Delhi High Court on Friday took note of frequent clashes between the senior law officers in the High Court over the issue of representing Delhi Police, however, the court directed the petitioner to file rejoinder within a week, in a petition filed alleging illegal detention under Unlawful Activities Prevention Act, 1967, due to non-functioning of NIA Courts amid lockdown.

The bench comprising Justices Vipin Sanghi and Justice Rajnish Bhatnagar conducting the hearing through video conferencing noted that “We hope and expect that such issues would be similarly resolved in other cases as well, so that the focus of the Court remains on the determination of the merits of the disputes before it, rather than on such issues.”

This is not the first time when such controversy has arisen, earlier on the very first hearing of the Delhi Riots matter before Justice Muralidhar similar heated arguments took place between Mr. Mehra and Solicitor General Tushar Mehta

Advocate Mr. Rahul Mehra Standing Counsel for the GNCTD submitted that as per the law settled by this Court and the Supreme Court, it is only on the aid and advice of the Council of Ministers of the GNCTD that the power under Section 24(8) Cr.P.C. to appoint the Special P.P. or Special Counsel can be exercised by the Hon’ble Lieutenant Governor and that the Hon’ble Lieutenant Governor has no independent power to make such appointments.

Mr. Mehra further submitted that Delhi Police has accepted that position since it had applied for the appointment of Special P.P. or Special Counsel to the Ministry of Home, GNCTD, and appropriate orders have been issued by the Hon’ble Home Minister. Mr. Mehra also submitted that the issue of the Hon’ble Lieutenant Governor directly and independently appointing counsels to represent Delhi Police does not remain outstanding before this Court.

Mr. Mehra further submitted that Solicitor General, Mr. Tushar Mehta, ASG Ms. Maninder Acharya, ASG Mr. Aman Lekhi, and Senior Standing Counsel Mr. Amit Mahajan, and Advocate Mr. Rajat Nair was appointed as Special P.P/ Special Counsel to represent Delhi Police in the present case since the approval of the Delhi Government has been specifically obtained in the present case.

Senior Standing Counsel Mr. Amit Mahajan submitted that the approval of the Home Minister, Delhi Government has been obtained by the Delhi Police, to avoid the controversy and the same does not necessarily reflect the understanding of the Union of India concerning the interpretation of the judgment of the Constitution Bench of the Supreme Court in State (NCT of Delhi) Vs. Union of India & Another, (2018) 8 SCC 501.

However, the Court observed that the controversy taken note of by us in our previous order, and taken note of aforesaid, does not survive for determination in the present case.

Mr. Mehra also highlighted before the Court that the response filed by Mr. Mahajan on behalf of the Delhi Police has been submitted without the same being routed through the Office of the Standing Counsel (Criminal), which has been the consistent practice followed in the past. On this, Mr. Mahajan stated that this is a procedural aspect that would be taken care of in the future.

-India Legal Bureau

Two senior Law officers openly clashed in the Delhi High Court over who among them would appear for the Delhi Police in a case relating to illegal custody of a 25-year-old under Unlawful Activities Prevention Act, due to non-functioning of NIA Special Court.

Aman Lekhi, Additional Solicitor General submitted before the Court that he has an oral communication authorizing him to represent the Delhi Police Commissioner. But Mr Rahul Mehra, Senior Standing Counsel (Criminal Side) Delhi Government submitted before the Court that he has an objection regarding this, and further submitted that the law allows him to represent Delhi Police before the High Court. Mehra further added that he will file his reply to the petition.

However, the bench comprising Justices Vipin Sanghi and Justice Rajnish Bhatnagar conducting the hearing through video conferencing noted that such an issue should not have come up and further asked Supreme Court’s Constitutional bench order on the appointment of a Special Public Prosecutor, saying, apart from issue raised in the petition, it would also decide this aspect.

“Notice is accepted on behalf of respondents. We may state that both Amit Mahajan, Central Government Standing Counsel, and Rahul Mehra, Standing Counsel for GNCTD, accept notice. We permit both Mr Mahajan and Mr Mehra to file replies, in a week,” the order said.

This is not the first time when such controversy has arisen, earlier to this during the very first hearing of the Delhi Riots matter before Justice Muralidhar similar heated arguments took place between Standing Counsel. Rahul Mehra and Solicitor General  Tushar Mehta.

Afterward the arguments got even worst between ASG  Maninder Acharya and  Mehra when the Delhi Riots matter was listed before the Chief Justice D.N. Patel over the same issue. 

SG Mr. Mehta has always stated on such instances that he has been authorized by the Lt. Governor.

Whereas, Mr. Mehra has quoted the Delhi HC’s order on this issue that says, “It is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers”

The Delhi HC order was upheld by the Supreme Court in the case of the Government of National Capital Territory of Delhi and Ors. Vs. Union of India and Ors.

Wherein the Supreme Court had held that the confusion arises due to the special nature of Delhi which is a Union Territory with the features of a State, such as having an elected legislature. The 69th Amendment to the Constitution in 1992 added Article 239AA, which mandated an elected Assembly for Delhi. The special provisions added through the 69^th Amendment created confusion concerning the jurisdiction of the Delhi Government vis-a-vis the Centre.

The judgment stated that the executive power of the Delhi government is co-extensive with the legislative power of the Delhi Assembly. Thus the LG is bound by the ‘aid and advice’ of the Council of Ministers on all matters where the Delhi Assembly has the power to make laws.

-India Legal Bureau