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.
Source: Barandbench
