT of Delhi.

What is the Legislative History of Delhi Municipal Corporation Act (DMC)?

• It is to be noted that presently the Delhi Municipal Corporation is composed of :

(i) councillors chosen by direct elections from the ward;

(ii) person nominated through nominations (earlier the Act used the expression ‘aldermen’ for them but it was deleted after 1993 amendment).

• The Municipal Administration in Delhi is governed by the DMC Act enacted by the Parliament in 1957.
• Interestingly, there was no provision with respect to aldermen when the bill was introduced but when it was notified Section 13 provided for nomination of aldermen by the councillors.
• Constitution (Sixty Ninth) Amendment Act
  • In 1991 Constitution (Sixty Ninth) Amendment Act came into force which introduced Article 239 AA and Article 239AB in Part VII of the Constitution which led to the constitution of Special assembly for NCT of Delhi with certain special features including redesignation of Administrator as LG.
  • Following this, the Parliament enacted the Government of NCT of Delhi Act, 1991 to give full effect to the constitutional amendment.
• Constitution (Seventy fourth) Amendment Act
  • Part IXA relating to Municipalities came into effect from 1st June 1993.
  • Thus, this amendment granted autonomy to municipal administration, it’s elections, composition etc.
• In order to incorporate the above two amendments, the DMC Act was amended in 1993.
• The 1993 Amendment to DMC Act
  • It recognized five authorities exercising distinct powers and duties:
    • Central Government
    • Government of NCT of Delhi
    • Administrator
    • Corporation
    • The Commissioner
  • This is the amendment that introduced the provision that gives power to the Governor to nominate the Aldermen.

What is the Composition of Corporation under the DMC Act?

• Section 3(3) (b) of DMC Act provides that the Corporation shall be composed of:
  • 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;

• • members of the House of the People representing constituencies which comprise wholly or partly the area of the Corporation and the members of the Council of States registered as electors within the area of the Corporation.
  • as nearly as possible one-fifth of the members of the Legislative Assembly of the NCT of Delhi representing constituencies which comprise wholly or partly the area of the Corporation to be nominated by the Speaker of that Legislative Assembly, by rotation, every year:

Provided that while nominating such members, by rotation, the Speaker shall ensure that as far as possible all the members are given an opportunity of being represented in the Corporation at least once during the duration of the Corporation;

• • The Chairpersons of the Committees, if any, constituted under sections 39, 40 and 45, if they are not councillors.

What is the Executive and Legislative Relationship Between the Government of NCT of Delhi and the Union Government?

• Legislative Relationship:
  • The Legislative Assembly of NCT of Delhi has power to make laws with respect to “any of the matters” enumerated in State list or Concurrent List (Except Entries 1, 2 and 18 of State list).
  • Notwithstanding the above, Parliament shall have power to make laws (legislative power) for NCT of Delhi with respect to ‘any matter’ in the three lists. This is where the departure from the legislative powers of Parliament with respect to States can be seen.
    • The Parliament has the power to make laws even with respect to matters enumerated in List II for NCT of Delhi.
  • Law made by the Parliament shall prevail over the law made by the Legislature of NCT of Delhi irrespective of which law came earlier. The only exception is when the law made by the Legislative Assembly of NCT of Delhi receives Presidential assent.
  • Once, the Parliament exercises the power to make laws with respect to any matter in List II and List III, the Legislative Assembly of NCT of Delhi is denuded of it is legislative competence to make laws with respect to that subject.
• Executive Relationship
  • The executive power of Government of NCT of Delhi extends to all matters enumerated in List II and List III (Except entries1,2, and 18).
  • Union of India shall have 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 NCT of Delhi.
  • The executive power of the Government of NCT of Delhi shall be exercised through the LG who shall act on the aid and advice of Council of Ministers.
    • There is a difference between governor of State under Article 163 of the Constitution of India, 1950 (COI) and the LG.
    • The Governor of the State under Article 163 acts on the aid and advice of 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’.
      • ‘law’ could be Parliamentary law or law of Legislative Assembly of NCT of Delhi.
  • Once the Parliament makes law on a subject matter over which NCT of Delhi also has legislative power and consequently executive power the powers, duties and obligations of the authorities will be governed by the mandate of the Law made.
    • Therefore, here the statutory provision alone will determine if LG acts on its own accord or on the aid and advice of the Council of Ministers.

How Powers are Distributed Between Union Government and Government of NCT of Delhi?