'Elected Govt Has Right To Choose Its Advocates' : Delhi Govt Approaches Supreme Court Against LG Taking Over Lawyers' Appointment

A bench of Justices Sanjiv Khanna and Dipankar Datta was hearing a writ petition filed by the Government of the National Capital Territory of Delhi (GNCTD) under Article 32 of the Constitution, assailing a 2017 office memorandum issued by the union home ministry and an order passed by the Delhi lieutenant governor's office on February 16. Senior advocates Shyam Divan and Siddharth Dave appeared for the Delhi government. They were instructed by Advocate-on-Record Talha Abdul Rahman, assisted by advocates Mohd Shaz Khan and Adnan Yousuf.

"The elected Government of NCT of Delhi ought to be able to decide on the engagement of counsel, and the right to choose a counsel of a choice is one of the most zealously guarded rights. The elected Government cannot be shut out from choosing its advocates before the Constitutional Courts," the plea stated.

During the brief courtroom exchange, Justice Khanna suggested that the GNTCD's latest plea would ultimately be connected with its challenge against the 2023 amendment to the Government of National Capital Territory of Delhi Act, which, among other things, takes away the powers of the Delhi government to control the civil servants operating within its jurisdiction.

The amendment, initially promulgated in the form of an ordinance that was later replaced by an act of the parliament, came one week after the Supreme Court's verdict confirming GNCTD's control over administrative services in the national capital – barring those related to public order, police, and land. In July 2023, a bench headed by Chief Justice Chandrachud referred the GNCTD's challenge against this amendment to a five-judge constitution bench.

Praying for interim relief in the lawyers' appointment matter, Divan argued, “This is a pressing issue on a day-to-day basis. We will require some interlocutory orders also. The lawyers need to be paid.”

“Let the respondents appear. We will issue notice in the meantime,” Justice Khanna replied.

The judge then pronounced, “Issue notice returnable in the week commencing May 6, 2024 both on the main petition as well as the interim application. Notice will be served by all modes including dasti.”

What has GNCTD argued?

In April 2023, the lieutenant governor had assumed the role of appointing pleaders representing the Delhi government, citing the Code of Civil Procedure, 1908, which is a central legislation. In February this year, LG VK Saxena clarified that the proposal or matters relating to the appointment or engagement of advocates, advocates-on-record, and senior advocates would have to be submitted for his opinion first.

The impugned order reads:

“The proposal and matters relating to appointment and engagement of advocates, advocates-on-record, and senior advocates falls under the Code of Civil Procedure 1908 and Code of Criminal Procedure 1973, both being laws made by the Parliament and therefore is covered under Clause I of order dated April 28, 2021. Such proposal and matters need to be submitted for opinion of Lieutenant Governor before taking any executive action. Being statutory mandate under the Act of the Parliament, the order dated April 28, 2021, must be followed strictly.”

The GNCTD has argued that the home ministry's office memorandum and the lieutenant governor's February 16 order severely obstruct its ability to represent the interests of Delhi's electorate before the courts. It has asserted that the right to choose its counsel is a fundamental right that cannot be curtailed by bureaucratic measures. The petition states -

“As a consequence of the impugned office memorandum and order, and other similar objections, the payment of several lawyers who had been dully appointed pursuant to the Delhi government's cabinet decision from October 2019 and law department's subsequent office memorandum from November 2019, and had duly appeared before the Supreme Court and assisted in the determination of the law in various proceedings is also held up in bureaucratic meandering.”

The plea argues that these orders exceed the lieutenant governor's jurisdiction, encroaching upon the Delhi government's legislative and executive competence under the Constitution of India. It points out that even in cases unrelated to police, land, or public order, the GNCTD's right to appoint counsel of choice is being infringed upon.

The recent amendments to the Government of National Capital Territory of Delhi Act do not alter the executive and legislative power vested in the elected government, the GNCTD has argued. Citing previous Supreme Court judgments, it has emphasised that the lieutenant governor must act on the aid and advice of the council of ministers, except in specific matters where independent decision-making is permitted.

This is the latest in a series of pleas petitions filed by the GNCTD against the lieutenant governor. Delhi's ruling Aam Aadmi Party (AAP) has been engaged in a war of attrition with Lieutenant Governor VK Saxena over the division of authority and sharing of power in the national capital.