Delhi violence case: L-G, govt slugfest over prosecutors


New Delhi: Delhi lieutenant-governor (L-G) Anil Baijal and the elected Delhi government led by Arvind Kejriwal are again locked in confrontation — this time over the appointment of special public prosecutors (SPPs) to argue cases related to the February communal riots in northeast Delhi.

The face-off is so intense that the L-G on Thursday decided to refer the matter to President Ram Nath Kovind, citing persistent “difference of opinion,”officials in the L-G’s office familiar with the subject said.

Documents seen by HT suggest the confrontation, brewing since April, is over whose panel of public prosecutors should represent the state in the trials pertaining to the northeast Delhi riots, which claimed 53 lives and left over 400 injured. So far, the police have registered 752 first information reports (FIRs) and arrested 1,300 people in connection with the Hindu-Muslim violence

The L-G, in a string of written communication between him and the Kejriwal government, has stated that the panel proposed by the Delhi Police should be notified and allowed to fight the cases because the riots “disturbed public order” in the capital and “effective prosecution” was needed “to restore faith of the general public and in the Delhi government”. HT has reviewed the correspondence.

The Kejriwal government wants its own panel of “independent and technically qualified” special public prosecutors to be appointed to represent the state.

On Thursday, the Kejriwal government approved a panel of prosecutors in a Cabinet meeting chaired by the chief minister. Hours later, senior officials in the office of the L-G said on condition of anonymity that Baijal was referring the matter to the President for his intervention.

A Delhi government spokesperson said: “Invoking the provision of difference of opinion this time, the L-G has not bothered to make it clear as to how ‘good governance’, a reason cited by him in his previous such orders, is being served by blatantly subverting the process of appointment of public prosecutors. This clearly appears to be a question of Delhi government’s panel versus Delhi police’s panel because the L-G has not pointed out any deficiencies in the Delhi government’s panel, nor has given reasons why Delhi Police’s panel should be preferred. Delhi Police being the investigative agency should have no role in deciding the prosecuting lawyers to maintain the independence of investigation and prosecution. Otherwise, the criminal justice system would be seriously compromised.”

The tussle began in the first week of April when Delhi police proposed a set of special public prosecutors to argue the riots cases and the L-G endorsed the move. When the file came to the Delhi government for perusal by the home minister Satyendar Jain, he shot down the police’s proposal, formed a fresh panel of lawyers and issued orders on April 16 that they be notified as the special public prosecutors.

“The proposal of the Delhi Police suffered from both technical irregularities and {was} malafide. It was malafide because certain names in the panel were found to be directly related to senior police officers. It was technically irregular because certain names had less than 10 years of experience which is a mandatory condition be appointed as a special public prosecutor,” read home minister’s noting on the file, seen by HT.

Documents showed that the Delhi police subsequently withdrew its panel and submitted a second list of special public prosecutors on April 24. But it was again shot down by the Delhi government with home minister Jain reiterating his order of notifying the government’s panel.

“The Delhi government had already issued the order for notification of its panel of advocates and since this panel was independent and technically qualified, there was no need to change Delhi government’s panel,” Jain said in his eight-page note to the L-G.

Jain met the L-G on May 21, but the differences persisted. In another file noting after the meeting, he wrote: “The L-G has not found any discrepancy on the merits in the panel proposed by the undersigned (home minister). Still, he insisted for the appointment of the panel of advocates proposed by the Delhi police.”

The L-G wrote to the government on May 23 stating that he saw no reason to suspect that the lawyers suggested by the police would not perform their duties fearlessly and impartially as officers of the court.

The L-G then invoked Article 239AA(4) of the Constitution (difference of opinion with the council of ministers) to refer the matter to the President. Baijal maintained that it was necessary to monitor the progress of these cases so that the guilty in these riots are brought to justice swiftly.

“Had this been a routine matter, I would not have invoked the difference of opinion with the proposal of the minister. These cases involved large scale communal violence and thus, require careful handling in view of the gravity and deep impact on the society… We cannot forget that these communal riots had disturbed the ‘public order’ in Delhi to a great extent and created a panic situation in the minds of the general public,” Baijal wrote in a two-page to chief minister Kejriwal and Jain.

The communication between the two centres of powers in Delhi also came down to the issue of who has control over the subject, according to the files exchanged between the L-G, Kejriwal and Jain. The Delhi government cited a Supreme Court order dated July 4, 2018, which went in its favour, to point out that “any matter” of the government should not be construed as “every matter” by the L-G and that difference of opinion should have a sound rationale.

A statement issued by the L-G’s office on Thursday evening referred to Baijal’s stand on the matter.

“The L-G is acting in accordance to the orders of the Supreme Court. The Apex court’s (Division Bench) order dated February 14, 2020 in civil Appeal 2357 of 2017 has already settled the legal position for appointment of Special Public Prosecutors in Para 172 :-

‘172) In any case, it may not be necessary to dwell much upon this aspect. The High Court has also categorically held that the power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III. In our opinion, the High Court has rightly held that in respect of these entries, the Government of NCT of Delhi has legislative competence under Article 239AA of the Constitution and that the LG under Article 239AA(4) of the Constitution shall act on the aid and advice of the Council of Ministers. This conclusion of the High Court is in tune with the judgment of the Constitution Bench. We, therefore, hold that Lieutenant Governor, while appointing the Special Public Prosecutor, is to act on the aid and advice of the Council of Ministers. This issue is answered accordingly.’

Thus, the L-G is the competent authority to appoint special public prosecutors on the aid and advice of the council of ministers. In case of difference of opinion between the L-G and his Ministers, he is not bound by the said aid and advice and can invoke the proviso to Article 239AA (4) of the Constitution,” read the statement.

This is not the first time that the L-G and the Aam Aadmi Party (AAP) government have come into confrontation. In 2018, the two sparred over appointing special public prosecutor to fight the case of the alleged assault on former Delhi chief secretary Anshu Prakash by AAP MLAs. Kejriwal and other cabinet minister then staged a nine-day sit-in protest at the L-G’s office.

In that case, the home department and the L-G wanted to appoint special public prosecutors, and home minister Jain had maintained that general public prosecutors would serve the purpose. Later, it was a Delhi court which asked for appointing a special public prosecutor after Anshu Prakash filed a plea demanding it.

source: hindustantimes