The Commission of Enquiry to be set up by the Delhi Government vis-à-vis women security is not legally tenable, according to experts. Additional Solicitor General Sanjay Jain has stated that the Delhi Government is neither competent to constitute the Commission of Enquiry pursuant to the Cabinet decision dated July 21, 2015, nor is the legislative Assembly of Delhi competent to pass a resolution supporting or endorsing the Cabinet decision which is fundamentally flawed.
Jain’s legal opinion came on a request of lieutenant Governor Najeeb Jung who has sought his opinion on the Arvind Kejriwal Government’s decision to set up Commission of Enquiry to probe crime against women in the national Capital in the wake of death of Meenakshi in Anand Parbat. According to sources, Raj Niwas has already apprised to Chief Secretary, Principal Secretary (Home) and Chief Minister Office about the legal opinion on Commission of Enquiry.
Meanwhile, BJP MlAs led by leader of Opposition Vijendra Gupta met the l-G and complaint about the wrong doing of the Kejriwal Government including setting up Commission of Enquiry through Cabinet decision.
According to Jain, the Delhi Government is endeavoring to create an alternative mechanism, apart from the one already established and functioning under the IPC and the CrPC. “If the purpose is to express dissatisfaction with the police function and to articulate a viewpoint that the same needs to be improved in the interest of maintaining and preserving public order. Therefore a Commission set up for the enquiry would be duplicitous in nature and apart from legal and jurisdictional infirmities,” said Jain, adding that it is needless to say that as the powers of the executive are co-extensive with the legislative powers, therefore neither by a resolution nor by an executive act can such a Commission of Enquiry be set up by the Delhi Government.
‘In the present case, the Commission is being set up with the motive to supplant and subjugate Article 239AA of the Constitution by citing a specific police investigation which is underway as a trigger noting the relevant provision of the IPC observing that police has failed to effective policing and concluding that remedial measures are required”.
“It would transgress into the domain of Central Government and the purported objective of receiving recommendations for bringing amendments to the Code of Criminal Procedure is only a disguise or cover at best incidental to the true and dominant purpose being to have an inquiry conducted in the subject matter covered by Entries 1 and 2 of list II. An incidental inclusion of a particular objective which may otherwise fall within the domain and competence of the legislative Assembly in a particular case will not empower the Government of Delhi to set up the proposed Commission,” Jain said.On the other hand, officials of the Delhi Government say that Delhi Government may set up Commission of Enquiry but terms of reference will be approved by the l-G.