The Delhi Prosecutors Welfare Association has filed a petition before the Delhi High Court to set aside the appointment of eleven Special Public Prosecutors (SPP’s) for cases pertaining to the Delhi riots that took place in the north east regions of Delhi in February 2020 in the matter of Delhi Prosecutors Welfare Association vs Government of National Capital Territory Delhi (GNCTD). They are represented through advocates Aditya Kapoor, Kushal Kumar and Manika Goswami.
The petition challenges the notification dated October 24, 2020 issued by the Home (Police-II) Department with the approval of Lieutenant Governor, Delhi (LG) appointing SPPs for the Delhi riots cases. The petition states that this appointment on the Delhi Police’s recommendations violates section 24 of the Code of Criminal Procedure as well as the law laid down by the Supreme Court. Section 24 lays down the provisions for appointment of Public Prosecutors through Government consultations.
In Government of NCT of Delhi vs Union of India (2018) 8 SCC 501 delivered by Justice A.K Sikri held that “The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. As per the 1991 Act and the Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apart, there is no provision for concurrence. He has the authority to differ. But it cannot be difference for the sake of difference.”
It is further argued in the petition that the names of certain appointees were not even approved by Delhi Police as those advocates did not have the requisite experience of 10 years at the Bar, which is a primary condition under section 24(8) of the CrPC.
The petition moved also claims the impugned notification to be unsustainable as it was issued by the LG, Delhi without the aid and advise of the Delhi Government. “The names of the said Special Public Prosecutors were recommended by the Delhi Police and then after a tussle between the Hon’ble Lt. Governor of Delhi and the Respondent No. 1, the said names were subsequently approved by the Hon’ble President of India. The appointment of the Special Prosecutors on the recommendation of Delhi Police is a divergence from the principles of free and fair trial which is part of Article 21 of the Constitution of India”, the Petition reads.
The plea also stated that the proposal of Delhi Police to appoint SPPs was rejected by the Delhi government which decided to appoint SPPs from the enlisted advocates. A revised proposal forwarded by the police was also rejected by the Delhi government, adding that subsequently, the LG intervened in the issue and decided to proceed with the names recommended by the police. This difference of opinion between the LG and the Delhi government continued till May and he eventually invoked Article 239AA (4) of the Constitution (difference of opinion with the council of ministers) to refer the matter to the President. The President approved the 11 names suggested by the Delhi Police. With the President’s approval, Delhi government issued the impugned notification appointing the SPPs recommended by the police, the plea states.
With respect to the LG’s power under Article 239AA(4) of the Constitution that gives him the power to refer any matter to the President, the Supreme Court has emphasized on the principles of constitutional trust and morality and that it should be used as an exception and not as a general rule. “The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President”, the 5 Judge Bench of Justices Dipak Misra, D.Y. Chandrachud, Arjan Kumar Sikri, Ashok Bhushan and Ajay Manikrao Khanwilkar ruled.
Further, the petitioners have submitted that they (Delhi Prosecutors Welfare Association) sent a representation to the Delhi government against the appointment of the SPPs, but no action was taken. This matter is now slated to be heard on November 9, 2020.
There has been no coordination between the Delhi Government and the LG on appointment matters with respect to the Delhi riots since February. On February 26, Harsh Mander had filed a plea before Justices Muralidhar and Talwant Singh of the Delhi High Court seeking an independent inquiry into the north east Delhi violence. The appearance of Solicitor General, Tushar Mehta submitting that he was authorized by the LG of Delhi to appear in the matter led to a controversy when Rahul Mehra, Standing Counsel of Delhi Government, objected to it by saying that appointment of Prosecutors was the sole preserve of Delhi Government and all appointments have to happen on the aid and advice of the Arvind Kejriwal led Government.
Following that, on February 27, the Lieutenant General passed an order appointing the Solicitor General Tushar Mehta to represent Delhi Police in the case filed by Harsh Mander. On May 29, the Home Department of Delhi Government approved the appointment of Solicitor General, ASG Maninder Acharya, ASG Aman Lekhi, Standing Counsel of Union of India Amit Mahajan and Advocate Rajat Nair, as Special Prosecutors in Aqil Hussain vs State of NCT of Delhi (W.P Crl. 824 of 2020), a case related to the Delhi riots.
Communal clashes in the last week of February ravaged the north east districts of Delhi rendering 53 people dead and several injured.