The Delhi High Court Monday sought response of the Centre and AAP government on a plea against the appointment of special public prosecutors (SPPs), including Solicitor General Tushar Mehta, in cases pertaining to north-east Delhi riots in February. Justice Navin Chawla issued notice to the newly impleaded Ministry of Home Affairs (MHA), the Delhi government and police seeking their stand on the petition by Delhi Prosecutors Welfare Association (DPWA) before the next date of hearing on January 12, 2021.
Senior advocate Vikas Pahwa, representing the DPWA, told the court that the question of jurisprudence being raised in the instant plea was how SPPs can be appointed at the behest of the police. Pahwa, assisted by advocate Kushal Kumar, told the court that the prosecution has to be independent and insulated from the police and therefore, the SPPs cannot be appointed at the behest of the investigating agency.
During the hearing, Additional Solicitor General (ASG) Sanjay Jain said the MHA ought to have been made a party as any decision of Delhi Police will be defended by the ministry. Subsequently, Pahwa made an oral request to the bench to implead the MHA a party in the case and the court agreed with it.
The senior counsel also said that the plea was not on who — whether the Lt Governor or the MHA — appointed the SPPs, but rather it was questioning how police can nominate counsel for appointment as prosecutors. He also questioned how the SPPs can be paid remuneration from the account of Delhi Police.
DPWA, in its plea filed through advocates Aditya Kapoor,Manika Goswamy and Akashdep Gupta, has sought quashing of Delhi government's June 24 notification appointing the SPPs, including Solicitor General Tushar Mehta, on the grounds that it was issued on police recommendations, in violation of the scheme provided under the Criminal Procedure Code (CrPC). On the last date of hearing on October 21, the Delhi government had agreed with the plea, saying what DPWA has said is right.
"We are also saying what the petitioner has said is right. There are judgements of a constitutional bench of the Supreme Court which cover the issue (raised in the plea)," it had told the court. DPWA has sought that the appointment of independent SPPs be done by "respecting the principles of fairness and impartiality".
The plea has claimed that the appointment of the 11 SPPs, including the SG, on the recommendations of Delhi Police "is a divergence from the principles of free and fair trial which is part of Article 21 of the Constitution". According to the petition, the proposal of Delhi Police to appoint SPPs was initially rejected by the Delhi government which decided to appoint SPPs from the empanelled advocates.
A revised proposal forwarded by the police was also rejected by the Delhi government, the plea has said, adding that subsequently, the Lt Governor intervened in the issue and decided to proceed with the names recommended by the police. It has said that this led to a difference of opinion between the LG and the Delhi government and the issue was referred to the President who approved the names suggested by the police.
In view of the Presidential approval, Delhi government issued the June 24 notification appointing the SPPs recommended by the police, the petition has also said. It has claimed that the association sent a representation to the Delhi government against the appointment of the SPPs, but no action was taken.
Communal clashes had broken out in north-east Delhi on February 24 after violence between citizenship law supporters and protesters spiralled out of control leaving at least 53 people dead and around 200 injured.