Appointment of lawyers' panel suggested by Delhi Police: Undermining the independence of the prosecution

The recent tussle between the Lieutenant Governor and the Council of Ministers over the appointment of the panel of lawyers to represent the State of NCT Delhi in the farmers protest cases has again sparked a debate over the limits of the powers and functions of the two authorities.

The Supreme Court’s Constitution Bench dictum in State of NCT of Delhi v. Union of India and Anr, up to certain extent, attempted to resolve the loggerheads in relation to the powers and functions exercised between the Lieutenant Governor of the NCT of Delhi and the Council of Ministers of the NCT of Delhi, by reiterating that the LG shall be bound by the aid and advice of the Council of Ministers headed by the Chief Minister.

However, the issue seems to have cropped up again, with the LG differing with the aid and advice of the Council of Ministers and opting to exercise the power conferred upon him under the proviso to Article 239AA (4) of the Constitution of India, 1950. He referred the matter to the President of India and in the meanwhile recommended that the panel of lawyers appointed by the Delhi Police represent State of NCT in cases pertaining to the Red Fort violence that took place this year.

In this article, I shall be delineating on: firstly, whether the term “any matter” used in the proviso to Article 239AA (4) means “every matter”, where interference of the LG is warranted. Secondly, whether the Government of NCT of Delhi has the power to appoint public prosecutors. And thirdly, whether the appointment of panel of lawyers suggested by the Delhi Police to represent the State of NCT in these cases undermines the principle of fair play and independence of the prosecution.

The term “any matter” used in the proviso to Article 239AA (4) doesn’t mean “every matter”

The Sixty-Ninth Constitutional Amendment conceives of conferring special status on Delhi, wherein the insertion of Articles 239AA and 239AB specifically pertains to the NCT of Delhi. The word “shall” incorporated under Article 239AA(2)(a) denotes that Parliament needs to mandatorily create a legislative assembly for the NCT and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the NCT. Whereas in case of Puducherry, as under Article 239A(1), the word “may” vests the discretion in Parliament to create or not to create a body, whether fully elected or partially elected to function as a legislature for the Union Territory, or a Council of Ministers.

In New Delhi Municipal Corporation v. State of Punjab the Supreme Court recognized that Delhi is in itself a “class” which is different from other UTs by virtue of the constitutionally created Legislative Assembly, Council of Ministers and Westminster Cabinet System of governance with the effect of the 69^th Constitutional Amendment.

The reason behind incorporating special provisions for the NCT of Delhi is to establish a democratic setup and a representative form of government which shall be accountable to the people of NCT with appropriate powers to carry out their functions effective and efficiently for the welfare of the people of NCT.

The conjoint reading of Articles 239AA(3)(a) and 239AA (4) reveals that the executive power of the Government of NCT is co-extensive to that of the legislative power vested in the Legislative Assembly of the NCT envisaged in Article 239AA(3)(a).

It means that the Legislative Assembly of the NCT has power to make laws pertaining to all but three subjects - public order, police and land under List II of Schedule VII of the Constitution, and all subjects under List III.

Furthermore, the discretion of the LG exercised under Article 239AA (4) is limited to only three subjects carved out from the State List which are governed by Parliamentary laws.

Thus, in short it can be inferred that the LG can only exercise the power or take refuge under the proviso to Article 239AA (4) where the said ‘aid and advice’ of the Council of Ministers transgresses the area constitutionally prescribed by virtue of Article 239AA(3)(a).

The Supreme Court in Govt. of NCT of Delhi case held that the word “any matter” employed under the proviso to Article 239AA(4) has to be given a narrow and pedantic approach and it should not be read mechanically as “every.” Otherwise, the real intention and purpose with which such word was used would be frustrated.

The power granted to the LG under the proviso to Article 239AA(4) contains the rule of an exception and should not be treated as a general norm.

Moreover, the LG is bound to act within the constitutional spheres, keeping in mind the high trust reposed in him by the Constitution and should not refer each and every matter for the reservation of the President of India.

Does the Delhi government have the power to appoint public prosecutors?

The Division Bench of the Supreme Court comprising of Justices AK Sikri and Ashok Bhushan (after the Constitution Bench referred the other matters to be decided by the regular Bench) in the case GNCTD v. Union of India and Anr has answered this issue in the affirmative by observing that Section 24(8) of the Code of Criminal Procedure (CrPC) grants power to the state governments to appoint Special Public Prosecutors. And considering the fact that Delhi is not a full “State”, therefore in terms of Sections 3(8), 3(58) and 3(60) of the General Clauses Act, 1897, the Lieutenant Governor shall be considered as a “State Government” under Section 24(8) CrPC for the purpose of the appointment of the Special Public Prosecutor.

However, it was also observed by the Court that the power to appoint a Public Prosecutor falls in the Entries 1 and 2 of List III of the Seventh Schedule, and by virtue of Article 239AA, the Legislative Assembly of the NCT of Delhi derives the legislative power to make laws upon subjects mentioned under these Entries, which also cover matters pertaining to criminal procedure.

Moreover, the executive power of the Council of Ministers being co-extensive to that of legislative power of the Legislative Assembly of NCT of Delhi, the opinion of the Council of Ministers headed by the Chief Ministers can’t be brushed aside, and, it is not open to the Lieutenant Governor to appoint Special Public Prosecutors on his own without seeking aid and advice of the Council of Ministers.

Hence, the Lieutenant Governor, while appointing the Special Public Prosecutor, shall act on the aid and advice of the Council of Ministers.

Appointment of Special Public Prosecutors suggested by Delhi Police undermines the principle of independence of the prosecution

Disagreeing with the recommendations of the panel of lawyers suggested by the GNCTD, and in the meanwhile exercising the discretionary power to appoint a panel of lawyers suggested by the Delhi Police for the Red Fort violence cases till the reference to the President of India is decided, is a direct attack on the office of Public Prosecutor in the criminal justice system.

The prosecution is altogether a separate wing in the administration of justice. It carries a burden to perform its functions independently without acting on behalf of any party to the proceedings.

The Supreme Court in R Sarala v. TS Velu held that the prosecution and the investigation are two separate wings in the administration of the criminal justice system, wherein the role of a prosecutor starts after completion of the investigation, and not during the investigation. Otherwise, the principles for fair trial, equity and justice will be compromised and every proceeding where the prosecutor acts on behalf the Police or executive will be jeopardized.

The Law Commission in its 197^th report recommended the creation of an independent body of prosecuting officers, free from the executive and all external influences, and free from the police. This body must be able to enforce the rule of law without fear or favour, advance public interest in punishing the guilty and protect the innocent.

The decision of the Lieutenant Governor violates the fundamental tenets of the criminal justice administration and will severely jeopardise the trial in the 45 FIRs registered by the Delhi Police against the protesting farmers. Till now, charge-sheets are not submitted before the Court and the LG's decision to appoint only those Special Public Prosecutors as suggested by the Delhi Police is an open indication that the police and prosecution will work in a coalition to register as many convictions they can.

The verdict of the Supreme Court unambiguously establishes the position that while appointing Public Prosecutors, the Lieutenant Governor shall be bound by the aid and advice of the Council of Ministers headed by the Chief Minister, and the Lieutenant Governor shall not function as an obstructionist but reflect upon the philosophy of affirmative constructionism and visionary. It is unwarranted that the Lieutenant Governor still obeys the role of obstructionist while interfering in matters in which the Delhi government holds the executive power in correlation with the legislative power of the Legislative Assembly of the NCT of Delhi.

The author is an advocate practicing at the Madhya Pradesh High Court and District & Sessions Court, Gwalior.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.