On Tuesday, 28 July, Arvind Kejriwal’s Delhi Government escalated its ongoing battle with the Lieutenant Governor and the Delhi Police over the appointment of lawyers for the Delhi riots cases.
The Delhi Cabinet rejected a panel of lawyers proposed by the Delhi Police to act as special counsels in the Delhi High Court and the Supreme Court, including Solicitor General Tushar Mehta and Additional Solicitor General Aman Lekhi.
Observing that courts had raised “serious questions on fairness of investigations” done by the Delhi Police, something The Quint has tracked and can be read here, the Cabinet observed that, “a free and fair trial of these cases would not be possible by a panel of lawyers selected by the Delhi Police itself.”
As reported last week, the Aam Aadmi Party has adopted an aggressive new stance on the violence which rocked northeast Delhi in February 2020, arguing that the violence was “engineered” by the BJP, and that the ruling party at the Centre was trying to get its favoured lawyers appointed in the riots cases through the L-G to obfuscate the BJP’s involvement.
The press release on the Cabinet’s decision to reject the panel of lawyers strikes a similarly combative tone, citing a statement by Justice Suresh Kumar Kait of the Delhi High Court about the Delhi Police ‘taking the entire judicial system for a ride’. The statement also cites the questions raised by the sessions courts and the media about the Delhi Police during the riots and the subsequent investigation.
On this basis, the Cabinet argues that “the panel of lawyers of the Delhi Police would not be able to ensure justice in these cases.”
But is this decision justified? And what does this mean for the cases going forward?
‘UTTERLY OUTRAGEOUS’: ASG AMAN LEKHI SLAMS IMPUTATIONS ABOUT LAWYERS
Additional Solicitor Aman Lekhi said he did not want to be drawn into the political slugfest or comment on the Cabinet’s decision to appoint its own panel of lawyers. However, he took strong exception to the imputations cast by the Cabinet’s statement on the panel of lawyers suggested by the Delhi Police.
“The suggestion of complicity of the lawyers is utterly outrageous. As far as the lawyers were concerned, they never sought out any of these cases. They argued the matters on merits as they should, as entrusted to them.”ASG Aman Lekhi
Lekhi pointed out that when it came to the matters in which he or others on the panel including the Solicitor General had appeared, whether the case of Sharjeel Imam or Devangana Kalita, the Delhi High Court had in fact rejected the arguments of the accused, without any adverse remarks about the legal arguments.
In Safoora Zargar’s case, he noted that it was these lawyers who had said she should be given bail, even though the law did not require it. The imputation that their presence would affect the fairness of the legal cases was, therefore, neither justified nor warranted in his opinion.
“While quoting Justice Kait, the Cabinet’s statement ignores the judgments of Justices Vipin Sanghi, Kameshwar Rao and Vibhu Bakhru of the Delhi High Court – a diverse array of judges all of undisputed merit and independence. There is no one who can in any way impute any wrongdoing to them,” he said.
Dismissing the imputations made by of the Cabinet as “sanctimonious and self-righteous grandstanding”, the ASG criticised the inclusion of such comments in their press release about the decision. “It’s outrageous for them to have suggested what they have,” he said. He also added, "This is a reflection perhaps of their own understanding of what a lawyer is, rather than any genuine comment about the people they are speaking of – there’s absolutely no basis for this.”
ON WHAT BASIS HAVE THE DELHI CABINET REJECTED THE PANEL OF LAWYERS?
There are two aspects to the Delhi Cabinet’s arguments on rejection of the panel of lawyers.
Independence of Judicial Process From Investigation
First, they argue that the Delhi Police, as the investigating agency, should not get to decide who will represent them in the courts. This is because it is a “fundamental principle of any criminal justice system” that the investigation should be independent of the judicial process. Whether Public Prosecutors or Special Public Prosecutors or Special Counsels, they argue, the lawyers in the criminal justice system are supposed to be independent of the police, which is how one ensures a fair trial.
The decision to reject the lawyers suggested by the Delhi Police is framed as a consequence of this principle – though admittedly it is expressed in unusually strong terms: “under such circumstances, it is not possible to expect a free and fair trial by lawyers appointed by Delhi Police.”
Advocate MR Shamshad, who represents several victims from the Delhi riots, agrees with the principle behind the decision, explaining his reservations, as follows:
“There are serious accusations against Delhi Police role’s during the riots and there are records to support all of this. For example, there are records of policemen indulging in stone pelting, breaking CCTV cameras, not responding to calls during the riots. The Faizan video which showed how Delhi policemen compelled him to chant slogans etc. There is not one case registered against the police which is known in the public domain. Delhi Police has a lot to answer. In this context the fact the Delhi Police choosing their own PPs is a negation of the criminal justice system.”
Delhi Govt vs L-G
The second argument put forward by the Delhi Cabinet in their press release on the decision is more technical. This comes down to the question of who is the appropriate authority to decide on the appointment of lawyers for criminal cases in Delhi, under the unique constitutional scheme that applies to Delhi.
At the end of the day, the police do not have the authority to decide who will be their lawyers and who will prosecute their cases – whether in Delhi or anywhere else in the country. It is the regional government which gets to decide that: state governments in states, and the Lieutenant Governor in Union Territories.
The Delhi Police have involved the office of Delhi L-G Anil Baijal in this current dispute, with the L-G favouring the appointment of the lawyers they have suggested. The Kejriwal Cabinet, however, argues that the L-G doesn’t get to decide on this issue in Delhi, not on his own at least.
They refer to the Supreme Court’s judgment on 4 July 2018, to argue that the L-G is bound by the aid and advice of the council of ministers in Delhi, and that he can only exercise his discretion to not accept such aid and advice (granted to him under Article 239AA(4)) in the rarest of rare cases. The appointment of a panel of lawyers, they argue, does not fall into this exception, as it is a normal procedure, and so the Delhi Government is “fully empowered” to decide this, without the intervention of the L-G.
On 14 February 2019, the Supreme Court had expressly held that the appointment of Special Public Prosecutors is a matter for the Delhi Government to decide, and that the L-G is supposed to follow their lead on this.
ASG Lekhi disagrees with the Delhi Government’s interpretation of the Supreme Court’s judgments, that they are the ones empowered to appoint the lawyers for criminal matters in Delhi.
Alternatively, even if the Delhi Government remains convinced that they have authority to decide the panel of lawyers, Lekhi notes that this doesn’t mean they can just reject any decision made by the L-G – the dispute will need to be referred to the President under the constitutional procedure, who will then need to take a call.
WHERE DOES THIS LEAVE THE CASES IN THE COURTS?
The rejection of the panel by the AAP government is not the end of this saga. If the Delhi Government is unable to reach an understanding with the L-G, it is likely that the matter will end up being referred to the President, as was the case when the Delhi Cabinet disagreed with the appointment of 11 special prosecutors for the Delhi riots cases in the lower courts back in May.
After the L-G referred the dispute, the President notified the appointment of those 11 SPPs in June. While it is not clear if the current conflict will go the same way, it is nonetheless clear that it is one that will not be resolved anytime soon.
Meanwhile, there are concerns that this tussle between the Centre and the Delhi Government could in fact lead to delays that will impact the cases relating to the riots.
Advocate Lalit Valecha, who represents Ishrat Jahan, one of those accused of conspiracy to cause the riots under the UAPA, notes that they have seen the fighting over this issue for weeks now.
“There are vested interests in the matter. However, it does not matter as far as me and my client are concerned. The only hope is it does not hinder the independence of the judiciary and delay the rule of law. We have faced delay to due to this.”Lalit Valecha, advocate
Valecha explains that because of the tussle, arguments on a plea filed by him challenging the extension of the limitation period for filing the charge sheet in the conspiracy case (FIR 59/2020 of the Special Cell), only commenced one month after the case was first listed, as the issue of who would represent the Delhi Police kept arising.
If the conflict isn’t resolved, and the issue keeps getting raked up in court, “the guaranteed constitutional rights of the person in custody are prejudiced”, he warned.
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