Lieutenant Governor Can Nominate Delhi Municipal Corporation Members Without Ministers' Advice: Supreme Court

In the December 2022 elections to the Delhi Municipal Corporation, the Aam Aadmi Party won 134 of the 250 wards (para 3). On 03.01.2023 the Lieutenant Governor nominated ten persons under Section 3(3)(b)(i) of the DMC Act, and the notification and a corrigendum were published in the Gazette (para 3). The Government of NCT of Delhi sought certiorari under Article 32 to quash them and a direction that nominations be made only on the aid and advice of the Council of Ministers (para 4). It relied on a practice of over 30 years of nominations on such advice (para 7).

The 2018 and 2023 Constitution Bench rulings hold that once Parliament legislates on a State or Concurrent List subject, the executive power of the Delhi Government is limited by that law (paras 13-15, 18-20). The Lieutenant Governor is not placed like a State Governor under Article 163, since Article 239AA(4) lets him act in his discretion where he is so required 'by or under any law' (para 21). The DMC Act, a Parliamentary law under Entry 5 of the State List, was amended in 1993 to give effect to Article 239AA and Part IX-A (paras 17, 26-27). The power to nominate came in for the first time with that amendment, which gave the power to nominate MLAs to the Speaker in the same Section, so it is no relic or 'semantic lottery' (paras 29, 37). The Act gives the Lieutenant Governor functions of an independent authority, such as appointing the Election Commissioner and convening the first meeting, while the Government's powers concern rules, taxes and recruitment (paras 32, 35-36). Text and context together show a statutory duty (paras 37-38).