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Delhi HC issues notice on Delhi govt plea against LG nod to Delhi Police to appoint its chosen advocates in farmer stir, NE Delhi riots cases

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The Delhi High Court has today issued notice in a plea by the Aam Aadmi Party-run Delhi Government against the decision of the Lieutenant Governor in allowing the appointment of Delhi Police’s chosen advocates as Special Public Prosecutors (SPP) in cases related to farmers’ agitation and the Northeast Delhi riots. 

The AAP government alleged that the LG’s attempt to link the appointment of SPPs to ‘public order’ is “disingenuous” in terms of the orders passed by the Apex Court in “NCT of Delhi Vs Union of India” wherein it was categorically held that appointment of SPPs relates to Entries I and II in the Concurrent List. “In fact, public order is being resorted to create a back door to encroach upon Concurrent list items, where the petitioners Council otherwise has executive powers to the exclusion of the Central Government,” the plea stated. 

Today, a bench led by Chief Justice D.N. Patel and Justice Jyoti Singh has issued notice and list the matter for further hearing on October 21. Senior Advocate Abhishek Manu Singhvi and Senior Advocate Rahul Mehra appeared on behalf of the Delhi Government.

It was submitted that this ‘difference of opinion’ between the Cabinet of the Petitioner (Delhi Govt) and Respondent No 1 (Lieutenant Governor) arise from the cabinet resolution which had rejected the request of the Delhi Police’s to appoint its chosen advocates as SPPs in the said cases on the principled ground that the ‘prosecutor’ must be independent of the ‘investigator’ in keeping with the prosecutor’s role as an independent officer of the Court and in order to fulfil the constitutional guarantee for a fair trial.

By its writ petition, the Delhi Government challenges 2 orders dated 23.07.2021 of Respondent No.1 whereby he has invoked the proviso to Article 239-AA(4) of the Constitution to:

a.refer to the President for decision the matter of appointment of Delhi Police’s chosen advocates as Special Public Prosecutors (“SPP”) under S.24(8) of the Code of Criminal Procedure 1973 (“CrPC”) in cases related to the farmers’ agitation and February 2020 riots in North-East Delhi/ Anti-CAA protests; and

b.appoint Delhi Police’s chosen advocates as SPPs to conduct the said cases, pending a decision from the President.

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The Delhi Government has stated that Reference to President can be made only in exceptional situations and that too for constitutionally valid reasons. “In State (NCT of Delhi) v Union of India, (2018) 8 SCC 501, a Constitution Bench of the Supreme Court, in order to give effect to the representative form of government as envisaged by Article 239AA, has held that the executive power of the Petitioner extends to all matters in the Concurrent List and State List (except Entries 1, 2 and 18) to the exclusion of the Central Government, and in such matters Respondent No.1 is bound by the aid and advise of the Petitioner,” it said. 

The plea further alleges, “Appointment of SPPs chosen by the Delhi Police impinges on the independence of the SPPs and violates the constitutional guarantee of a fair trial.” 

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