Updated: August 27, 2021 8:25:16 pm
After the Delhi government filed a petition against the Lieutenant Governor’s decision to appoint advocates chosen by Delhi Police as special public prosecutors for cases connected to the Northeast Delhi riots and farmers’ agitation, the court on Friday issued notice to the Centre and the L-G.
Police-chosen SPPs will jeopardise a fair trial in these cases and the L-G’s belief that they will act independently is wishful thinking, the government has argued.
The division bench of Chief Justice D N Patel and Justice Jyoti Singh, after brief arguments from the Delhi government, issued notice and listed the case for hearing on October 21. Senior advocate Abhishek Manu Singhvi represented the Delhi government in its petition filed through advocate Shadan Farasat.
The government stated before the court that it had rejected the Delhi Police’s request to appoint its chosen advocates as SPPs in January and March 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 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 routine and not an exceptional matter for which reference was made to the President.
Singhvi argued that as per a Supreme Court judgment, the L-G can resort to the proviso to Article 239AA(4) only in exceptional situations and to protect national interest. “The irony is PPs appointed by us are independent persons… You cannot want to have PPs who are part of the investigating arm which is the police,” submitted Singhvi, adding that the L-G has differed with the government on three occasions so far.
The government has 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, it has said.
“Neither the Delhi Police nor L-G has complaints against the work of the regular public prosecutors in conducting the cases related to the farmer’s agitation and Northeast Delhi riots,” the government has said.
The government 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 the police’s bidding and will dress up any lacuna in the investigation and support the police’s failure.
“This, in fact, appears to be the intention of the Delhi Police in recommending their chosen SPPs for appointment. This is because in several cases related to the Delhi riots, police have been castigated for their shoddy investigation,” reads 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 this month.
Similarly, the President had last year also approved the Delhi Police’s list of 11 SPPs for cases relating to riots, after a difference of opinion between the government and L-G. Though the government has not challenged last year’s notifications, the same are under challenge in a petition filed by the Delhi Prosecutors Welfare Association. The government in its petition on Friday said the L-G has been routinely interfering in the appointment of SPPs and undermining the elected government.
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