Barely two days after Delhi Chief Minister Arvind Kejriwal rejected the panel of lawyers that Delhi Police chose to argue North East Delhi riot cases in court, the Lt Governor has pushed the pause button on the process.
Delhi Lieutenant Governor Anil Baijal has now chosen to invoke Article 239AA(4) of the Indian Constitution. This empowers him to refer a dispute to the President of India for consideration. Baijal, on Thursday, overturned the Delhi Cabinet’s decision to appoint a panel of lawyers of its own choice to argue the February riots cases in the High Court and Supreme Court, Chief Minister Arvind Kejriwal’s office said.
Baijal invoked Article 239AA(4) of the Indian Constitution and referred the dispute to the President of India. In the interim, the panel of lawyers chosen by Delhi Police and approved by Baijal will argue the cases.
Here is what the special power under Article 239AA(4) is:
(4) There shall be a Council of Ministers consisting of not more than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion.
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
However, as reported in the Indian Express and other media, till the President takes a decision, the panel of lawyers chosen by Delhi Police and approved by Baijal will argue the cases.
North East Delhi riots, said to be one of the worst instances of communal violence in recent times, had raged on between February 23-26, and around 53 people were killed and more seriously wounded, and thousands displaced after their homes and workplaces were looted and burned down. There were many arrests made in the case. The healing process is long and arduous.
In the meanwhile the Delhi Police had proposed that the Delhi government appoint senior lawyers, including Solicitor General of India Tushar Mehta and Additional Solicitor General Aman Lekhi, as Special Public Prosecutors in the Delhi High Court and Supreme Court, to argue in 85 cases related to riots and anti-CAA -protests.
On July 28, the Delhi Cabinet had rejected the panel of lawyers suggested by the Delhi Police to argue the Delhi riot cases. According to a statement issued by the Delhi Government then, the “Cabinet took notice of the questions raised by several courts against bias in Delhi Police’s action on riot cases, observed that under such circumstances it is not possible to expect a free and fair trial by lawyers appointed by Delhi Police.”
The Cabinet had stated that “it is a fundamental principle of criminal justice system in India and around the world that investigation and prosecution should be independent of each other, cannot see this principle being violated in Delhi.”
It had directed the Home Department to form a panel of “best possible lawyers in the country to represent these cases.” It had said that the “fair trial of these cases would not be possible by a panel of lawyers selected by the Delhi Police itself.” They added that while “anyone who is guilty of causing communal violence in Delhi should be punished severely. The Cabinet observed that at the same time there should not be any punishment or harassment of innocent people” and rejected the Lt Governers’ suggestion to approve the Delhi Police’s panel of lawyers.
The Delhi Cabinet’s note that day mentioned that “Justice Mr Suresh Kumar of the Hon’ble Delhi HC has earlier observed that the Delhi Police is taking the entire judicial system on a ride on the Delhi riot cases. The Cabinet has also noted that various session courts and media have questioned the role of the Delhi Police during the riot and its investigation. The Delhi Cabinet has observed that in such a situation the panel of lawyers of the Delhi Police would not be able to ensure justice in these cases. The Delhi Cabinet observed that these cases are very important and the Delhi government’s panel of lawyers should represent these cases.”
It had also said on record that it was “unfortunate the way Hon’ble LG has been repeatedly interfering in the decision of appointment of the panel of lawyers. Whereas the Constitution Bench of the Hon’ble Supreme Court has clearly stated in its order dated 04.07.2018 that the Hon’ble Lieutenant Governor can exercise his authority over decisions of the elected government only in the rarest of rare cases. The Cabinet noted that in this case, the Hon’ble LG had written a letter to the Hon’ble Chief Minister of Delhi for taking a decision in the cabinet, disagreeing with the panel of lawyers already set up by the Delhi government. However, Section 24 of the CrPC also mentions that the Delhi government has the right to appoint public prosecutors. Under the Constitution, the Hon’ble Lieutenant Governor of Delhi has special powers to intervene and overturn any decision of the elected government of Delhi.”
The Lt Gov could only involve his Constitutional powers after a Cabinet decision. And this is exactly what has happened even before the week ended. Delhi’s Lieutenant Governor has deemed this “the rarest of rare cases” and sought a Presidential intervention. A few days ago the Delhi government had said the “appointment of a panel of lawyers does not fall into any rare category and it is a normal procedure,” addin that it was “fully empowered to appoint lawyers”, it has been rather quiet in its response to this move by the Lt Gov.
“It is good to see AAP govt finally taking due interest in the judicial process which is being used by Delhi Police and the powers behind it to create a new narrative to put the blame on the victims, and also to somehow blame AAP govt for the riots although there is no iota of truth that the Delhi Government was in any way was involved in the riots albeit by its passivity during the first few days and failure to raise a strong voice,” said former Chairman of the Delhi Minorities Commission (DMC) Dr Zafarul-Islam Khan, whose report on the roits had revealed the role of both Delhi Poilice and Politicians. “After the riots, it promptly announced compensation for the victims which does not happen normally in riot cases,” he added.
According to a lawyer who is familiar with the North East Delhi cases, “By the time it is again resolved through courts, the trial would be conducted and concluded by lawyers of Delhi Police and the court verdict will say that the issue has become infructuous! These are violations of basic Constitutional norms with respect to criminal justice. Nobody is held accountable at the end and they keep doing it.”
The Delhi Government has also maintained silence on the detailed letter it received from eminent Delhi Citizens who had demanded that an independent probe into the riots be set up under a retired Judge.
Senior politician and activist Brinda Karat had also been raising crucial issues in court, regarding the investigation of the riot cases in courts. The citizens had written to the CM that the investigations were “totally one sided and politically motivated reports of the Delhi police regarding the communal violence is also in sharp contrast to the report and recommendations of the Delhi Minority Commission.”
The signatories included professionals, retired officers of the Government, academicians, cultural artists, authors, senior media personnel, political leaders and activists from various mass organisations like trade unions, women’s organisations and students such as Air Vice Marshal (Retd) N.I. Razzaqui (AVSM); Muchkund Dubey, (Former Foreign Secretary); Wajahat Habibullah, (IAS retd. Former Chairperson, National Commission for Minorities and first Chief Commissioner RTI); Brinda Karat, (Polit Bureau member, CPI(M)); Harsh Mander, (Social Activist, Author and Columnist); H K Dua, (Senior Journalist); Mrinal Pande, (Senior Journalist & Author); Dr. Sayeda Hameed, (Former Member Planning Commission); Shyam Menon (former VC Ambedkar University, Delhi); Githa Hariharan (Author); Swami Agnivesh; Prabhat Patnaik (Professor Emeritus, JNU) & Jayati Ghosh (Professor, CESP, JNU) and hundreds among the over 270 signatories.
The Chief Minister is yet to respond to those crucial points raised. The Delhi government led by CM Arvind Kejriwal has taken cover under the Constitutional rules and only stated this: “The L-G invoked special powers granted to him under the Constitution. The Home Department has been ordered to approve the panel chosen by the Delhi Police. The Delhi government will now have to implement the order at any cost as it is mandated by the Constitution.”