In what was arguably the only silver lining for the AAP government in the Delhi High Court’s verdict Thursday, the bench of Chief Justice G Rohini and Justice Jayant Nath held that as far as appointment of special public prosecutors (SPPs) “to represent police and prosecution” was concerned, the Lieutenant Governor was required to act on the advice of the Delhi cabinet.
The court stated, “In our considered opinion, the Lt Governor under Section 24(8) of CrPC… exercises the executive functions of the State. Hence, the said power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution.”
The differences between LG Najeeb Jung and the Delhi government, over the appointment of SPPs, dates back to September last year. On September 3, 2015, the home department of the Delhi government had nominated former chief prosecutor of Delhi, advocate B S Joon, as the special prosecutor in the trial related to the FIR registered in the CNG fitness test ‘scam’.
A day after, the LG approved the appointment of advocate Sanjay Kumar Gupta, on the “request” of Delhi Police. The special court hearing the case had refused to accept Joon as the SPP, claiming that the LG was the competent authority to appoint the prosecutor. On September 24, the High Court had issued a stay on the trial.
On Wednesday, the court stated, “We are of the view that it is not open to the Lt Governor to appoint the Special Public Prosecutor on his own without seeking the aid and advice of the Council of Ministers.” It also directed that the special court will now pass a fresh order on the appointment of the special public prosecutor.