Updated: January 28, 2022 9:17:36 am
Justifying the appointment of Delhi Police-chosen and Lieutenant Governor-approved lawyers as special public prosecutors (SPPs) to conduct cases connected to the Northeast Delhi violence and farmers’ agitation, the Centre Thursday told the Delhi High Court that the FIRs involve “matters of grave national concern” and that merely because the incidents took place in Delhi would not suffice to treat them as falling under the direct control of the Delhi government.
Stating that the Constitution confers the L-G the power to refer to the President any matter for decision in case of a difference of opinion with the council of ministers, the Centre and L-G in a jointly written reply to the Delhi government’s petition against the special appointments said the Balakrishnan Committee, while recommending a legislative assembly for the union territory, stated that Delhi as the country’s capital occupied a unique position and “therefore it is in the national interest that the Central government retains a comprehensive control over the affairs of the capital to secure a high degree of security”.
Noting that the agitations against CAA and farm laws had “inception” in laws promulgated by the Parliament, the Centre said the L-G has to exercise his power for valid reasons when it “becomes necessary to safeguard national interest”. The L-G has made sufficient efforts to resolve a difference of opinion with the council of ministers, it said.
“It is being reasserted that the appointment of SPPs has not been sought in routine matters, rather the same is required due to highly sensitive nature of the cases which are directly concerning the Union government,” it said, adding that the unfortunate incidents of violence have “prompted a need for efficient, fair and just prosecution” of the cases to “retain the faith in the country’s law and order machinery”.
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Referring to the Northeast Delhi violence and anti-CAA protests in particular, the Centre said they involved a huge loss to life and property and “displayed an effort on part of miscreants” to create a rift between Hindus and Muslims, “thus directly challenging the secular character of the nation”.
“Any matter arising out of the incident warrants a direct involvement of the Union government as the incident sought to affect the unity and integrity of the country. The fact that such incidents affecting the unity and integrity of the country took place within the geographical jurisdiction of NCT of Delhi, which serves as a National Capital to the country, is evidence of the fact that the issues involved are national in character and thus, in the opinion of the respondent, was a case fit for reference to the President,” the reply reads.
With regard to the farmers’ protests, the Centre said the issue “spans” the entire country and it has a direct interest “more particularly in view of the fact that these matters, apart from being highly sensitive, have attracted a lot of international attention”.
Referring to Article 239AA (which lends domain and control of public order, police, and land in NCT of Delhi to the central government), the Centre said the law providing for special provisions with respect to Delhi has categorically excluded certain entries from the State list when it comes to the national capital.
“This is because these entries refer to matters of national importance within the capital of the country which necessarily requires Union control. Entry I relates to ‘public order’ and the [L-G] has time and again asserted that the two sets of cases relate to public order,” said the Centre.
The term ‘public order’ expressly involves cognizance of offences, search, seizure and arrest, followed by registration of FIRs, investigation, prosecution and trial, said the Centre. “The wide amplitude provided to the meaning of this term includes the appointment of special prosecutors for an efficient and just prosecution of the cases so registered,” it stated further.
The Delhi government in the petition filed last year had said police-chosen SPPs will seriously jeopardise fair trial and the L-G’s belief that they will act independently is merely wishful thinking.
It stated that it had rejected the Delhi Police’s request to appoint its chosen advocates as SPPs in January and March 2021 on the 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 to fulfil the constitutional guarantee of a fair trial. The Cabinet agreed to appoint independent SPPs which was not agreeable to the L-G, it added. The L-G had then referred the issue to the President who approved the appointment of SPPs.
“This ‘difference of opinion’ and consequent referral thereof to the President by the L-G is in the teeth of Article 239AA(4) as interpreted by the Hon’ble Supreme Court,” the government has argued, adding that the appointment of SPPs was a routine matter and not an exceptional matter for which reference was made to the President.
The government had also contended that the L-G had “no sound reason” for referring the issue to the President as the state had agreed to appoint independent SPPs. The decision to approve the SPPs chosen by the Delhi Police impinges on the independence of the SPPs and is contrary to the established legal principles and violates the constitutional guarantee of a fair trial, it had said.
The government had also argued that a prosecutor chosen by and appointed at the behest of an investigating agency cannot act independently because they have “an incentive” to do police’s bidding and will dress up any lacuna in the investigation and support police’s failure.
“This, in fact, appears to be the intention of the Delhi Police in recommending their chosen SPPs for the appointment. This is because in several cases related to the Delhi riots, police have been castigated for their shoddy investigation,” read the government petition.
In January 2021, Delhi police had sought an appointment of three SPPs to conduct the cases relating to Northeast Delhi riots and anti-CAA protests. In February 2021, police had sought the appointment of 11 SPPs chosen by it for the cases relating to farmers’ agitation. After the difference of opinion between the government and L-G, the President approved the appointments.
Similarly, the President had in 2020 also approved the Delhi Police’s list of 11 SPPs for the cases relating to riots, after a difference of opinion between the government and L-G. Though the government has not challenged the 2020 notifications, the same are under challenge in a petition filed by Delhi Prosecutors Welfare Association.
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