Nominated members can't vote, observes top court

New Delhi: Nominated members of the Municipal Corporation of Delhi (MCD) cannot vote in the mayoral election and the constitutional provision is "very clear" on that, the Supreme Court observed on Monday. As a bench headed by Chief Justice D Y Chandrachud posted for Friday the hearing on a plea filed by AAP mayoral candidate Shelly Oberoi seeking early holding of the mayoral poll, Additional Solicitor General (ASG) Sanjay Jain, appearing for the office of Delhi lieutenant governor, said the February 16 poll would be postponed to a date after February 17.

"Nominated members cannot go for election. The constitutional provision is very clear," the bench, also comprising Justices P S Narasimha and J B Pardiwala, orally observed. "Nominated members should not vote. That is very well settled. It is very clear Mr Jain," the CJI told the ASG. However, Jain said he would argue on this aspect. Advocate Shadan Farasat, appearing for Oberoi, told the bench that the petitioner is seeking two directions -- nominated members should not be permitted to vote and the elections of mayor, deputy mayor and standing committee be separated.

The apex court had on February 8 sought responses of the LG office, pro tem presiding officer Satya Sharma of the Municipal Corporation of Delhi (MCD) and others on Oberoi's plea. Senior advocate A M Singhvi, appearing for the Aam Aadmi Party (AAP) leader, had pointed out that the MCD House was convened three times but the election of the mayor was not held. "We have several objections including that the pro tem presiding officer of the MCD is insisting on holding elections for mayor, deputy mayor and members of standing committee all at once.

This is contrary to the Delhi Municipal Corporation Act," he had said. Singhvi had said the other issue is the voting rights of nominated members of the House and it needs to be adjudicated. The petitioner had moved the apex court on February 7, a day after the MCD House failed to elect a mayor for the third time following a ruckus as the AAP objected to the presiding officer saying that the aldermen nominated by the LG will vote in the election. Singhvi had sought an urgent hearing of the plea saying that the presiding officer had said that let the nominated members vote despite Article 243R of the Indian Constitution. Article 243R, which deals with the issue of the composition of municipalities, reads: "Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards". Referring to the provision, Singhvi had said, "They say that all the three - mayor, deputy mayor, stating committee - will have to bear direct bar in regulation...

They then say two members of this party (AAP) be excluded because a sessions court convicted them for three months. A temporary pro tem person enabling this...It is a murder of democracy." Both the BJP and the AAP have accused each other of preventing the mayoral poll, with the bone of contention being the appointment of aldermen and their voting rights in the House. The AAP, which has a majority with 134 out of 250 elected members, has alleged that the BJP is trying to steal its mandate by giving voting rights to the nominated members. AAP mayoral candidate Oberoi had moved the top court earlier as well seeking directions to ensure mayoral election in Delhi in a time-bound manner, but the plea was withdrawn in view of the election being scheduled for February 6.

The top court had on February 3 observed that the major grievance of the petitioner was that mayoral election was not held but now the election had been notified and granted her liberty to come back in case of any grievances. The mayoral election in the national capital was stalled last month for the second time as the MCD House was adjourned indefinitely by the lieutenant governor-appointed presiding officer, following a ruckus created by some councillors. The first meeting of the newly-elected MCD House was also adjourned on January 6 amid clashes between AAP and BJP members.