On Sunday, 19 July, AAP Rajya Sabha MP Sanjay Singh launched a broadside against the BJP, saying at a press conference that the violence which rocked north east Delhi in February was “engineered” by the BJP.
Singh also claimed that this was why the BJP and Delhi Lieutenant Governor Anil Baijal (an appointee of the Centre) were trying to get their own chosen lawyers appointed to represent the Delhi Police and act as prosecutors on the cases relating to the Delhi riots.
“Why is the BJP so desperate to engage them in the riots cases? What is it trying to achieve? Its only objective is to shield the dark faces, the dark deeds, the crimes committed by BJP. This is why the BJP government and the L-G are so desperate to get those lawyers appointed. We have lodged our protest. We want unbiased investigation and a fair trial. You must have seen that even the court has pulled up (the police) in the recent past”Sanjay Singh, AAP MP in Rajya Sabha
But why is AAP questioning the appointment of the lawyers? Who is supposed to appoint lawyers for the Delhi Police? And how will this issue be resolved?
Why are AAP & BJP at War Over Lawyers for NE Delhi Riots Cases?
1. MEHRA vs MEHTA – HOW THE TUSSLE STARTED IN DELHI HC
The tussle over who should be representing the Delhi Police in proceedings relating to the Delhi riots began in February itself, even as north east Delhi burned.
The Delhi High Court was hearing a petition on 26 February, filed by social activist Harsh Mander, in which he was asking for directions to the Delhi Police to lodge FIRs against three BJP leaders – Kapil Mishra, Anurag Thakur and Parvesh Verma – for inciting the violence.
Solicitor General Tushar Mehta appeared in the courtroom to argue on behalf of the Delhi Police and the Delhi government, claiming to have been authorised to do so by the Lieutenant Governor.
This was strongly objected to by the Delhi government’s standing counsel for criminal law matters, Rahul Mehra, who argued that the L-G could not authorise anyone to act in such a manner except on the aid and advice of the Delhi government’s council of ministers.
The bench of Justices S Muralidhar and Talwant Singh decided not to go into this issue on the day, given the urgency of the ongoing violence, allowing Mehta to offer his submissions as a law officer.
When the matter was heard by Delhi HC Chief Justice DN Patel the next day, Rahul Mehra raised his objections to Mehta’s appearance once again, but with the matter adjourned till April, the conflict was not resolved, and has not been addressed at subsequent hearings either.
Expand2. L-G vs DELHI GOVT: THE CONFUSION CONTINUES
March-April: Skirmishes in the Courts
After the face-off in the Delhi high court, things went quiet for a while. As the Delhi Police started to arrest people who they accused of orchestrating the riots, however, issues began to crop up. When these cases went to the lower courts for bail/remand, and other procedural matters, Mehra once again found himself at odds with the Solicitor General and other lawyers appointed by the L-G.
Disputes over who was to represent the state took place in the cases of Gulfisha Fatima, Safoora Zargar and Faisal Farooq, for example. Matters became so acrimonious in the Faisal Farooq case that Solicitor General Mehta withdrew from the case ‘in disgust’, although he continued to appear in the other matters.
The conflict was compounded in the cases because of the confusion over the stand of the Arvind Kejriwal-led Delhi government. While Rahul Mehra has openly and consistently stated his position on the matter, the stance of the AAP government has been less clear over the last couple of months.
May-June: Confusion Reigns
No position was expressly taken by the Delhi government till the end of May. On 29 May, however, news broke that the Delhi government’s home minister, Satyendra Jain, had in fact approved the appointment of Solicitor General Tushar Mehta, Additional Solicitors General Aman Lekhi and Maninder Acharya, as well as Amit Mahajan and Rajat Nair as Special Public Prosecutors (SPPs) for some of the Delhi riot cases.
This was confirmed by Mehra himself to the Delhi High Court in the Aqil Hussain case, and was subsequently confirmed for Gulfisha Fatima’s case as well.
However, this was not the end of the dispute.
According to the Hindustan Times, the Delhi Police submitted a separate list of 11 SPPs (not including the five listed above) to appear in the lower courts to L-G Anil Baijal in May, which he subsequently approved. These SPPs were meant to
“conduct all court proceedings including bail, trial, appeals, and all the miscellaneous matters incidental to and connected with all the FIRs which have been registered in respect of riots in north-east district (police district), Delhi or any other matter related to those FIRs).”
The AAP government had not agreed to this list of SPPs, and tried to reject it, suggesting its own panel instead. However, the L-G did not budge and then referred the dispute to the President of India to take a view, in accordance with Article 239AA of the Constitution. President Ram Nath Kovind eventually notified the appointment of all 11 SPPs on 24 June.
July: AAP Goes to War
Over the past week in July, the appointment of Mehta, Lekhi and the original few lawyers became an issue once again as the Delhi Police now wanted them appointed as SPPs for all the Delhi riots cases.
When the AAP government didn’t respond, the L-G wrote to Chief Minister Arvind Kejriwal. On Friday, 17 July, Baijal met Manish Sisodia (acting Delhi home minister), but Sisodia refused to accept the L-G’s request, according to the Indian Express, and instead insisted that Rahul Mehra should represent the state authorities.
AAP had now finally decided to come out swinging on this issue, with Rajya Sabha MP Sanjay Singh saying that it was vital for the prosecutors in the Delhi riots cases to be independent – and raising questions about the independence of the six lawyers including Mehta and Lekhi that the Delhi Police and L-G wanted to appoint.
The L-G insisted that these lawyers would perform their duties “fearlessly and impartially”, but the AAP government has not relented, leading to Sunday’s aggressive statements from Singh.
Expand3. WHAT IS THE APPLICABLE LAW IN THIS DISPUTE?
The legal issue at play here is basically who gets to appoint the lawyers to represent the Delhi Police and who will act as prosecutors in cases in Delhi.
Generally, when looking to see whether the Centre or a State have the power to do something, the first place we start is the Seventh Schedule of the Constitution of India. This schedule contains the Union, State and Concurrent Lists – which set out the list of things the Centre deals with exclusively, what the States deal with exclusively, and what both of them can deal with.
The difficulty, of course, is that Delhi isn’t exactly a State, but has a special status. This special status is set out in Article 239AA of the Constitution – with the key difference being that unlike a regular State, the Delhi government does not have the authority to frame laws and rules or take actions relating to public order, the police and land matters.
On that basis, you might think that the AAP government has got no leg to stand on when it comes to appointment of lawyers for the Delhi Police and Delhi riots cases. However, the appointment of lawyers for criminal matters is a separate issue from police and public order, and falls under item 2 of the Concurrent List.
Which means the Centre and the Delhi government have the authority to do this, as can be seen from Section 24 of the Code of Criminal Procedure.
But if both the Centre and the Delhi government can appoint lawyers, then why is there a conflict between the AAP and the L-G/BJP in the context of the Delhi riots?
For answers, we have to look at what the courts have to say on this.
Expand4. HAS THE SUPREME COURT ADDRESSED THIS?
Delhi vs Centre Judgment Part I
This is not the first time the AAP has been at loggerheads with the L-G of Delhi. In 2015, disputes arose between the Delhi government and the Centre as to whether the L-G was bound by the ‘aid and advice’ of the Delhi government (as per Article 239AA(4)), and whether his approval was needed for making and implementing policies.
Generally in constitutional law, the recipient of such ‘aid and advice’, whether the President or the Governor, is bound by it. However, because of Delhi’s special status, Article 239AA(4) has a proviso which says that if there is a difference of opinion between the L-G and the Delhi Government on “any matter”, the L-G can refer this to the President of India for a decision.
The BJP used to interpret this as meaning that the L-G (appointed by the Centre, one must remember) could literally refer any matter to the President, and therefore could effectively veto decisions made by the Kejriwal government.
The Delhi government went to the Delhi High Court and then the Supreme Court to challenge this On 4 July 2018, a 5-judge Constitution Bench of the apex court delivered a landmark decision in which it held that the L-G was bound by the aid and advice of the council of ministers, and that they couldn’t use the proviso to Article 239AA(4) as an excuse to have their own way all the time – it could only be exercised in exceptional circumstances.
Delhi vs Centre Judgment Part II
The Constitution Bench judgment didn’t go into the nitty-gritties of each individual issue that cropped up between the Delhi government and the L-G.
On 14 February 2019, however, a two-judge bench of the court examined several specific questions – including who would get to appoint Special Public Prosecutors (SPPs) for cases relating to Delhi.
The apex court has conclusively decided the issue by saying that appointment of public prosecutors comes within the purview of the Delhi government, and so the L-G, “while appointing the Special Public Prosecutor, is to act on the aid and advice of the Council of Ministers.”
It should be noted that while the Centre does have the power to appoint public prosecutors and SPPs, which is generally in cases where the Centre is involved in some way – for instance if a central agency like the NIA is involved. This has not happened in the criminal cases relating to the Delhi riots thus far.
The Centre has not attempted to appoint Tushar Mehta or Aman Lekhi or any of the other lawyers themselves till now. It has been the L-G who has been making the appointments, ostensibly at the request of the Delhi Police. As a result, it would appear that the issue falls within the scope of the February 2019 decision of the Supreme Court.
Expand5. WHAT HAPPENS NOW?
There are two ways in which this tussle can be resolved.
First, if either side pushes for the Delhi High Court to make a decision about the appointment of the Delhi Police/L-G’s choice of lawyers.
On Monday, Rahul Mehra informed the high court during the Ishrat Jahan case that the Delhi government had set aside the ‘suo motu appointment’ of SPPs by the L-G on 17 July. The L-G’s appointee, Amit Prasad, objected and insisted the L-G’s decision still stood. Justice Suresh Kumar Kait did not agree to take up the issue at the time, and noted that the question of who would represent the Delhi Police was being looked at by the court separately, Bar and Bench reported.
The AAP will likely point to the February 2019 decision of the Supreme Court and say it is clear that the L-G cannot act on his own to appoint the SPPs, and that the Delhi cabinet has to give its approval for the appointment of any such lawyers in the Delhi riots cases.
Secondly, the L-G could try to refer the matter to the President.
The lawyers appointed by the L-G argue that despite the February 2019 judgment, the proviso to Article 239AA(4) still stands, and it is justified for the L-G to refer this issue to the President in this case, because the Delhi riots cases involve issues of national importance, and the security of the capital.
If the cases are characterised as such, they would arguably fall within the concept of ‘exceptional circumstances’ in the apex court’s 2018 judgment, allowing the L-G to defy the Delhi government.
The Quint has been informed that the question of appointing these six SPPs has not yet been referred to the President, though this could change anytime in the coming days and weeks.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
MEHRA vs MEHTA – HOW THE TUSSLE STARTED IN DELHI HC
The tussle over who should be representing the Delhi Police in proceedings relating to the Delhi riots began in February itself, even as north east Delhi burned.
The Delhi High Court was hearing a petition on 26 February, filed by social activist Harsh Mander, in which he was asking for directions to the Delhi Police to lodge FIRs against three BJP leaders – Kapil Mishra, Anurag Thakur and Parvesh Verma – for inciting the violence.
Solicitor General Tushar Mehta appeared in the courtroom to argue on behalf of the Delhi Police and the Delhi government, claiming to have been authorised to do so by the Lieutenant Governor.
This was strongly objected to by the Delhi government’s standing counsel for criminal law matters, Rahul Mehra, who argued that the L-G could not authorise anyone to act in such a manner except on the aid and advice of the Delhi government’s council of ministers.
The bench of Justices S Muralidhar and Talwant Singh decided not to go into this issue on the day, given the urgency of the ongoing violence, allowing Mehta to offer his submissions as a law officer.
When the matter was heard by Delhi HC Chief Justice DN Patel the next day, Rahul Mehra raised his objections to Mehta’s appearance once again, but with the matter adjourned till April, the conflict was not resolved, and has not been addressed at subsequent hearings either.
L-G vs DELHI GOVT: THE CONFUSION CONTINUES
March-April: Skirmishes in the Courts
After the face-off in the Delhi high court, things went quiet for a while. As the Delhi Police started to arrest people who they accused of orchestrating the riots, however, issues began to crop up. When these cases went to the lower courts for bail/remand, and other procedural matters, Mehra once again found himself at odds with the Solicitor General and other lawyers appointed by the L-G.
Disputes over who was to represent the state took place in the cases of Gulfisha Fatima, Safoora Zargar and Faisal Farooq, for example. Matters became so acrimonious in the Faisal Farooq case that Solicitor General Mehta withdrew from the case ‘in disgust’, although he continued to appear in the other matters.
The conflict was compounded in the cases because of the confusion over the stand of the Arvind Kejriwal-led Delhi government. While Rahul Mehra has openly and consistently stated his position on the matter, the stance of the AAP government has been less clear over the last couple of months.
May-June: Confusion Reigns
No position was expressly taken by the Delhi government till the end of May. On 29 May, however, news broke that the Delhi government’s home minister, Satyendra Jain, had in fact approved the appointment of Solicitor General Tushar Mehta, Additional Solicitors General Aman Lekhi and Maninder Acharya, as well as Amit Mahajan and Rajat Nair as Special Public Prosecutors (SPPs) for some of the Delhi riot cases.
This was confirmed by Mehra himself to the Delhi High Court in the Aqil Hussain case, and was subsequently confirmed for Gulfisha Fatima’s case as well.
However, this was not the end of the dispute.
According to the Hindustan Times, the Delhi Police submitted a separate list of 11 SPPs (not including the five listed above) to appear in the lower courts to L-G Anil Baijal in May, which he subsequently approved. These SPPs were meant to
“conduct all court proceedings including bail, trial, appeals, and all the miscellaneous matters incidental to and connected with all the FIRs which have been registered in respect of riots in north-east district (police district), Delhi or any other matter related to those FIRs).”
The AAP government had not agreed to this list of SPPs, and tried to reject it, suggesting its own panel instead. However, the L-G did not budge and then referred the dispute to the President of India to take a view, in accordance with Article 239AA of the Constitution. President Ram Nath Kovind eventually notified the appointment of all 11 SPPs on 24 June.
July: AAP Goes to War
Over the past week in July, the appointment of Mehta, Lekhi and the original few lawyers became an issue once again as the Delhi Police now wanted them appointed as SPPs for all the Delhi riots cases.
When the AAP government didn’t respond, the L-G wrote to Chief Minister Arvind Kejriwal. On Friday, 17 July, Baijal met Manish Sisodia (acting Delhi home minister), but Sisodia refused to accept the L-G’s request, according to the Indian Express, and instead insisted that Rahul Mehra should represent the state authorities.
AAP had now finally decided to come out swinging on this issue, with Rajya Sabha MP Sanjay Singh saying that it was vital for the prosecutors in the Delhi riots cases to be independent – and raising questions about the independence of the six lawyers including Mehta and Lekhi that the Delhi Police and L-G wanted to appoint.
The L-G insisted that these lawyers would perform their duties “fearlessly and impartially”, but the AAP government has not relented, leading to Sunday’s aggressive statements from Singh.
WHAT IS THE APPLICABLE LAW IN THIS DISPUTE?
The legal issue at play here is basically who gets to appoint the lawyers to represent the Delhi Police and who will act as prosecutors in cases in Delhi.
Generally, when looking to see whether the Centre or a State have the power to do something, the first place we start is the Seventh Schedule of the Constitution of India. This schedule contains the Union, State and Concurrent Lists – which set out the list of things the Centre deals with exclusively, what the States deal with exclusively, and what both of them can deal with.
The difficulty, of course, is that Delhi isn’t exactly a State, but has a special status. This special status is set out in Article 239AA of the Constitution – with the key difference being that unlike a regular State, the Delhi government does not have the authority to frame laws and rules or take actions relating to public order, the police and land matters.
On that basis, you might think that the AAP government has got no leg to stand on when it comes to appointment of lawyers for the Delhi Police and Delhi riots cases. However, the appointment of lawyers for criminal matters is a separate issue from police and public order, and falls under item 2 of the Concurrent List.
Which means the Centre and the Delhi government have the authority to do this, as can be seen from Section 24 of the Code of Criminal Procedure.
But if both the Centre and the Delhi government can appoint lawyers, then why is there a conflict between the AAP and the L-G/BJP in the context of the Delhi riots?
For answers, we have to look at what the courts have to say on this.
HAS THE SUPREME COURT ADDRESSED THIS?
Delhi vs Centre Judgment Part I
This is not the first time the AAP has been at loggerheads with the L-G of Delhi. In 2015, disputes arose between the Delhi government and the Centre as to whether the L-G was bound by the ‘aid and advice’ of the Delhi government (as per Article 239AA(4)), and whether his approval was needed for making and implementing policies.
Generally in constitutional law, the recipient of such ‘aid and advice’, whether the President or the Governor, is bound by it. However, because of Delhi’s special status, Article 239AA(4) has a proviso which says that if there is a difference of opinion between the L-G and the Delhi Government on “any matter”, the L-G can refer this to the President of India for a decision.
The BJP used to interpret this as meaning that the L-G (appointed by the Centre, one must remember) could literally refer any matter to the President, and therefore could effectively veto decisions made by the Kejriwal government.
The Delhi government went to the Delhi High Court and then the Supreme Court to challenge this On 4 July 2018, a 5-judge Constitution Bench of the apex court delivered a landmark decision in which it held that the L-G was bound by the aid and advice of the council of ministers, and that they couldn’t use the proviso to Article 239AA(4) as an excuse to have their own way all the time – it could only be exercised in exceptional circumstances.
Delhi vs Centre Judgment Part II
The Constitution Bench judgment didn’t go into the nitty-gritties of each individual issue that cropped up between the Delhi government and the L-G.
On 14 February 2019, however, a two-judge bench of the court examined several specific questions – including who would get to appoint Special Public Prosecutors (SPPs) for cases relating to Delhi.
The apex court has conclusively decided the issue by saying that appointment of public prosecutors comes within the purview of the Delhi government, and so the L-G, “while appointing the Special Public Prosecutor, is to act on the aid and advice of the Council of Ministers.”
It should be noted that while the Centre does have the power to appoint public prosecutors and SPPs, which is generally in cases where the Centre is involved in some way – for instance if a central agency like the NIA is involved. This has not happened in the criminal cases relating to the Delhi riots thus far.
The Centre has not attempted to appoint Tushar Mehta or Aman Lekhi or any of the other lawyers themselves till now. It has been the L-G who has been making the appointments, ostensibly at the request of the Delhi Police. As a result, it would appear that the issue falls within the scope of the February 2019 decision of the Supreme Court.
WHAT HAPPENS NOW?
There are two ways in which this tussle can be resolved.
First, if either side pushes for the Delhi High Court to make a decision about the appointment of the Delhi Police/L-G’s choice of lawyers.
On Monday, Rahul Mehra informed the high court during the Ishrat Jahan case that the Delhi government had set aside the ‘suo motu appointment’ of SPPs by the L-G on 17 July. The L-G’s appointee, Amit Prasad, objected and insisted the L-G’s decision still stood. Justice Suresh Kumar Kait did not agree to take up the issue at the time, and noted that the question of who would represent the Delhi Police was being looked at by the court separately, Bar and Bench reported.
The AAP will likely point to the February 2019 decision of the Supreme Court and say it is clear that the L-G cannot act on his own to appoint the SPPs, and that the Delhi cabinet has to give its approval for the appointment of any such lawyers in the Delhi riots cases.
Secondly, the L-G could try to refer the matter to the President.
The lawyers appointed by the L-G argue that despite the February 2019 judgment, the proviso to Article 239AA(4) still stands, and it is justified for the L-G to refer this issue to the President in this case, because the Delhi riots cases involve issues of national importance, and the security of the capital.
If the cases are characterised as such, they would arguably fall within the concept of ‘exceptional circumstances’ in the apex court’s 2018 judgment, allowing the L-G to defy the Delhi government.
The Quint has been informed that the question of appointing these six SPPs has not yet been referred to the President, though this could change anytime in the coming days and weeks.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)