Even though it has been more than two months since the elections to the Delhi Municipal Corporation were held (December 4, 2022), the city still does not have a Mayor. The Aam Aadmi Party (AAP) won 134 of the 250 wards, and the Bharatiya Janata Party (BJP), 104 wards. However, the election of the Mayor, which is normally carried out in the first session of a new Council, could not be held on three attempts — on January 6 and 24, and February 6 — as the house was adjourned following tumultuous exchanges between councillors from the BJP and AAP. The reason was that the presiding officer had allowed nominated members to vote in the election for the Mayor, Deputy Mayor, and Standing Committee of the Corporation.
The Lieutenant Governor (LG) of Delhi, V.K. Saxena, had nominated 10 members, often referred to as Aldermen, to the Municipal Corporation just before the first session. AAP members have contested the decision to grant voting rights to these LG-nominated members and have asked for the mayoral elections to be held in a court-monitored manner. In a petition filed by AAP Councillor Shelly Oberoi, a three-judge Bench of the Supreme Court headed by the Chief Justice of India D.Y. Chandrachud on Monday orally observed that “nominated members cannot go for election” while scheduling the hearing of the case for Friday. The mayoral election will now be held after the top court hears the case.
The brouhaha over Delhi’s mayoral election reveals multiple issues. At one level, it exemplifies the increasing attempt of the Union government to take control over the administration of Delhi. At another, it also raises larger questions regarding how municipal corporations are controlled by higher levels of government.
The question of whether nominated members, or alderman, can vote is fairly straightforward. Section 3(b)(i) of the Delhi Municipal Corporation (DMC) Act, 1957, provides that 10 people who have “special knowledge or experience in municipal administration” are to be nominated to the Corporation, but the proviso clearly states that such nominated persons “shall not have the right to vote in the meetings of the Corporation.” Further, Article 243R(2)(a) of the Constitution, which was introduced by the 74th Amendment, provides that state legislation can include those with special knowledge on municipal administration to be represented in municipalities but such persons shall not have the right to vote.
Given such unambiguous constitutional and statutory provisions regarding the voting rights of nominated members, it is distressing to see the mayoral elections delayed on this ground. The real legal questions that are contentious in this context are whether the LG can nominate members independently, how persons having special knowledge in municipal administration are determined, and whether the LG’s choice of members can be subject to judicial review. Instead, it is the blatant disregard of the law that the top court must now review.
The larger picture
The political machinations at the Municipal Corporation are part of the Union government’s increasing attempts to gain a stranglehold over Delhi’s governance. The most brazen exhibition of such power was the passing of the Government of National Capital Territory of Delhi (Amendment) Act, 2021. While ostensibly made to “give effect to the interpretation” of the 2018 judgment of the Supreme Court that had affirmed the primacy of the elected government in Delhi, the amendment in reality nullifies the judgment by “clarifying” that the expression “Government” shall mean the LG.
The amendment further provided that on matters specified by the LG, the Council of Ministers must obtain the permission of the LG before taking any executive decision and also imposed restrictions on the inherent rule-making powers of the Legislative Assembly.
After defanging the Legislative Assembly and the Council of Ministers of Delhi, it is now the municipal administration that the Union seeks to control. In April 2022, Parliament amended the Delhi Municipal Corporation Act to merge the North, South, and East Delhi Municipal Corporations into a single corporation, effectively undoing the trifurcation of the Municipal Corporation carried out in 2011. However, while the trifurcation was effected through an amendment passed by the Delhi Legislative Assembly, the unification was initiated by the Union government and passed by Parliament, undercutting the Legislative Assembly. Though local governments are a state subject under the Seventh Schedule of the Constitution, the Union government used its plenary powers under Article 239AA of the Constitution to pass this law. Now, the attempt is to control the unified Municipal Corporation by manufacturing a majority through nominated members.
The logjam in municipal administration in Delhi also raises larger questions about who has the authority to decide how the city is governed. The issue is not merely of the Union government trying to control the Municipal and State governments in Delhi, but of higher levels of government exercising authority over lower levels. In fact, it is the State government that mostly has a tight rein over municipal governments across India. Thirty years after the passing of the 73rd and 74th Amendments that sought to make panchayats and municipalities function as “institutions of self-government”, local governments tend to function as administrative vessels of the State government, and not as an independent level of government.
Union and State governments stifle the authority of municipal governments in multiple ways. While the 74th Amendment envisaged States to devolve a set of 18 functions to municipal governments, many of these functions continue to be exercised by state government-controlled parastatal agencies such as development authorities. The executive powers of the municipality are often vested with the State government-appointed commissioners, rendering the Mayor to a ceremonial role. Most crucially, municipalities are vested with very few revenue generating powers, keeping them reliant on grants and loans from the State and Union governments. More recently, national-level urban programmes such as the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) and the Smart Cities Mission have given the Union government a larger role in driving urban development and governance.
As local governments get weakened in the midst of an overall centralising trend in Indian polity, there needs to be more conversation about what authority each level of government should exercise. While local autonomy is crucial, higher levels of government can also have a legitimate role in local issues — to ensure regional coordination, reduce spatial inequality, or manage economic and environmental externalities, for example. However, the reasons why Union or State governments interfere in local governance is often not because of such discernable objectives but are driven by the desire to accumulate political and economic power or for short-term electoral advantage. While it is important to acknowledge and understand the realpolitik considerations driving the powers of the municipality, we should also not ignore the fundamental values of local democracy that underpin municipal authority.
Mathew Idiculla is a legal consultant based in Bengaluru and a visiting faculty at Azim Premji University