Supreme Court's MCD aldermen judgment: Reading the Constitution quite literally

Earlier this week, the Supreme Court delivered another judgment in a series of disputes between the Union-appointed Lieutenant Governor of Delhi and the elected government (National Capital Territory of Delhi – NCTD). The bone of contention was Section 3(3)(b)(i) of the Municipal Corporation Act, 1957, which empowers the Lieutenant Governor to nominate ten persons with special knowledge in municipal administration to the Municipal Corporation of Delhi (MCD).

The Court was asked to consider whether the said power is to be exercised independently or in accordance with the aid and advice of the Council of Ministers of the NCTD. In a short judgment, the Court held that the Lieutenant Governor has to exercise the power independently, underscoring the sui generis constitutional status of Delhi, the difference between the Governor of states and the Lieutenant Governor, and the provisions of the Delhi Municipal Corporation Act, 1957.

The judgment has evoked sharp response, and critics have termed it a blow to democracy. The Court has been criticised for giving more power to the Union government to effectively impede the working of NCTD. The Court’s judgment reminds me of a famous quote by Judge McNaughten. On being asked about his judicial philosophy, the judge remarked, ‘I simply apply the law, looking neither left nor right.’ The Court in its judgment seems to have followed this approach and interpreted the Constitution quite literally without undertaking a detailed assessment of the spirit of the Delhi Municipal Corporation Act and the relevance of long-standing conventions.

The dispute

The Delhi Municipal Corporation Act, 1957 governs the municipal administration in Delhi. Section 3 of the Act deals with the composition of the MCD, which includes both councillors chosen by direct elections and persons represented through nominations. Section 3(3)(b)(i) in particular provides that the Lieutenant Governor (LG) shall nominate ten persons who are not less 25 years of age and have special knowledge or expertise in municipal administration, to the Corporation.

The Aam Aadmi Party (AAP) obtained simple majority in the council elections held in 2022, winning 134 of 250 wards, whereas the Bharatiya Janata Party (BJP) came second, winning 104 wards. Within a month, the LG issued an order nominating ten members to the Corporation. It should be noted that the LG is appointed by the Union government, which is currently ruled by the BJP. The LG’s order was challenged by the NCTD before the Supreme Court on the ground that it was issued without the aid and advice of the Council of Ministers (CoM). It was argued that the LG mirrors the Governor in a State, and hence, is bound to act as per the aid and advice of the popularly elected government represented by the CoM, except in situations expressly provided in law.

Special status of Delhi

The judgment is part of a series of disputes between the LG and NCTD. Earlier, NCTD had successfully challenged the LG’s attempt to control appointments of civil servants in Delhi. However, later, the Union government brought an ordinance and subsequently passed legislation to undo the effect of the judgment. While discussing the dispute over the administration of Delhi, one must not forget its sui generis status. Although NCTD has an elected legislature with a Chief Minister, it is not a state but a union territory with a special status. The distinction is important when one compares the provisions regulating a state, with those regulating the NCTD.

Article 239AA creates the NCTD with elected members and a CoM, empowered to exercise both legislative and executive powers over matters in the State List (List II) and Concurrent List (List III), with the exception of certain entries. However, unlike a state, the powers of the NCTD are subject to the laws made by Parliament. For instance, Parliament can make laws on any matters in List II and III, and such law would prevail over the laws passed by NCTD on the same matters. If Parliament exercises those powers, one cannot term it unconstitutional, however undemocratic it might be. A pertinent example is the Government of National Capital Territory of Delhi (Amendment) Act, 2023, by which Parliament took away the power of NCTD over transfers and postings of officials.

Similarly, there is a key distinction between the office of the LG and a Governor in a state. A Governor is bound to act on the aid and advice of the CoM, except where the Constitution specifically requires the exercise of discretion. On the other hand, the LG is bound to act on the aid and advice of the CoM except in situations where the law requires exercise of discretion. A key difference between the two is that the number of situations where the Governor exercises independent discretion is limited and enumerated in the Constitution, whereas for the LG, Parliament can pass laws and create more instances requiring exercise of independent discretion.

Further, a provision often ignored (including in the judgment) is the proviso to Article 239AA(4), which provides that if there is a difference of opinion between LG and the CoM, the LG may refer the matter to the President for a decision and act accordingly. While the decision is pending, the LG may take immediate action on the matter, if they deem fit. The proviso indicates a key difference between the LG and Governor of a state, with the former having more powers.

LG’s independent discretion

The provision for the appointment of aldermen merely states that the said persons should be nominated by the LG. It is silent on whether the nomination should be made based on the aid and advice of the CoM. The Court fills the silence by first adopting a literal interpretation of Article 239AA, and second, a purposive interpretation of the role of the LG.

First, it holds that according to Article 239AA, the LG can exercise their independent discretion if required by law. The Act empowers the LG to nominate aldermen, which the Court reads as an indication for the exercise of independent discretion. In other words, the absence of the phrase ‘aid and advice of Council of Ministers’ in the provision is read to mean independent exercise of discretion by the LG. This is a textual reading of the provisions, and a logical conclusion is that every instance where the legislature has failed to mention the phrase ‘aid and advice of Council of Ministers’, the LG might exercise independent discretion. It reverses the spirit of the provision where following the advice of the CoM is the norm and discretion is the exception. According to the Court,

“As the law requires the Lt. Governor to exercise the power of nomination, it satisfies the exception contemplated under Article 239AA(4) to act in his discretion as he is by or under any law so required to act.”

The reasoning is unconvincing and too textual, turning the law on its head.

Second, the Court adopts a purposive interpretation of the provision, and scrutinises the spirit of the Act and the role of the LG envisaged under it, albeit briefly. It holds that the Act imposes several functions on the LG, the nature of which suggests the exercise of independent power. These functions include matters of appointing the Election Commissioner, constituting the Finance Commission, and convening the meetings of the Corporation. The Court holds that "these functions seem to suggest that they are intended to enable the authority (Lt. Governor) in which the power is vested to act as an independent body."

The Court’s reasoning here is brief, which is disappointing given the ramifications its conclusion might have. The Court does not explain how appointment of the Election Commissioner, convening the first meeting, and appointing aldermen can be equated with each other to suggest that all powers of the LG under the Act are to be exercised independently. It is possible that appointment of the Election Commissioner requires exercise of discretion since it touches upon electoral process. However, the same cannot be said about appointing aldermen, which is a power routinely vested with elected governments. Instead of painting the powers of the LG with one brush, the Court should have explored the intricacies of the Act in detail and justified its conclusion.

I believe that the Court was guided by the sui generis setup of NCTD and the Act, both of which grant the Union government and the LG significant powers over NCTD, unlike a state government, wherein the supervisory powers of the Union are limited. The Act vests significant powers in the Union government including power to make rules over the election of councillors and aldermen, making bye-laws, appointment of the Commissioner, directing a special audit, dissolving the Corporation, etc. These powers are unique to NCTD and are not present in municipal corporations in other states. Although the Court does not explicitly state this important distinction, it seems to be guided by it.

Another missed opportunity by the Court is addressing the argument of the convention regarding appointment of aldermen. Senior Advocate Abhishek Manu Singhvi, appearing for the NCTD, had argued that there was a longstanding convention of the LG nominating aldermen on the aid and advice of the CoM. In the past, the courts have shown deference to practiced conventions and taken them into account while interpreting constitutional provisions. However, the Court fails to address the argument, creating a possibility of further disregard for conventions and practices in the future.

The last few years have witnessed elected governments approaching the courts seeking protection from interference by Governors and the LG, chosen by the Union. The elected government of Delhi has been embroiled in multiple disputes with the LG, necessitating regular judicial intervention. The issue of independent discretion of the LG is important and has the potential for significant interference in day-to-day administration of NCTD. The Court should have played the role of a neutral umpire, lowered the tense pitches between the LG and NCTD, explored in greater detail the intricacies of the issue, and provided a just solution which is compliant with constitutional principles and practiced conventions. Unfortunately, it failed to do so.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.