Delhi Riots: Delhi HC Directs Centre and Delhi Govt To Submit Written Submissions On Whether LG Can Unilaterally Appoint Counsels For Delhi Police

Meanwhile, the Single Bench of Justice Suresh Kumar Kait has vacated the stay imposed earlier on the release of the accused till the pendency of this petition.

The said order has come in a plea moved by Delhi Police seeking cancellation of bail granted to the Delhi riots accused Faizal Farooq.

Today, while justifying the locus of Centre to move the present petition, ASG Aman Lekhi submitted that the reliance cannot be placed on the judgment of the Supreme Court in State of NCT of Delhi v. Union of India (14/02/19), as produced by Mr Rahul Mehra, due to the following reasons:

1. Facts of that judgment did not involve an appointment of a law officer. It dealt with the appointment of an advocate under section 24(8) of CrPC
2. That judgement dealt with conducting a trial. On the other hand, the present matter deals with cancellation of bail
3. The question before the court in that judgment did not include the powers of the Central Government to appoint law officers in cases where it has an interest

Section 24(8) of CrPC states:

'The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.'

Mr Lekhi argued that the rules of interpretation doesn't permit reliance on some judgment which is sub silentio on the facts involved in the case that is being currently adjudicated by the court.

While arguing on the issue of application of section 24(8) of CrPC in the present matter, Mr Lekhi argued that the said section has no bearing to the facts of this case as law officers, such as Solicitor General and Additional Solicitor Generals, do not fall under the dentition of 'prosecutors' as stipulated under the said section.

'Law Officers, who work for the office of the Attorney General, are not subordinate to the Department of Prosecutions under section 25 of CrPC. It is outrageous to suggest that Centre should take permission from the State Government before appointing law officers in cases where it has an interest', Mr Lekhi argued.

Moreover, Mr Lekhi argued, that the client has a right to select a counsel of its choice. Therefore, Delhi Police has a right to decide who should represent it in this matter.

'The Right to select a counsel of one's choice is a part of one's Right to Privacy', Mr Lekhi submitted.

In addition to this, Mr Lekhi argued that the judicial interpretation of section 432 of CrPC, does give power to the Centre to appoint the counsel of its choice in cases where Centre's interest is involved. The said interpretation, it was argued, is also supported by the interpretation of Articles 73 and 239AA of the Constitution.

To determine what constitutes 'Centre's interest', Mr Lekhi submitted that the same shall be determined by the fact that the subject matter of the case involves laws which were passed under the exclusive powers of the Centre under List I of Seventh Schedule. In this case, that legislation is the Unlawful Activities Prevention Act.

'This is why the LG's order specifically mentioned that the Law Officers are appointed for all the cases arising from the law and order situation emanating from the northeast district of Delhi post the date of February 23', Mr Lekhi argued

To counter these arguments, Mr Rahul Mehra, Standing Counsel (Criminal) Delhi Government, submitted that the ASG is trying to divert the attention of the court and the judgements cited by him squarely covers the present controversy.

As per Mr Mehra, the Constitutional Bench judgment of the Supreme Court in State (NCT of Delhi) Vs. Union of India & Another, (2018) 8 SCC 501 as well the Division Bench judgment from 14/02/19, clearly states that LG cannot appoint the counsels without the aid and advice of the Council of Ministers of the Delhi Government.

'Might cannot be the right. Central Government cannot be allowed to impersonate the powers of the State Government', Mr Mehra remarked.

While claiming that if Centre's plea is allowed, the entire CrPC will be thrown out of the window and he federal system will be jeopardised, Mr Mehra further said:

'Delhi Police cannot be equated with any other client. Delhi Police cannot appoint its own counsel as then prosecution and investigation will become hand in glove.'

Mr Mehra also asked the court to direct Mr Lekhi to place an affidavit stating what interest does the Centre has in these cases pertaining to Delhi Riots.