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Thursday, December 03, 2020

In bail to Pinjra Tod’s Devangana, aspects of Delhi-Centre division of powers

The Delhi government had asked the Supreme Court to strike down the bail given by Delhi High Court to the activist who is accused in the Northeast Delhi riots case. How did the state government get into this matter when the police is under the Centre?

Written by Sourav Roy Barman , Edited by Explained Desk | New Delhi | Updated: October 30, 2020 10:33:21 am
Pinjra Tod activist Devangana Kalita

The Supreme Court on Thursday (October 28) turned down an appeal by the Delhi government to reject the bail granted to activist Devangana Kalita, accused in a case related to the Delhi riots. The state was represented in the court by the Additional Solicitor General S V Raju, who argued that Kalita could “tamper evidence” as she was an “influential person”.

However, the Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah rejected the contention of the state and upheld the Delhi High Court’s bail to Kalita.

Does subject of prosecution come under elected government in Delhi?

While Delhi is not a full state, the elected government does have the power to appoint special public prosecutors. The Supreme Court had in February 2019 ruled in favour of the elected government on this count, saying that it has the legislative competence to appoint prosecutors under Article 239AA of the Constitution.

Can Lt Governor exercise his discretionary powers in appointing prosecutors in case of difference of opinion?

Invoking Article 239AA(4), the L-G can indeed refer to the President matters on which he fails to arrive at a consensus with the elected government. The incumbent L-G Anil Baijal did precisely that when a dispute arose between the Centre and the Delhi government over the appointment of lawyers to argue the riot-related cases in courts.

While the Centre was in favour of fielding the panel of lawyers chosen by the Delhi Police, a force that it directly controls, the Delhi government was opposed to the idea.

In July, Baijal used his special powers, and thus the Centre’s choice prevailed. 📣 Express Explained is now on Telegram

Did the elected government challenge the L-G’s decision?

No, the elected government did not challenge the decision in the higher courts. It did issue a statement criticising Baijal though, adding that “the Delhi government will now have to implement the order at any cost as it is mandated by the Constitution”.

However, it pointed out that “there have been allegations” that the Delhi Police probe into the riot cases is biased and not impartial. “Therefore, in order to ensure that all facts are presented before the Hon’ble judges, it is extremely critical that the government advocates are independent of the Police,” it said.

Baijal rejected the contentions of the elected government, saying “there is no reason to imagine that the public prosecutors appointed wouldn’t perform their duty fearlessly and impartially as the officers of the court”.

Has AAP made a statement for or against bail granted to Kalita by the Delhi HC?

While the AAP government opposed the choice of lawyers to argue the riot cases, it has not disputed the stand taken by the Additional Solicitor General on the Kalita case so far. There have been no statements from Chief Minister Arvind Kejriwal or Home Minister Satyendar Jain’s office on the matter.

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