Two senior Law officers openly clashed in the Delhi High Court over who among them would appear for the Delhi Police in a case relating to illegal custody of a 25-year-old under Unlawful Activities Prevention Act, due to non-functioning of NIA Special Court.
Aman Lekhi, Additional Solicitor General submitted before the Court that he has an oral communication authorizing him to represent the Delhi Police Commissioner. But Mr Rahul Mehra, Senior Standing Counsel (Criminal Side) Delhi Government submitted before the Court that he has an objection regarding this, and further submitted that the law allows him to represent Delhi Police before the High Court. Mehra further added that he will file his reply to the petition.
However, the bench comprising Justices Vipin Sanghi and Justice Rajnish Bhatnagar conducting the hearing through video conferencing noted that such an issue should not have come up and further asked Supreme Court’s Constitutional bench order on the appointment of a Special Public Prosecutor, saying, apart from issue raised in the petition, it would also decide this aspect.
“Notice is accepted on behalf of respondents. We may state that both Amit Mahajan, Central Government Standing Counsel, and Rahul Mehra, Standing Counsel for GNCTD, accept notice. We permit both Mr Mahajan and Mr Mehra to file replies, in a week,” the order said.
This is not the first time when such controversy has arisen, earlier to this during the very first hearing of the Delhi Riots matter before Justice Muralidhar similar heated arguments took place between Standing Counsel. Rahul Mehra and Solicitor General Tushar Mehta.
Afterward the arguments got even worst between ASG Maninder Acharya and Mehra when the Delhi Riots matter was listed before the Chief Justice D.N. Patel over the same issue.
SG Mr. Mehta has always stated on such instances that he has been authorized by the Lt. Governor.
Whereas, Mr. Mehra has quoted the Delhi HC’s order on this issue that says, “It is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers”
The Delhi HC order was upheld by the Supreme Court in the case of the Government of National Capital Territory of Delhi and Ors. Vs. Union of India and Ors.
Wherein the Supreme Court had held that the confusion arises due to the special nature of Delhi which is a Union Territory with the features of a State, such as having an elected legislature. The 69th Amendment to the Constitution in 1992 added Article 239AA, which mandated an elected Assembly for Delhi. The special provisions added through the 69th Amendment created confusion concerning the jurisdiction of the Delhi Government vis-a-vis the Centre.
The judgment stated that the executive power of the Delhi government is co-extensive with the legislative power of the Delhi Assembly. Thus the LG is bound by the ‘aid and advice’ of the Council of Ministers on all matters where the Delhi Assembly has the power to make laws.
-India Legal Bureau