SC rules Delhi L-G can directly nominate Municipal Corporation ‘aldermen’: What was the case?

In January, the Delhi L-G nominated 10 aldermen by invoking his powers under Section 3 of the Delhi Municipal Corporation Act, 1957 (DMC Act). However, with the legality of the nomination in question, key functions of the MCD came to a halt.

Who are aldermen and why was their nomination by the Delhi L-G been challenged?

Why are aldermen integral to the functioning of the MCD?

Under the DMC Act, Delhi is divided into 12 zones. The Act also creates a ‘Wards Committee’ for each zone comprising elected representatives and the aldermen within that territory. The Delhi L-G under Section 3 the DMC Act is empowered to nominate 10 aldermen who must be above 25 years of age and “have special knowledge or experience in municipal administration”. Though the aldermen do not have the right to vote in the MCD meetings, they play a crucial role in the functioning of the house through the Ward Committee.

Each of the 12 Wards Committees must elect a member to be a part of the MCD Standing Committee in their first meeting. Aldermen can vote in these elections and stand as candidates for being elected as a member of the Standing Committee. The remaining six Standing Committee members are chosen directly by the MCD house after the mayoral elections.

Though the Mayor is the nominal head of the MCD, the Standing Committee effectively manages the functions of the corporation, and it cannot be constituted without the alderman participating in the voting process. Without this committee, the MCD cannot perform crucial functions, including entering into contracts involving more than Rs. 5 crore expenditure, appointing MCD officers to key positions, recommending budget revisions, or approving any exercise of power involving expenditure beyond the current year.

A separate petition was filed in January 2024 by Delhi Mayor Shelly Oberoi for the SC to allow the MCD to directly exercise the powers of the Standing Committee, while the case against the aldermen nomination is being heard. Upon mentioning this case on July 29, the bench led by Chief Justice of India D Y Chandrachud directed Oberoi’s counsel, Senior Advocate Dr. A M Singhvi, to wait and indicated that the judgment in the aldermen nomination case would soon be pronounced.

Why is the nomination of aldermen in question?

Article 239AA of the Constitution of India contains special provisions for the National Capital Territory of Delhi. Crucially, it provides for the creation of the Delhi Legislative Assembly, the Council of Ministers which comprises members of this assembly, and the offices of the Chief Minister and the the Delhi L-G.

The article states that the Council of Ministers and the Chief Minister will “aid and advise the Lieutenant Governor 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”. The assembly has the power to make laws on all subjects in the State List except for laws that govern ‘Public order’ (entry 1), ‘Police’ (entry 2) and ‘Land’ (entry 18).

In December 2022, the Aam Aadmi Party won the Municipal Corporation Elections, winning 134 of the 250 seats in the MCD house. This ended the BJP’s 15-year run as the majority party in the MCD. On January 3, 2023, the Delhi L-G issued a notification nominating 10 persons as aldermen under Section 3 of the DMC Act. The next day, the notification was modified and two of the members were replaced.

The Delhi government filed a plea for the quashing of both notifications at the Supreme Court in March 2023. They argued that the notifications were illegal as the Delhi L-G can only make nominations based on the ‘aid and advice of the Council of Ministers’ because of the special status given to the NCT of Delhi under Article 239AA of the Constitution of India.

It also relied on the apex court’s 2018 decision in State (NCT of Delhi) v. Union of India, where the court held that the Delhi L-G was bound by the aid and advice of the Council of Ministers in all matters related to subjects under the State and Concurrent lists (besides the three excluded subjects). The Delhi government also pointed out that one of the subjects in the State List is ‘Local Government’ (Entry 5).

The Delhi L-G, on the other hand, argued that the DMC Act carved out a specifically defined role for the ‘Administrator’ (the Delhi L-G) giving him the power to nominate aldermen. He claimed that while exercising this power that was specifically provided under a statute, it is not necessary to seek out the aid and advice of the Council of Ministers.

What did the court rule?

The bench of Justices P.S. Narasimha and P.V. Sanjay Kumar referred to the five-judge bench decision in Government of NCT of Delhi v. Union of India (2023) to arrive at its decision. In 2023, the apex court held that Parliament would have the power to legislate over subjects in the State List as well, when it comes to the NCT of Delhi. In this case that would include passing laws over ‘local government’, which is subject under the State List and would cover the DMC Act.

As the DMC Act gives the Delhi L-G the ‘explicit’ power to nominate aldermen without any requirement to consult the Council of Ministers, the court held that the nomination of 10 aldermen in January 2023 was a valid exercise of power.