The Supreme Court on Friday held that the 10 members nominated by the Delhi lieutenant governor (LG) will have no say in the appointment of mayor, deputy mayor and Standing Committee members of the Municipal Corporation of Delhi (MCD), and directed the meeting for the election to be notified within 24 hours. Once the mayor’s election is over, the court added, the person elected will preside over the remaining elections in the House.
The verdict marks a major victory for the Aam Aadmi Party (AAP), which defeated the Bharatiya Janata Party (BJP) in the December municipal polls winning 134 out of 250 wards in the Capital. The BJP won 104, and the Congress nine.
MCD convened three times in the last two months but each meeting descended into chaos, and the election of mayor could not take place due to a decision of the pro-tem presiding officer, Satya Sharma, the BJP councillor from Gautampuri, to allow voting rights to aldermen who are nominated by the LG. The AAP councillors staged protests, saying this was contrary to the Delhi Municipal Corporation (DMC) Act, 1957, and Article 243R of the Constitution of India which bars voting rights to nominated members.
The AAP’s mayoral candidate is 39-year-old professor Shelly Oberoi, and the BJP’s is 48-year-old Rekha Gupta. To be sure, the anti-defection law does not apply to municipal bodies, which means the members can vote individually without inviting censure.
On Friday. the bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said: “The prohibition on nominated members exercising right to vote shall apply to the first meeting of the corporation when the mayor and thereafter deputy mayor and Standing Committee members are to be elected.”
The bench, also comprising justices PS Narasimha and JB Pardiwala, added, “The Constitution of India Article 243R has imposed restriction in terms of which nominated members who are brought in will not have right to vote. The same restriction finds statutory recognition in Section 3 of the DMC Act.”
Noting that the election of mayor and other posts has been held up for two months, the bench remarked, “Meeting for election of mayor must happen immediately. These are important local bodies that have to be filled. It does not do any credit to us as the national capital that the mayor’s election is held up.”
The order added, “We direct the notice convening the first meeting to be issued within 24 hours. The notice shall fix the date for convening the first meeting.” The court further clarified, “It must be noted that election of mayor is to be conducted first. Once the mayor is elected, the mayor shall be the presiding authority over the election of the deputy mayor.”
Welcoming the top court verdict, Delhi chief minister and AAP convenor Arvind Kejriwal tweeted, “I thank the Supreme Court. Delhi will now get a mayor after two and a half months. It has been proven in court that LG (VK Saxena) and BJP together are regularly passing illegal and unconstitutional orders in Delhi.”
The unsuccessful mayoral polls have sparked a massive tussle, with the AAP and the BJP blaming each other for the delay. While the AAP has alleged that the BJP is trying to hijack the House so it can continue to rule MCD through nominated members, the BJP has said that the it is the AAP that does not want to elect a mayor.
On Monday, when the matter was last heard, the LG’s counsel additional solicitor general (ASG) Sanjay Jain told the court that the date of February 16 fixed for election of mayor and deputy mayor will be deferred beyond Friday.
Jain appeared on Friday for MCD, while solicitor general (SG) Tushar Mehta represented LG VK Saxena. Both submitted that aldermen were eligible to vote in the first meeting of the House, and the restraint on them to vote applied from subsequent meetings. According to them, the bar on voting by aldermen was against any decision taken by the House. It was suggested that the first meeting being necessarily for holding election, this bar would not operate.
The bench refused to accept this argument. “The source of statutory provision is contained in Article 243R of the Constitution itself,” it said. “Meetings of corporation will include all meetings including first meeting.”
The petitioner — Shelly Oberoi — was represented by senior advocate Abhishek Manu Singhvi and advocate Shadan Farasat, who cited Rule 7 of MCD (Procedure & Conduct of Business) Regulations, 1958 to further buttress the point that the elections for the posts of deputy mayor and members of the Standing Committee cannot be held simultaneously with the Mayoral elections.
The Delhi BJP said it will abide by the court’s decision.
“The BJP respects every decision of judiciary and we will abide by Supreme Court’s decision on MCD elections issue. We hope AAP too will respect the decision and allow election of deputy mayor and standing committee members to be held after mayor election. I have a strong feeling that AAP will disrupt MCD House after Mayor election as they don’t want Standing Committee to be constituted as in it BJP’s majority is a foregone calculation,” Delhi BJP spokesperson Praveen Shankar Kapoor said.
The electoral college for mayor will comprise 250 councillors, seven Lok Sabha members from Delhi, three Rajya Sabha MPs, the 14 MLAs nominated by the speaker of Delhi legislative assembly. The 10 aldermen will not have voting powers in the proceedings.
Delhi has seven BJP Lok Sabha MPs and three AAP Rajya Sabha MPs who can also take part in these elections. On December 23, the Delhi assembly speaker, Ram Niwas Goyal, also nominated 14 MLAs — 13 AAP MLAs and one BJP MLA — to the municipal corporation.
Former (retired) chief law officer of municipal corporation Anil Gupta said that the provisions for the voting rights of the aldermen and the order of holding elections were clearly outlined in the DMC Act and the presiding officer should have abided by the existing norms.
“All the officials knew that this was against the regulations. The voting powers of the aldermen have been clearly outlined by Delhi high court in 2015 Onika Malhotra judgment. They only have voting rights in zonal committees. A mess has been created and the city has been deprived of a mayor for two months. People should be held accountable for this,” said Gupta, who headed the law department when the matter related to the rights of aldermen was taken up by the Delhi high court.
